- g LIBRARY UNIVERSITY OF CALIFORNIA. ja ~* Keceired . ^7&&. _ _.__. 1 88 4. . Accessions No.^ s/ic/f No. Cfr- , THE PRESIDENTIAL COUNTS: A COMPLETE OFFICIAL RECORD OF THE PROCEEDINGS OF CONGRESS AT THE COUNTING OF THE ELECTORAL VOTES IN ALL THE ELECTIONS OF PRESIDENT AND VICE-PRESIDENT OF THE UNITED STATES; TOGETHER WITH ALL CONGRESSIONAL DEBATES INCIDENT . THERETO, OR TO PROPOSED LEGISLATION UPON THAT SUBJECT. WITH AN ANALYTICAL INTRODUCTION. UNIVERSITY NEW YOEK : D. APPLETON AND COMPANY, 549 AND 561 BROADWAY. 1877. fft COPYRIGHT BY D. APPLETON & CO., 1877. CONTESTS. ANALYTICAL INTRODUCTION. mporary expedient for the first counting in 1789 Regular mode of procedure established in 1793 Places of meeting of the two Houses Appointment of tellers by the two Houses Function of the tellers Functions of the President of the Senate in respect to counting the electoral votes -As to the opening of the votes Presiding at the joint meeting Announcing to the two Houses the state of the vote Chancellor Kent s "presumption" The notification certificates The piecedent of 1857 How the counting has actually been done Federal officers chosen as electors " To make a list of the votes " Independent power of the two Houses in counting electoral votes Effect of disagreement of the two Houses Joint ballot Cases of votes counted and votes refused to be counted by the two Houses Summary ix OPINIONS OF MEMBERS OF CONGRESS. e two Houses count The two Houses count under the Constitution The two Houses regulate mode of counting by law The mode of counting to be prescribed by law But counting not to be delegated The two Houses count, not the President of the Senate Power of the Houses met together The two Houses determine the legality of votes Precedents The two Houses decide what are votes The two Houses decide on conflicting certificates The safer tribunal Two Houses decide all questions arising Who have voted that the two Houses should count The .two Houses inspect returns each by their chosen tellers Power of the two Houses to go behind returns affirmed Failure of two Houses to concur must lose State its vote. . . xiii FIRST PRESIDENTIAL TERM 1789-1793. presiding officer elected by the Senate The electoral votes counted George Washington, Presi dent, and John Adams, Vice-President Announcement of the result in the House of Represent atives in separate session 1 SECOND PRESIDENTIAL TERM 1793-1797. notation for a joint committee of the two Houses of Congress to ascertain and report a mode of examining the electoral votes Agreement that tellers be appointed on the part of each House to make a list of the votes Examination of the certificates by direction of Congress George Washington and John Adams reflected Separate announcement in the House of Representa tives of the count by the tellers Joint committee to inform the President of his reelection 2 THIRD PRESIDENTIAL TERM 1797-1801. )int committee of the two Houses to ascertain and report a mode for examining the electoral votes Tellers appointed to make a list of the votes Meeting of the two Houses in the Representa tives Chamber Certificates examined and result ascertained by the tellers John Adams elected President and Thomas Jefferson Vice-President Announcement by Mr. Adams (the Yice-President) of the time and place of his taking the oath of office as President President of the United States requested by Congress to inform the Vice-President-elect of his election.. CONTENTS FOURTH PRESIDENTIAL TERM 1801-1805. Joint committee of the two Houses to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Examination of the certificates by direction of Congress Failure of a choice on account of an equal number of votes for Thomas Jefferson and Aaron Burr Proposed rules to govern the House of Representatives in choosing a President Debate on their adoption Balloting for President in the House of Representatives Thomas Jefferson elected Committee of the House to inform the President of the result ............. 1 FIFTH PRESIDENTIAL TERM 1805-1809. Tellers appointed by the two Houses to examine the electoral certificates Their duty performed by direction of Congress Thomas Jefferson President and George Clinton Vice-President Announcement of the result in the House of Representatives in separate session Joint com mittee to inform the President of his reelection.. . 1 SIXTH PRESIDENTIAL TERM 1809-1813. Joint committee of the two Houses to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Remonstrance against the appointment of elec tors in Massachusetts Remonstrance by Mr. Randolph against the theory that the Vice-Presi dent should occupy the Speaker s chair except by courtesy Resolution to that effect communi cated to the Senate Meeting in the Representatives Chamber Result ascertained by the tell ers James Madison President and George Clinton Vice-President 2 SEVENTH PRESIDENTIAL TERM 1813-1817. Joint committee to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Meeting in the Hall of Representatives The result ascertained by the tellers James Madison, President, and Elbridge Gerry, Vice-PresidentJoint committee to inform the President of reelection 2i EIGHTH PRESIDENTIAL TERM 1817-1821. Joint committee to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Meeting in the Representatives Hall Objection to receiving the vote of Indiana Withdrawal of the Senate Debate on the objection raised Subject indefinitely postponed Count of the votes concluded James Monroe, President, and Daniel D Tompkius Vice-President... 2! NINTH PRESIDENTIAL TERM 1821-1825. Joint committee to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Agreement between the two Houses in regard to the treatment of the votes from Missouri Meeting in the Representatives Chamber Objection to the vote of Missouri Withdrawal of the Senate Debate on the subject in the House of Representatives Return of the Senate to the Representatives Chamber, and conclusion of the count James Monroe, President, and Daniel D. Tompkins, Vice-President Joint committee to inform the President of his reelection .......................... TENTH PRESIDENTIAL TERM 1825-1829. Debate on the adoption of rules to govern House of Representatives in balloting for President Joint committee of the two Houses to ascertain and report a mode for examining the electoral votes Tellers appointed to make a list of the votes Resolution of the House that Vice-President shall occupy the Speaker s chair during the counts-Meeting in the Representatives Chamber Failure of a choice of President, no person having received a majority of votes A majority of votes for CONTENTS. v PAGE John C. Calhoun for Vice-President Withdrawal of the Senate Balloting in the House of Rep resentatives for President John Quincy Adams elected President Committee of the House to inform the President and President-elect of the result 47 ELEVENTH PRESIDENTIAL TERM 1829-1833. nt committee of the two Houses to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Meeting in the Representatives Chamber The certificates examined by the tellers Andrew Jackson President, and John C. Calhoun Vice- President Joint committee to inform the President of his reelection 88 TWELFTH PRESIDENTIAL TERM 1833-1837. nt committee of the two Houses to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Meeting in the Representatives/ Chamber Cer tificates examined by the tellers Andrew Jackson President, and Martin Van Buren Vice- . President Joint committee to inform the President and Vice-President-elect of their election. . 90 THIRTEENTH PRESIDENTIAL TERM 1837-1841. nt committee to ascertain and report a mode of examining the electoral votes, and whether any votes were given for ineligible electors Tellers appointed to make a list of the votes Declara tion by Congress that a resignation by a deputy postmaster after an election would not entitle him to vote as an elector Agreement between the two Houses respecting the mode of receiving the votes of Michigan Meeting in the Representatives Chamber Martin Van Buren elected President Failure of a choice of Vice-President Election of Richard M. Johnson by the Sen ate Joint committee to inform the President-elect of his election 92 FOURTEENTH PRESIDENTIAL TERM 1841-1845. nt committee of the two Houses to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Meeting in the Representatives Chamber Exam ination of certificates by the tellers, and the result ascertained William Henry Harrison President, and John Tyler Vice-President Joint committee to inform the President-elect. of his election 98 FIFTEENTH PRESIDENTIAL TERM 1845-1849. nt committee of the two Houses to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Meeting in the Representatives Chamber Examination of the certificates by the tellers, and the result ascertained James K. Polk President, and George M. Dallas Vice-President Joint committee to inform the President and Vice-President-elect of their election. . . 100 SIXTEENTH PRESIDENTIAL TERM 1849-1853. nt committee of the two Houses to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Meeting in the Representatives Chamber Examination of the certificates by the tellers and the result ascertained Zachary Taylor Presi dent and Millard Fillmore Vice-President Joint committee to inform the President and Vice- President-elect of their election. .. . 104 SEVENTEENTH PRESIDENTIAL TERM 1853-1857. nt committee of the two Houses to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Meeting in the Representatives Chamber ^ CONTENTS. PAO Certificates examined by the tellers and the result ascertained Franklin Pierce President and William R. King Vice-President Joint committee to inform the President-elect of his elec tion . 10 EIGHTEENTH PRESIDENTIAL TERM 1857-1861. Joint committee of the two Houses to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Meeting in the Representatives Chamber Withdrawal to their own Chamber, and report of the tellers that the electors of Wisconsin bad met on a different day from that prescribed by law Debate thereon Proceedings in the House of Representatives Statement by the tellers that James Buchanan had received a majority of all the votes for President, and John C. Breckinridge had received a majority of all the votes for Vice-PresidentDeclaration by the President of the Senate Disclaimer on his part of an intention to decide upon the validity of votes Debate in the House in separate session on the conduct of the President of the Senate and the mode of treating the votes from Wisconsin Joint committee appointed to inibrm the President and Vice-President-elect of their election. . ,. ^ NINETEENTH PRESIDENTIAL TERM 1861-1865. Joint Committee of the two Houses to ascertain and report a mode of examining the electoral votes Tellers appointed to make a list of the votes Meeting in the Representatives Chamber The certificates examined by the tellers and the result ascertained Abraham Lincoln President, and Hannibal Haralin Vice-PresidentJoint committee to inform the President and Vice- President-elect of their election TWENTIETH PRESIDENTIAL TERM 1865-1869. Joint resolution to exclude certain Southern States from representation in the electoral college adopted in both Houses after debate Joint rule to regulate th,e proceeding by the Houses in counting the votes recommended by joint committee appointed to ascertain and report a mode of examining the votes The rule adopted in both Houses Tellers appointed to make a list of the votes The certificates examined and result ascertained in accordance with the provisions of the joint rule Abraham Lincoln President, and Andrew Johnson Vice-Presi dent Joint committee to inform the President and Vice-President-elect of their election Message of the President disclaiming all right to interfere in matter of counting the votes. . . . 1 TWENTY-FIRST PRESIDENTIAL TERM 1869-1873. Tellers appointed to make a list of the electoral votes in accordance with the joint rule of 1865 Con current resolution adopted by both Houses providing a mode of treating the votes from Georgia Meeting in the Representatives Chamber Objection to the vote of Louisiana Withdrawal of the Senate Resolution of the House to receive the votes from Louisiana Return of the Senate to the Representatives Chamber Announcement that by concurrent resolution of the two Houses the vote of Louisiana is ordered to be counted Objection to the vote from Georgia Withdrawal of the Senate Resolution of the House against counting the vote of Georgia Re turn of the Senate to the Representatives Chamber Announcement that the Senate had over ruled the objection to the vote of Georgia A list of the votes made by the tellers and the result declared Ulysses S. Grant President, and Schuyler Colfax Vice-President Debate in the House of Representatives on a resolution to protest against the proceedings of the Vice-President Resolution laid on the table . . , 2 TWENTY-SECOND PRESIDENTIAL TERM 1873-1877. Resolution adopted in Senate to inquire whether the elections in Louisiana and Arkansas were con ducted in accordance with the United States Constitution Report of the Committee Tellers appointed to receive and count the votes Meeting in the Representatives Chamber Objections to the votes of Georgia and Mississippi Withdrawal of the Senate Resolution of the House against counting the votes from Georgia and injavor of counting the votes from Mississippi Return of the Senate to the Representatives Chamber Announcement that the Senate had CONTENTS. vii PAGE passed a resolution in favor of counting all the votes objected to Announcement that the votes from Georgia should not be counted by reason of the non-concurrence of the two Houses Objec tion to votes from Texas Withdrawal of the Senate Resolution of both Houses in favor of counting the votes from Texas Return of the Senate to the Representatives Chamber An nouncement that both Houses concurring the votes from Texas should be counted Objection to two returns from Arkansas and two returns from Louisiana Withdrawal of the Senate Reso lutions of the House in favor of counting the votes from Arkansas cast for Grant and Wilson, and against counting any of the votes from Louisiana Resolutions of the Senate against count ing any of the votes from Arkansas or Louisiana Return of the Senate to the Representatives Chamber Announcement that the votes of Arkansas should not be counted by reason of non- concurrence of the two Houses and that, the two Houses concurring, the votes from Louisiana should not be counted The result declared Ulysses S. Grant President, and Henry Wilson Vice-President Joint committee to inform the President and Vice-President-elect of their election 361 PROPOSED LEGISLATION AS TO MODE OF COUNTING THE ELECTORAL VOTES. Debate in 1800 on a resolution, for a committee to consider whether any provisions ought to be made for deciding disputed elections 414 )ebate in 1873 on a resolution introduced by Senator Morgan, instructing the committee on elections to report upon the best mode of electing the President and Vice-President 435 Debate in 1875 on a bill introduced by Senator Morton, to regulate the counting of the electoral votes 448 Debate in 1876 on Senator Morton s bill to regulate the counting of the electoral votes 501 APPENDIX. Ipeech of Senator Bayard hi 1875 on a proposed mode of counting the electoral votes .665 EEEATUM. On p. 32, 37th line, 2d column, for " authorized " read " unauthorized." ANALYTICAL INTKODTJCTION.* THERE have been twenty-one presidential elections under our Federal Constitu tion, but until now the methods of canvassing the electoral votes at the seat of Government have never presented questions of much practical importance, except so far as they established precedents for the future. The main result of the Federal canvass, whenever there has been an election by the people, has always been known in advance of the meeting of Cong^ss ; and, though questions as to the authenticity or validity of votes have repeateoly arisen, their solution has in no instance hitherto made any practical difference with the result. Now, for the first time, the disputed votes may decide the result of the election. There are 184 uncontested votes on one side, 165 on the other, and 20 in dispute. It will be necessary for the constituted authorities, in some instances, to pass upon the authenticity or validity of duplicate electoral certificates from the same States. Where the authority lies that is to decide such an issue has thus become a question of the gravest import, for upon it may depend not merely the control of this Gov ernment during the next presidential term, but the perpetuity of our political in- situtions, and the confidence of our people and of all mankind in the elective system and in the principle of popular sovereignty. The provisions of the Constitution furnish a pretext for some diversity of opinion upon this subject, especially when it is investigated under the glamour of fervid par tisanship, and when the choice of candidates may depend upon the interpretation those provisions receive. The Constitution provides that the certificates of the votes given by the electors, which are transmitted to the seat of government, shall be delivered to the President of the Senate, and that the President of the Senate shall, in the presence of the two Houses of Congress, open all the certificates, and that " they shall then be counted." By whom the votes shall be counted ; how far the counting is a simple matter of enumeration, and how far it involves the additional duty of determining the authenticity and validity of the certificates presented, are questions in the solution of which the practice of the Government is our best guide. Attempts have been * The Congress of the Confederation, on the 28th of September, 1787, directed that the Constitution, with certain resolutions adopted by the Convention on the 17th of September, 1787, be transmitted to the legislatures of the several States, to be submitted to conventions of the people thereof. One of those resolutions^ in the following words : Resolved, That it is the opinion of this Convention, that as soon as the conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a day on which electors should be appointed by the States which shall have ratified the same, and a day on which the electors should assemble to vote for the President, and the time and place for commencing proceedings under this Constitution. That after such publication the electors should be appointed, and the Senators and Rep resentatives elected. That the electors should meet on the day fixed for the election of the President, and should transmit their votes, certified, signed, sealed, and directed, as the Constitution requires, to the Secretary of the United States in Congress assembled ; that the Senators and Representatives should con vene at the time and place assigned ; that the Senators should appoint a president of the Senate, for the sole purpose of receiving, opening, and counting the votes for President; and that after he shall be chosen, the Congress, together with the President, should, without delay, proceed to execute the Consti tution. x TEMPORARY EXPEDIENT FOR THE FIRST COUNTING IN 1789. made at various times to secure supplementary legislation to meet the exigency which is now presented to the country, but none of these efforts were fortunate enough to unite a majority of the Federal Legislature in its favor. The difficulty now has to be met under aggravated disadvantages. The two Houses are divided in their preferences for the respective candidates ; questions will be raised as to the authenticity or validity of some of the electoral certificates to be presented, upon the reception or rejection of which the result of the election may finally depend. In view of the difficulties which our legislators will experience, with two great armies of more or less heated partisans behind them, in legislating upon this subject with suitable impartiality, it is the disposition and it will be the manifest duty of every patriotic member of our Federal Legislature to adhere as closely as possible to the precedents which have been sanctioned by time and continuous usage. A less aus picious moment for engaging in experiments, and for introducing new methods of canvassing the electoral vote, could scarcely be imagined. The wisest devices which have not the sanction of precedent would now fall a prey to merited suspicion and distrust. It is in deference to this conviction that the following compilation is submitted to the public. It is intended to embrace a perfect and complete record of the can vass in the two Houses of Congress, with all the debates to which they have given rise, talJn from the official reports. Scattered as the originals are, through some forty or fifty cumbrous and not readily accessible volumes, it would be a task which very few could or would undertake, to make themselves even tolerably familiar with the way in which this quadrennial duty of the two Houses of Congress has been dis charged hitherto. By the aid of this compilation, however, no one interested in the subject will have a good excuse for remaining in ignorance of the precedents which have been estab lished, and in accordance with which it is to be presumed all proceedings at this final canvass of the electoral vote, cast in 1876, will be conducted. For the convenience of those who may have occasion to investigate this subject the more important usages or precedents which the practice of nearly a century have established in regard to the methods of opening, counting, and announcing the result of the electoral votes for President and Vice-President of the United States, will be here recapitulated. TEMPORARY EXPEDIENT FOR THE FIRST COUNTING IN 1789. The Constitution provides that the electors of President and Vice-President shall "transmit " the certificates of their votes to the seat of the Government, "directed to the President of the Senate ; " and that " the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." At the first organization of the Government in 1789, there being no President of the Senate, a provisional arrangement was necessary. The votes had been trans mitted to the Secretary of the Congress of the old Confederation. The Senators, on assembling in conformity to the suggestion made by a resolution of the Convention of 1787, chose a president "for the sole purpose of opening the certificates and counting the votes " of the electors ; appointed one teller, and sent a message inform ing the House of their action and their readiness to proceed to the coun,t of the votes. The House appointed two tellers, and assembled with the Senate. The resolution of the Senate, while declaring that its special president had been ap pointed for the sole purpose of opening the certificates and counting the electoral votes, did not designate the person or persons by whom the votes should be counted. It might have been their intention that while the President of the Senate should open the packages, the two Houses when convened should count the votes them selves, or determine by whom they should be counted. This would reflect com pletely the sense of the resolution which stated the purposes of the meeting, but not the agents who were to execute those purposes. The President of the Senate, however, reported to the two Houses that they had met and that he had opened and REGULAR MODE OF PROCEDURE ESTABLISHED IN 1793. XI counted the votes. The election of Washington as President was unanimous ; and everything was done rather as a formality, and without debate as without delibera tion. The counting involved nothing beyond a mere computation, and even that meagre power, so far as exercised by the special president, was not assumed as an official right, but was derived from an express resolution of the Senate and the assent of the House. The counting w ? as done under a special appointment for that sole purpose before the Senate had elected its president pro tern. In the nature of the case, what was done on that occasion can have no authority as a precedent. REGULAR MODE OF PKOCEDUBE ESTABLISHED IN 1793. At the second election in 1793 the two Houses established a regular proced ure for the counting of the electoral votes, a procedure which has been substantially followed ever since. They assumed and exercised the power of prescribing by con current resolutions of the two Houses a mode of counting. That mode was devised and reported by a joint committee of the two Houses. The committee was raised under concurrent resolutions charging them, among other things, with this duty : February, 1793, "to ascertain and report a mode of examining the votes for President and Vice-President," page 2. February, 1797, " to ascertain and report a mode of examining the votes for Presi dent and Vice-President," page 5. January, 1801, " to ascertain and report a mode of examining the votes for Presi dent and Vice-President," page 10. February, 1805, " to ascertain and report a mode of examining the votes for President and Vice-President," page 19. February, 1809, " to ascertain and report a mode of examining the votes for President and Vice-President," page 22. February, 1813, " to ascertain and report a mode of examining the votes for President and Vice-President," page 26. February, 1817, " to ascertain and report a mode of examining the votes for President and Vice-President," page 29. February, 1821, "to ascertain and report a mode of examining the votes for President and Vice-President," page 34. February, 1825, " to ascertain and report a mode of examining the votes for President and Vice-President," page 86. February, 1829, "to ascertain and report a mode of examining the votes for President and Vice-President," page 89. February, 1833, " to ascertain and report a mode of examining the votes for President and Vice-President," page 90. February, 1837, " to ascertain and report a mode of examining the votes for President and Vice-President," page 98. February, 1841, " to ascertain and report a mode of examining the votes for President and Vice-President," page 98. February, 1845, " to ascertain and report a mode of examining the votes for President and Vice-President," page 100. February, 1849, "to ascertain and report a mode of examining the votes for President and Vice-President," page 104. February, 1853, " to ascertain and report a mode of examining the votes for President and Vice-President," page 107. February, 1857, "to ascertain and report a mode for examining the votes for President and Vice-President," page 112. February, 1861, "to ascertain and report a mode for examining the votes for President and Vice-President," page 170. January, 1865, " to ascertain and report a mode of examining the votes for President and Vice-President," page 257. On all occasion s prior to 1865, the mode reported was for that election only. In Xll APPOINTMENT OF TELLERS BY THE TWO HOUSES. 1865, the joint committee reported a permanent standing, rule called the 22d joint rule which has governed the counts in 1865, 1869, and 1873. The phrase "mode of examining the votes" imports a verification, to some ex tent of the votes. The resolutions included some other objects: always the. notifi cation of the persons elected, until 1865, when, on the adoption of the 22d joint rule, the notification was by a separate resolution; often the "regulating the time, place, and manner of administering the oath to the President;" sometimes, as in 1857, the question of ineligible electors; or, as in 1821, 1837, 1857, and 1869, the dealing with disputed votes. Every one of these resolutions asserts the rightful power of the two Houses over the counting ; and that power was asserted in twenty-one successive elections with out denial or question. Every one of these resolutions is incompatible with the existence of any power whatever over the subject on the part of the President of the Senate. If he had a constitutional right to govern the count, no one of these resolutions would have been valid. . After the mode of examining the votes was " ascertained and reported by the committees, the two Houses by concurrent resolution have adopted the mode finally agreed upon. They have not only asserted their power over the counting in the creation of those committees, but in all cases have again asserted it by a formal and authoritative adoption of the work of the committees by concurrent resolution of the two Houses. The resolution prescribing the mode of counting has always begun by fixing the time and place of the joint meeting of the two Houses for the purpose of counting the electoral votes. PLACES OF MEETING OF THE Two HOUSES. The places of meeting to count the electoral votes have been determined inva riably by a joint resolution of the two Houses. At the first two elections of General Washington they met in the Senate Chamber. At the election of John Adams the Senate joined the House in the Hall of the Representatives. At the several elections of Thomas Jefferson, in 1801 and 1805, the two Houses met in the Senate Chamber. Since then they have invariably met in the Hall of Representatives, making four times in the Senate Chamber and seventeen times in the Hall of the Representatives. APPOINTMENT OF TELLERS BY THE Two HOUSES. The resolutions prescribing the mode of counting have always contained a pro vision that one teller on the part of the Senate, and two tellers on the part of the House of Representatives, should be appointed, and, in every counting of the elec toral votes since the formation of the Government, two tellers have acted for the House of Representatives and one teller has acted -for the Senate. Even in the anomalous counting of 1789, that was so. At every counting from 1793 to 1873, inclusively, the House by a resolution has appointed two tellers and the Senate has appointed one teller In the language of Senator Boutwell (March 13, 1876, see " Proposed Changes," p. 11), "the tellers were the organs, the instruments, the hands of the respective Houses ; the votes were counted by the tellers, and, being counted by the tellers, they were counted by the two Houses. And, therefore, there never has been any different practice, and no different practice could have arisen under the Constitution. The two Houses in convention have from the first until now counted the votes." The fact that the tellers have always been appointed by the two Houses have held these trusts at the pleasure of the two Houses, subject to their orders and instructions, and wholly free from the control of the President of the Senate, is of itself decisive in favor of the right of the Houses to count the votes, and is equally decisive against any pretension on the part of the President of the -Senate to govern or in any manner to interfere with the counting. FUNCTION OF THE TELLERS. xiii FUNCTION OP THE TELLERS. At every counting, from 1793 to 1861, inclusively, the resolutions adopted by the two Houses have defined the duty of the tellers to be 1. " To make a list of the votes as they shall be declared." 2. " The result shall be delivered to the President of the Senate." In practice, the tellers have read the votes, one by one, after they have been opened or the seals sometimes broken, sometimes unbroken, by the presiding officer, or in some instances the packages with unbroken seals handed over by the presiding officer ; have read each certificate in full to the two Houses, which, in the phrase ology of the resolutions, is the " declaring " of the vote in each certificate ; and is sometimes so called in the Journals; have entered eaqh vote so declared upon a list ; and then have delivered the result to the presiding officer. The joint rule governing the counting in 1865, 1869, and 1873, defines the func tion of the tellers as follows : " One teller shall be appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed as they are opened by the President of the Senate the certificates of the electoral votes ; and said tellers having read the same in the presence and hearing of the two Houses then assembled, shall make a list of the votes .as they shall appear from the said certificates, and, the vote having ~been counted, the result of the same shall be delivered to the President of the Senate." It is to be observed that the phraseology of the joint rule deems the counting to be completed, while the certificates are in the hands of the tellers ; after they have been opened and handed to the tellers, and before the result has been delivered to the presiding officer. It is to be observed also that all questions as to the authenticity or validity of any vote must be raised and must be submitted to and determined by the two Houses before the votes have left the hands of the tellers. That has been the invariable practice from the beginning of the Government in every case of a disputed vote. That practice was defined and stated and adopted in the joint rule established in 1865. It was expressed as follows : " If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision ; and the Speaker of the House of Representatives sball in like manner submit said question to tbe House of Representatives for its decision ; and no question sball be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses, wbich being obtained, the two Houses shall immediately reassemble, and tbe pre siding officer sball then announce the decision of the question submitted ; and upon any such question there shall be no debate in either House. And any other question pertinent to the object for which tbe two Houses are assembled may be submitted and determined in like manner." FUNCTIONS OF THE- PRESIDENT OF THE SENATE IN RESPECT TO COUNTING THE ELECTORAL VOTES. As to the implied custody of the votes before the counting. The Constitution (Amendments, Art. 12, Sec. 1) provides that the electors " shall transmit " the certified lists of their votes for President and Vice-President " sealed to the seat of Government of the United States, directed to the President of the Senate." The statute of 1792 provides 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 certificates of the votes of the electors, then such persons shall deliver such certifi cates 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." (Rev. Statutes, Sec. 145, p. 22.) XIV AS TO THE OPENING OF THE VOTES. As TO THE OPENING OF THE VOTES. The Constitution (Art. 11, Sec. 1, Sub. 3, and Amendment 12, Sec. 1) provides that " the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates." At the time the provision that the sealed packages of votes to be transmitted by the electors to the seat of Government and addressed to the President of the Senate came before the Convention of 1787, it was a part of the scheme that the President of the Senate should open all the certificates in the Senate, and that the votes should then and there be counted ; and that, in the event of a failure of choice by the electoral colleges, the Senate should immediately elect both the Presi dent and Vice-President. (September 4, 1787. 5 Elliott, 507.) The report of the committee was modified, by providing that the President of the Senate should open all the certificates " in the presence of the Senate and the House of Representatives ; " and then the election of President, on the failure of a choice by the colleges, was taken away from the Senate and given to the House of Representatives. (5 Elliott, 518, 519, 520.) But the power, on a failure of a choice by the colleges, to elect the Vice-President, remained in the Senate. The requirement that the certificates transmitted to the seat of Government should be addressed to the President of the Senate under seal, and that the packages should be opened in the presence of the official bodies which were to take jurisdiction of the facts and remedy any failure in the choice by the electoral colleges, was allowed to stand. These provisions were intended to secure the votes given by the electors, at their meetings in the several States, from being tampered with, until they should come into the actual possession of the two Houses. The House of Representatives and the Senate had not only a right, but a duty and an official necessity, to know in the most authentic manner the result of the votes given in the electoral colleges. In the first place, the House of Representatives, on the failure of a choice of President by the electoral colleges, was charged with the duty of electing the Presi dent. The fact of the failure of the colleges as specified and defined in the Consti tution was the sole basis of the jurisdiction of the House to act. Its own means of " examining the votes for President and Vice-President " (such is the language of all the concurrent resolutions of the two Houses from 1793 to 1865, and of the joint standing rule by which they were replaced in 1865) was the only evidence provided by the Constitution of the fact on which the House acquired jurisdiction. No judgment, certification, or act of any other official body, was interposed as a condition. The House is a witness of the opening of the certificates. It is an actor in the counting of the votes by its own tellers, and in its presence. " And if no person have " a "majority" of "the electors appointed, then from the persons having the highest numbers, not exceeding three, in the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President." Such is the imperative command of the Constitution. And, when the House has acted in such a case, there is no review of its action nor any appeal from its decision. The Senate has a similar jurisdiction, on the failure of a choice of Vice-President by the electoral colleges, to elect the Vice-President. It has the same right, duty, and official necessity, to know the result of the votes. In the second place, the two Houses of Congress have all the powers of verifica tion of the electoral votes and their results which the Constitution and the laws supply or allow. Nobody else in the Federal Government has any such powers. The two Houses have always themselves made the count, and regulated its process and procedure by concurrent resolution applicable to each particular election until 1865. Then they did so by a standing joint rule. Doubtless they may do so, within constitutional limits, by legislation. They are the most appropriate and the safest depositary of such powers in this respect as are to be exercised by the Federal Government. The Convention of 1787, until nearly the close of its deliberations, adhered to the plan of intrusting the elec- PRESIDING AT TILE JOINT MEETING. xv tion of President to the two Houses of Congress. When it finally adopted the system of electors chosen by the people or Legislatures of the States, it still, in case of a failure of choice by the electors, vested the election of President in the House, and of the Vice-President in the Senate. Those bodies are the general representa tives of the people, and the depositaries of the legislative powers of the Govern ment. No better, wiser, or safer trustees of the power to- count the electoral votes can be found in the nature of human affairs. The President of the Senate has no constitutional power, by virtue of his office as such president, to do anything in respect to the counting but " to open all the certificates " in the presence of" the two Houses. He has never done anything further except by virtue of an express grant of authority conveyed in concurring re solves or orders from the two Houses. PRESIDING AT THE JOINT MEETING. The House of Representatives has never parted with its right to retain its own presiding officer or to insist that its consent is necessary to the temporary appoint ment of a presiding officer for the two Houses. There is no constitutional provision nor any law giving the President of the Senate the right to preside over the two Houses when sitting together at the counting of the electoral votes. The two Houses assemble, not in the individual capacity of the members, but in the official capacities of those bodies. They assemble as a Senate and House of Representa tives. If no positive provision for one presiding officer is made, the Speaker would preside over the House of Representatives. At the first five elections nothing is said in the recorded proceedings about a presiding officer. At Jefferson s second election the Speaker is described as occupying a seat " on the floor on the right side of the President of the Senate" one of the exceptional cases in which the two Houses met in the Senate Chamber. At Madison s first election, in 1809, John Randolph, a member of the House, ob jected to the President of the Senate being permitted to occupy the Speaker s chair without the formal invitation or permission of the House. Thereupon a motion was made and passed that, when the members of the Senate were introduced, the Speaker should relinquish the chair to the President of the Senate. Mr. Randolph then made a motion which was adopted, that the Senate be notified of this vote by a message, to show that its president would occupy the Speaker s chair by courtesy and not of right : " If not," he said, " it might appear that the President of the Senate took the chair as a matter of right. He said he knew that to many persons matters of this sort appeared to be of minute importance, but, in everything touching the privi leges of this House as it regarded the claims of the other coordinate branches of the Government, he would stickle for the ninth part of a hair. It was well known that in England the privileges of the Commons had been gained inch by inch from the kings and nobles by a steady perseverance ; and that man must have very little knowledge of mankind, indeed, who was not persuaded that those privileges might be lost, as they were gained, by gradual and imperceptible encroachment on the one hand, and tacit yielding on the other." At the succeeding election of Madison, in 1813, no resolution was adopted on this subject, but the record shows that " a mes sage from the House of Representatives informed the Senate that the House is now ready to attend the Senate in opening the certificates and counting the votes of the electors of the several States in the choice of a President and Vice-President of the United States, in pursuance of the resolution of the two Houses of Congress ; and that the President of the Senate will be introduced to the Speaker s chair by the Speaker of the House of Representatives." In the joint session of the two Houses in 1817, Mr. John W. Taylor, an expe rienced parliamentarian, at one time Speaker of the House, addressed himself to the Speaker of the House ; ai\d Mr. J. B. Varnum, of the Senate, also an experienced par liamentarian, at one time President pro tern, of the Senate, addressed himself to the President of the Senate ; thus respecting the separate existence and action of the two Houses, even when assembled in joint session. xv i PRESIDING AT THE JOINT MEETING. At Monroe s second election, in 1821, when the two Houses were involved in the Missouri controversy, a resolution of the Senate, adopted February 13th, pre scribing the mode of counting, provided that at the joint session the President of the Senate should preside. But the resolution, reported to the House by Mr. Clay, the great pacificator on that perilous occasion, provided that " the President of the Senate, seated on the right of the Speaker of the House, shall be the presiding officer of the Senate, and the Speaker shall be the presiding officer of the House." This resolution also was adopted on the 13th of February. Mr. Clay afterward offered a resolution, which was adopted, appointing a committee of two " to receive the Senate, conduct the President of the Senate to the chair, and the members to the seats assigned to them." The President of the Sen ate was conducted to the Speaker s chair, and the Speaker took a chair at his left hand. When the other votes had been counted and the votes of Missouri were announced and handed to the tellers, a member objected to receiving the vote of Missouri, on the ground that Missouri was not a State of the Union. The motion was thereupon made by a Senator that the Senate do now withdraw to its Cham ber ; which was carried, and the Senate withdrew accordingly. At the close of a debate in the House, Mr. Storrs demanded the reading of the resolution of the House prescribing the mode of cotmting compared with that of the Senate. An explanation then came out that the retirement of the Senate from the joint session was caused by the discovery of the discrepancy between the two resolutions. Afterward the House sent a message to the Senate for the purpose of continuing the enumeration of the electoral votes according to the joint resolution which had been adopted ; and the Senate returned to the joint session. The counting was completed, and the vote of Missouri counted under the concurrent resolution, pro viding for an alternative enumeration of the votes with Missouri excluded and with Missouri included. The session continued under the House resolution, the two Souses acting under their respective presiding officers. On this same occasion the President of the Senate occupied the Speaker s chair by virtue of an express pro vision in the joint resolution on procedure. In defense of this feature of the pro gramme Mr. Clay, who was chairman of the committee which reported it, said : " As convenience rendered it necessary for the Senate to meet this House here in its own Hall, it was due to that body by courtesy and propriety that the president should be invited to preside, he being the officer designated by the Constitution to perform a certain duty appertaining to the occasion which called the two Houses together." At the election of John Q. Adams, in 1825, the President of the Senate was in vited to a seat on the right hand of the Speaker of the House. In this case the tellers, after the votes had all been opened and counted, " left the Clerk s table, and, presenting themselves in front of the Speaker, Mr. Tazewell delivered their report of the votes given, which was then handed to the President of the Senate," it being the evident intent of the teller, Tazewell, to recognize the Speaker of the House as no less a presiding officer than the President of the Senate. At Jackson s first election, in 1829, no resolution was passed in regard to the presiding officer, but the record shows that the Vice-President " seated himself at the right hand of the Speaker." At Jackson s second election, also, there was no provision for a presiding officer in the concurrent resolution, but on that occasion the President of the Senate occu pied the Speaker s chair. The President of the Senate has occupied the Speaker s chair at every one of the ten presidential elections which have succeeded the election of 1833, but, in every instance save one, by virtue of the express authority of a joint resolution of the two Houses, and never as a matter of right. On some occasions the concurrent resolutions have in terms conferred the duty of presiding on the President pro tempore / sometimes when the Vice-Presidency has been vacant, and sometimes when it has not been vacant. The result is, that the power of the two Houses to designate the presiding officer at the joint session has been always recognized, and frequently exercised ; and it is only by express or tacit : flTJUJ VFT3 ^TT ANNOUNCING TO THE TWO HOUSES THE STATE OF THE VOTE. xvii Dnsent that the usual and regular mode of acting by the respective presiding officer waived, and a single presiding officer designated. The function of the two Houses, when sitting together, has been carefully and ealously restricted to the mere counting; and all debate and all voting have been niformly excluded. Whenever it became necessary to entertain debate or to vote, ie Houses have generally separated, and acted in their respective phambers. When ley have acted at all while assembled in the same hall, they have acted separately nd under their respective presiding officers. The result is, that, though the semblance f a presiding officer has been generally given to the President of the Senate while tie mechanical process of counting was going on, he has really exercised none of the auctions usually attributed to the presiding officer of a deliberative body. TO THE Two HOUSES THE STATE OF THE VOTE. The President of the Senate has no authority, by virtue of his office as such resident, to announce the result of the count of electoral votes made by the two !ouses of Congress assembled in joint convention. Even where he has been ex- ressly designated as their presiding officer by concurrent resolves or orders of the o Houses, he has never exercised any authority to announce the result of the unt by virtue of his function as the presiding officer. In every case, from 1793 to he present time, wha.tever power he has exercised in this respect has been expressly ranted, defined, and limited, by provisions of the concurrent resolutions prescribing ie mode of counting the electoral votes on each particular occasion. In one well- nown case (in 1821) this power of announcement was granted to him by the House vhen he did not, but the Speaker did, preside over the House. No doubt, in the or- erly course of business in a legislative body, its vote would usually be announced o it by its presiding officer ; but that is simply because such is a convenient prac- ce. The Speaker is the customary organ of the House for such purposes ; but it ; quite certain that in performing such a function he acts by the order of the House, nd is subject to its commands. It is no less certain that the House can appoint ome other organ to exercise this function if it chooses. If it may do so in respect o its own vote, still more may it do so in respect to the result of a count of votes f the electoral colleges made by it through its tellers. Now, it has so happened hat in every case, from 1793 to the present time, the two Houses assembled in joint onvention for the purpose of counting the electoral votes have expressly prescribed he rules which have governed the announcement of the result of such a count. ^hey have from time to time revised some of the rules which the} 7 have applied, but hey have always prescribed rules which have been obeyed and have uniformly gov- rned their proceedings. In every case the two Houses have provided that the count should be by tellers of he two Houses, who have frequently been specially instructed by the two Houses as to how they should count ; what votes they should admit, and what votes they should not admit. In every case they have prescribed that it was only after the votes had been publicly examined and ascertained before the two Houses ; after they had been entered on a list ; read to the two Houses, and the results of the enumeration on the lists computed ; after the results so found by the tellers had been " delivered " by the tellers to the presiding officer, that any duty on the part of the presiding officer arose. In every case, from 1795 to 1861, inclusive ; in eighteen successive countings, these conditions were expressly prescribed in respect to the one particular counting to be regulated on each occasion. At the three countings of 1865, 1B69, and 1873, the same conditions were applied under the standing joint rule ; which codified the practice in the following words : " One teller shall be appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, the certificates of the electoral votes ; and the said tellers, having read the same in the presence and hearing of the two Houses thus assembled, shall make a list of the several votes as they shall appear from the said certificates ; CHANCELLOR KENT S "PRESUMPTION." and, the votes having been counted, the result of the same shall be delivered to the President of the Senate." Such are the conditions which must have been fulfilled in virtue of formal orders prescribed by the two Houses, at every one of the twenty-one countings from 1793 to 1873, inclusive, before the presiding officer could act at all. After all these, conditions have been complied with, his authority in respect to announcements commences. In 1793 it was expressed in these words ; "who shall announce the state of the vote and the persons elected,. to the two Houses assembled as aforesaid." In 1801 and 1805 the announcement was of " the state of the vote " only, and not of the persons elected. In the joint rule of 1865 the words are ; " the state of the vote and the names of the persons, if any, elected." The concurrent orders in 1801 and 1805 had another peculiarity. They provided that " the state of the vote shall be entered on the Journals, and, if it shall appear that a choice hath been made agreeably to the Constitution, such entry on the Jour- nals shall be deemed sufficient declaration thereof." These instances illustrate how completely the two Houses by their concurrent resolves or orders have controlled both the manner and substance of the announce ment to the two Houses assembled in joint convention. It has already been men tioned that in 1821 the resolve or order of the House of Representatives authorized the President of the Senate to make the announcement, though he did not, and the j Speaker did, at the time preside over the House. An inspection of the resolves or orders of the two Houses under which the countings have been had, an analysis of their exact terms and of the nature and effect of the acts done under them, demonstrate that the President of the Senate or other presiding officer never had any independent power over even the announce ment of the result of the count, never had any power except to do as he was com manded by the affirmative concurrent orders of the two Houses. Still less would he have power to revise or alter the results delivered to him by the tellers, or to inter meddle in any manner with the tellers in " examining and declaring the votes," in making the lists or enumerating the results, or in obeying the instructions of the two Houses as to what should or should not be admitted as votes and counted. Sucfi an assumption of power would be as naked usurpation on the part of the President of the Senate or any other presiding officer as if the same power should be assumed by the Clerk, or by a messenger or page of one of the Houses. The law is well stated by John Adams, Vice-President, and President of the Sen ate, in 1797, when he announced " the state of the vote and the persons elected to the two Houses assembled" in joint convention. " In obedience," said he, " to the Constitution and law of the United States, and to the commands of both Houses of Congress expressed in their resolutions passed in the present session, I now declare that John Adams is elected President," etc. CHANCELLOR KENT S " PRESUMPTION." Kent, in his "Commentaries" (vol. i., p. 277), says: "The Constitution does not expressly declare ~by whom the votes are to be counted. In the case of questionable votes, and a closely-contested election, this power may be all-important ; and, I presume, in the absence of all legislative provision on the subject, that the President of the Senate counts the votes and determines the result ; and that the Houses are present only as spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors." This remark was written more than fifty years ago, and is one of those hasty sug gestions which it was a characteristic of the venerable chancellor, in his judicial career, candidly to correct. Indeed, he does not seem to have had confidence in it himself. He makes the power in the President of the Senate, if it exist at all, de pendent on the absence of all legislative provision on the subject. The power to count the votes is not a necessary incident to the power to receive the packages and open them in presence of the two House*. If it were, it could not : THE NOTIFICATION CERTIFICATES. xix >e taken away by legislation. As the principal power is derived from the Constitu- ion, the incidental power would stand with it superior to the legislative authority >f Congress. If the power to count the votes be not incidental to the power to receive and )pen the certificates, the President of the Senate has no pretense of claim to it. The ibsence of legislation might leave a default of power, but could not confer it on a unctionary who had no other title to it. The Constitution does not make the elec- ion of President dependent on the count of the votes by any particular authority, ut only upon the fact of receiving a majority of the votes. If there were^no tribu- al authorized to ascertain this fact, it might impose on the public bodies of the tate the necessity of finding it out for themselves, and acting on their own judg ment ; but it would not entitle the President of the Senate to seize upon the vacant authority. The Government is not exposed to such a casus omissus. It is admitted by _hancellor Kent that the legislative bodies could supply the alleged defect. They ire, therefore, the best judges whether such a defect exists, or whether a true con- truction of the Constitution vests the implied power of counting in a fit and ade quate tribunal, such as the two Houses of Congress. They have so decided, and tave acted on that conclusion for more than eighty years. An established practice, ininterrupted and undisputed, ought to be accepted as law. THE NOTIFICATION CERTIFICATES. In 1797, in notifying the Vice-President of his election, the President of the Senate transmitted to him a certificate, which incidentally stated that the President f the Senate had counted the votes. No such formality was extended to the resident. In 1825 the Vice-President was again favored in the same manner. In 1801 a more singular certificate of the election of President and Vice-President was made ; for it assumed also to certify what had happened in the House of Represent- itives. In 1805, 1809, 1813, and 1817, similar certificates were made. These are all since 1789 ; none such have been known for the last fifty years. The first criticism on these papers is, that they seem to have followed the form of that of 1789; in which case, the procedure of the regular count by the two Houses, which has been practised ever since, had not been established, and the special President of the Senate, in the anomalous conditions of the then govern ment, probably did himself verify the enumeration of the votes. The more important observation is, that we must distinguish between the ambig uous senses in which the word " count " is constantly used. In one sense, it is a mere clerical enumeration of the votes, without the slightest particle of discretion. In the other sense, it involves a decision of what shall be counted as a vote, and includes a large element of judicial power. Now, it might well be that, at the counting by the two Houses, through their tellers, the presiding officer or the Speaker of the House, and the Clerks and many of the members, had gone through the enumeration, or had verified it, so as to be able to say, in the narrowest sense, that they had counted the votes ; or that the presiding officer could certify that he had counted constructively. Everybody who chose to give the necessary attention to the process, publicly performed, might be said, in some sense, to count. But, taking the count of 1797 as an illustration, Vice-President John Adams presided, and gave the first of these certificates to Jefferson, who succeeded him as Vice-President, while Mr. Adams himself was elected President. That counting was conducted according to a mode which had been prescribed by concurrent resolu tions of the two Houses, adopted on the report of a joint committee raised for that purpose. Those resolutions specified every step in the process. They directed that the tellers appointed by the two Houses to examine the votes should make a list of them as they should be declared by a reading of them to the two Houses, and, when it was completed, should deliver the result to the President of the Senate, who should then announce to the two Houses the state of the vote and the persons elected. * XX THE PRECEDENT OF 1857. The Journals of the two Houses show that the sealed packages of certificates were opened by the Vice-President and by him delivered to the tellers appointed by the two Houses; that they examined and ascertained the number of votes and made a list of them, and presented that list to the Vice-President, which was read. He thereupon declared to the two Houses the persons elected as President and Vice- President, and said that he did so " in obedience to the commands of both Houses of Congress expressed in their resolutions." That the presiding officer did in fact interfere, or had any power to interfere, with the official machinery of the counting, or with the process of the counting, or with the results of the counting, or that in the restricted function of announcing that result to the Houses over which he pre sided, he did or had power to do anything but obey the commands of the two Houses, is contradicted and disproved by the official records of the two Houses, and by his own public declarations at the time. In whatever barren sense he may be said to have counted the votes, it exercised co influence over the results. The only authentic, official, and obligatory counting was exclusively by the two Houses of Congress. The same statement is equally true of every case in which such a certificate was ever made. In one of those cases the votes of Indiana were disputed. The ques tion was considered and debated by the Houses ; and, as it made no difference with the result, it was indefinitely postponed ; but the presiding officer was not even con sulted about it. As precedents to sustain the President of the Senate in assuming the power to count the votes in the sense merely of enumerating the votes, and still more in the sense of adjudicating on the authenticity and validity of the votes, the certificates are utterly worthless. THE PRECEDENT OF 1857. The action of President pro tern. Mason, in 1857, seems to have been misstated, unintentionally, by Senator Morton. Mr. Mason did not arrogate to the presiding officer any power to decide whether the vote of Wisconsin was valid, or to decide whether it should be counted. He repeatedly disclaimed any such power. The electors of Wisconsin, having been prevented by a snow-storm from assembling on the day prescribed by the act of Congress, met on the next day and voted. Manv Senators and Representatives were of the opinion that the vote was illegal and void. As in the case of Indiana in 1817, Missouri in 1821, and Michigan in 1837, the vote, whether counted or not, made no change in the result of the election, and, in another respect, the question was even less important. In all those three cases the questionable votes were for the candidates who were elected ; and, although those candidates had a majority without the questionable votes, the statement of the aggregate number of votes received by those candidates had either to include or exclude the questionable votes. In the Wisconsin case, the votes were for Fre"- mont and Dayton, who were, in any event, the minority candidates ; and the state ment of the votes received by Buchanan and Breckinridge was unaffected by these votes, and showed a majority irrespective of them. The tellers entered the votes of Wisconsin on their list, included them in the footing, and reported the result to the presiding officer. When the votes of Wis consin were reached, objection was made ; but the objectors did not seem aware of the usage of moving for a separation of the Houses in order to discuss and decide whether the vote of Wisconsin should be counted ; and the presiding officer ruled that debate was out of order in the joint meeting. The process, therefore, went on neither of the ^two Houses having by a parliamentary method suspended the opera tion of the ministerial functions which, without such interposition, were being prop erly performed. The tellers made their report verbally ; and the presiding officer obeyed the concurrent resolution by announcing to the two Houses the state of the vote and the persons elected. The tellers were about to make their report in writing, when, to enable the debate to be had, the motion was made and carried that the Senate retire to its own Chamber. HOW THE COUNTING HAS ACTUALLY BEEN DONE. xxi During the joint session, Senator Crittenden inquired, " Do I understand the Chair o decide that Congress in no form has the power to decide upon the validity or avalidity of a vote ? " The presiding officer answered that he had made no such ecision ; that, " under the law and the concurrent order of the two Houses, nothing an be done here but to count the votes and declare the votes thus counted to the enate and House of Representatives sitting in this Chamber ; " and that further ction could only be taken in the two Houses in their separate capacities. Afterward the presiding officer said he " was not aware that what effect, if any," ie irregularity in the vote of Wisconsin " would have on the votes " of that State an be decided by him. Nor is it his duty to " decide upon whom devolves the duty f determining what the effect may be." Senator Crittenden alluded to the presid- ng officer as having assumed " to declare the number of votes, involving the privi- 3ge of determining a presidential election and saying who shall be President, and aid, " I protest against any such power." Senator Toombs said, " I join with the enator in that protest." The presiding officer answered that " the presiding offi- er is utterly unaware that he has assumed the exercise of any such power" Sen- tor Toombs : ** I consider that the presiding officer has done so." The presiding fficer said : " The concurrent order of the two Houses makes it the duty of the Resident of the Senate to announce the state of the vote, and the persons elected, the two Houses assembled. That duty he has discharged, and none other." Immediately after the Senate had withdrawn to its own Chamber, a debate pon the subject ensued. The written report of the tellers, the delivery of which ) the two Houses had been intercepted by their separation, was submitted to the enate. That report stated the aggregate votes of Fremont and Dayton, omitting ie votes of Wisconsin ; and stated those votes separately, with the date when ley had been given. Mr. Mason, President pro tern., who had been the presiding fficer of the two Houses in their joint meeting, again disclaimed in the most posi- ve terms the assumption of power ascribed to him. He said: " The Chair will further state to the Senate, as the result of the action in the 3all of the House of Representatives in counting the votes, that the duty was de- olved upon the presiding officer there, by the concurrent order of the two Houses, o declare the result of the vote as delivered to him by the tellers. That declara- on did not involve, in the opinion of the Chair, the validity or the invalidity of he vote of the State of Wisconsin. The declaration made by the Chair in the resence of the two Houses as to the gentleman who had been elected President Evas written down, and is in these words : That James Buchanan, of the State of ennsylvania, having the greatest number of votes for President, and that number eing a majority of the whole number of electors, has been duly elected. Whether ie vote of the State of Wisconsin be included or not, the declaration made by the residing officer, that Mr. Buchanan had a majority of the votes, and that that ma- Drity was a majority of the whole number of the electoral votes, was strictly con formable to the fact." Again the President of the Senate said : " The presiding officer, in his own judgment, believed then, as he believes now, that he declared correctly, as the state of the vote, that James Buchanan had re ceived the greatest number, and that that number was a majority of the whole number of electors, not undertaking to decide, and not having decided, whether the vote of the State of Wisconsin had been given to John C. Fremont or not a power that the Chair utterly disclaims and never asserted" How THE COUNTING HAS ACTUALLY BEEN DONE. The course of procedure taken in the presence of the two Houses at the vari ous elections, shows the same uniform recognition of their supreme authority in deciding upon the authenticity and validity of the electoral certificates. The informality of the first election in 1789, and the fact that the course then pursued was never repeated, deprives it of all authority as a precedent. XXIV HOW THE COUNTING HAS ACTUALLY BEEN DONE. lists thereof compared, they were delivered to the President of the Senate, by whom they were read, as already printed. " The President of the Senate then, in pursuance of the resolution adopted by the two Houses, proceeded to announce the state of the votes to the two Houses of Congress, in joint meeting assembled, as follows : " Were the votes of Missouri to be counted, the result would be : For James Monroe, of Virginia, for President of the United States, 231 votes ; if not counted, for James Monroe, of Virginia, 228 votes. For Daniel D. Tompkins, of New York, for Vice-President of the United States, 218 votes ; if not counted, for Daniel D. Tompkins, of New York, for Vice-President of the United States, 215 votes. But in either event, James Monroe, of Virginia, has a majority of the votes of the whole number of electors for President, and Daniel D.Tompkins, of New York, has a major ity of the votes of the whole number of electors for Vice-President of the United States." 1825. At the election of John Quincy Adams, in 1825, on motion of Mr. Taylor, it was Ordered, That a message be sent to the Senate, that this House is now ready to receive them in pursuance of the resolution of the two Houses, of yesterday, to the end that the Presi dent of the Senate, in the presence of the Senate and the House of Representatives, may open the certificates of the votes of the electors of the several States in the choice of a President and Vice-President of the United States, and that the same may ~be counted; and that the Clerk do go with said message. The President of the Senate (Mr. Gallaird) then rose, and stated that the certifi cates, forwarded by the electors from each State, would be delivered to the tellers. Mr. Tazewell, of the Senate, and Messrs. John "VV. Taylor and Philip P. Barbour, on the part of the House, took their places as tellers at the Clerk s table. The President of the Senate then opened two packets, one received by messenger and the other by mail, containing the certificates of the votes of the State of New Hampshire. One of these was then read by Mr. Tazewell, while the other was com pared with it by Messrs. Taylor and Barbour. The whole having been read, and the votes of New Hampshire declared, they were set down by the Clerks of the Sen ate and of .the House of Representatives, seated at different tables. Thus the cer tificates from all the States were gone through with. The tellers then left the Clerk s table, and presenting themselves in front of the Speaker, Mr. Tazewell delivered their report of the votes given, which was then handed to the President of the Senate, who again read it to the two Houses. It is here to be noted that the House carefully avoids saying that the President was to be invited to do anything more than open the votes. He was invited to open them to the end " that they may be counted," not to open and count them. It is also a significant assertion of the House s prerogatives that the tellers first presented themselves in front of the Speaker to deliver their report of the votes given. This report was then handed, it does not appear by whom, to the President of the Senate. 1829. At the first election of Andrew Jackson, in 1829, " the Vice-President then hav ing before him the packages received, one copy by express, and one through the post-office, from the several States, took up those from the State of Maine, and, announcing to the Senators and Representatives that those packets had been cer tified, by the delegation from Maine, to contain the votes of that State for Presi dent and Vice-President, proceeded to break the seals and then handed over the packets to the tellers, who opened and read them at length. The same process was repeated, until all the packets had been opened and read, when Mr. Tazewell, retiring to some distance from the chair, read the following report." When the teller had finished reading, the result was again read by the Vice-President. HOW THE COUNTING HAS ACTUALLY BEEN DONE. xxv 1833. At the second election of Andrew Jackson, in 1833, as in previous cases, the potes of the electors were opened by the President of the Senate, and delivered to he tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented to the President of the Senate a list thereof, as follows : Messrs. Gruncly, of the Senate, and Dayton and Hubbard, of the House of Repre sentatives, acted as a committee to read and enumerate the votes, and, the whole having been gone through, the result was ascertained to be as follows." . . . The resident of the Senate " then announced the result, as reported by the tellers." 1837. At the election of Martin Van Buren, in 1837, the President of the Senate rose ind said : " The two Houses being now convened for the purpose of counting the lectoral votes for the several States for President and Vice - President of the United States, the President of the Senate will, in pursuance of the provisions of he Constitution, proceed to open the votes and deliver them to the tellers in order hat they may be, counted. I now present to the tellers the electoral vote of the of Maine." The tellers then counted the votes and announced them severally in their order, he same form having been observed in every case ; the tellers also reading the ualifications of the electors, and the certificates of their election. 1841. At the election of William Henry Harrison in 1841 : " A message was received rom the House of Representatives, announcing that the House was ready to receive he Senate, and to proceed to count the votes for President and Vice-President of he United States, in conformity to the Constitution, and in pursuance of the joint esolution on that subject." .... "After the votes had been counted, the Senate eturned to the Senate Chamber." ....* The Vice-President of the United States, n the presence of the two Houses of Congress, proceeded to open the certificates f the electors of President and Vice-President, beginning with those of the State f Maine, and ending with the State of Michigan ; and the tellers, Mr. Preston on he part of the Senate, and Mr. Cushing and Mr. John W. Jones on the part of the House, having read, counted, and registered the same, making duplicate lists there- f, and the lists being prepared, they were delivered to the Vice-President of he United States, and are as follows: "... "The President of the Senate then nnounced the state of the vote to the two Houses of Congress in joint meeting ssembled, and declared, etc., that William Henry Harrison, of "Ohio, having a major- ty of the whole number of electoral votes, is duly elected President of the United States," etc. 1845. At the election of James K. Polk, in 1845, " the President of the Senate rose and stated the object of this assemblage to be to count the votes cast by the electors of the respective States of this election for President and Vice-President of the United States, and handing to Mr. Walker (one of the tellers) a sealed package, he said : " I deliver to the joint tellers the votes of the electors of the State of Maine for President and Vice-President of the United States, in order that they may be counted" " Mr. Walker received the packet, and having broken the seals, the tellers ex amined the votes, which were announced to be nine in number, all of which were given for James K. Polk, of Tennessee, for President of the United States. The same number of votes were given for Vice-President for George M. Dallas, of Penn sylvania." When the votes had thus all been counted, " Mr. Walker presented the returns of the tellers to the President of the Senate, who rose and announced the result, xxv i HOW THE COUNTING HAS ACTUALLY BEEN DONE. and then proceeded to declare that James K. Polk and George M. Dallas were elected. 1849. At the election of Zachary Taylor, in 1849, the Vice-President rose and said : " In obedience to law, the Senate and House of Representatives have assembled on the present occasion, so that I may fulfill the duty enjoined upon me by the Consti tution by opening in their presence the sealed certificates of the lists of persons voted for by the electors in the several States as President and Vice-President, cause the votes to be counted, and have the persons to fill those offices ascertained and declared agreeably to the Constitution." The Vice-President then opened the certificates of the State of Maine and said : " I now open and present to the tellers chosen by the two Souses the certificate trans mitted by the electors of the State of Maine that the votes therein recorded may be counted." Mr. Jefferson Davis proceeded to read the certificate, and the vote reported was registered by the tellers in duplicate lists. This course was pursued in reference to ten States. The certificates of ten other States were read by Mr. Barrow, and the certificates of ten other States were read by Mr. McClelland : " The tellers having read, counted, and registered the votes of the electors of thirty States, and compared their du plicate lists and delivered the same to the Vice-President, the Vice-President then received and read the report of the tellers," and announced the result of the vote by reading the report of the tellers. 1853. At the election of Franklin Pierce, in 1853, the President pro tempore of the Senate rose and said : " The Senate and the House of Representatives have assem bled for the purpose of counting the votes for President and Vice-President of the United States. I present to the tellers the certificates of the electoral college of the State of Maine." In the same manner he presented the certificates from the remaining States to Mr. Hunter, Mr. Jones, and Mr. Chandler, by whom respectively they were read and duly recorded by tellers. " The tellers having counted and registered the votes of the electoral colleges of the thirty-one States and compared their lists, delivered to the President pro tern, the result, which was read by him, and he thereupon declared," etc. 1857. At the election of James Buchanan, in 1857, the President of the Senate said: " Pursuant to the law, and in obedience to the concurrent order of the two Souses, the President of the Senate will now proceed to open and count the votes which have been given for the President and Vice-President of the United States," etc. " The teller appointed on the part of the Senate, and the two tellers appointed on the part of the House, will please take the seats assigned them in discharge of their duty." The presiding officer proceeded to open and hand to the tellers the votes of the several States for President and Vice-President. Pending the count, Senator Cass suggested that it would be better to read the results of the vote and not the certifi cate in full. The President of the Senate then said : " The presiding officer considers that the duty of counting the vote has devolved on the tellers under the concurrent order of the two Houses ; and he considers, fur ther, that the tellers should determine for themselves in what icay the votes are veri fied to them, and read as much as they think proper to the two Houses assembled." It appeared from the certificate of the electors from the State of Wisconsin that the electoral vote of that State had not been cast on the day prescribed by law. Mr. Jones, of Tennessee (one of the tellers), reported : " Mr. President : The tellers appointed on the part of the two Houses to count and report the votes given for President and Vice-President of the United States,. HOW THE COUNTING HAS ACTUALLY BEEN DONE. xxvii report that they have examined all the returns, and find that they are all regular ; ind that the votes were cast on the day required by law, except in the case of the rotes cast by the State of Wisconsin ; their returns show that they cast their elec- :oral vote on the 4th of December, instead of the first "Wednesday of December, vhich was the 3d, as required by law. All the returns show that James Buchanan, of the State of Pennsylvania, received 174 votes for President of the United States ; hat John C. Fremont* of the State of California, received, including the votes of Wisconsin, 114 votes for President of the United States ; that Millard Fillmore, of he State of New York, received 8 votes for President of the United States." tc The President of the Senate thereupon proceeded to recapitulate the vote as nnounced to the joint convention by Mr. Jones, of Tennessee ; and, in further exe- ution of the order of the two Houses, declared the result above stated." Objections to the course adopted by the chairman in deciding to count the vote f Wisconsin without consulting the two Houses were vehemently urged by Messrs. Butler, Crittenden, and Orr ; and the Senate withdrew that the two branches of the Congress might consider the objections. Before returning, the presiding officer said : " The Chair would respectfully state that whatever difficulty may have arisen it annot be officially known to either House until it is reported by the tellers to whom he duty of counting the vote was confided." In separate session, after hearing the report from the tellers of what had oc- urred in joint session, the President of the Senate said : " As a result of the action in the Hall of Representatives in counting the vote, he duty was devolved upon the presiding officer there by the concurrent order of he two Houses to declare the result of the vote as delivered to him by the tellers. ?hat declaration did not involve, in the opinion of the Chair, the validity or invalid- ty of the vote of the State of Wisconsin." The declaration made by the Chair in the presence of the two Houses as to the gentleman who had been elected President was written down, and is in these words: * That James Buchanan, of the State of Pennsylvania, having the greatest number if votes for President, and that number being a majority of the whole number of lectors, has been duly elected." Whether the vote of the State of Wisconsin be included or not, the declaration made by the presiding officer that Mr. Buchanan had a majority of the votes, and hat that majority was a majority of the whole number of electoral votes, was strictly onformable to the facts. He subsequently stated his position yet more distinctly n reply to Senator Toombs, of Georgia : "The presiding officer did not undertake to decide whether the vote of the State of Wisconsin was a good vote or a bad vote. The presiding officer, upon that mat ter, did no more than recite the fact which was reported to him by the tellers, pur suant to the concurrent order of the two Houses. The presiding officer did no more than announce that the vote of Wisconsin had been given to John C. Fremont. Whether it was a good vote or a bad vote, he did not undertake to decide. The pre siding officer announced further, that James Buchanan had a majority of all the votes given, and that such majority was a majority of the whole electoral vote ; and he declared, as his duty required him to do, that James Buchanan was thereby elected President of the United States. If the result could have been affected by the col lateral fact reported by the tellers, that the vote of the State of Wisconsin had been given on a day different from that prescribed by law, the presiding officer would have considered it his duty to have reported, as the state of the vote, that whether a ma jority of the whole electoral votes had been given to James Buchanan would depend on canvassing the votes a duty that he did not assume. But, inasmuch as it ap peared clearly from the state of the vote, that whether the vote of the State of Wis consin was counted or not, the result of the election remained unaffected, he an nounced, as he considered his duty required him to announce, that James Buchanan had a majority of all the votes cast, and that such majority was a majority of the whole number of the electoral votes. He disclaims having assumed on himself any authority to determine whether that vote or any other vote was a good or a bad vote. xxx HOW THE COUNTING HAS ACTUALLY BEEN DONE. Senator Cowan : I understood that no motion could be entertained in this con vention. The Vice-President decided that motions could be entertained upon any matters pertinent to the purpose for which the convention had been assembled, but the decision of those motions must be determined by the two Houses separately after the Senate shall have withdrawn from the convention. Mr. Yeaman, of Kentucky, then moved that all the returns before the joint con vention be opened and presented for its consideration. The Vice-President decided that that would require the two Houses to separate for deliberation, whereupon after short debate Mr. Yeaman withdrew his motion. Senator Trumbull then, on the part of the tellers, " announced the following as the result of the vote for the President and Vice-President of the United States," etc. At this election the two Houses prescribed the course of procedure to be pur sued : the two Houses decided that eleven electoral votes should not be counted. In express obedience to these resolutions of the two Houses, the Vice-Pre-sident omitted to open and read the certificates of those votes which he had been forbidden to open; and Senator Cowan, who complained that the certificates of certain States had not been read, put his complaint distinctly upon the ground that the two Houses in joint convention were "alone capable of determining whether they should be counted or not" a proposition to which the President of the Senate not only as sented, but which he relied upon for the justification of his ruling ; having, as he correctly claimed, obeyed the express directions of the two Houses. 1869. At President Grant s first election the President of the Senate, on taking the Speaker s chair, said : " The Senate and House of Representatives having met, under the provisions of the Constitution, for the purpose of opening, determining, and declaring, the votes for the office of President and Vice-President of the United States, for the term of four years, commencing on the 4th of March next, and it being my duty, in the presence of both Houses thus convened, to open the votes, I now proceed to discharge that duty." The President pro tempore then proceeded to open and hand to the tellers the votes of the several States for President and Vice-President, commencing with the State of New Hampshire. One of the members called for a reading in lull of the certificate of the returns of the vote of Louisiana, and objected to the counting of the vote from that State. Thereupon the Senate retired from the Hall. On the question of counting the vote of Louisiana in the House, there were 137 yeas to 63 nays. The messenger from the Senate having announced that that body had also voted in favor of counting the vote of Louisiana, the Senate, in a body, reentered the Hall. The President of the Senate, having resumed the chair, said: "By a concurrent resolution of the two Houses, the vote of Louisiana is ordered to be counted." The tellers went on with their counting till the State of Georgia was reached. Mr. Butler objected to the vote of the State of Georgia being counted. Senator Edmunds said that the objection of the gentleman from Massachusetts was not in order, the two Houses having, by special rule for this case, made a sub stantial change in the standing joint rule, which joint rule reads as follows : On the assembling of the two Houses, on the second Wednesday of February, 1809, for the counting of electoral votes for President and Vice-President, as provided for by law, under joint rules for counting or omitting to count the electoral votes, if any, which may be presented as of the State of Georgia, shall not essentially change the result, in* that case they shall be re ported by the President of the Senate in the following manner: Were the State presented as the State of Georgia to be counted, the result would be, for , for President of the United States, votes ; if not counted, for , for President of the United States, votes, and in either case is elected President of the United States; and in the same manner for Vice-President. ^ Mr. Butler insisted that, under the Constitution, the votes must be counted or rejected by the convention of the two Houses, and that the prior concurrent action HOW THE COUNTING HAS ACTUALLY BEEN DONE. xxxi of the Senate and of the House cannot bind the convention, and the convention may act, after they get together, as they choose to do. The Senate retired, and the House decided against counting the electoral vote of the State of Georgia yeas 41, nays 150. At half-past four the Senate in a body reentered the Hall. The President : The objections of the gentleman from Massachusetts are over ruled by the Senate, and the result of the vote will be stated as it would stand if the vote of the State of Georgia were counted, and as it would stand if the vote of that State were not counted, under the concurrent resolution of the two Houses. Senator Conkling, one of the tellers, then proceeded to declare the result, amid great noise and disorder. The President : The tellers report that the whole numbar of votes cast for Presi dent and Vice-President of the United States, including the votes of the State of Georgia, is 294, of which the majority is 148. Excluding the votes of the State of Georgia it is 285, of which the majority is 143. The result of the vote as reported by the tellers for President of the United States, including the State of Georgia, is, for UJyssss S. Grant, of Illinois, 214 votes ; for Horatio Seymour, of New York, 80 votes. Excluding the State of Georgia the result of the vote is, for Ulysses S. Grant, of Illinois, 214 votes ; for Horatio Seymour, of New York, 71 votes. [Same for Vice-President.] Wherefore, in either case, whether the votes of the State of Georgia be included or excluded, I do declare that Ulysses S. Grant, of the State of Illinois, etc., etc. . . . 1873. At the second election of President Grant, in 1873, the Vice-President, on taking the Speaker s chair, said : " The Senate and House of Representatives having met under the provisions of the Constitution for the purpose of opening, determining, and declaring, the votes cast for President and Vice-President of the United States for the term of four years, commencing on the 4th of March next, and it being my duty, in the presence of both Houses thus convened, to open the votes, I now proceed to discharge that duty. " The Vice-President then proceeded to open and hand to the tellers the votes of the several States for President and Vice-President of the United States, commenc ing with the State of Maine." ^ When the State of Georgia was reached, objection was made by Mr. Hoar, who said : " I desire to make the point that the three votes reported by the tellers as having been cast for Horace Greeley, of New York, cannot be counted, because the person for whom they purport to have been cast was dead at the time of the assem bling of the electors in that State." The point was reserved until the other States had been called and the objections reduced to writing, and then the Senate withdrew for deliberation. At 3.35 P. M. the Senate returned to the Hall, and the Vice-President said : "Upon the first point raised by the Representative from Massachusetts [Mr. Hoar], the Senate decide as follows : Resolved, That the electoral votes of Georgia cast for Horace Greeley be counted. The House of Representatives decided as follows : Resolved, That the votes reported by the tellers as having boon cast by the electors of the tate of Georgia for Horace Greeley, of New York, as President of the United States, ought not to be counted, the said Horace Greeley having died before said votes were cast. Upon this question there is a non-concurrence of the two Houses. On the question submitted by the Senator from Illinois [Mr. Trumbull] in regard to the votes of the State of Mississippi, the Senate adopted the following resolution : Resolved, That the electoral vote of the State of Mississippi be counted. And the House of Representatives adopted the following resolution : Resolved, That in the judgment of this House the eight votes reported by the tellers as cast by the electors in and for the State of Mississippi ought to be counted as reported by them. xxxii HOW THE COUNTING HAS ACTUALLY BEEN DONE. On this question the votes of the two Houses are concurrent. On the third point raised by the Representative from New York [Mr. Potter], which was in regard to the election of one elector from Mississippi, the Senate adopted the following resolution, which is covered also by its action on the full vote of the State: Resolced, That the vote cast by James J. Spellmaa, one of the electors for the State of Mis sissippi, be counted. The House of Representatives adopted the following resolution : Resolved, That the electors of the State of Mississippi having been appointed in the manner directed by the Legislature of that State, and in accordance with the provisions of the Consti tution of the United States, were legally elected, and that the vote of the State as cast by them should be counted, and that the certificate of the Governor of that State of the electoral vote cast, and the certificate of the Secretary of State of that State in regard to the choice of elec tors, is in compliance, with the Constitution and laws of the United States. Therefore, by the twenty-second joint rule, there being a non-concurrence be tween the two Houses upon the three votes cast in the State of Georgia for Horace Greeley for President of the United States, they cannot be counted. And in accord ance with the same joint rule, the votes of the State of Mississippi will be counted." The tellers resumed the counting of the votes, and announced the same, until the State of Missouri was reached, when Senator Morton made an objection to two of the electoral votes from the State of Georgia. The Vice-President held that the objection came too late ; that it should have been made when the State of Georgia was called. He finally, however, decided that it was in time, the credentials of no other State having yet been read. After several other objections had been made, the Senate again withdrew for de liberation, and returned at five minutes past five. " The Vice - President, having resumed the chair : Two objections having been made to the counting of the votes of the electors of the State of Texas, the Sen ate upon the first objection, made by the Senator from Illinois [Mr. Trumbull], re solved as follows : Resolved, That the electoral vote of the State of Texas be counted, notwithstanding the ob jection raised by Mr. Trumbull. And the House of Representatives resolved as follows : Resolved, That in the judgment of this House the vote of Texas should be counted as re ported by the tellers. On the second objection, by Mr. Dickey, the Senate resolved as follows : Resolved, That the objection raised by Mr. Dickey to counting the electoral vote of the State of Texas be and the same is overruled. And the House of Representatives resolved as follows : Resolved, That a quorum is an arbitrary number which each State has the right to estab lish for itself, and as it does not appear that the choice of electors was in conflict with the law of Texas as to a quorum for the transaction of business, the vote of the electors for President and Yice-President be counted. So (the two Houses having concurred) the electoral vote of Texas, under the twenty-second joint rule, will be counted." The Senate retired again for deliberation upon objections to the electoral votes from Arkansas and Louisiana. " The Vice-President, having resumed the chair, said : The objection made by the Senator from Arkansas to the conting of the electoral vote of that State as de clared by the tellers, having been considered by the two Houses, the Senate has resolved as follows : Resolved, That the electoral vote of Arkansas should not be counted. And the House has resolved as follows: Resolved, That the electoral vote of the State of Arkansas, as reported by the tellers, be counted. There being a non-concurrence of the two Houses on this question, the vote of FEDERAL OFFICERS CHOSEN AS ELECTORS. xxxiii Arkansas, in accordance with the provisions of the twenty-second joint rule, will not be counted. That rule provides that Uo question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses. The several objections made on various grounds to the counting of the electoral votes from Louisiana having been considered by the two Houses, the Senate has resolved as follows : Resolved, That all objections presented having been considered, no electoral vote pur porting to be that of the State of Louisiana be counted. And the House has resolved as follows : Resolved, That, in the judgment of this House, none of the returns reported by the tellers as electoral votes of the iState of Louisiana should be counted. On this question there is a concurrence of the Houses ; and. the electoral votes of Louisiana will not be counted. The tellers will now announce the result of the vote." " Senator Sherman (one of the tellers) announced the result as follows," etc. The Vice-President then said : " The whole number of electors to vote for Presi dent and Vice-President of the United States, as reported by the tellers, is 366, of which the majority is 184. Of.these votes 349 have been counted for President and 352 for Vice-President of the United States. The result of the vote for President of the United States, as reported by the tellers, is : for Ulysses S. Grant, of Illinois, 286 votes, etc. ; wherefore I do declare that Ulysses S. Grant, of the State of Illi nois, having received a majority of the whole number of electoral votes, is duly elected President," etc. It is to be observed that, at every stage of this election, the final authority to decide all the questions in debate is conceded to be in the two Houses, or in their agents, the tellers : FEDERAL OFFICERS CHOSEX AS ELECTORS. The only case in which the validity of a certificate given to an elector chosen while holding an office under the Federal Government, that has arisen or upon which the two Houses of Congress may be said to have expressed any opinion, oc curred at the election of Martin Van Buren in 1837. It was ascertained that there were three individuals in North Carolina, one in New Hampshire, and one in Connecticut, elected to the electoral college who bore the same names with those individuals who were deputy postmasters under the General Government, and they were presumed to be the same individuals. Mr. Clay moved that the ji)int committee appointed to report the mode of exam ining the votes for President and Vice-President should ascertain whether any votes were given at that election contrary to the prohibition contained in the Con stitution against Federal officers acting as electors. Mr. Grundy, from the committee, reported to the Senate that " there were four or five electors chosen in the several States who Were officers of the General Govern ment, and that such votes were, in the opinion of the committee, not in conformity with the provisions of the Constitution ; but, at the same time, the few votes thus given will not vary the result of the election, as it was not contemplated by any one that the appointment of one ineligible elector would vitiate the vote of his State." Mr. Thomas, from the committee on the part of the House, in reply to the sugges tion that the electors had resigned their Federal appointments before they gave their votes, said " that the committee came unanimously to the conclusion that these electors were not eligible at the time they were elected, and therefore the whole pro ceeding was vitiated, ab initio" In accordance with these views, he reported from the committee that the defect of such a choice would not be cured by the resignation of the Federal office. " The committee are of. opinion," runs the report, that " the second section of the second article of the Constitution, which declares that no Senator, or Representa- xxxiv " T0 MAKE A LIST OF THE VOTES." tive, or person holding an office of trust or profit under the United States, shall be appointed an elector, ought to be carried in its whole spirit into rigid execution, in order to prevent officers of the General Government from bringing their official power to influence the elections of President and Vice-President of the United States. This provision of the Constitution, it is believed, excludes and disqualifies deputy postmasters from the appointment of electors ; and the disqualification re lates to the time of the appointments ; and that a resignation of the office of dep uty postmaster, after his appointment as elector, would not entitle him to vote as elector under the Constitution." This was the only instance in which the question of the ineligibility of electors on this ground has been raised since the Constitution has been in force. " To MAKE A LlST OF THE VOTES." At every presidential election since the first, down to 1865 the tellers were instructed by the two Houses not only to make a list of the votes, but to deliver " the result " to the President of the Senate, which result he was required to an nounce to the two Houses. The language, which became a formula for more than seventy years, was first reported by Senator Rufus King, of New York, at the second election of Washington, in 1793, requires that the tellers " make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate, wh.o shall announce the state of the vote and the persons elected to the two Houses assembled as aforesaid." The 22d rule, adopted in 1865, required the appointment of tellers, " to whom shall be handed, as they are opened by the President of the Senate, all certificates of electoral votes, and said tellers, having read the same in the presence and hearing of the two Houses thus assembled, shall make a list of the votes as they shall appear from the said certificates, and the votes having been counted, a list of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, and the names of the persons elected," etc. At the first election of General Washington, which was conducted very informally and without a preliminary committee of procedure, the Senate notified the House that they had " appointed one of their members to sit at the Clerk s table to make a list of the votes as they shall be declared ; submitting it to the wisdom of the House to appoint one or more of their members for the like purpose." The phrase " to make a list of the votes," employed by the committee to define the duty of the tellers, doubtless ought to be considered as the equivalent of " count ing the votes." It is obviously borrowed from section 3 of the first section of the second article of the Constitution, which reads as follows : " The electors shall meet in their respective States and may ballot for two per sons, of whom one at least shall not be an inhabitant of the same State with them selves. 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 government," etc. Here the whole function of ascertaining the validity and counting the votes for the candidates is devolved upon the electors by the phrase which requires them " to make a list of the persons voted for." The employment of that form of speech in the resolution above cited, therefore, was not an accident, and has its weight in de termining the function which the two Houses of Congress assigned to the tellers or to those who selected them on this occasion. INDEPENDENT POWER OF THE Two HOUSES IN COUNTING ELECTORAL VOTES, Each of the two Houses has always maintained its separate and independent right to act affirmatively upon every vote to entitle it to be counted. Whenever both Houses failed to agree upon counting it, the vote has never been counted. At the second election of Monroe, in 1821, the joint committee of the two Houses on the mode of counting the votes, in anticipation of an irreconcilable dif- INDEPENDENT POWER OF THE TWO HOUSES. xxxv ference of opinion about the admission of Missouri, and to avoid a collision from which no good seemed likely to come, adopted the following resolution : Resolved, That if any objection be made to the votes of Missouri, and the counting or omitting to count which shall not essentially change the result of the election, in that case they shall be reported by the President of the Senate in the following manner: Were the votes of Missouri to be counted, the result would be for A. B. for President of the United States, votes ; if not counted for A. B. as President of the United States, votes ; but in either event, A. B. is elected President of the United States, and in the same manner for Vice-President. In reply to the objection that this was practically not counting the electoral vote, Mr. Clay, who, as chairman of the committee, had reported the resolution, said that " the difficulty is before us ; that we must decide it when the two Houses meet, or avoid it by some previous arrangement. The committee being morally cer tain that the question would arise on the votes in joint meeting, thought it best, as he had before stated, to give it the go-by in this way. Suppose this resolution not adopted, the President of the Senate will proceed to open and count the votes ; and would the House allow that officer, singly and alone, thus virtually to decide the question of the legality of the votes ? If not, how then were they to proceed ? Was it to be settled by the decision of the two Houses conjointly, or of the two Houses separately ? One House would say the votes ought to be counted, the other that they ought not ; and then the votes would be lost altogether. Would the gentleman from New York prefer that it be decided in joint meeting ? In that case he would find himself in a much leaner majority than on the question yester day. In fact, Mr. Clay said, there was no mode pointed out in the Constitution of settling litigated questions arising in the discharge of this subject ; it was a casus omissus and he thought it would be proper either by some act of derivative legis lation, or by an amendment of the Constitution itself, to supply the defect." In 1857 Mr. Seward correcte d Senator Bigler for speaking of a meeting of the two Houses under the eighth article of the Constitution as " a convention." " Then I will say that the two Houses assembled," replied Mr. Bigler. In the same way the vote of Michigan in 1837, like that of Missouri, was counted in the alternative. The vote of Wisconsin was counted in substantially the same way in 1857. In 1869 the vote of Georgia was counted in the alternative, and in 1873 three votes from Georgia and all the votes from Arkansas were not counted, in conse quence of one of the Houses refusing to count it. The two Houses have even carried the principle here illustrated so far as not to debate any question of difference in each other s presence. So soon as debate became necessary, the Senate uniformly withdrew to its own Chamber if sitting in the House, and the House has withdrawn if sitting in the Senate Chamber. In 1817, when Mr. Taylor from New York arose in the joint session, and addressing himself to the Speaker of the House, not to "the President of the Senate," was proceeding to state his reasons for objecting to the votes from Indiana being read and recorded, the Speaker interrupted him, and said that the two Houses had met for the purpose the single specific purpose of performing the constitutional duty which they were then discharging, and that while so acting, in joint meeting, they could consider no proposition nor perform any business not prescribed by the Con stitution. Mr. Varnutn, of the Senate (addressing the President of the Senate), expressed his concurrence in the propriety of what had been stated by the Speaker, and, for the purpose of allowing the House of Representatives to deliberate on the question which had been suggested, he moved that the Senate withdraw to their Chamber. The motion was seconded by Mr. Dana, of the Senate, and, the question being put by the President to the members of the Senate, it was unanimously agreed to, and the Senate withdrew accordingly." P. 31. After debate, the House sent a message to inform the Senate of its readiness to proceed with the counting. XXXVI INDEPENDENT POWER OF THE TWO HOUSES. " The Senate soon after again entered the Representatives Hall ; when " The Speaker informed them that the House of Representatives had not seen it necessary to come to any resolution, or to take any order on the subject which had produced the separation of the two Houses. " The reading of the votes was then concluded." P. 33. In discussing the order of procedure at the election in 1821, Mr. King said : " He was opposed to the settlement of any litigated question in joint meeting, where the Senate as a body would be lost, and argued that, whenever any such should arise, it would be always proper that the two Houses should separate." P. 34. At a later "stage of the debate, Mr. King, of New York, in accordance with the opinions he had submitted, wished some amendment introduced to prevent the mode of proceeding from being quoted as a precedent hereafter an amendment declaring that, if any question should arise relative to any votes, in joint meeting, the two Houses would separate to consider the case and not decide it jointly. Mr. Barbour said that, on the present occasion, as the election could not be affected by the votes of any one State, no difficulty could arise ; and that it was his intention hereafter to bring the subject up, to remedy what he considered a casus omissus in the Constitution, either by an act of Congress, if that should appear suf ficient, or, if not, by proposing an amendment to the Constitution itself. P. 35. Again in 1821, when an objection was made by Mr. Livermore, of New Hamp shire, to counting the votes of Missouri, the Journal of the Senate says : " Whereupon, on motion of Mr. Williams, of Tennessee, the Senate returned to its own Chamber." Afterward, the Senate received a message from the House, that it was now ready to receive the Senate for the purpose of continuing the examination of the votes, and on motion the Senate returned to the joint session. At the election in 1857 there was a question about receiving the vote of Wis consin. To a remark of Mr. Letcher, the Vice-President said, " No debate is proper in the opinion of the presiding officer." Mr. Crittenden, of Kentucky : " Do I understand the Chair to decide that Con gress in any form has power to decide upon the validity or invalidity of a vote ? " The Presiding Officer : " The presiding officer has made no such decision, he will inform the Senator from Kentucky. The Chair considers that under the law and the concurrent order of the two Houses, nothing can be done here but to count the votes by tellers, and to declare the vote thus counted to the Senate and House of Representatives sitting in this Chamber. What further action may be taken, if any further action should be taken, will devolve upon the properly constituted au thorities of the country, the Senate^ or the Souse of Representatives, as the case may be. The Chair was misunderstood by the Senator from Kentucky." There was such a diversity of opinion among the members about the ruling of the President of the Senate, that he invited a motion to withdraw. Senator Trum- bull said : " A difficulty has arisen here ; let us retire and consider it in the only con stitutional w r ay we can, and that is, in separate bodies." In this case, the motion to withdraw w r as only put to and voted on by the members of the Senate. They retired immediately upon its passage, and did not return. Neither the Senate nor the House could have acted much more independently of one another, if each had been entirely alone. In the debate which ensued in the House, Humphrey Marshall in sisted that " the Senate and House must act upon the question at issue as sep arate bodies, vote as distinct organizations, and when the vote is to be taken, the Senate very properly retires to consult separately how the vote of the Senate shall be given upon the question, and its vote will then be announced by its own appoint ed organ. If you adopt any other construction of the Constitution, on the one hand, you supersede the House, and place all power over the count in the hands of the President of the Senate ; on the other hand, you destroy the just weight of the Sen ate, and may establish a precedent, by virtue of which at some future day a large body of Representatives may set aside an election made by the people through the electoral college, and assume the power of bringing the election before the House EFFECT OF DISAGREEMENT OF THE TWO HOUSES. xxxvii of Representatives. I am, therefore, clear, that the Houses meet as Houses, and no vote per capita can be taken. Still, I am sure that the duty of determining whether a vote shall be counted, belongs to the Senate and House, and not to the President of the Senate, and it is a duty I insist we shall perform before the vote shall be counted." At the second election of Lincoln, in 1865, the principle of the complete inde pendence of each of the two Houses in canvassing the electoral votes, and the ne cessity of the affirmative vote of each to entitle a vote to be counted, was incorpo rated into a joint rule of the two Houses, where, by the approval of the Executive, it acquired all the moral authority of a law. This clause of the rule which covers the provision runs as follows : " If upon the reading of any such certificate by the tellers any question shall arise in regard to counting the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw and said question shall be submitted to that body for its decision, and the Speaker of the House of Representatives shall in like manner submit said question to the House of Repre sentatives for its decision, and no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses, which being obtained, the two Houses shall immediately reassemble, and the pre siding officers shall then announce the decision of the question submitted ; and upon any such question there shall be no debate in either House, and any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner." Under the operation of this rule at the last three presidential elections (in 1865, 1869, and 1873), the two Houses have separated repeatedly for the purpose of debate. So settled and invariable has been the practice of the two Houses to act sepa rately on the question of counting a vote, and so general has been their practice to withdraw to their respective Chambers for debate and decision, that the principle has been incorporated into every plan for regulating the mode of the counting by standing joint rules or by statute. In the joint rule of 1865, which governed the counting in 1865, 1869, and 1873, the separate action of the two Houses is expressly provided. The law proposed in 1800 contained a similar provision. So did the law which passed the Senate in 1875. So did the law which passed the Senate in 1876. The latter bill contained this clause : " If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the Senate shall thereupon withdraw, and said question shall be submitted to the body for its decision ; and the Speaker of the House of Representatives shall in like manner submit said question to the House of Representatives for its decision." EFFECT OF DISAGREEMENT OF THE Two HOUSES. The counting of a vote is an affirmative act. It involves the examination of the certificate, the reading it in the presence and hearing of the two Houses, the entering of the votes upon the list, and the enumeration of the vote in the footino- which states the result. All these steps are affirmative acts. In all cases where two persons or two bodies are required to concur in the doing of an act, and each has a discretion to do it or not, if they cannot agree, the act cannot be done. It is the familiar case of two judges who do not agree, and the result is that no judgment can be rendered. The construction which has been uniformly adopted and acted on in respect to the counting of an electoral vote by the two Houses is that, if they do not concur affirmatively in favor of counting the vote, it cannot be counted. Mr. Clay said, in 1821 : " One House would say the votes ought to be counted, and the other that they ought not ; and then the votes would be lost altogether " Ihe pint rule adopted in 1865, which governed three presidential elections, i in xxxv iii JOINT BALLOT. codifying the existing practice of the two Houses, expressly declared that " no vote objected to shall be counted except by the concurrent vote of both Houses." The law proposed in 1800 for regulating the counting of electoral votes rec ognized the same principle as in operation unless it was controlled and changed by statute. The bill introduced by Senator Morton, which passed the Senate in 1875 and in 1876, proposed to change this rule in cases where there should be but one return from a State, and to require the two Houses to concur in counting the vote, unless both should agree in rejecting it ; but that effect was to be produced by statute. JOINT BALLOT. There is a respectable opinion manifested by individuals in many of the debates that the two Houses may be deemed to be one body for the purpose of counting the electoral votes, and may act together, the members voting per capita. But there has been no practice sanctioning such a conclusion; and no law has nor has any provision of the Constitution provided for the merger of the two bodies at any time or for any purpose. Doubtless the idea arises from the habit of the State Legisla tures, when the two Houses do not agree in an election, to attain a result by their meeting in joint ballot. Congress has by law provided that such an arbitrament shall be resorted to in order to solve a disagreement of the two Houses of the State Legislatures in the election of United States Senators. This expedient has its suggestion in the absolute necessity of some remedy, and in the fact that this accords with the theory and spirit of our institutions, has been in most cases adopted by the State governments, and practised to the satisfac tion of everybody, and is the safest possible solution of a great practical difficulty. In legislation the independent action of the two Houses and their veto on each other work little practical inconvenience. But in the choice of a public officer, without whom the Government cannot go on, there must be found some mode of effecting an election. In the discussion of the bill proposed in 1800 to regulate the counting of electoral votes, and to determine the results of the presidential election, an amendment was offered providing, in case of a disagreement between the two Houses in respect to the counting of a vote, that the question should be decided by a vote of the two Houses per capita. On the 30th of April, 1800, the records state, " A motion of Mr. Gallatin was under consideration to insert, instead of the principle that, in case of doubt, the Houses should divide to their respective Chambers to consider the qualification or disqualification of a vote or votes, from their joint meeting, if such questions should arise at counting of the votes, the following words : " And the question of the exception shall immediately, and without debate, be taken by- yeas and nays, and decided by a majority of the members of both Houses then present." The amendment was lost, 44 to 46. On the 1st or May the same amendment was again offered, and lost 43 to 46. Among those who voted for it were Albert Gallatin, Nathaniel Macon, John Nicholas, John Randolph, John Smilie, Joseph B. Varnum, and other lights of the party which supported Mr. Jefferson. CASES OF VOTES COUNTED AND VOTES REFUSED TO BE COUNTED BY THE Two HOUSES. The tellers being ministerial agents of the power that appoints, they have no authority to decide finally upon the admission or rejection of the electoral vote, nor is there an instance of their claiming such a right ; but they are the agents of the two Houses of Congress, of which they are also members. The two Houses have always claimed, and repeatedly exercised, the right to pass upon and reject electoral votes, and always without reference to the opinion or wishes of the President of the Senate. At the first election of Monroe, in 1817, objection was made in the joint session CASES OF VOTES COUNTED AND VOTES REFUSED TO BE COUNTED. xxxix f the two Houses, to counting the vote of Indiana, on the ground that it was not a >tate in the Union at the time the electors were chosen. Her vote, however, was ounted, Representatives for that State having already been admitted to seats in the Jpper House. At Monroe s second election, in 1821, objection was made, in like manner, to ounting the votes of the State of Missouri, and, for the same reason, her votes were nally ordered to be counted in the alternative, as thus 231 votes for President lonroe, if the votes of Missouri are counted, and 228, if the votes of Missouri are ot counted, Mr. Monroe in either case having a majority. Non constat, that had er vote promised to affect the result, it would not have been rejected. In the imous debate which took place on that occasion, " Mr. Clay said the Constitution squired of the two Souses to assemble and perform the highest duty that could de- olve on a public body to ascertain who had been elected by the people to adminis- 3r their national concerns. In a case of votes coming forward which could not be Dunted, the Constitution was silent ; but, fortunately, the end in that case carried dth it the means. The two Houses were called on to enumerate the votes for Presi- ent and Vice-President. Of course they were called on to decide what are votes. b being obvious that a difficulty would arise in the joint meeting, concerning the otes of Missouri, some gentlemen thinking they ought to be counted, and others issenting from that opinion, the committee thought it best to prevent all difficulty y waiving the question in the manner proposed, knowing that it could not affect le result of the election. As to the condition of Missouri, he himself thought her State, with a perfect moral right to be admitted into the Union, but kept out for he want of a ceremonious act which was deemed by others necessary to entitle her j> admission. Though, in his opinion, a State in fact, yet not being so in form, her btes could not be counted according to form. He was aware that the question of pr admission might come up and be decided in this very shape ; for if Congress ttowed her to vote for President and Vice- President, and counted her votes, it rould be a full admission of the State into the Union ; but the committee thought, 6 there were other and more usual modes of admitting the State into the Union, it as better not to bring up the question in the discharge of this solemn and indis- nsable duty, but to allow that ceremony to proceed, if possible, without difficulty embarrassment." At the election of Van Buren, in 1837, alike objection was made to receiving the sctoral vote of Michigan. It also was finally counted, like that of Missouri, in the bernative, as it could have no practical effect upon the result. At the election of Buchanan, in 1857, the vote of Wisconsin was objected to be- use, in consequence of a violent snow-storm, the election had been held the day ter that prescribed by law. Her vote, however, was declared by the Vice-Presi- nt as it was reported to him by the letters, in obedience to the specific instruction the two Houses, and without any pretension himself to pass upon the validity or validity of the electoral certificates. The two Houses in this case separated with- it formulating their decision as to the validity of such election. At the beginning of the second session of the 38th Congress, and immediately ior to the second election of President Lincoln, in 1865, a joint resolution was issed, declaring that the inhabitants of the States of Virginia, North Carolina, >uth Carolina, Georgia, Florida, Alabama^ Mississippi, Louisiana, Texas, Arkansas, d Tennessee, had rebelled against the Government of the United States ; had con- lued in a state of armed rebellion for more than three years, and were in a state armed rebellion in November, 1864 ; and provided that these States should not allowed representation in the electoral college for choice of President and Vice- "esident of the United States for the term of office commencing on the 4th of arch, 1865, and that no electoral votes from either of those States should be re ived or counted. In the debate to which this joint resolution gave rise, the power of the two ouses to exclude the electoral vote of the State, upon sufficient cause shown, was )t questioned, the only doubt raised upon the subject being whether the House one had the power to exclude the vote of a State. xl CASES OF VOTES COUNTED AND VOTES REFUSED TO BE COUNTED. This joint resolution received the formal approval of President Lincoln, commu nicated in the following message to Congress, on the 10th day of February, 1865, only three days before the election : "To THE HONOKA BLE SENATE AND HOUSE OF REPRESENTATIVES: " The joint resolution entitled Joint resolution declaring certain States not entitled to rep- j resentation in the electoral college has been signed by the Executive, in deference to the view of Congress implied in its passage and presentation to him. "In his own view, however, the two Houses of Congress, convened under the 12th article of the Constitution, have complete power to exclude from counting all electoral totes deemed ly them to l)e illegal; and it is not competent for the Executive to defeat or obstruct that power by a veto, as would be the case if his action were at all essential in the matter. He disclaims all right of the Executive to interfere, in any way, in the matter of canvassing or counting the! electoral votes ; and he also disclaims that by signing said resolution he has expressed anyl opinion on the recitals of the preamble, or any judgment of his own upon the subject of the resolution. "ABRAHAM LINCOLN. u EXECUTIVE MANSION, February 8, 1865." This is the first instance, it deserves to be remarked, in which the doctrine that the two Houses of Congress, " convened under the 12th article of the Constitution," " have complete power to exclude from counting all electoral votes deemed by them to be illegal," received the full sanction of a law, by the concurring approval of both! Houses of Congress and the Executive. It is impossible that the traditional inter-$ pretation of the 12th article of the Constitution should receive more authoritative confirmation. At the first election of General Grant, in 1869, the votes of the electors of LouJ isiana were objected to on the ground that no valid election had been held there a her vote, however, was counted. The electors from Georgia were objected to on four distinct grounds : first , bel cause the electors were not chosen on the day required by law, nor any excusJ given for the neglect ; second, because at the date of the election the State of I Georgia had not been admitted to representation as a State in Congress since thej rebellion ; third, because she had not complied with the reconstruction act ; fourthm because " the election was not a free, just, equal, and fair election, but that the! people were deprived of their just right therein by force and fraud." Her vote wal counted in the alternative. At the second election of General Grant, in 1873, three votes cast in Georgia! for Horace Greeley were objected to, because Mr. Greeley was dead at the tim such votes were cast. The two Houses not agreeing about the validity of thes m votes, they were not counted. It was also objected to all the electors from theft State of Georgia, that the certificate did not show that the electors voted by bal* lot. The certificate of the elector Spellman, from the State of Mississippi, was oblj jected to, because it was not authenticated by the signature of the Governor. Thilj objection was overruled by the joint vote of the two Houses. It was objected toj the electors from Texas that they had no certificate authenticated by the ExeculJ tive, and that four electors, less than half a majority, had presumed to fill the places of the four absentees who were elected. This objection also was overruled by thdu two Houses. The electors from Arkansas were objected to : first, because the offi* cial returns showed that the electors claiming to represent the State had not beej chosen ; and, second, because the returns were not certified under the great seal ottj the State according to law. The two Houses not concurring in the validity of tliesfrl certificates, the vote of Arkansas was not counted. Here we have the electoral votes of twenty-one States, to which objections have) been raised at different times by the two Houses in joint session. In four of thes cases the objections were overruled ; in three the votes were counted in the alterna tive ; in thirteen the votes were excluded ; and in one, that of Wisconsin, the oh jections were not passed upon. On the other hand, there is no instance of an objec tion being raised as to the validity of any electoral vote by the President of th Senate, nor of his expressing an official opinion as to the force or propriety of an; objection raised in either House of Congress. SUMMARY. SUMMARY. First. The exclusive jurisdiction of the two Houses to count the electoral votes y their own servants and under such instruction as they may deem proper to give in occasions arising during the counting, or by previous concurrent orders, or by tanding joint rules, or by the formal enactments of law, has been asserted from he beginning of the Government ; that exclusive jurisdiction has been exercised t every presidential election from 1793, when a regular procedure was first estab- ished, until and including the last count of electoral votes in 1873. It was exer- ised by concurrent orders of the two Houses from 1793 to 1865, and by a standing 3int rule in 1865, 1869, and 1873. Every counting at these twenty-one successive (residential elections has been conducted under and governed by the regulations hus imposed. Those regulations have prescribed every step in the procedure ; have efined and regulated the powers of every person who has participated in any minis- erial service in the transaction. They have controlled every act of the President f the Senate hi respect to the counting, except the single act of opening the pack- ges of the electoral votes transmitted to him by the colleges, which is a special uty imposed on him by the Constitution. During all this long period, the exclusive jurisdiction of the two Houses, exer- ised upon numerous successive occasions has never, in a single instance, been the ubject of denial, dispute, or question. Second. The President of the Senate, although he has regularly, in person or by ome substitute appointed by the Senate, performed the constitutional duty of open- ig the electoral votes, has never, on any occasion or in any single instance, attempted D go a step beyond that narrow and limited function. In no instance has he ever ttempted to determine what votes he should open, but has opened all, and submitted lem to the action of the two Houses, unless required to omit particular votes by le concurrent orders of the two Houses, or by enactments, in the form of laws, in hich the two Houses had concurred. Where duplicate or triplicate returns have sen received (when returns from two sets of persons claiming to be electors), he is invariably opened and submitted all of them. As a mere temporary custodian, the absence of the rightful owner, he has never assumed to withhold anything, or slay anything. He has obeyed the orders of the two Houses as to every act which 3 has done during the counting, and as to the announcement of the footing of the Hers, when they had enumerated the votes. He has performed such duties as have sen imposed upon him by the concurrent orders of the two Houses, and none other ; id he has performed those duties in the manner, and under the instructions given the order of the two Houses. In no single instance has he ever pretended to ave any right to decide any question as to the authenticity or validity of a vote, or > interfere with the tellers in the counting, or to determine what certificates or evi- ence of electoral votes should be submitted to the two Houses. He has acknowl- Iged, without reservation, the most absolute authority of the two Houses over the hole subject, and recognized the fact, that any function beyond the opening of the ackages of certificates, which he might exercise, was derived from the two Houses, nd performed as their servant. In the whole hisrory of the Government, there is ot a single exception to this established and continuous usage. Third. The two Houses have not only always exercised the power to count the ectoral vote in such manner and by such agents as they might choose to do it xclusively without interference from anybody else, but they have exercised the ght to fix and establish the methods of procedure by standing rules. They have iso asserted the right to prescribe a permanent method of counting the electoral s. Whatever powers exist in the Federal Government for the purpose of ascer- lining and determining the result of a presidential election by a canvass of the elec- Dral votes, the two Houses of Congress have always claimed to possess, and to pos- 3ss exclusively, subject to such regulations by law as they might themselves concur i enacting. And they have always asserted the right of the law-making power of rovernment to legislate on this subject, under the general constitutional grant of uthority " to make all laws which shall be necessary or proper for carrying into exe- xlii SUMMARY. cution " the " powers vested in the Government of the United States by any depart ment or office there." It has been several times proposed to regulate by act of Congress the mode of counting the electoral votes, of verifying the authenticity and validity of the votes, and determining the result of the presidential election, so far as those powers are to be exercised by the two Houses. A bill for this purpose was introduced and dis cussed in Congress early in the year 1800, when many of the persons who had par- ; ticipated in the forming of the Constitution in the Convention of 1787 or in its rati fication by the State Conventions, were in Congress. Although differences of opinion as to what would be wise and safe regulations for the counting, existed to such extent as to defeat any agreement upon the details of th e measure, the debate failed to develop any question or doubt as to the exclusive authority of the two Houses to count the votes, and to prescribe by concurrent action the mode of their counting. From the beginning to the end of the debate that authority was taken for granted, j Among the prominent figures in that Congress were John Langdon, who, at the .. organization of the Government, in 1789, had acted as the special President of the Senate, on the anomalous first counting, before any regular procedure had been I devised ; John Marshall, afterward Chief-Justice, Albert Gallatin, who became famous j as a publicist, as a statesman, and as a financier; and other men who had personal \ knowledge and fresh traditions of the meaning of the framers of the Constitution, and of the sense by which its provisions were interpreted, and had been adopted by j the States and the people. The assumption unanimously by Congress, eleven years J after the Constitution was set in motion, that the two Houses possess full and exclu- J sive powers in respect to counting the electoral votes carries with it, therefore, the I weight of the most distinguished contemporaneous exposition. That debate nowhere . exhibits any question of the authority of the two Houses to count, and nowhere | recognizes any power whatever on the part of the President of the Senate to count. In 1875 and again in 1876 a bill regulating the mode of counting was introduced I into the Senate and received a full and elaborate discussion in that body, and the af- j firmative vote of a majority of the Senators. On many occasions when the electoral j votes were to be counted, or during the process, or in some debate to which it gave j rise, the powers of the two Houses have been more or less discussed. While indi vidual eceentricities of opinion or idiosyncrasies have exhibited themselves in the advocacy of the pretension on the part of the President of the Senate to go theo- 1 retically beyond the limits of his constitutional duty in opening the packages of electoral certificates, such instances have never exceeded one in a hundred of the members of the two Houses ; never have made any practical progress or exerted any practical influence on the opinion or conduct of the two Houses ; have never interrupted or modified the uniform current of the precedents, or in a single instance inspired any incumbent of the chair of the Senate to the slightest spirit of enter prise toward the enlargement of his constitutional prerogative. On the other hand, the exclusive authority of the two Houses of Congress over the counting has been universally and uniformly assumed and taken for granted. And so often as the members have been tempted into any incidental mention of their opinions, the ex pressions asserting such exclusive power on the part of the two Houses have been overwhelming in numbers and in weight of authority. Some specimens of such expressions will be hereafter cited. In the mean time it is proper to observe that without finding it necessary or con-- venient on this occasion to discuss the exact limits of the powers of the two Houses in judging of the authenticity and validity of electoral votes, or of the extent to which their investigations may be carried for that purpose, it is proper to observe that the powers of the two Houses in this respect are not arbitrary powers to be exercised at their own mere will, but are trust-powers to be exercised under all the solemn obligations that belong to judicial discretion in the most august of human tribunals. UNI7SESIT7 OPINIONS OF MEMBERS OF CONGRESS. THE TWO HOUSES COUNT. Senator John Sherman, of Ohio. The Con- iitution of the United States declares that the ivo Houses may meet together in joint con- ention and count the votes. Mr. Edmunds. It does not say that. Mr. Sherman. It does practically. Feb. 25, 875. Senator Boutwell, of Massachusetts. Almost Iways, I think, when the subject has been iscussed, the question has been presented hether Congress is to count the votes ; and y Congress I mean the two Houses met in onvention, according to the terms of the Con- ;itution. Our best answer to that is the fact lat, from the first convention that assembled ntil the last, the two Houses in convention al ways did count the votes. A teller was ap- jointed by the Senate, two tellers by the fouse. The votes, or certificates, or returns, hatever they are called, were handed by the ice-President, after he had opened them, to e tellers. The tellers were the organs, the struments, the hands of the respective Houses, le votes were counted by the tellers, and, be- g counted by the tellers, they were counted the two Houses ; and, therefore, there never is been any difference of practice, and no dif- rent practice could have arisen under the onstitution. The two Houses in convention ive from the first until now counted the votes. I agree entirely with the suggestion made by e honorable chairman of the committee in sgard to the power to count the votes and the ity to count the votes. The power was con- rred upon Congress and the duty was en- ined upon Congress. The power and the ity are in Congress. Congress must exercise ,e power and perform the duty, and it is not assible under the Constitution to transfer it. that be so, then the suggestion of the Sena- rs from Virginia and Texas is answered, hether some device may not be resorted to r which there can be an arbitration and a dgment when a case shall arise such as is ovided for in the second section of the bill, here can be, under the Constitution, no tri- unal to decide that or any other question arising in the course of counting the votes ; the duty is imposed upon the two Houses of Con gress. They alone can perform it, and they have not the power to transfer its perform ance to anybody else. Whether this power is there for weal or for woe, there it is; and un til the Constitution is altered there it must re main. March 13, 1876. Senator Morton, of Indiana. We could, without doing any great violence to the Con stitution, adopt either of these constructions. Each is possible under the language. The Con stitution says : The President of the Senate shall, in the presence of the Senate and House of ^Representatives, open all the certificates, and the votes shall then be counted. It does not say who shall count them; it leaves it open to inference that they shall be counted by the two Houses on the one hand or by the President of the Senate on the other. I will assume, for the sake of the argument, that you can give to it either construction. I will assume that it is open to both views. Then the question comes, which is the more reasonable, which is the better, which is the safer of the two : to adopt that construction which gives this great power to one man, the President of the Senate, who may be counting the votes for himself, as it has turned out six times in our history ; or would it be safer to leave it to the determination of the two Houses of Congress, representing the States and the people? If we are open to adopt either one of these constructions, I say the latter is the safer, it is the more reasonable, it is in con formity with the spirit of our Government and of popular institutions. / then adopt the latter construction. March 16, 1876. Senator Daices, of Massachusetts. I think that the Constitution means that they shall bo counted by the two Houses. March 20, 1876. THE TWO HOUSES COUNT UNDER THE CONSTITU TION. Senator Thurman, of Ohio. Who is there who can say that the Constitution declares in express terms who shall count the votes? xliv THE TWO HOUSES COUNT UNDER THE CONSTITUTION. When it simply says, " and the votes shall then be counted," and says nothing more, who is there who can say that the Constitution in express terms declares that the President of the Senate shall count the votes, or that it de clares by whom the votes shall be counted ? Manifestly there is no declaration on that sub ject. Manifestly it is not declared by whom the votes shall be counted. What is the con sequence ? These votes are to be counted, for they concern the election of the Chief Magis trate and the Vice-President of the Republic. The power to count them is a power conferred upon the Government, or some department or officer of the Republic. If, then, there is no declaration by whom they shall be counted, I ask any lawyer in the Senate is there any al ternative but to say that the law-making power shall declare by whom they shall be counted ? I ask any lawyer to say if it does not come within the express words of the last clause of section 8 of article 1, defining the powers of the Congress To make all laws winch shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Consti tution in the Government of the United States, or in any department or officer thereof? And, without that clause in the Constitu tion, does not every one know that of neces sity where a power is conferred upon a gov ernment or any department of a government by a written constitution and the mode of exer cising that power is not prescribed, that moSe is to be prescribed by the law-making power ? Without that express provision in the Consti tution, how could it be doubted that the law- making power is to s.upply the mode of ascer taining the popular will? March 21, 1876. Senator Logan, of Illinois. " The President of the Senate shall, in the presence of the Sen ate and House of Representatives, open all the certificates, and the votes shall then be counted." What is the obvious meaning of that particu lar part of the Constitution? It is that the two Houses of Congress are to count the votes for President and Vice-President the same as the two Houses of Congress pass laws. The business of making laws is in the first instance referred to committees for the purpo.se of tak ing it out of the hands of the members of Con gress, that the bills may be prepared and put in a condition to be presented for their action. So in this case they may designate persons of their own number or they may possibly desig nate persons not of their number to do what ? Perform no duty at all, except to take the bur den off the House and Senate of making an enumeration of the votes cast for President and Vice-President. Hence they may appoint tellers. These tellers are merely to perform a ministerial office, to make an enumeration of the votes as they are handed to them by the Vice-President and to return to the Vice-Presi dent a statement of the count, that he may an nounce the fact. What fact? As to who has received the greatest number of votes cast for either or both of these offices. . . . "The votes having been counted " Mr. Merrimon. By whom ? Mr. Logan. By whom ? By the two Houses of Congress as the Constitution con-\ templates, through those whom they have des ignated for that purpose. Feb. 25, 1875. Senator Lyman Trumbull, of Illinois. The language of the Constitution, as the Senator from Ohio remarked, is perhaps not very spe cific. It is that the votes are to be opened by the Presiding Officer of the Senate, and they shall then be counted. By whom? The Con stitution does not say ; but we have a construe- 1 tion of the Constitution from the foundation \ of the Government. The very first time that a President was elected, when many of the men who had framed the Constitution of the United States held seats in Congress, they ap--| pointed tellers ; they virtually toolc charge of\ t?tis counting ; and from that day till now the\ vote has been counted under the direction of the I two Houses of Congress. Mr. Morton. From what time? Mr. Trumbull. From the beginning of the Government the two branches of Congress j have passed resolutions in regard to this count- ing of the vote. Jan. 7, 1873. Senator F. T. Frelinghuysen, of New Jersey. \ I would recall the language of the Constitu-i tion to my friend : The President of the Senate shall, in the pres-J ence of the Senate and House of EepresentativesJ open all the certificates. Mr. Conkling. u And the votes shall then be j counted." Mr. Frelinghuysen. "And the votes shall j then be counted." I understand that that count-\ ing is really done under the supervision and] in fact by the two Houses. I think the bill is a] good deal better leaving it as the Constitution] leaves it, without saying " being counted by the! tellers." . . . But they are not to be counted] by the tellers under anybody s supervision ;1 they are to be counted by the two Houses ofl Congress, and this bill has gone as far as it can] go in defining the duties of these tellers when! it has provided that they shall make a list off the votes. That is the ministerial duty they) perform, and the counting must be left to the} two Houses. ... I think the twelfth article; of the amendment to the Constitution settle** who has jurisdiction over this question. I to does not do so in express terms, but it does sou by necessary implication. It says that the President of the Senate is to open the certifi-i cates and the votes, which are then to bej 1 counted in the presence of the two Houses^ That by necessary implication to my mind* 1 gives the jurisdiction over this subject to the tw&< Houses; and if the Constitution do^s give it tot THE TWO HOUSES COUNT UNDER THE CONSTITUTION. xlv them, we cannot by law give it to the judiciary of the country. . . . The votes having been counted, of course, by the two Houses. Feb. 25, 1875. Senator John A. Logan, of Illinois. The nere addition of the number of votes, done nerely as a clerical duty by these persons, certainly is subject to the supervision of the kwo Houses of Congress, the same as, for in stance, in many States where the State consti tution refers the counting of the votes for Gov ernor to the House of Representatives and the Senate of the State. They are to count the vote; that is the language of several of the State constitutions ; but the vote is never act ually counted by the Legislature ; it is counted in their presence by the secretary or clerks, as jinay be. But the meaning of it evidently is that they count the vote. The clerks merely [are those persons designated by the bodies to toount the vote. Should they make a miscount k>f the vote there in the presence of the two Houses, the two Houses would have jurisdiction \pver it certainly. Hence it certainly means the counting of the note by the two Houses of Congress, although the mere enumeration of the number is done by persons who are select ed for that purpose. . . . The idea is that the two Houses count the vote. Of course they designate some person to do the mere ministe rial office of counting the vote and making the addition, but it is, in fact, constructively done by the two Houses. Now, if you put in the words "by them," they refer to the men selected as the persons to make the count, and leaves them the persons to count the votes, instead of the construction that the Constitu tion certainly bears, that the Homes count the votes. Feb. 25, 1875. Senator Roscoe Colliding, of New York. The Sanator from Illinois has stated so exactly and so fully the view I have of this matter that I am content to give my vote upon the presentation he has made. But yet I venture to suggest to the Senator from North Carolina that his amendment would confound together two things different in law and in substance. The office to be done by these tellers, as has been said, is purely ministerial. As my friend said a moment ago, they do the work and the two Houses in fact make the count. They are mere machines. ... So you need not neces sarily have members of the two Houses to act as tellers. Two of the pages of the two Houses could foot up these figures and present them to the Houses. But does anybody sup pose that when you use the word " count " in the constitutional sense you can delegate to two pages the count of those votes? I take it not ; but the mechanical, ministerial function, the mere manual act of presenting a total of a column of figures and handing that to the presiding officer, you may delegate to anybody, to the Sergeant-at-Arms for aught I know. Congress may do whatever is committed to it as a Congress. Either House or both Houses may do whatever is committed to it or to them; but Congress cannot delegate to any body else legislative power or any other power which is reposed in Congress, and located there and nowhere else. So we may make a rule which shall commit to the presiding offi cers of the two Houses the duty of scribes and chirographers, to set down and count up and state these figures ; but when you come to the last act, to the act accomplished of maTcing the count, in all senses which the Constitution imports, that is the act of the two Houses. " The vote shall then be counted," the two Houses being there. Feb. 25, 1875. Senator A. P. Christiancy, of Michigan. Now, as this counting is required to be in the presence of the two Houses, and no provision is made by whom the actual count shall be made, it seems to me that the counting may be considered as, in legal effect, the work of the two Homes, for which each is responsible. Not that each member of each House shall actually count all the votes and make the necessary lists, which would be practically very difficult, but that each House should appoint some mem ber or members of its own to count them ; in other words, to act as tellers, and to perform their work in the presence of the two Houses. This is the mode provided in the twenty-second joint rule, now repealed, and in the first sec tion of the bill now before us, and this mode is, I think, the fair result of the interpretation of the Constitution above indicated ; and the matters of mere detail for the purpose of ac complishing this mode of counting and of de ciding, as provided in the first, third, and fourth sections of the bill, would, I am inclined to think, come fairly within the constitutional power of Congress. March 16, 1876. Senator Wm. W. Eaton, of Connecticut. By whom? I insist, and I assert without fear of successful contradiction, that the votes are counted by the Senate and the House of Repre sentatives, and not by the V ice-President or the Presiding Officer of the Senate. In my judg ment, the Vice-President is the organ of the two Houses, and nothing else. ... The duty of the Vice-President is to open the certificates. They are sent to him ; he is their custodian. On a certain day he meets the two Houses together in joint convention. He, their presiding officer, opens the certificates; and the Senate and the House of Representatives, through their tellers, count; not he. Sir, I have n*o doubt on this subject. That is the entire duty of the pre siding officer of the Senate. . . . Senator S. B. Maxey, of Texas. The duty of counting the votes devolves in the first in stance, in my judgment, on the Senate and House of Representatives. Why the necessity of requiring the Senate to appear organized xlvi THE TWO HOUSES COUNT UNDER THE CONSTITUTION. and ready for business, unless it has business ? Why require the House of Representatives to be present organized, unless for business ? The very fact that the two Houses are required to appear in their organized capacities strength ens the construction which I place on the clause in question. That is precisely what I mean, sir. The Constitution says : The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The word "Senate" means an organized body; the words " House of Representatives" mean an organized body. If it was designed simply to open the votes in the presence of Senators and Representatives, it would have said so; but it says "Senate," which is an organized body; it says "House of Repre sentatives," which is an organized body; and I hold that these two bodies as organized bodies are present, and I have argued that they are present for business, and I think there is force in that view. March 21, 1876. Senator Lyman Trumbull, of Illinois. The Senator from Wisconsin insists, as also does the Senator from New York, that the Vice- President, or the Presiding Officer of the Senate, is to determine this question in the first instance. The Constitution does not say that the Presiding Officer of the Senate shall count the votes even, and in the practice of the Gov ernment since the days of Washington till this moment the Vice-President never has counted the vote. The Constitution says, " The Presi dent of the Senate shall, in presence of the Sen ate and House of Representatives," do what? "Open all the certificates." That is what he shall do. Then what follows? "And the votes shall then be counted." By whom? Another clause in the Constitution already re ferred ^ to declares that Congress shall have authority to pass all laws necessary and proper to carry into effect every one of the granted powers. The power to count the votes is given by the Constitution ; the mode of doing it is not prescribed by the Constitution; but an other clause of the Constitution says that Con gress _ shall have power to provide by law for carrying into effect every provision of this in strument ; and here is a provision of this in strument that these votes shall be counted; the manner of doing it is now determined by the Constitution, and it is clearly constitution al and proper for Congress, in the exercise of its authority to carry into effect the granted powers of the Constitution, to pass the neces sary laws to count the votes, and Congress has done it from the beginning of the Government. Feb. 2, 1865. Senator Jacob M. Howard, of Michigan. I know that. I am coming to that clause. It seems to me, on the other hand, that the inten tion of the convention which framed the Constitution was that the two Houses thus assembled should sit together as one joint body for a much higher purpose than merely looking upon the ceremony of breaking the seals of the certificates, and that they are really required to perform the office of count ing the votes. This was the early construction given to the Constitution by the Second Con gress of the United States, which passed the act of 1792. Feb. 2, 1865. Senator Garrett Davis, of Kentucky. This power to count the presidential votes is cer tainly vested by the Constitution somewhere. It is vested in the two Houses. The manner in which the count shall be made is not pre scribed by the Constitution. Then comes in the general power given to Congress to pass all laws necessary and proper to execute any of the powers vested by the Constitution in the Government or in any department or officer thereof. Feb. 2, 1865. Senator William M. Stewart of Nevada. The Constitution says : The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the vote shall then be counted. I think it was anticipated that they should just count them and he should declare the re sult. m 25, 1875. THE TWO HOUSES EEGULATE MODE OF COUNT ING BY LAW. Senator Thurman, of Ohio. When a power is vested in any department of this Govern ment and the mode of its exercise is not pre scribed by the Constitution, the prescribing of that mode belongs to the law-making power, the Congress of the United States ; and, there fore, in this case, where the Constitution sim ply says that these votes shall be counted, without prescribing in detail the mode of their count, it follows necessarily from the structure and genius of our Government, and from the very nature of legislative power, that that mode is to be prescribed by law. I never believed, therefore, that a joint rule was the proper mode. I believe that a law is the proper mode ; and I believe that that law binds every body, binds each House of Congress as much as any law binds us until it is repealed. I have no difficulty therefore with this being a law. I think it proper that it should be in the shape of a bill to become a law. March 13, 1876. Senator Maxey, of Texas. If it had been meant, as is contended, to devolve upon the President of the Senate the duty of counting the votes as well as the opening of the certifi cates, I ask why was not the clause so worded as to read thus ? The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and count the votes. THE MODE OF COUNTING TO BE PRESCRIBED BY LAW. xlvii It does not so read. And the votes shall then be counted. That is the way it reads, implying clearly, n my judgment, that it was the duty of the ^resident of the Senate in determining who vas elected President and Vice-President of ;he United States to open the votes in the >resence of the Senate and House of Repre sentatives, and that they should be witnesses o that great event; but there was another eason for that. It was that the House of Representatives, the direct representatives of he people, and the Senators, the embassadors >f the sovereign States, should be there ; that vhen the expression was used, " and the votes hall then be "counted," it was intended that he votes might be counted in the mode and aanner which the embassadors of the States, sonstituting the Senate, and the Kepresenta- ives of the people, constituting the House of Representatives, might point out. It was neant that they had -the power to point out he mode and manner in which the votes hould be counted. That at least is my con- truction of the Constitution. March 13, 1876. Senator 0. P. Morton, of Indiana. If you ;ive the President pro tempore a casting vote ?here the two Houses fail to agree in deter- nining which is the true vote of a State, that ight thus conferred upon the President of the Senate is given to him by virtue of a law, and ioes not belong to him under the Constitution ; |o that after all we are deputing to an umpire [r to a third party the exercise of a duty which, recording to the argument of the Senator from Fexas, and I think very clearly, too, belongs o the two Houses as a part of the legislative ower of the country. March 21, 1876. Senator Reverdy Johnson, of Maryland. "What ire propose to do now is to pass a law, to which President s assent is necessary before it ecomes operative, declaring what electoral otes shall be counted legally. If we have the nthority to pass such a law and I do not ropose to discuss that question now ; I think ery clearly we have the authority when it is assed by both bodies and approved by the resident, it is binding on the members of the onvention when they meet together. Feb. , 1865. Senator Edmunds, of Vermont. No ; all le President of the Senate shall do is to open he package, "and the votes shall then be ounted." Feb. 25, 1875. Extract from a Bill presented to the Senate y Senator Edmunds, Feb. 25, 1875 : The President of the Senate shall, in the presence f the Senate and House of Representatives, open 1 the certificates and papers purporting to be certifi- ites of votes given at the last preceding election >r President and the Vice-President, respectively, id which shall have come to his possession; and the votes shall then be counted in the manner and with effect hereinafter provided. SEC. 3. That when the certificates of votes for President of the United States shall be opened by the President of the Senate, in the presence of the Sen ate and House of Representatives, as provided in the Constitution and by this act, the same shall, with the votes therein contained or stated, be then and there delivered to the committee provided for in section 1 of this act; which committee shall forth with proceed to examine the same, and shall count the votes which shall appear to have been legally given and duly certified and returned. And said committee shall report in writing as soon as may bo to said meeting their proceedings, the state of the votes, and what persons, if any, have been pursuant to law elected President and Vice-President respec tively ; and if, on such report, any question shall be made by any Senator or member of the House of Representatives touching the legal validity of any vote or votes so delivered to said committee, or touching any action of said committee, the Senate shall withdraw, and each House shall proceed to consider the question. THE MODE OF COUNTING TO BE PEESCEIBED BY LAW. Senator Thurman, of Ohio, Feb. 25, 1875. I think that the spirit of the Constitution re quires that these votes shall be counted in some mode by Congress or the convention of the two Houses; but what shall be the mode ? It is a fundamental principle that, where any power is conferred upon the Government, or any Department, or officer thereof, and the mode of exercising that power is not pre scribed in the Constitution itself, it belongs to the law-making power to prescribe the mode. I said the other day that that was a funda mental principle of the Government, but I need not have gone to any general principles of government, because it is expressly declared in the Constitution, as we all know in the very familiar paragraph, the last of section 8 of article 1, in which, after enumerating the powers of Congress, it is said : The Congress shall 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 Govern ment of the United States, or in any Department or officer thereof. Senator John Sherman, of Ohio. These difficulties must be met beforehand ; and to say that we cannot by law prescribe the mode and manner in which these questions shall be decided before the meeting of the joint con vention, is to declare the frainers of the Con stitution fools. So it seems to me. BUT COUNTING NOT TO BE DELEGATED. Senator Thurman. In my judgment, we shall act most within the spirit of the Consti tution and nearest to its letter if this matter shall be decided by the Senators and the Rep resentatives of the people, and that we ought not for one moment to think of going outside of the Congress if we can find a proper and safe mode for deciding this question within the halls of Congress. March 13, 1876. xlviii POWER OF THE HOUSES MET TOGETHER. THE TWO HOUSES COUNT, NOT THE PRESIDENT OF THE SENATE. Senator Edgar Cowan^ of Pennsylvania. The Constitution provides that the President of the Senate shall, in the presence of the Sen ate and House of ^Representatives, open all the certificates, and the votes shall then be counted, not by the Vice-President, for that does not follow, but shall be counted by that body there assembled in joint convention. Feb. 2, 1865. John A. Bingham, of Ohio. Congress, com posed of the Senate and House, shall be in ses sion on this day for what ? To look silently on, while the President of the Senate and the tellers jointly and severally ascertain and de clare who are elected President and Vice-Presi dent of the United States ? The two Houses are here to count the votes, and to ascertain and declare the result. The President of the Sen ate and the tellers are but the mere agents or organs of the two Houses. The DUTY to as certain and declare these results is, in my opin ion, devolved upon the two Houses, not upon the President of the Senate or the tellers. Feb. 11, 1857. Humphrey Marshall, of Kentucky . The count is performed by the Senate and House . . . " The votes shall be counted" not by you [the President of the Senate] but by us [the Senate and House of Eepresentatives]. Feb. 11, 1857. Senator It. M. T. Hunter, of Virginia. If, then, his authority be denied in either of these modes, the power of the two Houses to regu late the count is recognized. Feb. 12, 1857. Senator Morton^ of Indiana. Tf, when the Senate comes to decide the question which is the correct return, there is a tie vote in the Sen ate, and the Vice-President is presiding not a President pro tempore he can cast a vote in that case, deciding the question in the Senate ; but there is no provision in our Constitution authorizing the Vice-President or any other offi cer of Government to come in and settle the question where the two Houses disagree. If there is a tie vote in the Senate, the Vice-Pres ident can cast the deciding vote ; ~but it is not in conformity with the spirit of our Constitu tion to provide for some officer who shall settle between the two Houses when they disagree. March 13, 1876. Mr. Morton, of Indiana. The President of the Senate pro tempore has no casting vote under the Constitution, but he simply votes as a Sen ator. If you give the President pro tempore a casting vote where the two Houses fail to agree jn determining which is the true vote of a State, that right thus conferred upon the President of the Senate is given to him by vir tue of a law, and does not belong to him under the Constitution ; so that, after all, we are de puting to an umpire or to a third party the ex- excise of a duty which, according to the argu ment of the Senator from Texas, and I THINK VEEY CLEAELY, TOO, belongs to the two Houses as a part of the legislative power of the country. Mr. Maxey. That umpire is a part of our own body. He is not an outside body, but is a part of Congress. Mr. Morton. That may be true. He is a member of this body either as Vice-President or as a Senator ; but the power conferred upon him is not given by the Constitution ; it is a new power which we are conferring upon him. I deny the power to create an umpire to decide be tween the two Houses IN A MATTER WHICH is DE VOLVED UPON THE TWO HOUSES BY THE CONSTI TUTION. March 21, 1876. POWER OF THE HOUSES MET TOGETHER. Benjamin F. Butler, Representative of Mas sachusetts. Now, where d oes the Constitution place us? We are placed here in joint con vention to count the votes, or, what is the] same thing, to see that they are justly and cor rectly counted. It is a power given by the Constitution, operating ex proprio vigore, to do an act of government. Therefore, all the power necessary to execute the power is also conferred. . . . Among those powers in thel present case is a power in the two Houses sit ting in convention to preserve order; to es tablish rules for its own government, and to guide its deliberation ; for, being an aggregate body, or in any view composed of aggregate bodies, to determine questions for itself by de liberation. A part of that power is exercised by the House and a part by the Senate, wheth er in an aggregate body or separated opinion is divided. One theory is, and that theory .: seems to be generally entertained, that the Senate, being a smaller body than the House, ought not to be compelled to come into the convention to be overslaughed by the larger body in a per capita or aggregate vote. But! that proposition is by no means a settled or as-i certained one. . . . If we can neither preserve order nor delibe rate, nor examine, nor determine any question, how are we to find out what are the votes wo are to count or to see counted? Suppose that upon the reading of a certificate I rise and ob ject, saying, "Why, sir, that certificate isj forged, and I have the evidence here." " But," ; says the President, " I cannot hear that. Don t ] you know the concurrent resolution will not ; pef mit us to examine this question, or I alone j can judge of that, and I am without power toj summon a witness? " I ask this House what; are we to do in such a case ? How are we to i hear evidence, if necessary, if we have noj power? 1 say, "I know that certificate is forged." Another gentleman says, "I know it is genuine ; " and there is a conflict. Are we to count the votes certified by such a cer- 5 tificate without determining anything about,, the genuineness of such a certificate ? PRECEDENTS. xlix Again, sir, a question may arise : by whom is the certificate given ? To be valid it must be the, certificate of the electors. How are we to know that they were electors? To be legally electors they must be elected under certain constitutional forms and on a certain day. Must we not have all power necessary to as certain such facts without the knowledge of which no action ought or can be had? . . . The two Houses may determine, each for itself, separately, but they must come into joint con vention, and make that determination of the convention, just precisely as a jury may retire from court and deliberate on their verdict and make it up, but it has no validity until after it ;has been declared in the court. The rule says that the deliberation must be done separately, jbut the constitution compels joint action in counting the votes, so that the final action must be when the Houses are together, however they may have settled what that action shall be. The deliberation is to be done separately, and the decision is to be made jointly. Now, let me examine the concurrent resolution a little further. Suppose the power is given to the two Houses by the Constitution to count the votes in convention and I wish to call the at* tention of the House to it, for it is vital can that power be regulated and put in execution through the means of a concurrent resolution ? I now mean a concurrent resolution not ap proved by the President. There is no law made by the Congress of the United States except made by the Senate and by the House and approved by the President, or passed over his veto. The Constitution vested in Congress the power by law to carry out all the powers vested in any branch of the Government necessary to carry out the pro visions of that Constitution, and not by concur rent resolutions, not by joint resolutions of the two Houses only, but by an act in which both Houses concur and which receives the approval of the President, or which, not receiving his approval, is passed over his veto by two-thirds of both branches. Feb. 11, 1869. THE TWO HOUSES DETERMINE THE LEGALITY OF VOTES. President Lincoln. To the Honorable the Senate and the House of Representatives : ^ The joint resolution entitled, " Joint resolu tion declaring certain States not entitled to representation in the Electoral College," has been signed by the Executive, in deference to the view of Congress implied in its passage, and presentation to him. In his own view, however, the two Houses of Congress, con vened under the twelfth article of the Consti tution, have complete power to exclude from counting all electoral votes deemed by them to be illegal, and it is not competent for the Executive to defeat or obstruct that power by a vote, as would be the case if his action were at all essential in the matter. He disclaims all right of the Executive to interfere in any way in the matter of canvassing or counting elec toral votes, and he also disclaims that, by sign ing such resolution, as has expressed any opinion on the recitals of the preamble, or any judgment of his own upon the subject of the resolution. Feb. 8, 1865. Senator John J. Crittenden, of Kentucky, Feb. 12, 1857. I now offer this [joint] resolu tion : Resolved, That the electoral vote of the State of Wisconsin, in the late presidential election, being given on a day different from that prescribed by laAv, was therefore null, and ought not to have been ad mitted or included in the count of electoral votes given in the late presidential election. Senator John P. Hale, of New HampsJdre. Suppose when the two Houses meet in conven tion to count the votes it is palpable to them that the electoral votes of some States were given by members of Congress, has Congress no power to say that they shall not be counted ? Feb. 2, 1865. PRECEDENTS. Precedent of 1817. The two Houses re fused to reject the vote of Indiana, whose electors had been elected before she was de clared admitted into the Union. Precedent of 1821. The two Houses direct ed the President of the Senate to announce the state of the vote in the alternative, the votes of Missouri counted, the votes of Mis souri not counted, her electors having been elected before she was declared admitted into the Union. Precedent of 1837. The two Houses direct ed the President of the Senate to report the votes of Michigan in the alternative. Precedent of 1857. The votes of Wiscon sin were announced in the alternative, the President of the Senate disclaiming power to decide whether they were good or bad votes. Precedent of 1865. The two Houses by joint resolution excluded from counting cer tain electoral -"votes de.emed by them to be illegal. Precedent of 1869. The two Houses ex cluded votes deemed illegal. Precedent of 1873. The two Houses ex cluded votes deemed illegal. THE TWO HOUSES DECIDE WHAT ARE VOTES. Henry Clay, of Kentucky. The two Houses were called on to enumerate the votes for Presi dent and Vice-President. Of course they were called on to decide what are votes. "Feb. 4. 1821. 1 THE TWO HOUSES DECIDE ON CONFLICTING CERTIFICATES. Senator Jacob M. Howard, of Michigan. I consider that the power of counting the votes and of rejecting votes which are void for fraud or illegality, is, under the Constitution, in the joint convention thus assembled. I have not any doubt about that, because I believe that the two Houses thus assembled are assembled for a great and protective purpose, that they are exercising the tutelary authority of the people in protecting the nation from the im position of false and fraudulent ballots and certificates. ^5. 2, 1865. Senator John Sherman, of Ohio. The ques tion is, what votes shall be counted at the meeting of the joint convention next Wednes day? What rule shall govern the convention when it meets ? Shall the whole thing be post poned until the two Houses get together with out any rules or organization, so that confusion will probably occur the very moment the ques tion arises? Upon that question I have very clear convictions, and my convictions upon that point will control my vote. I alluded incidentally yesterday to the scene that occurred in the joint convention eight years ago. If we do not determine this ques tion now, we know that any member of either House may present it to us in the joint conven tion. Feb. 2, 1865. Senator JacoT) Collamer, of Vermont. The gentleman has put this question very candidly, and he is entitled to as much of an answer as I am prepared to make. The adoption of my amendment would in no way, in my estimation, embarrass the question which the gentleman puts, or any action which Congress might take upon it. To be sure, it would do what it says shut out the electoral votes which have been cast in any of these States heretofore in the interim; that is all. Feb. 2, 1865. John Randolph, of Virginia. For what purpose do they [the two Houses] assemble to gether, unless it be to determine on the legal ity of the votes? Feb. 4, 1821. Senator Robert Toombs, of Georgia. It is our duty to count the votes, and to decide what are votes. Feb. 11, 1857. Senator A. P. Butler, of South Carolina. Let him add up the votes and announce the result to me. I am one of the judges, or why do you call me there? Feb. 11, 1857. Senator Chas. E. Stuart, of Michigan. What votes he shall count it is entirely competent for Congress by law to declare. Feb. 11, 1857. Senator James L. Orr, of South Carolina. This, in my judgment, confers upon them [the two Houses] the power to determine whether a vote be valid or invalid. Feb. 11, 1857. THE TWO HOUSES DECIDE ON CONFLICTING CER TIFICATES. Senator 0. P. Morton, of Indiana. I will suppose, as in the case of Louisiana, here are two packages sent to the Vice-President. He opens them, and finds that each one purports to be signed by the Governor of Louisiana ; that there are two sets of electors, each assum ing to vote for President and Vice-President. Who is to decide which is the correct return, who is the Governor of Louisiana, and which set of electors was entitled to cast the vote of that State? Will you leave it to the Vice- President alone ? You must believe something in the integrity of men, and in that case it is safer to leave it to both Houses than it is to leave it to one House alone. It is safer to leave it to both Houses than it is to leave it to the Presiding Officer of the Senate, because there is where the power must rest if it is not placed in the two Houses of Congress. . . . You cannot leave it to one House alone. They do not agree ; you cannot read both sets ; you can only read one set, and therefore read that set which both Houses of Congress, sup posing men to be patriotic and to be honest and acting under the obligations of the Constitu tion and their oaths, shall decide to be the true and valid return. I think that is the fairest way. Mr. Eaton. Suppose they do not agree on the same return, what then ? Mr. Morton. The vote goes out, the State has no vote, because unless there is some tri bunal to settle which vote shall be counted you cannot count both, and therefore you can not count either. You must have some tribu nal to settle that difficulty ; and what tribunal is safer than the two Houses of Congress, I ask my friend from Connecticut? March 13, 1876. THE SAFEE TEIBUNAL. Senator Morton, of Indiana. Then the ques tion comes, which is the more reasonable, which is the better, which is the safer of the t w o to adopt that construction which gives this great power to one man, the President of the Senate, who may be counting the votes for himself, or would it be safer to leave it to the determination of the two Houses of Congress representing the State and the people ? If we are open to adopt either one of these construc tions, I say the latter is the safer, it is the more reasonable, it is in conformity with the spirit of our Government and of popular institu tions. I THEN ADOPT THE LATTER CONSTBUO- TION. March 16, 1876. TWO HOUSES DECIDE ALL QUESTIONS AEISING. . Senator Thurman, of Ohio. The Senate and the House stand on an equal footing in respect to the count of the votes. . . . The Houses do THE TWO HOUSES INSPECT RETURNS EACH BY THEIR CHOSEN TELLERS. ot lose their individuality, but each House is jual to the other in the functions that are to 6 performed. ... As the power of decision, ad, in fact, everything but the mere ministerial uty of reading the returns and footing them :>, is reserved to the two Houses, there is no ecessity whatever for constituting a majority f the tellers of one political party or the other. 11 questions that arise for decision must be ecided by the two Houses. The tellers have srtain ministerial functions to perform. They bad the certificates ; and if there is no objec- on then they put down on sheets, which are Iready ruled and prepared for them, the votes, hat being done, when the work is completed, :iey add up the figures and hand the paper to le presiding officer, who declares the result, heir duties being ministerial only.,, . . . Feb. 5, 1875. Senator Henry L. Dawes, of Massachusetts. agree with the Senator that every disputed uestion which can possibly arise upon the apers themselves had better be decided by be two Houses, as Houses, than to be decided y the President of the Senate. March 21, 876. rHO HAVE VOTED THAT THE TWO HOUSES SHOULD COUNT. [II Senators who voted in 1875 for Morton s Bill YEAS Messrs. Allison, Boreman, Bout-well, handler, Clayton, Conovev, Cragin, Dorsey, Ferry f Michigan, Flanagan, Frelinghuysen, Hamilton f Texas, Harvey, Hitchcock, Logan, Mitchell, Mor- .11 of Vermont, Morton, Oglesby, Patterson, Pease, iamsey, Sargent, Sherman, Spencer, Washburn, feat, and Wright 28. Ill Senators who voted in 1876 for Morton s Bill. YEAS Messrs. Allison, Anthony, Booth, Burn- ide, Cameron of Pennsylvania, Cameron of Wis- msin, Christiancy, Dawes, Dorsey, Ferry, Freling- uysen, Hamilton, Hamlin, Hitchcock, Ingalls, ones of Nevada, Key, Logan, McMillan, Merrimon, Litchell, Morrill of Maine, Morton, Oglesby, Pad- ock, Patterson, Sargent, Sherman, Spencer, T hur- lan, Windom, and Wright 32. All who voted for the proposed Ull in 1800 mpoweriny a committee to examine all electoral otes. Those in the Senate voted to give the com- littee decisive powers. YE AS Messrs. Bingham, Chipman, Dayton, Dex- $r, Foster, Goodhue, Greene, Hillhouse, Latimer, iloyd, Paine, Eead, Eoss, Schureman, Tracy, and fells. Those in the House voted (on motion of tar shall) to give the committee qualified owers. YEAS George Baer, Bailey Bartlett, James A. a/ard, Jonathan Brace, John Brown, Christopher G. Champlin, Samuel W. Dana, John Davenport, Franklin Davenport, Thomas T. Davis. John Den nis, George Dent, Joseph Dickson, William Ed- raond, Thomas Evans, Abiel Foster, D wight Fos ter, Jonathan Freeman, Henry Glen, Cliauncuy Goodrich, Elizur Goodrich, "Roger Griswold, William Barry Grove, Robert Goodloe Harper, William II. Hill, Benjamin Huger, James H. Imlay, Henry Lee, Silas Lee, Samuel Lyman, John Marshall, Lewis E. Morriss, Abraham Nott, Eobert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell. John Eeed, John Eutledge, Jr., Samuel Sewall, James Sheafe, William Shepard, Samuel Smith, George Thatcher, John Chew Thomas, Richard Thomas, Joseph B. Varnum, Peleg Wadsworth, Eobert Wain, Lemuel Williams, and Henry Woods. THE TWO HOUSES INSPECT RETURNS EACH BY THEIR CHOSEN TELLERS. Senator Thurman. Now, what are the du ties of these tellers? The President of the Senate takes up a return, opens the envelope, does not read it himself, but hands it to the tellers. For what purpose is it handed to the tellers? First, that they may read it; and having read it, then if no objection is made, the vote of that State is put down in the blanks which have been previously prepared. But it is the duty of the tellers, when they read such returns, to announce to the joint assembly any defects that they may find. We had an exam ple at the last count where the tellers reported that the returns were all in due form except that one of .the seals did not appear to be the great seal of the State. That was a thing which could not appear by mere reading ; it could only appear by inspection, and every member of the Senate and House so assembled to the number of between three hundred and four hundred could not make that personal in spection at the moment. The consequence was that that was a duty which devolved upon the tellers. Now, if you have four, you are more likely to have a careful inspection of the returns than if you have a less number. . . . Then, in the second place, the return having been accepted or not rejected, and the votes being put down, it will be necessary to be careful to see that they are put down in the right column, and when footed up that the footing is correct, and it is more likely to be correct where four perform the duty than where a less number do. Still I do not say that three might not perform it or that two might not perform it ; and I would prefer one from each House rather than two from the House of Representatives and one from the Senate. What I insist upon is the absolute equality of the Senate in the functions that are to be then performed. I therefore insist that the motion I have made ought to be adopted. Feb. 25, 1875. POWER OF THE TWO HOUSES TO GO BEHIND RETURNS AFFIRMED. Senator Trumbull, of Illinois. The prac tice at the first presidential election, which Hi POWER OF THE TWO HOUSES TO GO BEHIND RETURNS AFFIRMED. has been followed from that day to this, was for the two Houses of Congress to exercise some control over this counting of votes. The Senator from Indiana says that the fact that the Houses appointed tellers to count these votes has no significance; they were mere clerks. But it has significance. If this sub ject was entirely under the control of the President of the Senate he would have ap pointed the tellers, if tellers as a matter of con venience were necessary. But at the start each House, before it assembled in joint convention for the purpose of counting these votes or for the purpose of seeing them counted, if you please, took action without consulting the President of the Senate and appointed for themselves these tellers with certain duties to perform. This is inconsistent with the idea that the opening and counting of the vote was to be left exclusively in the hands of the Presi dent of the Senate. Feb. 25, 1875. Senator Logan, of Illinois. Under the Constitution both Houses are required to count the vote. Now, if it requires both Houses to count the vote, it should require both Houses to determine the votes, because the Constitu tion contemplates that both Houses form a con vention for the purpose of determining these questions. That is the meaning of the Con stitution. Feb. 25, 1875. Senator Trumbull, of Illinois. I was called out of the Chamber during a portion of the argument of the Senator from Indiana, but I understood him to say that the control of this whole subject was in the President of the Sen ate. I think there is a conclusive answer to that in the history of the early legislation of the country. I have already adverted to the fact that each House took action on the subject. But they went further. In 1800 a bill passed the Senate of the United States, was con sidered and amended in the House, returned to the Senate, and the Senate concurred in the House amendments with an amendment which was subsequently disagreed to, and the bill failed. But that bill which passed both Houses of Congress by decided majorities, after long debate, participated in by the very men who made the Constitution of the United States, and who were then holding seats in Congress, provided the machinery for disposing of a con tested question in regard to a presidential elec tion. . . . Somebody must decide this question, and where could this decision better be left than with the two Houses of Congress ? The Sena tor from Indiana says that is dangerous ; that under a joint rule which has been adopted one House may reject the vote of a State. That is true but under the other theory the power is left to the single person who happens to be President of the Senate, who may not be the Vice-President of the United States and often is not, for it is not the Yice-President that is to open the certificates, but it is the President of the Senate, whoever he may happen to be ; and since I have had the honor of holding a seat here, the votes for President and Vice- President have twice been opened by the Pres ident of the Senate who was not the Vice- President of the United States. So that the Senate may elect a person who would have this vast power, if it is to be reposed and is reposed by the Constitution of the United States in that officer. The Vice-President need but retire and allow the President of the Senate to be chosen by a partisan majority, if you please, in this body, and that officer can reject or count the votes of States as he may think proper. That would be a more dangerous power than any that is to be anti cipated by allowing the two Houses of Con gress to control the question. I think it is safer that the vote should be counted under the direction of the two Houses of Congress than to leave it to a single person who may happen at the time to be President of the Sen ate ; and I think that is the fair construction of the Constitution. Jan. 14, 1873. Senator Edmunds, of Vermont. The Con stitution requires that the vote of each State shall be opened by the presiding officer, the President of the Senate. When opened the votes are to be counted. The question on which the whole thing turns, to which our legislation is directed, except mere machinery, is, what is a vote of a State ? We all agree that every vote of every State ought to be counted. We all agree that whatever pretends to be a vote, or looks like a vote, but is not & vote, should not be counted. So the thing which we are to provide for by this legislation is a means of ascertaining fairly and truly, according to the Constitution and the law, what is the vote, the will, of each particular State in the choice of a President. . . . The Constitution says, "the votes shall then be counted." What is a vote. The Consti tution does not mean that every paper which a selectman or a justice of the peace may send here shall be counted ; but it says the vote shall be counted. What is a vote ? The vote, under the Constitution and the law, is the law ful and authoritative expression of the elec tors of that State, chosen as the Constitution- and the laws provide. Nothing else is a vote. That is a question which must be decided. Somebody must decide it. If you are to remit a question of that kind to the decision of two separate bodies, each acting independently of the other, where are you to land ? Of course you are forced in that case to one of two alterna tives. You are forced to say, as the present rule does, that nothing shall be considered a vote POWER OF THE TWO HOUSES TO GO BEHIND RETURNS AFFIRMED. liii that the two Houses do not agree is a vote, or you are to say that everything shall be consid ered a vote that the two Houses cannot concur in saying is not a vote ; and there you are. You are at loggerheads at once. Feb. 25, 1875. Senator Eaton, of Connecticut. A certain return comes up ; the seal of the State is upon that return, or a pretended seal of the State, whether stolen or not ; it is there. How do you reconcile these two provisions ? I take it ;hat men are generally made of the same ma terial. I apprehend that if a return came here that I believed was a fraud, that I had no doubt the seal of the State was fraudulent ly placed upon, I would vote against the re ception of that return, and my friend from Indiana would in the same way vote against Sthe other return, and for some good reason. Our feelings of party might have something to do with our judgment, but we would both iendeavor to be honest. ^5. 25, 1875. I Senator Roscoe Conkling, of New York. But jl go further than to maintain the naked power of Congress to inquire. I insist that we can utilize the result of the inquiry, and employ the facts in our action upon counting or refusing to count electoral votes for President or Vice- President. Feb. 7, 1873. Senator Boutwell, of Massachusetts. I think the counting of the votes, in the language of the Constitution, means something more than a mere examination of the certificates returned from the electors of the respective States. There ire several precedents, I think, which go to show that our predecessors have also enter tained that opinion. But it must, in the nature 3? the case, mean something more. Under the first section of this bill the votes are to be counted unless the two Houses concur in the rejection of them. The reason for this, it seems to me, is plain. The presentation of a jingle certificate in the usual form is prima- facie evidence of the truth of what the certifi cate contains, and there being no testimony controverting that prima-facie case, it certain ly ought to stand until it is overruled by the concurrent judgment of the two branches of Congress authorized to pass upon the question. But when two certificates are returned from the same State, it cannot be said that there is a prima-facie case for either of these certifi cates, and with less reason can it ba said that there is a prima-facie case for both of these conflicting certificates, and therefore there is not a prima-facie case for any thing. Two consequences follow from this state of things: First, that the counting of the votes under the Constitution means something more than the mere examination of the paper certifi cate ; otherwise there would be no possible means by which Congress, when there were two certificates returned from a given State, would have the power of ascertaining what the truth is. Hence, in the very nature of the case, there is power under the Constitution, vested in tho two Houses of Congress, if the occasion de mands it, to go behind the certificate and in quire into the facts; and that is a general power lodged in all tribunals and assemblies of men where there is authority to ascertain the truth in regard to an election. Secondly, it follows that neither of these certificates can be accepted and a result deduced from it unless the two Houses concur in accepting that cer tificate ; and from that a third conclusion ne cessarily results, that if, unfortunately, through accident or intrigue or the machinations of persons hostile to the true interests of the country, two returns come in from a given State, and it is not in the power of anybody to demonstrate to the two Houses which is the true return, that State must lose its vote. That is what happens in all cases where the truth cannot be ascertained ; some one suffers as a consequence of that inability, and no scheme that we can devise will rid us of that difficulty. March 13, 1876. Senator Christiancy of Michigan. Still this question of the authenticity of the certificate, though not provided for or apparently thought of by the framers of the Constitution, is actually and necessarily involved in the counting of the votes, which they did provide for, and there fore within every recognized principle of in terpretation must be considered as having been contemplated by them, and yet they have made no express provision for the decision ot the question arising upon such a difference. But is no mode for its decision to be fairly im plied? If the mode of deciding such a difference between the two Houses is implied or fairly inferable from the provision actually made, that implication is as much a part of the Constitu tion as if expressed, and no different mode of deciding the question would be within tho power of Congress. Now, if it be true that under the Constitu tion the counting is to be considered, in legal effect, the act of the two Houses ; and if, as I have suggested, the question of the due authen tication of the certificates of election is neces sarily involved and included in the counting provided for, then, as there is an absence of any express provision for any other mode of de cision, it would seem almost of necessity to follow that the decision upon the authenticity and validity of the certificates should be de cided by the same bodies who make the count ; in other words, by the two Houses, whose act in legal effect the counting is. But if a deci sion by the two Houses, or as claimed by some, the decision by the President of the Senate, is by fair implication from the Constitution the mode of decision intended, then very clearly no other mode can be provided by Congress liv FAILURE OF TWO HOUSES TO CONCUR MUST LOSE STATE ITS VOTE. any more than if the implication claimed had been an express provision of the Constitution. March 16, 1876. FAILUKE OF TWO HOUSES TO CONCUR MUST LOSE STATE ITS VOTE. Senator Thurman, of Ohio. Then something must be done for a case where there are two conflicting returns; and what can you do but to require the two Houses to consider each of those returns, and then determine which of them shall be received ? They can make no deci sion to receive one unless both Houses concur. One House has no superiority over the other. If the two Houses differ, one being in favor of one return and the other in favor of the other, and are inflexible, of course there can be no decision; but when there are two or more re turns from a State, of necessity there must be a concurrence of the two Houses in order to receive one of them. Just as an equally-di vided court can make no decision, in the same way, where there are two returns, it has to decide between them which is the true return, who were the true electors of that State, as appears by the certificates that have been made. Feb. 25, 1875. Senator Thurman, of Ohio. "When there is but one return from a State, sufficient respect ought to be paid to that return that it should not be rejected unless both Houses unite in the opinion that it should be rejected. Feb. 25, 1875. we cannot safely provide for, perhaps, as the Constitution stands. March 22, 1876. Senator Boutwell, of Massachusetts. If two returns come in from a given State, and it is not in the power of anybody to demonstrate to the two Houses which is the true return, that State must lose its vote. That is what happens in all cases where the truth cannot be ascertained ; some one suffers as a consequence of that inability, and no scheme that we can devise will rid us of that difficulty. March 13, 1876. Senator Wright, of Iowa. I think the two Houses ought to count the vote, and if they are unable to agree where there are two re turns, then, if it occurs that the vote of the State is lost, it results after the most faithful, deliberate, and conscientious action, as I am bound to suppose, on the part of the two bodies. If, then, they are unable to agree, we have a case that is not provided for, and that Mr. Whyte, of Maryland. I want to ask the Senator from Indiana if he does not really, under the second section of this bill, in a cer tain contingency, do the very thing which he now objects to doing ; that is to say, upon a certain contingency throw the election into the House of Representatives? Take this case, and it is a mathematical calculation : It takes 185 votes to elect a President of the United States in the present college, counting Colorado. Suppose there are three candidates at the elec tion. The Republican candidate gets 177 un disputed votes, and the independent candidate 24 undisputed votes, which he could do by getting Illinois and Nevada, and Nebraska. Suppose the Democratic candidate gets 160 un disputed votes, leaving eight votes, the votes of Louisiana, to determine whether the Republi can candidate was elected or not. Suppose that in Louisiana there is a contested election of great violence. The independent candidate is supposed by one party to be elected; the Republican candidate is supposed by the other party to be elected ; the Republican electors get a certificate from Governor Kellogg of their election, cast their vote for the Republi can candidate, and that return comes to the President of the Senate. Suppose the electors on the independent ticket meet as a college, cast their votes for the Independent candidate, certify under the Constitution, if there is no provision for the executive authentication of their election, that they have voted for the in dependent candidate. Those returns are opened by the President of the Senate. The House honestly believe that the independent electors were elected in Louisiana. The Republicans in the Senate believe that the Republican can didates were elected. They separate. The House stands by the independent organization, the Senate stands by the Republican election, thus defeating the election of President, and throwing it into the House of Representatives, under the second section of the bill. Mr. Morton. / think the precise contingency mentioned by the Senator from Maryland may happen either ly the vote of a State being lost, the two Houses not being able to decide, or by being cast in favor of an independent candi date; but that is the precise contingency which the Constitution has provided for, when it de clares that unless some one person shall have a majority of all the electors appointed the House shall immediately proceed to elect by States. March 24, 1876. FIRST PRESIDENTIAL TERM. 1789-1793. GEORGE WASHINGTON, President; JOHN ADAMS, Vic 3- President. IN SENATE. Monday, April 6, 1789. Annals of Congress," 1st Cong., Vol. I., pp. 16-18.) THE credentials of the members present being ad and ordered to be filed, the Senate pro- eded, by ballot, to the choice of a President, the sole purpose of opening and counting votes for President of the United States. John Langdon was elected. Ordered, That Mr. Ellsworth inform the ouse of Representatives that a quorum of the nate is formed ; that a President is elected r the sole purpose of opening the certificates, d counting the votes of the electors of the veral States in the choice of a President and ice-President of the United States ; and that e Senate is now ready, in the Senate Oham- r, to proceed, in the presence of the House, discharge that duty; and that the Senate ve appointed one of their members to sit the Clerk s table to make a list of the votes they shall be declared; submitting it to the isdom of the House to appoint one or more their members for the like purpose. Mr. Ellsworth reported that he had deliv- ed the message; and Mr. Boudinot, from the ouse of Representatives, informed the Senate at the House is ready forthwith to meet em, to attend the opening and counting of votes of the electors of t^e President and ice-President of the United States. The Speaker and the members of the House Representatives attended in the Senate hamber ; and the President elected for the cirpose of counting the votes declared that Senate and House of Representatives had et, and that he, in their presence, had opened id counted the votes of the electors for Presi- and Vice-President of the United States, hich were as follows : 1 STATES. Geo. Washington, Esq. John Adams, Esq. | 1 | "i a ~ J " Z t 4 -S John Hancock, Esq. Kobert 11. Harrison, Esq. George Clinton, Esq. John Kutledge, Esq. 1 d J3 g* w | S a r; Edward Telluir, Esq. Benjamin Lincoln, Esq. g 5 10 10 5 > l g 10 8 2 8 8 6 6 Virginia . 10 R 1 1 B South Carolina Georgia 7 D 1 a i i i Total 89 34 2 9 4 6 B 8 _> 1 i i Whereby it appeared that George Washing ton, Esq., was elected President, and John Adams, Esq., Vice-President of the United States of America. Mr. Madison, from the Honse of Representa-* tives, thus addressed the Senate : Mr. President : I am directed by the House of Representatives to inform the Senate, that the House have agreed that the notifications of the election of the President and of the Vice-President of the United States should be made by such persons, and in such manner, as the Senate shall be pleased to direct. And he withdrew. Whereupon, the Senate appointed Charles Thompson, Esq., to notify George Washing ton, Esq., of his election to the office of Presi dent of the United States of America, and Mr. Sylvanus Bourne to notify John Adams, Esq., of his election to the office of Vice-President of the said United States. FIRST PRESIDENTIAL TERM. IN HOUSE OF REPRESENTATIVES. Monday, April 6 4 1789. "Annals of Congress," 1st Cong., Vol. I., pp. 97, 98.) A message from the Senate, by Mr. Ells worth. Mr. Speaker, I am charged by the Senate to inform this House, that a quorum of the Senate is now formed ; that a president is elected for the sole purpose of opening the certificates and counting the votes of the elec tors of the several States, in a choice of a Presi dent and Vice-President of the United States ; and that the Senate is now ready in the Sen ate Chamber, to proceed, in the presence of this House, to discharge that duty. I have it also in further charge to inform this House that the Senate has appointed one of its mem bers to sit at the Clerk s table to make a list of the votes as they shall be declared, submit ting it to the wisdom of this House to appoint one or more of its members for the like pur pose. On motion, Resolved, That Mr. Speaker, attended by the House, do now withdraw to the Senate Cham ber, for the purpose expressed in the message from the Senate ; and that Mr. Parker and Mr. Heister be appointed, on the part of this House, to sit at the Clerk s table with the members of the Senate, and make a list of the votes as the same shall be declared. Mr. Speaker accordingly left the chair, and. attended by the House, withdrew to the Sen ate Chamber, and after some time returned to the House. Mr. Speaker resumed the chair. Mr. Parker and Mr. Heister then delivered in at the Clerk s table a list of the votes of the electors of the several States in the choice of a President and Vice-President of the United States, as the same were declared by the President of the Senate, in the presence of the Senate and of this House, which was ordered to be entered on the Journal. On motion, Ordered, That a message be sent to the Sen ate, to inform them that it is the desire of this House that the notifications of the election of the President and Vice-President of the United States should be made by such persons, and in such manner, as the Senate shall be pleased to direct; and that Mr. Madison do communicate I the said message. SECOND PRESIDENTIAL TEEM. 1793-1797. GEORGE WASHINGTON, President; JOHN ADAMS, Vice-President. IN SENATE. Tuesday, February 5, 1793. ( ; Annals of Congress," 2d Cong., page 639.) A message from the House of Represent atives informed the Senate that the House of Representatives have resolved that a commit tee be appointed to join such committee as may be appointed by the Senate to ascertain and report a mode of examining the votes for President and Vice-President, and of notifying the persons who shall be elected of their elec tion; and for regulating the time, place, and manner of administering the oath of office to the President, and have appointed a committee on their part. This resolution of the House was read. Ordered, That the consideration thereof be postponed until to-morrow. IN SENATE, Wednesday, February 6, 1793. (" Annals of Congress," 1st Cong., pp. 640, 641.) The Senate proceeded to consider the reso lution of the House of Representatives that a committee be appointed to join such commit tee as may be appointed by the Senate to as certain and report a mode of -examining the votes for President and Vice-President, and of notifying the persons who shall be elected of their election, and for regulating the time, place, and manner of administering the oath of office to the President. Resolved, That the Senate concur in this reso lution, and that Messrs. King, Izard, and Strong be the committee on the part of the Senate. IN SENATE. Monday, February 11, 1793. ("Annals of Congress," 2d Cong., p. 644.) Mr. King, from the Joint Committee ap pointed the 6th February instant, reported that the two Houses shall assemble in the Sen ate Chamber on "Wednesday next at twelve o clock ; that one person be appointed a teller on the part of the Senate to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Sen ate, who shall announce the state of the vote and the persons elected to the two Houses as- GEORGE WASHINGTON, PRESIDENT. sembled as aforesaid ; which shall be deemed a declaration of the persons elected President and Vice-President, and together with a list of the votes be entered on the journals of the two Houses. And the report was agreed to. IN SENATE. Tuesday, February 12. ( u Annals of Congress," 2d Cong., pp. 644, 645.) A message from the House of Representa tives informed the Senate that the House of Representatives agree to the report of the joint committee appointed the 6th of February in stant respecting the manner of counting the votes for President and Vice-President of the United States. Ordered, That Mr. King be appointed on the part of the Senate a teller of the votes for President and Vice-President of the United States, conformably to the report of the joint committee agreed to the llth inst. IN SENATE. Wednesday, February 13, 1T93. (" Annals of Congress," 2d Cong., pp. 645, 646.) Ordered, That the Secretary notify the House of Representatives that the Senate are ready to meet them in the Senate Chamber to attend the opening and counting the vote for Presi dent and Vice-President of the United States as the Constitution provides. The two Houses having accordingly assem bled, the certificates of the electors of the fif teen States in the Union, which came by ex press, were by the Vice-President opened, read, and delivered to the tellers appointed for the purpose, who, having examined and ascertained the votes, presented a list of them to the Vice- President, which list was read to the two Houses, and is as follows : For GEORGE WASHINGTON. New Hampshire 6 Massachusetts 16 Rhode Island 4 Connecticut 9 Vermont 3 New York 12 New Jersey 7 Pennsylvania 15 Delaware 3 Mary I and 8 Virginia 21 Kentucky 4 North Carolina 12 South Carolina 8 Georgia 4 132 For JOHN ADAMS. New Hampshire 6 Massachusetts 16 Rhode Island 4 Connecticut 9 Vermont 3 New Jersey 7 Pennsylvania 14 Delaware 3 Maryland 8 South Carolina 7 77 For GEORGE CLINTON. New York 12 Pennsylvania 1 Virginia , 21 North Carolina 12 Georgia 4 50 For THOMAS JEFFERSON. Kentucky 4 For AARON BURR. South Carolina 1 Whereupon the Vice-President declared George Washington unanimously elected Presi dent of the United States for the period of four years, to commence with the fourth day of March next, and John Adams elected, by a plurality of votes, Vice-President of the United States for the same period, to commence with the 4th day of March. After which the Vice-President delivered the duplicate certificates of the electors of the several States received by post, together with those which came by express, to the Secretary of the Senate. The two Houses then separated and the Senate adjourned. IN SENATE. Thursday, February 14, 1793. ("Annals of Congress," 2d Cong., p. 647.) Mr. King, from the committee appointed the 6th instant, to join the committee on the part of the House of Representatives to report a mode of notifying the person who should be elected President of the United States of his election, submitted the following resolve : Resolved, That a committee be appointed to join such committee as shall be appointed by the House of Representatives, to wait on the President and notify him of his unanimous re election to the office of President of the United States. And the report was adopted. Ordered, That Messrs. King, Izard, and Strong be the committee on the part of the Senate. A message from the House of Representa tives informed the Senate that the House of Representatives have adopted the report of the joint committee appointed the 6th in stant, to ascertain and report a mode of ex amining the votes for President and Vice- President of the United States, and for other purposes, and have appointed a joint com mittee on their part to wait on the President and notify him of his unanimous reelection to the office of President of the United States. SECOND PRESIDENTIAL TERM. IN HOUSE OF EEPKESENTATIVES. Tuesday, February 5, 1793. ("Annals of Congress," 2d Cong., p. 861.) Resolved, That a committee be appointed to join such committee as may be appointed by the Senate, to ascertain and report the mode of examining the votes for President and Vice- President, and of notifying the persons who shall be elected of their election, and to regu late the time, place and manner of administer ing the oath of office to the President. Ordered, That Mr. William Smith, Mr. Madi son, and Mr. Lawrance be of said committee on the part of this House. Ix HOUSE OF EEPKESENTATIVES. Monday, Felruary 11, 1793. ("Annals of Congress," 2d Cong., p. 873.) Mr. William Smith, from the committee appointed on the part of the House jointly with a committee appointed on the part of the Senate to ascertain and report a mode of examining the votes for President and Vice- President of the United States, and for- other purposes expressed in the resolution of the fifth instant, made a report, which was twice read and agreed to by the House, as follows : That the two Houses shall assemble in the Senate Chamber on Wednesday next at twelve o clock. That two persons be appointed tell ers on the part of this House to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote and the person elected, to both Houses assembled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President, and together with a list of the votes be entered on the Journal of the two Houses. Ordered, That Mr. William Smith and Mr. Lawrance be appointed tellers on the part of the House pursuant to said report. IN HOUSE OF EEPEESEXTATIVES. Tuesday, February 12, 1793. ("Annals of Congress," 2d Cong., p. 873.) A message from the Senate informed the House that the Senate have agreed to the re port of the joint committee appointed to as certain and report a mode of examining the votes for President and Vice-President of the United States and for the other purposes ex pressed in the resolution of the fifth instant, and have appointed a teller on their part pur suant to said report. IN HOUSE OF EEPKESEXTATIVES. Wednesday, February 13, 1793. (" Annals of Congress," 2d Cong.," pp. 874, 875.) A message from the Senate informed the House that a President of the Senate is elected for the sole purpose of opening the certificates and counting the votes of the several States in the choice of a President and Vice-Presi dent of the United States ; and that the Senate is now ready in the Senate Chamber to attend with this House on that occasion. Resolved, That the Speaker attended by the House do now withdraw to the Senate Chamber for the purpose expressed in the said message. The Speaker accordingly left the chair, and attended by the House withdrew to the Senate Chamber, and after some time returned to the House. The Speaker resumed the chair. Mr. Wil liam Smith and Mr. Lawrance then delivered in, at the Clerk s table, a list of the votes of the electors of the several States in the choice of a President and Vice-President of the Unit ed States as the same were declared by the President of the Senate, in the presence of the Senate and of this House ; which was ordered to be entered on the Journal and is as follows : For GEOEGE WASHINGTON. New Hampshire 6 Massachusetts 16 Rhode Island 4 Connecticut 9 Vermont 3 New Jork 12 New Jersey 7 Pennsylvania 15 Delaware 3 Maryland 8 Virginia 21 Kentucky 4 North Carolina 12 South Carolina 8 Georgia .. 4 182 For JOHN ADAMS. New Hampshire 6 Massachusetts 16 Rhode Island 4 Connecticut 9 Vermont 3 New Jersey . 7 Pennsylvania 14 Delaware 3 Maryland 8 South Carolina 7 77 For GEORGE CLINTON. New York 12 Pennsylvania 1 Virginia 21 North Carolina 12 Georgia 4 50 For THOMAS JEFFERSON. Kentucky 4 For AAEON BUEB. South Carolina 1 GEORGE WASHINGTON", PRESIDENT. IN HOUSE OF REPKESENTATIVES. Thursday, February 14, 1793. (" Annals of Congress," 2d Cong., pp. 875, 876.) A message from the Senate informed the House .... that the Senate have agreed to a resolution for the appointment of a commit tee, jointly, with a committee on the part of this House, to wait on the President, and to notify him of his unanimous reelection to the office of President of the United States. Mr. William Smith, from the committee ap pointed to join such committee as may be ap pointed on the part of the Senate, to ascertain and report the mode of examining the votes for President and Vice-President of the United States, and for other purposes ex pressed in the resolution of the 5th instant, made a report, which was twice read, and agreed to by the House as follows: Resolved, That a committee bo appointed to join such committee as may be appointed by the Senate to wait on the President and to notify him of his unanimous reelection to the office of President of the United States. Ordered, That Mr. William Smith, Mr. Madi son, and Mr. Lawrance be of the said commit tee on the part of this House. THIRD PRESIDENTIAL. TEEM. 1797-1801. JOHX ADAMS, President / THOMAS JEFFERSON, Vice- President. IN SENATE, Monday, January 30, 1797. ("Annals of Congress," 4th Cong., 2d Session, p. 1538.) On motion that a committee be appointed to join such committee as may be appointed by the House of Representatives to ascertain and report a mode for examining the votes for President and Vice-President, and of notify ing the persons elected of their election, and for regulating the time, place, and manner qf administering the oath of office to the Presi dent : It was agreed that the motion lie until to morrow. IN SENATE. Tuesday, January 31, 1797. ("Annals of Congress," 4th Cong., 2d Session, p. 1536.) The Senate resumed the consideration of the motion made yesterday respecting the mode of counting the votes for President and Vice-President of the United States ; where upon, Resolved, That Messrs. Sedgwick, Lawrance, and Read be a joint committee on the part of the Senate, with such committee as may be appointed by the House of Representatives, to ascertain and report a mode of examining the votes for President and Vice-President, and of notifying the persons elected of their election, and for regulating the time, place, and manner of administering the oath of office to the Presi dent. IN SENATE. Thursday, February 2, 1797. (" Annals of Congress," 4th Cong., 2d Session, pp. 1538, 1539.) Mr. Sedgwick reported, from the joint committee appointed on the part of the Sen ate, on the subject of the election of Presi dent and Vice-President, that, in their opin ion, the following resolution ought to be adopted, viz. : " that the two Houses shall assemble in the Chamber of the House of Rep resentatives on Wednesday next, at twelve o clock ; that one person be appointed a teller on the part of the Senate, to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, and the persons elected, to the two Houses assembled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President, and together with a list of votes, be entered on the journals of the two Houses." On motion it was agreed to adopt the report, and that Mr. Sedgwick be the teller of the votes on the part of the Senate. IN SENATE. Friday, February 3, 1797. (" Annals of Congress," 4th Cong., 2d Session, p. 1540.) A message from the House of Representa tives informed the Senate that they have agreed to the report of the joint committee upon the mode of examining the votes for President and Vice-President of the United States, and have appointed tellers of the votes on their part. THIRD PRESIDENTIAL TERM. IN SENATE. Wednesday, February 8, 1797. ( 4 * Annals of Congress," 4th Cong., 2d Session, pp. 1542-1545.) A message from the House of Representa tives informed the Senate that they are ready to meet the Senate in the Chamber of that House, agreeably to the report of the joint committee, to attend the opening and exam ining the votes of the electors for President and Vice-President of the United States, as the Constitution provides. The two Houses of Congress accordingly assembled in the Representatives Chamber, and the certificates of the electors of sixteen States were, by the Vice-President, opened and delivered to the tellers appointed for the purpose, who, having examined and ascer tained the number of votes, presented a list thereof to the Vice-President, which was read, as follows : For JOHN ADAMS. North Carolina 1 Virginia 1 Maryland 7 Delaware - 3 Pennsylvania 1 New Jersey 7 New York 12 Connecticut 9 Rhode Island 4 Massachusetts 16 Vermont : 4 New Hampshire 6 71 For THOMAS JEFFERSON. Tennessee 3 Kentucky 4 Georgia 4 South Carolina 8 North Carolina 11 Virginia 20 Maryland 4 Pennsylvania 14 68 For THOMAS PINCKNET. South Carolina . 8 North Carolina 1 Virginia 1 Maryland 4 Delaware 3 Pennsylvania 2 New Jersey 7 New York 12 Connecticut 4 Massachusetts 13 Vermont . 4 59 For AAEON BURE. Tennessee 3 Kentucky 4 North Carolina 6 Virginia 1 Maryland 3 Pennsylvania 13 30 For SAMUEL ADAMS. Virginia 15 For OLIVER ELLSWOETH. Rhode Island 4 Massachusetts ; 1 New Hampshire 6 11 For SAMUEL JOHNSTON. Massachusetts 2 For JAMES IREDELL. North Carolina. For JOHN JAY. Connecticut ................................... 5 For GEORGE CLINTON. Georgia ............ . 4 Virginia ....................................... 3 For GEORGE WASHINGTON. North Carolina. Virginia For CHARLES COTESWOETH PINCKNET. North Carolina... 1 Maryland For JOHN HENRY. Whereupon, the Vice-President addressed the two Houses of Congress, as follows : In obedience to the Constitution and law of the United States, and to the commands of both Houses of Congress, expressed in their resolution passed in the present session, I now declare that : John Adams is elected President of the Unit ed States, for four years, to commence with the fourth day of March next ; and that : Thomas Jefferson is elected Vice-President of the United States, for four years, to com mence with the fourth day of March next. And may the Sovereign of the Universe, the ordainer of civil government on earth, for the preservation of liberty, justice, and peace, among men, enable both to discharge the du ties of these offices conformably to the Con stitution of the United States, with conscien tious diligence, punctuality, and perseverance. The Vice-President then delivered the votes of the electors to the Secretary of the Senate, the two Houses of Congress separated, and the Senate returned to their own Chamber, and soon after adjourned. Ix SENATE. Thursday, February 9, 1797. (" Annals of Congress," 4th Cong., 2d Session, pp. 1544,1545.) The Vice-President laid before the Senate the following communication : Gentlemen of the Senate : In consequence of the declaration made yesterday in the Cham ber of the House of Representatives of the election of a President and Vice-President of the United States, the record of which has JOHN ADAMS, PRESIDENT. just now been read from your Journal by your Secretary, I have judged it proper to give no tice that, on the 4th of March next, at 12 o clock, I propose to attend again the Cham ber of the House of Representatives, in order to take the oath prescribed by the Constitu tion of the United States to be taken by the President, to be administered by the Chief Justice or such other Judge of the Supreme Court of the United States as can most con veniently attend ; and, in case none of those Judges can attend, by the Judge of the Dis trict of Pennsylvania, before such Senators and Representatives of the United States as may find it convenient to honor the transac tion with their presence. Ordered, That the Secretary carry an at tested copy of this communication to the House of Representatives. A message from the House of Representa tives informed the Senate that they have agreed to the report of the joint committee appointed to ascertain and report a mode of examining the votes for President and Vice- President of the United States, and of notify ing the persons elected of their election. Mr. Sedgwick, from the joint committee to whom it was referred to join such committee as might be appointed by the House of Repre- ssntatives to ascertain and report a mode of examining the votes for President and Vice- President of the United States, and of notify ing the persons elected of their election, re ported that, having further concurred with the committee appointed by the House of Repre sentatives, that, in their opinion, the following resolution ought to be adopted by the Senate : " Resolved, That the Secretary of the Sen ate be directed to give, by letter, to the Vice- President elect, a notification of his election." On motion, it was agreed to insert President of the Senate instead of the Secretary ; and On motion, it was agreed to reconsider the resolution, and to recommit the report from the joint committee. Mr. Sedgwick reported, from the joint com mittee last mentioned, that the committee on the part of the House of Representatives con sidered themselves discharged from their com mission. Resolved, That the Senate disagree to the re port of the joint committee on the mode of noti fying the Vice-President elect of his election ; and that a committee be appointed on the part of the Senate, to confer with sucji committee as may be appointed on the part of the House of Representatives, on the report of the joint committee above mentioned ; and that Messrs. Sedgwick, Lawrance, and Read be the man agers at the conference on the part of the Senate. Ordered, That the Secretary acquaint the House of Representatives therewith. On motion, that it be " Resolved, That the Secretary of the Senate be directed, and he is hereby directed, to lay before the President of the United States a copy of the Journal of yesterday, relative to the opening and counting the votes for Presi dent and Vice-President of the United States, and the declaration of the President of the Senate thereon; and, also, to present to the President of the United States a copy of the notification given by the President-elect of the time, place, and manner of qualifying to exe cute the duties of his office." Ordered, That the motion lie until to-morrow for consideration. A message from the House of Representa tives informed the Senate that they have re scinded their resolution on the report of the joint committee on the mode of notifying the Vice-President elect of his election, and have agreed to the conference proposed by the Sen ate on the subject, and have appointed man agers at the same on their part. Ix SENATE. Friday, February 10, 1797. ("Annals of Congress," 4th Comr., 2J Session, pp. 1546, 1547.) The Senate resumed the consideration of the motion made yesterday, that the Secretary of the Senate wait on the President of the United States, and notify him of the election of Presi dent and Vice-President of the United States, to commence with the 4th day of March next. On motion, to insert "a committee " in place of "the Secretary," it passed in the negative. And the motion being amended, was adopted as follows : Ordered, That the Secretary of the Senate lay before the President of the United States a copy of the Journal of the 8th instant, rela tive to the opening and counting the votes for President and Vice-President of the United States, and the declaration of the President of the Senate consequent thereon; and, also, a copy of the notification given by the President elect of the time, place, and manner of quali fying to execute the duties of his office. A message from the House of Representa tives informed the Senate that they agree to the report of the joint committee appointed by the two Houses to confer on a proper mode of notifying the Vice-President elect of his election. Mr. Sedgwick, from the committee of con ference above mentioned, reported that the following resolution should be adopted by the House of Representatives : " Resolved, That the notification of the elec tion of the Vice-President elect be made by such person and in such manner as the Senate may direct." On motion, that it be " Resolved, That the President of the United States be requested to communicate (in such manner as he shall judge most proper) to the person elected Vice-President of the United 8 THIRD PRESIDENTIAL TERM. States, for the term of four years, to commence 4th day of March next, information of his said election." It passed in the negative. Ordered, That the resolution this day agreed to by the House of Representatives, relative to the notification of the election of the Vice- President elect, be referred to Messrs. Mason, Hillhouse, and Sedgwick, to consider and re port thereon to the Senate. Mr. Mason reported from the committee last appointed; and, the report being read, was amended and adopted as follows : Resolved, That the President of the United States be requested to cause to be transmitted to Thomas Jefferson, Esq., of Virginia, Vice- President elect of the United States, notifica tion of his election to that office ; and that the President of the Senate do make out and sign a certificate in the words following: "Be it known, that the Senate and House of Representatives of the United States of America, being convened in the city of Phila delphia, on the second Wednesday of February, in the year of our Lord one thousand seven hundred and ninety-seven, the underwritten Vice-President of the United States and Presi dent of the Senate did, in the presence of the said Senate and House of Representatives, open all the certificates and count all the votes of the electors for a President and for a Vice- President ; by which it appears that Thomas Jefferson, Esq., was duly elected, agreeably to the Constitution, Vice-President of the United States of America. "In witness whereof, I have hereunto set my hand and seal, this 10th day of February, 1797. Ordered, That the Secretary lay this resolu tion before the President of the United States. Ix HOUSE OF REPEESEXTATIVES. Tuesday, January 31, 1797. ("Annals of Congress," 4th Cono- 2d Session, p. 2031.) A message was received from the Senate, informing the House that they had appointed a joint committee, viz., Messrs. Sedgwick, Law- ranee, and Read, to act in conjunction with a committee to be appointed by the House of Rep resentatives, to ascertain and fix the mode of examining the votes of the electors for Presi dent and Vice-President of the United States, etc.^ and to regulate the time and manner of administering the oaths of office to the Presi dent and Vice-President of the United States. Ix HOUSE OF REPRESENTATIVES. Wednesday, February 1, 1797. (" Annals of Congress," 4th Cong., 2d Session, p. 2057.) The resolution received from the Senate yesterday relative to the appointment of a committee to ascertain the election of Presi dent and Vice-President, and to appoint a time and place for administering the oath of office to the President, was taken up, read a second time, and a committee of three mem bers, viz., Mr. Sitgreaves, Mr. Jeremiah Smith, and Mr. Parker, were appointed ac cordingly, to act in conjunction with the com mittee appointed by the Senate. Ix HOUSE OF REPEESEXTATIVES. Thursday, February 2, 1797. ("Annals of Congress," 4th Cong., 2d Session, p. 2060.) A message was received from the Senate informing the House that, conformable to rule, they had appointed Mr. Sedgwick on their part, teller of the votes for President and Vice-President. Ix HOUSE OF REPEESEXTATIVES. Friday, February 3, 1797. (" Annals of Congress," 4th Cong., 2d Session, pp. 2063, 2064.) Mr, Sitgreaves from the committee appointed on the part of this House, jointly with a com mittee appointed on the parfc of the Senate, to ascertain and report a mode of examining the votes for President and Vice-President, and of notifying the persons elected of their election, and to regulate the time, place, and manner of administering the oath of office to the Presi dent, made a report, in part, which he de livered in at the Clerk s table, where the same was twice read, and agreed to by the House, as follows : " That the two Houses shall assemble in the Chamber of the House of Representatives on Wednesday next at 12 o clock. That two persons be appointed tellers, on the part of this House, to make a list of the votes as they shall be de clared : That the result shall be delivered to the President of the Senate, who shall an nounce the state of the vote, and the persons elected, to the two Houses assembled as afore said ; which shall be deemed a declaration of the persons elected President and Vice-Presi dent ; and, together with a list of the votes, bo entered on the Journals of the two Houses." Resolved, That Mr. Sitgreaves and Mr. Par ker be appointed tellers on. the part of this House, pursuant to the said report. Ix HOUSE OF REPEESEXTATIVES. Wednesday, February 8, 1797. (" Annals of Congress," 4th Cong., 2d Session, pp. 2095-2099.) The Speaker informed the House that the hour was come at which they had appointed to meet the Senate for the purpose of count ing the votes for and declaring the election of a President and Vice-President of the United JOHX ADAMS, PRESIDENT. 9 States, and that the Clerk would inform the Senate they were ready to receive them. The Clerk accordingly waited upon the Senate, and the President and members of the Senate soon after entered and took their seats, the President on the right hand of the Speaker of the House of Representatives, and the mem bers of the Senate on the same side of the Chamber, when the President of the Senate (Mr. Adams) thus addressed the two Houses. Gentlemen of the Senate and of the House of Representatives: The purpose for which we are assembled is expressed in the following resolutions, (Mr. Adams here read the reso lutions which had been adopted by the two Houses relative to the subject.) I have re ceived packets containing the certificates of the votes of the electors for a President and Vice-President of the United States from all the sixteen States of the Union. I have also received duplicates of the returns by post from iifteen of the States. No duplicate from the State of Kentucky is yet come to hand. It has been the practice heretofore, on simi lar occasions, to begin with the returns from the State at one end of the United States and to proceed to the other ; I shall therefore do the same at this time. Mr. Adams then took the packet from the State of Tennessee, and after having read the superscription, broke the seal and read the certificate of the election of the electors. He then gave it to the Clerk of the Senate, request ing him to read the report of the electors, which he accordingly did. All the papers were then handed to the tellers, viz., Mr. Sedgwick, on the part of the Senate, and Messrs. Sitgreaves and Parker, on the part of the House of Representatives ; and when they had noted the contents, the President of the Senate proceeded with the other States in the following order : For JOHN ADAMS. North Carolina 1 Virginia 1 Maryland 7 Delaware 3 Pennsylvania 1 New jersey 7 New York 12 Connecticut 9 Rhode Island 4 Massachusetts 16 Vermont 4 New Hampshire 6 71 For THOMAS JEFFERSON. Tennessee 3 Kentucky 4 Georgia 4 South Carolina 8 North Carolina 11 Virginia , 20 Maryland 4 Pennsylvania 14 68 For GEORGE WASHINGTON. North Carolina 2 Virginia 1 1 For THOMAS PINCKNEY. South Carolina 8 North Carolina 1 Virginia 1 Maryland 4 Delaware 3 Pennsylvania 2 New Jersey 7 New York ..., 12 Connecticut 4 Massachusetts 13 Vermont 4 59 For AARON 13uRR. Tennessee . 3 Kentucky 4 North Carolina 6 Virginia 1 Maryland 3 Pennsylvania 13 30 For SAMUEL ADAMS. Virginia 15 For OLIVER ELLSWORTH. Khode Island 4 Massachusetts 1 New Hampshire ? 11 For SAMUEL JOHNSTON. Massachusetts. For JAMES IREDELL. North Carolina. For JOHN JAY. Connecticut. For GEORGE CLINTON. Georgia. , Virginia. For CHARLES COTESWORTII PINCKNEY. North Carolina 1 For JOHN HENRY. Maryland 2 All the returns having been gone through, Mr. Sedgwick reported that, according to order, the tellers appointed by th two Houses had performed the business assigned them, and re ported the result to be as above stated. The President of the Senate then thus ad dressed the two Houses: Gentlemen of the Senate, and of the House of Representatives : By the report which has been made to me by the tellers appointed by the t\vo Houses to examine the votes, there are 71 votes for John Adams, 68 for Thomas Jefferson, 59 for Thomas Pinckney, 30 for Aaron Burr, 15 for Samuel Adams, 11 for Oliver Ellsworth, 7 for George Clinton, 5 for John Jay, 3 for James Iredell, 2 for George Washington, 2 for John Henry, 2 for Samuel Johnston, and 1 for Charles C. Pincknev. The whole number of votes are 10 THIRD PRESIDENTIAL TERM. 138; 70 votes, therefore, make a majority; so that the person who has 71 votes, which is the highest number, is elected President, and the person who has 68 votes, which is the next highest number, is elected Vice-President. The President of the Senate then sat down for a moment, and rising again, thus addressed the two Houses: In obedience to the Constitu tion and law of the United States, and to the commands of both Houses of Congress, ex pressed in their resolution passed in the present session, I declare that : John Adams is elected President of the United States, for four years, to commence with the fourth day of March next, and that : Thomas Jefferson is elected Vice- President of the United States, for four years, to commence with the fourth day of March next. And may the Sovereign of the Universe, the ordainer of civil government on -earth, for the preservation of liberty, justice, and peace among men, enable both to discharge the duties of these offices conformably to the Constitution of the United States, with conscientious dili gence, punctuality, and perseverance. The President and members of the Senate then retired, and the House came to order; when Mr. Sitgreaves made a report on the business, which was read and ordered to be entered on the Journals. IN TIorsE OF REPKESENTATIVES. Thursday, February 9, 1797. (Annals of Congress, 4th. Cong., 2d Session, pp. 2098 2099.) Mr. Sitgreaves, from the joint committee appointed to confer with a committee of the Senate on the subject of the election of a President and Vice-President, made a further report, viz. : that they had agreed with the committee of the Senate to recommend to the House of Representatives the following resolu tion: "Resolved: That the Clerk of this House be directed to give, by letter, to the Vice-Presi dent elect, a notification of his election." This resolution was agreed to ; but some time afterward, Mr. Parker (one of the committee) wished it to be rescinded, as he understood, though the committee from the Senate had concurred in this mode of notifying the Vice- President of his election, the Senate would not agree to it, but wished to follow the mode adopted on a former occasion, viz. : a message was sent from the House of Representatives to the Senate, directirg that the persons elected should be notified in such a manner as they should direct. He wished, therefore, to prevent delay, the resolution might be rescinded and a different one agreed to. This motion occa sioned a good deal of conversation. Is was observed by the Speaker that the resolution was already before the Senate (where it seemed it was not intended to be sent, as it was a dis tinct resolution of that House, a similar one to which was proposed for the adoption of the Senate by the joint committee). It was at length, however, agreed to be rescinded. Im mediately after which a message was received from the Senate, informing the House that they had disagreed to the resolution, and appointed a committee of conference. The House accord ingly took up the message,- and also agreed to appoint a committee of conference. FOUETH PEESIDENTIAL TEEM. 1801-1805. THOMAS JEFFEESOX, President; AAEON BUER, Vice-President. Ix SENATE. Friday , January 23, 1801. (" Annals of Congress," 6th Cong., p. V35.) A message from the House of Representa tives informed the Senate that the House had passed a resolution for the appointment of a committee on their part, with such as may be appointed on the part of the Senate, to as certain and report a mode of examining the votes for President and Vice-President, and of notifying the persons who shall be elected of their election ; and to regulate the time, place, and manner of administering the oath of office to the President ; in which they de sire the concurrence of the Senate. The message was read and ordered to lie on the table. IN SENATE. Thursday, January 27, 1801. ("Annals of Congress," 6th Cong., p. 786.) The Senate took into consideration the reso lution of the House of Representatives of the 23d inst., for the appointment of a joint com mittee to ascertain and report a mode of ex amining the votes for President and Vice- President of the United States ; and Resolved, That they do concur therein, and that Messrs. Morris, Tracy, and Bingham be the committee on the part of the Senate. TPIOMAS JEFFERSOX, PRESIDENT. 11 Is SENATE. Monday, February 9, 1801. ("Annals of Congress," 6th Cong., p. 742.) Mr. Morris, from the joint committee, ap pointed the 27th of January last to ascertain and report the mode of examining the votes for President and Vice-President of the United States, reported that the committee could come to no agreement. On motion, it was Resolved, That the Senate will be ready to receive the House of Eepresentatives in the Senate Chamber on Wednesday next, at 12 o clock, for the purpose of being present at the opening and courting the votes for Presi dent of the United States ; that one person be appointed a teller on the part of the Senate to make a list of the votes for President of the United States as they shall be declared, and that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, which shall be entered on the Journals ; and if it shall appear that a choice has been made agreeably to the Con stitution, such entry on the Journal shall be deemed a sufficient declaration thereof. Ordered, That the Secretary notify the House of Representatives of this resolution. Ix SENATE. Tuesday, February 10, 1801. (" Annals of Congress," 6th Cong., p. 743.) On motion that when the two Houses shall proceed to opening and counting the votes for President of the United States no person shall be admitted into the gallery. It passed in the affirmative yeas 16, nays 10 ; as follows : YEAS Messrs. Brown, Chipman, Dayton, T. | Foster, D wight Foster, Hillhouse, Hindman, Lati- mer, J. Mason, Morris, Paine, Head, Ross, Schure- man, Tracy, and Wells. N AYS Messrs. Anderson, Baldwin, Bloodworth, Cocke, Franklin, Langdon, Livermore, Marshall, S. T. Mason, and Nicholas. A mesage was received from the House of .Representatives informing the Senate that they have passed a resolution, which the clerk ; was directed to bring to the Senate. The resolution was read as follows : Resolved, That this House will attend in the chamber of the Senate on Wednesday next, at 12 o clock, for the purpose of being present i at the opening and counting of the votes for president and Yice-President of the United States ; that Messrs. Rutledge and Nicholas be appointed tellers to act jointly with the teller appointed on the part of the Senate, to make a list of the votes for President and Yice- ; President of the United States as they shall 1 be declared ; that the result shall be delivered to the President of the Senate, who shall an- i nounce the state of the vote, which shall be I entered on the Journals ; and if it shall appear that a choice has been made agreeably to the Constitution, such entry on the Journals shall be deemed a sufficient declaration thereof. Ordered, That Mr. Wells be a teller on the part of the Senate for the purpose expressed in the above resolution. IN SENATE. Wednesday, February 11, 1801. (" Annals of Congress," 6th Cong., pp. 743,744.) Ordered, That the Secretary notify the House of Representatives that the Senate is ready to meet them in the Senate Chamber for the purpose of being present at the opening and counting the votes for President of the United States. The two Houses of Congress accordingly assembled in the Senate Chamber, and the certificates of the electors of sixteen States were, by the Yice-President, opened and de livered to the tellers appointed for the pur pose, who, having examined and ascertained the number of votes, presented a list thereof to the Yice-President, which was read, as fol lows : STATES, Thos. Jefferson. a <1 a a rt T3 < 1 | Charles C. Pinck- I ney. I John Jay. ft 6 16 1fi Khode Island 4 8 1 ft 9 4 4 New York 19 19, 7 7 Pennsylvania 8 8 7 7 a 8 Maryland . ... fi 5 B D 91 91 Kentucky 4 4 North Carolina R 8 4 4 8 R 8 8 4 4 73 73 fin 64 1 Whereupon The Yice-President declared that the result of the votes, as delivered by the tellers, was that : THOMAS JEFFERSON, of Virginia, had 73 AARON BURR., of New York, had 73 JOHN ADAMS, of Massachusetts, had 65 CHARLES C. PINCKNEY, of South Carolina, had. . 64 JOHN JAY, of New York, had 1 The whole number of electors who had voted were one hundred and thirty- eight, of which number Thomas Jefferson and Aaron Burr had a majority ; but, the number of those voting for them being equal, no choice was made by the people, and that, consequently, FOURTH PRESIDENTIAL TERM. the remaining duties devolve on the House of Representatives. On which the House of Representatives re paired to their own Chamber and the Senate adjourned, Ix SENATE. Wednesday, February 18, 1801. ("Annals of Congress," 6th Cong., p. 746.) A message from the House of Representa tives informed the Senate that the House have chosen Thomas Jefferson, of Virginia, Presi dent of the United States, for the term com- mencing on the 4th of March next. On motion, it was Resolved, That the President of the United States he requested to cause to be transmitted to Aaron Burr, Esq., of New York, Vice-Presi dent elect of the United States, notification of his election to that office, and that the President of the Senate do make out and sign a certifi cate, in the words following, viz. : Be it knoicn, That the Senate and House of Representatives of the United States of Amer ica, being convened at the city of Washington, on the second Wednesday of February, A. D. 1801, the underwritten, Vice-President of the United States and President of the Senate, did, in the presence of the said Senate and House of Representatives, open all the certificates and count all the votes of the electors for Presi dent ; whereupon it appeared that Thomas Jef ferson, of Virginia, and Aaron Burr, of New York, had a majority of the votes of the elec tors, and an equal number of votes; in conse quence of which the House of Representatives proceeded to a choice of a President, and have this day notified to the Senate that Thomas Jefferson has by them been duly chosen Presi dent ; by all of which it appears that Aaron Burr, Esq., of New York, is duly elected, agree ably to the Constitution, Vice-President of the United States of America. In witness thereof, I have hereunto set my hand and seal this 18th day of February, 1801. THOMAS JEFFERSOX. And that the President of the Senate do cause the certificate aforesaid to be laid before the President of the United States with this resolution. Ix HOUSE OF REPEESEXTATIVES. Thursday, January 22, 1801. ("Annals of Congress," 6th Cong., p. 941.) On motion, it was resolved that Mr. Rut- ledge, Mr. Nicholas, Mr. Griswold, Mr. Macon, and Mr. Bayard, be appointed a committee on the part of this House to join such committee as may be appointed on the part of the Senate to ascertain and report a mode of examining the votes for President and Vice-President, and of notifying the persons who shall be elected of their election, and to regulate the time, place, and manner of administering the oath of office to the President. Ix HOUSE OF REPEESEXTATIVE?. Friday, February 6, 1801. (" Annals of Congress," 6th Cong., pp. 1005-1007.) Mr. Rutledge, from the committee appoint ed on the 2d instant, to prepare and repor. such rules as, in their opinion, are propel to be adopted by this House, to be observec in the choice of a President of the Unitec States, made a report, which was read as fol lows : The committee appointed the second in stant report, in part, the following resolu tion: Resolved, That the following rules be ob served in the choice by the House of Repre sentatives of the President of the Unitec States, whose term is to commence on tin fourth day of March next. 1st. In the event of its appearing, upon tin counting and ascertaining of the votes givei for President and Vice-President, according t< the mode prescribed by the Constitution, tha no person has a Constitutional majority, am. the same shall have been duly declared an< entered upon the Journals of this House, th Speaker, accompanied by the members of thf House shall return to their Chamber. 2d. Seats shall be provided in this House fo the President and members of the Senate ; an notification of the same shall be made to th Senate. 3d. The House, on their return from th Senate Chamber, it being ascertained that th constitutional number of States are present shall immediately proceed to choose one of th persons from whom the choice is to be mad for President ; and in case upon the first ballo there shall not appear to be a majority of th States in favor of one of them, in such case th House shall continue to ballot for a President without interruption by other business, unti it shall appear that a President is duly chosen 4th. After commencing the balloting fo President, the House shall not adjourn until choice be made. 5th. The doors of the House shall be close during the balloting, except against the officer of the House. 6th. In balloting, the following mode shall- b observed, to wit : The representatives of th respective States shall be so seated that th delegation of each State shall be together The representatives of each State shall, in th first instance, ballot among themselves, i: order to ascertain the vote of that State ; an it shall be allowed, when deemed necessary b; the delegation, to name one or more person of the representation, to be tellers of the bal lots. After the vote of each State is ascer tained, duplicates thereof shall be made ; an THOMAS JEFFERSON", PRESIDENT. 13 n case the vote of the State be for one person, .hen the name of that person shall be written m each of the duplicates ; and in case the bal- ots of the State be equally divided, then the vord "divided" shall be written on each du- >licate, and the said duplicates shall be depos- ted in the manner hereafter prescribed, in >oxes to be provided. That, for the conve- liently taking the ballots of the several repre- entatives of the respective States, there be ixteen ballot-boxes provided for the purpose )f receiving the votes of the State; that after he delegation of each State shall have ascer- iained the vote of the States the sergeant-at- irms shall carry to the respective delegations he two ballot-boxes, arid the delegation of $ach State, in the presence and subject to the examination of the members of the delegation, hall deposit a duplicate of the vote of the State in each ballot-box, and when there is nore than one representative of a State the iuplicates shall not both be deposited by the ame person. When the votes of the States ire all thus taken in, the sergeant-at-arms shall arry one of the general ballot-boxes to one able and the other to a second and separate able. Sixteen members shall then be ap- >ointed as tellers of the ballots ; one of whom hall ba taken from each State and be nomi- ated by the delegation of the State from vhich he was taken. The said tellers shall be livided into two equal sets, according to such igreement as shall be made among themselves ; nd one of the said sets of tellers shall proceed o count the votes in one of the said boxes, ind the other set the votes in the other box ; md in the event of no appointment of teller by my delegation, the speaker shall in such case appoint. When the votes of the States are ounted by the respective sets of tellers, the (result shall be reported to the House ; and if jtihe reports agree, the same shall be accepted , as the true votes of the States ; but if the re- jports disagree, the States shall immediately Jproceed to a new ballot, in manner aforesaid. 7th. If either of the persons voted for shall have a majority of the votes of all the States, the speaker shall declare the same ; and official notice thereof shall be immediately given to ithe President of the United States and to the Senate. I 8th. All questions which shall arise after the balloting commences, and which shall require !|the decision of the House, shall be decided without debate. IN HOUSE OF REPKESEXTATIVES. Monday, February 9, 1801. ("Annals of Congress," 6th Cong., pp. 1007-1011.) Mr. Rutle.dge, from the committee appointed ;on the part of the House, jointly with the com mittee on the part of the Senate, to ascertain and report a mode of examining the votes given for President and Vice-President of the United States ; of notifying the persons elected of their election, and the time, place, and man ner of administering the oath of office to the President, reported that the committee had taken the subject referred to them under con sideration, but had come to no agreement thereupon. A message from the Senate informed the House that the Senate would be ready to re ceive the House in the Senate Chamber, on Wednesday next, at twelve o clock, for the purpose of being present at the opening and counting of the votes for President of the United States ; and that the Senate have ap pointed a teller, on their part, to make a list of the votes for President of the United States, as they shall be declared. The House proceeded to consider the report made on Friday last, from the committee ap pointed to prepare and report rules proper to be observed in the choice of a President of the United States : Whereupon, Ordered, That the said report be committed to a Committee of the Whole House imme diately. The House, accordingly, resolved itself into a Committee of the Whole on the said report, and after some time spent therein the chairman reported that the committee had had the said report under consideration, and directed him to report to the House their agreement to the same, with an amendment, which he delivered in at the Clerk s table where the same was read. The House then proceeded to consider the re port: Whereupon, the amendment reported from the Committee of the Whole House to the said report, was, on the question put thereupon, agreed to by the House. A motion was then made and seconded that the House do disagree with the Committee of the Whole House in their agreement to the fourth rule contained in the said report, in the words following, to wit : " 4th. After commencing the balloting for President, the House shall not adjourn until n, choice is made ; " And, the question being taken thereupon, it passed in the negative yeas 47, nays 53 ; as follows : YEAS Willis Alston, George Baer, Theodoras Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, William Charles Cole Claiborne, John Condit, JonnDawson, Joseph Eggleston, Lucas Elmendorf, John Fowler, Albert Gallatin, Samuel Goode, Edwin Gray, John A. Hanna, Joseph Heister, David Holmes, George Jackson, Aaron Kitchellf Michael Lieb, Levi Lin coln, Matthew Lyon, James Lyn, Edward Living ston, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Robert Page, John Randolph. John Srailie, John Smith, Samuel Smith, Richard Dobbs Spaight, Richard Stanford, David Stone, John Stewart, Benjamin Taliaferro, John Thompson, Abram Trigg, John Trigg, Littleton W. Tazewell, Philip Van Cortlandt, and Joseph B. Varnum. NAYS Bailey Bartlett, James A. Bayard, Jolm Bird, John Brown, Christopher G. Champlin, Wil liam Cooper, William Craik, John Davenport, Frank lin Davenport, Thomas T. Davis, John Dennis, 14 FOURTH PRESIDENTIAL TERM. George Dent, Joseph Dickson, "William Edmond, Thomas Evans, Abiel Foster, Jonathan Freeman, Henry Glen, Chauncey Goodrich, Elizur Goodrich, Andrew Gregg, Roger Griswold, William Barry Grove, Eobert Goodloe Harper, Archibald Hender son, William H. Hill, Benjamin Huger, James H. Imlay, Henry Lee, Silas Lee, Ebenezer Mattoon, Lewis E. Morris, Abraham Nott, Harrison G. Otis, Josiah Parker, Thomas Pinckney, Jonas Platt, Levin Powell, John Keed, Nathan Read, John Rut- ledge, William Shepard, John C. Smith, James Sheafe. Samuel Tenney, George Thatcher, John Chew Thomas, Richard Thomas, Peleg Wadsworth, Eobert Wain, Eobert Williams, Lemuel Williams, and Henry Woods. A motion was then made and seconded that the House do disagree with the Committee of the Whole House in their agreement to the fifth rule contained in the said report, in the words following, to wjt : " 5th. The doors of the House shall be closed during the balloting, except against the officers of the House ; " And, the question being taken thereupon, it passed in the negative yeas 45, nays 54, as follows : YEAS Willis Alston, Theodoras Bailey, Phan- uel Bishop, Eobert Brown, Samuel J. Cabell, Ga briel Christie, Matthew Clay, William Charles Cole Claiborne, John Condit, Thomas T. Davis, John Dawson, George Dent, Joseph Eggleston, Lucas El- mendorf, John Fowler,. Albert Gallatin, Edward Gray, Andrew Gregg, John A. Hanna, Joseph Heis- ter, David Holmes, George Jackson, Michael Lieb, Matthew Lyon, Edward Liringston, Nathaniel Ma- con, Peter Muhlenberg, Anthony New, John Nicho las, John Bandolph, John Smilie, John Smith, Sam uel Smith, Richard Dobbs Spaight, Richard Stan ford, David Stone, John Stewart, Benjamin Talia- ferro, John Thompson. Abram Trigg, John Trigg, Littleton W. Tazewell, Philip Van Cortlandt, Joseph B. Varnum, and Robert Williams. NAYS George Baer, Bailey Bartlett, James A. Bayard, John Bird, John Brown. Christopher G. Champlin, William Cooper, William Craik, John Davenport, Franklin Davenport, John Dennis, Jo seph Dickson, William Edmond, Thomas Evans, Abiel Foster, Jonathan Freeman, Henry Glen, Sam uel Goode, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Archibald Henderson, William H. Hill, Benjamin Huger, James H. Imlay, Henry Lee, Silas Lee, Levi Lincoln, James Lyn, Ebenezer Mat- toon, Lewis R. Morris,. Abraham Nott, Harrison G. Otis, Eobert Page, Josiah Parker, Thomas Pinck- ney, Jonas Platt, Levin Powell, John Eeed, Nathan Read, John Rutledge, William Shepard, John C. Smith, James Sheafe, Samuel Tenney, George Thatcher, John Chew Thomas, Richard Thomas, Peleg Wadsworth, Robert Wain, Lemuel Williams, and Henry Woods. Resolved, That this House doth agree with the Committee of the Whole House in their agreement to the said report, as amended, in the words following, to wit : "That the following rules be observed in the choice by the House of Eepresentatives of a President of the United States, whose term is to commence on the fourth day of March r, ext. " 1st. In the event of its appearing, upon the counting and ascertaining of the votes given for President and Vice-President, ac cording to the mode prescribed by the Consti tution, that no person has a constitutional ma jority, and the same shall have been duly de clared and entered on the Journals of this House, the Speaker, accompanied by the mem bers of the House, shall return to their Cham ber. " 2d. Seats shall be provided in this House for the President and members of the Senate, and notification of the same shall be made to the Senate. " 3d. The House, on their return from the Senate Chamber, if ascertained that the consti tutional number of States were present, shall immediately proceed to choose one of the per- sons from whom the choice is to be made for President; and in case upon the first ballot there shall not appear to be a majority of the States in favor of one of them, in such case the House shall continue to ballot for a Pres ident without interruption by other business, until it shall appear that a President is duly chosen. "4th. After commencing the balloting for President, the House shall not adjourn until a choice be made. " 5th. The doors of the House shall be closed during the balloting, except against the officers of the House. " 6th. In balloting, the following mode shal be observed, to wit : The representatives oi the respective States shall be so seated thai the delegation of each State shall be together The representatives of each State shall in th first instance ballot among themselves, in ordei to ascertain the votes of the State, and it shal ; be allowed, where deemed necessary by tht delegation, to name one or more persons to bd tellers of the ballots. After the vote of eacl State is ascertained, duplicates thereof shall be made ; and in case the vote of the State be foi one person, then the name of that person shal be written on each of the duplicates ; and ir case the ballots of the State be equally divided then the word divided 1 shall be written oi each duplicate, and the said duplicates shall b< deposited in the manner hereafter prescribed in boxes to be provided. That, for the con veniently taking the ballots of the several rep resentatives of the respective States, there b sixteen ballot-boxes provided, and that then be, additionally, two boxes provided for tin purpose of receiving the votes of the States that after the delegation of each State shal have ascertained the vote of the State, th Sergeant-at-arms shall carry to the respective delegations the two ballot-boxes, and the del egation of each State, in the presence and sub ject to the examination of all the members o the delegation, shall deposit a duplicate of th , vote of the State in each ballot-box ; and whei there is more than one representative of.. State, the duplicates shall not both be depos ited by the same person. "When the votes o the States are all thus taken in, the Sergeant at-arms shall carry one of the general ballot boxes to one table and the other to a secon< TIIOMAS JEFFERSON, PRESIDENT. and separate table. Sixteen members shall then be appointed as tellers of the ballots; one of whom shall be taken from each State, and be nominated by the delegation of the State from which he was taken. The said tell ers shall be divided into two equal sets, ac cording to such agreement as shall be made among themselves ; and one of the said sets of tellers shall proceed to count the votes in one of the said boxes, and the other set the votes in the other box ; and in the event of no ap pointment of teller by any delegation, the Speaker shall in such case appoint. When the votes of the States are counted by the respect ive sets of tellers, the result shall be reported to the House ; and, if the reports agree, the same shall be accepted as the true votes of the States ; but if the reports disagree, the States shall immediately proceed to a new ballot, in manner aforesaid. " 7th. If either of the persons voted for shall have a majority of the votes of all the States, the speaker shall declare the same ; and official notice thereof shall be immediately given to the President of the United States and to the Senate. " 8th. All questions which shall arise after the balloting commences, and which shall be decided by the House voting per capita to be incidental to the power of choosing the Pres ident, and which shall require the decision of the House, shall be decided by States and with out debate, and in case of an equal division of the votes of the States, the question shall be lost." Ix HOUSE OF REPRESENTATIVES. Tuesday, February 10, 1801. ( " Annals of Congress," Gth Cong., pp. 1021, 1022.) Mr. Bayard moved an additional rule in re lation to the Presidential election, viz., That five hundred tickets should be printed, on which should be the name of Thomas Jefferson, and five hundred on which should be the name of Aaron Burr, and that the members in bal loting should be confined exclusively to these. The Speaker requested Mr. Bayard to modify his motion, so that six hundred tickets should be printed, and that after Thomas Jefferson, should be printed " of Virginia," and after Aaron Burr "of New York," as he (the Speaker) had given directions to this effect, to which Mr. Bayard agreed. The question was taken that the House do uirree to the same, and it passed in the nega tive- -yeas 3G, nays 50 ; as follows: YEAS Bailey Bartlett, James A. Bayard, John Bird, John Brown, William Cooper, John Daven- B>rt, Franklin "Davenport, John Dennis, Joseph ickson, William Edmond, Abiel Foster, Henry Glen, Chauncey Goodrich, Elizur Goodrich, Roge r Griswold, William B. Grove, Robert G. Harper, Archibald Henderson, Benjamin Huger, Henry Lee, Lewis R. Harris, Abraham Nott, Harrison G. Otis, Thomas Pinckney, Jonas Platt, Levin Powell, Na than Reed, John Rutledge, Jr., William Sheparcl, John C. Smith, James "Sheafe, Samuel Tenney, omas, EioluuM lor, Theodoras iel J. George Thatcher, John Thomas, and Lemuel Willh NAYS Willis Alston, Ge Bailey, Phanuel Bishop, Robert Cubell, Christopher G. Champlin, Gabri e Matthew Clay, Williams Charles Cole Claiborne, John Condit, William Craik, Thomas T. Davis, John Dawson, George Dent, Joseph Eggleston, Lu cas Elmendorf, Thomas Evans, John Fowler, Al bert Gallatin, Samuel Goode, Edwin Gray, Andrew Gregsr, John A. Hanna, Joseph lleister, William II. Hill, David Holmes, George Jackson, Aaron KitcheH, Michael Leib, Levi Lincoln, Matthew Lyon, Jurnes Linn, Edward. Livingston, Nathaniel Macon, Ebenc- zer Mattoon, Peter Muhlenberg, Anthony New, John Nicholas, Robert Page, Josiah Parker, John Randolph, John Smilie, John Smith, Samuel Smith, Richard Dobbs Spaight, Richard Stanford, David Stone, John Stewart, Benjamin Taliai erro, John Thompson, Abram Trigg, John Trigg, Littleton W. Tazewell, Philip Van Cortlandt, Joseph B. Varnum, Peleg Wadsworth, Robert Williams, and Henry Woods. That this House will attend in the Chamber of the Senate, on Wednesday next, at twelve o clock, for the purpose of being- present at the opening and counting of the votes for President and Vice-President of th j United States; that Mr. Eutledge and Mr. Nicholas be appointed tellers, to act jointly with the teller appointed on the part of the Senate, to make a list of the votes for Presi dent and Vice-President of the United States, as they shall be declared ; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, which shall be entered on the Journals; and if it shall appear that a choice hath been made agreeably to the Constitution, such entry on the Journals shall be deemed a sufficient dec laration thereof. Ordered, That the Clerk of this House do acquaint the Senate therewith. IN HOUSE OF REPRESENTATIVES. Wednesday, February 11, 1801. ( " Annals of Congress," Gth Cong., pp. 1022-1026.) On this day, being the day by law appointed for counting the votes of the electors of Presi dent and Vice-President, there were present the following representatives, respectively, that is to say : FROM NEW HAMPSHIRE Abiel Foster, Jonathan Freeman, James Sheafe, and Samuel Tenney. FROM MASSACHUSETTS Theodore Sedgwick, Speak er, John Reed, Joseph B. Varnum, William Shep- ard, Peleg Wadsworth, Silas Lee, Lemuel Williams, George Thatcher, Bailey Bartlett, Phanuel Bishop, Harrison G. Otis, Nathan Reed, Levi Lincoln, and Ebenezer Mattoon. FROM CONNECTICUT John Davenport, Roger Gris- wold, Samuel N. Dana, Chauncey Goodrich, Elizur Goodrich, William Goodrich, William Edmond, and John C. Smith. FROM VERMONT Matthew Lyon and Lewis R. Harris. FROM RHODE ISLAND Christopher G. Champlin and John Brown. FROM NEW YORK John Smith, Philip Van Cort landt, Jonas Platt, Henry Glen, John Thompson, Theodorus Bailey, John Bird, William Cooper, Lucas Elmendorf, and Edward Livingston. 16 FOURTH PRESIDENTIAL TERM. FROM NEW JERSEY James Linn, Aaron KitchelT, John Condit, James II. Imlay, and Franklin Daven port. FKOM PENNSYLVANIA Eobert Brown, Albert Gal- latin, Andrew Gregg, John A. Hanna, Joseph Heis- ter, John Wilkes Kittera, Michael Leib, Peter Muh- lenberg, John Smllie, John Stewart, Richard Thom as, Robert Wain, and Henry Woods. FROM DELAWAHE James A. Bayard. FROM MARYLAND John CheAV Thomas, Samuel Smith, Gabriel Christie, William Craik, Joseph H. Nicholson, George Dent, George Baer, and John Dennis. FROM VIRGINIA Samuel J. Cabell, Matthew Clay, John Dawson, Joseph Eggleston, Thomas Evan s, Samuel Goode, Edwin Gray, David Holmes, George Jackson, Henry Lee, Anthony New, John Nicholas, Robert Page, Josiah Barker, Levin Powell, John Randolph, Abram Trigg, John Trigg, and Littleton W. Tazewell. FROM NORTH CAROLINA "Willis Alston, Joseph Dickson, William Barry Grove, Archibald Hender son, William II. Hill, Nathaniel Macon, Richard Dobbs Spaiar it, Richard Stanford, David Stone, and Robert Williams. FROM SOUTH CAROLINA Robert Goodloe Harper, Benjamin Huger, Abraham Nott, Thomas Pinckney, and John Rutledge. FROM GEORGIA Benjamin Taliaferro. FROM KENTUCKY John Fowler and Thomas T. Davis. FROM TENNESSEE William Charles Cole Clai- borne. Mr. Speaker, attended by the House, then wont into the Senate Chamber, and took seats therein, when both Houses being assembled, Mr. Rutledge and Mr. Nicholas, the tellers on the part of this House, together with Mr. Vi ells, the teller on the part of the Senate, took seats at a table provided for them, in front of the President of the Senate. The President of the Senate, in the presence of both Houses, proceeded to open the certifi cates of the electors of the several States, beginning with the State of New Hampshire ; and as the votes were read the tellers on the part of each House counted and took lists of the same, which, being compared, were de livered to the President of the Senate, and are as follows : STATES. Thomas Jefferson. fc s P3 a < I 13 < 1 Charles C. Pinckney. -9 1 New Hampshire . 6 6 Massachusetts 16 1fi TJhode Island 4 3 I Connecticut. . 9 9 Vermont 4 4 New York 12 12 iNew Jersey 1 7 Pennsylvania 8 g 1 fr Delaware 3 3 Man-land 5 5 5 5 Virginia 21 21 Kentucky 4 4 North Carolina s 8 4 4 Tennessee 3 3 .... South Carolina. . . . s g Georgia 4 4 .... 78 73 65 64 1 RECAPITULATION OF THE VOTES OF THE ELECTORS. Thomas Jefferson V3 Aaron Burr 73 John Adams 65 Charles Cotesworth Piuckncy G4 John Jay 1 The President of the Senate, in pursuance of the duty enjoined upon him, announced the state of the votes to both Houses, and declared that Thomas Jefferson, of Virginia, and Aaron Burr, of New York, having the greatest num ber, and a majority of the votes of all the elec tors appointed, and being equal, it remained for the House of Representatives to determine the choice. The two Houses then separated ; and the House of Representatives being returned to their Chamber, proceeded, in the manner pre scribed by the Constitution, to the choice of a President of the United States, and the fol lowing members were appointed tellers of the respective States, to examine the ballots of each State, pursuant to the sixth rule adopted by the House on the 9th instant, to wit : For tho State of New Hampshire, Abiel Foster ; VT V^AVA ^ tJJ. ill^J.l>, -1JG n iO JA. O-T-Ltll ilO, -L1CVY A. Ul L\ , Theodorus Bailey ; New Jersey, James Lin ; Penn sylvania, Albert Gallatin ; Delaware, James A. Bayard ; Maryland, George Dent ; Virginia, Little ton W. Tazewell ; North Carolina, Nathaniel Ma- con ; South Carolina, Thomas Pinckney ; Georgia, Benjamin Taliaferro ; Kentucky, John Fowler ; Ten nessee, William Charles Cole Claiborne. The members of the respective States then proceeded to ballot, in the manner prescribed by the rule aforesaid, and the tellers appointed by the States, respectively, having put dupli cates of their votes into the general ballot- boxes prepared for the purpose, th e votes con tained therein were taken out and counted. and the result being reported to the Speaker, he declared to the House that the votes of eight States had been given for Thomas Jeffer son, of Virginia ; the votes of six States for Aaron Burr, of New York ; and that the votes of two States were divided. The Constitution of the United States re quiring that the votes of nine States should be necessary to constitute a choice of President of the United States, a motion was made and seconded, that the ballot for the President be repeated in one hour, and, the question being taken by States, it passed in the negative. The States then proceeded, in the manner aforesaid, to a second ballot ; and, upon exam ination of the ballot-boxes, it appeared that the votes of eight States had been given for Thomas Jefferson, of Virginia, and the votes of six States for Aaron Burr, of New York ; and that the votes of two States were divided. The States proceeded in like manner to a third ballot ; and, upon examination thereof, the result was declared to be the same. The States then proceeded in like manner to a fourth ballot ; and, upon examination thereof, the result was declared to be the same. THOMAS JEFFERSON, PRESIDENT. 17 The States then proceeded in like manner to a fifth ballot ; and, upon examination thereof, the result was declared to be the same. The States then proceeded in like manner to a sixth ballot ; and, upon examination thereof the result was declared to be the same. The States then proceeded in like manner to a seventh ballot; and, upon examination thereof, the result was declared to be the same. A motion was then made, and seconded, that the States proceed again to ballot in one hour; and, the question being taken there upon, it was resolved in the affirmative the votes of the States being ayes 12, noes 4. The time agreed upon by the last-mentioned vote being expired, the States proceeded, in manner aforesaid, to the eighth ballot; and, upon examination thereof, the result was de clared to be the same., to wit : The votes of eight States for Thomas Jeffer son, of Virginia ; the votes of six States for Aaron Bur;;, of New York ; and the votes of two States were divided. The States then proceeded to a ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth ballots ; and, upon examination of the ballots, respectively, the result was de clared to be the same. A motion was then made, and second ed, tha-t the States proceed again to ballot at ten o clock; and the question being taken thereupon, it passed in the negative the votes of the States being ayes V, noes 9. Ordered, That the next ballot be repeated at nine o clock, and not before. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the sixteenth ballot ; and, upon examination thereof, the result was de clared to be the same. Ordered, That the ballot be repeated in one hour. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the seventeenth ballot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated at eleven o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the eighteenth ballot; and, upon examination thereof, the result was declared to be the same. A motion was then made, and seconded, that the ballot be repeated to-morrow, at eleven o clock, and not before. The question being taken thereupon, it passed in the negative. Ordered, That the ballot be repeated at twelve o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the nineteenth ballot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated in one hour. IN HOUSE OF REPRESENTATIVES. Thursday, February 12, 1801, 1 o clock A. M. ("Annals of Congress," 6th Cong., pp. 2026, 2027.) The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twentieth ballot ; and, upon examination thereof, the result was de clared to be the same. Ordered, That the ballot be repeated at two o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner as aforesaid to the twenty-first ballot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated at half after two o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner as aforesaid to the twenty-second bal lot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated at four o clock. The time agreed upon by the last-mentioned vote being expired,, the States proceeded in manner as aforesaid to the twenty-third bal lot; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated at five o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner as aforesaid to the twenty-fourth bal lot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated at six o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner as aforesaid to the twenty-fifth ballot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated at seven o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner as aforesaid to the twenty-sixth ballot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated at eight o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner as aforesaid to the twenty-seventh bal lot; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated at twelve o clock, and not before. The time agreed upon by the last-mentioned vote being expired, the States proceeded in 18 FOURTH PRESIDENTIAL TERM. manner as aforesaid to the twenty-eighth bal lot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated to morrow at eleven o clock, and not before. IN HOUSE OF REPRESENTATIVES. Friday, February 13, 1801. ("Annals of Congress," 6th Cong., p. 1027.) The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the twenty-ninth ballot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated to morrow at twelve o clock, and not before. IN HOUSE OF REPRESENTATIVES. /Saturday, February 14, 1801. ("Annals of Congress," 6th Cong., p. 1027.) The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirtieth ballot ; and, upon examination thereof, the result was de clared to be the same. Ordered, That the ballot be repeated at one o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-first ballot; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated at two o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-second ballot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated at three o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in ; manner aforesaid to the thirty-third ballot; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated on .Monday next at twelve o clock, and not before. IN HOUSE OF REPRESENTATIVES. Monday, February 16, 1801. ("Annals of Congress," 6th Cong., p. 1028.) The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-fourth ballot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated to morrow at twelve o clock, and not before. IN HOUSE OF REPRESENTATIVES. Tuesday, February 17, 1801. ("Annals of Congress," 6th Cong., pp. 1028-1030.) The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-fifth ballot ; and, upon examination thereof, the result was declared to be the same. Ordered, That the ballot be repeated at one o clock. The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-sixth ballot ; and, upon examination thereof, and the resul being reported by the tellers to the Speaker the Speaker declared to the House that the votes of ten States had been given for Thomas Jefferson, of Virginia ; the votes of four States for Aaron Burr, of New York ; and that the votes of two States had been given in blank and that consequently Thomas Jefferson, o Virginia, had been, agreeably to the Constitu tion, elected President of the United States for the term of four years, commencing on th< fourth day of March next. Ordered, That Mr. Pinckney, Mr. Tazewell, and Mr. Bayard, be appointed a committee to wait on the President of the United States anc notify him that Thomas Jefferson is electee President of the United States for the term commencing on the fourth day of March next. Ordered, That a message be sent to the Sen ate to inform them that Thomas Jefferson has been duly elected President of the Unitec States for the term of four years, commencing on the fourth day of March next ; and that th< Clerk of this House do go with the said mes sage. FIFTH PRESIDENTIAL TERM. 1805-1809. THOMAS JEFFERSOX, President; GEORGE CLIXTOX, Vice -President. IN SENATE. Tuesday, February 12, 1805. ("Annals of Congress," 8th Cong., p. 54.) Resolved, That the Senate will be ready to receive the House of Representatives in the Senate Chamber, on Wednesday the 13th in stant, February, at noon, for the purpose oi being present at the opening and counting oi votes for President and Vice-President of the United States. That one person be appointed a teller on the part of the Senate, to make t THOMAS JEFFERSOX, PRESIDENT. 19 list of the votes for President and Vice-Presi- dent of the United States, as they shall be de clared, and that the result shall be delivered to the President of the Senate, who shall an nounce the state of the vote, which shall be entered on the Journals, and, if it shall appear that a choice hath been made agreeably to the Constitution, such entry on the Journals shall be deemed a sufficient declaration thereof. Ordered, That the Secretary do carry this resolution to the House of Representatives. A message from the House of Representa tives informed the Senate that the House have passed a resolution that a committee be ap pointed on the part of the House of Repre sentatives, to join such committee as may be appointed on the part of the Senate, to ascer tain and report a mode of examining the votes for President and Vice-President, and of noti fying the persons who shall be elected of their election, and to regulate the time, place, and manner, of administering the oath of office to the President. Ix SENATE. Wednesday, February 13, 1805. ("Annals of Congress," 8th Coug., pp. 55-57.) A message from the House of Representa tives informed the Senate that the House have passed a resolution that they will attend in the Chamber of the Senate this day at noon, for the purpose of being present at the opening and counting of the votes for President and Vice-President of the United States, and have appointed tellers to act jointly with the teller who may be appointed on the part of the Sen ate to make a list of the votes for President and Vice-President of the United States as they shall be declared. The resolution mentioned in the message was read, and, on motion, Ordered, That Mr. Smith, of Maryland, be a teller of the votes for the President and Vice- President of the United States on the part of the Senate. Ordered, That the Secretary notify the House of Representatives that the Senate are now ready to meet them in the Senate Cham ber, for the purpose of being present at the opening and counting of the votes for Presi dent and Vice-President of the United States. About 12 o clock the Senators took their seats, and immediately after the Speaker and members of the House of Representatives en tered ; the Speaker and Clerk occupying seats on the floor on the right side of the President of the Senate, and the members of the House being seated in front. Mr. Samuel Smith, teller on the part of the Senate, and Mr. Joseph Clay, Mr. Roger Gris- wold, tellers on the part of the House, took seats at a table placed in front of the Chair, in the area between the Senate and House. The Secretary of the Senate read the resolu tions of the t\vo Houses previously agreed to. The President (Mr. Burr) stated that, pursu ant to law, there had been transmitted to him several packets, which from the indorsement upon them appeared to be the votes of the electors of a President and Vice-President ; that the returns forwarded by mail, as well as the duplicates sent by special messengers, had been received by him in due time. * You will now proceed, gentlemen, n said he, " to count the votes as the Constitution and laws direct ; " add ing that, perceiving no cause for preference in the order of opening the returns, he would pursue a geographical arrangement, beginning with the Northern States. The President then proceeded to break the seals of the respective returns, handing each return and its accom panying duplicate, as the seals were broken, to the tellers through the Secretary ; Mr. S. Smith reading aloud the returns and the attes tations of the appointment of the electors, and Mr. J. Clay and Mr. R. Griswold comparing them with the duplicate return lying before them. According to wmcu enumeration tne lonow- ing appeared to be the result : STATES. PRESIDENT. VICE- BE d i d 3 PKE3I- NT. 1 M 1 & M Th. Jefferson. $ 1 u New Hampshire T 19 4 ""$" 19 8 20 "9" 24 14 10 6 5 8 3 "9" 7 19 4 6 "9" Massachusetts * Rhode Island Connecticut Vermont New York "3" 2 T 19 8 20 "* 24 14 10 6 5 8 3 "3" 2 New Jersey Pennsylvania Delaware . . . ... Virginia North Carolina South Carolina t Georgia Kentucky % Ohio. Total 162 1C2 14 After the returns had been all examined, without any objection having been made to re ceiving any of the votes, Mr, S. Smith, on be half of the tellers, communicated to the Presi dent the foregoing result, which was read from the chair ; when the Vice-President said, upon this report it becomes my duty to declare, agreeably to the Constitution, that Thomas Jefferson is elected President of the United States, for the term of four years from the third * In this return, after stating the whole number of votes given for Thomas Jefferson and George Clinton, each elector certifies distinctly his vote for Thomas Jefferson as Presi dent, and for George Clinton as Vice-President. t The return certifies the votes to have been given, as stated in an inclosed paper. $ In this return the votes are not certified to have been given by ballot, but agreeably to law. FIFTH PRESIDENTIAL TERM. day of March next, and that George Clinton is elected Vice-President of the United States, for the term of four years from the third day of March next. [Previous to the ahove proceedings, a short debate arose in the Senate on the keeping the doors open or shut during the counting of the votes. Mr. Wright submitted a motion for their being kept open, which, after some oppo sition, was agreed to.] IN SENATE. Thursday, February 14, 1805. (" Annals of Congress," 8th Cong., p. 58.) On motion, it was Resolved, That the President of the United States be requested to cause to be transmitted to George Clinton, Esq., of New York, Vice- President elect of the United States, notifica tion of his election to that office, and that the President of the Senate do make out and sign a certificate in the words following, viz. : " Be it known that the Senate and House of Representatives of the United States of America, being convened at the city of Wash ington, on the second Wednesday in February in the year of our Lord 1805, the underwritten Vice-President of the United States and Presi dent of the Senate did, in the presence of the said Senate and House of Representatives, open all the certificates and count all the votes of the electors for a President and Vice-Presi- dent of the United States ; whereupon it ap peared that Thomas Jefferson, of Virginia, had a majority of the votes of the electors as Presi dent, and George Clinton, of New York, had a majority of the votes of the electors as Vice- President ; by all which it appears that Thom as Jefferson, of Virginia, has been duly elected President, and George Clinton, of New York, has been duly elected Vice-President of the United States, agreeably to the Constitution. "In witness whereof, I have hereunto set my hand and seal this 14th day of February, 1805." And that the President of the Senate do cause the certificate aforesaid to be laid before the President of the United States, with this resolution. IN SENATE. Friday, February 15, 1805. ("Annals of Congress, 8th Cong., pp. 58, 59.) A message from the House of Representa tives informed the Senate that the House have passed a resolution for the appointment of a joint committee to wait on the President of the United States and to notify him of his re election, and have appointed a committee on their part. The resolution was read, and ordered to lie for consideration. IN SENATE Saturday, February 16, 1805. ("Annals of Congress," 8th Cong., p. 59.) The Senate took into consideration the res olution of the House of Representatives, for the appointment of a joint committee to wait on the President of the United States to notify him of his reelection ; and having agreed there to, Messrs. Baldwin, and Smith of Maryland, were appointed a committee on their part. IN HOUSE or REPEESENTATIVES. Tuesday, February 12, 1805. (" Annals of Congress," 8th Cong., pp. 1192-1194.) On motion, it was Resolved, That a committee oe appointed on the part of this House, to join such committee as may be appointed on the part of the Sen ate, to ascertain and report a mode of exam ining the votes for President and Vice-Pres ident, and of notifying the persons who shall be elected, of their election, and to regulate the time, place, and manner of administering the oath of office to the President. Ordered, That Mr. Joseph Clay, Mr. Var- num, Mr. Dennis, Mr. Thomas Moore, and Mr. Dickson, be appointed a committee pur suant to said resolution ; and that the Clerk of this House do carry the resolution to the Senate and desire their concurrence. A message from the Senate notified the House that the Senate will be ready to receive the House of Representatives in the Senate Cham ber, on Wednesday, the thirteenth of February, at noon, for the purpose of being present at the opening and counting the votes for President and Vice-President of the United States : That one person be appointed a teller on the part of the Senate to make a list of votes for President and Vice-President of the United States, as they shall be declared, and that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, which shall be entered on the Jour nals, and if it shall appear that a choice had been made agreeably to the Constitution, such entry on the Journals shall be deemed a suffi cient declaration thereof. A message from the Senate informed .the House that the Sen ate have considered the resolution of this House for the appointment of a joint commit tee of the two Houses " to ascertain and re port a mode of examining the votes for Presi dent and Vice-President, and of notifying the persons who shall be elected, of their election, and to regulate the time, place, and manner of administering the oath of oifice to the Presi dent " and do not concur therein. THOMAS JEFFERSOX, PRESIDENT. IN HOUSE OF REPEESEXTATIVES. Wednesday, February 13, 1805. ("Annals of Congress," 8th Cong., pp. 1194-1198.) On motion, it was Resolved, That this House will attend in the Chamber of the Senate this day, at twelve o clock, noon, for the purpose of being pres ent at the opening, and counting of the votes for President and Vice-President of the United States ; that Mr. Joseph Clay and Mr. Roger Griswold be appointed tellers to act jointly, with the teller appointed on the part of the Senate, to make a list of the votes for Presi dent and Vice-President of the United States, as they shall be declared ; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, which shall be entered on the Journals ; and if it shall appear that the choice has been made agreeably to the Constitution, such entry on the Journals shall be deemed a sufficient declaration thereof. STATES. PRESI DENT. VICE- PRESI DENT. Th. Jefferson C.C. Pinckney. George Clinton. Kufus King. New Hampshire 7; 7 Massachusetts 19 39 4 Rhode Island 4 Connecticut 9 9 Vermont 6... 19 6 19 New York New Jersey 8!.... 20 .... 3 8 20 "9 24 -il 2 Pennsylvania Delaware Maryland y 2 24 Virginia North Carolina South Carolina Georgia 14 ... 10!.... 61 14 10 i Tennessee Kentucky . :::: 81.: Ohio 8| 9 Total 162 14 162 ~~14 RECAPITULATION. For Thomas Jefferson, of Virginia, as President. For Charles Cotesworth Pinckney, of South Carolina, as President. 162 14 162 14 For George Clinton, of New York, as Vice-Presi dent For Eufus King, of New York, as Vice-Presi dent A message was received from the Senate informing the House that Mr. Smith, of Mary land, has been appointed a teller of the votes of President and Vice-President of the United States, on the part of the Senate, conforma bly with their vote of the 12th instant, and are now ready in the Senate Chamber, to pro ceed therein; Whereupon Mr. Speaker, at tended by the House, proceeded to the Senate Chamber and took seats therein ; when both Houses being assembled the President of the Senate, in the presence of both Houses, pro ceeded to open the certificates of the electors of the several States, beginning with the State of New Hampshire ; and, as the votes were read, the tellers on the part of each House counted, and took lists of the same; which being compared were delivered to the Presi dent of the Senate, and are shown in the pre ceding table. The President of the Senate, in pursuance of the duty enjoined upon him, announced the state of the votes to both Houses, and de clared that Thomas Jefferson, of Virginia, having the greatest number and a majority of the votes of the electors appointed, was duly elected President of the United States for the term commencing on the fourth day of March next ; and that George Clinton, ot New York, having also the greatest number, and a majority of the votes of all the electors appointed, was duly elected Vice-President of the United States for the term commencing on the fourth day of March next. The two Houses then separated, and the House of Representatives being returned to their Chamber, Mr. Speaker resumed the chair. The list of the votes of the electors for President and Vice-President of the United States, as declared by the President of the Senate and hereinbefore recited, was read at the Clerk s table. On motion, it was Resolved, That a committee be appointed to join such committee as may be appointed by the Senate to wait on the President, and to notify to him his reelection to the office of President of the United States. Ordered, That Mr. Nicholson, Mr. Gregg, and Mr. Varnum be of "the said committee, on the part of this House. SIXTH PRESIDENTIAL TERM. SIXTH PKESIDEMTAL TEEM. 1809-1813. JAMES MADISON, President; GEORGE CLINTOX, Vice -President. IN SENATE. Friday, February 13, 809. ("Annals of Congress," 10th Cong., p. 342.) Mr. Smith, of Maryland, submitted the fol lowing motion, which was read and agreed to : Resolved, That a committee be appointed to join such committee as may be appointed by the House of Representatives to ascertain and report a mode of examining the votes for Pres ident and Vice-President, and of notifying the persons elected of their election, and for regu lating the time, place, and manner of adminis tering the oath of office to the President. Ordered, That Messrs. Smith, of Maryland, and Gaillard, be the committee on the part of the Senate. IN SENATE. Monday, February 6, 1809. (" Annals of Congress," 10th Cong., p. 342. ^ A message from the House of Representa tives informed the Senate that the House con cur in the resolution of the Senate for the ap pointment of a joint committee to ascertain and report a mode of examining the votes for President and Vice-President, and of notifying the persons elected of their election, and for regulating the time, place, and manner of ad ministering the oath of office to the President, and have appointed a committee on their part. Tuesday, February 7, 1809. ("Annals of Congress," 10th Cong., p. 343.) Mr. Smith, of Maryland, from the joint com mittee appointed to ascertain and report a mode of examining the votes for President and Vice-President, and of notifying the persons elected of their election, and for regulating the time, place, and manner of administering the oath of office to the President, reported in part the following resolution, which was read and agreed to : Resolved, That the two Houses shall assem ble in the Chamber of the House of Repre sentatives on Wednesday next at 12 o clock; that one person be appointed a teller, on the part of the Senate, to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, and the persons elected, to the two Honses as as sembled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President, and, together with a list of the votes, to be entered on the journals of the two Houses. Ordered, That Mr. Smith, of Maryland, be appointed teller, on the part of the Senate, agreeably to the foregoing resolution. A message from the House of Representa tives brought to the Senate " the several memo rials from sundry citizens of the State of Massachusetts remonstrating against the mode in which the appointment of electors for Presi dent and Vice-President has been proceeded to on the part of the Senate and House of Repre sentatives of said State as irregular and uncon stitutional, and praying for the interference of the Senate and House of Representatives of the United States, for the purpose of prevent ing the establishment of so dangerous a pre cedent." The message last mentioned, referring to the memorials of sundry citizens of the State of Massachusetts, was read. Ordered, That the message and memorials lie on the table. A message from the House of Representa tives informed the Senate that the House agree to the report of the Joint Committee " ap pointed to ascertain and report a mode of ex amining the votes for President and Vice- President, and of notifying the persons elected of their election, and to regulate the time, place, and manner of administering the oath of office to the President," and have appointed Messrs. Nicholas and Vandyke tellers on their part. Ix SENATE. Wednesday, February 8, 1809. ("Annals of Congress," 10th Cong., pp. 344, 345.) A message from the House of Representa tives informed the Senate that the House is now ready to attend the Senate in opening the certificates and counting the votes of the elec tors of the several States in the choice of a President and Vice-President of the United States, in pursuance of the resolutions of the two Houses of Congress of the 7th instant, and that the President of the Senate will be introduced to the Speaker s chair by the Speak er of the House of Representatives. The tw o Houses of Congress, agreeably to the joint resolution, assembled in the Repre- JAMES MADISOX, PRESIDENT. sentatives Chamber, and the certificates of the electors for the several States were by the President of the Senate opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the Presi dent of the Senate, which was read as follows: STATES. FOK PRESIDENT. FOE VICE-PRE3IDENT. James Madison. George Clinton. ! S d o 7 George Clinton. 1 James Madison. James Monroe. John Langdon. bi> O s 1 7 19 4 1 New Hampshire I Massachusetts 19 ! Khode Island 4 "l Connecticut 9 , Vermont 18 6 New York fi 13 8 3 3 New Jersev 8 Pennsylvania 20 9 Delaware 8 | 3 2 Maryland 9 2 9 94 ! Virginia 94 North Carolina South Carolina Georgia 11 10 fi 3 11 10 6 3 Kentucky 7 7 r> Tennessee 5 8 .... Ohio 3 Totals 122 6 47 113 * 3 3 9 47 The whole number of votes being 175, of which 88 make a majority. Whereupon the President of the Senate de clared James Madison elected President of the United States for four years, commencing with the fourth day of March next; and George Clinton Vice-President of the United States for four years commencing with the fourth day of March next. The votes of the Electors were then deliv ered to the Secretary of the Senate; the two Houses of Congress separated, and the Senate returned to their own Chamber. On motion of Mr. Smith of Maryland : Resolved, That the President of the United States be requested to cause to be delivered to James Madison, Esq., of Virginia, now Secre tary of State of the United States, a notifica tion of his election to the office of President of the United States ; and to be transmitted to George Clinton, Esq., of New York, Vice- President elect of the United States, notifica tion of his election to that office ; and that the President of the Senate do make out and sign a certificate in the words following, viz. : Be it known, That the Senate and House of Representatives of the United States of America, being convened at the City of Wash ington on the second Wednesday in February in the year of our Lord one thousand eight hundred and nine, the underwritten President of the Senate pro tempore did, in presence of the said Senate and House of Representatives open all the certificates, and count all the votes of the electors for a President and Vice-Presi- dent of the United States. Whereupon it ap peared that James Madison, of Virginia, had a majority of the votes of the electors as Presi dent, and George Clinton, of New York, had a majority of the votes of the electors as Vice- President. By all which it appears that James Madison, of Virginia, has been duly elected President, and George Clinton, of New York, has been duly elected Vice-President of the United States, agreeably to the Constitution. In witness whereof, I have hereunto set my hand, and caused the seal of the Senate to bo affixed this day of February, 1809. And that the President of the Senate do cause the certificate aforesaid to be laid before the President of the United States with this resolution. IN HOUSE OF REPRESENTATIVES. Saturday, February 4, 1809. ("Annals of Congress," 10th Cong., p. 1351.) The House proceeded to consider the reso lution of the Senate, of the 3d instant, for the appointment of a committee on their part, jointly with such committee as may be ap pointed on the part of this House to ascertain and report a mode of examining the votes for President and Vice-President, and of notifying the persons who shall be elected of their elec tion ; and to regulate the time, place, and manner of administering the oath of office to the President : Whereupon, Resolved, That this House doth agree to the said resolution ; and that Mr. Nicholas, Mr. Brown, and Mr. Cutts be appointed a commit tee on the part of this House pursuant thereto. IN HOUSE OF REPRESENTATIVES. Tuesday, February Y, 1809. ("Annals of Congress," 10th Cong., p. 1410.) Mr. Nicholas from the committee appointed the 4th instant, on the part of this House, jointly with a committee appointed on the part of the Senate, to ascertain and report a mode of examining the votes for President and Vice-President, and of notifying the persons elected of their election ; and to regulate the time, place, and manner of administering the oath of office to the President, made a report in part thereupon ; which he delivered in at the Clerk s table, where the same was twice read, and agreed to by the House as follows : Resolved, That the two Houses shall assem ble in the Chamber of the House of Represen tatives on Wednesday next, at twelve o clock ; that two persons be appointed tellers on the part of this House, to make a list of the votes, as they shall be declared ; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote and the persons elected, to the two Houses assembled as aforesaid, which shall be deemed a deelara- SIXTH PRESIDENTIAL TERM. tion of the persons elected President and Vice- President ; and, together with a list of votes, be entered on the Journals of the two Houses. Ordered, That Mr. Nicholas and Mr. Van dyke be appointed tellers on the part of this House, pursuant to the foregoing resolution ; and that the Clerk of this House do acquaint the Senate therewith. A message from the Senate informed the House that the Senate have agreed to the re port in part, of the joint committee of the two Houses appointed to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and noti fying the persons elected of their election, and to regulate the time, place, and manner of ad ministering the oath of office to the President, and have appointed Mr. Smith, of Maryland, teller of the votes on their part. IN HOUSE OF EEPKESEXTATIVES. Wednesday, February 8, 1809. ( u Annals of Congress," 10th Cong., p. 1422.) Mr. Nicholas offered the following order : Ordered, That a message be sent to the Sen ate to inform them that this House is now ready to attend them in opening the certificates and counting the votes of the electors of the sev eral States, in the choice of a President and Vice-President of the United States, in pur suance of the resolutions of the two Houses of Congress of the 7th instant ; and that the Clerk of the House do go with the said message. Mr. Eandolph said it had sometimes been the case, he did not say it had been the prac tice, that this House had met the other branch of the Legislature in their Chamber, for the purpose of counting the votes ; in which cases, very properly indeed, this House being in the Chamber of the Senate, the President of that body had taken the chair. Mr. E. said he now understood that it was proposed without any vote of this House for the purpose that the President of the Senate was to take the chair of this House ; that the Speaker was to leave the chair, to make way for the President of another body. To this, lie, for one, could never consent. I conceive, said he, that such a proceeding would derogate very materially from the dignity, if not from the rights of this body. I can never consent Mr. Speaker, that any other person than your self, or the Chairman of the Committee of the Whole House should take the chair, except by a vote of the House. I hope, therefore, that this matter maybe well understood. I con ceive it to be a respect which we owe to our selves and to the people, whose immediate rep resentatives we are, never to suffer, by a sort .of prescriptive right, the privileges of this House to be in any wise diminished, or its dig nity to fade before that of any other assembly . of men whatever. Mr. Nicholas said he was as unwilling as any other gentleman to surrender the privileges of the House. When assembled as the House of Eepresen- tatives, he agreed that none but the Speaker should take the chair; but, on the occasion of counting out the votes, he did not consider the House of Eepresentatives to be formed as a distinct body. In meeting on this occasion he said, it ahvays had been usual since the estab lishment of the Government for the Vice- President of the United States, or the President pro tempore of the Senate, to take the chair. There was, also, a propriety in this cause, be cause, by the Constitution, the Vice-President is to open the votes. For twenty years the practice had been that the President of the Senate presided in a joint meeting. Mr. J. G. Jackson spoke a few words on the same side as Mr. Nicholas, and Mr. Lyon re plied to him. Mr. Nicholas moved, in order to do away any difficulty in this case, that when the mem bers of the Senate were introduced the Speak er should relinquish the chair to the President of the Senate. Mr. Davenport supported this motion. He had no doubt of the propriety of the President of the Senate presiding at a joint meeting, more especially as he was the person designated by the Constitution for counting out the votes. Mr. Eandolph said that if this course were taken the Senate ought to be notified of this act of courtesy on the part of the House ; if not, it might appear that the President of the Senate took the chair as a matter of right. He said he knew that to many persons matters of this sort appeared to be of minute impor tance, but in everything touching the privileges of this House as it regarded the claims of the other coordinate branches of the Government, he would stickle for the ninth part of a hair. It was well known that in England the privi leges of the Commons had been gained inch by inch from the kings and nobles, by a steady perseverance; and that man must have very little knowledge of mankind, indeed, who was not persuaded that those privileges might be lost, as they were gained, by gradual and im perceptible encroachment on the one hand, and tacit yielding on the other. This was not a matter of great consequence in itself ; but power always begat power. It was like money, he said; any man could make money who had money. So any man, or body of men, who had power could extend it. I have no objec tion, said Mr. E., very far from it. to the constitutional exercise of the powers and privi leges of the Senate. Let their President count the votes, sir; there is a very good chair for him in which the Clerk now sits. But, on what principle is he to come into the House, with a consciousness tbathe has a right to throw you out of the chair, sir, and take pos session of it. I have no idea of suffering a man to come through those folding doors with such a sentiment. If he comes into this House, JAMES MADISOX, PRESIDENT. he comes from courtesy, and cannot assume your chair, Mr. Speaker, as a matter of right, but as a favor. And, if the President of the Senate takes possession of your chair as a favor, it ought to be announced to the Senate as such ; for, the mere vote on our side amounts to nothing, provided that he and the body over whom he presides come into this House, under the knowledge (without an intimation from us) that you are to leave your chair, and lie is to take possession of it. Mr. Smilie observed that there was no fear of the privileges of this body being encroach ed upon by any other, for there was a written Constitution prescribing the powers of each body ; and, at the same time that it was proper to be careful of their own rights, he said the House should be careful not to infringe on the rights of the other body. In respect to this question there was a case in point. In one instance, while Congress sat at Philadelphia, the Senate had come into the Representatives Chamber to count out the votes, and the Presi dent of the Senate had taken the chair as a matter of right. "We, said Mr. S., are sitting as a convention of the two Houses, for a special purpose, viz., to count out the votes. Who is properly the presiding officer in this case ? Unquestionably the officer directed by the Con stitution to open the votes. And I consider the Speaker of the House, on this occasion, as acting in the same capacity as any other mem ber of the House. After some further observations on the sub ject from Messrs. Masters, Lyon, and Macon, the motion of Mr. Nicholas was agreed to Yeas, 98. Mr. Randolph then moved that the Senate be acquainted by message of this arrangement. Agreed to Yeas, 73. The resolution first offered by Mr. Nicholas was then agreed to. On the suggestion of Mr. Van Dyke it was agreed that the members should receive the Senate standing and uncovered. The time for counting the votes having ar rived, the members of the Senate, preceded by their Sergeant-at-Arms, entered the Represent ative Chamber. Mr. Milledge, the President pro tempore, took the Speaker s chair, and the members took their seats on the right hand of the chair. The tellers were ranged in front, and the clerks of each House on the right and left of the tellers. The President of the Senate opened the electoral returns, one copy of which was handed to the teller of the Senate, Mr. S. Smith, who read it ; the tellers of the House, Messrs. Nicholas and Van Dyke, comparing the duplicate returns handed to them. When this business, which occupied about two hours, was concluded, the tellers handed their report to the President of the convention, who was proceeding to read it when Mr. Hillhouse observed that the returns from one of the States appeared to be defective, the governor s certificate not being attached to it. He thought that this might be as proper a time to notice it as any. Nothing further being said on the subject, however, the President of the Senate read the following statement of the votes, as reported by the tellers : STATES. PRESI DENT. VICE- PRESIDENT. iJplif, IHilJf! m I IB IM I _ IfglJ s = i I g>n ^_ 00 O ^ j>_ j>~ New Hampshire ...! 7 7 Massachusetts ... ! .. 19 ... 19 Ehodelsland !..... 4... 1 4 Connecticut .....[.. 9....... .. 9 Vermont I 6 I . . . . 6 New York 13 6.. 18] 8 3 New Jersey I 8 .... 8| . . . . Pennsylvania | 20 .. . . 20 .. Delaware 3 3 Maryland I 9.. 2 9 2 Virginia f 24 .... 24 .. North Carolina 11 .. 3 llj.. South Carolina 10 : . . . . 10 Georgia 6.. .. 6 Kentucky* Tt.. ... 7 Tennessee 5 . . . . 5 Ohio 8| Totals 122J C ! 4T118 8 3 947 Recapitulation of the votes of the electors for President of the United States : James Madison 122 Charles C. Pinckney 47 George Clinton Total 175 For Vice-President of the United States : George Clinton 113 liufus King 47 John Langdon James Madison James Munroe 3 Total 175 The President of the Senate, pursuant to the joint resolution of the two Houses of the 7thinst., then announced the state of the votes of both Houses of Congress, and declared that u James Madison was duly elected Presi dent of the United States, for four years, to commence on the fourth day of March next ; and that George Clinton was duly elected Vice- President of the United States for the like term of four years to commence on the said fourth day of March next." The members of the Senate then retired in the same order in which they entered. IN HOUSE OF REPRESENTATIVES. Thursday, February 9, 1809. ("Annals of Congress," 10th Cong., p. 1426.) Mr. Macon moved to amend the Journal of yesterday s proceedings, by inserting the letter * One of the votes of Kentucky lost from the non-attend ance of one of the electors. SEVENTH PRESIDENTIAL TERM. of Mr. Walton, the elector from the State of Kentucky, who did not attend to give his vote, stating the reason thereof. He stated his ob ject to be to state on the Journal the reason why one vote was deficient from the State of Kentucky that it might serve as a precedent on similar occasions. For if hereafter, in con sequence of the sickness or inability to attend of any one or more electors, there should be a tie between any two candidates for the presidency, it would be made a matter of question whether their votes, although unable to attend at the time, ought not to be counted. Some discus sion took place on this point, it being contended by some gentlemen that the House had no con cern with the causes why any vote was not received, but merely to count those which came to hand. And that if it was intended to fix a precedent to govern future proceeding on this subject, it ought to be done with great de liberation. Mr. Macon s motion was negatived Ayes 20. SEVENTH PKESIDENTIAL TEEM. 1813-1817. JAMES MADISOX, President / ELBKIDGE GEREY, Vice -President. Lsr SENATE. Monday, February 8, 1813. ("Annals of Congress," 12th Cong., p. 70.) On motion by Mr. Gaillard, Resolved, That a committee be appointed to join such committee as may be appointed by the House of Representatives, to ascertain and report a mode of examining the votes for Presi dent and Vice-President of the United States and of notifying the persons elected of their election. Ordered, That Messrs. Gaillard and Smith, of New York, be the committee on the part of the Senate. IN SENATE. Tuesday, Felruary 9, 1813. ( u Annals of Congress," 12th Cong., pp. 77, 78.) A message from the House of Representa tives informed the Senate that the House con cur in the resolution of the Senate for the ap pointment of a joint committee to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election ; and have appointed a commit tee on their part. Mr. Gaillard, from the joint committee ap pointed on the 8th instant to ascertain and re port a mode of examining the votes for Presi dent and A 7 ice-President of the United States, and of notifying the persons elected of their election, reported, in part, the following reso lution, which was read and agreed to : Resolved, That the two Houses shall assem ble in the Chamber of the House of Represent atives on Wednesday next, at twelve o clock ; that one person be appointed a teller on the part of the Senate, to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, and the persons elected, to the two Houses, assem bled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President ; and, together with a list of the votes, be entered on the Journals of the two Houses. Ordered, That Mr. Gaillard be appointed a teller of ballots on the part of the Senate, agreeably to the foregoing resolution. IN SENATE. Wednesday, February 10, 1813. ("Annals of Congress," 12th Cong., pp. 79, 80.) A message from the House of Representa tives informed the Senate that the House agree to the report of the joint committee appointed to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the per sons elected of their election, and have ap pointed Messrs. Macon and Tallmadge tellers on their part. Ordered, That Mr. Franklin be appointed a teller of the ballots for President and Vice- President of the*United States, on the part of the Senate, in place of Mr. Gaillard, absent from indisposition. A message from the House of Representa tives informed the Senate that the House is now ready to attend the Senate in opening the certificates and counting the votes of the elec tors of the several States in the choice of a President and Vice-President of the United States, in pursuance of the resolution of the two Houses of Congress; and that the Presi dent of the Senate will be introduced to the JAMES MADISON, PRESIDENT. Speaker s chair by the Speaker of the House of Representatives. The two Houses of Congress, agreeably to the joint resolution, assembled in the Repre sentatives Chamber, and the certificates of the electors of the several States were, by the President of the Senate, opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the Presi dent of the Senate, which was read as fol lows : STATES, PRESIDENT. VIOR- PRESIDENT. James Madison. De "Witt Clinton. Elbridge Gerry. i i ^ New Hampshire 8 22 4 9 "29*" 8 4 5 1 2 ...*.. "". . . . "25 , 25 15 11 8 1 2 8 7 3 7 20 4 9 "29" S "4" 5 Massachusetts Rhode Island Connecticut Vermont. 8 New York New Jersey Pennsylvania ^5 Delaware Maryland 6 25 15 Virginia North Carolina South Carolina 11 8 12 8 7 1 Georgia . Kentucky Tennessee Ohio Louisiana 3 123 Total 89 131 86 The whole number of votes being 217, of which 109 makes a majority ; James Madison had for President of the United States 128 votes, and Elbridge Gerry had for Vice-Presi- dent of the United States 131 votes. Whereupon the President of the Senate de clared James Madison elected President of the United States for four years, commencing with the 4th day of March next, and Elbridge Gerry Vice-President of the United States for four years, commencing on the 4th day of March next. The votes of the electors were then delivered to the Secretary of the Senate; the two Houses of Congress separated, and the Senate returned to their own Chamber ; and on mo tion adjourned. IN SENATE. Thursday, February 11, 1813. (" Annals of Congress," 12th Cong., pp. 80, 81.) On motion of Mr. Smith, of New York, Resolved, That a committee be appointed to join such committee as may be appointed by the House of Representatives to wait on the President of the United States, and to notify to him his reelection to the office of President of the United States. Ordered, That Messrs. Smith, of New York, and Franklin be the committee on the part of the Senate. On motion by Mr. Franklin, Resolved, That the President of the United States be requested to cause to be transmitted to Elbridge Gerry, Esq., of Massachusetts, Vice-President elect of the United States, no tification of his election to that office, and that the President of the Senate do make and sign a certificate in the words following, to wit: " Be it enacted, That the Senate and House of Representatives of the United States of America, being convened at the City of Wash ington on the second Wednesday of February, in the year of our Lord one thousand eight hundred and thirteen, the underwritten Presi dent of the Senate pro tempore did, in the pres ence of the said Senate and House of Repre sentatives, open all the certificates and count all the votes of the electors for a President and Vice-President of the United States; whereupon it appeared that James Madison, of Virginia, had a majority of the votes of the electors as President, and Elbridge Gerry, of Massachusetts, had a majority of the votes of the electors as Vice-President ; by all which it appears that James Madison, of Vir- f nia, has been duly elected President, and Ibridge Gerry, of Massachusetts, has been duly elected Vice-President of the United States, agreeably to the Constitution. " In witness whereof I have hereunto set my hand and caused the seal of the Senate to be affixed this day of February, 1813." And that the President of the Senate do cause the certificates aforesaid to be laid be fore the President of the United States, with this resolution. IN SENATE. Saturday, February 13, 1813. (" Annals of Congress," 12th Cong., p. 83.) The House of Representatives concur in the resolution for the appointment of a joint com mittee to wait on the President of the United States and notify to him his reelection to that office, and have appointed a committee on their part. Ix HOUSE OF REPRESENTATIVES. Monday, February 8, 1813. ( a Annals of Congress," 12th Cong., p. 1016.) A message from the Senate informed the House that the Senate have passed a resolution for the appointment of a joint committee to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election, in which resolution they desire the concurrence of this House. The said resolution was read and concurred in by the House ; and Messrs. Macon, Bassett, SEVENTH PRESIDENTIAL TERM. and Milnor, were appointed the committee on the part of the House. Is HOUSE OF REPRESENTATIVES. Tuesday, February 9, 1813. ( "Annals of Congress," 12th Cong., p. 1016, 1017.) A message from the Senate informed the House that the Senate have agreed to the re port of the joint committee appointed to as certain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election. Mr. Macon, from the joint committee, ap pointed yesterday to ascertain and report a mode of examining the votes for President and Yice-President, and of notifying the per sons elected of their election, made a report in part ; which was read and concurred in by the House, as follows : Resolved, That the two Houses shall assem ble in the Chamber of the House of Represent atives on "Wednesday next, at twelve o clock : that two persons be appointed tellers, on the part of this House, to make a list of votes as they shall be declared ; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, and the persons elected, to the two Houses assem bled as aforesaid, which shall be deemed a declaration of the persons elected President and Yice-President ; and, together with a list of votes, be entered on the Journals of the two Houses. Messrs. Macon and Tallmadge were appoint ed tellers on the part of this House. IN HOUSE OF REPRESENTATIVES. Wednesday, February 10, 1813. (" Annals of Congress," 12th Cong., pp. 1020, 1021.) A message was received from the Senate in forming the House that, owing to the indispo sition of Mr. Gaillard, the Senate have ap pointed Mr. Franklin the teller, on their part, at the counting of the votes of the electors for President and Yice-President of the United States. The hour of twelve having arrived the Sen ate entered the Hall of Representatives, pre ceded by their President, Secretary, Sergeant- at-Arms, and Doorkeeper, and proceeded to seats prepared for them the members of the House having risen to receive them, and re maining standing until all had entered. The President of the Senate took a seat which had been prepared for him at the Speaker s right hand, and the Secretary of the Senate was placed beside the Clerk of the House. The tellers Mr. Franklin of the Senate and Messrs. Macon and Tallmadge of the House were seated at a table in front of the Speaker s chair. The President of the Senate then proceeded to open and hand to the tellers the sealed re turns from each State, which were severally read aloud by one of the tellers, and noted down and announced by the Secretaries of each House. The votes having all been opened and read, the following result was announced from the chair by the President of the Senate, viz. : STATES. PRESI DENT. VICE- PRESI DENT. I 1 I Do Witt Clinton. to i_i Elbridgo Gerry. Jared Ingersoll. New Hampshire 8 22 7 20 4 9 Massachusetts . . . . Ehode Island Connecticut 9 Vermont R 8 New York 29 29 8 New Jersey .... Pennsylvania 25 25 Delaware 4 4 5 Maryland 6 25 15 11 5 6 25 15 11 8 Virginia North Carolina South Carolina 3 Kentucky 12 18 Tennessee . . g s Ohio 1 7 Louisiana 3 8 Total 128 89 131 86 RECAPITULATION OF ELECTORAL VOTES. For Resident of the, United States : James Madison, of Virginia ................... 128 De ^yitt Clinton, of New York 89 For Vice-President of the United States : Elbridge Gerry, of Massachusetts .............. 131 Jared Ingersoll, of Pennsylvania ............... 86 21T The President of the Senate, in pursuance of the joint resolutions of the two Houses, then announced the state of the votes to both Houses of Congress, and declared " That James Madi son, of the State of Virginia, was duly elected President of the United States, for four years, to commence on the fourth day of March next ; and that Elbridge Gerry was duly elected Yice-President of the United States, for the like term of four years, to commence on the said fourth day of March next." The two Houses then separated, and the Senate returned to their Chamber. IN HOUSE or REPKESEXTATIVES. Thursday, February 11, 1813. ("Annals of Congress," 12th Cong., p. 1021.) A message from the Senate informed the House that the Senate have appointed a com- JAMES MADISON, PRESIDENT. mittee, on their part, to join such committee as this House may appoint on their part to wait upon the President of the United States, and to inform him of his reelection, for four years, to commence on the fourth day of March next. EIGHTH PRESIDENTIAL TEEM. 1817-1821. JAMES MONROE, President ; DANIEL D. TOMPKINS, Vice -President. Ix SENATE. Monday, February 10, 1817. (" Annals of Congress," 14th Cong., p. 107.) On motion of Mr. Macon, Resolved, That a committee be appointed, to join such committee as may be appointed by the House of Representatives, to ascertain and report a mode of examining the votes for Presi dent and Vice-President of the United States, and of notifying the persons elected of their election. Ix SENATE. Tuesday, February 11, 1817. ("Annals of Congress," 14th Cong., p. 111.) Mr. Macon, from the joint committee, ap pointed on the 10th instant, to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election, reported in part the following resolution, which was read and agreed to : Resolved, That the two Houses shall assem ble in the Chamber of the House of Represent atives on Wednesday next at 12 o clock ; that one person be appointed a teller on the part of the Senate, to make a list of votes as they shall be declared ; that the result shall be de livered to the President of the Senate, who shall announce the state of the votes and the persons elected to the two Houses assembled as aforesaid, which shall be deemed a declara tion of the persons elected President and Vice-President, and together with a list of the votes be entered on the Journals of the two Houses. A message from the House of Representa tives informed the Senate that they concur in the resolution of the Senate for the appoint ment of a joint committee to ascertain and re port a mode of examining the votes for the President and Vice-President of the United States, and of notifying the persons elected of their election, and have appointed a committee on their part. A message from the House of Represen tatives informed the Senate that the House agree to the report of tho joint committee ap pointed to ascertain and report a mode of ex amining the votes for President and Vice-Presi dent of the United States, and of notifying the persons elected of their election, and have appointed Mr. Jackson and Mr. Pitkin tellers on their part, and that, when the members thereof appear in the Chamber of the House of Representatives to-morrow, their President will be introduced to the chair of the House by the Speaker. IN SENATE. Wednesday, February 12, 1817. (" Annals of Congress," 14th Cong., p. 114.) A message from the House of Represent atives informed the Senate that the House is now ready to attend the Senate, and proceed in opening the certificates and counting the votes of the electors of the several States for a President and Vice-President of the United States, in pursuance of the resolution of the two Houses of Congress. The two Houses of Congress, agreeably to the joint resolution, assembled in the Repre sentatives Chamber, and the certificates of the electors of the several States were, by the President of the Senate, opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the Presi dent of the Senate, which was read as fol lows: STATES. PRESI DENT. VICE-PBE3IDENT. IJaines Monroe, of Vir ginia. IKufus King, of New York. 1 Daniel D. Tompkius, of New York. 1 John E. Howard, of ] Maryland. 1 James lioss, of 1 onu- 1 sylvania. 1 John Marshall, of Vir- 1 giuia. 1 liobert G. Harper, of | Maryland. Massachusetts 4 22 4 22 .... .... q 5 4 .... L/onne c 8 g Of) ?9 8 8 05 9,5 8 3 ueiawar g 8 Virginia 95 ?5 North Carolina 15 11 15 11 .... .... 8 8 Kentucky 12 8 12 8 .... Ohio 8 8 8 8 8 8 Totals 193 34 "l88 ~22~ 5 ~7 8 30 EIGHTH PRESIDENTIAL TERM. The whole number of votes being 217, of which 109 make a majority. Whereupon, the President of the Senate de clared James Monroe elected President of the United States for four years, commencing with the fourth day of March next ; and Daniel D. Tompkins Vice-President of the United States commencing with the fourth day of March next. The votes of the electors were then delivered to the Secretary of the Senate, the two Houses of Congress separated, and the Senate re turned to their own Chamber. IN SENATE. Thursday, February 13, 1817. ("Annals of Congress," Uth Cong., pp. 117, 118.) On motion by Mr. Macon, Resolved, That the President of the United States be requested to cause to be delivered to James Monroe, Esq., of Virginia, now Secre tary of State of the United States, a notifica tion of his election to the office of President of the United States ; and to be transmitted to Daniel D. Tompkins, Esq., of New York, a notification of his election to the office of Vice-President of the United States ; and that the President of the Senate do make out and sign a certificate in the words following, viz. : "Be it known, That the Senate and House of Representatives of the United States of America, being convened at the city of Wash ington on the second Wednesday in February, in the year of oar Lord one thousand eight hun dred and seventeen, the underwritten, Presi dent of the Senate pro tempore, did, in presence of the said Senate and House of Representatives, open all the certificates and count all the votes of the electors for Presi dent and Vice-President of the United States, whereupon it appeared that James Monroe, of Virginia, had a majority of the votes of the electors as President, and Daniel D. Tompkins, of New York, had a majority of the votes of the electors as Vice-President. By all which it appears that James Monroe, of Virginia, has been duly elected President, and Daniel D. Tompkins, of New York, has been duly elected Vice-President of the United States, agreeably to the Constitution, " In witness whereof I have hereunto set my hand, this day of February, one thou sand eight hundred and seventeen." And that the President of the Senate do cause the certificate aforesaid to be laid before the President of the United States with this resolution. IN SENATE. Friday, February 14, 1817. (" Annals of Congress," 14th Cong., p. 118.) Mr. Fromentin submitted the following mo tion : That the journals be so amended as to in clude the statement of the proceedings re lating to the election of President and Vice- President of the United States on Wednesday, the 12th instant, as read by the Secretary of the Senate on Thursday, the 13th instant, prior to the motion made by an honorable gentle man from Virginia to amend the Journal so as to make it conformable to former precedents on a similar occasion. . On motion by Mr. Daggett, Resolved, That said motion be referred to a select committee, with instructions to revise and correct the journal of the proceedings of the Senate of the 12th instant so far as re spects the counting the votes for President and Vice-President of the United States. Ordered, That Messrs. Dana, Barbour, and Daggett be the committee. IN HOUSE OF REPRESENTATIVES. Monday, February 10, 1817. ("Annals of Congress," 14th Cong., p. 935.) A message from the Senate informed the House that the Senate have passed a resolu tion for the appointment of a joint committee to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and for notifying the per sons elected of their election, and have, con formably thereto, appointed a committee on their part ; in which bill and resolution they ask the concurrence of the House. The said resolution was read and concurred in by the House, and Messrs. Jackson, Irving of New York, and Pitkin, were appointed of the committee on the part of the House. IN HOUSE OF REPRESENTATIVES. Tuesday, February 11, 1817. (" Annals of Congress," 14th Cong., p. 937.) Mr. Jackson, from the committee yesterday appointed on that subject, reported the follow ing resolution, which was read, considered, and agreed to by the House : Resolved, That the two Houses shall assem ble in the Chamber of the House of Repre sentatives on Wednesday next, at twelve o clock. That two persons be appointed tell ers, on the part of thts House, to make a list of the votes as they shall be delivered. That the result shall be delivered to the President of the Senate, who shall announce the state of the vote, and the persons elected to the two Houses assembled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President, and, together with a list of the votes, be entered on the Journal of the two Houses. Messrs. Jackson and Pitkins were appointed tellers on the part of this House. A message from the Senate informed the House that the Senate have agreed to the report, in part, of the joint committee of the JAMES MONROE, PRESIDENT. 31 two Houses, appointed to ascertain and report a mode for examining the votes for President and Vice-President ; and have appointed Mr. Macon a teller of votes on their part. Tx HOUSE OF KEPKESENTATIVES. Wednesday, February 12, 1817. ("Annals of Congress," Htli Cong., p. 943.) Oa motion of Mr. Jackson, a message was sent to the Senate, informing them that the House of Representatives were ready to pro ceed, agreeably to the mutual resolution of yesterday, to open and count the votes for President and Vice-President of the United States. The Senate, soon after, entered the House of Representatives, preceded by their Pres ident, who was received by the Speaker at the chair of the House, in which the President of the Senate took his seat, and the Speaker of the House beside him. The tellers of the two Houses Mr. Macon on the part of the Senate, and Mr. Jackson and Mr. Pitkin on the part of the House of Representatives occupied seats in front of the chair. The seals of the votes were broken by the President of the Senate, and by him handed to the tellers, by whom they were read aloud, and recorded on the Journals of the Senate and of the House of Representatives by the Secretary of the Senate and Clerk of the House, respectively. The votes of all the States having been read, with the exception of those of the State of Indiana, Mr. Taylor, of New York, arose, and (ad dressing himself to the Speaker of the House) expressed his unfeigned regret at being com pelled, by his sense of duty, to interrupt the proceeding of the two Houses. Mr. Taylor was then going on to state his reasons for ob jecting to the votes from Indiana being read and recorded, when The Speaker interrupted him, and said that the two Houses had met for the purpose the single specific purpose of performing the Con stitutional duty which they were then discharg ing, and that while so acting, in joint meeting, they could consider no proposition nor perform any business not prescribed by the Constitu tion. Mr. Varnam, of the Senate (addressing the President of the Senate), expressed his concur rence in the propriety of what had been stated by the Speaker, and, for the purpose of allowing the House of Representatives to deliberate on tne question which had been suggested, he moved that the Sanate withdraw to their Chamber. The motion was seconded by Mr. Dana, of the Ssnate, and, the question being put by the Presidsnt to the members of the Senate, it was unanimously agreed to, and the Senate withdrew accordingly.* The Speaker having stated to the House that it now remained for them to consider the subject which had interrupted the forms of the Constitution, Mr. Taylor, of New York, said that although the question, as regarded the present election, was of no consequence, yet the time might ar rive when it would be of the greatest impor tance in the election of President of the United States, and that it would be better to settle it now, when its decision would not affect the election. He then proceeded with his objec tions to receiving the votes from Indiana, con tending that the joint resolution of December last, admitting that State into the Union, was not a matter of form merely, but a great Con stitutional prerogative, to be exercised by Con gress, and until which a sister State could not (* From the National Intelligencer). MESSRS. GALES AND SEATON : In your paper of this morning, in detailing the pro ceedings of the two Houses of Congress relating to counting the votes for President and^Vice-President, you state that the motion made by Mr. Varnum, and seconded by Mr. Dana, that the Senate should withdraw, was " unanimously agreed to." This, gentlemen, is a mistake. There were several negatives, distinctly and audibly given, and, a division being called for, it is doubtful how the question would have been decided. The writer of this was one of those who voted against the motion, believing that the two Houses ought not to sepa rate until they had discharged the duty which brought them together, and that in counting the votes it was for them to decide what were votes in the meaning of the Constitution. Reflection has confirmed hira in this opinion; and, regarding the precedent set by the Sen ate s withdrawing as one which, it would be inconvenient and dangerous to follow, he ft not willing to see it re corded as an unanimous act, when the reverse was the case, and thereby a weight and importance given which do not in reality belongto it. WASHINGTON CITY, February 14, 1317. [No doubt whatever is entertained of the correctness of the above statement, for which we are much indebted to the "writer, but the reporter certainly heard not a sin gle negative. Having stated the proceedings of the House of Repre sentatives on the question referred to in the above note, it may be proper to notice what we learn took place in the Senate after that body withdrew from the House. On reciring to their Chamber some conversation took place in the Senate on the subject which had produced the separation of the two Houses, when Mr. Barbour moved the adoption of a resolution that the State of In diana had a right, by her electors, to vote for President and Vice-President on the first Monday in December last. This resolution was suppoited by Messrs. Talbot, Ma son, of New Hampshire. Barbour, Dana, and Daggett ; and opposed by Messrs. Campbell and Fromentin. Before any decision took place on the resolution the message from the House of Representatives announcing their readiness to proceed in counting the votes was re ceived, when Mr. Barbour stated that, ns the question which had in terrupted the proceedings of the joint meeting originated in the other House, and they having announced their readiness to resume the business which had called the two Houses together, it was unnecessary, he thought, to take any order on the resolution he had submitted, and therefore withdrew it. The Senate then again proceeded to the Representa tives Hall. On Thursday, the next morning, there was a consider able discussion on the question how the proceedings of the preceding day should be stated on the Journal of the Senate, since, being novel in its character, the proceeed- ing might be drawn into precedent on occasions of more importance than the present. It was finally resolved that the Journal should be ma r le "according to former precedents. 1 Editors National Intelligencer.} EIGHTH PRESIDENTIAL TERM. be admitted into the Union upon an equal foot ing. If this was not so, where was the use of passing on the form of government adopted by the State, and sanctioning her admission, if she was admitted to an equal footing already? The electors of President and Vice-Presi- dent having been elected in Indiana before she was declared to be admitted into the Union by Congress, he thought the votes of that State were no more entitled to be counted than if they had been received from Missouri, or any other Territory of the United States. Mr. Tay lor acknowledged he did not know what would be the most proper course of proceeding in the business, but believed it would be best to adopt a joint resolution, that the votes of Indi ana, having been given previous to her admis sion into the Union, were illegal, and ought not to be received. Mr. Cady, of New York, thought the ques tion already settled, as another branch of the Legislature had admitted the Senators from the new State to all the privileges of other members of that body ; that, after admitting the Bepresentatives of the State to act in Con gress on all me concerns of the nation, it was too late to question her right to participate in this ; and that, from the moment the Constitu tion of the State was assented to, she was en titled to all the privileges of an independent member of the Union. Mr. Sharp, of Kentucky, for the purpose of settling the question, offered a joint resolution, " That the votes for electors of the State of Indiana, for President and Vice-President of the United States, were properly and legally given, and ought to be counted." Mr. Bassett, of Virginia, thought the reso lution ought not to be a joint one, as it might establish a precedent which might in time, in the case of a tie, etc., deprive this House of one of its powers, by permitting the Senate to participate in this question. Mr. Calhoun suggested to Mr. Sharp, wheth er it would not be better to offer his resolution in the negative form. He, for one, did not believe the votes improper, but the question would be put to rest with more certainty, he thought, by rejecting it in the negative shape, than it would by agreeing to it in its present form. Mr. Taylor, of New York, moved to amend the resolution, by substituting therefor a mo tion declaring the votes illegal, etc. Mr. Sheffey said this question was settled already, for, if they had no right to give votes in the organization of the Executive, they had none in the National Legislature. We have decided, said Mr. Sheffey, that the organization of their State government is correct ; we said to them in the act, if they performed certain duties, they were entitled to admission into the Union upon an equal footing with the other States ; and the resolution to admit them was merely a declaration that they had so per formed that duty. The proposition before the House, Mr. Sheffey thought, was wrong, and that the State was certainly entitled to the votes. Mr. Sharp defended his motion, and the joint form he had given to it, as necessary to ascer tain the joint sense of the two Houses, with out which they could not know whether the Senate were willing to proceed. The argu ment of Mr. Sheffey, he said, was a clear ex position of the right of the vote. Congress was bound to see that the new State adopted a republican form of government, but that, said he, was all we had to do with them; but the recognition of that could not affect their right to vote, nor any other right or privilege of an independent State endowed with all the powers of the others, as the votes had been given after they had performed the condition re quired of them to become an independent State. Mr. Gaston thought the only difficulties were as to the form the House ought to adopt. "With regard to the question, he was under no diffi culty; according to the act of last session the votes were legal and rightfully given. Mr. Gaston read the provisions of the act of last session, authorizing Indiana to form a State government, which left it to them to choose a name, prescribed the qualifications of electors of delegates to the convention, which delegates were to determine whether it was expedient at that time to form a constitution, etc. ; and if they determined that it was expedient, then, they were authorized to form a constitution and that determination was the act that made the Territory a State. Had they adopted a constitution not repub- j lican, they would have done what they were i authorized to do, and all their proceedings j would have been illegal. But what Mr. Gas- j ton presumed would remove all difficulty were j propositions in the act, which, if accepted, was j to be obligatory on the parties ; such as that all | salt springs should be granted to said State, for the use of the people thereof, in such man ner as the Legislature should direct, etc. The acceptance of this proposition by Indiana was obligatory on the United States ; then was called into existence the new State ; and it had been recognized by both branches of the Na tional Legislature by admitting into their re spective bodies the Senators and members from the State. Mr. Gaston, thqugh opposed to the amendment offered by Mr. Taylor, was not cer tain that the other motion would be proper, but was inclined to think that the better course would be merely to send a message to the Sen ate that the House was ready to proceed in counting the votes. Mr. Taylor was not satisfied by the arguments he had heard. Suppose the convention of In diana had formed a constitution manifestly not republican, would they then, he asked, have been entitled to vote for electors ? He would put another case. The act of last session pre scribed the number of delegates which should be elected by each county to the convention ; suppose the convention to have formed a re- JAMES MONROE, PRESIDENT. 33 publican constitution, but that the counties should have sent three times the number of delegates authorized by the act of Congress, would not Congress see that the whole course of proceedings was proper ; and would not their incipient acts be ineffectual until Congress had decided on them? The admission of the member into this House, no other appearing to claim the seat, was different from the right of voting in the present election; and until the State was declared a member of the Union, it was not to be so considered so far forth as to entitle it to vote for President and Vice-Presi- dent. If not so, it was an idle thing for Con gress, in December last, to declare their admis sion into the Union. Mr. Robertson, of Louisiana, regretted the agitation of this question, as he could not recognize the right of this House or the Sen ate to decide on the rights of the States ; and to question the sovereignty of an independent State after its admission into the Union was a matter of dangerous tendency. The State of Indiana, professing to be such, had sent mem bers to this House and to the Senate, who had been admitted to all the, privileges of legisla tion. Was it said Congress had not used due deliberation in admitting those members ; and had the State done any more in electing elec tors, than in sending her members to represent her in Congress? You cannot now, said Mr. Robertson, raise a question of State or no State. The condition requiring the State to adopt a republican constitution was a matter of course, because the United States were bound to guarantee such a constitution to each State ; and the joint resolution of December last was a mere declaration that the State had complied with the obligation. Mr. Pitkin, of Connecticut, was of opinion that the State was entitled to all State rights, as soon as they had complied with the requi sitions of the act authorizing the people of the Territory to form a State government. The case of Louisiana was different, because the act authorizing that Territory to adopt a State government required that their constitution should be submitted to Congress before their admission into the Union. With Indiana the case was different, as with her no such condi tion was made. The question before the House, Mr. Pitkin said, was a novel one ; reso lutions had been passed by the two Houses to assemble for a certain purpose therein stated, and the most proper way would be to send a message to the Senate, that the House was ready to proceed in the business of counting the votes. Mr. Hendricks, of Indiana, regretted the necessity which called him up. Indiana, he said, was, or was not, a State, and the decision of that question would settle the one before the House. The case, of Louisiana was not analogous ; as the Ordinance of 1787, concern ing the Territories, and under which they were admitted into the Union, did not apply to any Territory west of the Mississippi. The only question for Congress to decide was, whether the State had complied with the requisition of the act of last session whether the constitution adopted was republican or not : nothing more. Suppose, indeed, that the State had adopted no constitution at all had chosen to live under their laws alone, and had not thrown their State government into the form of a constitution would the State have been thereby deprived of her rank in the Union? The Ordinance of 1787 had guaran teed a State government when they reached a certain extent of population, and Congress could require of them no more than had been done. Mr. Hendricks argued that the same authority which gave him a right to vote in this House, gave them also a right to vote for President and Vice-President of the United States. Mr. Ingham, of Pennsylvania, moved that the resolution and amendment be both indefi nitely postponed ; which motion was agreed to almost unanimously ; and then, On motion of Mr. Jackson, a message was sont to the Senate, informing them of the readiness of this House to proceed in count ing the votes. The Senate soon after again entered the Representatives Hall ; when The Speaker informed them that the House of Representatives had not seen it necessary to come to any resolution, or to take any order on the subject which had produced the separation of the two Houses. The reading of the votes was then con cluded ; and the tellers handed a statement thereof to the President of the Senate, who announced to the joint meeting the following as the state of the votes : PRKSI- DKNT. VICE-PBESIDENT. $ STATES. Monroe, irgiuia. *$ > * * id 3. Pr 1 ^ ^ "2 . .s -- i d -O of 3 : "^ JT-O | s g g , j.2 ^ g 3} ^>|^ fe Sff "fe* a ! 2 S S3 ic ^ ^ > 3 i ~^ ^^ *lilU^ -^ Z * o I* 3 I* ^o -J P -s M New Hampshire 8 8 9*> 22 Rhode Island 4 4 >t 9 5 4 8 8 New York 29 29 a 8 Pennsylvania 25 25 .. .. Delaware 3 . . 3 8 95 8 95 North Carolina 15 15 South Carolina 11 11 . . .. O A <Hi S 8 ii 19, 8 8 Ohio 8 8 8 8 3 8 Totals 188 34 2-2 5 4 34 EIGHTH PRESIDENTIAL TERM, RECAPITULATION OF THE VOTES OF THE ELECTORS. For President of the United, States. James Monroe, of Virginia 183 Rufus King, of New York 34 For Vice- President of United States. Daniel D. Tompkins, of New York 183 JohnE. Howard, of Maryland 22 James Ross, of Pennsylvania 5 John Marshall, of Virginia 4 Robert G. Harper, of Maryland 3 The President of the Senate declared that James Monroe, of the State of Virginia, was duly elected President of the United States for four years, to commence on the 4th day of March next; and that Daniel D. Tompkins, of the State of New York, was duly elected Vice-President of the United States for the like term of four years, to commence on the said 4th day of March next. The two Houses then separated, the Senate returned to their Chamber, and the House ad journed. NINTH PRESIDENTIAL TERM. 1821-1825. JAMES MONKOE, President ; DANIEL D. TOMPKINS, Vice-President. IN SENATE. Tuesday, February 6, 1821. ("Annals of Congress," p. 267.) Mr. Barbour submitted the following motion for consideration : Resolved, That a committee be appointed to join such committee as may be appointed by the House of Representatives to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election. IN SENATE. Wednesday, February 7, 1821. ("Annals of Congress," p. 288.) The Senate proceeded to consider the mo tion of yesterday to appoint a joint committee to ascertain and report a mode of examining the votes of President and Yice-President, and of notifying the persons elected of their elec tion, and agreed thereto; and Messrs. Bar bour and Macon were appointed a committee on the part of the Senate. IN SENATE. Tuesday, February 13, 1821. ("Annals of Congress," p. 341.) Mr. Barbour then, from the joint select com mittee appointed on the subject, reported the following resolutions : Resolved, That the two Houses shall assem ble in the Chamber of the House of Repre sentatives, on Wednesday next, at 12 o clock, and the President of the Senate shall be the presiding officer ; that one person be appointed a teller on the part of the Senate to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, and the persons elected, to the two Houses assembled as aforesaid ; which shall be deemed a declaration of the persons elected President and Yice-President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Resolved, That if any objection be made to the votes of Missouri, and the counting or omitting to count, which shall not essentially change the result of the election ; in that case they shall be reported by the President of the Senate in the following manner: were the votes of Missouri to be counted, the result would be, for A. B., for President of the United States, votes ; if not counted, for A. B., as President of the United States, votes ; but in either event A. B. is elected President of the United States ; and in the same manner for Yice-President. Mr. Barbour explained in detail the reasons which influenced the committee in adopting the resolutions which it recommended. Mr. King, of New York, spoke in particular reference to what he deemed the correct course of proceeding in joint meetings ; thinking it consistent with the Constitution, and with propriety, that the House should come to the Senate, if the apartment had not rendered it inconvenient, and that, when a convenient place should be completed for joint meetings, he hoped the practice heretofore prevailing would not be considered in the light of a pre cedent, but that they should repair thither, and the President of the Senate preside in the joint meeting, etc. He was opposed to the settlement of any litigated question in joint meeting, where the Senate as a body would be lost, and argued that, whenever any such * JAMES MONROE, PRESIDENT. 35 should arise, it would be always proper that the two Houses should separate. Mr. Macon offered some remarks explana tory of the views of the committee on the points before them ; some thinking the votes of Missouri ought to be received and counted, and others that they ought to be rejected ; that they had agreed on the second resolution as the most likely course to reconcile any difficulty. As to the place of meeting the Chamber of the Senate would have been rec ommended (he was understood to say), but for the reason that it could not accommodate com fortably the two Houses. The question being put on the first resolu tion, it was agreed to nem. con. On the second resolution a long debate took place. It was opposed by Messrs. Smith, Tal- bot, Williams of Tennessee, and Laninan, on various grounds ; principally, for the reasons that it was not competent in the Senate to decide such a question in anticipation ; that the proper time to consider and settle it was the day appointed by the Constitution; that the two Houses would not be bound to-mor row by this report; that it was useless to touch the question now, whether Missouri was a State or not, or had a right to v$te ; that her votes could not be legally known now, etc. The resolution was defended by Messrs. Barbour, Otis, and Johnson of Kentucky, on the grounds that as the question would cer tainly rise to-morrow in joint meeting it was much better to adjust it now and prevent all difficulty or trouble ; that it was wrong to allow the pleasure and good feelings growing out of the event of to-morrow, a great and pleasing incident illustrative of our free insti tutions, to be disturbed by a question which could be so well settled previously, etc. Mr. King, of New York, in accordance with the opinions he had submitted, wished some amendment introduced to prevent the mode of proceeding from being quoted as a prece dent hereafter an amendment declaring that, if any question should arise relative to any votes, in joint meeting, the two Houses would separate to consider the case, and not decide it jointly. Mr. Barbour said that, on the present occa sion, as the election could not be affected by the votes of any one State, no difficulty could arise ; and that it was his intention hereafter to bring the subject up, to remedy what he considered a casus omissus in the Constitution, either by an ast of Congress, if that should ap pear sufficient, or, if not, by proposing an amendment to the Constitution itself. The second resolution was then also agreed to; and the Senate adjourned. IN SENATE. Wednesday, February 14, 1821. (" Annals of Congress," p. 343.) The Senate proceeded to the appointment of a teller on their part, in pursuance of the report of the joint committee appointed to consider and report a mode of examining the votes for President and Vice-President of the United States ; and Mr. Barbour was appointed. A message from the House of Representa tives informed the Senate that the House of Representatives have rejected the resolution of the Senate declaring the admission of the State of Missouri into the Union. The House of Representatives concur in the report of the joint committee appointed to make arrange ments upon the subject of counting the votes for President and Vice-President of the United States, and have appointed tellers on their part and are now ready to receive the Senate to perform that ceremony. Whereupon the two Houses of Congress, ageeably to the joint resolution, assembled in the Representatives Chamber and the cer tificates of the electors of the several States, beginning with the State of New Hampshire, were, by the President of the Senate, opened, and delivered to tellers appointed for the pur pose, by whom they were read, except the State of Missouri ; and, when the certificate of the electors of that State was opened, an objection was made by Mr. Livermore, a mem ber of the House of Representatives from the State of New Hampshire, to counting said votes. Whereupon, on motion, by Mr. Williams, of Tennessee, the Senate returned to their own Chamber. A message from the House of Representa tives informed the Senate that the House of Representatives is now ready to receive the Senate in the Chamber of the House of Repre sentatives for the purpose of continuing the examination of the votes of the electors for President and Vice-President, according to the joint resolutions agreed upon between the two Houses. On motion, by Mr. Barbour, it was Resolved, That the Senate proceed to meet the House of Representatives in order to con clude the counting of the votes for President and Vice-President of the United States, ac cording to the last of the joint resolutions adopted for that purpose. Whereupon, the two Houses having again assembled in the Representatives Chamber, the certificate of the electors of the State of Missouri was, by the President of the Senate, delivered to the tellers, who read the same, and who, having examined and ascertained the whole number of votes, presented a list there of to the President of the Senate, by whom it was read, as follows : 36 NINTH PRESIDENTIAL TERM. Number of votes to which each State is entitled. STATES. PRESI DENT. VICE-PKE8IDENT. James Monroe, of Virginia. O y 1 Daniel D. Toripkins, of New York. |Eich;ird HtocKton, of New Jersey. I"- aj d S f Eichard Eush, of Penn sylvania. 1 Daniel Itodney, of Delaware. 8 15 4 9 8 29 8 24 4 11 26 15 11 8 12 8 8 8 8 8 8 8 9 3 New Hampshire. Massachusetts. . . Ehode Island. .. 7 15 4 1 7 7 \ 1 8 Connecticut 9 q 8 8 New York 29 oq 8 B Pennsylvania.. . . 24 94 Delaware 4 4 Maryland Virginia North Carolina. . South Carolina . . Georgia Kentucky Tennessee 11 25 15 11 8 12 7 10 95 l 15 11 R .... 12 7 Ohio 8 8 Louisiana 8 8 Indiana. 3 2 8 o Illinois. 3 s Alabama s 8 Maine q q Missouri 3 223 3 1 215 8 l 1 4 The whole number of electors appointed being 235, including those of Missouri, of which 118 make a majority ; or excluding the electors of Missouri, the whole number would be 232, of which 117 make a majority; but in either event, James Monroe, of Virginia, is elected President, and Daniel D. Tompkins, of New York, is elected Vice-President of the United States. Whereupon, The President of the Senate declared James Monroe, of Virginia, duly elected President of the United States, commencing with the 4th day of March next ; and Daniel D. Tompkins, Vice-President of the United States, com mencing with the 4th day of March next. The votes of the electors were then deliv ered to the Secretary of the Senate ; the two Houses separated, and the Senate returned to their own Chamber, and then adjourned. IN SENATE. Tuesday, February 20, 1821. . (" Annals of Congress," p. 360.) Mr. Barbour submitted the following mo tions for consideration : Resolved, That a committee "be appointed to join such committee as may be appointed by the House of Representatives, to wait on the President of the United States, and to notify him of his reelection to the office of President of the United States. Resolved, That the President of the United States be reouested to cause to be transmitted to Daniel D. Tompkins, Esquire, of New York, Vice-President of the United States, a notifi cation of his reelection to that office. IN SENATE. Wednesday, February 21, 1821. (" Annals of Congress," p. 362.) The Senate proceeded to consider the motion of yesterday to appoint a joint committee to wait on the President of the United States, and to notify him of his reelection, and agreed thereto; and Messrs. Barbour and King, of New York, were appointed the committee on the part of the Senate. The Senate proceeded to consider the mo tion of yesterday, requesting the President of the United States to notify the Vice-President of his reelection ; and agreed thereto. IN HOUSE OF REPRESENTATIVES. Wednesday, February 4, 1821. ("Annals of Congress," p. 1147.) A message from the Senate informed the House that the Senate have appointed Mr. Barbour a teller on their part, agreeably to the resolutions of the 13th instant, in relation to the mode of examining the votes for President and Vice-President of the United States. Mr. Clay, from the joint committee, to whom the subject had been referred, reported the following resolution : Resolved, That the two Houses shall assem ble in the Chamber of the House of Repre sentatives, dn Wednesday, the 14th of Febru ary, 1821, and the President of the Senate, seated on the right of the Speaker of the House, shall be the presiding officer of the Senate, and the Speaker shall be the presiding officer of the House ; that two persons be ap pointed tellers on the part of the House, to \ make a list of the votes as they shall be de clared ; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, and the person elected, to the two Houses assembled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Resolved, That if any objection be made to the votes of Missouri, and the counting or omitting to count which shall not essentially change the result of the election, in that case they shall be reported by the President of the Senate in the following manner : Were the votes of Missouri to be counted, the result would be for A. B. for President ol the United States, votes ; if not counted for A. B. as President of the United States. votes; but in either event, A. B. i< elected President of the United States, and ir the same manner for Vice-President. JAMES MONROE, PRESIDENT. 37 Mr. Clay offered some remarks explanatory of the considerations which governed the com mittee in recommending the resolutions which had been reported. As convenience rendered it necessary for the Senate to meet this House here in its own Hall, it was due to that, body by courtesy and propriety that the President should be invited to preside, he being the officer designated by the Constitution to per form a certain duty appertaining to the occa sion which called the two Houses together. As to the second resolution, the state of the votes for President and Vice-President was well known, though unofficially, and as the votes of Missouri could not affect the result it was considered by the committee, to obviate the unpleasant difficulty which would otherwise arise in the joint meeting, better to provide for the case in the manner proposed. This course was deemed by the committee the most expedient under all the circumstances, and he hoped the House would adopt it, the more especially as the Senate had already concurred in it. The question was taken on the first resolu tion, and agreed to without a division, though several nays were heard. The question being stated on the second reso lution, Mr. Randolph said he could not consent to this special verdict, as it had been called in the case of Missouri. He could not recognize in this House or the other House, singly or conjointly, the power to decide on the votes of any. State. Suppose, he said, you strike out Missouri and insert South Carolina, which also has a provision in its constitution repugnant to the .Constitution of the United States, or Virginia, or Massachusetts, which had a test, he believed, in its constitution, was there any less power to decide on their votes than on those of Missouri? He maintained that the electoral college was as independent of Congress as Congress of them, and we have no right, said he, to judge of their proceedings. Mr. Randolph said he would rather see an interregnum or see no votes counted at all, than to see a principle adopted which went to the very foundation on which the presidential office rested. Suppose a case in which some gentleman of our House or the other should choose to turn up his nose at the vote of some State and say that if it be so and so, such a person is elected, and if so and so, What-you-call-em is elected did not everybody see the absurdity of such a propo sition ? Mr. Randolph added other remarks il lustrative of his opinion of the course proposed by the resolution, deeming it not only errone ous, but erroneous in a matter of vital impor tance in the ascertainment of the person who had been elected by the people Chief Magis trate of the nation, the most important office under the Constitution the monarch for, whoever in any country commands the army and navy, and collects and distributes the reve nue, is a king, call him what you will. The time of this House was precious, and he would not consume it by saying all he thought and felt on the subject. Mr. Trimble was far from designing to con sume the time of the House or to embarrass the House, but he could not give his consent to this resolution. If anything was due to State rights this resolution ought not to be adopted, as it would, however immaterial in the present case, be cited hereafter as a precedent, and prece dents are becoming important things in the public transactions. The House might set an example, by this vote, as ruinous in its consequences as any decision which could be made. It was about to declare not what was the true vote for President of the United States, but to state it hypothetically. Mr. Trimble argued at some length against such a course. Suppose some member in joint meet ing should ask the President of the Senate how many votes were given he must answer in the words of the resolution, and therefore, would not state the fact according to the law. It was the duty of the two Houses to enunciate the true state of the vote for President and Vice-President, and the proposed annunciation would not be the fact. He concluded by say ing that he would rather that the votes of Missouri were left out altogether than adopt the course proposed. Mr. Randolph observed that the gentleman was under some mistake on one point. The Constitution of the United States provides, not that the person having a majority of votes should be President, but a majority of the votes of the electors appointed. Now, he de sired to know whether the electors of Mis souri were appointed or not Mr. Floyd said he was aware that the ques tion to agree to the resolution was tantamount to a motion to reject, but he would prefer the latter shape for the question, to show more strongly his opinion of it it would suit his feelings toward it better. We have been going on for several years, said he, accumulating power until scarcely any is left but in Con gress. If they had any power over the votes of Missouri at all, he said, it was when her votes were first received ; but no such power existed. The votes of Indiana, at the last elec tion for President, were counted when pre cisely in the same situation as those of Mis souri now. He protested against this assump tion of authority on the part of Congress, and wished to show his disapprobation of the reso lution in the strongest manner. Mr. Clay said the Constitution required of the two Houses to assemble and perform the highest duty that could devolve on a publio body to ascertain who had been elected by the people to administer their national con cerns. In a case of votes coming forward which could not be counted, the Constitution was silent ; but, fortunately, the end in that case carried with it the means. The two Houses were called on to enumerate the votes for President and Vice-President. Of course, 38 NINTH PRESIDENTIAL TERM. they were called on to decide what are votes. It being obvious that a difficulty would arise in the joint meeting, concerning the votes of Missouri, some gentlemen thinking they ought to be counted, and others dissenting from that opinion, the committee thought it best to pre vent all difficulty by waiving the question in the manner proposed, knowing that it could not affect the result of the election. As to the condition of Missouri, he himself thought her a State, with a perfect moral right to be ad mitted into the Union, but kept out for the want of a ceremonious act which was deemed by others necessary to entitle her to admission. Though, in his opinion, a State in fact, yet not being so in form, her votes could not be counted according to form. He was aware that the question of her admission might come up and be decided in this very shape ; for if Congress allowed her to vote for President, and Vice- President, and counted her votes, it would be a full admission of the State into the Union ; but the committee thought, as there were other and more usual modes of admitting the State into the Union, it was better not to bring up the question in the discharge of this solemn and indispensable duty, but to allow that cere mony to proceed, if possible, without difficulty or embarrassment. Mr. Rhea said the Constitution had in it neither waiving nor elasticity, and it would not bend to circumstances of expediency. The Constitution had declared the duty of Congress in ascertaining the votes for President. It was not competent for them to mend the Constitu tion nor to decide such a question as this pro posed ; and he was opposed to the resolution. Mr. Trimble said the very reason urged for this resolution was that which constrained him to oppose it ; and proceeded further to argue that it would be better to exclude the votes entirely than set such an example. Mr. Calbreth said he could hardly say wheth er he was most gratified at being relieved by the gentleman from Virginia (Mr. Randolph) from being the first to make objection to the proposed resolution, or grieved that he could not have the support of the gentleman from Kentucky, with whom it had given him great pleasure usually to act. The people of Mis souri were by the act of the last session of Congress authorized to form a constitution and State government ; and in the first article of that constitution it is declared that the said State, when formed, "shall be admitted into the Union upon an equal footing with the original States, in all respects whatever." Be lieving that the people of Missouri, having formed a constitution and State government in compliance with the act of last session, in all its provisions and conditions, and consider ing that she is, in fact, a State, and of right, if not in fact (and he inclined to believe she was in fact), a member of the Union, and that she is kept out of the enjoyment of her rights by a sheer act of power he spoke this in refer ence to the act, and not to the actors, that simple justice required her admission to the enjoyment of her rights. Mr. Calbreth said he found on examination of the constitution of Missouri, that all officers, civil and military, are required, before entering upon the duties of their respective offices, to take an oath to support the Constitution of the United States as well as of that State. It is declared (I use the word declared emphatically) by the con stitution of the said State to be the duty of the General Assembly, as soon as may be, to pass such laws as may be necessary " to prevent free negroes and mulattoes from coming to and settling in said State, under any pretext what soever." This last clause is supposed by some to be repugnant to the Constitution of the United States. It is believed that a fair con struction of the clause referred to, taken in connection with the oath which the individual members of the General Assembly are required to take, does not warrant such a conclusion. In the spirit of candor, I ask, gentlemen, said Mr. Calbreth, who entertain this opinion, what is the actual duty of the General Assembly of Missouri, resulting from the oath which they are required to take, and the declaratory clause above referred to ? I appeal to them as statesmen, as politicians, as common laAvyers, nay, as gentlemen of common-sense, whether a fair and liberal construction whether the obvious and only fair construction that can be given to the clause objected to, will not recon cile it with the Constitution of the United States ? Will it not be the duty of the General Assembly of Missouri, acting under their oath, to support the Constitution of the United States, to pass no law which shall violate that oath, or be repugnant to that Constitution ? To use the language of the gentleman from Ohio (Mr. Ross) on yesterday, Can it be be lieved that they will commit perjury by the passage of such a law ? [Here the Speaker reminded Mr. Calbreth that the hour for counting the votes had ar rived, and intimated the propriety of his re marks being brought to a conclusion.] Mr. Calbreth respectfully answered that he knew of no hour appointed for any purpose in relation to the business of the House ; that under the suggestion of the honorable Speaker as well as from a sense of propriety, he should bring his remarks to a conclusion as speedily as possible, consistent with a distinct expres sion of his views upon the subject before the House. It seems to me, Mr. Speaker, said Mr. Calbreth, that if gentlemen could divest them selves of all prejudices if they were not in sensibly influenced by feelings and considera tions not necessarily excited by the provis ion in question, they could have no difficulty in reconciling the seeming conflict between the Constitution of the United States and the so often-referred-to clause in the constitution of Missouri. The General Assembly of Mis souri will undoubtedly feel themselves bound JAMES MOXROE, PRESIDENT. 39 to perform the duty enjoined upon them by the constitution of that State, limited by the paramount authority of the Constitution of the United States, conformably to the oath which they are required to take. If they were to attempt to extend the provisions of any law beyond this limit, their act would be so far Jiot only void, but, if knowingly committed, cfie members would be guilty of perjury. I have no more to add. Mr. Tracy was compelled, lie said, to vote against the resolution, but for reasons very different from those of Mr. Calbreth. He was opposed to the resolution because Missouri was neither a State in the Union nor one out of the Union ; but was in fact a Territory. He could not, therefore, consent that her votes should be counted at all considering them en tirely foreign to the election of President and Vice-President of the United States. Mr. Clay said he would merely observe that the difficulty is before us; that we must decide it when the two Houses meet, or avoid it by some previous arrangement. The committee being morally certain that the question would arise on the votes in joint meeting, thought it best, as he had before stated, to give it the go by in this way. Suppose this resolution not adopted, the President of the Senate will pro ceed to open and count the votes ; and would the House allow that officer, singly and alone, thus virtually to decide the question of the legality of the votes? If not, how then were they to proceed ? Was it to be settled by the decision of the two Houses conjointly, or of the two Houses separately? One House would say the votes ought to be counted, the other that they ought not ; and then the votes would be lost altogether. Would the gentleman from New York prefer that it be decided in the joint meeting? In that case he would find himself in a much leaner majority than on the question yesterday. In fact, Mr. Clay said, there was no mode pointed out in the Consti tution of settling litigated questions arising in the discharge of this subject; it was a casus omissus ; and he thought it would be proper either by some act of derivative legislation, or by an amendment of the Constitution itself, to supply the defect. Mr. Livermore made a few remarks in favor of the resolution. Mr. Rhea made a few remarks in opposition to the resolution. The ground he took was this : that it was not in the power of this House, or of both Houses, by resolution, to remedy a defect in the Constitution. The question on agreeing to the resolution was then decided in the affirmative yeas 90, nays 67 ; as follows : YEAS Messrs. Abbot, Alexander, Allen of Mas sachusetts, Allen of New York, Anderson, Archer of Maryland, Baker, Bateman, Beecher, Campbell, Cannon, Clagett, Clark, Clay^Cook, Cushman, Dane, Darlington, Davidson, Dennison, Dickinson, Eddy, Edwards of Connecticut, Eustis, Fay, Folger, Foot, Ford, Fuller, Gorham, Gross of New York, Gross of Pennsylvania, Hackley, Hall of NewYork, Hemphill, Hendricks, Herrick, Hill, Hobart, Hostetterj Kendall, Kent, Kinsey, Kinsley, Lathrop, Little, Livermore, Maclay, McCoy. McCreary, McCullough, McLean of Kentucky, Mallary, Marc hand, Meech, Meigs, Meigs, Monell, Montgomery, R. Moore, S. Moore, T. L, Moore, Moseby, Murray, Neall, Nelson of Massa chusetts, Parker of Massachusetts, Patterson, Phil- son, Pitcher, Plumer, Eogers, Ross, Sawyer, Ser geant, Silsbee, Sloan, Stevens, Storrs, Street, Strong of Vermont, Strong of New York, Tomlinson, Udree, Upham, VanRensselaer, Walker, Wallis, Wendover, Whitman, and Wood 90. NAYS Messrs. Adams, Allen of Tennessee, Archer of Virginia, Baldwin, Ball, Barbour, Bayly, Blackledge, Bloomfleld, Boden, Brevard, Brown, Brush, Bryan, Buifum, Butler of Louisiana, Case, Cobb, Cocke, Crafts, Crawford, Crowell, Calbreth, Culpepper, Cuthberfc, Earle, Edwards of Pennsyl vania, Edwards of North Carolina, Floyd, Forrest, Gray, Hall of North Carolina, Hooks, Johnson, Jones of Virginia, Jones of Tennessee, Lincoln, Mercer, Metcalf, Morton, Nelson of Virginia, Newton, Parker of Virginia, Pinckney, Randolph, Reid, Rhea, Rich ards, Richmond, Ringgold, Robertson, Ross, Shaw, Simkins, Smith of New Jersey, Smith of Maryland, A. Smyth of Virginia, Smith of North Carolina, Swearinger, Terrell, Tracy, Trimble, Tucker of Vir ginia, Tucker of South Carolina, Tyler, Williams of Virginia, and Williams of North Carolina 67. So the second resolution was agreed to. On motion of Mr. Clay, it was then ordered that a message be sent to the Senate informing that body, that this House, on its part, concurs in the report of the joint committee, and is now prepared to proceed, with the Senate, in the performance of its constitutional duty. [Messrs. Clay, Sergeant, and Van Rensselaer, were the committee on the part of the House of Representatives, to act with the committee of the Senate, in considering the proper mode of proceeding in regard to counting out the electoral votes.] Mr. Edwards, of North Carolina, gave notice he should, on to-morrow at 12 o clock, offer for the consideration of the House a resolution declaring the admission of the State of Mis souri into the Union, containing in all re spects the same provisions as were contained in the resolution from the Senate, which was rejected in this House. On motion of Mr. Clay, and by general con sent, it was determined that the members of this House should receive the Senate on their entrance into the House standing and uncov ered. In the same manner it was determined that a sufficient number of the seats on the right hand of the chair should be set apart for the Senators. Mr. Clay moved that a committee of two members be appointed to receive the Senate and conduct the President of the Senate to the chair and the members to the seats assigned to them. Mr. Nelson, of Virginia, declared his opposi tion to this course. It had been usual for the Speaker of the House to receive the President of the Senate and invite him to a seat beside him, and he saw no reason at this time for the proposed innovation. Mr. Clay said it was true it never had been 40 NINTH PRESIDENTIAL TERM. done before, but having, while he had the honor to preside over this House, witnessed the embarrassments occasioned by the want of such a regulation, he now thought it would be proper to adopt it. The motion of Mr. Clay was then agreed to without a division, though not without nega tive votes. Mr. Nelson remarked in an undertone that he wished he had required the yeas and nays upon it. Mr. Clny and Mr. Hill were appointed a committee accordingly. Soon after the Senate came into the Hall, preceded by its President and attended by its Secretary and Sergeant-at-Arms; and the Presi dent was conducted to the Speaker s chair, the Speaker occupying a chair at his left hand. The President of the Senate then delivered the votes of the States in the following order, to the committee for counting the votes (Mr. Barbour of the Senate and Messrs. Smith of Maryland and Sergeant of this House), and the official authentications, etc., were each of them twice read in an audible tone, and the votes recorded by the Secretary of the Senate and by the Clerk of the House of Representatives, as follows: PRESI DENT. VICE- PRESI DENT. STATES. James Monroe, of Virginia. Daniel D. Tomp- kins, of N. Y. 7 7 15 7 Rhode Island, 4 4 9 9 Vermont 8 8 New York 29 29 8 8 Pennsylvania 24 24 4 11 10 Virginia 25 25 15 15 South Carolina 11 11 8 8 12 12 Tennessee 7 7 Ohio 8 8 3 3 Mississippi 2 2 8 3 Illinois 3 3 Alabama 3 3 9 9 | The scattering votes were as follows: For President, in New Hampshire, there was for John Quincy Adams one vote; for Vice- President there was, in New Hampshire, for Richard Rush, one vote; in Massachusetts, for Richard Stockton, eight votes ; in Delaware, for Daniel Rodney, four votes ; in Maryland, for Robert Goodloe Harper, one vote. The process of this ceremony was very tedious from the length of the verifications, proclamations, etc., and the House did not arrive at this stage of it until after four o clock. "When the votes of the electors for Missouri were announced by the President of the Sen ate, and handed to the tellers Mr. Livermore, of New Hampshire, rose and said : " Mr. President and Mr. Speaker, I object^ to receiving any votes for President and "Vice- President from Missouri, because Missouri is not a State of this Union." A motion was then made, by a member of the Senate, that the Senate do now withdraw to its Chamber ; and the question having been put was decided in the affirmative, and the Senate retired. The House being called to order, Mr. Floyd, of Virginia, then rose and submitted the fol lowing resolution : Resolved, That Missouri is one of the States of this Union, and her votes for President and Vice-President of the United States ought to be received and counted. -Mr. Floyd said he believed that gentlemen must now begin to see the precipice to which the decisions of this House in respect to Mis souri had brought them. He was, as every member must be, tired of the debate on this subject; but he thought that no one could discharge his duty as he ought without inves tigating the merits of the question which he had now proposed. He thought it proper, also, that the yeas and nays should be recorded on every question connected with this subject. That the votes of States whose admission into the Union had not been declared previous to the votes being given in, had heretofore been received for President and Vice-President; he believed the gentleman from New Hampshire would not deny. If such a course had been right heretofore, he did not see why an objec tion should now be made. If innovations on established usage were to be justified by their novelty, then, indeed, all disquisitions on the subject were vain. But the time was, when members from new States were admitted to their seats in this House without the previous passage of a declaratory resolution. That there was a law in the statute-book that any Terri tory having a population of sixty thousand souls might form a constitution and State gov ernment, and be admitted into the Union, no one would deny. Wherever we turn our eyes, said Mr. Floyd, and observe the progress of the Government until the present time, the States have been admitted upon this principle, until in the present case ; and in this case at the last session, a compromise, as it was thought and called, was entered into. Mr. Floyd hesi tated to express in terms all he thought on. this subject ; but he would say, if he had voted for that law at the last session, and opposed now those principles which would naturally grow out of it, he should have said to himself, when he had done so, that he had done in his life one act which he thought dishonorable. JAMES MONROE, PRESIDENT. HTJITI7B Let us now, said he, have the question fairly at issue. Let us know whether Missouri be a State in the Union or not. If not, let us send her an embassador, and treat for her admission into the Union. Sir, we cannot take another step without hurling this Government into the gulf of destruction. For one, I say, I have gone as far as I can go in the way of compro mise and if there is to be a compromise be yond that point, it must be at the edge of the sword. Mr. Archer, of Maryland, said that enter taining the same sentiments as the gentleman from Virginia, with respect to the refusal to admit Missouri into the Union, he yet felt him self bound to move, as he now did, to postpone the further consideration of this resolution in definitely. He was opposed to this House un dertaking to proceed in any manner as to the legality of the electoral votes. He could rec ognize no power in the House of Representa tives on this subject separate from the Senate. The expressions in the Constitution in regard to the counting of the votes of electors, etc., he considered as imperative. All questions arising out of it, according to his construction, must be settled in joint meeting of the two Houses. He could not agree that this House had a right to determine whether any vote should bo received or rejected. What are the words of the Constitution? "The President of the Senate shall, in the presence of the Sen ate and House of Representatives, open all the certificates, and the votes shall then be count ed." Does it not follow, asked Mr. Randolph, that the votes must be counted in the presence of the two Houses? For what purpose do they assemble together, unless it be to determine on the legality of the votes ? If not for this pur pose, the joint meeting is for form and show, and nothing else. We must, in my apprehen sion, determine the question in joint meeting, and in no other way. Entertaining this opin ion, he said, he should vote for the indefinite postponement of any proposition the object of which is to determine in this House the legality or illegality of any electoral vote. At the last election of President an objection was made by the gentleman who now presides to receiving the votes of Indiana, because they were given in before the passage of the act declaring her admission into the Union. On that occasion, as now, the Senate retired. I thought then, as now, said Mr. Archer, that they had no right to retire until the question was settled. On that occasion, as now, the House determined to postpone indefinitely the objection. The motives which induced that determination were doubtless various ; it was my opinion then that it was improper to en tertain the objection in the House, and I think the same of the present proposition. Mr. Randolph said it was not without reluctance that he offered himself to the attention of the House at this time ; but he submitted to the Vv / / very worthy gentleman from Maryland, who had just taken his sea^^roroft^tbef. which he had in view coula^mjui dlu^ to his own views of propriety, be effectuated by the course which he had recommended to this House. It was no part of his nature, Mr. Randolph said, nor of his purpose to inflate to a greater magnitude this exaggerated question of the admission of Missouri into the Union. But the question had now assumed that aspect which, had it depended on him, it should have taken at an earlier period of the session. It was, he said, not only congenial with the prin ciples and practices of our free Government, but unless he was deceived with the practice of that country from which we had adopted, and wisely adopted, our manly institutions, that, on any occasion where any person presents himself to a representative body with creden tials of title to a seat, he shall take his seat, and perform the functions of a member until a prior and a better claim shall not only be preferred but established. It was seen that, but the day before yesterday, the Committee of Elections of this House came forward with a report stating that the qualifications and re turns of certain members were perfect, who have been acting and legislating, and on whose votes the laws of the land have depended for the last three or four months. Just so it ought to have been with regard to the Representative from the State of Missouri. She had now, said Mr. Randolph, presented herself for the first time in a visible and tangible shape. She comes into this House not in forma pauperis, but claiming to be one of the co-sovereignties of this confederated Government, and presents to you her vote, by receiving or rejecting which the election of your Chief Magistrate will be lawful or unlawful. He did not mean by the vote of Missouri, but by the votes of all the States. Now comes the question whether we will not merely repel her, but re pel her with scorn and contumely. Oiti bono f And he might add quo warranto. He should like to hear, he said, from the gentleman from New Hampshire (Mr. Livermore) where this House gets its authority; he should like to hear some of the learned or unlearned sages of the law with which this House, as well as all our legislative bodies abound, show their authority for refusing to receive the votes from Missouri. Mr. Randolph said he went back to the first principles. The electoral colleges, he said, are as independent of this House as this House is of them. They had as good a right to pronounce on their qualifica tions as this House has of those of its mem bers. Your office, said he, in regard to the electoral votes, is merely ministerial. It is to count the votes, and you undertake to reject votes. To what will this lead ? Do you ever expect to see the time when there shall be in the presidential chair a creature so poor, so imbecile, not only not worthy of being at the head of the nation, but not worthy of being NINTH PRESIDENTIAL TERM. at tlie head of a petty corporation? do you ever expect to see in that office an animal so poor as not to have in this House retainers to enable him to reject the vote of any State which, being counted, might prevent his con tinuance and their continuance, and that of their friends in office ? He spoke not of the present incumbent he was not so wanting in common decency and decorum as to do so he spoke in reference not only to what is past, but to that which is prospective, and which every man, who looks the least into futurity, must know will happen, and, in all probability, will very shortly happen. He undertook to say that if this House should, by a vote of indefi nite postponement for the form was immate rial or in any other way, and it would be ob served, for the first instance, in the person of Missouri, of this much-injured, long-insulted, and trampled-upon member of this confed eracy, was this example to be set if, said he, you do, for the first time, now receive the votes of a State, it will be created into a pre cedent, and that in the lifetime of some of those who now hear me, for the manufacture of Presidents by the House. The wisest men may make constitutions on paper as they please. What, Mr. Randolph asked, was the theory of this Constitution ? It is that this House, except upon a certain contingency, has noth ing at all to do with the appointment of Presi dent and Vice-President of the United States, and when it does act, must act by States, and by States only can it act on this subject, un less it transcend the limits of the Constitution. What, he asked, was to be the practice of the Constitution as now proposed ? That an in formal meeting of this and the other House is to usurp the initiative, the nominative power, with regard to the first two officers of the Gov ernment ; that they are to wrest from the peo ple of the United States their indefeasible right of telling us whom they wish to exercise the functions of the Government, in despite and contempt of their decision. Is there to be no limit to the power of Congress no mound or barrier to stay their usurpation ? "Why were the electoral bodies established ? The Consti tution has wisely provided that they shall as semble each by itself, and not in one great as sembly. By this means, assuredly, that sys tem of intrigue which was matured into a sci ence, or rather into an art here, was guarded against. But Mr. Randolph ventured to say that the electoral college of this much-despised Missouri, acting conformably to law, and to the genius and nature of our institutions, if it were composed of but one man, was as inde pendent of this House as this House was of it. If, however, said he, per fas aut nefas, the point is to be carried ; if the tocsin is to be sounded; if the troops are to be rallied, and Missouri is to be expelled with scorn from our august presence how august, Mr. Speaker, I leave it for you to decide there are those who will be willing to take her to their arms, and, in point of mere expediency, he would ask of gentlemen he put the suggestion in that shape because he believed they were in accessible to other considerations in point of expediency, he asked them, what were they now doing but riveting those ties by which Missouri would, he trusted, forever be bound to that section of the country by which, with whatever reason, her rights have been sup ported on this floor ? I do look with a senti ment I cannot express, said Mr. Randolph I look with a sentiment of pity and that has been said to be nearly allied to love, as I know it to be allied to a very different emotion I look with pity on those who believe that, by their feeble efforts in this House, governed by forms and technicalities your Sergeant-at- Arms and committees of attendance, and mum meries such as belong to other countries where I have never traveled, and trust in God I never shall they can stop the growth of the rising empire in the West. Let gentlemen lay a resolution on the table, let it be en grossed in a fair hand, and do yon, Mr. Speak er, sign it, that the waves of the Mississippi shall not seek the ocean, and then send your Sergeant-at-Arms to carry it into execution, and see whether you can enforce it with all the force, physical or moral, under your con trol. Mr. Randolph concluded by expressing his hope that the gentleman from Maryland would withdraw his motion for indefinite postpone ment. Mr. Archer, of Virginia, said he believed it was pretty well ascertained that he was willing to go as great lengths as any man in this House to support the rights of Missouri. He regretted that, even in this skirmish, he was obliged to separate himself from those with whom he had acted with so much pleasure and with so much zeal. But he could not maintain, what he should do by voting for this resolution, that Missouri is now a State of this Union. Was it contended that Congress has not a right to require the submission of the constitution of a new State to its consideration before she be comes a member of the Union? If so, would any man contend that Congress had not a right to pass, in some shape or other, upon the constitution of any new State? Was there any one of his colleagues who would say that there was no possible case in which he might not be induced to reject the constitution of Missouri? Suppose the constitution she has offered had been notoriously aristocratical, was there any man among them who would not have given his vote for the exclusion of Missouri from the Confederacy? W r e presume not. If he were to give his vote for this reso lution, Mr. Archer said, he should contradict all the language he had hitherto held in respect to Missouri ; for, if she was a State without the consent of Congress, she had no right to complain of oppression by the refusal of Con gress to recognize her. JAMES MONROE, PRESIDENT. 43 Mr. Archer said lie should continue to rep robate the odious and foul combination by which Missouri is kept out of the Union, but should he give a vote for this resolution he should feel himself precluded from doing so. If, indeed, the case were presented, whether the member from Missouri should be admitted to a seat on this floor, he should give a vote affirm atively, for it would be tantamount to an ad mission of the State of Missouri into the Union. But were he to vote for this proposition, he should vots for an evident solecism ; it would be saying that, though it has been decided that Missouri shall not be admitted into the Union, yet she shall exercise the highest functions of a member of the Confederacy. Mr. Archer said he could not hold that language, or pre sent himself in that character. Opposed in general postponements, he should vote against the proposed postponement, in order to meet the question directly. He had no notion, he added, of the doctrine which he had heard for the first time to-day, that you may have a problematical or hypothetical election of a President or Vice-President. Suppose the re sult of the election depended on the votes of Missouri, and the same course was to be pur sued which was now indicated, the President of the Senate would have to announce that, in one event, we had a President, while in another we had not, and the Government would be left without a head, and a dissolu tion of the Union would be the possible im mediate consequence. He was a little sur prised, he said, at one ground which had been taken on this occasion, that the House had no power to pass any judgment on any return. He had always thought that wherever was lodged the power to receive a return, there also was the power to pass a judgment on the validity of that return. Suppose any territory not within the limit of the United States at the time, Florid-a, for example, to send votes here for electors, was there no authority by which these votes could be rejected? Suppose a State entitled to 27 votes should send 37 votes, would any gentleman contend that there was no power in this House to judge of the proper number ? Could there ever be a pure election ; could it ever be ascertained who was elected, in the event of the establishment of a doctrine of that sort? Mr. Archer con cluded by declaring his readiness to adopt any measure to bring Missouri, now trampled down by power, into the Union, but he could not vote for this resolution. Mr. Clay next obtained the floor, but gave way to allow Mr. Randolph to make an ex planation. Mr. Randolph said it was highly probable that the few remarks which he had made might give rise to misapprehensions in the minds of other gentlemen, as they had done in the mind of his colleague ; he, therefore, wished to explain. His position, he said, was misunderstood. It had been said, and pertinently said, that Missouri might be admitted into the Union in more ways than one. His position, then, was, that this is the first instance in which Mis souri has knocked at the door and demanded her rights. It is now for us, said Mr. Ran dolph, by permitting her to come in, or rather by refraining from extruding her from this Hall, to determine whether she shall now be one of our commonwealth, or, as the fashion is to call it, of our empire. Mr. Randolph said he had no doubt that Congress might drive Mis souri into the wilderness, like another son of Hagar. If we do, said he, we drive her at our own peril. If either of the worthy Senators and Representatives from Missouri, whose long for bearance had excited surprise in no man s breast more than in that of Mr. Randolph he did not mean to blame them for pursuing the counsel of cooler heads than his had pre sented themselves here, would you (address ing the Speaker) have felt yourself bound to exclude them from the communion with more than papal power ; not only from the cup of wine, but from the bread of life itself? Let me tell my friend before me (Mr. Archer), we have not the power which he seems to think we possess ; and if this be a casus omissus in the Constitution, I want to know where we acquire the power to supply the defect. You may keep Missouri out of the Union by vio lence, but here the issue is joined. She comes forward in the person of her presidential and vice-presidential electors, instead of that of her Representatives, and she was thus pre sented in a shape as unquestionable as that of New York, Pennsylvania, Massachusetts, or the proudest anil oldest State in the Union. She comes forward by her attorneys her electors. "Will you deny them admittance? Will you thrust her electors, and hers only, from this Hall ? Mr. Randolph said his friend had not given to this subject the sort of consideration which he knew him to be capable of giving it. I made no objection, said Mr. Randolph, to the votes of New Hampshire, Maine, or Vermont. I have had as good a right to object to the votes of New Hampshire as the gentleman from New Hampshire has to object to the votes of Missouri. Who made thou, Cain, thy brother s keeper? Who put Missouri into cus tody of the honorable gentleman from New Hampshire? The electors of Missouri are as much homines probi et legales as the electors of New Hampshire. This, Mr. Randolph said, was no skirmish, as it had been called. ^ This was a battle when Greek meets Greek ; it was a conflict not to be decided between the pha lanx and the legion, whether the impenetra bility of the one or the activity of the other shall prevail. Let us buckle on our armor, said Mr. Randolph; let us put aside all this flummery, these metaphysical distinctions, these legal technicalities, these special plead- 44 NINTH PRESIDENTIAL TERM. ings, this dry minuteness, this unprofitable drawing of distinctions without difference; let us say now, as we have said on anoth er occasion, we will assert, maintain, and vindicate our rights, or put to every hazard what you pretend to hold in such high estima tion. Mr. Randolph said he recollected perfectly well in the celebrated election of Thomas Jef ferson and Aaron Burr they live, said he, illustrious examples of the merits of their re spective partisans what were we then told ? Why, that we must withdraw our opposition, or there would be no election ; that a dissolu tion of the Union impended; that volcanoes began to play; that earthquakes yawned be neath us; and recollect, sir, we had a Presi dent in the chair who had a majority in this House, small as it was. He treated the idea of giving way with de rision and scorn. We said we will not give way, and you must take the consequences. We appealed, said Mr. Randolph, to the good sense of the nation, and I do now appeal to this nation, said he, whether this pretended sympathy for the rights of free negroes and mulattoes is to supersede the rights of the free white citizens, of ten times their whole num ber. They gave way, sir, said Mr. Randolph ; the sheep is the most timid and helpless of all animals; it retreats before any attack is of fered to it. The President of the United States, said Mr. Randolph, possesses great powers and highly responsible functions, and should be looked up to with veneration and deference, because he is the Chief Magistrate of a people, legally ap pointed by their suffrages. But a President of the United States, appointed by the exclusion of the votes of those who are the same flesh and blood as ourselves for the people of Mis souri are not natives of Missouri, with the ex ception of a few French, and still fewer Span iards is no more the Chief Magistrate of this country than that thing that pageant which the majorities of the two Houses proposed to set up just twenty years ago a President made by law no, by the form and color of law, against the principles of the Constitution, and in violation of the rights of the freemen of this country, sir, said Mr. Randolph, I would not give a button for him. On his per sonal account, and for his personal qualities, I might treat him with respect as an individual, but as Chief Magistrate of this country he would be more odious in my judgment than one of the house of Stuart attempting to seat himself on the throne of England, in defiance of the laws of succession and of the opinion of the people. We have, I am afraid, so long basked in the impure atmosphere, not of this House, but of this court, that Mr. Clay here claimed the floor, which he had yielded to the gentleman only for the pur pose of making an explanation. Mr. Randolph took his seat, saying that he would give way to the honorable gentleman in every thing but one. Mr. Clay said he really saw no difficulty in this business ; and, before he sat down, should make a motion with a view to put an end to this discussion. The House and Senate have, by a joint act, this - day agreed that, in the event of an objection being made to the vote of Missouri, her vote should be counted hypo- thetically ; that the whole number should be announced, including the vote of Missouri, and that the number should also be stated as it would be, the vote of Missouri being excluded ; and, the result not varying, that it should be declared that, in either case, the person hav ing the largest number of votes was duly elected. The motive which operated on the joint committee in recommending this course, and on the two Houses in adopting it, was to avoid the very difficulty into which the House was about to precipitate itself. It was an ef fort to provide, by previous arrangement, for the very contingency which has arisen. The moment the objection was made, in that in stant the rule adopted this morning took effect. Mr. Clay said it therefore appeared to him, with very great deference to the course of the Presiding Officer of the Senate, that he ought to have gone on, and, after the votes had been summed up, to have made the annunciation as proposed in the joint resolution adopted this morning. The two Houses ought not, in the opinion of Mr. Clay, to have separated until they had consummated what had been stipulated for. He was now not unwilling to take up any prop osition on this subject or any other, however unwilling he might have been to meet it at any other time. He was opposed to do so, because to do so is a violation of good faith between the two Houses, as pledged by the arrange ment of this morning. He had not a doubt, he said, that Missouri might be admitted into the Union in a variety of ways, and very pos sibly, on proper examination, the mode now proposed might be one of them, by the two Houses, jointly or separately, giving her the exercise of a right which, as a State, would belong to her. The House, however, as well as the Senate, had virtually determined to get round that question to-day, and to put an end to any controversy which might arise in re spect to it, in the manner contemplated by the second resolution passed this morning. Mr. Clay, therefore, moved that the subject now under consideration be laid on the table, in order to resume the business which had been interrupted by the retirement of the Senate. Mr. Storrs demanded the reading of the first resolution which passed this House, as com pared with that which passed the Senate. [Here took place an explanation of a varia tion which had taken place in the form of the resolve. As it came from the Senate, the President of the Senate was to preside over the joint JAMES MONROE, PRESIDENT. 45 meeting. As reported by the committee on the part of this House, the President of the Senate was to preside over the Senate, and the Speaker was to preside over the House of Rep resentatives. This alteration was made, be cause it was known that the House of Repre sentatives would not have agreed to the other course, and a collision might hav^ arisen be tween the two Houses. It may be added that the Seaat-a were not aware, when they came into the Hall, of the change of arrangement, but supposed it to stand as they had voted it. Their retirement from the Chamber arose from the President of the Senate having learned these facts after he was seated in his place in the Hall. He would otherwise, it is supposed, have gone on to proclaim the result, immediately after Mr. Livermore s objection, as prescribed in the resolution.] Some conversation took place between Messrs. Smith of Maryland, Clay, Randolph, Nelson of Virginia, Foot, and Cobb, as to the state in which matters would be, on the Sen ate s return. Some of the gentlemen con tended that, on the Senate s return, matters would stand just as they did before, and the same difficulty as had already presented itself would again arise. Others contended, and the majority appeared to be with them, that, on the return of the Senate, the President would go on to declare the result, as directed in the second joint resolution of this morning. Mr. Livermore, in the course of these des ultory remarks, took an opportunity to vindi cate his conduct in offering the objection to the votes of Missouri. It was a duty neces sary to be performed by somebody ; having no wish to be forward in the business, he had endeavored to persuade several gentlemen to present it ; but, they declining to do so, it had become his duty to do it, and in his opinion he had done it at the proper moment.* The question was taken on Mr. Clay s mo tion to lay Mr. Floyd s resolution on the table, * February 17, 1821. MESSRS. GALES A^D SEATON : In your report of the transactions in the House of Rep resentatives on the 14th instant, you observe that " Mr. Livermore took an opportunity to vindicate his conduct in offering his objections to the votes from Missouri." But you omit the only circumstance which rendered any observations on his part necessary, for certainly the objection was in substance proper, and every member of Congress had a right to make it. The truth is, Mr. Smith, of Maryland, in the course of debate, said to this effect, that the abrupt departure of the. Senate, and all the difficulty which ensued, ought to be imputed to the gentleman from New Hampshire, Mr. Livermore, who made his objection too soon, instead of waiting, as he should have done, till after the Missouri votes were counted. In answer to this charge, Mr. Livermore made a few re marks, which you have not reported, but which probably convinced even Mr. Smith that the objection to counting the votes from Missouri was interposed at the proper moment. A. D. [Our correspondent is perfectly right. Mr. Livermore did not certainly vindicate the course he had taken, until it had been impugned by others. We were so cramped for room in our report, that wo were obliged to general ize the incidental remarks, and, in doing BO, perhaps a wron? impression may have been given to Mr. Liver- naore s observations.] EDITORS National Intelligencer. and decided in the affirmative, yeas 103. And then, on motion of Mr. Clay, it was ordered that a message be sent to the Senate to inform that body that the House is now ready to re ceive the Senate in the Chamber of the House of Representatives, for the purpose of continu ing the enumeration of the votes of the elec tors for President and Vice-President, accord ing to the joint resolutions agreed upon be tween the two Houses, and that the Clerk go with the said message. The Clerk accordingly went with the said message, and he being returned The Senate again appeared, and took seats in the House as before. The President of the Senate, in the presence of both Houses, proceeded to open the certifi cate of the electors of the State of Missouri, which he delivered to the tellers, by whom it was read, and who registered the same. And the votes of all the States having been thus counted, registered, and the lists thereof compared, they were delivered to the Presi dent of the Senate, by whom they were read, as already printed. The President of the Senate then, in pursu ance of the resolution adopted by the two Houses, proceeded to announce the state of the votes to the two Houses of Congress, in joint meeting assembled, as follows : " Were the votes of Missouri to be counted, the result would be : For James Monroe, of Virginia, for President of the United States, 231 votes; if not counted, for James Monroe, of Virginia, 228 votes. For Daniel D. Tomp- kins, of New York, for Vice-President of the United States, 218 votes: if not counted, for Daniel D. Tompkins, of New York, for Vice- President of the United States, 215 votes. But in either event, James Monroe, of Virginia, has a majority of the votes of the whole number of electors for President, and Daniel D. Tomp kins, of New York, has a majority of the votes of the whole number of electors for Vice-Presi dent of the United States." The President of the Senate had proceeded thus far, in the proclamation, when Mr. Floyd, of Virginia, addressed the chair, and inquired whether the votes of Missouri were or were not counted. Cries of "Order! order! " were so loud as to drown Mr. Floyd s voice. [The President of the Senate had hesitated in the proclamation, on Mr. Floyd addressing the Chair.] Mr. Randolph rose, and was addressing the Chair, when loud cries of "Order! order!" resounded from many voices. The Speaker pronounced Mr. Randolph to be out of order, and invited him to take his seat. Mr. Brush demanded that Mr. Randolph should be allowed to proceed, and declared his determination to sustain his right to do so. Mr. Brush was also loudly called to order. Mr. Floyd demanded of the Chair whether he was considered in order or not NINTH PRESIDENTIAL TERM. The Speaker determined that he was not in order at this time, the only business being, at that present time, that prescribed by the rule of this morning. There was considerable murmuring at this decision, but order was restored, when the President of the Senate concluded his annun ciation as follows: u I therefore declare that James Monroe, of Virginia, is duly elected President of the United States, for four years to commence on the fourth day of March, 1821; and that Daniel D. Tompkins, of New York, is duly elected Vice-President of the United States, for the like term of four years, to commence on the said fourth day of March, 1821." As the President concluded, Mr. Randolph addressed the Chair ; but was required to take his seat. On motion, by a member of the Senate, the Senate retired from the Hall. After they retired, and the House being called to order, Mr. Randolph, who had still retained the floor, was heard addressing the Chair. He spoke for some time, without being distinctly heard, owing to the confusion in the hall. He had, he said, seen every election of President of the United States, except that of the present Chief Magistrate, and he had never before heard any other form of proclamation than that such was the wlwle number of votes given in ; that such a person, A or B, had so many, and was therefore elected President or Vice-President of the United States. On this occasion no such annunciation had been made, and the presiding officer might just as well have said that James Claxton or Thomas Dunn was elected President of the United States. Were gentlemen to be put down by clamor and by force here for getting up to assert, not only their rights, but the rights of the whole people of the United States? Sir, said he, your election is vitiated ; you have flinched from the question; you have attempted to evade the decision of that which was essential to the determination of who is not elected Chief Magistrate of the United States. Mr. Randolph concluded his remarks by moving resolutions declaring the election to be illegal, etc. They were as follows: 1. Resolved, That the electoral votes of the State of Missouri have this day been counted, and do constitute a part of the majority of two hundred and thirty-one votes given for Presi dent, and of two hundred and eighteen votes given for Vice-President. 2. Resolved, That the whole number of electors appointed and of votes given for President and Vice-President has not been announced by the presiding officer of the Senate and House of Representatives, agreeably to the provision of the Constitution of the United States, and that therefore the proceeding has been irregular and illegal. While Mr. Randolph was reducing his mo tion to writing, several gentlemen claimed the floor. The Speaker determined that Mr. Lathrop was entitled to it ; and Mr. Lathrop moved to adjourn. Mr. Floyd claimed the right of the floor, as rising first, mid demanded to be heard. The Speaker affirmed Mr. Lathrop s right. Mr. Floyd was about appealing from the de cision of the Chair, but did not. Mr. Ringgold having demanded the yeas and nays on the question of adjournment, the ques tion was taken accordingly as follows : YEAS Messrs. Adams, Allen of Massachusetts, Allen of New York, Anderson, Baker, Bateman, Beecher, Boden, Buffurn, Cannon, Case, Clagett, Clark, Clay, Cooks, Crafts, Culpeper, Cushman, Cuthbert. Dane, Darlington, Dennison, Eddy, Ed wards or Connecticut, Edwards of Pennsylvania, Fay, Folger, Foot, Forrest, Fuller, Gorham of New York, Gross of Pennsylvania, Guy on, Hackley, Jlall of New York, Hardin,lHemphill, Hendricks, Herrick, Hibshman, Hill, Hobart, Hooks, Hostetter, Ken dall, Kinsey, Kinsley, Lathrop, Lincoln, Livermore, Maclay, McCoy, McCullough, Mallary, Marchand, Meech, Meigs, Monell, R. Moore, S. Moore, Morton, Moseley, Murray, Nelson of Massachusetts, Parker of Massachusetts, Patterson, Phelps, Philson, Pitcher, Pluiner, Rankin, Richards, Richmond, Robertson, Rogers, Ross, Russ, Sargeant, Silbsee, Sloan, Ste vens, Street, Strong of Vermont, Strong of New York, Tomlinson. Tompkins, Tracy, Udree, Upham, Van Rensselaer, "Wallace, "Wendover, Whitman, and Wood 95. NAYS Messrs. Alexander, Allen of Tennessee, Archer of Maryland, Archer of Virginia, Baldwin, Barbour, Bayly, Bloomfield, Brevard, Brown, Brush, Bryan, Campbell. Cobb, Crawford, Calbreth, David son, Earle, Edwards of North Carolina, Floyd, Gar- nett, Gray, Hall of North Carolina, Jackson, John son, Jones of Virginia. Little, McCreary, McLean of Kentucky, Mercer, Metcalf, T. L. Moore, Neale, Nelson of Virginia, Newton, Pinckney, Randolph, Reid, Rhea, Ringgold, Shaw, Swearingen, Trimble, Tucker of Virginia, Tucker of South Carolina, Tyler, Williams of Virginia, and Williams of North Caro lina 50. IN HOUSE OF REPEESENTATIVES. Thursday, February 15, 1821. ("Annals of Congress," p. 1167.) The Speaker then announced the unfinished business of yesterday, being Mr. Randolph s resolutions respecting the legality of the elec toral votes; and, on the question, "Will the House now proceed to the consideration of these resolutions? it was decided in the nega tive by a maj-ority of about 30 votes. IN HOUSE OF REPRESENTATIVES. Wednesday, February 21, 1821. (" Annals of Congress," pp. 1193, 1194.) A message from the Senate informed the House that the Senate have passed a resolution proposing the appointment of a joint commit tee to wait upon the President of the United States and inform him of his reelection to that office, and have appointed a committee on their JAMES MONROE, PRESIDENT. part ; in which bill and resolution they ask the concurrence of this House. The resolution from the Senate for the ap pointment of a joint committee to wait on the President of the United States and notify him of his reelection to the office of President of the United States was read and agreed to by the House, and Messrs. Smith of Maryland, and Eustis, were appointed of the committee on the part of this House. TENTH PRESIDENTIAL TERM. 1825-1829. JOHX QUINCY ADAMS, President ; JOHX C. CALHOUX, Vice-Presidnet. IN HOUSE OF REPRESENTATIVES. Wednesday, January 26, 1825. ("Congressional Debates," Vol. I., pp. 362, 363.) Mr. Wright, from the select committee ap pointed to prepare rules to be observed in case the election of President and Vice-President shall devolve on this House, made the follow ing report : The committee appointed " to prepare and report such rules as, in their opinion, may be proper to be observed by this House, in the choice of the President of the United States, whose term of service is to commence on the fourth day of March next, if, on counting the votes given in the several States, in the manner prescribed in the Constitution of the United States, it shall appear that no person has re ceived a majority of the votes of all the electors of President and Vice-President, ap pointed in the several States," report that the following rules be observed by the House in the choice of a President of the United States, whose term is to commence on the fourth day of March, 1825, if the choice shall constitu tionally devolve upon the House : 1. In the event of its appearing, on open ing all the certificates and counting the votes given by the electors of the several States for President, that no person has a majority of the votes of the whole number of electors ap pointed, and the result shall have been declared, the same shall be entered on the Journals of this House. 2. The roll of the House shall then be called, and, on its appearing that a member or members from two-thirds of the States are present, the House shall immediately proceed, by ballot, to choose a President from the per sons having the highest numbers, not exceed ing three, on the list of those voted for as President ; and in case neither of those persons shall receive the votes of a majority of all the States on the first ballot, the House shall con tinue to ballot for a President without inter ruption by other business, until a President be chosen. 3. The doors of the Hall shall be closed during the balloting, except against members of the Senate and the officers of the House ; and the galleries shall be cleared on request of the delegation of any one State. 4. From the commencement of the ballot ing until an election is made, no proposition to adjourn shall be received, unless on the motion of one State, seconded by another State ; and the question shall be decided by States. The same rule shall be observed in regard to any motion to change the usual hour for the meeting of the House. 5. In balloting, the following mode shall be observed, to wit : The Representatives of each State shall be arranged and seated together, beginning with the seats at the right hand of the Speaker s chair, with the members of the State of Maine, thence proceeding with the members from the States in the order the States aje usually named for receiving petitions, around the Hall of the House, until all are seated ; A ballot-box shall be provided for each State ; The Representatives of each State shall in the first instance ballot among themselves, in order to ascertain the vote of their State, and they may, if necessary, appoint tellers of their ballots ; After the vote of each State is ascertained, duplicates thereof shall be made out, and, in case any one of the persons from whom the choice is to be made, shall receive a majority of the votes given, on any one balloting, by the Representatives of a State, the name of that person shall be written on each of the duplicates; and, in case the votes so given shall be divided, so that neither of said per sons shall have a majority of the whole num ber of votes given by such State on any one balloting, then the word "divided" shall be written on each duplicate ; After the delegation from each State shall have ascertained the vote of their State, the Clerk shall name the States in the order they are usually named for receiving petitions ; and, as the name of each State is called, the Ser- 48 TEXTH PRESIDENTIAL TERM. geant-at-Arms shall present to the delegation of each, two ballot-boxes, in each of which shall be deposited, by some Representative of the State, one of the duplicates made as afore said, of the vote of said State, in the presence and subject to the examination of all the mem bers from said State then present; and, where there is more than one Representative from a State, the duplicates shall not be* deposited by the same person ; When the votes of the States are thus all taken in, the Sergeant-at-Arms shall carry one of the said ballot-boxes to one table, and the other to a separate and distinct table ; One person from each State represented in the balloting shall be appointed by its Repre sentatives to tell off said ballots, but in case the Representatives fail to appoint a teller the Speaker shall appoint ; That said tellers shall divide into two sets as nearly equal in number as can be, and one of the said sets of tellers shall proceed to count the votes in one of said boxes, and the other set the votes in the other. When the votes are counted by the differ ent sets of tellers, the result shall be reported to the House, and if the reports agree, the same shall be accepted as the true votes of States ; but if the reports disagree, the States shall proceed in the same manner as before to a new ballot. 6. All questions arising after the balloting commences requiring the decisions of the Hotue, which shall be decided by the House, voting per capita, to be incidental to the pow er of choosing a President, shall be decided by the States without debate, and in case of an equal division of the votes of States, the ques tion shall be lost*. 7. When ekher of the persons from whom the choice is to be made shall have received a majority of all the States, the Speaker shall declare the same, and that that person is elected President of the United States. 8. The result shall be immediately commu nicated to the Senate by message, and a com mittee of three persons shall be appointed to inform the President of the United States, and the President-elect, of said election. The report was read and ordered to lie on the table. Ix HOUSE OF REPEESENTATIVES. Wednesday, February 2, 1825. ("Congressional Debates," Vol. L, pp. 419-434.) On motion of Mr. Wright, of Ohio, the House then resolved itself into a Committee of the Whole on the State of the Union, and took up the report of the select committee ap pointed to prepare rules to be observed by the House in choosing a President of the United States. The report was read through, and then The rules were read and considered sepa rately. On the first rule some conversation took place between Mr. Bassett, of Virginia, and Mr. Wright, the chairman of the select committee. No alteration, however, was made in the rule. The second rule was then read, and no ob jections were made to it. The third rule was read, as follows : 3. The doors of the Hall shall be closed during the balloting, except against members of the Senate and the officers of the House ; and the galleries shall be cleared on the re quest of the delegation of any one State. Mr. Ingram, of Pennsylvania, moved to amend this rule by striking out the last clause, viz., and the galleries shall he cleared on the request of the delegation of any one State." Mr. Ingram stated that, as a member of the select committee who had made the present report, he had, when this rule was brought forward in the committee, objected to that part of it which he now moved to strike out ; and he had objected then, as he did now, to the clause in question, because he apprehended that there was no good reason for putting it in the power of the delegation of a single State (consisting, in some instances, of a single in dividual) to clear the galleries of this House. He could not conceive that there was any need to go into conclave in order to conduct the approaching election. It was not a meas ure involving our relations with foreign na tions, but a matter of a purely domestic char acter. Yet this rule enforces secrecy in re gard to the transaction, if required even by a single individual, and that in the most obnox ious form. He had rather have the rule made absolute at once, and say that the galleries, as well as the doors of the House, shall be closed, than to give authority to the delegation of one State to have them cleared. He was at a loss to account for such a proposition. He sup posed that there must be some special reason for granting such a power, but he could not conceive what it was. Was any distrust en tertained of the personal safety of members of this House ? Surely, the power of the Speaker over the galleries would be as great on the contemplated occasion as at the present mo ment ; and the existing rules of the House clothed him with full authority to have the galleries cleared in case of disorder. Believing that no good reason existed for the clause in question, he hoped it would be stricken out. Mr. McLane, of Delaware, said that, when the honorable member from Pennsylvania rose, he had been about to offer an amendment to the rule, in conformity with the opinion he had expressed when in committee ; and he should now acquiesce in the amendment which that gentleman had offered, provided the principle on which he himself wished to go was adopted by the House. He was for clear ing the galleries altogether, without leaving it to the delegation of any State to require that it should be done. In giving his reasons in JOHN QUINCY ADAMS, PRESIDENT. 49 favor of this course, lie wished it to be dis tinctly understood that any remarks he might make had no reference whatever to the pecul iar state of things existing at the present moment. He thought the question ought to be treated as involving an important precedent, and ought to be considered on principles that were to govern on this occasion and all others, not only now, but hereafter. He felt himself called on by his duty to state these principles. He felt, very fully, the responsibility of his situation, and wished to assert the rights which he conceived to pertain to the members of this House at the present moment, while the na tion was in a state of calmness and quiet a time peculiarly favorable for the adoption of rules calculated to provide for a season of great party excitement. Mr. McLane asked : Why ought the galleries to be open? Why must this balloting be con ducted in public? In electing a President, the members of the House were called to act, not as representatives of the people, but as umpires, to do that which the people have tried to do and have not been able to accom plish. The people have tried to elect a Presi dent ; they have failed to do so. The House of Representatives are then empowered to choose one for them. This power is not dele gated to them by their constituents, but by the Constitution ; and in exercising it they have no peculiar relation to their constituents, and are not responsible to them further than every honest man is responsible to his conscience and his country for his public acts. He should consider the question now presented as a new one, and should put wholly aside what had at any time been done respecting it. Who, asked Mr. McLane, has a right to inspect my de cision between conflicting claims to the Presi dency? In ordinary cases he granted that the people had a right to look to the acts of their Representatives and exercise a sort of inspection over them. Yet, even this was not al ways per mitted to them by the Constitution. It provides that, in certain cases, the public eye shall be ex cluded, either when the subject of deliberation is of such a nature that an important public measure must be frustrated if prematurely disclosed, or when, from the excited state of public feeling, an improper influence is appre hended as endangering the freedom of debate. No such state of feeling existed now ; but it not only might exist, and that in an alarming de gree, but to such a degree as to become wholly irresistible. If the principle shall once be established that the representatives of this people, standing on this floor to vote or to de bate, are improperly to be controlled, it is in those galleries that the object is to be effected. If ever popular tumult and a general excite ment of national feeling are to jeopardize the freedom and endanger the purity of this body, it is in those galleries that they will show their power. For his own part, Mr. McLane said, he thought that in so important an act as the choice of the Chief Magistrate of this nation, it was fitting and becoming that members should be left to act from the cool dictates of their judgment, and that they alone were the judges how they ought to act. With them the Constitution had intrusted the duty, and there it might be safely trusted. Mr. McLane said that he made these remarks from the fullest conviction of their truth. He thought that now, in a time of public tranquillity, a precedent might be set that would prove valu able hereafter. He felt great deference, also, for the precedent that had been already estab lished in this respect. At the election of a President in 1801, this subject had been in trusted to able hands, and, after full delibera tion, they had thought it expedient to admit no person as a spectator of the election, but members of the Senate and officers of this House, and the election was so conducted. Mr. Buchanan said he rose with diffidence to express his opinion upon this subject. Like his friend from Delaware (Mr. McLane), he disclaimed the intention of making any remark which might have an allusion to the peculiar situation of members of this House in regard to the approaching election. He considered the present to be a question of great impor tance, and that its decision would establish a precedent which, in future times, might have a powerful influence npon the interests of thi? country. He was sorry to say he had arrived at a conclusion in direct opposition to that of his friend from Delaware [Mr. McLane]. The reasons which had led him to that result he would state to the House. The American people, saidMr.Buchanan, have a right to be present and inspect all the proceed ings of their representatives, unless their own interest forbids it. In relation to our concerns with foreign Governments, it may become ne cessary to close our galleries. Our designs, in such cases, might bo frustrated, if secrecy were not, for a time, preserved. Whenever there shall be disorder in the gallery, we have also a right to clear it, and are not bound to suffer our proceedings to be interrupted. Except in these cases, he at present could recollect none which would justify the House in excluding the people. In electing a President of the United States, said Mr. Buchanan, we are, in my opinion, peculiarly the representatives of the people. On that important occasion we shall, emphati cally, represent their majesty. We do not make a President for ourselves only, but also for the whole people of the United States. They have a right to insist that it shall be done in public. He, therefore, protested against going into a secret conclave, when the House should decide this all-important question. He said that the doctrine of the gentleman from Delaware [Mr. McLane], was altogether new to his mind. That gentleman has alleged that we are called upon to elect a President, 50 TENTH PRESIDENTIAL TERM. not as the representatives of the people, but by virtue of the Constitution. Sir, said Mr. Buchanan, who created the Constitution ? Was it not the people of the United States ? And did they not, by this very instrument, delegate to us, as representatives, the power of electing a President for them ? It is by virtue of this instrument we hold our seats here. And, if there be any case in which we are bound to obey their will, this is peculiarly that one. To them we must be answerable for the proper exercise of this duty. What are the consequences, said Mr. Bu chanan, which will result from closing the doors of the gallery ? We shall impart to the elec tion an air of mystery. We shall give exercise to the imaginations of the multitude, in con jecturing what scenes are acting within this Hall. Busy Eumor, with her hundred tongues, will circulate reports of wicked combinations, and of corruption, which have no existence. Let the people see what we are doing; let them know that it is neither more nor less than putting our ballots into the boxes, and they will soon become satisfied with the spec tacle, and retire. The gentleman from Delaware [Mr. McLane], has urged upon us the precedent which now exists on this subject. Mr. Buchanan said he revered the men of former days, by whom this precedent was established. He had good rea son, however, to believe that the intense ex citement which existed at that time among the people, at the seat of Government, was oc casioned, in a considerable degree, by their exclusion from the gallery. They came in crowds into the House, but were prohibited from entering the Hall. Currents and counter- currents of feeling kept them continually agi tated. New conjectures of what was doing within were constantly spreading among them. Mystery always gives birth to suspicion. If those people had been permitted to enter, much of the excitement which then prevailed would never have existed. It has been said that there might, and prob ably would be, disorder if we admitted the people into the gallery. Mr. Buchanan could scarcely believe this possible. He had too high an opinion of the American people to suffer himself to entertain such an apprehen sion. Should we, however, be mistaken, where is the power of the Speaker ? W T here that of the House ? We can then turn them out, and we shall then have a sufficient apology for -doing so. But to declare, in the first instance, that they shall be excluded, upon the request of any one out of twenty-four States, would be a libel both upon the people of the United States and the members of this House. Mr. Buchanan asked pardon for this expression, if it were considered too harsh. Mr. Buchanan said he knew well his friend from Delaware was willing that all his conduct, in regard to the presidential question, should be exhibited before the public ; and that it was principle, and principle alone, which had suggested his remarks. That which gives this subject its chief im portance, Mr. Buchanan said, is the precedent. He was anxious that it should be settled on sure foundations. If the rule in its present form should be adopted, it may, and probably will, be dangerous in future times. At present our Republic is in its infancy. At this time he entertained no fear of corruption. In the approaching election it can, therefore, make but little difference whether the galleries shall be opened or closed. But the days of dark ness may, and, unless we shall escape the fate of all other republics, will come upon us. Cor ruption may yet stalk abroad over our happy land. When she aims a blow at the liberties of the people, it will be done in secret. Such deeds always shun the light of day. They can be perpetrated with a much greater chance of success in the secrecy of an electoral conclave than when the proceedings of the House are fully exposed to the public view. Let us then establish a precedent which will have a strong tendency to prevent corrupt practices here after. Mr. Buchanan concluded by observing that, whether we regard the precedent to be set, the nature of our Government, our own charac ter, or that of the people whom we represent, they all conspire to induce us to adopt the amendment. Mr. Livermore, of New Hampshire, thought there was no necessity for any further rule, in relation to the galleries, than that which now existed. Provision was already made to clear the galleries whenever the House thought proper. This was sufficient. Why should a majority of all the members surrender this power to the delegation of a single State? He saw no reason. Why, asked Mr. Liver- more, are gentlemen so much alarmed ? He was persuaded that no more disorder was to be apprehended from the gallery, in conduct ing an election of President of the United States, than in choosing a Sergeant-at-Arms for this House. For himself, he hated all mystery. He considered it a characteristic attendant of tyrannical governments, and he thought that the proposal to conduct this elec tion in secret was a proof that we were not yet quite divested of certain old notions which our ancestors brought with them from the other side of the Atlantic. He hoped that all that would be done, on this occasion, would be done in a plain, manly, simple, republican manner. Mr. Webster, of Massachusetts, would say a few words on the question, premising that more importance seemed to be attached to it than he thought belonged to it. He presumed no practical inconvenience would arise, wheth er the motion prevailed or not ; and yet, per haps, it might be well to consider the sub ject duly, as, hereafter, possibly, the question might be of consequence. He did not see any JOHN QUIXCY ADAMS, PRESIDENT. 51 particular benefit arising from providing that the galleries should, at all events, be open. There could be no debate when the House was proceeding in the election ; and the voting must be by ballot. There was nothing to be done or said, but to give the ballots and count them. Something had been said of the super intendence which the people might exercise on this occasion, if the galleries were open. That was what he did not exactly understand. The people of the United States would hardly be in the gallery. Some hundred or two of the inhabitants of this city, those who should get up earliest, and get seats first, would be accommodated in the gallery, and others could not get in. He believed that he himself, find ing some difference of opinion in the commit tee, upon the former rule, had suggested this modification. He was entirely willing the galleries should be open ; and yet he was en tirely willing to have them closed, if any State desired it. And particularly, as it would be very inconvenient to discuss and settle these questions, after the House had begun to act as States, it seemed to him reasonable to make provision, beforehand, for this, as for other cases. He regretted both that the gentleman from Pennsylvania wished to expunge the rule altogether, and that the gentleman from Dela ware wished to shut the galleries altogether. He thought the rule would do very well as it stood. It should be considered that, in some cases, very many persons were to express the voice of a State ; in other cases, a single indi vidual. Now, if either a numerous delegation, or a single individual representing a State, ex pressed a wish that spectators should not .be admitted to the gallery, he was willing to in dulge that request so much the rule provided, and no more. He repeated, however, that he thought a very unsuitable and disproportionate importance might be given to this question, which he should much regret. Mr. Wright, of Ohio, said that, individually, he had no objection to the amendment. If it were required to give publicity to the pro ceedings of the House upon this subject, he should certainly favor it, because he was gen erally of opinion the affairs of the Government should be conducted openly in the face of the world, as he considered the government as resting on the will and information of the people. But, Mr. Wright said, in the dis charge of the duties now to be undertaken, we ought to look to a future time, when the country shall be in a state of excitement, that shall reach and affect those in the galleries, and thence operate on the House. It will be recollected that the only time at which this House had heretofore exercised the power of electing a President, it had been solemnly de cided the doors should be closed, except as to members of the Senate. That determination was not made without deliberation, but upon solemn debate, and by a vote of yeas and nays. Mr. Wright said he felt, in some measure, the influence of that precedent, and had never heard any objection to the mode of conducting the ballotings on that occasion. In reply to those who seemed to suppose it impossible that any disturbance should take place in the galleries, Mr. Wright said he had an exalted opinion of the virtue and intelli gence of the people ; but we need not shut our eyes upon the evidence before us, and we need not go further back than one year for a most glaring instance of excitement and disorder in the gallery of a legislative hall of one of the States of this Union, while the Legislature were transacting business relating to the very election, the determination of which is now devolved on us by the Constitution; and per haps, he said, it would not be going too Tar to say that excitement might be feared now. Gentlemen seemed to suppose that, by closing the doors, an injunction of secrecy was im posed on the members and officers of the House, in regard to the proceedings, and that the whole were to remain secret. That, Mr. Wright said, was not the case the rule pro posed no such thing; publicity could easily be given for everything done. The journals were free for inspection, and it was surely safer to rely on them, than reports from the galleries. It had been well observed by the gentleman from Massachusetts [Mr. Webtser] that all the proceedings relating to the election were to be without debate; that, besides the ballotings, all were conducted by motion, second, and de cision. This being the case, the results were all that could be Communicated to the people in the galleries, and they would be as well communicated at the doors of the House. All that those in the galleries could see or hear, in addition to the results, would be the mechanical operation of dropping the bal lots into the boxes and lifting them out again. I, said Mr. Wright, would vote as readily against the imposition of an injunction of secrecy, on the proceedings relating to the election, as the gentleman from Pennsyl vania [Mr. Ingham], or any other gentleman on this floor; but I cannot admit that any such proposition is embraced in this rule as it stands. Sir, said Mr. Wright, it is not the people of the United States, the sober, thinking people, that will be found in your galleries on such occa sions ; no, they are at home, attending to their farms, their merchandise, their various other avocations ; they will not assemble in the gal leries, or be hereafter affected by the precedent you establish. It will be the artful, intriguing, designing politicians, from various parts of the country, to witness, and if it can be, to exert an improper influence over your proceedings, and these I am not very solicitous to accom modate. I hope, sir, the amendment will not prevail, and that we shall not, against the wish of any one State, keep the galleries open for the exer tion of undue influence, or to place members TENTH PRESIDENTIAL TERM. in a situation where any can suppose they are unduly operated on. Mr. Eoss, of Ohio, observed that, according to his understanding of the proposed rule, if it was adopted, the proceedings of the House would remain, at least for the time, completely in the dark. Hie demand of a single State, not even seconded by another State, was to he of itself enough to compel the House to clear the galleries. Why was tins rule to be adopt ed ? The only reasons he had heard advanced were, that the House must go into this con clave from a fear of interruption interrup tion, not from themselves, but from the people in the gallery ; that the people of the United States were not expected to be present here, and that those who attended in the gallery would he such as were not entitled to any con sideration. This, according to his understand ing, was the sum and substance of the reasons adduced in favor of the rule. But, for him self, he helieved that the people of this country understood the rules of decorum as well now as they did when the Constitution was formed, and that there was no more danger of disturb ance now than then. Whether gentlemen sat here as umpires and arbitrators, or as the representatives and or gans of the people, was a question on which he certainly had an opinion, but which he did not consider it necessary at present to discuss. But, whether acting in one or the other capa city, he could not see why the gallery should be closed. The House had the power already to remove from it disturbers of the peace, and if gentlemen meant so to conduct as to meet the approbation of their own consciences, they had no reason to fear those who would be in the gallery. And, if they were not afraid to have their conduct judged, why close the doors? All seemed to agree that no dangerous excitement existed at present. Was it, then, to be got up in two or three days, and to such a height as to threaten the safety or indepen dence of the House ? For himself, he could wish not only to have the people present, but that the votes of all the members were to he given viva voce. He regretted that there was any ballot at all on the question, and was ut terly opposed to all closing of doors. Mr. Hamilton, of South Carolina, ohserved that he felt desirous of detaining the com mittee a few moments in offering a remark or two on the subject before them. It seems to be a well-settled conviction that it is a great public misfortune that the election of a Chief Magistrate should devolve on this House ; and he would go further and say that, in so devolving, it was perhaps a still greater mis fortune that the choice should be made by secret balloting in the several and separate States, which, by its nature, precluded the public knowledge, which the people ought to have, of the votes of their representatives, on a question so vitally interesting to them, and under sanctions so solemn and imposing. For one, he was free to confess, as the people were precluded, by the very form of election, from this species of knowledge, he was disposed to let them in as spectators to whatever might pass in relation to the exercise of this great trust ; and in making this remark, he concurred cordially with the gentleman from Ohio, in wishing that, in spreading all our acts and do ings before the public eye, during the ap proaching contest, we could likewise subject each delegate to the direct responsibility of a viva voce suffrage. This being impossible, he was disposed to consider the assembly of such citizens as thought proper to come into our gal leries, as curing, in a slight degree, the defect of which he had spoken in the mode of elec tion. They would have a contemporary op portunity of witnessing the vote of each State, and thus information, which it was right and proper that the people should have, would be promptly disseminated, in a form, he thought, better to keep the public mind quiet, than those thousand rumors and suspicions which naturally belong to mystery and concealment. The gentleman from Delaware, however, meets this subject at its threshold by asking " what right any man has to go into the gal leries to see what is doing in regard to the election of a President." I answer, because that man happens to be one of the people for whom we are acting and for whom we are choosing a Chief Magistrate, and because he has precisely as much right to witness the election as any act of ordinary legislation; and, according to the theo_ry of this democ racy, it is infinitely more expedient that he should witness the one ceremony than the oth er." Mr. Hamilton said that he thought the popular eye would have a salutary influence in repressing any indecorum and violence to which, in moments of peculiar agitation, the House, constituted as it was, was perhaps even more liable than the spectators in our galler ies. They are fortunately exempt from many of those strong biases of favor and antipathy which may lamentably exert an influence with in this bar. The gentleman from Delaware does not af firm that there is any danger at this time in admitting our fellow-citizens into the galleries, but he contends that, at a future period, this House might be subject to intimidation from the violence of a mob who would assemble to witness the scene to which we are shortly to be summoned. Sir, when that day of profli gate violence arrives, the atrocity of which cannot be put down by the force of public opinion when a corps of such desperadoes are permitted, for an instant, to exercise such an influence, all spirit will have departed from this House and all purity and moral worth from the people, and the forms we may cher ish here will be but a solemn mockery. When a few hundred persons, scarcely equal to our own numbers, convened in those seats, can successfully exercise acts of intimidation on JOHN QUINCY ADAMS, PRESIDENT. the representatives of ten or twenty million people to an absolute reversal of their sover eign will, it may be well imagined that the en ergy of the Government and public virtue are buried in a common grave. The argument, if it is worth anything, could be urged to show that it is expedient that we should even legis late in the conclave of a Turkish divan. The truth is, that many subjects of ordinary dis cussion and common legislation are better cal culated to produce popular excitement than the election of a President by this House. During the former, popular prejudices and, I may say, the feelings of public vengeance may be addressed by the arts and electricity of popular eloquence. In the latter, our business is confined to one act, that is, in placing for ourselves, or having it placed for us, a small strip of paper on which the name of an indi vidual shall be written. The ceremony pre cludes the possibility of debate, and almost the only motion which can be put is one that will have relation to the period when the act of balloting is to be renewed on the contingency of continued failures to elect. It is impossible to conceive, in the forms of the transaction it self, fewer circumstances calculated to provoke popular violence and commotion. u Besides, 1 said Mr. Hamilton, "I think the very habits of our people forbid any apprehensions, either present or future ; " and, however little con soling it may be to the pride of some, he thought there was as much honesty outside of the walls of our House as there was within them. He supposed that the individuals who would at present, and in times to come, occupy the seats in our gallery, would, a majority of them, be citizens of this District, who he be lieved were as exempt from the character of corrupt intriguers and noisy brawlers as the people of any section of our country, although the gentleman from Ohio [Mr. Wright] seemed to think that our spectators, whenever we have a President to elect, must consist of the very worst and most abandoned species of our pop ulation. "For myself," said Mr. Hamilton, u satisfied that no precedent we shall now es tablish will be binding, and that posterity will have the same right that we have to take care of themselves, and being equally satisfied that the ordinary power possessed by the Speaker to clear the galleries in the event of occasional disorder, meets all the exigencies of the pres ent crisis, I hope that every citizen of this land, let him come from where he will, may be al lowed to witness an event in which he -has precisely as great an interest as we have our selves, more particularly when presence can in no degree impair a sound, efficient exercise of the agency we have to exert. Mr. Hamilton said he would, before he took his seat, notice one or two remarks which fell from the gentleman from Delaware (Mr. Mc- Lane). This gentleman, in a very manly decla ration of the course which he intended to pur sue in the approaching election, has thought proper, as furnishing the best illustration of the principles which should govern him in that course, to affirm that he does not feel himself bound by the wishes, either expressed or implied, of the people whom he represents on this floor, and that he was in no greater de gree responsible to them than to the rest of the country for the selection which he should make of the person for whom he should vote to fill the Presidency. It is not my business, said Mr. Hamilton, to quarrel with the princi ples or the opinions of the gentleman from Delaware, for whom I have personally great respect, but, nevertheless, I hope I may ba pardoned for venturing to express my own. The first obligation which a human being owes, is to his own conscience. If this monitor tells us that a candidate for office is dishonest and unworthy, no human power ought to compel us to vote for him. But, while I lay down this primary principle thus broadly, I am as equally satisfied that, in the present election, which belongs peculiarly to the people, which has come to us on a forlorn and disastrous contingency, if we have no moral objections to the person who, among the candidates, is preferred by the particular people we represent here, we are bound to surrender our mere per sonal preferences and prejudices, and to en deavor to carry into effect their honest, reason able wishes. This position harmonizes with the whole theory of our representative democ racy; and, to suppose that an agent of the people is absolved from all deference (and he might almost say obedience) to their obvious wishes, by the mere circumstance of our being organized into States for this exclusive pur pose, is at once to sap those great foundations of responsibility and control on which our en tire system rests. In a word, he thought the true rule was in a very narrow circle, which was that, after satisfying our own consciences, the next best thing was to gratify the reasona ble and honest purposes of those who send us here. Mr. Hamilton said that the gentleman from Delaware, in urging the House to adopt the rule for the exclusion of spectators from the gallery during the election, had relied, with no ordinary emphasis, on the precedent which had been established by the Congress of 1801, in the celebrated, he could not say nefarious, contest between Mr. Jefferson and Mr. Burr. As this part of the gentleman s argument he puts on the ground of authority and not reason, he would venture to hint that he (Mr. Hamil ton) had some serious misgivings that people would not look to those times as furnishing the instructive examples of public freedom; for, he believed, it would be susceptible of proof, by referring to the Journals, that most of those who voted then for the proposed ex clusion from the galleries were those who had most strenuously supported the alien and se dition law. He did not make this allusion for the purpose of throwing a fire-brand into the 54 TENTH PRESIDENTIAL TERM. House, but he appealed to it as an historical fact. In conclusion, Mr. Hamilton said that he really hoped that no groundless apprehensions would induce the House to retain a rule which, by the mystery which would be incident to its enforcement, would beget a thousand times more excitement than if our galleries were thrown open to the whole world. Mr. McLane again rose, not for the pur pose of entering at large into the debate, but merely to correct some misapprehensions which appeared to exist, in relation to the remarks which he had first submitted. It was certainly far from his intention either to stir up old em bers, or to brighten any existing flame. Far less was it his intention to advocate any rule which had for its object the concealment of his own course of conduct, in regard to the elec tion of President. He neither had nor could have any concealment on that point. His opinions, at all times, and in all circumstances, had been openly known, and he meant that they always should be. If he even desired concealment, he could not effect it he stood here with no colleagues. The vote he w r as about to give must be publicly known, and, whenever it was given, it should be given with a single eye to the interests of our com mon country. Could there, indeed, be any concealment in the matter? Did not every member of this House know how his own col leagues intended to vote ? And would he not disclose that knowledge? But to whom? To the people in the gallery ? Could they discover, while the act of balloting was going forward, for whom those ballots were given ? Certainly not. He could not, for his part, denounce the arrangement made by the Constitution on this subject. Viva toce might be a very good mode of voting for President, but, whether good or bad, was not now the question. It was not the mode which the Constitution had pre scribed. He again repeated that his object was not to effect any concealment, for himself or for others. The course which each member would pursue would be known to this House, and it would be known to the country in time to correct it, if erroneous. But his object, Mr. McLane said, was to prevent the exertion of an influence which, at some period hereafter, might operate to warp and swerve members from the conscientious discharge of their duty. It was wholly on the ground of precedent that Mr. McLane was desirous to record his vote in favor of this rule. Surely no gentle man who knew anything of history could need any arguments to convince him how tremen dous such influence as that which he depre cated, might easily become. Nor was it hard to say how it might be got up. A county meeting is held ; votes are passed, approving or disapproving the anticipated conduct of a Representative in the House, and directing him what course to pursue. And if the affair stopped here there would be no danger. But it might go further ; constituents may be brought to the scene of action, with the intent of intimidating and overawing the members of this House. The time might come when this would happen though it may not now ; and, if the gentleman from South Carolina shall then live and cast his eyes on such a scene, Mr. McLane was persuaded that he would do jus tice to himself and to his motives on this occa sion. That gentleman says that the people have a right to know what is done in this House. Sir, said Mr. McLane, I agree with him that they have. He says further, that he cannot go with me in the doctrine that our constituents have no right to control us in the vote we are about to give for President. But, for myself, I am free to say that, however I respect the opinions of my constituents in all cases of ordinary legislation, in this case I do not know them ; I act as a judge and as an umpire. I know perfectly that great respect is due to public opinion when fairly expressed. But even public opinion, if, in my conscien tious belief, it has run wild or gone astray, shall not govern me. The Constitution has imposed it on us as a duty to choose a President when the election by the people fails. Now, if my constituents have a right to instruct me in this respect, the constituents of the gentlemen from South Carolina have an equal right to instruct him, and so have the constituents of each member of this House. And, if gentlemen are bound to obey, and the country remains divided, the result will be, that this House cannot choose a President any more than the people can. The last remedy provided by the Constitution fails, and all those evils rush upon the country at once, which are the obvious result of such failure. It is expressly to guard against this that the Constitution provides, in the resort to this House, a tribunal which shall be perfectly independent and above popular control. When up before Mr. McLane said he had re ferred to the precedent of 1801 as bearing upon the present case. In answer to the ar gument drawn from it, the gentleman from South Carolina had denied any weight to the precedent, because it was derived from the ad ministration of the Government by the Federal party. Mr. McLane expressed his regret that anything should have fallen from that gentle man which might have a tendency to revive animosities which, for the happiness of the country, ought never to be disturbed. But, he said, if this subject was to be introduced, he was willing to meet the gentleman from South Carolina. The precedent he had referred to was a precedent set in party times, and of the Federal party. But, said Mr. McLane, it does not, because it is a precedent of the Federal party, come to me w r ith less title to respect. Is this the only precedent of that party ? It is the precedent of a party, says the gentleman, capable of enacting the alien and sedition laws. True, it is, and it is the precedent of JOHN QUINCY ADAMS, PRESIDENT. 55 a party which organized this Government which put it in motion after building it up, and established the policy which, wisely cher ished, had made this nation, at this day, pros perous at home and respected abroad. It is a precedent of the same party that established the judiciary, built up the navy, created an army, and laid the foundations of the system of national defense, which has afforded to us se curity at home and protection abroad. After copying from that party all these measures of national glory and prosperity, why will not the honorable gentleman receive from it also this precedent, which has the same motives, and the same great objects in view ? In all other cases the Federal party consulted the true interests of the country ; and their measures were cal culated to subserve them, or it has been folly to adopt them. In the case now brought into precedent they had the same objects in view, and the gentleman will find, if he adopt their policy in this respect also, he will reap the fruits of this as he has done of other prece dents set by them. Mr. Floyd, of Virginia, said ho had no dis position to say much on this subject, but, holding the opinion which he did of the most deliberate character that, not only on this sub ject, but on all others, there should be no secrecy whatever in the proceedings of the Government, he was not disposed to vote on this question now without saying a few words. He was not disposed to set a precedent now, to be governed by hereafter in a state of ex citement. Is there any excitement now? The opinion of every member of the House in re gard to the presidential election is made up decidedly and distinctly, and can be expressed in open sitting as well, and no doubt as honest ly, as if our doors were closed, and I was sorry to hear the gentleman from Delaware say that the presence of persons in the galleries could have no effect on his vote, for I am sure there is not a man in the United States who would suppose such a declaration from him neces sary. In reply to the argument that but a few per sons, who were industrious enough to get up soon, would be able to obtain admission into the gallery, Mr. Floyd asked, if so, why should any gentleman wish to close the gal lery ? Let them indulge their curiosity in this particular he saw no objection to it. Nor could he agree with the gentleman from Ohio that intriguers would be always up in the gal leries for that was not the place for them. The gentleman had also reference to a late oc casion, not more than a year ago, growing out of this very election, in which there were some symptoms of dissatisfaction in the galleries. [Mr. Floyd here was going to remark on this illustration, supposing it had reference to the meeting at the Capitol on the night of the 14th of February last, but Mr. Wright intimated that that was not the incident to which he re ferred.] Mr. Floyd continued : Poor King Caucus having been so much abused and spoken of, sir, I thought the gentleman might have referred to that occasion, where I was myself present for, sir, I was one of that respectable body, and I am yet proud of it. If, however, he meant not to refer to that case, I will refer to a case, the excitement of which, probably in this House, and in the galleries, and out of the House, never was, and never can be, ex ceeded. I allude to the Missouri question during the arduous and protracted discussions of which no disturbance proceeded from the galleries. I am not, therefore, for setting a precedent now, in anticipation of what has never yet happened. If, sir, the Representa tives of the people, in their capacity of in dividuals, or acting by States, are capable of being operated upon by disorders in the gal leries, it is high time for us to go home. But I apprehend no disturbance. In all the trying circumstances of the Missouri question, as re spectful conduct, at least, was exhibited by the galleries as by the House itself. A year or two ago we were three or four days balloting for a Speaker of this House. Was the election of President more important than the election of a Speaker of this House? For himself, since the amendment of the Constitution, he thought the office of Speaker second in the Government. If we can elect a Speaker with out any trouble from the galleries, can we not also elect a President? I would not suffer the belief to go abroad among the people, from over-precautions that we cannot. It has been sometimes said, in reference to the movements of this Government, that the eye of Europe is upon us. Now, Mr. Floyd said, lie would not, in the eye of this people, or of Europe, have this House look like the Conclave of Cardinals, the Council of Ten at Venice, or even the Star Chamber of England. Ho would have the election of a President as public as possible, and let all the people and all the world see all that is done. There would not, perhaps, be much to see ; the ballot-box would be placed on the Clerk s table, he presumed, and the States would deposit their votes in it as called over. That was the mode of proceeding in the caucus last winter, and a more respectable and honorable body of men, he must say, he had never known, and he had no objection to the whole world being spectators of the ceremony. It seemed that it was what happened on a late occasion at New York, that the gentleman from Ohio had referred to. Of that State Mr. Floyd said for she was a great State he would, avoid saying anything; but, if what happened there had happened in Virginia, he should have said as little as possible of it; for the occurrence of the disturbance in the gal leries of the legislative body argued as little in favor of the body which did not suppress and punish the authors of it, as of those who disgraced themselves by making it. As he could not see any reason for secrecy in con- 56 TEXTH PRESIDENTIAL TERM. ducting the affairs of Government generally, he was not willing to sanction it in this in stance. If the Government was, as the gen tleman from Delaware has suggested, strong enough for the purpose of security at home and protection abroad, it had nothing to ap prehend from disorder in the galleries of this House, its power being sufficient to enforce due respect to it. Mr. Floyd said he was rather sorry, for several reasons, that the gentleman from South Carolina should have alluded to the old Fed eral party. He had no doubt that in everything the Federal party had done, not involving its construction of the Constitution, things were as well done as they are now. The error of that party was in not apportioning its legisla- lation and expenditure to the true condition of the country. As to the elder John Adams and Timothy Pickering, he did not at all approve their constitutional opinions, and no one had been more decidedly opposed to them ; but a state of things might occur, and he did not know but it had occurred, in which he believed he would take the old ones in preference to it. If the doctrines of the old Federal party were obnoxious, he did not see that those of the present day were any better. They under took to do everything under the clause of the Constitution to provide for the general welfare ; and so, said Mr. Floyd, do we at the present day. One thing Mr. Floyd thought his friend from Delaware had overlooked. He had said the Federal party built a navy. So they did, said Mr. Floyd, and they sold it, too at least, they provided for the sale of it. The next Admin istration carried the provision into effect, for they were a law-abiding people. I cannot say as much for the present; for I read in the paper of to-day that there is a seventy-four- gun ship, built under an act expressly provid ing for such vessels, which is pierced to carry a hundred and tico guns the same which the President and a number of other persons have been lately on a trip of some seventy miles, to look at and admire. On another point, also, the gentleman from Delaware was somewhat defective in his statement ; the Federal Admin istration did raise an army but they also dis banded it. If that Administration was to be re proached for anything beyond an erroneous construction of the Constitution, it was merely for the extent of their expenditure, etc., and in that extent the latter days of this halcyon Ad ministration were as far in advance of the Federal Administration as that Administration was in advance of public opinion. Mr. Floyd concluded, by saying, that, as he was against secrecy of every description in the affairs of Government, he should vote in favor of this amendment. Mr. Hamilton again rose, and said that he felt it due to himself to make a very brief re ply to the gentleman from Delaware, if it was merely for the purpose of assuring him that, in the allusion which he had made to the alien and sedition law, that it was neither his inten tion nor desire to arouse from their mouldering ashes those embers of party distractions which, he thanked God, had long since passed by. Much less was it his object to fling imputations on a party (among whom had been embraced some of the most valued and cherished friends he had on earth) which, on a variety of occa sions, had rendered services of signal and in estimable value to the country. But he would put it to the candor of the gentleman himself, to say, when he urged a measure for our adop tion, on the mere ground of authority, wheth er it was not admissible for him to show that the authority, according to the popular under standing of the country, came in a rather ques tionable shape. Mr. Hamilton said that he could not deny (for it would be unjust for him to do so) that the Federal party (the very party which passed the alien and sedition law) had contributed to the formation of those great and valuable institutions to which the gentleman had re ferred. But he believed that they were, most of them, the work of joint counsels, and a confederate patriotism, when parties scarcely had a controlling influence on public measures; and while he admitted that several distin guished members of the Federal party had left a large debt on our gratitude, he could not be unmindful of what such men as Jefferson, Madison, and Gallatin had done, in giving ef ficiency and popularity to the form of our Government, by fixing the principles of a wise, economical, and prudent administration. He thought it, however, not a little caustic and unkind in the gentleman from Delaware to appropriate all that had been done for the country, as the trophies of his party ; if, how ever, these were consolations furnished after the loss of power, he surely would not de prive his friend of their enjoyment. But, after all, he had risen merely and distinctly to disclaim any intention to wound the feel ings of a single gentleman on that floor, by an allusion which he thought had laid fairly in his view. Mr. Mercer, of Virginia, then observed that he was very happy that the gentleman from South Carolina had made the explanation he had just given; and he expressed a hope that all party divisions and party feeling would be banished on the present occasion. He thought that the observations of the gentle man from Delaware, himself, had shown that no great injury was likely to result from the admission of spectators. If it was really true, that the sentiments of members were not concealed from each other, the mere clos ing of the gallery would not operate to conceal them from the public, or materially prevent any influence from out-of-doors. Members were not under any injunction of secrecy, and whatever was done within, would almost im mediately be known without. There was then JOHN QUINCY ADAMS, PRESIDENT. 57 no end to be accomplished by the rule, but solely the prevention of disorder; and the only question to be settled was, whether the rule was necessary for this purpose. Mr. Mer cer believed it was not ; he could conceive no reason to apprehend the smallest danger of it. He thought that, under the protection which they enjoyed on all other days, the House would be as free from disturbance on this as on any other occasion. As to the precedent which had been referred to, Mr. Mercer made some remarks, which, from his position in the House, the reporter had but imperfectly heard. Mr. "Webster said he was afraid that an ob servation by the honorable member from Ohio, apparently made in allusion to his remarks, might lead to misapprehension. He had not intimated that the gallery might be filled by persons not entitled to consideration ; no such thing. Ho only spoke of its size, and then only in consequence of the argument that the people of the United States might, from the galleries, superintend the votes of their rep resentatives. Superintend, he believed, was the word. His honorable friend from Vir ginia [Mr. Floyd] seemed, in like manner, to have misapprehended him in this particular. Even if the galleries should be cleared during the proceedings, at the request of a State, there would still be no propriety in speaking of the proceeding as done in con clave, or as kept secret from the people. The Journal would be published daily, as usual. There would be no injunction of secrecy. It was a mere question about the orderly and decorous proceedings the police, as it were of the House. As to the supposition that any gentleman wished to conceal his vote, or to act secretly, there was no one who supposed such a wish to exist anywhere. He was will ing, every member was willing, that his vote should ba known to everybody. He had known questions which he thought as impor tant as this. He might again. The occasion, however, might attract a multitude, and the object was to secure order and freedom from restraint. The gentleman from Virginia had objected to voting on questions of adjournment, etc., by States. But it would be seen at once, that, as the election was to be made by States, every question fairly and really incident to the choice ought to be decided also by States. The Constitution said the House should imme diately elect a President. On the former oc casion, the rule was, that the House should proceed, without interruption from other busi ness and without adjournment, to choose a President. But the latter part of the rule was found impracticable in fact, and avoided afterward, by voting on one day that the next balloting should not take place till the next day; so that all the members were, in fact, quietly sleeping in their beds while the House, according to the Journal and the rule, was all the time sitting. The vote to post pone the balloting, from time to time, was, on that occasion, taken by States. The commit tee had thought proper, on this occasion, to recommend that the House might adjourn on a vote of a majority of the States. He again hoped that too much importance might not be attached to this question. He had no fear of any great inconvenience either way. He saw no question of principle in it. It was a question of expediency ; and he re mained of opinion that the rule prescribed a fit course, upon the whole, to be followed. He certainly was not likely to request the gallery to be cleared ; but if any gentleman, or gen tlemen, representing another State, should make such a request, he thought it ought to be granted ; and, therefore, he approved the rule in its present state. He would state again, and would particularly request the House to consider it, that there might be in conveniences and embarrassments if this ques tion were to be decided, and should arise, after the House had commenced the proceed ing, when it must act by States and without debate. To prevent such possible inconven ience and embarrassment was one object of the rule. Mr. Wright said that, before the question was taken, he wished to correct the misappre hension of the gentleman from South Caro lina [Mr. Hamilton] as to the remarks he for merly made in relation to the kind of people that would crowd the galleries on occasions like the one contemplated. If I understand him right (said Mr. Wright), he supposed me to assert that none but the profligate and worthless people of this District would be found in the galleries, and that I considered none of them worthy a place there. Sir, I am not aware that I said anything of the peo ple of this District or city ; and if I did, I never could have uttered sentiments so entire ly foreign from my feelings as those imputed. I did say, however, that those who crowded the galleries on such occasions would be the unprincipled and profligate politicians of the country, ready for the exertion of any influ ence, however improper and desperate, to effect their object. In this, sir, the people of this city or District were in no way impli cated, and I protest against the gentleman s carrying these declarations into an account against them. Among my acquaintances in the city and District I am proud to rank many for whom I entertain a respect not surpassed by any felt by the gentleman himself, for them, or any other person whatever. The gentleman from Virginia [Mr. Floyd] has said, in allusion to what fell from me, that the intriguers will not make the galleries the theatre of their operations. No, sir, not alto gether. I concur with the gentleman in part; but when they have exerted their influence out- of-doors, and accomplished all within their power there, they will then take possession of 58 TENTH PRESIDENTIAL TERM. the galleries, to observe its effect and opera tion here. A word, sir, as to the motion. It is to take from the delegation of a State the power to clear the galleries. In ordinary cases, the Speaker, or any member of the House, can do it. When we assemble to ballot for President, we lose our individual character, and proceed as the representatives of States, acting only as States ; arid I can see no danger in giving to the representatives of cne sovereignty the power to clear the galleries. It is but a mark of respect to him, and, in my opinion, it is pe culiarly fit and proper that he should have the power to exercise, if the occasion called for it. Mr. McDuffie, of South Carolina, observed that, as, in the course of the debate, principles had been advanced against which he must protest, and against which he intended to vote, he was desirous of giving the subject some discussion, which the lateness of the hour would not at present admit him to do. He therefore moved that the committee rise. The question on rising was put accordingly, and carried yeas 89, nays 71. So the com mittee rose, and obtained leave to sit again. IN HOUSE OF KEPEESEXTATIVES. Thursday, February 3, 1825. (" Congressional Debates," Vol. L, pp. 443-466.) On motion of Mr. Wright, the House went into Committee of the Whole on the State of the Union, and again took up the report of the committee appointed to prepare rules to be observed by the House in the elec tion of a President of the United States. The question recurring from yesterday, on the mo tion of Mr. Ingham, to strike out the last clause of the third rule, which directs that the galleries shall be cleared on the demand of the delegation of any one State Mr. McDuffie rose and addressed the House as follows : Mr. Speaker, If I could agree with the hon orable member from Massachusetts [Mr. Web ster], that this is a proposition of inconsider able importance, I certainly should not ask the committee to bestow any portion of its attention upon any remarks of mine. It is true that the proposition immediately under consideration is apparently of but little mo ment; but when we advert to the principles involved in it, and the consequences which may flow from it, I consider it a subject of very great importance. We have been cor rectly told by the gentleman from Delaware [Mr. McLaneJ that this question derives its importance principally from the consideration that our decision will constitute a precedent for future times ; we are distinctly called upon to adopt the proposition now, not in reference to existing circumstances not with a view to obviate any anticipated disturbances in the gallery daring the approaching election but for the disinterested purpose of providing a precedent for the security of those who are to come after us. A little consideration, I think, will satisfy the committee that the strongest objection to this measure grows out of the fact that it will be regarded as a precedent. If, indeed, it be a matter of small importance ; if we have no cause to apprehend immediate danger ; if no fears are entertained that our proceedings will be disturbed or overawed by any injudicious exhibition of excitement or violence on the part of those who may behold them from the galleries, why should we adopt the proposition ? Whence this extraordinary providence for the security of our successors? Why should we thus gratuitously provide for dangers that may never occur? "Will not those who shall occupy our places in future time be capable of providing for the tran quillity and safety of their own deliberations? If in any future emergency there should be indications that our successors will not be per mitted to exercise the most unbiased freedom of deliberation in performing the important function of electing a President, will the pre cedent we are called upon to establish be ne cessary to enable them to guard against the danger? W T ill not they have the same power then that we have now ? But let us look at the other side of the question. What will be the effect of the adoption of this rule ? Sir, we can be at no loss for an answer to this question. What will be the effect of the adoption of this rule? It is one of those propositions which can only be correctly appre ciated by taking into consideration principles which may seem to be remotely and almost imperceptibly connected with it. What, then, are those principles? Sir, we can be at no loss for an answer to this question. The honorable member from Delaware, with that candor and independence which always characterize his deportment here, comes out boldly and man fully with a distinct avowal of the principles upon which he rests the defense of the prop osition to clear the galleries. W T e are told by that gentleman that the people have no right to inspect our conduct here in regard to this great subject, the election of a President of the United States; that we owe them no responsibility for our conduct in the discharge of that duty, and they have no right to ? [Mr. McLane here rose, by leave, to explain. If, said he, I understand the gentleman as re ferring to any remark made by me, he has cer tainly misapprehended my argument. I dis claim any intention of withholding from the people of the United States a knowledge of our proceedings here. The people have a right to know, and they shall know. The ar gument for which I contended was this : that the immediate constituents of a member of Congress have no right to instruct him in re lation to his vote in the election of a Presi dent ; that he is wholly independent of his constituents in giving that vote, further than JOHN QUINCY ADAMS, PRESIDENT. 59 the responsibility which a high-minded and con scientious man feels in discharging a solemn duty devolved upon him, and his ultimate re sponsibility. I freely admitted that the will of the majority of the people of the United States was entitled to great respect, not to be easily put by, but not of imperative authority, on this question.] Mr. McDuffie resumed. I gave way, with great pleasure, to allow the gentleman from J)elaware an opportunity of explaining, but I do not see that his explanation has materially varied the doctrines I have ascribed to him. It is certain, however, that I have not misrep resented the argument used by that gentle man yesterday, for I have before me his very words, taken down as he uttered them, to which I now call the attention of the commit tee. " We are called upon," said he, " to act here, on voting for a President, not as the rep resentatives of the people." " We are not responsible to the people ; " and he asked, " Who has a right to come here and superin tend or inspect our proceedings ? " These are the precise words used by the gentleman from Delaware ; and, construe them as he may, they convey doctrines against which I feel bound to enter my protest. This rule, supported by these arguments, involves the idea that, in the election of Chief Magistrate of the nation, we act here wholly independent of the peo ple, and under no obligation to regard their will, however solemnly expressed and certain ly ascertained. What would be the impres sion carried down to future times, by the adop tion of this rule, under the existing circum stances? If the question had been taken without argument, and the rule adopted, vari ous opinions would be hereafter entertained as to its principles and its objects. It might be regarded as a mere matter of police. But,- after what has occurred, if it were now to be adopted without some protest against the prin ciples upon which it has been vindicated, what would be the consequence ? It would become a precedent for times less pure, perhaps, than the present, and would be expounded by the argument of the gentleman from Delaware. We should thus contribute to consecrate prin ciples which I am sure this body would never intentionally sanction. Are we not bound, therefore, by the highest considerations not only to reject the rule, but to set the seal of our solemn reprobation upon the arguments by which we have been -urged to adopt it? But let us for a moment inquire into the pernicious uses to which this rule may be applied as a precedent ; the only view in which its advocates regard it as of any importance. Whatever confidence I may have in the purity of the present House of Representatives, I cannot close my eyes upon the probability that its members will not always be elevated above the reach of corruption. Suppose, then, that some future House of Representatives should resolve to elect a President from corrupt mo tives, such as would certainly expose them to the execrations of an indignant people, how would they proceed? Their first step would be to close the galleries, and exclude the pub lic eye from an immediate view of their pro ceedings. But would they stop here ? No, sir ; they would have it in their power to cover their conduct with a veil of impenetrable and eternal mystery, by laying upon the House an injunction of secrecy. Nor would the tempta tion to adopt such a measure be greater than the facility of its adoption. By the rules re ported, the House acts by States on all ques tions incidental to the election. There are six or seven States represented here, upon an av erage, by a little more than a member each, and thirty or forty members, representing a majority of States, could, by cooperation, de cide any question. And thus would you place it in tho power of a small and corrupt minority to screen their conduct forever from the view of those to whom they are respon sible. If, as we have been told, we are to es tablish a precedent for times less pure than the present, let us not put an instrument into the hands of the unprincipled and ambitious, by which they can most effectually consum mate their corrupt and nefarious purposes. Let me now solicit the serious attention of the committee to the extraordinary doctrine avowed by the gentleman from Delaware. Are we, indeed, independent of the people of the United States, in the exercise of the high trust of electing a President ? Do we cease to be their representatives when we resolve our selves into an electoral body to perform that function ? Are we to make a selection without reference to their will, however solemnly and constitutionally expressed? Are we to assume the character of independent judges, acting for ourselves and not for the people ? I will attempt to establish the negative of these ques tions. There are many of our public men who stand high in the estimation of the country, and who have made a distinguished figure in the service of the Republic, who maintain that, even in our legislative capacity, we are bound to yield implicit obedience to the known will of our constituents, however ascertained. A signal instance of the practical recognition of this principle was exhibited some six or eight years ago, in relation to the celebrated com pensation law. That measure, by which the members of Congress provided for the increase of their own pay, produced a degree of popular excitement and dissatisfaction which no ques tion of the same apparent magnitude had ever produced before. And what was the conse quence ? The same Congress, at the very next session, almost before the members were warm in their seats, took steps to repeal the obnox ious law ; and a majority of those who voted for its repeal, avowedly did so against their own deliberate convictions, because it was the known wish of their constituents. But, sir, there is a plain and striking distinction be- 60 TENTH PRESIDENTIAL TERM. tween the relation we bear to our constituents in discharging the ordinary functions of legis lation, and that which we bear to them in performing the extraordinary electoral func tion of choosing a President. My own opinion has been (and I shall be unworthy the seat I occupy if, entertaining that opinion, I were now to conceal or sup press it) that, in matters of general legislation, the representative is not absolutely bound by the will of his constituents, because he is bound by the still higher and paramount obli gation of the Constitution itself. By that in strument "all legislative power is vested in Congress." ISTow what is the legislative power? What does the term " legislation " necessarily involve ? Inquiry, investigation, argument, de liberation, are its essential elements. The dele gation, therefore, of the power to legislate is, from the very nature of the function, the delegation of a discretionary power. If we are sent here to inquire, to investigate, to argue, and to deliberate, the laws we pass should, of course, be the result of these mental operations. But what is the nature of the trust we are about to perform with closed doors, under the idea that we are under no responsibility at all to the people for the man ner in which we discharge it ? Is it a power which, like that of legislation, the Constitu tion supposes the people to be incapable of performing ? Precisely the reverse, sir. The Constitution of the United States, both in theory and practice, distinctly involves the idea that the people of the United States are not capable of making laws, but that they are capable of making a President. That Constitu tion provides that the President shall be elected if possible by the people. The primary effort to make a choice is made by the people. This, then, la obviously the favorite mode of the Constitution for the election of President. As, therefore, the Constitution assumes that the people are capable of making this election, and prescribes a mode in which their will shall be expressed ; their preference, whatever it may be, and to the extent at least that it is indi cated by the electoral vote, reaches us through a regular channel ordained by the Constitution and is not, as must generally be the case with instructions on matters of legislation, the mere ebullition of popular meetings roused into action by some temporary excitement. So that the will of the people on this subject comes to us consecrated and enforced by the Constitution itself. What, then, is the argu ment of the advocates of the proposed rule ? That we are bound by instructions on matters of legislation, which the Constitution supposes the people to be capable of performing ; and yet, in the performance of an act which the Constitution supposes, and justly supposes, the people to be more capable, because more worthy of performing than ourselves, and which devolves upon us by an unavoidable contingency only, we are- under no obligation to regard their opinion, nor subject to any responsibility for the manner in which wo treat it. Never was there a more paradoxical argu ment advanced in a grave deliberation. What does it amount to? Neither more nor less than that the people know how to make laws better than we do ; and that we are more worthy of the trust of making a President than the people. This is palpably inverting the principles of the Constitution. Upon what principle is it that the people of the United States have retained in their own hands the power of electing a President, and have not retained a single vestige of the power of legis lation on the general concerns of the Republic ? A single glance at the subject will satisfy any one, who comprehends the terms of the prop osition, that acts of legislation cannot in the nature of things be performed by a multitude of people, dispersed over a vast territory like that of the United States. If every citizen were a statesman, still would they be incapable of legislation ; because they could not have those preliminary consultations, and that mutual interchange of ideas, which must necessarily precede every intelligent act of general legislation. They have, therefore, delegated that power entirely and exclusively to Congress. But have they the same obstacles to surmount in electing a President ? Are any preliminary consultations and interchanges of ideas necessary to enable them to perform the act ? On the contrary, every citizen gives his suffrage with more coolness, deliberation, and wisdom, in the ballot-box of his own vicinity than he would if all the people of the United States were collected together. The people, therefore, have retained the power of electing the President, under the idea that they are a safer depositary of that power than any which human wisdom could possibly devise. This, sir, is the principle of the Constitution ; and it is the principle of eternal truth. All experi ence has sanctioned and confirmed it. The history of every people capable of freedom demonstrates that, in selecting officers, even of the highest grade, they are fully competent to form a correct judgment of the peculiar quali fications demanded by any emergency, or re quired for any office. Look into the history of those republics that have gone before us. Where do you find, illustrating either the civil or military departments of the nation, states men or generals of more elevated characters and splendid endowments than those that are elected, even by the mild democracy of Athens, or the conflicting compound of aristocracy and democracy that swayed the destinies of Rome ? All the distinguished patriots and statesmen, who reflected so much glory upon those ages, and left such noble examples to reanimate the slumbering genius of succeeding generations, were elevated to office by the choice of the people. Sir, if there be any function which, in the organic operations of civil society, the JOHX QUINCY ADAMS, PRESIDENT. 61 people are peculiarly qualified to perform, it is, by a sort of instinctive perception, which seems almost to rise above reason, the selection of men best calculated to represent them in im portant political stations. If public men are distinguished by the ascendency of their talents, the elevation of their characters, or by disin terested devotion to their country, my life upon it, these exalted qualities will neither escape the attention of the people nor fail to make the appropriate corresponding impres sion. They have no selfish purposes, no am bitious aspirations, no secret and sinister de signs, to prevent or pervert the free and im partial exercise of their judgments. It is, in the nature of things, impossible that they should have. All their feelings are essentially patriotic. They rejoice only in the glory and prosperity of the Republic, and are proud of the opportunity of elevating to power those who are best qualified to promote these great ends. Sir, the glory and prosperity of the country is their glory and prosperity; and what other, possible object can they have in electing a President? After all, the quality most essential in the election of that great offiaer, wielding, as he does, the vast patronage of a great and growing country, is an honest purpose. This you will always find in the people, but man is not man if you always find it anywhere else. But, sir, there is another ground which dis tinguishes the election of President by this House from an act of legislation, and shows that the obligation which the popular will im poses upon the representative should be much stronger in the former case than in the latter. In the ordinary case of legislation, we are, in most instances, called upon to act in emergen cies of sudden and unexpected occurrence. The current of events is in a perpetual fluctua tion, circumstances are continually presenting themselves in new combinations, which no one could anticipate, and which must, nevertheless, constitute the basis of legislation. For ex ample, before we came here, none of us knew that we should be called upon to give a vote respecting the Cumberland Road, the Dela ware Chesapeake Canal, or the suppression of piracy. Topics like these are continually springing up, which we must decide, before they have even been a subject of deliberation among the people. But what is the nature of that question which we shall be called upon to decide on Wednesday next ? And what are the circumstances under which we shall decide it? It is a question which has been distinctly presented to the people, for consideration, ~by ths Constitution; and has been, for the last four years, fully and freely discussed before the people, with an immediate view to the ex ercise of the highest power and most sacred privilege they poss-ess the actual choice of the man who is to preside over their destinies. It is a question, therefore, which, from the very mode of its recurrence, must always be presented to us, after it has undergone the de liberate examination, and, to a certain extent, the decision of the people. But there is another view of the Constitu tion on this subject, which leads us still more clearly to the conclusion that, in the selection of a President from the candidates presented to us by the people, we are bound to regard their will as our rule of conduct. I will illus trate it by putting a case, to which I request the particular attention of the gentleman from Delaware, that he may obviate the inference which I shall deduco from it, if he can. Sup pose that one of the candidates should receive one hundred and thirty electoral votes; the majority requisite to a choice being one hun dred and thirty-one is that candidate chosen President? You say, assuredly not. Why is he not chosen ? Because he has not conclu sive evidence that a majority of the people of the United States prefer him to any other can didate. Even the largest plurality, short of a majority, does not complete the election. For what purpose, then, is it sent here ? That we may elect a man who unites only a small mi nority of the people of the United States in his favor ? This wo.uld be absurd. The reason why the election devolves upon us demon strates the object for which it is sent here. It devolves upon us, simply because the Constitu tion will not place the sceptre of power in the hands of any man who is not preferred to an other, by a majority of the people ; and there fore, I infer, as a necessary consequence, that the three highest candidates are sent to us in order that we may select the one who is pre ferred by a majority of the people. The doctrine of the gentleman from Dela ware, therefore, is in direct violation of the very principle of the Constitution which im poses upon us the duty of electing a President. There is yet another reason which operates with great force on my mind, in favor of con sidering the members of this House the mere organs of the popular will on this question. It is this: If, in the discharge of our legisla tive duty, we pass a law which is unwise, and in its operation injurious to the country, the remedy is easy and obvious. The people raise their voices against it, they discard the offend ing representatives, and the obnoxious law is repealed. But if it should happen, on this or any future occasion, that this House should elect a President" from selfish and corrupt mo tives, where is the remedy? There is none. The deed is done. It is irreclaimable. Even the perpetrators may repent in sackcloth and ashes, but there is no power that can do away with the iniquity. It is evident, therefore, that if we do not recognize the right of the people to control our votes by instructions, we act wholly without responsibility. It is in vain that they have the right to. dismiss the unfaith ful representatives from their service. Though the example might operate as a terror to future transgressors, yet the work of corruption would TENTH PRESIDENTIAL TERM. still remain, and the Administration, though de tested and execrated by an indignant people, would maintain its odious and distracted rule during the whole of the constitutional period. The very circumstance that the act is in its nature irrevocable, makes the denial of the right of instruction equivalent to an absolute denial of all responsibility whatever on the part of the representative. There is another view of the subject, involv ing considerations of great delicacy, to which I feel bound by a sense of duty to call the attention of the committee. "What, sir, is the peculiar nature of the power we are about to exercise, as it respects our own honor and reputation ? When I am called upon to give my opinion upon any measure of general policy or to cooperate in the passage of a law in which my constituents and myself are equally in terested ; if I discharge that duty according to my own best ability and judgment, though my conduct should expose me to disapprobation and censure, yet I can elevate my head, not only with a consciousness of my own purity, but with the still prouder consciousness that no man susjyects me of dishonor. But, what must be the feelings of every high-minded and hon orable man, when called upon to perform that duty which will soon (and I trust in God for the last time) devolve upon this House ? Though his heart might be as pure as the principles of our holy religion, and his conduct as disinter ested as patriotism itself, yet should he act in opposition to the will of his constituents, to what ungenerous imputations must he not un avoidably subject himself! Acting as he does, in the midst of temptations, which even the most virtuous find it more easy to avoid than to resist, how many will be ready to point at him the finger of sccrn, exclaiming as he passes, "There goes the man who abandoned his constituents, and sold his country!" In vain does his conscience acquit him ; in vain does he seek for consolation in the conscious ness of his own integrity. To a mind of nice sensibility there is something both mortifying and degrading in the idea of being the object even of unmerited suspicion. When called upon to act under such embarrassing circum stances, should we not, therefore, anxiously adopt for the regulation of our conduct a sound and steady principle, upon which our honor may securely repose, free from the breath of suspicion ? If we take the will of our constit uents as our guide, we shall come to the dis charge of the important trust in question with our powers of attorney in our pockets and our principles inscribed on our foreheads. No speculations will then be indulged as to the motives of our preference, and we shall act under the cheering and consolatory conviction that even malignity cannot insinuate that any secret hope or latent expectation of reward has induced us to disregard the will and sac rifice the interests of our constituents. Sir, I do solemnly declare, in the presence of my God, that if the election of a President were a duty of frequent recurrence and I were called upon to discharge it upon the principles or under circumstances that would expose me to such imputations, I would resign my seat and abandon public life forever, rather than put it in the power of malice to assail my reputa tion by charges so plausible. I will call the attention of the gentleman from Delaware to a view of this question, which I request him to consider, as (what I know him to be) a judicious and practical statesman. We have thus far looked at the theory and philosophy of the Constitution ; let us now advert, for a moment, to the practical operation of the Government. The gentleman has told us that we should select the man whom our own judgment "our independent judgment" shall indicate, as best qualified to fill the presidential office, without respect to the opinions or wishes of the people. Sir, the first qualification of the Chief Magistrate of a Republic is, the confi dence of the people ; and no man, who has not that confidence, can be either entitled or qual ified to exercise the powers of that exalted station. Suppose we were perfectly certain that the man whom our independent judgment would select as best qualified would be op posed by the deliberate will of four-fifths of the people. Would we have a right to elect him ? Oh yes, says the gentleman, " the Constitution gives us the right." I know we have the physical and, if you will, the constitutional power; but that is not the question. Have we the moral right? Is it consistent with our duty, as representatives of the people ? Gen tlemen may talk as much as they please about our prerogative, as "independent judges," and utter specious and imposing dissertations upon the rights of conscience, but if we elect a Pres ident in direct contradiction to the known will of the people, what will be the inevitable consequence? You clothe him with the em blems of power, without the substance ; you impose upon him the highest of all responsi bilities, without the power of fulfilling the ob ligations growing out of the responsibility. In a word, sir, you put the sceptre into his hand, and, in the very act of placing it there, you paralyze the arm that is to wield it. Let us look a little more minutely into the nature and operation of public opinion, as con nected with this subject. If the people of the United States had never been called upon to examine this question, and express their will in relation to it ; if it were a principle of the Constitution that the Chief Magistrate should be elevated by lot, and if chance were to cast the office upon a man who was not their choice, and who had not their confidence, I believe they would patiently ac quiesce, although their will should be defeated. But when the Constitution has made it their right and their duty to examine the question, and express their will upon it, and when they JOHN QUINCY ADAMS, PRESIDENT. 63 see that will defeated by human agency, the agency too of their own representatives, is it in the nature of things that they should not feel deeply indignant at the authors of so glar ing an outrage upon their most sacred rights ? Is it to he expected that they would calmly and quietly submit, when their constitutional will has been contemned by their represent atives ? Are they, indeed, the mere stocks and stones which such insensibility would imply ? Sir, I sincerely hope, as I confidently believe, they are not. It would be a fearful omen if they were. It would go far to prove what the arguments of the gentleman from Delaware seem to imply, that they are incapable of ex ercising this high attribute of self-government. But the supposition is a libel upon the people. If you were to elect a President upon the prin ciples and under the circumstances I have sup posed, you would elevate him only to be a more conspicuous object of public reprobation; a miserable effigy of power ; a common target, at which a higji-minded people would level their just indignation. Sir, a lofty and generous ambition would disdain to accept power under such circumstances. I presume I shall nat exposa myself to the imputation of flattering the people of the Unit ed States (and God knows I have never been a flatterer, either of the people or their rulers), when I ascribe to them as much virtue and in telligence as has ever fallen to the lot of any people on earth. Nor shall I be considered as advancing an extraordinary proposition, when I affirm that our Government is con structed, and ought to be administered, with as much regard to the will of the people as that of Great Britain or, to put a clear case, that of France in the days of the Emperor Na poleon. Yet, in neither of these governments were the principles of the gentleman from Delaware ever carried into effect. They never were carried into practical operation by any civilized government, holding jurisdiction over an intelligent population, nor, until the nature of man is changed, will they ever be. As re spects Great Britain, where time and experi ence have adjusted the operation of the politi cal system, certain principles recognizing the controlling influence of popular opinion have been so long settled by the practice of the ex ecutive government, that they are now consid ered fundamental. No administration ever thinks of retaining power with a majority of the people against them. How often have we sjen the king, in obedience to the voice of the nation, discard from his service ministers in whom he still reposed the most undiminished confidence, and select others, not in conform ity with the dictates of his own "independent judgment," but in compliance with the will of the people ! Their confidence, and not his, is the point upon which the existence of an ad ministration depends. Sir, there never has been a minister in England, not excepting the late Lord Castlereagh, who would have nerve enough to take the seals of office upon the principles maintained by the gentleman from Delaware. If, then, in a country where the authority of the executive government, in addition to its mighty patronage, is invested with the sanctity which naturally results from its hereditary character, it is practicaly demon strated by the experience of a Century, that no administration can maintain itself against the will of the nation how desperate would be the experiment of electing a President against the popular will, in this country, where the people are more generally intelligent, the Gov ernment more popular in its organization, and the Executive Department destitute of the ad ventitious influence which belongs to an heredi tary monarchy ! Even Bonaparte himself, when supported by two hundred thousand bayonets, and wielding the whole military power of France, was compelled at all times to acknowl edge the supremacy of the national will. Such was his own declaration after he had fallen from power, when reviving the retrospect of his eventful life, with the eye rather of a phi losopher than a monarch. If this mighty sov ereign was compelled to admit the omnipotence of public opinion, what a wretched spectacle of debility and distraction should we have, if it should be disregarded in the election of a re publican President! Sir, a President elected upon such principles, would be an object rather to be despised than dreaded ; for he would soon find that he had very little power, either for good or evil. I will now say a few words in answer to an imposing but, in my opinion, deceptive argu ment urged by the gentleman from Delaware. Ha asks, if we are bound to obey the will of our constituents, how can we ever make an election, since that obligation would constrain the friends of each candidate to adhere to him throughout the contest? Now, there may be many difficulties connected with a doctrine or a duty, which neither destroys the truth of the one nor absolves from the obligations of the other. If the mere existence of such difficul ties would absolve us from any duty, there would be an end of the obligation of almost every duty. I see a very easy and obvious mode of surmounting the difficulty suggested by the gentleman ; but, before I state it, I will take the liberty of asking him how he can get over the very same difficulty, upon his own principles ? The principle of preference, what ever it is, that induces a member here to vote for a particular candidate, imposes upon him a moral obligation to vote for that candidate. I say we should vote in conformity with the will of our constituents. The gentleman says we should vote in conformity with the dictates of conscience. There is my principle, and here is his. They are of equal obligation. Is it not evident, therefore, that both would equally produce the difficulty under consideration ? If we adhere, without departure, to the candidate selected 64 TENTH PRESIDENTIAL TERM. upon either principle, there can be no election. But, sir, the difficulty is imaginary. The plain and practical rule is to endeavor, if possible, to carry into effect the -will of our constitu ents. We must make this effort honestly, without any skulking behind pretexts or forms. If it be found that their favorite cannot prevail; that the candidate who received their electoral vote unites but a small minority of the people of the United States in his favor, and that the two others are more prominent, we must then choose between them, still conforming to the will of our constituents in making that choice if their will be known to us. If we cannot succeed in electing their first choice, we should endeavor to elect the person next in their con fidence. By this process the final control will be found where it ought to be, in the general voice of the people of the United States. I find myself called upon to do what ? Not to elect a President, but to complete an elec tion which the people have left in an inchoate state, merely because they cannot meet to gether to complete it themselves. The framers of the Constitution supposed that the popular branch of Congress would be the best means of concentrating the national will and thereby consummating the work commenced by the people. The principles in which it originated are not changed by the accidental circum stances which have cast upon us the duty of adding the finishing stroke to it. All agree that it is a misfortune that a majority of the people have not united in favor of one man, and that it was the very end of the Constitu tion, the " consummation most devoutly to be wished," that such majority should have been obtained in the first instance. Why, then, is it not equally desirable now ? What is it that has suddenly produced this magical change in the principles which regulate this great na tional operation of choosing a President? Sir, these principles are eternal, and circumstances do not affect them. If, as it must be admitted, it was the primary object of the Constitution to elevate to the executive chair the man who should be the choice of a majority of the peo ple, that does not cease to be the object of the Constitution when the election devolves upon this House. The election of a President must be regarded as a continued operation, carried on upon the same principles throughout. It would be a miserable and incongruous piece of patchwork to commence with one set of prin ciples and end with another. But, says the gentleman from Delaware, the power we exer cise in electing a President is not conferred upon us by the people, but by the Constitution. "Were I to take this proposition simply in the terms in which he has expressed it, I should regard it as either absurd or unintelligible. But I know the gentleman s meaning, and I will not affect to misunderstand him. His proposition is, that the election does not de volve upon this House by any act of the peo ple expressive fo their wish that it should come here, but by a mere contingency, for which, as it must unavoidably occur sometimes, the Con stitution has made provision. But how does this strengthen the gentleman s argument? Are we to be told that, because it is the "ne cessity and not the will " of the people that " consents " to our having anything to do with this question, we are, therefore, absolved from all responsibility ? The very reverse should be the inference. Sir, I will now suppose a case, suggested by this argument of the gentleman from Delaware, which, from its peculiar application to myself, is better calculated than anything I could select to illustrate the sincerity of my attachment to the principles I have avowed. The Constitu tion, providing for another contingency, de clares that if this House fails to elect a Presi dent the duties and powers of that office shall devolve upon the Vice-President. Now if in dividual preference, without regard to the pub lic will, were to decide this question, I need scarcely declare, in this place, that there is no man in this country whom I would prefer to the individual designated by the people for the office of Vice-President. But, sir, if, under the influence of this feel ing, I were to give my vote in this House for the indirect purpose of defeating the election, and throwing upon the Vice-President-elect powers which the people never intended to con fer, though my vote and my motive should be concealed from every human eye, I should never be able to make peace with my con science. I should regard myself as guilty of the most infamous dereliction of duty, and every honorable feeling of my nature would rise up to reproach me. In passing this sen tence of deep reprobation upon my own sup posed conduct, I trust I shall not be understood as speaking harshly of the possible conduct of others; the sentence I should pass upon my self would result from my own peculiar notions of duty ; other gentlemen, entertaining different views of this subject, might pursue the course I should condemn in myself, without incurring the reproach of their own consciences, or de serving the reproach of others. I now invite the attention of the committee, for a few mo ments, to a topic which has been drawn into this debate whether fortunately or unfortu nately, it is not for me to determine. We are told that we have a precedent on this subject, set by Congress in 1801, and we are called upon to yield to that precedent the deference due to the acts of our predecessors. For my own part, sir, I wish it to be distinctly under stood that I do not consider that precedent entitled to the slightest possible consideration upon this question. With me it has not the weight of a feather. And why do I reject it ? Not because it is a Federal precedent, for mere words have no weight with me ; but because it was established by men who had deliberately resolved to violate their duty to their constitu- JOHN QUINCY ADAMS, PRESIDENT. 65 ents and to the Constitution, by attempting an act of usurpation which, for boldness and des peration, would not have discredited a Crom well or a Bonaparte. They knew, perfectly well, that what they had in contemplation would excite the indignation of the people, and this rule was, consequently, provided to veil their proceedings from the public eye. But, sir, I absolve the Federal party from the sin of that transaction. God forbid that the weight of that sin should rest upon any party now in existence. It was the deed, to be sure, of Federalists ; but the Federal party I mean the people of the United States known by that denomination never gave it their sanction. What, then, was it that doomed to political infamy and proscription Aaron Burr and his associates? Looking at the strict constitutional power of the House, that pre tender was as fairly entitled to be chosen by it as Mr. Jefferson. He had an equal number of electoral vptes, making no discrimination. "Whence, then,* the popular odium incurred by those who voted for Burr? Simply, sir, from the attempt to carry into practical effect the principle that this House has a right to elect a President without regard to the popular will. This was the sin, sir. " The very head and front of their offending had this extent, no more." A combination of politicians, some fifty or sixty in number, who had been accustomed to wield the political power of the country, see ing the sceptre about to pass from their hands, screwed up their courage to the sticking point, and boldly set at defiance the will of the na tion, by attempting to elect a man President who was known not to be the choice of the people. Under the influence, the maddening influence, of party feelings, they attempted, as a party, what none of them would have at tempted, and, perhaps, none of them approved, as individuals. They were actuated by a prin ciple similar to that which stimulates and sus tains a mob in the commission of depredations which every individual composing it, when left to himself, would shudder to contemplate. They confirmed the wavering, and quieted the apprehensions of the timid, by crying out, " The party will sustain us, the party will sus tain us." Sir, it was a fatal delusion. It was the last act of their political life ; it put a final end to the ascendency of the Federal party. I agree with the gentleman from Delaware, that the policy pursued by the Federal party, with the exception of two or three measures which no body now attempts to justify, was a wise policy. They organized the Executive Government, and a system of national defense ; they erected many monuments of their wisdom. But, in this closing scene of their power, what did they do? An act which alienated the con fidence of the country, struck down the fabric of their power, and, by the reaction produced, swept away all the memorials of their glory, 5 of which the gentleman from Delaware has spoken. Measures were confounded with men, and both involved in one common prostration. And hence the feeble and debilitating policy pursued by the Republican party during the first years of its ascendency. Without pre tending to question, therefore, the general wisdom of the Congress of 1801, 1 must protest against yielding to their precedent on the sub ject before us. There are some other topics which I intend ed to touch, but which I will waive, as I have too long trespassed upon the attention of the committee already. There is a single remark, however, which I must be permitted to make before I sit down. We are called upon to close the galleries, and upon what grounds ? Have we any evidence that they will be disturbed? Have we any reason to believe that they will be more disorderly then than they are now ? Our tongues will be silent on the approaching occasion, and it would be a reflection upon the people of the United States to suppose they could be spectators of such a scene and not be hushed into silent attention by the moral grandeur of so simple and sublime a spectacle. Sir, who are they that will fill the galleries ? They will be an epitome of the people of the United States, respectable and intelligent gentlemen from a distance who, for aught I know, may be as capable of deciding this great question with a view to the tranquillity of the Union (I say it without intending to derogate from the dignity of the House) as our honorable selves. Mr. Mangum, of North Carolina, then rose and said that he felt great repugnance to ob trude his remarks upon the notice of the House at any time a repugnance which, upon this occasion, was certainly not diminished by the state of indisposition in which he found himself. That he felt it his duty to make a few remarks in reply to those he had just heard, not so much with the view of affording either interest or instruction to the House as with the view of publicly avowing those prin ciples which he deemed sound, and by which he determined that his conduct on the ap proaching occasion should be regulated. The question, said Mr. Mangum, immediately under consideration is intrinsically of but slight and trivial import ; but it derives much conse quence from other and more important ques tions that have been drawn into discussion. What, asked Mr. Mangum, is the nature of the question before the House ? It is one exclu sively of police. But, from the manner in which it had been treated, he should have in ferred, but for the gentleman s disclaimer, that his object was not so much to discuss this question as to issue a sort of manifesto to the people of the United States to justify those who yield to a strong current and to dam those who resist it. It is a question not of open galleries or closed galleries ! Gentlemen had, therefore, been engaged in combating shadows ; and much of what had been aaid had been 66 TENTH PRESIDENTIAL TERM. addressed to a motion which no one had made. The question, as he understood it, was sim ply this : Whether the galleries should be thrown open subject to be closed at the motion of the Speaker, or whether they should be thrown open subject to be closed at the request of the delegation from any one State ? For his own part, he should have thought that the latter arrangement would have been conceded, as a matter of courtesy, to those gentlemen who stand singly and unsustained by colleagues as representatives from the weaker States. For himself, he had not the remotest idea that those galleries, let them be occupied by whom they might, were about to overawe the House, or exert any improper influence .upon it what ever. His reliance was placed upon the deep moral feeling that pervades this nation. On this he relied to sustain gentlemen in the dis charge of their duty, and on this he relied more than on all the bayonets and cannon that mili tary despotism ever wielded. This is a mere question of order. The ad mission of strangers was an act of courtesy granted, as such acts are always understood to be, upon an implied obligation of good behav ior. It was not to be presumed beforehand that those who were admitted would violate the laws of decorum ; but, if they did, there could be no doubt that the Speaker was com petent to exclude them, and as little doubt that he would do it at the suggestion of the delegation from any one State that a free exer cise of their rights required their exclusion. He would again repeat, that he felt no fears from any attempt to overawe the House, and still less had he fears of the intriguers who had been spoken of, whether posted in the galleries or operating in the Hall. His position was peculiar; it was that of an armed neutrality; he had but little to hope and nothing to fear. He knew that he stood upon a narrow isthmus, lashed upon either side by the most angry surges from which neither numbers nor denunciations should be able to drive him, calling to his aid the little lights of his un derstanding and with a heart hent upon the best interests of the country he should firmly and fearlessly endeavor to perform his duty. He should not, however, have troubled the House at this time with a single remark, hut for the principles he had heard advanced, and against which he felt it his duty to enter his solemn protest. He had always listened to the gentleman from South Carolina with great pleasure, and he must confess that he heard him on this occasion with the more pleasure because he thought he had perceived that his talent, his ingenuity, and his fertility of re source, had proved insufficient to sustain him under the weight of the cause he advocated. Whom, asked Mr. Mangum,are we bound to obey in giving our votes on the approaching occa sion ? We, I mean, who are in the minority ? If I understand the gentleman, we are bound 1 to obey the will of those whose candidate shall have the highest number of votes. I would be glad to know whether we are bound to do this by moral obligation, or only by reason of the philosophy of the Constitution, to which the gentleman alluded. If by moral obligation, that obligation addresses itself to every honest mind with the force of a perfect obligation; it must be obeyed; and why then has the Constitution been so silly as to allow us a choice between three candidates when we are morally and of course perfectly bound to elect the candidate who has the largest num ber of votes in the electoral college ? Here Mr. Mangum yielded the floor to Mr. McDuffie, who wished to explain. He had not said that gentlemen were bound to elect the candidate who had the highest number of votes ; on the contrary, he had said distinctly that a plurality of votes did not make an elec tion. Mr. Mangum resumed : He was then to understand the gen tleman that we are not constitutionally, but only morally, bound, or, in other words, that we have no rigbt to disregard the will of the people as expressed in a plurality of votes in the electoral colleges. But, if so, was not the argument the same? the conclusion the same? Was not that obligation as binding as an obligation emanating immediately from the Constitution? Must not every honest man regard it in that light? And must not every man, who was not base enough to barter away his birthright for a mess of pottage, to sell him self for loaves and fishes, feel its binding pow er ? If the obligation was a moral one, it was a perfect one, and, as such, commanded perfect obedience. He must, therefore, most em phatically repeat that it was extreme folly, if not worse, in the framers of the Constitution, to give to this House the power of selection between three candidates, when, at the same time, the hands of the members were tied up from the exercise of that power by the strong est obligations. The Constitution, then, holds out to us bread and gives us a stone. But this never was the design of the framers of the Constitution. And the very fact that they have given us the power to choose is enough to prove that the principle, as stated, does not furnish the rule by which we are to be governed. If, then, we are bound by the gentleman s moral obligations to elect that candidate who happens to have a plurality of votes in the electoral college, what is the rule by which we are to be governed ? Is it by the vote of our respective States ? That cannot be the rule ; for the Constitution has not prescribed any uniform mode for the election of electors, but has left that power in the Legislatures of the States ; and it may happen, in those States in which they elect electors by districts, that there may be a tie ; that the votes for the two contending candidates may be equal. How JOHN QUINCY ADAMS, PRESIDENT. will gentlemen extricate themselves from this dilemma the dilemma of a tie? Will they resort to their principle f It will fail them it is not principle it is, in my humble judg ment, absurdity. The gentleman from South Carolina has asked the gentleman from Dela ware, with a sort of triumph, to answer the case which he put, to wit : That if one hun dred and thirty votes shall be given for one candidate, falling one vote short of the num ber required for an election, whether that gen tleman would dare to resist such a majority? I would answer, that great respect is due to the opinions of the people. That it would be great impolicy in ordinary cases to resist so full an expression of public will. But reasons might exist, which would render it the impe rious duty of the representative, as an honest man, to resist it. There is no principle con cerned, as I trust I have shown. It is mere matter of expediency. But let me suppose a case, predicated upon the alleged principle that we are bound to give our votes in accord ance with the votes of our respective States, and ask the gentleman to answer it. There are twenty-four States and three candidates for the Presidency. Suppose eight States should vote for each candidate; if we are bound to vote as our respective States do no election can be made. And what will be the result? It is obvious. By adhering to the principle of which the gentleman speaks, you postpone three candidates, upon whom the peo ple of the United States had fixed their eyes, as fit persons for the Chief Magistracy, and each of whom had received the votes of one- third of the people of the United States for that office. You set aside all these, and let the Yice-President into that office ; a man who had not received a single vote in the United States for the Presidency. What will the people s men say to this doctrine ? And yet it is principle, sacred principle, according to the views of some gentlemen. But, says the gentleman, we are first to try to elect the people s man, and, if we cannot effect that ob ject, then, and then only, take up some other candidate* We must yield to the necessity of the case. Mark me, it is moral principle, says the gentleman, by which we are bound. A principle is surely a very bad one, which will not wear longer than one day, and which must be abandoned as soon as. put into practice. But we must yield to the necessity of the case ! I had thought that that which yields to any necessity whatever was not moral principle, for moral obligation admits of no compromise. It is said that, if on trial we cannot succeed in electing a President to prevent the Vice-Presi dent s coming into that office, we must give way. But here are eight States in favor of each candidate who is to give way first ? If I give way first may not my constituents re proach me with an abandonment of principle? If the gentleman gives way first does he not abandon principle? Sir, such a principle as must be abandoned on one principle which I will ever reco\ If, then, sir, we are under no moral obligation to vote for the candidate who has the highest number of votes, nor to obey the votes of our respective States, what, I again ask, is to be the rule which must govern us ? Sir, it ap pears to me that the whole fallacy, which per vades the arguments of the gentlemen whose views I am opposing, consists in this they are comparing the votes of the people taken per capita with the votes of twenty-four dis tinct and independent sovereigns. They are comparing things which have no points of re semblance, nor have they any assignable rela tion to each other. The States, as sovereigns, are all equal. The people, who make up those sovereignties, numerically considered, are to tally unequal, and, in that respect, bear tow ard each other various and diversified pro portions. Are we then to be bound by the votes of our respective districts ? (This is the doctrine of the people s men, and all are peo pled men nowadays, from the much-repro bated caucus men down to the humblest "po litical professors.) Here, I trust, I may be permitted to say that I shall, for once in my life, at least in the honest discharge of my duties, fall in with the doctrines of the people s men I expect to represent the plurality of my district. But are we bound by the votes of our dis tricts? I mean, in point of principle? Did the framers of the Constitution design that we should be so bound ? If they did, wherefore does not the Constitution prescribe a uniform mode of electing representatives by districts? And yet the power of prescribing the mode is left with the Legislatures of the respective States. Some States elect their representa tives by general ticket, as does Georgia, for example. How will gentlemen ascertain the votes of their districts, under the general ticket system? How will gentlemen extricate themselves- from this dilemma ? Will they do it by resorting to the statement that the State, in that case, is each member s district ? If so, then each member is bound to represent the vote of his State. This brings the question back to the ground on which I have already considered it ; and the doctrine is subject to all the objections to which I have already ad verted. It is true that the gentleman from South Carolina cannot be mistaken as to the vote of the people, for in that State they elect members by districts. Should he recognize the principle of perfect obedience to the voice of the district, then should also every other member. -If this is principle, what would be the consequence of adhering to it, in the most of cases indeed, in the actual posture of af fairs at present? It is plain, no President could be made, and the Vice-President would come in. If it is principle, we are bound to adhere ; but, if we may give way, and are not bound to adhere, then it should no longer be 68 TENTH PRESIDENTIAL TERM. dignified with the name of principle, but it is a mere question of expediency. Again, if we are not bound by the votes of our districts (as is clearly the case in some of the States, for the simple reason that they have no districts), but are bound by the votes of their respective States, then this dilemma might arise a mem ber might be obliged to vote for a candidate who was opposed by every man in his district. Here he gives up the wishes of all his con stituents, the only people upon earth to whom he is politically responsible, and for what ? To fall in with the vote of the State ; and by ad hering to that vote, no President is elected, and the Yice-President comes in, after all these fearless and patriotic sacrifices. Again : If our States were all of equal size, that is, equal in point of population, and the people fail to make an election in the electoral colleges, it is clear that no election could ever be made by the House of Representatives, should the members recognize as correct, and adhere to the principle, that they are bound to vote in accordance with the votes of their re spective States. In the present unequal size of the States under any ordinary circum stances of combination, the operation of that principle would defeat an election nine times out of ten ; and in no solitary* case can an election be made in the House of Representa tives by adhering to the principle, except by enforcing the odious doctrine that the minor ity shall prevail over the majority that is, by making thirteen or more of the smaller States, that had voted for one candidate in the elec toral colleges without effect, come into the House and do the same with complete effect. What they were unable to do by reason of in equality of population, they are made to effect by the equality of their sovereignty. Sir, if these are the people s principles, I for one beg to be delivered from them. It is said that, in matters of legislation, it is a vexed question whether the representative is not bound to obey the will of his constituents, and that many great and wise men have held the affirmative. Sir, I would not give a but ton for the doctrine, either the one way or the other, so far as regards its practical util ity. As to the mere theory, I concede it to gentlemen, they may delight themselves with whatever theories they please, whether inge niously or artifically constructed. But, though the question as to legislation may be vexed, gentlemen tell us that, in the business of elect ing a President by the House of Representa tives, there can be no doubt the case is a plain one. Sir, I argue directly the reverse. In the business of legislation, the people, in primary assemblies, cannot act, it is constitutionally, it is physically impossible. There is, therefore, a propriety in a representative government like ours, that the legislative body should re spond to the voice of the people ; that, as a reflector, it should give back the people s wishes but, in the election of Chief Magis trate, the people can act in primary assemblies. Those assemblies present the proper and the best mode in which the election can be made. But the people having attempted an election in this mode, and having failed of success, the Constitution brings the election to this House ; this House is the umpire, the judge on whom devolves the settlement of that momentous question, which the people have been unable to settle themselves for want of greater una nimity. Sir, I hope I have now succeeded in show ing the fallacy of the gentleman s pardon me the people s doctrines, of instruction. What, then, is our duty in the present crisis, and on the approaching occasion ? Is it to fall into the ranks of the candidate who happens to be strongest ? (A very comfortable doctrine, in deed, particularly to those who happen to be in the minority ; our understandings and con science approving, we should like to be wafted with you gentlemen on the strong currents.) Is it to obey the voice of our States ? or is it to obey the voice of our districts ? It is, in my judgment, neither more nor less than this: To do what is right, according to the best dictates of our own understandings, and leave the consequences to God and to our country. It has been asked, How can we hold up our heads when we return home, if we have gone against the will of our constituents? Sir, we can hold our heads as erect as an angel. The man who has honestly done what he under stood, after deep and anxious reflection, to be his duty, may meet the eyes of his constitu ents, aye, the eyes of the world, and neither blench nor quail, though none should smile on him. It has also been said (and the remark, though it can have hone here, may be calcu lated to have an effect abroad) that, whenever a man has done deeds of renown, the people delight to honor him, and will, with great cer tainty, elevate him to the highest offices. Sir, this is a mere truism; everybody here knows that this is true. It is what the people will always do ; it is what they have done in a thousand instances ; but, sir, it is exactly what, in the present case, they have not done. Else, why does the election come to this House? Sir, a majority of the people have distinctly told you that not even the most favored candi date is the man of their wishes. Neither is elected, though all may have been honored. It is we who must elect. We have also been told that, upon grounds of expediency, the sceptre ought not to be placed in the hands of; any man who has not a majority of the votes < of his countrymen ; and that, if we do place it in the hands of such an one, we only place it thus to lop off his arm. Sir, this but ill agrees with what is a fundamental principle in the system of the people s men. What, sir, are an intelli-? gent and enlightened people of these States, who are so much flattered in one breath, to be represented in the next as ferocious as tigers? JOHN QUINCY ADAMS, PRESIDENT. 69 Are they to rise in their wrath and hurl the full weight of their indignant vengeance at an individual who has done no harm who has done no one act to excite their displeasure? Suppose three candidates should come before us with an unequal number of votes, I admit *\ve should very properly feel inclined to elect him ceteris paribus who had the largest num ber (for I would not willingly deprive gentle men of the smallest comfort). But, suppose that the candidate who had the smallest num ber should, in the result, be chosen President, is it maintained that the people of the United States would rise in vengeance against that man? Surely, sir, whatever phials of wrath might be .exhausted on the heads of their guilty representatives, the people would pour out none upon the innocent head of a man who had done no one offensive deed, and whose only crime had been to be constitutionally presented for choice, and constitutionally chosen. We have heard, further, and much to my astonishment, that the doctrine of the gentleman from Delaware would not flourish in old England nay, that it is too strong even for the military despotism of Napoleon. I scorn to flatter any man, and I am sure that, on this occasion, I shall be exempt from the imputation of such design, when I say I was an attentive listener to the gentleman from Delaware, and did think, and still think, that sounder doctrines, or doctrines delivered with more pellucid clearness, never fell from the lips of any man than from those of that dis tinguished member; and I did consider the demonstration by which they were maintained precluded reply ; and I am happy to find my own opinion bolstered and corroborated by an opinion that comes to me with so much weight and authority. I have not heard why his doc trines would not flourish in old England ; the gentleman from South Carolina did not con descend to favor us with anything more on that point than the mere assertion. As to what was said in regard to the iron reign of Napoleon, and the declarations that he made, it is indeed true that that despotic ruler pro fessed to be governed by the will of the people. (Bonaparte, it seems, too, was a " people s man.") But, sir, while he professed this, he was supported by 250,000 bayonets; and in such circumstances, what was the "people s will?" It was the will of their tyrant. Here Mr. Mangum, not having concluded his remarks, gave way for a motion for the committee to rise. IN HOUSE OF REPRESENTATIVES. Monday, February 7, 1825. ("Congressional Debates," Vol. I., pp. 490-515.) On motion of Mr. Wright, the House then went into Committee of the Whole on the State of the Union, Mr. Taylor, of New York, in the chair, and resumed the consideration of the rules (reported by a committee) to be observed by the House in conducting the election of tho Prejident. And the question being on striking out the last clause of the third rule, which provides that the galleries may be cleared at the request of the delegation of any one State, Mr. Mangum said that whenthe committee rose the other day, as he presumed, for his personal accommodation, he had well-nigh con cluded the remarks Avhich it was his intention to submit on this subject. He felt deeply sen sible of the polite attention of the committee, and the best return in his power to make for their kindness was to refrain from trespassing again too far on their patience. This subject having already occupied a disproportionate space of the time of this House, he should not again take up the argument, but only submit a few general observations which he had designed to offer on the former occasion. He knew full well the immense advantages which gentlemen have when they address themselves not to tho understanding and the judgment, but make ardent appeals to the prejudices and passions of the people. The people s rights, and the sovereignty of the people ! the very finest and most popular themes for declamation. He felt the great difficulty of being hoard, coolly and dispassionately, at the bar of reason at the moment when the passions are stimulated into tumult, and worked up to a pitch of frenzy. In this country, as we have seen from the foundation of the Government, whenever a new party was about to organize itself, or a new faction to spring into existence, its very first breath was breathed in a holy and fervent love for the people ; its ardor and its devotion to the public weal transcended only by the purity and disinterestedness of motives. I confess, sir, that I have lived long enough to distrust these ardors. When I see the frosts of age dissolving under the warm glowings inci dent to youth, and the patriot of sixty enter ing the lists with the very flower and chivalry of the land, endeavoring to outstrip them in demonstrations of love and devotion to the people, I begin to look about me ; for I fear mischief, or suspect treachery. I need not re fer yon only to our own history, but the his tory of other countries and other ages discloses the fact that many of the bloodiest tyrants that ever disgraced humanity began their career by fawning on the people, and sedu lously and assiduously courting their favor. It has been remarked by the gentleman from South Carolina that all sovereign power resides in the people, and that every agent in author ity must act in obedience to that will. The abstract proposition is evidently true; but the difficulty arises in the application of it to the case in hand. How is the will of the people to be ascertained? Is it to be .derived from the county meetings, town meetings, publica tions, and rumors ? Are we to resort to these 70 TENTH PRESIDENTIAL TERM. loose, unsatisfactory, and contradictory indi cations of the public will? or shall we resort to the constitutional indication to that ex pression which has been made through legiti mate organs ? If the latter, it is apparent that a large majority have voted against either of the candidates. What, then, is our duty ? I would again answer, to select according to the best dictates of our understandings. And yet, says the gentleman, this doctrine is too strong for revolutionary France ; it would have been repudiated under the reign of Napoleon. Mr. Mangum said it was a little curious to remark the striking coincidence between the early professions of Bonaparte and those with which we are now daily saluted. He could hope that a coincidence should never be made to exist in this country in any other respect ; for what was the sequel in the case of Napoleon ? Though bis first love was the love of the people, and though he bowed with the pro- foundest respect to their will, yet he flattered, he coaxed, and he courted them, until he placed his foot upon their necks, and crushed their liberties with the most frightful military despotism that the world ever saw. This is the natural order of things in a free government, to begin a Jacobin and end a ty rant. We are told we must bow to the will of the people. I grant it. But I shall look for the indications of that will to a source which is unerring to the constitutional indi cation of it. It is curious to remark how de fective this poor, tattered Constitution of ours is, according to gentlemen s notions of respon sibility. They say we must vote with the peo ple (what people?), and yet the Constitution guarantees to us the mode of voting by ballot, in the exercise of which, the vote of each dele gation may be profoundly locked up in their own bosoms, and no human eye, not even the Argus eye of jealousy itself, can detect for whom that delegation voted. There are four States in the Union represented in this House, each by one member. Those gentlemen, ac cording to the rules established on a former occasion, and according to the rules reported on this, may hide their secret from all the world, if they choose. They have nothing to do but to make duplicate ballots, and drop one into each box among twenty-three other votes, and how are their ballots to be known, to be identified ? How does this comport with gentlemen s notions? How defective is the Constitution according to their views! Instead of requiring members to vote in a manner to prevent the practice of fraud and deceit, that same Constitution becomes " par- ticep* criminiit," by throwing the mantle over deeds of darkness and crime, by shielding them from exposure to the vengeance of dis appointed ambition, or the scorn and hatred of a betrayed country. There have been some politicians silly enough to imagine that the framers of the Constitution looked afar off, and either dreamed or believed that occasions might arise when this provision would be found most salutary, that the safety of the Eepublic might depend upon the ignorance of the tyrant where to direct his blows. For myself, however, I hope, said Mr. Man- gum, that I may be permitted to say, that I hate mystery 1 hate all concealments in the* discharge of a public duty ; and shall be one of the last to shrink from the severest scrutiny into the manner in which I may have dis charged it. I would scorn the use of the mantle. I advert to these considerations with a view of showing with how many difficulties this subject is beset, and how arduous would be the task of framing a theory, according to gentlemen s views, that would harmonize in its practical operations with constitutional provisions on the subject. Sir, it seems to me that the true conception of the framers of the Constitution is this : that the representatives in this House would come immediately from the people they are part of the people presumed to be men of some character, connected with the community from which they emanate by a thousand ties; char acter, respect, family, children, a common in terest, a common destiny. In a word, iden tified with that community in habits, feelings, sentiments, etc. ; and that when the result, so much to be deprecated, of the Presidential election being cast upon this House, shall hap pen, that all these ties and considerations form a sufficient guarantee that a wise, honest, and judicious selection will be made. This view, I think, said Mr. Magnum, is conformable with the theory of the Constitution. What are the contemporaneous expositions of the Constitution on this subject ? In the work entitled " The Federalist," a work written by some of the ablest men who were in the Convention, and which is resorted to by the ablest constitutional lawyers as high and grave authority, I find the following opinion : "But, as a majority of votes might not always hap pen to centre in one man, and .as it might be unsafe to permit less than a majority to be conclusive, it is provided that in such case the House of Eepresentatives shall select, out of the candidates who shall have the five (now changed to three ) highest number of votes, the man who, in their opinions, may le lest qualified" And yet, it is said, that these doc trines would be odious in revolutionary France they are too strong for the reign of Napo leon. Such are some of the difficulties into which gentlemen are deluded and bewildered by an overweening attachment to their new-born theories theories that have sprung into life from a brain highly excited by political con tests theories that are cherished with all the ; love that the mother bestows on her ricket} r bantling. But, sir, if these theories may not be de duced from the letter of the Constitution, may JOHN QUINCY ADAMS, PRESIDENT. 71 they not result from the philosophy of the Constitution of which we have heard in this debate? Yes, sir, the philosophy of the Con stitution! That philosophy which, I fear, is to arm this great Government with that stu pendous power which is to sink our State sov ereignties into mere corporations. That power which hiis prostrated some of these barriers that wis3 men of both the old parties recog nized. That power which is incessantly, most fearfully, and alarmingly increasing. Yes, sir, the philosophy of the Constitution! That philosophy which was reserved for the ingenuity and astuteness of modern times to discover, and of which that great and wise man, Patrick Henry and a wise man he was in all his awful vaticinations, never dreamed of. Yes, sir, it is by courting these sovereign people sedulously and arduously that all Jaco bins begin their career. The people are sov ereigns but they are sovereigns in minority; they never have, nor will they ever come to the crown, whatever some of their flatterers may do and yet they have in full enjoyment one of the brightest and most undoubted at tributes of sovereignty the flattery of their courtiers. I trust, I may say, and truly, too, that I have as profound respect for the will of the people, fairly expressed, as any man ; and would pre serve those interests committed to my charge as I would the apple of my eye. I would not look to the shouts of the multitude for the opinions of the people, but I look to their opinion as fairly and constitutionally expressed. To this I respond, to this I am obedient. I regret that I have detained the committee so long on this subject. As regards the ques tion immediately under discussion, I would not turn upon my heel for a decision of it, either one way or the other. Mr. J. S. Barbour, of Virginia, said that a sense of duty made it necessary for him to offer to the committee a few remarks ; and in doing so, he should but express an entire con currence in opinion with the gentleman from North Carolina [Mr. Mangum], that a new zeal had infused itself into our deliberations, result ing from the excitement at this moment per vading both this House and the country. He trusted that the fervor of this excitement would not warp the judgment of the committee, or divert it from the duty of calm inquiry, so im peratively enjoined on it. The first question presented to us I take to be this : Is it right to indulge the intense anxiety now felt by the public, in permitting an inspection of the pro ceedings of this House, when constitutionally employed in selecting a Chief Magistrate ? The history of that country, whose precedents have supplied most of the forms of our deliberations, discloses to us the existence of controversies between the Parliament and the people, on questions of giving publicity to the transactions of the former. It was deemed, and accord ingly punished, as a breach of privilege, to publish the speeches or votes of members, and that, too, on the ground that those proceedings were matter of which the public had no right to be conversant. At the period of forming our Constitution, these demands from the peo ple, and their denial by the Parliament of Eng land, had made an appropriate impression in this country. To secure this right beyond the reach of cavil, and to supply the people with this safeguard for the responsibility of their representatives, claimed the attention of the wise framers of our political fabric. To secure this right, it is provided that the people have a just claim to know what Congress is doing, and that a journal of their proceedings shall, from time to time, be published, together with the yeas and nays, upon demand of one-fifth of the members present. The usage of Congress supplies us with the best commentary upon this constitutional text. Its deliberations have been open to public inspection, with the exception of proceedings where high national considera tions forbade immediate disclosure, and the precedent of 1801, which I think has been clearly demonstrated to merit but little atten tion. Is there anything, then, in the duty now cast upon the House by the happening of the contingency provided for in the Constitution, to distinguish it from ordinary acts of legisla tion, and to demand an unusual measure of safety or precaution. Can gentlemen imagine, for a moment, that our deliberations will be overawed ; or that any intimidation whatever will influence members in discharging this high function? It is a suspicion fraught with injus tice to ourselves, as well as to the people. Throw over* your acts the veil of mystery, and what is the result ? All within is pure, and the members are engaged in the fearless ful fillment of the trusts reposed in them. Will it be so, sir, without ? I apprehend not. Dis trust will fill the public mind, and jealousy will fire its passions ; and when these overtake us, it will be in vain for us to rely upon the con- scions rectitude of our actions, and the dignity of silent deliberation, to shield us from disre spect, or the suspicion of ignoble conduct and unworthy motives. But I understand, from the argument of the gentleman from Delaware [Mr. McLane], that, in making the selection, we act independently of the people, and as a necessary deduction, that they have no right to witness it. I can never yield my assent to such a proposition. It has been successfully combated, I think, by the gentleman from South Carolina [Mr. McDuffie]. With his opinions in relation to the rights of the people over our ordinary legis lation. I must also express my dissent. He in forms us that the Constitution has vested the legislative powers of the United States in Con gress and asks, " What are the ingredients of legislation ? Argument, inquiry, and delibera tion." Sir, when the gentleman presented so forcible an argument in another branch of this question upon the influence of popular will, TENTH PRESIDENTIAL TERM. could he not suppose that this, too, would ne cessarily enter into our acts of legislation ? If tyrants, as he clearly showed, armed with power, are constrained to regard the will of the people, how much more forcibly should that argument apply to national legislation in a government whose very basis is public senti ment ? The will of the people is in this coun try, most especially, the mainspring of all political institution. This, alone, can with us give impulse to permanent legislation. I can not agree with the gentleman from North Carolina, that the wise men who gave form to the Constitution are against me. The Jour nals of that day reveal a singular incident re lating to this question, which may seem to array against me a most distinguished author ity. When the Constitution was in progress, amid the jealousies of its enemies and the anxieties of its friends, numerous amendments were proposed by the several State conven tions. Among these, Virginia sought to in graft upon it a provision, that would secure, at all times, the right to instruct representa tives. In the first Congress that subsequently assembled, an illustrious man, then represent ing that State, and who has since thrown a lustre over our character in the various acts of his public life, proposed this amendment, with an omission of so much as claimed this right of instruction. I am not prepared to receive this as evidence of his own enlightened view of the subject. The Constitution, with all its amendments, is the offspring of a spirit of compromise. This alteration (by his proposition) of the ex pressed wishes of a convention, in whose de liberations he was himself a clear and steady light, owes its birth, in all rational probability, to the same parent. A plain refutation may readily be given (in my humble judgment) of all doubts that cluster around this question. In whose hands is the sovereignty of this Union reposited? The Constitution supplies the answer: In those of the- people. And what is the legislative power ? It is but a semi nal principle which fructifies in those enact ments denominated law. Sir, the writers upon jurisprudence inform us that law is a rule of action emanating from a sovereign power, com manding what is right, and forbidding what is wrong. If, then, the people, who make the constituent body, are admitted to be sovereign, and each representative expresses the sense of his constituents upon every vote he may give, in the passage of any law, do you not obtain a rule of action emanating from the sovereign power of the United States, and filling up the measure of the definition I have just recited ? The gentleman from South Carolina asserts for the people a controlling influence, in per forming the duty required of this House, when the contingency presents itself, in which a selection is to be made here of the Chief Magis trate, because the Constitution recognizes in the people the power and the capacity to make the election. There is a vice in this argument which I think is but apparent, or which may be easily resolved into our diiference in the application of terms. The Constitution con templated an election by the people. But, that it was dangerous to give a power of such magnitude to less than a majority of the whole who voted. And what is the remedy provided for a failure so to choose? The people are scattered over a vast extent of country: to assemble them together is impossible. The theory of the Constitution then requires, as the most practicable mode, if a majority can not be obtained, that a federative majority shall determine, combining with it the popu lar influence, by requiring a selection from the highest on the people s list. This is not the only security provided by the system, to give effect to public will. Had it designed to make your President a federative officer, the choice, in the second instance, might have been given the States in their corporate capacities. Not so, sir. The choice is to be made by the House of Representatives, the direct and immediate dependents of the people, but that, in selecting, they shall vote by States. It was always in tended that he should be the President of the people, not of the States, nor the creature of this House, and all the securities which the Constitution could furnish to assure this end seems, in my view, to point that way. It is true, they may be inadequate to the purpose, but that it was designed cannot admit of doubt. This House, in its several State delegations, cannot be considered as the depositary of the sovereignty of the States, but as the represen tatives of the people, not responsible to the States, but to the districts which they several ly represent. Would it not then be a depart ure from all the checks and principles of the Constitution, designed to secure the respon sibility of public agents, to look upon members here as representing the States in this contin gency, to whom they owe no obligation, and as not representing the people to whom all accountability is secured by the forms of the Constitution ? If this conclusion be a just de rivative from the view taken, what is the pend ing obligation in making the choice ? A sense of political duty will give the im mediate reply. The President is designed to be the Chief Magistrate of the nation ; the appointing body is chosen by the people, and the public will points to the path of safe ty when it points to the path of duty. It is your duty, because you are chosen by tjiose who have the inceptive right of making the election, and this course justifies and responds to the high trusts confided. Safety results from it, because the magistrate so appointed reflects the wishes of the whole mass of the people, and will be the faithful guardian of their rights, their honor, and their independ ence. Elect upon these principles, and you constitute a President who unites public confi dence and respect. He is clothed with a shield JOHN QUINCY ADAMS, PRESIDENT. 73 for your protection at home, and armed with the sword of retributive justice to punish for eign aggression. Choose him upon the other principle, he is the creature of the Legislature, and not the servant of the people ; dependent upon you, and responsible to you, what securi ty is left for the preservation of our popular system? Can he combine the affections of the people when his appointment is in pursuance, not of their will, but in manifest contravention of it? You may, indeed, have given him shape and form, and encircled him with the trappings of power and office, but he is not touched with the vital element which alone can give him be ing. Is he surrounded with the affections of a grateful and confiding people, which makes him the servant " of the people for the people s sake ? " No, sir ; he is pursued by their fears and trammeled with their jealousy. The wishes of the nation driven contemptuously be fore him, while all the calamities of misrule follow in the rear. Nor does the evil stop here ; whoever the individual may be, he can be but man. Filled with the frailties that belong to his condition, will he not seek to convert his pillow of thorns into a bed of roses, and meli orate his condition by seeking to insure a reap- pointment? All the purposes of corruption will be essayed. The creature of this House, deriving being from it, amenable by impeach ment to the Senate, who, with him, hold the appointing power of the Government through out the extended sphere of patronage, what in some coming age may not occur, when corrup tion, which grows with our years, shall have sapped the foundation, on which all our purity rests ? The purse of the nation in the hands of this House may be made to act upon the Senate, and they, in return, to distribute among the Representatives, or their instruments, all the offices, lucrative or honorable. What is the responsibility of such a President? Not in the impeaching power of the Senate, for this House, in which it must originate, and there, where he is to be tried, are his copartners in guilt. Sir, to use the language of an eloquent gentleman on this floor, it was contemplated some years past "to set up a pageant under color of law," in the chair of our Chief Magis trate. He would have been the President of the Legislature, not of the people. And does any man believe for a moment that such a thing could have administered the Government? He would either have fallen a victim to the popu lar rage which such an act would have lifted into jtempest, or, had he weight enough to sus tain himself, the liberties of his country would have been crushed under his influence. And yet the gentleman from North Carolina con siders such principles as these Jacobinical doc trines. [Mr. Mangum here observed, in explanation, that he had never said that these were the doctrines of Jacobins. What he said was this : that all Jacobins began their course with very ardent professions of love to the people.] How does the explanation of the gentleman affect the. principle. These doctrines were professed by Jacobins, and with them Bona parte became the despot of France. Are such principles the less just among our sober, re flecting people because Jacobins and Napoleon professed them ? We are told that u hypocrisy is the homage which vice pays to virtue," and it is as true in politics as in morals. If others have lost their freedom by being duped with such a deceptions avowal of just opinions, shall we abandon them when they have already proved the sheet-anchor of our safety? It would be easy to retort by saying that, if Jacobins have professed these principles, the doctrines of the gentleman are those upon which despotism has acted. If you view this body as one in which is a lodgment, a trust of the powers of ten millions of people, it is an august representative assembly. If a body exercising such high prerogatives independent on the people, they are either so many mem bers clothed with arbitrary power, or they dwindle into individuality. By such results it may happen that the public passions are kindled ; the forms of the Constitution unable to restrain the turbu lence of faction, Jacobins spring up, and tyran ny follows. It was not these doctrines that gave a Bonaparte to France, but an abandon ment of all rational love of liberty. Her revo lution burst out as a volcano its crater was the birthplace of Napoleon its lava the food of his ambition. He was mistakenly hailed as the champion of freedom until his bloody ban ners floated in triumph over the fairest portions of continental Europe. When his followers awoke from the delusions into which he had lulled them, the iron power of despotism had fixed its dark dominion. Both he and his pre- cursive Jacobin horde are alike swept from the earth, and I ask, Is the condition of human ity meliorated by the change? Whenever, Mr. Chairman, a struggle shall arise between 4his country and the House for the choice of President, we may shudder for the continued existence of our political insti tutions. Either the representative body will sink in public estimation, or, if they triumph, it is a victory which subverts the basement of our free institutions. The wise and jealous men who gave being to our form of government were deeply read in the history of past times, and they scanned with prophetic eye the coming events of futurity. The mournful lot of all the govern ments instituted for the professed purpose of insuring the liberty and happiness of man filled them with apprehensions of danger to our new experiment. The opinion was re ceived that a republican form of government was suited only to a small extent of country ; and, in the examples of past times, they found that intrigue, faction, and corruption were the most deadly enemies of democracy. Against their assaults they sought to plant round the TENTH PRESIDENTIAL TERM. pillars of this new and experimental system every possible guard. They contended that, when the popular will was to be gathered from a widely-extended territory, faction and intrigue, always limited in their theatre of action, would not be able to expand their scope over this vast confederacy, corruption, usually secret in its operations, could not show itself in the face of day, and spread its influ ence over the same expanse. In securing the power of electing a Chief Magistrate to the great body of the people, scattered over so vast a territory, it was be lieved that such only would be chosen who possessed those commanding talents, those sub lime virtues, that are the subjects of universal admiration. By adopting the principle of the gentleman from Delaware, and vesting in this body an irresponsible power of selection, you banish this great safeguard of the Constitution. You force the election into that small space upon which full scope is furnished for the operation of these baneful enemies of our free institutions. Upon the theory I have sought to advocate, in which members are the mere organs through which public sentiment is dis closed upon this floor, this great conservative principle is maintained in all its purity. The honorable gentleman from North Carolina says that, by this course, no election could possibly be made. I think differently. If each Repre sentative shall here speak the sense of his con stituents, and that should not disclose on the ballot a majority of the whole, I take it that his duty would require of him by all exertions to give effect to their will. Should this be un attainable, and the last ray of expectation be extinguished in the gloom of despair, he should cast from him the expired hope, and yielding to the greater principle, which makes the safety of the nation the supreme law, he should make a President of one who, upon the best evidence before him, operating upon his honest judg ment, appeared to combine the largest share of public affection and national support. The predilections of a part must, in the end, yield to the wishes of the whole. The gentleman from North Carolina tells you that, according to the argument of the gentleman from South Carolina, you would fail to make a Chief Ma gistrate ; and yet, in the course he speaks of pursuing himself, he would be conducted to the same result. He tells you that, for him self, he stands on an isthmus where the waves may lash in vain; unawed by fear, and unflat- tered by hope, he will not depart from his ground. What is to be the consequence, but the same catastrophe which he humbly thought was ascribed to the principles of the gentleman from South Carolina? We are further asked, how are we to ascertain the will of the people? The forms of the Constitution, framed in the wisdom of departed patriots, must be taken as the surest indications. If these are wrong, then is the Constitution ; resting on a vicious principle. It is somewhat dim cult, in this country, amid both the freedom and the licen tiousness of the press, to mistake the signs of the times. He would not seek to propagate theoretical principles, to which he would not in practice conform. Those who sent him here knew that he would have preferred two other candidates to the one who is their choice. He had no time to hesitate with his limited intelligence. He could not presume to put his judgment in resistance to the mass of intelli gence in the forty thousand electing him. It had been in vain for him to tell them of his predilections and high estimate of others. They presented him their candidate, of whom they said, his genius was his fortune, and his virtues his acts ; his past service a pledge for the fu ture ; and by their sense required him togive that candidate his support. Their will was to him a law. Not a cold and dubious support should follow it, but one that would falter with the last hope. Mr. McLane, of Delaware, rose, and said that he had been the unintentional cause of a debate, which he regretted now to be obliged further to prolong. If he could have foreseen the range the debate would have taken, when he briefly stated the grounds which would in fluence his course, he would have contented himself with a silent vote ; but, unprofitable as the discussion was likely to be, he felt bound to make some reply to the observations of the gentleman from South Carolina [Mr. McDuflfle]. That gentleman had seized upon one or two general positions, which he [Mr. McLane] had originally advanced, to deliver, with his usual talent and adroitness, a popular harangue upon the presidential question, which, though cer tainly eloquent, was anything but an answer to the argument which Mr. McLane had sub mitted. Mr. McLane said he felt under no obligation to follow the gentleman through all the topics to which he had adverted, and he could but remark that the observations of the gentleman would have been much more per tinent, if he had been making a new Constitu tion, than in interpreting the present. Mr. McLane said it was no part of his business to inquire whether better and more expedient provisions might have been made, or whether the will of the people could be more readily attained. It was enough for him to consider his own rights and duties under the Constitu tion as it exists at present. The points between the gentleman from South Carolina and myself, said Mr. McLane, are few, and confined to a small compass. I contend that the immediate constituents of a member of the House of Representatives have no right to instruct him in his vote for a Pres ident, and that, though the opinion of the peo ple of this Union, when fairly ascertained, would be entitled to great weight, it would not be absolutely imperative, but that the Rep resentative should in all cases exercise a sound and honest judgment, acknowledging only his ulterior responsibility. This is denied by the JOHN QUINCT ADAMS, PRESIDENT. 75 gentleman from South Carolina, who asserts the right of instruction, in this instance, to the fullest extent. To these points Mr. McLane said he should confine his argument, leaving the mass of the gentleman s remarks to pro duce an effect wheresoever they might. I dis tinguish our duty, said Mr. McLane, in the election of a President, from that in cases of ordinary legislation, though not admitting the right of instruction in either, because, in the former, our duties are not legislative but rather judicial, or a part of the electoral franchise, which, in its very character, implies freedom of thought and action. The gentleman also distinguishes these du ties, but reaches the opposite conclusion. He denies the right of instruction in matters of ordinary legislation, yet contends for it in our electoral duties ! His theory is, to my mind, fallacious and unsatisfactory. He says the people have no right to make, are incapable of making laws, and therefore delegate that pow er to us, and cannot control us ; but the peo ple have a right to elect a President, and there fore can instruct us in our choice! If the premises were sound, a precisely opposite con clusion would clearly follow ; for, in the first instance, not being able to make laws, the peo ple might well be supposed to constitute us their agents to act for them, and therefore, to a certain extent, retaining the right to exercise a reasonable influence over our conduct ; but, in the other case, having the right to make a President for themselves, and failing to do so, they could not claim to direct us, who are not acting for them, but for ourselves and the nation at large. The argument, however, is not well founded. The theory of our Government, it is true, is that all power is in the people, and derived from the people but they never act them selves, excepting in their electoral franchise. They act through the different organs and func tionaries of the Government, appointed by the Constitution and the laws, and they have not proper right to act in any other way. These functionaries are always responsible for a wise and faithful discharge of their various duties, but cannot be instructed in their exercise. The Congress are authorized to pass laws, and the judicial power to execute them the people give the power to both, but they cannot prop erly instruct either. The gentleman is in error in denying to the people the right of making laws. They have precisely the same right, in this respect, that they have to elect a President. If they had not, how do we get such right, deriving, as we do, all our powers from them? It is, after nil, a mere matter of convenience. The people have the right to make laws, but finding it inconvenient or impracticable to exercise it, delegate the trust to both Houses of Congress. They have the same right, and no more, to elect a President; being more practical in its exercise, they retain it in the first instance, but, foreseeing that this also might prove in convenient or impracticable, they have dele gated that power, in a certain extent, to the House of Kepresentatives. In both instances the power is parted with for similar reasons, and therefore, so far as the original capability of the people is concerned, there is no ground for distinction. The choice of a President is both a power and a duty devolved upon the House of Representatives. It is devolved here, to be sure, by the people, under the provisions of the Constitution, but differing, therefore, from any other delegated authority, only that, being an electoral and not a legislative fran chise, it is not liable to be controlled, at least by a power less than that conferring it. But, said Mr. McLane, let us apply the gentleman s own distinction to the case before us. He says the people have no right to instruct their rep resentatives in a case of ordinary legislation, because they are incapable of passing laws. Well, sir, in the case before us, they have proved to be incapable of electing a President ; not in theory, but in fact ; they have made the attempt and failed ; and for that reason, the duty falls upon us; how, then, upon the gen tleman s principles, can the right of instruction be claimed? .But, said Mr. McLane, the gen tleman from South Carolina, further argued that the will of the people is the paramount law according to what he was pleased to term the philosophy of the Constitution to this the Representative is bound to yield his judgment and conscience ; and shame, and disgrace, and infamy, are denounced as the portion of him who shall venture to obey his own sense of right in opposition to this will. Before he could recognize a power so absolute, Mr. McLane said he was disposed to examine its source and character. He would make no lofty professions of regard for the will of the people, according to the phrase of the day. Nothing was more easy, however, nothing more commons-it was the ordinary theme of all political declamation. It is the common price of power, and paid most liberally by those who most covet it. We scarcely read of a tyrant the first page in whose history is not filled with hallelujahs to the people s will. Sir, said he, ambition seeks not to be governed, but to gov ern ; to govern this people ; and it flatters the people to put more power over them. But, it is the wild tumultuous will that is thus courted ; that which springs from sudden excitements, irregular ebullitions, stirred up by practical causes, and confined to particular districts ; of this false image of the people s will he was no worshipper; while, for the real will of the people, he sincerely felt a profound reverence. I mean, said he, the will of a majority of the people constitutionally expressed in the mode prescribed by the laws. It is this will which is the great moral and political power on which the Government reposes. It is this will which comes in the panoply of the Constitution should be a law to all. He would recognize 76 TENTH PRESIDENTIAL TERM. no other will of the people than that so made manifest; everything else was but its counter feit. Tor this constitutional will we manifest our respect by cherishing and sustaining the institutions of its creation. And of his re spect, he said, he would give a practical proof by yielding a generous support to the man on whom the constitutional manifestation of this will should rest, supporting him when right, and opposing him when wrong. Now, sir, said Mr. McLane, the rights and duties we are so soon to exercise never can devolve upon us, if this will be so expressed ; and we are obliged to act because it was impossible it could be. No one of the three candidates before the House of Representatives has obtained this constitu tional majority, and it is impossible for any of us to say which of them, or whether either, could do so, if the matter were again referred to the people. We should involve ourselves in in finite confusion and embarrassment to embark on such a sea of speculation. The people have no right to expect us to do so. "We have rights as well as they, and both are equally bound by the forms of the Constitution. We cannot be ignorant of the speculations which are pouring in upon us from all quarters, and the zeal with which each class of politicians builds up plaus ible arguments to prove that its own favorite candidate has either obtained or would obtain a majority of the people in his favor. In the midst of all these conjectures, hovvever, it is certain that neither has, constitutionally, the majority. In this state of things, it is the right and duty of the House of Representatives to choose one of the three to be President, and the question is, whether less than a majority of the people have the right, in a loose, uncon stitutional manner, to control that choice? If the Constitution requires a majority, it would be unwise in us to be swayed by less, and it would be usurpation in others to attempt it. I am bound to presume that the distribution of powers under this Government was for wise purposes. I will neither encroach upon the rights of others nor surrender my own. The moment different functionaries, under this Government, conflict with each other, the powers of each will be in jeopardy. The peo ple are empowered, in the first instance, to elect a President in their own way, if they can. With their franchise, in this respect, we have no business to interfere. But, if they fail, the same Constitution has created a new electoral power, over whose independent deliberations they have as little control. The opposite doc trine would array the people against their own institutions, and involve both in a common ruin. Our duty is not less important, not less responsible than that which the people have vainly attempted to discharge ; and to suppose ourselves less independent than they, would be to impeach the wisdom of the Constitution. The gentleman from South Carolina says, the election of the President by the people is the best mode which human wisdom can devise. I may admit the position, but what follows? The Constitution supposes it the best, and therefore resorts to it in the first instance ; but it also supposes it may fail in its object. It requires a majority of the people in favor of some one candidate to make an election ; it supposes this majority unattainable, and, in such an event, which has now happened, di rects a new mode of election, and by a differ ent power. I ask gentlemen to look into the Constitution, and see what restrictions are im posed upon the exercise of this power. There is none but the number to which the choice is limited. Within this number it is in vain to shackle our discretion. The Constitution meant, and for wise pur poses, that the direct agency of the people in this election should cease after the result of the electoral votes, and that, in the new and further election, the federative principle of the Government should operate, rejecting all influ ence from numbers and the weight of popula tion. It became absolutely necessary to resort to. such principle to promote and insure an election by disregarding the causes which had prevented it in the electoral colleges. It de signed to remove us from that very influence which had defeated the will of the majority. By giving each State a vote, without regard to its population, the electoral combinations or disagreements are broken up, and a new prin ciple established. But the doctrine contended for by the gentleman from South Carolina brings the force of the population, in the worst and most irregular form, to operate on the election here and disappoint the great object of the change. Sir, said Mr. McLane, it is plain that, if the Constitution had deemed the further agency of the people essential, or even proper, it would not have devolved the election upon us, where the largest and smallest State are upon an equal ity, but would have sent it back to the people for a new effort. It would have remitted the choice to them with the same restriction as to the number of candidates, or it would have sent the election to us to be made in proportion to the numbers of each State on this floor. If it were deemed inexpedient to send the choice back to the people for a constitutional expression of their preference, it cannot be wise to control it here by a loose manifestation, or by vague and speculative conjectures. The gentleman from South Carolina, said Mr. McLane, has spoken of an " inchoate elec tion." He says the people have commenced the choice, and that we are only to complete what they have begun. He did not, he said, entirely comprehend the force of these re marks. If they were designed to argue that we should begin where the people had left off, pushing the highest by preference to the others, he could not assent to the proposition. Such an idea was as impracticable as it would be to add States to individual votes. But the act of the people, he contended, was complete, and JOHN QUINCY ADAMS, PRESIDENT. 77 their power at an. end. Their act was to ballot for a choice; if any one received a majority, the election was complete. If such a majority did not appear, the failure was as complete. He contended that the people were done with the matter ; it was no longer in their hands ; it had passed into ours, accompanied with a deep responsibility, which we could not other wise discharge than by an honest, conscien tious performance of our duty, according to our honest judgment. What, then, said Mr. MoLane, are our rights and duties in this matter ? The Constitution, by which they are prescribed, provides that, if no person shall have a majority, then, from the persons having the highest numbers, not exceeding three, the House of Representatives shall choose, immediately, by ballot, the Presi dent. The time of making this choice does, of itself, exclude the idea of any interference of the people by instruction. The House are to proceed immediately to the performance of their duty, making it impossible to procure any concerted or regular movement by the people to express their wish. Any other than such would be worse than folly; it would be delu sive and dangerous. But the House of Representatives are to choose a President. This is both a right and a dutv. The right of choosing implies the right of se lecting it implies, also, discretion, the exer cise of an unbiased judgment, the duty of con sidering the fitness and qualifications of the respective candidates, their comparative mer its, their capacity to sustain the institutions of the country, to promote the safety and happi ness of the people at home and the honor and glory of the nation abroad ; in short, sir, it necessarily implies the right of considering everything which fairly appertains to the pref erence to be ultimately declared. It is our duty to examine and deliberate upon every thing connected with the subject in reference to the object to be attained. Are gentlemen willing to have this great duty resolved into a simple inquiry into personal popularity, of which of the three our particular constituents might prefer, or which would be most popu lar in a given district or State ? Such an in quiry would divert us entirely from the merits of the candidates, and lead us into a field where everything is doubt and conjecture. What, said he, are the powers of the peo ple when they are making the election, and by what motives are they to be supposed to be in fluenced in their choice ? There are no limits to their power; they may even indulge in whim and caprice ; but a wise, and virtuous, and intelligent, and patriotic people must be presumed to be guided in their choice by the character and fitness of the candidate. They look for a Chief Magistrate capable of presid ing with safety and honor over the destinies of the country, and less power than they pos sess over the subject would be inadequate to the object would impair the elective fran chise. Have we not the same duties to per form, the same objects to attain, and are we clothed with less power and fewer means for their attainment ? Could it have been the de sign of this Constitution to commit this high trust to our hands, and leave us dependent upon the will or caprice of others for its exe cution ? It is our duty and our right to " choose," but, if we are liable to be instructed, nay, commanded, in our choice, the choice is not ours, but theirs who instruct us ; it is not a free and independent selection, but obedience to the commands of a superior. I admit, said Mr. McLane, that the pref erence of the people is worthy of considera tion, accompanied by an inquiry into the grounds and motives of the preference, and we should fairly endeavor to elect the man who would or ought to be acceptable to the people ; but in determining this we should rather consider the fitness of the man and the character of the people than any wild and ir regular ebullitions of the popular will. The gentleman from South Carolina has argued that a great man of distinguished virtues will always command the approbation of the peo ple. In the progress of things there is much truth in the observation, and, if we take care to select a man of real merit, who is in all re spects fitted to promote the great objects of good government, we may confidently expect such a selection to ba ultimately acceptable to the people. It is made our duty to select from three candidates ; and I contend (said he) that, as it respects the state of their vote out of this House, they are upon an equal footing ; they are all equally nominated for our support, each resting his claims upon his own individ ual qualifications. Why was this scope given to our selection, if their relative strength be obligatory upon our judgment? Neither the Constitution nor the principles of our Gov ernment pay respect to less than a majority ; and, as neither candidate before us possesses this advantage, what other guide have we? The gentleman has argued with great confi dence, as if the plurality in vote were to con trol our choice. If this were so, the discre tion secured by the Constitution would be mere mockery. It must be supposed to au thorize us to choose from three, and yet to confine us to one. Our duty would be simply to elect the man highest in vote, without re gard to fitness. But, sir (said Mr. McLane), this is not the principle of our Government. In the primary election, a majority of the people is to govern ; here, a majority of the States. The plurality principle is in opposi tion to both. The majority of the people are certainly opposed to such a candidate a ma jority of the States may be. The state of the vote in the colleges is the result of a state of things which no longer exists. It may have been produced by the number of candidates, 78 TENTH PRESIDENTIAL TERM. and without reference to a preference between the three persons from whom a choice is here to be made. It is our high privilege to weigh and consider all these things to deliberate upon the qualification of the candidates, and to consider who would best serve the people, and whom they ought to, not less than whom they do, prefer. The gentleman from South Carolina has emphatically desired me to suppose that one man should receive 130 electoral votes, and asks if I should dare put by his claims. Sir, the case is by no means puzzling. I should dare to do so, if in my conscience I believed such a candidate unfit to be the ruler of this nation. I should consider the case as still one of expediency. I admit that so strong a vote ought to have, and could not fail to have, great weight; but still there would be 131 electoral votes opposed to him, being a major ity of the people ; and there would be quite as much propriety in supposing that that ma jority would prefer another, more especially if, in reality, he should be better qualified for the station. This doctrine of the plurality preference and of instruction would naturally lead .to the most dangerous consequences, and defeat one great object of confiding the choice to us. It holds all our information and experience for naught, and deprives the people of all advan tage from the very qualities for which they have selected us for this duty. It can rarely happen that the people of these States can have a full knowledge of the character and principles of men who may be presented for their suffrages. They judge from the repre sentations of others, or from some single glar ing or striking act. The preference is no doubt founded upon his supposed fitness and capacity. They believe him to be a wise, en lightened, and virtuous statesman, sound and practical in his views, and deserving their con fidence. But is it not possible for all these calculations to prove unfounded? Let me suppose, sir (said he), that we, who may be better acquainted with the individual, when we come to inspect his character and test -his fitness, find that he is in reality distinguished for no one virtue for which the people pre ferred him ; that, in our consciences, we should be persuaded he was wholly incapa ble of administering the Government what would the gentleman from South Carolina do in such case ? Would he surrender his judg ment and conscience to the mistaken prefer ence of his constituents, or fearlessly consult his higher duty to his country ? It was no stretch of the imagination, said Mr. McLane, for him to suppose further that some one candidate returned to the House of Representatives should be discovered in the use of improper means to promote his elec tion. The patronage of his office may have been held out in anticipation, and indications of a policy and administration injurious to the great interests of the nation. In such a case who could hesitate between the mandate of his instruction and his duty to the nation ? Sir, said Mr. McLane, the only true and safe course is to treat this body as an independent tribunal, bound to elect the men best qualified, in their judgment, to administer the affairs of the nation. If we are bound by instructions, who have the right to instruct us? It has been already shown that the election here is federative, and not by numbers ; the votes are by States, and not by the people. We are called to perform this duty for the whole nation, not for any part of it ; for all the States, and not for any one in particular. When we enter upon this duty we lose our relation to our immediate con stituents, and are charged with a duty for the whole Union. We become the judges and umpires for the whole ; we are to act for the interests of the whole. It is in this way only that the equality of the votes of States here can be reconciled with the general theory of the Government. If I act here under the instruction and dominion of Delaware, the population of that State con trols tenfold its numbers elsewhere. But if I act here under no more particular responsibil ity to my immediate constituents in Delaware than to the rest of the Union, and consulting the interests of the whole, this disparity, which has been so much complained of, disap pears. If in this election I preserve my ordinary relation to the people of Delaware, then to them only am I responsible, and upon me their instructions only are obligatory. What, then, becomes of the plurality vote, if their instruc tions command me to disregard and disobey it? I ask again, said Mr. McLane, where is the power whence these instructions can consti tutionally emanate? From the people they cannot, for there is no mode by which their will can be ascertained. For I desire to pro test against all partial or local assemblages as indicating the will of the majority. From the Legislatures they cannot, for these bodies are charged with no such duties, and can have no better means of ascertaining the public will than we, who spring from the same source. Sir, said Mr. McLane, if we are called in the discharge of this duty to act for the whole people of this Union, and are bound to consult the interests of the whole, and if, in the performance of our duty, the plurality of the votes of the whole people, expressed in their elections, can have no obligatory force with us, how can it be said that the opinions or instructions of our particular county or dis trict, or even a State, can be more imperative ? Mr. McLane said, when he was up a few days ago, he had ventured to argue that if we were bound to regard the will or instruc tion of our particular districts, we should be constantly in danger of making no election at JOHN QUINCY ADAMS, PRESIDENT. 79 all. If each State have the right to instruct its representatives, there can be no change un til the one or other give way. The gentleman from South Carolina has taken occasion to express the utmost apprehen sion of the consequences of no election, and would conceive himself an object of just repro bation if he could be instrumental in producing such an alternative. But if he be bound by the instructions of his constituents, and they direct him not to give way, he is no longer re sponsible; lie yields to the power of others, and takes no blame to himself. Is there no danger to be apprehended from this quarter ? Does excitement prevail nowhere but in this Hall? Are there no sectional jealousies, and local prejudices to be stirred up in such a con test? Does not every one know the height to which the public excitement may be carried by political contests, and the zeal and obstinacy with which angry partisans maintain their point ? Suppose, under such a state of excite ment, that three candidates came to this House, with the States equally divided ; how could we hope to make an election ? Each State in structs its Representatives to hold out, to nail their flag U> the mast, and go down with their ship ; and all the evils of contending passions and jealousies immediately ensue. My word far it, said Mr. McLane, let the popular fervor be once fully roused, and the tumults will rage as wildly without as within these walls. We cannot avoid these difficulties, until we learn to value our own freedom and independence ; to be responsible only, in the discharge of our duty, to our own consciences, to the interests of a common country, and our ultimate dependence upon the will of a constitutional majority. No responsibility could be weightier, and the doctrine of instruction and obedience, this counterfeit image of the people s will, could not fail to weaken it. It would do more it would subvert the independence of the Repre sentative, and seriously disturb the public tran quillity. As long as we are held to an honest, conscientious discharge of our duties here, we shall act with greater judgment and circum spection we shall measure our obligations by the scale of the Union, and act under views worthy of so high a trust. But we should no sooner cast off this independence, and yield our judgments and consciences to the dictates of any authority whatsoever, than we should cease to exert our own faculties, and be driven about, the sport of every popular breeze. We should escape from our duty to the whole, and seek refuge under the local or narrow and ca pricious views of a particular part. A high national responsibility, involving loftiness of character and virtuous fame, would give way to considerations of place and power; we should soon learn to value a seat on this floor more than the higher concerns of a great na tion ; and, instead of consulting the interests of the American people, we should obey only the commands of a single congressional district. According to the theory for which he con tended, said Mr. McLane, the duty of a mem ber of this House is that of a great moral agent, looking, with a single eye, to the wel fare of a common country, and guided by con siderations of a similar kind. He acts fearless ly and independently to the attainment of that end : if he fail, from weakness of character, or through corrupt means, and give just offense, or produce injury to the people, the remedy is found in the elective power of the people. It is the ultimate remedy for all evils and abuses in the G-overnment, and will never prove inefficacious as long as each public func tionary shall be kept within its appropriate sphere. There is force enough in it to secure an honest discharge of our duty it is terrible only to evil-doers. If it be rashly or vin dictively applied, it deprives us of the honor of a seat here ; but it leaves us in possession of that which is of far more value, and well calculated to alleviate the loss of place. I do not say that the honor of a seat in this House is to be lightly esteemed, or that he who could not surrender it without regret would be unworthy of its occupation; but I will say that it is not likely to be honored by him who would be incapable of performing its duties with an honest independence. Mr. McLane said he was not ambitious of figuring in an opposition to the popular clamor, nor was he at all disposed to court responsibil ity; but he would not shrink from it, when it came upon him, and he could imagine it to be sometimes a virtue to oppose even the wildest tumult. It behooved every man placed in such a station to meet the crisis with calmness and fortitude; to throw his eyes abroad over the whole scene, and do the best for the safety and happiness of the whole. It would ill become us, he said, in such a crisis, to be found timid and wavering, infirm of pur pose, bending to the storm, or yielding our judgments to the commands of others. Our great duty, upon such an occasion as the pres ent, was to compose difficulties, not to height en them with others, or to be agitated by them ourselves. The supposition is, when the elec tion of a President devolves upon this House, that the public voice has been distrusted and distracted by serious and unavoidable difficul ties; by the number of candidates, personal predilections, and hostility; local views and sectional jealousy ; party feelings and factious excitement. By these and other causes the public mind may have been thrown into the most bitter and violent commotion, alarming both social and public tranquillity ; the Consti tution erects this House into a high and sa cred tribunal, to compose and quiet these an gry elements to allow time for their fury to subside to bring order out of confusion ; we should be false to ourselves and to the coun try, if, instead of doing so, we should launch forth upon this wild ocean, and fret and vex it afresh. It is not for me to say how sure- 80 TENTH PRESIDENTIAL TERM. ly this would be done by bringing public ex citement to operate upon our deliberations in such an election. .Then, sir, said Mr. McLane, if I be correct in the views I have taken of the rights and duties of the House of Representatives in this election, does it not follow that all attempts to control or sway or intimidate the free exer cise of our sober, independent judgment, are indecorous and improper ? He would not now detain the House, after the time he had already consumed, in detailing the various means which might be employed, and the different kinds of influence which might be brought to control the independence of members. It was unne cessary for him, he said, to describe the effects of all these popular engines which a state of high public excitement always puts in motion, and which, from the seeds sown in county meetings to the fruits appearing in the persons of self-constituted committees, which may daily surround this Hall, were constantly op erating. We guard the election by the peo ple, said he, from all tumult and disorder, and carefully banish all illegitimate influence at a distance. Why are we fearful of surrounding our own liberties with equal security ? The character of all these influences is progressive ; and the most fearful apprehensions entertained by able commentators upon our Constitution, of an election by the House of Representa tives, have been from the effect of these ex traneous .influences, both civil and military, which may easily be put in motion. Mr. Mc Lane said he had 110 apprehension of such evils at the present day ; but he repeated that, now, when everything was comparatively tran quil and secure, was the most suitable time to make provision for the day when the tempers of gentlemen would be less calculated for cool deliberation. If the people had no power to interfere with our conduct, they could claim no right to superintend our deliberations. He had as little at stake as others, however, and should submit, with as good a grace to the decision of the House. Mr. McLane said he could not conclude his remarks without notice of another topic of the gentleman of South Carolina (Mr. McDuffie) to which he wished he could have been spared the duty of adverting. It was the reply which that gentleman had given to the precedent of 1801, which he (Mr. McLane) had, on a former occasion, called to the attention of the House. It had been summarily and violently denounced because it had emanated from the old Federal party. Mr. McLane remarked that what he said on a former occasion on this subject would make it unnecessary for him to say much more now. He was not so weak as to enter, at this time of day, upon a grave and argumentative defense of the Federal party, He well knew it was not to be defended by speeches in or out of this House. It would have to rely for its defense upon the wisdom and propriety of its works, to which the gen eral state of our national happiness and the cool judgment of posterity were fast affixing their seal. To the survivors of that party it must be a source of proud satisfaction to wit ness the wisdom of its policy daily triumph ing over the bitterest prejudices, while those who had disappeared from the stage had passed to a higher reward. He could but la ment, however, the disposition occasionally manifested to keep alive those old animosities. It was sufficient to satisfy him that the mon ster party was not dead, but sleeping, and not so sound but that now and then it would rouse up and shake its grizzly mane. We had not altogether distrusted the promise that in the present day some Hercules would appear to rid us of .this monster with more heads than the Lerna3an of old, and he sincerely hoped that, after this labor should be achieved, he should not continue to be wounded by the arrows of the conqueror^ more fatal than even those dipped in the gall of the ancient Hydra. The honorable gentleman from South Caro lina (Mr. McDuffie), however, had declined considering this as a precedent of the Federal party, but had pronounced it the act of a party who had deliberately determined to^violate the Constitution of their country ; and the gentle man had further said, their reward had been political infamy! Sir, said Mr. McLane, I hope this was rather spoken in the heat of debate than with a dispassionate foresight of the extent of such denunciation. We know the gentleman was too chivalrous to carry it out seriously to its consequences, and yet his remarks were liable to such an interpretation. However this may be, said Mr. McLane, it is but declamation ; nothing was attempted upon that occasion that the Constitution at least did not warrant, and men as pure as any this nation has produced embarked in the en ter prise. Sir, the political infamy of which the gentleman has spoken exists only in his own imagination. It has tainted the life of scarcely an individual who was concerned in that famous election. If the gentleman will cast his eye over the Journal of that period, he will see the names of many whose fame and virtues are much more to be envied than shunned. One, and by no means the least eminent, was then an able Representative of the same State which the gentleman now rep resents upon this floor. From that period his life was marked by the exhibition of great probity and talents, commanding public and private admiration ; sharing, in his life, the confidence of his fellow-citizens, and in his death, but the other day, wrapping a neigh boring city in mourning. Sir, said Mr. McLane, my own State had the honor to claim as her Representative an able and conspicuous statesman of that Congress. Deservedly distinguished as he was for the noblest private and public virtues, the lustre of an illustrious life shone with new light upon the public eye after the scenes of that day. JOHtf QULVCf ADAMS, PRESIDENT. 81 He lived only to give stronger proofs of his patriotism, and to fasten his hold upon pub lic confidence and admiration. He was even selected, at a most critical period of public affairs, by a Republican Administration, for a highly-important trust, and bore a conspicuous share in that memorable negotiation which re stored peace to a bleeding country. Sir, I have a high respect for the gentleman from South Carolina, and would rather smooth than ob- sbruct the path of his fame; but were my feel ings for him much warmer than they are, I could not wish him a more enviable lot than the same portion of private and political char acter which rewarded the virtues of the dis tinguished individual to whom I have alluded, who was the pride of his State and the orna ment of his country. Mr. Webster thsn rose, and said that the precise question before the committee, as he understood it, was on expunging that part of the third rule to be observed in conducting the approaching election, which prescribes that the galleries of this House, which at first were to be open to the public, may be cleared at any time pending the election, at the request of the delegation of any one State. If the motion obtains, the standing rule of the House on this subject will then be in order, which is, that the Speaker, as a matter of duty and a matter of course, may cause the galleries to be cleared whenever any disorder on the part of those who attend there shall, in his opinion, render it expedient and proper, so that, in fact, the question before the committee, which has been, he would not say, the subject, but which has been the occasion, of such an extended dis cussion, is simply this, whether the power of clearing the galleries in case of disorder shall rest with the Speaker of the House or with the delegation from a State. This is the precise question which the committee have to decide. A very broad discussion had been gone into as to the effect of those various considerations which ought to influence a member of this House in giving his vote. As constituting, either in whole or in part, the delegation of a State, he would not say that the arguments which had been brought forward had not any relation to each other. But he must say that their relation to the question before the com mittee was but slight. The question had been treated with a view to national considerations, but it must be extremely evident that the House could not prescribe how much relative consid eration ought to be given to one and how much to another of these considerations. And in such a case each member must judge for him self what degree of respect is due to this or that mode of expressing public opinion. Whether he shall have regard to public opinion as it now is, or as it will soon be : on every question of this kind each man must decide for himself. A course of remark had been gone into, histori cal allusions had been made, and not very slight denunciations had been uttered, in rela tion to a former precedent, to all which it might be expected that he should make some reply ; and he certainly felt, as was natural in his circumstances, a strong desire to do so, but he was restrained from indulging this desire, by what he considered to be his duty to the House. It must be, by this time, perfectly evident that no valuable result could bo ob tained by the most protracted discussion ; and he would submit to the candor of gentlemen the propriety of making some disposition of the subject before them without further de lay. He hoped that the motion he was about to make would be received in the spirit in which it was made. The House was on the eve of a great and interesting duty. It was indispensable that some rules of proceeding should previously be adopted. With respect to the particular rule now in discussion, he considered it as very unimportant in itself. Ir important at all, it had only been made so by the discussion of which it had been made the subject. Bather than spend ten minutes more of the time of the House, he would, for him self, willingly consent that the power in ques tion should remain with the Speaker, or should be given to the delegation of a State. He, therefore, moved that the committee do now rise, and that the residue of the rules should be determined on in the House. The motion was agreed to, and the commit tee then rose, reported progress, and were re fused leave to sit again ; and the committee was discharged from the further consideration of the subject. On motion of Mr. Cocke, the Committee of the Whole on the State of the Union were dis charged from the further consideration of the rules referred to it ; and they were laid on the table. They were then taken up and read in order. The first rule is in the following words: "1. In the event of its appearing, on open ing all the certificates, and counting the votes given by the electors of the several States for President, that no person has a majority of the votes of the whole number of the electors ap pointed, and the result shall have been de clared, the same shall be entered on the Jour nals of this House." This rule, having been read, was agreed to. The second rule, on motion of Mr. Bassett, was amended, by inserting, after the word "called," the words "by States;" and thus amended, it read as follows : "2. The roll of the House shall then, be called, by States, and, on its appearing that a member or members from two-thirds of the States are present, the House shall immedi ately proceed, by ballot, to choose a President from the persons having the highest numbers, not exceeding three, on the list of those voted for as President; and in case neither of those persons shall receive the votes of a majority of all the States on the first ballot, the House shall continue to ballot for a President, with out interruption by other business,, until a TSXTH PRESIDENTIAL TERM. President be chosen;" and, thus amended, it was agreed to. The third rule having been read, a motion was made to strike out the last clause, which orders the galleries to be cleared at the request of the delegation of any one State. On this question Mr. McDuffie rose and ob served that he left it to the House to deter mine on whom the responsibility rested of giving to the present discussion the extensive range which it had taken. For himself, he had adopted, as a constant rule, not to con sume the time of the House by any remarks which had not a direct reference to the sub ject before it, or which were not drawn out by topics brought into the discussion by other gentlemen. As to the present discussion, he had considered the gentleman from Delaware as assuming, at the commencement of it, as the ground on which he thought it wise policy to clear the galleries, that members of this House, when engaged in electing a "President, did not act as the delegates of the people, and were not responsible to them ; the reply which he himself had made was directed only to this principle. It went no further. In replying to his remarks, the gentleman from Delaware had extended the discussion still further, and had made a theoretical discussion of the powers of the House to bear on the question immedi ately before it. And now, at the close of one of the most eloquent and imposing arguments ever delivered in this House, a member rises in his place and suggests the impolicy of con tinuing the argument. He felt very great re spect for that member, but he considered the matter to be discussed as of the greatest im portance. The principle laid down had a very wide and extensive bearing, and he felt it his duty to submit to the dictates of his own judgment, and give the principle that discus sion which he considered it entitled to receive. The responsibility rested upon him, and he well knew the impatience of the House, and was aware of the lateness of the hour. But he was compelled, notwithstanding these dis advantages, to go into the argument, and to reply both to the gentleman from North Caro lina and the gentleman from Delaware. Both of these gentlemen had put cases, urged with a great deal of ingenuity, to show that the doctrine for which he contended, viz., that, in electing a President, the people have a right to instruct their delegates, would operate in practice to defeat the election. Sir, said Mr. McDuffie, if that consequence can be shown to be fairly deducible from the principle I advo cate, I will abandon it. But I think that, so far from this being the case, the danger exists only in the imagination of the gentlemen who urge it. What is the case supposed by the gen tleman from North Carolina ? That there are three candidates, and that eight States vote for each of them. "Well, take that case. The gen tlemen say, if the people have a right to in struct their delegates, then instructions once given cannot be resisted, and so the delegate must go on voting to the end for the candidate designated by his own State, and thus the election will be prevented altogether. But this statement arises from an entire misappre hension of the ground-stake. I did not con tend that the delegate must go on voting to the end as he began, and so defeat the elec tion. I only contended that the popular will of the State is as binding on me as they say the dictate of conscience is binding on them. I will, therefore, turn the gentlemen s case upon themselves; suppose there are three candidates, and the members from eight States hold themselves bound in conscience to vote for each of them, can there be an election in this case ? No, sir. They say that, if the popular willis to bind me, I must continue to submit to it. Well, sir, if conscience is to bind them, they must continue to submit to it. I do not say that the people have a legal right to in struct their delegates, but Here Mr. W r ebster observed that he rose with great pain. He hoped the gentleman from South Carolina would do him the justice to believe that nothing but an imperious con viction of duty induced him to interrupt an argument which he knew it would give him pleasure to hear, but he submitted whether it was in order to go into an argument in the House in reply to an argument urged in Com mittee of the Whole any more than if it had been urged in a select committee. The Speaker decided that the observations of Mr. McDuffie were net in order, on the ground stated, and that they were not in order for another reason, viz., that the whole scope of the debate was irrelevant to the question actually before the House. Mr. McDuffie, on the latter ground, submit ted to the decision of the Chair. The question was then put on the amend ment, and carried. Mr. Wright moved further to amend the rule, by inserting, after the word Senators," the words " stenographers," which was carried. And the rule, as amended, was adopted, and read as follows : U 3. The doors of the Hall shall be closed during the balloting, except against members of the Senate, stenographers, and the officers of the House." The fourth rule was then read and adopte<!, as follows : "4. From the commencement of the ballot ing until an election is made, no proposition to adjourn shall be received, unless on the motion of one State, seconded by another State ; and the question shall be decided by States. The same rule shall be observed in regard to any motion to change the usual hour for the meeting of the Houses." The fifth rule was then read, in the words following: "5. In balloting, the following mode shall be observed, to wit: JOHN QUINCY ADAMS, PRESIDENT. 83 "The Representatives of each State shall be arranged and seated together, beginning with the seat at the right hand of the Speaker s chair, with the members from the State of Maine; thence proceeding with the members from the States in the order the States are usually named for receiving petitions, around the Hall of the House, until all are seated ; a ballot-box shall be provided for each State. The Representatives of each State shall, in the first instance, ballot among themselves, in order to ascertain the vote of their State, and they may, if necessary, appoint tellers of their ballots. " After the vote of each State is ascertained, duplicates thereof shall be made out, and, in case any one of the persons from whom the choice is to be made shall receive a majority of the votes given on any one balloting by the Representatives of a State, the name of that person shall be written on each of the dupli cates; and in case votes so given shall be divided, so that neither of said persons shall have a majority of the whole number of votes given by such State on any one ballot ing, then the word divided shall be written on each duplicate. " After the delegation from each State shall have ascertained the vote of their State, the Clerk shall name the States in the order they are usually for receiving petitions, and, as the name of each is called, the Sergeant-at- Arms shall present to the delegation of each two ballot-boxes, in each of which shall be deposited, by some Representative of the State, one of the duplicates made as aforesaid, of the vote of said State, in the presence, and subject to the examination, of all the members from said State then present ; and where there is more than one Representative from a State, the duplicates shall not both be deposited by the same person. " When the votes of the States are thus all taken in, the Sergeant-at-Arms shall carry one of the said ballot-boxes to one table, and the other to a separate and distinct table. " One person from each State, represented in the balloting, shall be appointed by its Repre sentatives to tell off said ballots ; but, in case the Representatives fail to appoint a teller, the Speaker shall appoint. " The said tellers shall divide themselves into two sets, as nearly equal in number as can be, and one of the said sets of tellers shall pro ceed to count the votes in one of said boxes, and the other set the votes in the other box. " When the votes are counted by the differ ent sets of tellers, the result shall be reported to the House, and if the reports agree, the same shall be accepted as the true votes of the States ; but, if the reports disagree, the States shall proceed in the same manner as before, to a new ballot." Mr. Hamilton, of South Carolina, then moved to amend this rule, by striking out what fol lows the worda a ballot-box shall be pro vided for each State,"" and inserting the fol lowing : "Labeled with the name of the State, placed in front of the Speaker s chair, on the Clerk s table placed in the order of the States. The Clerk shall then proceed to call each del egation in the order in which petitions are then called and the member of each delega tion shall place his ballot in the box labeled Avith the name of the State. After all the States have thus voted, then the members of each delegation shall nominate a member of their delegation to act as teller, who shall pro ceed with the rest of the tellers appointed by the several delegations to count the votes of each State, commencing in the order in which they are called, at the close of which count, the separate vote of each State shall be de clared by the senior member of the commit tee of tellers, as well as the result of the ag gregate ballot. Should the delegation of any State fail to appoint a teller, then the Speaker shall nominate one, and where there is but one member of a State, he shall act as teller. These rules shall be observed in each succes sive ballot, until a choice is produced, in con formity with the provisions of the Constitu tion of the United States." Mr. Hamilton rose and observed that, in offering this amendment, he disclaimed any intention to provoke a debate on a subject which might be susceptible of extended and various considerations. My object (said Mr. Hamilton) is to endeavor to adopt, within the provisions of the Constitution, some mode by which the vote of each State (not the mem bers of the several States) may be ascertained. To the members composing the delegations I know that the privilege of a secret ballot is secured. This I do not propose to violate; but I do propose that some mode should be adopted by which the vote of the State, when given, should be put on record on the Journals of this House, and the people be en abled, in an authentic form, to know how their representatives have given the vote of the States which they represent. Now, by the mode reported by the commit tee, there are to be twenty-four distinct and secret colleges, each State acting under its own discretion, and the strange result might occur that, in one delegation, blank votes would be counted, and in another rejected, and by this clashing it might, in effect, arise that an election should be produced which was not the result of a majority of the States. The amendments he had submitted provided that the vote of each State should be in a separate ballot-box, and be thus told and de clared. He felt satisfied that, although it seemed in its operation to disclose the vote of a member, when that person represented alone a whole State, yet this was an accident, either of good fortune or bad, according to the pride and regret with which such gentle men might view their situation. Besides, ha TEXTH PRESIDENTIAL TERM. did not suppose that any gentleman on that floor would desire to have any result pro duced by his acts attributed to another, which, in the portentous darkness which was about to veil their proceedings in relation to the mode of balloting, might occur. In conclusion, he would say that we were bound, as far as it was admissible within the secret ballot, according to each member, to allow the people to understand, at least in our condescension, how the vote of their different States have been given in a shape more authen tic than rumor, or even a newspaper report. He defied any man, in the odious contest of 1801, to determine how the States had voted from the Journals of this House ; and he thought such a mysterious mode of choice suited rather the muffled secrecy of a Venetian Senate than an assembly representing a free people. Let us have no approach, even in appearance, in our transactions on this eventful occasion, to that terrible image of jealousy, secrecy, and prostration of public freedom, exhibited by the brazen lion of Venice, who, with his gaping mouth, receives a vote which comes whence nobody knows, and for which nobody is re sponsible. Mr. Webster requested leave to make a sin gle remark, which might save further discus sion. The rule, as proposed by the gentleman from South Carolina, would be in direct viola tion of the Constitution. The Constitution says that the States shall vote by ballot. But the proposed amendment would defeat that intention. Some of the States are represented only by a single delegate ; and, if the proposed amendment prevailed, each of these gentlemen is compelled to declare in what way he has voted. Mr. Hamilton observed, in reply to the gen tleman from Massachusetts, that, on a question involving a construction of the Constitution, he would advance his own opinions, with some deference, in opposition to the opinions of that gentleman. But he contended that, substan tially, by this mode, the vote was given by States, which was all that the Constitution renders necessary ; that, so long as the mode by which the sense and vote of each State were ascertained was by ballot, all the requisitions of the Constitution are complied with. His amendment, in fact, merely provided for a separate ballot-box for each State, rather than a general one, by which the votes of the several States would be wholly unknown. Mr. Hamil ton then dwelt very briefly upon several public considerations which rendered such knowledge important, and concluded by saying that, from the lateness of the hour, and the short time which was allowed them now for the passage of the rules, he would not press the discussion. Mr. Wright, of Ohio, observed that if gen tlemen would examine the rule reported by the committee, and the amendment proposed by the gentleman from South Carolina [Mr. Hamilton], with the Constitution, they would find that the rule wag, and the amendment was not, consistent with it. The Constitution re quires the choice to be made by ballot ; the votes to be taken by States., each State having one vote. The amendment goes upon the prin ciple that you must present to the House one vote for each member from a State, instead of one vote for each State, without regard to the number of members. The difference must be obvious. The rule prescribes the manner in which each State shall ascertain its vote ; when ascertained, how that vote shall be presented to the House, and be told off. The amend ment seeks to deprive the States of a vote by ballot, and confer power on the tellers, who shall ascertain, by counting the ballots of the members, how the State would vote, to give the vote viva voce, not by ballot. The House constitutionally has little to do in determining the vote of the States. Its main power on the subject commences when that vote has been determined. The amendment is objectionable in another point of view. It leaves the tellers to settle the disputed question (without the control of the delegation or the House) whether the vote or ballot of a State shall result from a bare plurality, or depend on a majority of the bal lots of each delegation. This is a question, sir, of too much importance to leave for adjustment in such a way. It should be settled by the House voting per capita, and before any result is known, calculated to influence the decision it should be settled now. For himself, Mr. Wright said, having carefully examined the provisions of the resolution relating to the election of President, with a view to under stand its literal meaning, as well as to discover its spirit, he entertained no doubt but that a majority of the delegation of any one State was necessary to determine a vote, and that nothing short of it would do. He felt confi dent the House would so determine. Mr. Hamilton spoke in reply, and made some observations to show that his proposal was in conformity with the Constitution. He hoped at least so much of it as provides twenty- four separate ballot-boxes would be adopted. He insisted that it ought to be known publicly and officially how each State had voted, and regretted the want of this knowledge touching the election of 1801. Mr. McDufSe advocated the amendment of the gentleman from South Carolina. The question now was, whether the Constitution was to be so interpreted as to throw an im penetrable veil over the proceedings of this House, in so important an act as the choice of a Chief Magistrate. He felt bound to protect the honor of his State, and his own honor ; but the rule, as it at present stood, rendered it im possible for him to show that he had been faithful to his constituents. Mr. McDuffie quoted the Constitution, and insisted that the amendment was not inconsistent with it that the Constitution did not require that the vote of the States should be concealed; nor did it JOHN QUINCY ADAMS, PRESIDENT 85 ever mean to screen the votes of the delegates themselves from public scrutiny. In declaring that the votes should be by States, it meant 110 more than that all the States should have their equal voice. It directed not that they should vote by States, but that they should be counted by States. If it happened that some of the States had only one delegate, that did not alter the requirements of the Constitution, nor the propriety of the plan proposed by his colleague. The Constitution would still be obeyed. He had no suspicion that the gentle man from Delaware, or any other of those gentlemen who stood alone in representing States, had any wish to conceal the vote that they should give, and he expressed the hope that they would support the amendment. Mr. Cook, of Illinois, disclaiming all wish to have his vote concealed, was yet opposed to the adoption of the amendment now proposed, which he considered as striking a deadly blow at the Constitution. A fundamental principle of that instrument was, that the legislative and executive departments should be kept entirely separate. While, on the other hand, the President was protected from having an improper influence exerted over him by mem bers of this body ; it was proper, on the other hand, that the members of this House should be protected from his resentment, arising from a knowledge that any particular portion of them were opposed to his election. It was not proper that the President should know officially whence his power was derived. He should receive it from the whole people, and exercise it alike for the good of every por tion of them. When the Constitution was re vised in 1801, this great fundamental principle was preserved untouched. The rule proposed by the gentleman from South Carolina was calculated to render the Chief Magistrate the President of a party, not the President of the nation. The practical tendency was to array some of the States against the President, and the President against them, to cherish the seeds of faction and to give to party spirit still greater bitterness. It was the duty of the House to be umpires, not agitators to pacify the nation, not to irritate it. Mr. Wright again spoke in opposition to the amendment. He had supposed, he said, that no one could have doubted that the Constitu tion required only one vote for each State, in stead of one for each member of the House in the present case twenty-four ballots instead of t\vo hundred and thirteen ; and he had sup posed it equally clear that the framers of the Constitution never contemplated that the pro ceeding should stop the moment you had ascer tained whether the State intended to vote, be fore the ballot or vote was prepared and de posited ; but in this he found himself mistaken. He should despair of removing those doubts, and would forbear further argument as to it. It is urged that the plan proposed by the rule makes the proceedings among the States se cret, and that you have no way to find out how each man voted. Why should that be known? What good would result from it? does the Constitution authorize you to require publicity in this proceeding ? I think not. In dividually, I have no desire to keep my vote secret I am willing to proclaim it to the world. The gentleman from Illinois [Mr. Cookj has presented to you, much better than I can do, some of the principles which govern elec tions by ballot, and urged some forcible reasons why the votes should be secret. I agree with the gentleman in the views he has submitted. The requisition upon a vote by ballot, to in dorse his name on the ballot, or to rise when about to vote, and proclaim for whom he voted, would entirely defeat the object of vot ing by ballot, and break down all the guards the Constitution has established to protect the elector in the free enjoyment bf his right. Mr. Stewart, of Pennsylvania, regretted that time was not allowed more maturely to exam ine so important a proposition as that now be fore the House, before it was voted on. From the short consideration he had been able to give it, he could not perceive that it was incon sistent with the Constitution, and he should vote for it because he perceived that its object was to remove everything like secrecy from the transaction which was approaching. It was well known that the proceedings of this House on that occasion would be regarded by the people with suspicion. Was it a likely way of removing this to throw a mantle of secrecy over its proceedings? Was not this the way to set the tongue of slander in motion ? When an allegation was made affecting the purity of any individual, would they be re moved by his skulking and shrinking from ob servation? Would not this rivet the suspi cion? If a man was charged with theft, was it a way to remove the charge if he shut his door and refused all admittance and obser vation ? But if he threw open the suspected place, invited observation and displayed a candid, open deportment, the report would be disbelieved. So long as shadows, clouds, and darkness were suffered to rest on any of the doings of this House, the suspicions of the people would only be fixed and confirmed. With a view, however, to the further exami nation of the amendment, he moved that the House adjourn. This motion was negatived by a large ma jority. Mr. Stewart then demanded that, when the question was taken on the amendment, it should be taken by yeas and nays. The House refused to order them. The question was then put on Mr. Hamil ton s amendment, and decided in the negative yeas 52, nays 115. And the rule, as above stated, was agreed to. The remaining rules were then successively read and adopted, as follows : " G. All questions arising after the balloting 86 TENTH PRESIDENTIAL TERM. commences, requiring the decision of the House, which shall be decided by the House voting per capita, to be incidental to the power of choosing a President, shall be decided by States, without debate ; and in case of an equal divis ion of the votes of States, the question shall be lost. "7. "When either of the persons from whom the choice is to be made shall have received a majority of all the States, the Speaker shall declare the same, and that that person is elected President of the United States. " 8. The result shall be immediately com municated to the Senate by message; and a committee of three persons shall be appointed to inform the President of the United States, and the President-elect, of said election." And then the House adjourned. IN SENATE. Tuesday, February 8, 1825. ( u Congressional Debates," Vol. I., pp. 515, 516.) The committee on the part of the Senate, appointed to join such committee as might be appointed on the part of the House of .Repre sentatives, to ascertain and report a mode of examining the votes for President and Vice- president of the United States, and of notify ing the persons elected of their election, re port, in part, the agreement of the joint com mittee to the following resolution : Resolved, That the two Houses shall assemble in the Chamber of the House of Representatives on "Wednesday, the 9th day of February, 1825, at 12 o clock; that one person be appointed teller on the part of the Senate, and two per sons be appointed tellers on the part of the House, to make a list of the votes as they shall< be declared ; that the result shall be delivered to] the President of the Senate, who shall an nounce to the two Houses assembled as afore said the state of the vote, and the person or persons elected, if it shall appear that a choice hath been made agreeably to the Constitution of the United States, which annunciation shall be deemed a sufficient declaration of the per son or persons elected, and, together with a list of the votes, shall be entered on the Jour nals of the two Houses. [The committee which made this report consisted, on the part of the Senate, of Mr. Tazewell, Mr. Van Dyke, and Mr. King, of Alabama ; on the part of the House of Repre sentatives, Mr. Taylor, Mr. Archer, and Mr. Thompson, of Pennsylvania.] Mr. Talbot suggested some difficulty in the order of proceeding recommended by the com mittee; and Mr. Holmes, of Maine, proposed some amendment, but which he subsequently withdrew. These suggestions gave rise to some discussion on the subject, in which Messrs. Holmes, of Maine, Talbot, Tazewell, Lowrie, Barbour, Johnson, of Kentucky, King, of Ala bama, and Van Dyke, participated. Mr. Tazewell went, at some length, into an explanation and justification of the course adopted by the committee. In some points, in which the committee on the part of the Senate would have preferred a different arrangement, they were overruled by the committee on the part of the other House, which had its rights as well as the Senate. The mode reported by the committee was precisely, however, the same as that adopted by the Senate, and agreed on by the two Houses, on similar occasions, from the year 1805 to 1817, inclusive. Mr. Eaton then moved to add the following as an amendment: "If any objection shall arise to the vote or votes of any State, it shall be filed in writing and entered on the Journals of the Senate and House of Representatives ; but the two Houses shall not separate until the entire votes are counted and reported, which report shall bo liable to be controlled and altered by the de cision to be made by the two Houses, after their separation, relative to any objections that may be made, and entered on the Journals, pro vided no objection taken shall be considered valid unless concurred in by the two Houses." This amendment was opposed by Mr. Hayne and Mr. Van Buren, on the ground that is was now too late to attempt to provide in anticipa tion for such an occurrence ; that the Senate had, at the last session, passed a bill providing for every possible contingency for which the Constitution prescribed no rule, which bill the House of Representatives had not acted on; that, therefore, if any difficulty should arise on the present occasion, the Senate could not be reproached for it ; that as it was now too late to expect the two Houses to concur in any reg ulations of the kind, in time for the govern ment of the proceedings to take place to-mor row, it was better to leave the remedy to be provided for in any case of difficulty that might unexpectedly arise," etc., etc. Mr. Eaton replied, and urged the necessity of making an effort to provide for possible dif ficulty beforehand, etc. The question was taken on his amendment, and negatived without a division, and the re port of the committee was concurred in. Mr. Tazewell was appointed teller on the part of the Senate. Ix HOUSE OF REPKESEXTATIVES. Tuesday, February 8, 1825. ( " Congressional Debates," Vol. I., p. 516.) Mr. Taylor, from the joint committee ap pointed to consider the mode of counting the votes for President and Vice-President of the United States, made a report in part, which was read. [The report is the same as that stated above in the Senate proceedings.] The House agreed to the resolutions report ed, and Mr. P. P. Barbour and Mr. Taylor were appointed tellers according thereto. JOHN QUINCY ADAMS, PRESIDENT. 87 Ix SENATE. Wednesday, February 9, 1823. (". Congressional Debates," Vol. I., p. 521.) At twelve o clock the Senate proceeded to the Hall of the House of Representatives, agree ably to joint resolution, for the purpose of open ing and counting the electoral votes for Presi dent and Vice-President of the United States. At half-past two o clock the Senate returned to its Chamber, and then adjourned. IN HOUSE OF REPRESENTATIVES. Wednesday, February 9, 1825. ("Congressional Debates,"" Vol. I,, p. 522.) On motion of Mr. Taylor, it was Ordered, That, when the members of the Senate appear this day, in the Chamber of the House of Representatives, the President of the Senate shall be introduced by the Speaker to a seat in the Speaker s chair, and the Senators shall be invited to occupy the seats assigned them in front of the Chair. IN HOUSE OF REPRESENTATIVES. Wednesday, February 9, 1825. (" Congressional Debates," Vol. I., pp. 525, 526.) On motion of Mr. Taylor, it was Ordered, That a message be sent to the Sen ate, that this House is now ready to receive them in pursuance of the resolution of the two Houses, of yesterday, to the end that the President of the Senate, in the presence of the Senate and the House of Representatives, may open the certificates of the votes of the electors of the several States in the choice of a Presi dent and Vice-President of the United States, and that the same may be counted; and that the Clerk do go with said message. At twelve o clock precisely, the members of the Senate entered the Hall, preceded by their Sergeant-at-Arms, and having the President of the Senate at their head, who was invited to a seat on the right hand of the Speaker of the House. Seats were then assigned the Senators, who took their seats together, in front of the Speak er s chair, and toward the right hand of the entrance. The President of the Senate (Mr. Garland) then rose, and stated that the cer- titicates, forwarded by the electors from each State, would be delivered to the tellers. Mr. Tazewell, of the Senate, and Messrs. John W. Taylor and Philip P. Barbour, on ths part of the House, took their places as tellers, at the Clerk s table. The President of the Senate then opened two packets, one received by messenger, and the other by mail, contain ing the certificates of the votes of the State of New Hampshire. One of these was then read by Mr. Tazewell, while the other was com pared with it by Messrs. Taylor and Barbour. The whole having been read, and the votes of N"ew Hampshire declared, they were set down by the Clerks of the Senate and of the House of Representatives, seated at different tables. Thus tho certificates from all the States were gone through with. The tellers then left the Clerk s table, and presenting themselves in front of the Speaker, Mr. Tazewell delivered their report of the votes given, which was then handed to the President of the Senate, who again read it to the two Houses, as folio ws : STATES. PRESI DENT. John C. Calhoun. VICE- SE9IDEXT. John Quincy Adams. William II. Crawford. Andrew Jackson. Henry Clay. Nathaniel Macon. Andrew Jackson. Nathan Sanford. Henry Clay. Martin Van Buiv;i. Maine . . ft .. q 8 7 1 Massachusetts . . Ifi 15 4 s Connecticut 8 * 7 7 New York 20 5 1 8 4 2 .) R 7 28 l OR Delaware . . 1 >\ 1 a Maryland Virginia 8 17 24 ! - 111 . i 1 North Carolina South Carolina <i ffl:: ]-) 11 .. y Kentucky ii 14 7 11 7 Ohio n; it; i 8 ; 3 Indiana 5 5 .. Illinois 1 9, B 5 5 ! >, a Totals 84 41 99 :!T 182 11-J11 241380 2 ! The President of the Senate then rose, and declared that no person had received a major ity of the votes given for President of the United States ; that Andrew Jackson, John Quincy Adams, and William H. Crawford, were the three persons who had received the highest number of votes, and that the remain ing duties in the choice of a President now de volved on the House of Representatives. He further declared, that John C. Calhoun, of South Carolina, having received one hundred and eighty-two votes, was duly elected Vice- President of the United States, to serve for four years from the 4th day of March next. The members of the Senate then retired. The Speaker directed the roll of the House to be called by States, and the members of the respective delegations to take their seats in tho order in which the States should be called, be ginning at the right hand of the Speaker. The roll was called accordingly, when it ap peared that every member of the House was present, with tho exception of Mr. Garnett, of 83 TENIII PRESIDENTIAL TERM. Virginia, who was known to be indisposed at his lodgings in this city. The delegations took their places accord ingly, ballot-boxes were distributed to each delegation by the Sergeant-at-Arms, and the Speaker directed that the balloting should pro ceed. The ballots having all been deposited in the boxes, the following tellers were named by the respective delegations, being one from each State in the Union : Messrs. Cushman, Livermore, "Webster, Eddy, Tomlinson, Buck, Taylor, Condict, Ingham, McLane, Kent, Eandolph, Hooks, Campbell, Forsyth, Trimble, Allen of Tennessee, Sloane, Livingston, Rankin, Jennings, Cook, Owen, Scott. Mr. Webster, of Massachusetts, was appoint ed by those tellers who sat at one table ; and Mr. Randolph, of Virginia, by those at the other, to announce the result of the balloting. After the ballots were counted out, Mr. Web ster rose and said : Mr. Speaker, the tellers of the votes at this table have proceeded to count the ballots con tained in the box set before them. The result they find to be, that there are For John Quincy Adams, of Massachusetts . 13 votes. For Andrew Jackson, of Tennessee 7 u For William II. Crawford, of Georgia 4 " Mr. Eandolph, from the other table, made a statement corresponding with that of Mr. Web ster, in the facts, but varying in the phraseol ogy, so as to say that Mr. Adams, Mr. Jackson, and Mr. Crawford, had received the votes of so many States instead of so many votes. The Speaker then stated this result to the House, and announced that John Quincy Adams, having a majority of the votes of these United States, was duly elected President of the same, for four years, commencing with the 4th day of March next. On motion of Mr. Taylor, of New York, a committee was ordered to be appointed, to notify the President of the United States, and the President-elect, of the result of the ballot. And then the House adjourned. [When the fact of Mr. Adams having thir teen votes was announced by the tellers, some clapping and exultation took place in the gal leries, and some slight hissing followed. The House suspended its proceedings until the gal leries were cleared.] ELEVENTH PKESIDENTIAL TERM. 1829--1833. ANDREW JACKSOX, President; JOHN C. CALHOUX, Vice -President. IN SENATE. Monday, February 9, 1829. t (" Congressional Debates," Vol. V., p. 52.) Mr. Tazewell, from the joint committee ap pointed for the purpose, reported, in part, the following resolution : Resolved, That the two Houses shall assem ble in the Chamber of the House of Represent atives on Wednesday, the llth day of Feb ruary, 1829, at twelve o clock ; that one per son be appointed teller on the part of the Sen ate, and two persons be appointed tellers on the part of the House, to make a list of votes for President and Vice-President of the United States, as they shall be declared ; that the re sult shall be delivered to the President of the Senate, who shall announce to the two Houses, assembled as aforesaid, the state of the vote, and the person or persons elected, if it shall appear that a choice hath been made agreeably to the Constitution of the United States ; which communication shall be deemed a sufficient declaration of the person or persons elected, .and, together with a list of the votes, shall be entered upon the Journals of the two Houses. The resolution was considered and agreed to, and Mr. Tazewell was elected teller on the part of the Senate. IN SENATE. Wednesday, February 11, 1829. ( u Congressional Debates," Vol. V., p. 54.) At twelve o clock the members of the Sen ate repaired to the Chamber of the House of Representatives, where the votes were count ed, and the Vice-President made proclamation of the result. (See the proceedings of the House of Representatives of this day.) After returning to the Senate Chamber, Mr. Tazewell said the joint committee ap pointed for that purpose had ascertained and reported the result of the election for Presi dent, and had directed him to move that a committee of one be appointed to join a com mittee on the part of the House to inform An drew Jackson that he has this day been elect ed President of the United States. Mr. Tazewell was then chosen the committee on the part of the Senate. ANDREW JACKSOX, PRESIDENT. 89 IN HOUSE OF REPRESENTATIVES. Wednesday, February 4, 1829. ( Congressional Debates," Vol. V., p. 309.) The resolution from the Senate proposing the appointment of a joint committee "to as certain and report a mode of examining the vote of the President and Vice-President of the United States, and of notifying the persons elected of their election," was then called up, read, and adopted by the House. IN HOUSE OF REPRESENTATIVES. Saturday, February 7, 1829. ( t4 Congressional Debates," Vol. V., pp. 321, 322.) Mr. P. P. Barbour, from the joint committee appointed to ascertain and report a mode of examining the votes for President and Vice- President of the United States, reported in part the following resolution : Resolved, That the two Houses shall assem ble in the Chamber of the House of Represent atives on Wednesday, the llth day of Febru ary, 1829, at twelve o clock ; that one person be appointed teller on the part of the Senate, and two persons be appointed tellers on the part of the House, to make a list of the votes for President and Vice-President of the United States, as they shall be declared ; that the re sult shall be delivered to the President of the Senate, who shall announce to the two Houses, assembled as aforesaid, the state of the vote, and the persons elected, if it shall appear that a choice hath been made agreeably to the Con stitution of the United States; which annun ciation shall be deemed a* sufficient declaration of the person or persons elected, and, together with a list of the votes, shall be entered upon the Journals of the two Houses. This resolution was read, and concurred in by the House. IN. HOUSE OF REPRESENTATIVES. Wednesday, February 11, 1829. ("Congressional Debates," Vol. V., p. 350.) It being now twelve o clock, the Speaker announced the special order of the day, which was the opening and counting the votes for President and Vice-President of the United States; whereupon, Mr. P. P. Barbour moved that "the Clerk announce to the Senate that the House was ready, on its part, to proceed to that duty. The motion being agreed to, The Clerk left the House, and seats having been prepared for the Senate in the vacant space in front of the Clerk s table, they soon after entered the Hall, with the Vice-Presi dent at their head, preceded by the Secretary and Sergeant-at-Arins of the Senate. When the Senators had taken the seats as signed them, and the Yice-President had seat ed himself at the right hand of the Speaker, the tellers, viz., on the part of the Senate, Mr. Tazewell, and, on the part of the House, Messrs. P. P. Barbour and Van Rensselaer, took their places at the Clerk s table. The Vice-President then, having before him the packets received, one copy by express, and one through the post-office, from the several States, took up those from the State of Maine, and, announcing to the Senators and Repre sentatives that those packets had been certitied, by the delegation from Maine, to contain the votes of that State for President and Vice- President, proceeded to break the seals and then handed over the packets to the tellers, who opened and read them at length. The same process was repeated, until all the pack ets had been opened and read, when Mr. Taze well, retiring to some distance from the chair, read the following report : rl li *s >> O,Q |l It 9 8 15 4 8 7 86 8 28 3 11 24 15 11 9 14 11 16 5 5 3 3 5 3 ?,01 STATES. PKKSl- DENT. VICE-PRESI- I DENT. I Andrew Jackfcou, of Tennessee. I John Quincy Adams, of Massachusetts. I John C. Calhoun, of 1-1 1 Bouth Carolina. .Richard Hush, of Pennsylvania. ; 1 William (Smith, of ; | South Carolina. Maine 8 8 15 15 Rhode Island 4 4 8 Connecticut 8 7 1(3 8 2<j oij* 7 16 8 New York 20 ?s 3 6 5 24 15 8 6 .... Maryland 5 24 ir> Virginia North Carolina South Carolina 11 9 11 <> .... y 14 11 Tennessee 11 11 Ohio 16 16 5 D 5 3 fi Illinois 8 3 ^ *, Missouri 8 3 171 Total . . . ITS 83 83 7 RECAPITULATION-. For President. Andrew Jackson, of Tennessee 178 John Quiucy Adams, of Massachusetts 83 Total, 2G1 For Vice-President. John C. Calhoun, of South Carolina 171 Eichard Rush, of Pennsylvania 83 William Smith, of South Carolina 7 Total. 261 The result of the election was then again read by the Vice-President, who thereupon said: 90 ELEVENTH PRESIDENTIAL TERM. "I therefore declare that Andrew Jackson is duly elected President of the United States for four years, from the fourth of March next, and John 0. Calhoun is duly elected Vice- President for the same period." The Senate then retired. IN HOUSE OF REPRESENTATIVES. Thursday, February 12, 1829. L (" Congressional Debates," Vol. V., pp. 350, 351.) Mr. P. P. Barbour, from the joint com mittee appointed to ascertain and report a mode of examining and counting the votes for President and Yice-President of the United States, and of notifying the persons elected of their election, reported the following resolu tion: Resolved^ That a committee of one member of the Senate be appointed by that body to join a committee of two members of the House of Representatives, to be appointed by that House, to wait on Andrew Jackson, of Ten nessee, and to notify him that he has been duly elected President of the United States, for four years, commencing with the 4th of March next. A message was then received from the Sen ate, notifying the agreement of the Senate to the resolution recommended by the joint com mittee. The resolution was then taken up by the House, and adopted, and Mr. Hamilton and Mr. Bell were appointed the committee on the part of the House. TWELFTH PKESIDENTIAL TEEM. 1833-1837. ANDREW JACKSON, President / MARTIN VAN BUREN, Vice -President. IN SENATE. Wednesday, February 6, 1833. (Congressional Debates," Vol. IX., p. 359.) Mr. Grundy, from the joint committee ap pointed to ascertain and report the mode of examining the votes for President and Vice- President of the United States, reported a resolution, fixing on Wednesday next as the day for counting the votes, when the Senate will attend the House for the purpose of wit nessing the examination of the votes. The hour appointed for the proceedings is one o clock. The resolution was agreed to. Ix SENATE. Wednesday, February 13, 1833. (Congressional Debates," Vol. IX., pp. 486, 487.) A message was received from the House of Representatives, by Matthew H. Glair Clarke, their Clerk, stating that the House were ready to proceed to the counting of the votes given for President and Vice-President, and were waiting to receive the Senate. Mr. Grundy then moved that the Senate pro ceed to the House of Representatives for the purpose of performing the duties referred to in the message ; which* motion having been agreed to, The Senate, preceded by the President pro tempore, attended the Hall of the House of Representatives; and, after having performed the duties which called them there, returned at twenty minutes past two o clock to their seats in the Senate, when Mr. Grundy offered the following resolution, which was considered and adopted : Resolved, That a committee of one member of the Senate be appointed to join a committee of two members of the House of Represent atives, to be appointed by that House, to wait on Andrew Jackson, of Tennessee, and to notify him that he has been duly elected Presi dent of the United States for four years, com mencing on the 4th day of March next, and also to notify Martin. Van Buren, of New York, that he has been duly elected Yice-President of the United States for four years, com mencing on the 4th day of March next. IN HOUSE OF REPEESENTATIVES. Wednesday, February 13, 1833. (" Congressional Debates," Vol. IX., Part II., pp. 1722-1723.) The hour of one having arrived, the Senate attended in the Hall of the House of Represent atives. The President of the Senate taking the chair of the House, and in the presence of the two Houses, proceeded. to open the votes of the electors in the several States for President and Vice-President of the United States. Messrs. Grundy, of the Senate, and Dayton and Hubbard, of the House of Repre sentatives, acted as a committee to read and enumerate the votes; and the whole having been gone through, the result was ascertained to be as follows : ANDREW JACKSOX, PRESIDENT 91 Statement of the Votes for President and Vice- President of the Unite! Slates, for Four Years, from the 4th of March, 1833. 1 s 1 ^s 1 & 10 7 14 4 8 7 42 8 30 3 10 23 15 11 11 15 15 21 5 4 9 5 7 4 STATES. * PRESIDENT. VICE -PRESIDENT. Andrew Jackson, of Tennessee. Henry Clay, of Kentucky. John Floyd, of Virginia. William Wirt, of Maryland. Martin Van Buren, of New York. John Sergeant of Pennsylvania. William Wilkins, of Pennsylvania. Amos Ellmaker, of Pennsylvania. Henry Loe, of Massachusetts. Maine 11) 7 14 4 10 7 ii 4 .. .. . Massachusetts Rhode Island Connecticut .... 8 ii i ii 8 "3 23 15 8 3 5 30 i New York 42 8 30 "3 23 15 ii is 21 3 5 is Pennsylvania Delaware . . Maryland ; Virginia .. ,. . . North Carolina South Carolina . ... 1 " 11 is 21 5 4 9 5 7 4 is Kentucky Tennessee Ohio Louisiana 5 4 Mississippi Indiana 9 5 Illinois Alabama. . . 7 4 Missouri 233 145 Whole number of electors 219 49 11 7 189 49 30 7 11 1 Majority. VOTE FOB PKESIDEN^ OF THS UNITED STATES. For Andrew Jackson, of Tennessee 219 For Henry Clay, of Kentucky 49 For John Floyd, of Virginia * 11 For William Wirt, of Maryland 7 TOTE FOB VICB-PBESIDENT OF THE UNITED STATES. For Martin Van Buren, of New York 189 For John Sergeant, of Pennsylvania 49 For William Wilkins, of Pennsylvania 30 For Amos Ellmaker, of Pennsylvania 7 For Henry Lee, of Massachusetts 11 Whereupon the President of the Senate pro claimed that Andrew Jackson, of Tennessee, having a majority of the whole number of votes, was elected President of the United States for four years, from the fourth day of March next ; and that Martin Van Buren, of New York, having a majority of votes there for, was elected Vice-President of the United States for the same term. The Senate then withdrew, and the House adjourned. THIRTEENTH PRESIDENTIAL TERM. THIRTEENTH PRESIDENTIAL TERM. 1837-1841. MAKTIX VAN BUKEN, President; RICHARD M. JOHXSON, Vice -President. IN SENATE. Friday, January 27, 1837. (" Congressional Debates," Vol. X1IL, p. 617.) Mr. Grundy moved to lay the bills (respect ing the Treasury Circular) on the table for the purpose of taking up and acting on the resolution submitted by him for the appoint ment of a joint committee to count the vote for President and Vice-President. This motion having been agreed to, and Mr. Grumly s resolution being before the Senate, Mr. Clay, after a few remarks, offered the fol lowing amendment : "And also to inquire into the expediency of ascertaining whether any votes were given nt the recent election contrary to the prohibi tion contained in the second section of the second article of the Constitution, and what ought to be done with them, and whether any and what provision ought to be made for se curing the faithful observance in future of that section of the Constitution." Mr. Grundy said he had no objections to the inquiry proposed by the amendment ; and he thought that some such provision as that pro posed by the Senator from Kentucky would be very proper. He had seen in the public papers a statement charging that some of the electors who voted in the late presidential elec tion held offices under the General Govern ment, and had made inquiries for the purpose of ascertaining the truth of the matter. The information he had been able to collect re lated to two cases only ; and as to these, the report had been founded altogether on a mis apprehension. Mr. Hubbard expressed his entire concur rence in the objects of the amendment pro posed by the Senator from Kentucky. He wished a strict inquiry to be instituted, and measures to be adopted to guard against the occurrence of such a violation of the Constitu tion as the Senator from Kentucky referred to. As it had been stated that two of the elec tors in his State (New Hampshire) held offices under the General Government, and were con sequently ineligible, he was happy to state to the Senate that there was no foundation what ever for the report. The amendment of Mr. Clay was then adopted, and the resolution, thus amended, was agreed to. Mr. Hubbard moved that the committee be appointed by the Chair ; which, by unanimous consent, was agreed to ; and Messrs. Grundy, Clay, and Wright, were selected. The Senate then adjourned. IN SENATE. Saturday, February, 4, 1837. ( u Congressional Debates," Vol. XIII., pp. 698-701.) Mr. Grundy, from the select Committee ap pointed to consider and report on the mode of examining and counting the votes for Presi dent and Vice-President, etc., and whether any votes have been given by persons not compe tent under the Constitution, made a special re port thereon ; which was read. The report states that in some instances not more than four or five electors have been chosen in some of the States, who are officers of the General Government (deputy post masters), and that such votes are, in the opin ion of the committee, not in conformity with the provisions of the Constitution ; but, at the same time, the few votes thus given will not vary the result of the election, as it was not contemplated by any one that the appointment of one ineligible elector would vitiate the vote of his State. The report concludes with rec ommending the adoption of the following resolutions : Resolved, That the two Houses shall assem ble in the Chamber of the House of Repre sentatives, on Wednesday next, at twelve o clock, and the President of the Senate shall be the presiding officer; that one person be appointe^ a teller on tj^3 part of the Senate, and two on the part of the House of Repre sentatives, to make a list of the votes as they shall b declared; that the result shall be de livered to the President of the Senate, who shall announce the state of the vote and the persons elected to the two Houses assembled, as aforesaid, which shall be deemed a declara tion of the persons elected President and Vice- President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Resolved^ That in relation to the votes of Michigan, if the counting or omitting to count them shall not essentially change the result of the election, they shall be reported by the President of the Senate in the following man ner: "Were the votes of Michigan to be counted, the result would be, for A. B. for President of the United States, votes. If not counted for A. B. for President of the United States, votes. But in either event A. B. is elected President of the United States." And in the same manner for Vice-President. Mr. Norvell arose and said that the reso lutions were joint resolutions. The first pre scribed the usual manner in which the two Houses assembled together on the second MARTIN VAX BUREN, PRESIDENT. Wednesday in February, for the purpose of counting the votes for President and Vice-Pres ident of the United States. To this, of course, he had no objections. The second resolution, in relation to the votes of Michigan, declared, in substance, that if they were not essential to the election of a President, they should be announced, but need not be received as good. Their reception, then, as sound votes, depended upon a contingency which it was kno\vn would not happen. He called for a division of the motion of the Senator from Tennessee, in order that he and his colleague might have an opportunity of recording their votes against the second resolution. Michigan, when the people of that State gave their votes for presi dential electors, was a sovereign State, ac knowledged to be such by an act of the Con gress of the United States. She was now, before her electoral votes were to be counted, a sovereign State of this Union, acknowledged to be such by another act of the Congress of the United States. He had, therefore, risen to enter his most solemn protest, in behalf of the people of Michigan, against any decision of this body, or of Congress, which would, even by implication, have the effect of pre venting their electoral votes from being counted for President and Vice-President of the United States ; and upon the motion to adopt the second resolution, he requested that the yeas and nays might be taken. Mr. Grundy observed that the committee were unanimous for reporting the second res olution objected to by the gentleman from Michigan. The same course had been pursued with regard to the State of Missouri, and under like circumstances ; and when Senators recol lected that this was the very place where the rock lies which may destroy this Government, they would perceive that the committee had good reasons for recommending the resolution objected to. Suppose (said Mr. Grundy) the two Houses should differ and separata, and suppose the House should refuse to send for the Senate again ; where will be your President or Vice- President ? Though he had been one of the most anxious for the admission of Michigan, yet he thought it better, under the circum stances, that her vote should not be counted, except in the way provided by the second res olution. To count the vote could do no good, inasmuch as it would not vary the result ; and it might do harm. No man was more anxious than he was for the admission of Michigan ; yet lie must express the opinion that she was not a State of this Union when she gave her vote. Mr. Norvell said that, if this Union should ever receive a shock, as intimated by the Sena tor from Tennessee, it would arise from the practice of injustice by this Government toward one or more of the States of the con federacy, and not from the right decision of such questions as the one now pending. Tho reception of the votes of a State entitled to vote for the Chief Magistrate of the nation, by whom she as well as the other States was to be governed, could never endanger tho Union. The result of the late election, he knew, could not be varied by the votes of Michigan; and less hazard would, therefore, be encountered at this time in properly decid ing the question upon receiving the votes of States in similar circumstances with Michigan, than at any other time. The case of Missouri, quoted by the Senator from Tennessee in sup port of the second resolution, was not, upon this point, a case analogous to that of Michigan. Missouri was a State when her electors were chosen, but she was not a State of the Union when the two Houses of Congress assembled to count the electoral votes for President and Vice-President. She was not admitted until some months afterward ; but the State of In diana did present a precisely analogous case to that of Michigan. Indiana when her electors were chosen, had formed her constitution and State government; but she was not admitted into the Union until some time in the succeed ing December. She became, however, a member of the Union before the electoral votes were count ed. When the two Houses assembled, and, in counting the votes, came to those of Indiana, objection was made to their reception. The two Houses separated. Some discus sion arose in both on the subject; but, before the point was directly decided by either, a message was sent by the House of Eepresenta- tives to the Senate, that they were ready to proceed in the count. When they came to gether again, the votes of Indiana were count ed, and recorded among the electoral votes of the other States. Such is exactly the situation of Michigan. But he had not risen to provoke debate. His object was simply to protest against the principle of the second resolution reported by the Senator from Tennessee, and to ask for himself and his colleague the poor privilege of recording their names against it. He did not know that they would be sustained by the vote of any other Sanator present. Mr. Clay said that the committee had fol lowed exactly the course adopted in the case of Missouri, and the Senators from Michigan would see that there was to be no exclusion of their votes, though no use might be made of them. Whether they were counted or not, the result would be the same. Now, when gentlemen reflected for a moment upon the operations of this Government, the difficulties to be settled, the important questions pending, and especially the one as to the election of a Chief If agistrate, they would sea at once the necessity of avoiding doing anything, which would have the effect of creating excitement, or throwing any difficulty in the way at this particular juncture, when they were about to 94 THIRTEENTH PRESIDENTIAL TERM. decide on so very important a question as would have to be disposed of on Wednesday next. With regard, then, to what the Senator from Michigan [Mr. Norvell] had said as to Michigan being similarly situated to Missouri and In diana, when they were admitted into the Union, and yet they were permitted to vote, he could not agree with him. The case of Michigan was not exactly that of Missouri, nor that of Indiana, The act of Congress passed admitted her on certain conditions, and, having accepted these conditions, she became a State, and performed all her functions as a State, and had given her votes for the President and Vice-President ; and, but for the formality of this resolution, which was deemed necessary by the committee, she was put upon precisely the same footing as the States which had been mentioned. While, then, he admitted there was some slight difference between the case of Michigan and that of Missouri and of Indiana, he could not admit that Michigan should vote, ex cept in the manner pointed out in the resolu tion; for, he thought, under all the circum stances connected with this matter, it would be better to take the course recommended by the committee. Mr. Oalhoun remarked that, notwithstand ing what was said by gentlemen to the con trary, during the debate on the admission of Michigan, they would now see that she was a State de facto at the time she formed her con stitution. Now, if they applied the reason of that case to this, what was the result ? Mich igan was not a State in this Union when her Senators were elected, nor when she voted for President and Vice-President. The case was really a clear one, and any reason which would exclude all these votes ought to have excluded her Senators from taking their seats on this floor. He did not believe that doubtful ques tions of this kind should be waived, and this question should be settled at once. He should, therefore, feel himself bound to vote against the resolution. Mr. Lyon asked what course the committee would have recommended in case the vote of Michigan had varied the result. Would Michi gan in such case be deprived of her vote ? Mr. Lyon referred to the vote of Indiana, which, under similar circumstances, had been counted, and contended that the State of Mich igan was as much entitled to count her vote as was the -State of Indiana. He thought the Senate would not make so unjust a dis crimination between the two States as the resolution contemplated, and he would unite with his colleague [Mr. Norvell] in protest ing against it. Mr. Grundy replied that the gentleman could not expect him to answer a question which the wisest of their predecessors had purposely left undetermined. What might be done under the circumstances adverted to by the Senator from Michigan, should they ever occur, the wisdom of the day must decide. Mr. Preston concurred in all the views taken by his colleague in regard to this question. He confessed his inability to perceive any dif ference between admitting the Senators to take their seats in that body, and admitting Michi gan to vote as the other States of the Union would vote. Looking at the matter in every point of view, he was willing that she should be allowed to vote. After a few words from Messrs. Webster, Grundy, and Clay The question was taken, and the first resolu tion reported by the committee was adopted, without division; and the second was adopted yeas 34, nays 9 ; as follows : YEAS Messrs. Bayard, Benton, Black, Brown, Buchanan, Clay, Clayton, Crittenden. Cuthbert, Da na, Davis, Ewing of Illinois, Ewing of Ohio, Grundy, Hendricks, Hubbard, Kent, King of Alabama, King of Georgia, Knight, Linn, Moore, Nicholas, Page, Prentiss, Rives, Kobbins, Robinson, Sevier, South ard, Swift, Tipton, Tomlinson, Wright 34. NAYS Messrs. Calhoun, Fulton, Lyon, Morris, Niles, Norvell, Preston, Walker, Wall 9. IN SENATE. Wednesday, February 8, 1837. ("Congressional Debates," Vol. XIII., Part I., pp. 738, 739.) A message was received from the House of Representatives, through Mr Franklin, their Clerk, informing the Senate that the House were ready to proceed to count the votes for President and Yice-President of the United States. The Senate accordingly adjourned to the Hall of the House. The Senate having returned to their Cham ber, and the President resumed the chair On motion of Mr. Grundy, a resolution was adopted for the appointment of a joint com mittee, to wait on Martin Van Buren, and in form him of his election. And Mr. Grundy was appointed by the Chair to act on the part of the Senate. Mr. Grundy, then, from the joint committee on the election, reported a preamble and reso lution, stating that no election of Yice-Presi dent of the United States had been made by the college of electors ; that Richard M. Johnson, of Kentucky, and Francis Granger, of New York, were the highest on the list of persons voted for ; and resolving that the Senate do now proceed to elect one of these gentlemen Vice-President of the United States ; and that Senators give their votes viva voce in their places on the call of the Secretary. The resolution was agreed to, and the Sen ate proceeded to vote accordingly, the result of which was as follows : MARTIN VAN BUREN, PRESIDENT. FOR RICHARD M. JOHNSON. Mr. Benton, of Missouri. ] Mr. Fulton, of Arkansas. Black, of Mississippi. Brown, of N. C. Grundy, of Tenn. Hendricks, of Ind. Buchanan, of Penn. Hubbard, of N. II. Cuthbert, of Georgia. Dana, of Maine. King, of Alabama. King, of Georgia. Ewing, of Illinois. Linn, of Missouri. Lyon, of Michigan. Kives, of Virginia. MoKean, of Penn. Robinson, of Illinois. Moore, of Alabama. Ruggles, of Maine. Morris, of Ohio. Sevier, of Arkansas. Monton, of Louisiana. Strange, of N. C. Nicholas, of La. Tallmadge, of N. Y. Niles, of Connecticut. Tipton, of Indiana. Norvell, of Michigan. Walker, of Miss. Page, of N. H. ^ Wright, of New York. Parker, of Virginia. FOB FRANCIS GRANGER. Mr. Bayard, of Delaware. Mr. Prentiss, of Vt. Clay, of Kentucky. Robbins. of R. I. Clayton, of Delaware. Southard, of N. J. Crittenden, of Ky. Spence, of Md. Davis, of Mass. Swift, of Vermont. Ewing, of Ohio. Tomlinson, of Conn. Kent, of Maryland. Knight, of R. I. Wall, of N. J. Webster, of Mass. The President of the Senate (Mr. King, of Alabama) then rose and proclaimed the result of the election, as follows : The whole number of Senators of the U. S. is 52 Majority necessary to a choice 27 Quorum required by the Constitution 35 Whole number of Senators present 49 For Richard M. Johnson, of Kentucky . . . .- 33 For Francis Granger, of New York 16 From which it appears that Richard M. Johnson, having the votes of a majority of the whole number of Senators, as required by the Constitution of the Uuited States, is duly elected ; and I therefore declare that Richard M. Johnson, of Kentucky, has been chosen by the Senate, in pursuance of the provisions contained in the Constitution, Vice-President of the United States for four years, commenc ing with the fourth day of March, 183T. On motion of Mr. Grundy, a resolution was adopted for the appointment of a joint com mittee to inform Richard M. Johnson of his election ; and the Chair was authorized to ap point the member thereof on the part of the Senate. On motion of Mr. Webster, The Senate then adjourned. Ix HOUSE OF REPEESEXTATTVES. Monday, February 6, 1837. ("Congressional Debates," Vol. XIII., Part II., pp. 1582-1585.) A message was received from the Senate informing the House of its concurrence in the report of the joint committee appointed to consider and report upon the mode of count ing out the votes for President and Vice- President of the United States. Mr. Thomas moved that the House concur with the Senate in the report and resolutions thereto appended, as reported by him to this House on Saturday evening, as follows : "The committee oa the part of the House -- of Representatives appointed, to join such committee as might be appointed on the part of the Senate, to ascertain and report a mode of; examining the votes for President and Vice-President of the United States ; of noti fying the persons elected of their election; and also to inquire into the expediency of as certaining whether any votes were given at the recent election contrary to the prohibition contained in the second section of the second article of the Constitution; and, if any such votes were given, what ought to be done with them; and whether any and what provision ought to be made for securing the faithful ob servance in future of that section of the Con stitution, report : That the short period at which they were appointed before the time on which the votes for President and Vice-Presi dent of the United States have to be counted, has prevented them from investigating the facts submitted to their examination as fully as might have been done had more time been allowed. The correspondence which has taken place between the chairman of the committee and the heads of the different departments of the executive branch of the Government ac companies this report, from which it appears that Isaac Waldron, who was an elector in New Hampshire, was, at the time of his ap pointment as elector, president of a deposit bank at Portsmouth, and was appointed and acting as pension agent, without compensation, under the authority of the United States; that in two cases persons of the same names, with the individuals who were appointed and voted as electors in the State of North Caro lina, held the offices of deputy postmasters under the General Government. It also ap pears that in New Hampshire there is one case; in Connecticut there is one case; in North Carolina there is one case, in which, from the report of the Postmaster-General, it is probable that at the time of the appoint ment of electors in these States, respectively, the electors, or persons of the same names, were deputy postmasters. The committee have not ascertained whether the electors are the same individuals who held, or are pre sumed to have held, the offices of deputy post masters at the time when the appointment of electors was made ; and this is the less to be regretted, as it is confidently believed that no change in the result of the election of either the President or Vice-President would be ef fected by the ascertainment of the fact in either way, as five or six votes only would in any event be abstracted from the whole num ber ; for the committee cannot adopt the opin ion entertained by some, that a single illegal vote would vitiate the whole electoral vote of the college of electors in which it was given, particularly in cases where the vote of the whole college has baen given for the same persons. "The committee are of opinion that the 96 THIRTEENTH PRESIDENTIAL TERM. second section of the second article of the Constitution, which declares that no Senator, or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector, ought to be carried in its whole spirit into rigid execution, in order to prevent officers of the General Government from bringing their official power to influence the elections of President and Vice-President of the United States. This provision of the Constitution, it is believed, excludes and disqualifies deputy postmasters from the appointment of electors; and the disqualification relates to the time of the ap pointments ; and that a resignation of the of fice of deputy postmaster, after his appoint ment as elector, would not entitle him to vote as elector under the Constitution. " Should a case occur in which it became necessary to ascertain and determine upon the qualifications of electors of President and Vice-President of the United States, the im portant question would be presented, "What tribunal would, under the Constitution, be competent to decide ? Whether the respective colleges of electors in the different States should decide upon the qualifications of their own members, or Congress should exercise the power, is a question which the committee are of opinion ought to be settled by a perma nent provision upon the subject. " The committee at present, and in part, re port the following resolutions : " Resolved, That the two Houses shall as semble in the Chamber of the House of Rep resentatives on Wednesday next, at 12 o clock, and the President of the Senate shall be the presiding officer ; that one person be appointed a teller on the part of the Senate, and two on the part of the House of Representatives, to make a list of the votes as they shall be de clared; that the result shall be delivered to the President of the Senate, who shall an nounce the state of the vote and the persons elected to the two Houses assembled as afore said, which shall be deemed a declaration of the persons elected President and Vice-Presi dent of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. "Resolved, That in relation to the votes of Michigan, if the counting or omitting to count them shall not essentially change the result of the election, they shall be reported by the President of the Senate in the following man- ner: Were the votes of Michigan to be counted, the result would be for A. B. for President of the United States, votes ; if not counted for A. B. for President of the United States, votes ; but, in either event, A. B. is elected President of the United States. And in the same manner for Vice-President." Mr. Mercer was understood to make an in quiry of the chairman (Mr. Thomas) in relation to the fact, whether any votes have been given by persons not competent, under the Constitu tion of the United States, to vote as electors of President and Vice-President. Mr. Thomas said a few words in explana tion. The Committee on Investigation had found that there were three individuals in North Carolina, one in New Hampshire, and one in Connecticut, elected to the electoral college, who bore the same name with those of individuals who were deputy postmasters under the General Government ; and the im pression on the minds of the committee was that they were consequently the same individ uals. The committee, he said, came to the con clusion that, whether these votes were counted or not, the general result would not be affected, and they did not feel themselves authorized to recommend their rejection. The chief reason was, that it would be a very delicate power, to be exercised on the part of Congress, to de termine upon the qualifications of electors of President and Vice-President of the United States. It was with the committee, also, a matter of considerable doubt whether, if such an inquiry should be gone into, it did -not be long to the electoral college itself to judge of the qualifications of its own members. The committee, however, had expressed a very de cided disapprobation of any officer of the Gen eral Government participating, in the manner these gentlemen had done, in the election of President and Vice-President of the United States ; and they had proposed a remedy, by either giving the power to reject to the college or to Congress, as might be deemed most ex pedient. Mr. Cambreleng stated, in addition, what had been omitted by the gentleman from Mary land, that it appeared, from examining the list of reappointments of deputy postmasters, that the gentlemen referred to had probably all resigned before they gave in their votes for President and Vice-President. Mr. Thomas had not adverted to that fact, because the committee came unanimously to the conclusion that they were not eligible at the time they were elected, and therefore the whole proceeding was vitiated ab initio. Mr. Crary called for a division of the ques tion. He was disposed to vote for the first clause of the resolution, but not for that part which made a disposition of the electoral votes of the State of Michigan. He thought that Michigan ought to be placed on an equal foot ing with the original States. The resolution made a distinction in the votes unfavorable, and, as he conceived, unjust to his own State. Michigan was now a sovereign State of the Union, and, if the election of President should come before the House, she would be entitled to a vote in her sovereign character. When Indiana was in an analogous position, her electoral votes were received and counted. It was true that the votes of Missouri, in 1821, were placed in the same position that those of Michigan now are ; but on the ground solely MARTIN VAN BUREN, PRESIDENT. 97 that Missouri was not a State of the Union at the time the electoral votes of the States were counted. Michigan was now in the Union, and Congress ought not to place her votes in a po sition so equivocal as they were found in the resolution before us. They were not rejected by it, nor were they received. He thought they ought to be received, and, to enable him to express that opinion, he had moved a division of the question. The resolutions were then severally con curred in without a division. IX HOUSE OF REPKE3EXTATIVE3. Wednesday, February 8, 1837. ("Congressional Debates," Vol. XII., Part II., pp. 1655-1658.) This being the day specially set apart by a joint resolution for the two Houses to convene in joint meeting for the purpose of opening and counting the electoral votes given by the several States for President and Vice-Presi- dent of the United States- Mr. Haynes said, as the hour had nearly elapsed, he begged to propound an inquiry to the Ohair in relation to the order in which the Senate should be received by the House on occasions like the present. The Ohair stated, in reply, that the usual course had heretofore been for the House, some short time before the arrival of the hour, to send a message to the Senate, informing that body that the House was in readiness to receive them and count the votes. The Ohair stated, further, that so far as he had been in formed, the mode of receiving the Senate by the House was for the members to stand un covered. Mr. Patten moved that, while the votes were being counted, ladies be admitted to the privilege of the floor of the Hall. Mr. Jarvis objected. Mr. Oalhoun, of Massachusetts, moved a sus pension of the rule ; agreed to yeas 141, nays not counted; and Mr. Patten s motion was agreed to without a division. Mr. Anthony inquired if it was necessary to move that a committee wait upon the Senate ; and, if so, whether the chairman of the select committee on the subject should appoint a sub-committee, or the Speaker of the House ? The Chair stated, in reply, that upon every occasion of this kind, with a single exception, the invariable course had been to send a mes sage to the Senate by the Clerk. In one instance only the message had been trans mitted by a committee of two members of the House, who were also appointed to conduct the Senate into the Hall ; but that was a de parture from the former practice. Mr. Anthony moved that a message be then sent to the Senate by the Clerk, notifying that body that the House was in readiness to re ceive them, and count the votes for President and Vice-President of the United States. The Chair stated, before putting the ques tion, that the seats on the right of the Speaker s chair had been* provided for the accommodation of the Senate, and others pro vided for the members to which they belonged. Mr. Anthony s motion was then put and agreed to. The Clerk accordingly left the House ; the Senate shortly after entered the Hall, with the President of the Senate, the Hon. William R. King, of Alabama, at their head, preceded by the Secretary and the Sergeant-at-Arms of the Senate, and were received at the door of the Hall and conducted to the seats assigned them by the Sergeant-at-Arms of the House of Representatives, all the members being un covered, and rising in their places. When the Senators had taken the seats as signed them, and the President of the Senate had seated himself at the right of the Speaker, the tellers took their seats at the Clerk s table. The tellers were : For the Senate, Hon. Felix Grundy ; for the House of Representatives, the Hon. Francis Thomas and the Hon. Levi Lincoln. The President of the Senate then rose and said : The two Houses being now convened for the purpose of counting the electoral votes of the several States for President and Vice-Presi- dent of the United States, the President of the Senate will, in pursuance of the provisions of the Constitution, proceed to open the votes and deliver them to the tellers, in order that they may be counted. I now present to the tellers the electoral votes of the State of Maine. The tellers then counted the votes, and an nounced them severally in their order, the same form having been observed in every case ; the tellers also reading the qualifications of the lectors and the certificates of their elections. He then announced the result, as reported }y the tellers, as follows : FOB PRESIDENT OF THE UNITED STATES. ?or Martin Van Buren, of New York : If the votes of Michigan be counted 170 If the votes of Michigan be not counted 167 ?or William Henry Harrison, of Ohio 73 ?or Hugh Lawson White, of Tennessee 36 ?or Daniel Webster, of Massachusetts 14 For Willie P. Mangum, of North Carolina 11 It therefore appears (continued the Presi dent) that were the votes of Michigan to be counted the result would be, for Martin Van Buren for President of the United States, 170 votes ; if the votes of Michigan be not counted, Martin Van Buren then has 167 votes. In either event, Martin Van Buren, of New York, s elected President of the United States ; and ! therefore declare that Martin Van Buren, laving received a majority of the whole num- >er of electoral votes, is duly elected Presi dent of the United States for four years, com mencing the 4th day of March, 1837. The President of the Senate then announced THIRTEENTH PRESIDENTIAL TERM. the votes for Vice-Pre States, as reported by th For Richard M. Johnson, o If the votes of Michigan If the votes of Michigan For Francis Granger, of Ne For John Tyler, of Virginia For William Smith, of Alal t sident e teller fKentiu be coun be not c w York \, . , . of s, &3 UM OU the Unite as follows: r I* n d H 7 7 S l ] 1 i c ( i I s I r 1 r D 8 J O 1 at ed 14 7 . 4 Kill a .< 2 * ll |1 *J |1 |1 STATES. PRESIDENT. TICE- PEESIDENT Martin Van Buren. Daniel Webster. Wm. H. Harrison. Willie P. MJmgiimT Hugh L. White; KichMM. Johnson. Francis Grancrcr. John Tyler. William Smith. 10 7 14 4 8 7 42 8 30 3 10 23 15 11 11 15 15 21 5 4 9 5 7 4 8 3 294 148 Maine 11 L ]( 7 | 4 ;. . . 14 Rhode Island .1 4 8 8 Vermont ... 7 New York 1" .)) New Jersey i . s Pennsylvania BO BO 8 [ Maryland lit i .. Virginia 23 .. . 23 i .. 15 .. ifi South Carolina 11 Georgia 11 i .. Kentucky is i: 5! i - ? Ohio M 21 Louisiana. . . 5 D Mississippi. 4 -- Indiana 9 9 Illinois 5 fi Alabama 7l.. 7 Missouri . . 4.. 4 Arkansas 3 .. 3 !i 8 .. Whole number of electors, were the votes of Michi gan counted. 70 14 IS 11 26 147 77 723 Necessary, were the votes of Michigan counted. 67 291 Whole number of electors, were the votes of Michi gan not counted. 14 11 JC 144 77 7 3 It therefore appears (continued the Presi dent) that, were the votes of Michigan counted, the highest number of votes for Vice-President of the United States would be 147; and if those votes be not counted, the highest num ber of votes for that office will be 144. But, in either event, no person has received a ma jority of the electoral votes for Vice-President of the United States ; and I do therefore de clare that, no person having received such majority, no person has been elected to that office, that Richard M. Johnson, of Kentucky, and Francis Granger, of New York, are the two highest on the list ; and it now devolves on the Senate of the United States, as pro vided in the Constitution, from those two persons to elect a Vice-President of the United States. The PRESIDENT OF THE SENATE then an nounced that the object for which the two Houses were assembled, under the Constitu tion, had been accomplished, and that the Senators would retire to their Chamber in order. The Senators then rose and retired in the order they came, the members of the House rising in their places and remaining uncovered. Mr. THOMAS, from the committee on the part of the House of Representatives, to join such committee as might be appointed on the part of the Senate, to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election, reported : That the joint committee, in further execu tion of the duties with which they were charged by the two Houses of Congress, have agreed to the following resolution, in which their com mittee recommend to the House of Represent atives to concur : Resolved, That a committee of one member of the Senate be appointed by that body, to join a committee of two members of the House of Representatives, to be appointed by that 3ouse, to wait on Martin Van Buren, of New York, and notify him that he has been duly elected President of the United States for four ears, commencing with the 4th day of March, 1837. The above resolution having been concurred On motion of Mr. Glascock, The House adjourned. FOURTEENTH PRESIDENTIAL TERM. 1841-1845. WILLIAM HEXET HAKKISON, President; JOHN TYLEK, Vice -President. IN SENATE. Thursday, January 28, 1841. (" Congressional Globe," 26th Cong., 2d session p. 129.) Mr. Preston submitted the following resolu tion ; which was considered and agreed to : Resolved, That a committee be appointed to join such committee as may be appointed by the House of Representatives, to ascertain and report a mode of examining the votes for President and View-President of the United States, and of notifying the persons elected of their election. WILLIAM HENRY HARRISON, PRESIDENT. 99 IN HOUSE OF REPRESENTATIVES. Saturday, January 30, 1841. ("Congressional Globe," 26th Cong., 2d session, p. 134.) On motion of Mr. Gushing, the House con curred in the following resolution of the Sen ate, adopted on the 28th inst. Resolved, That a committee be appointed to join such committee as may be appointed on the part of the House of Representatives, to ascertain and report a mode of examining the votes for President and Yice-President of the United States, and of notifying the persons elected of their election. IN HOUSE OF REPRESENTATIVES. Tuesday, February 2, 1841. (" Congressional Globe," 26th Cong., 2d session, p. 139.) The committee appointed on Saturday last to ascertain and report a mode of examining and counting the votes for President and Vice- President of the United States, consists, on the part of the House, of Mr. Gushing, Mr. Jones of Virginia, Mr. Granger, Mr. Dawson, and Mr. Atherton ; on the part of the Senate of Mr. Preston, Mr. Hub bard, and Mr. Huntington. IN HOUSE OF REPRESENTATIVES. Wednesday, February 3, 1841. ("Congressional Globe," 26th Cong., 2d session, p. HO.) Mr. Gushing said he was instructed by the joint committee appointed to examine the votes for President and Vice-President of the United States, and to notify the persons elected of their election, to ask that the House concur in the following resolution: Resolved, That the two Houses will assemble in the Chamber of the House of Representa tives on Wednesday, the 10th of February, at twelve o clock, and the President of the Senate shall be presiding officer ; that one person be appointed a teller on the part of the Senate, and two on the part of the House of Represent atives, to make a list of the votes as they shall be declared; that the result shall be declared to the President of the Senate, who shall an nounce the state of the vote, and persons elected, to the two Houses as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President of the United States, and, together with a list of votes, be entered on the journals of the two Houses. The resolution was concurred in. IN SENATE. Wednesday, February 10, 1841. (" Congressional Globe," 26th Cong., 2d session, p. 159.) A message was received from the House of Representatives, announcing that the House was ready to receive the Senate and to proceed to count the votes for President and Vice- President of the United States, in conformity with the Constitution, and in pursuance of the joint resolution on that subject. On motion of Mr. Knight, the Senate pro ceeded to the hall of the House of Representa tives, preceded by their Secretary and Ser- geant-at-Arms. After the votes had been counted, the Sena tors returned to the Senate Chamber, where the following resolutions were adopted : Resohed, That a committee of one member be appointed by the Senate to join a committee of two members to be appointed by the House of Representatives, to wait on William Henry Harrison, of Ohio, and inform him that he has been constitutionally elected by the electors of the several States President of the United States for four years from the 4th day of March, 1841. Mr. Preston was appointed on the part of the Senate. Resohed, That the President of the Senate do cause John Tyler, of Virginia, to be notified that he has been duly elected Vice-President of the United States for four years from the 4th day of March, 1841. IN HOUSE OF REPRESENTATIVES. Wednesday, February 10, 1841. (" Congressional Globe," 26th Cong., 2d Session, pp. 159, 160.) This being the day specially set apart by a joint resolution, for the two Houses to convene in joint meeting, at twelve o clock, for the pur pose of opening and counting the electoral votes given by the several States for President and Vice-President of the United States, and the hour of twelve o clock having arrived, On motion of Mr. Briggs, it was Ordered, That the Clerk inform the Senate that the House is now ready to receive the Senate, and to proceed in opening the certifi cates, and in counting the votes, of the electors for President and Vice-President of the United States. The Clerk having delivered the said message, The Senate attended in the Hall of the House. The President of the Senate was in vited to a seat provided for him on the right of the Speaker, which he occupied; and the Senators having taken the seats set apart for their accommodation, The Vice-President of the United States, in presence of the two Houses of Congress, pro ceeded to open the certificates of the electors of President and Vice-President of the United States, beginning with those of the State of Maine, and ending with the State of Michigan, and the tellers, Mr. Preston on the part of the Senate, and Mr. Gushing and Mr. John W. Jones on the part of the House, having read, counted, and registered the same, making du plicate lists thereof, and the lists being com pared, they were delivered to the Vice-Presi dent of the United States, and are as follows : 100 FOURTEENTH PRESIDENTIAL TERM. Statement of the Votes for President and Vice- President of the United States, for four years, from 4th March, 1841. Number of Electors appointed by each State. STATES. PRESI DENT. VICE -PRESIDENT. H, I William 11. Harrison, 1 of Ohio. I Martin Van Buren, I of New York. It 11 10 1 Eichard M. Johnson, of Kentucky. Littleton W. Tazewell, of Virginia. . 1 James K. Polk, 1 of Tennessee. 10 7 14 4 8 7 42 8 30 3 10 23 15 11 11 15 15 21 5 4 9 5 7 4 8 8 294~ 148 Maine. . .... New Hampshire . 7 ii 7 14 4 4 8 8 7 7 New York 49 40 New Jersey 8 80 8 30 Pennsylvania 8 8 10 10 Virginia 15 23 ij> 22 1 North Carolina ii 11 11 n Kentucky If) 15 15 15 Ohio 91 91 Louisiana 5 5 4 4 9 9 Illinois . 5 7 5 7 Missouri 4 s 4 8 Arkansas Michigan 3 3 234 48 11 1 "Whole number of votes. Majority. 234 60 RECAPITULATION. for President : William Henry Harrison, of Ohio 234 Martin Van Buren, of New York Total. 60 294 For Vice-President : John Tyler, of Virginia 234 Richard M. Johnson, of Kentucky 48 Littleton W. Tazewell, of Virginia 11 James K. Polk, of Tennessee 1 Total 294 The President of the Senate then announced the state of the vote to the two Houses of Con gress, in joint meeting assembled, and declared that William Henry Harrison, of Ohio, having a majority of the whole number of electoral votes, is duly elected President of the United States, for four years, commencing with the fourth day of March next, 1841 ; and that John Tyler, of Virginia, having a majority of the whole number of electoral votes, is duly elected Vice-President of the United States, for four years, commencing with the fourth day of March next, 1841. The joint meeting of the two Houses of Con gress was then dissolved, and the Senate re turned to its Chamber. Mr. Gushing, from the joint committee ap pointed to ascertain and report a mode for ascertaining the votes for President and Vice- President of the United States, and of certify ing the persons elected of their election, pre senting the following in continuation of their report : JResolved, That a committee of one member of the Senate be appointed by that body to join a committee of two members of the House of Bepresentatives, to be appointed by that House, to wait on William Henry Harrison, of Ohio, and to notify him that he has been duly elected President of the United States for four years, commencing with the 4th day of March, 1841. The resolution was then adopted nem con. The House then adjourned until 11 o clock to-morrow morning. FIFTEENTH PKESIDENTIAL TEEM. 1845-1849. JAMES K. POLK, President; GEORGE M. PAULAS, Vice -President. IN SENATE. Monday, February 3, 1845. (" Congressional Globe," 28th Cong., 2d Session, pp. 233, 234.) On motion by Mr. Walker, it was, Resolved, That a committee of three be ap pointed to join such committee as may be ap pointed by the House to ascertain and report a mode of examining and counting the votes for President and Vice-President, and of in forming the persons elected of their election. On motion it was ordered that the Chair ap point the committee ; when Messrs. Walker, Woodbury, and Dayton, were announced as the committee on the part of the Senate. IN HOUSE OF REPEESENTATIVES. Tuesday, February 4, 1845. (" Congressional Globe," 28th Cong., 2d Session, p. 240.) Mr. Burke moved that the House take np and concur with the following resolution from the Senate. JAMES K. POLK, PRESIDENT. 101 Resolved, That a committee of three be ap pointed to join with such committee as may be appointed by the House to ascertain and re port a mode of examining and counting the votes for President and Vice-President, and of informing the persons elected of their election. The motion was agreed to, and the resolu tion was concurred in. IN SENATE. Wednesday, February 5, 1845. (" Congressional Globe," 23th Cong., 2d Session, p. 243.) A message was received from the House of Representatives, informing the Senate that that body had concurred in its resolution for the appointment of a joint committee to count the votes for President and Vice-President elect ; and that Messrs. Burke, Obappell, Severance, 0. J. Ingersoll, and Vance, were appointed a committee on their part. IN" HOUSE OF REPRESENTATIVES. Wednesday, February 5, 1845. ("Congressional Globe," 28th Cong., 2J Session, p. 213.) The committee on the part of the House, appointed yesterday by the Speaker in con formity with the resolution of the House to join the committee of the Senate, "to ascer tain and report a mode of examining and count ing the votes for President and Vice-President, and of informing the persons elected of their election," consists of the following members: Messrs. Burke, A. A. Chapman, J. R. Ingersoll, D. L. Seymour, and Vance. IN" SENATE. Friday, February 7, 1845. ("Congressional Globe," 2Sth Cong., 2d Session, p. 256.) Mr. Walker, from the committee appointed on the part of the Senate to join such commit tee as might be appointed on the part of the House of Representatives, to ascertain and report a modo of examining the votes for President and Vice-President of the United States, and of informing the persons elected of their election, reported in part the following resolution : Resolved, That the two Houses will assemble in the Chamber of the House of Representa tives on Wednesday, the 12th day of Febru ary, 1845, at 12 o clock; that one person be appointed teller on the part of the Senate, and two persons be appointed tellers on the part of the House, to make a list of the votes for President and Vice-President of the United States, as they shall be declared ; that the re sult be delivered to the President of the Sen ate, who will announce to the two Houses, assembled as aforesaid, the state of the vote, and the person or persons elected, if it shall appear that a choice hath been made, agreeably to the Constitution of the United States, which annunciation shall be received a sufficient dec laration of the person or persons elected ; and that the said proceedings, together with a list of the votes, be entered on the Journals of the two Houses. The Senate, having considered this resolu tion, concurred therein. It was then ordered that Mr. Walker be the teller on the part of the Senate. IN HOUSE OF REPRESENTATIVES. Friday, February 7, 1845. ("Congressional Globe," 23th Cong., 2<1 Session, p. 253.) Mr. Burke made the following report from the committee appointed to ascertain and re port a mode of examining the votes for Presi dent and Vice-President of the United States: " The committee on the part of the House of Representatives, appointed to join such com mittee as might be appointed on the part of the Senate, to ascertain and report a mode of examining the votes for President and Vice- President of the United States, and of inform ing the persons elected of their election, report : " That the joint committee, in part execution of the duties with which they were charged by the two Houses of Congress, have agreed to the following resolution, in which resolution their committee recommend to the House to concur : "Resolved, That the two Houses will assemble in the Chamber of the House of Representatives on Wednesday, the 12th of February, 1845, at 12 o clock ; that one person be appointed teller on the part of the Senate, and two persons be appointed tellers on the part of the House, to make a list of the votes for President and Vice- President of the United States, as they shall be declared ; that the result be delivered to the President of the Senate, who will announce to the two Houses, assembled as aforesaid, the state of the vote, and the person or persons elected, if it shall appear that a choice hath been made agreeably to the Constitution of the United States, which annunciation shall bo deemed a sufficient declaration of the person or persons elected ; and that the said proceed ings, together with a list of the votes, be en tered on the Journals of the two Houses/ Mr. Burke said as the joint committee had reported a similar resolution to the Senate, which would probably be adopted by ^ that body, he moved that it be printed, and laid on the table until the resolution was received from the Senate. The motion was agreed to. 102 FIFTEENTH PRESIDENTIAL TERM. IN SENATE. Wednesday, February 12, 1845. ("Congressional Globe," 28th Cong., 2d Session, pp. 276, 277.) A message was received from the House of Representatives by the hands of Mr. French, their Clerk, giving information that that body was in order to receive the Senate, and pro ceed to the opening of the certificates, and counting the votes given by the electoral col leges of the several States for President and Vice-President of the United States. The message being read, the Senate pro ceeded in a body, headed by the President pro tern., and preceded by their Sergeant-at-Arms, to the House of Eepresentatives, to execute the joint order of the two Houses. The Senate in the same order returned to the Senate Chamber, and resumed their seats about two houf s thereafter, when Mr. Walker, from the committee on the part of the Senate appointed to join the committee on the part of the House to report as to the mode of counting the electoral votes for Presi dent and Vice-President, and informing the Eersons elected of their election, reported in arther execution of their duty a resolution declaring the result, and proposing the appoint ment of one Senator, to join such two mem bers as might be appointed on the part of the House of Representatives, to wait on the President and Vice-President elect, and inform them of their election. The question was taken on the resolution, and it was adopted. On motion, the Chair was authorized to ap point the committee on the part of the Senate, when Mr. "Walker was appointed. IN HOUSE OF REPRESENTATIVES. Friday, February 7, 1845. ("Congressional Globe," 28th Cong., 2d Session, p. 260.) The joint resolution received from the Sen ate in relation to counting the presidential vote was, on motion of Mr. Burke, taken up and agreed to. The House then adjourned. IN HOUSE OF REPEESENTATITES. Wednesday, February 12, 1845. ("Congressional Globe," 28th Cong., 2d Session, p. 277.) Mr. Burke stated that one of the tellers ap pointed on the part of the House [Mr. Joseph R. Ingersoll], to count the votes of the electors for President and Vice-President, was unable, from indisposition, to attend ; and he, there fore, moved that another teller be appointed in his place. This motion being agreed to, The Speaker appointed Mr. J. P. Kennedy to serve as teller in place of Mr. Ingersoll. Mr. Brodhead said that the hour having ar rived which was set apart by a joint resolution of the two Houses for counting the votes for the electors for President and Vice-President, he begged leave to offer the usual resolution. Mr. Brodhead then offered a resolution that a message be sent to the Senate to inform that body that the House was now ready to receive them, and proceed to the opening of the cer tificates and counting the votes given by the electoral colleges. The resolution having been agreed to, a mes sage was accordingly sent to the Senate by B. B. French, Esq., the Clerk of the House. The Senate soon after entered the Hall of the House of Representatives, two abreast, pre ceded by their Sergeant-at-Arms, who was succeeded by their President (the Hon. Willie P. Mangum) and Secretary (Asbury Dickins, Esq.). The Senators took seats prepared for them in the central area of the House, and the President of the Senate took the chair of the Speaker (the Hon. John W. Jones), the last- named officer being seated on his left. The tellers (the Hon. Robert J. Walker of the Senate, and the Hon. Edmund Burke and the Hon. John P. Kennedy of the House of Repre sentatives) took their seats at the Clerk s desk, assisted by the Secretary of the Senate, and B. B. French, Esq., the Clerk of the House. L. Machin, Esq., principal Clerk of the Senate, and D. Gold, Esq., principal clerk in the office of the Clerk of the House of Representatives, acted as recording clerks, being seated in front of the Clerk s desk at a table prepared for their use in the central area. The galleries were densely crowded in every part, a large number of the auditors being ladies. The President of the Senate rose when the members of the House and the Senators were all seated, and stated the object of their thus assembling to be to count the votes cast by the electors of the respective States of this Union for President and Vice-President of the United States ; and handing to Mr. Walker (one of the tellers) a sealed packet, he said : " I deliver to the gentlemen tellers the votes of the electors of the State of Maine for President and Vice-President of the United States, in order that they may be counted." Mr. Walker received the packet ; and having broken the seals, the tellers examined the votes, which were announced to be nine in number, all of which were given for James K. Polk of Tennessee, as President of the United States. The same number of votes for the Vice-President were given for George M. Dallas of Pennsylvania. The President next delivered to the tellers the votes of the electors of New Hampshire, and of all the other States of the Union in suc cession, in the same manner, and they were examined by the tellers, and the resuty was announced with the same formalities. The final result stood thus : JAMES K. POLK, PRESIDENT. 103 Number of electors ap pointed in each State. STATES. PKKSIDENT. VICE- PRESIDENT. J M OQ 3 o >> 1 J 1 % | O Theodore Freling- Luyson. 9 6 12 4 6 6 36 7 26 3 8 17 11 9 10 12 13 23 6 6 12 9 9 7 3 5 275 Maine 9 9 6 "l2" 4 6 6 New Hampshire 6 "is" 4 6 6 y .... 8 "ii" ii" 13 23 Massachusetts "36" idence Plantations... New York ... 1 36 7 "3" 8 "ii" i2 13 23 Pennsylvania 26 26 17 17 South Carolina 9 10 9 10 Ohio Louisiana 6 6 12 9 9 6 6 12 9 9 7 3 5 Mississippi Indiana Illinois Alabama Missouri Arkansas 3 5 Michigan. 170 105 170 105 Mr. Walker presented the returns of the tellers to the President of the Senate, who rose and said that the whole number of votes given was 275, of which a majority was 138. But James K. Polk, of Tennessee, had received 170 votes cast for the President of the United States, and Henry Clay, of Kentucky, 105; and George M. Dallas, of Pennsylvania, had received 170 votes cast for Vice-President of the United States, and Theodore Frelinghuy- sen, of New York, had received 105. He then added: "I do, therefore, declare that James K. Polk, of Tennessee, having a ma jority of the whole number of electoral votes, is duly elected President of the United States for four years, commencing on the 4th day of March, 1845 ; and that George M. Dallas, of Pennsylvania, having a majority of electoral votes, is duly elected Vice-President of the United States for four years, commencing on the 4th day of March, 1845." He afterward stated that the business for which the two Houses had been convened hav ing been accomplished, the Senate would re turn to its Chamber. The House accordingly rose, the Speaker re sumed the chair, and they remained standing until the Senators had retired in the order in which they entered the House of Representa tives. Mr. McConnell moved that the House ad journ, but withdrew the motion at the request of Mr. Burke. Mr. Burke, on leave, made the following re port : The Committee on the part of the House of Representatives appointed to join such com mittee as might be appointed ^on the part of the Senate, to ascertain and report a mode of examining the votes for President and Vice- President of the United States, and of inform ing the persons elected of their election, re port : That the joint committee, in further execu tion of the duties with which they were charged by the two Houses of Congress, have agreed to the following resolution, in which resolution the committee recommend to the House to concur : Resolved, That a committee of two members of the House be appointed by that body to join a committee of one member of the Sen ate to be appointed by that body, to wait on James K. Polk, of Tennessee, and inform him that he has been duly elected President of the United States for four years, commencing with the fourth day of March, eighteen hundred and forty -five ; and also to wait on George M. Dallas, of Pennsylvania, and inform him that he has been duly elected Vice-President of the United States for four years, commencing with the fourth day of March eighteen hundred and forty-five. On motion of Mr. Burke, the question being taken, the resolution was unanimously agreed to. 104 SIXTEENTH PRESIDENTIAL TERM. SIXTEENTH PKESIDENTIAL TERM. 1849-1853. ZACHAKY TAYLOR, President / MILLARD FILLMORE, Vice -President. IN SENATE. Wednesday, January 31, 1849. ("Congressional Globe," 30th Cong., 2d Session, p. 409.) Mr. Clayton submitted the following resolu tion, which was considered and agreed to : Resolved, That a committee be appointed to join such committee as may be appointed by the House of Kepresentatives, to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election. On motion of Mr. Clayton the committee was ordered to consist of three Senators, to be appointed by the presiding officer, and the following were announced as the names of the select committee : Mr. Clayton, Mr. Davis of Mississippi, and Mr. Davis of Massachusetts. IN HOUSE OF REPRESENTATIVES. Wednesday, January 31, 1849. (" Congressional Globe," 30th Cong., 2d Session, p. 422.) The House, by general consent, proceeded to the consideration of the joint resolution from the Senate, for the appointment of a joint committee " to ascertain and report a mode of examining the votes for President and Vice- President of the United States, and of notify ing the persons elected of their election." The resolution was read, considered, and agreed to. IN SENATE. Monday, February 5, 1849. ("Congressional Globe," 80th Cong., 2d Session, pp. 441, 442.) Mr. Clayton, from the select committee of the two Houses of Congress to make arrange ments as to the manner of counting the votes of President and Vice-President, reported the following resolution : Resolved, That the two Houses will assemble in the Chamber of the House of Kepresenta tives on Wednesday, the 14th instant, at 12 o clock, and the President of the Senate shall be the presiding officer ; that one person be appointed a teller on the part of the Senate, and two on the part of the House of Repre sentatives, to make a list of the votes as they shall be declared ; that the result shall be de livered to the President of the Senate, who shall announce the state of the vote and the persons elected, to the two Houses assembled, as aforesaid, which shall be deemed a dec laration of the persons elected President and Vice-President of the United States, and, to gether with a list of the votes, be entered on the Journals of the two Houses. On motion of Mr. Clayton, the resolution was considered and agreed to. On motion of Mr. Clayton, the Vice-Presi dent was authorized to appoint a teller on the part of the Senate : whereupon The Vice-President appointed Mr. Clayton. IN HOUSE OF REPRESENTATIVES. Tuesday, February 6, 1849. ("Congressional Globe," 30th Cong., 2d Session, p. 464.) A message was received from the Senate, stating that the Senate had passed sundry bills, and also the following resolution : Resolved, That the two Houses will assemble in the Chamber of the House of Representa tives on Wednesday, the 14th instant, at 12 o clock, and the President of the Senate shall be the presiding officer; that one person be appointed a teller on the part of the Senate, and two on the part of the House of Repre sentatives, to make a list of the votes as they shall be declared ; that the result shall be de livered to the President of the Senate, who shall announce the state of the vote and the persons elected, to the two Houses assembled as aforesaid; which shall be deemed a declara tion of the persons elected President and Vice- President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Ordered, That Mr. Davis, of Mississippi, be the teller on the part of the Senate. IN HOUSE OF REPRESENTATIVES. Wednesday, February 7, 1849. ( u Congressional Globe," 30th Cong., 2d Session, p. 474.) On motion of Mr. Hunt the House proceed ed to the consideration of the following reso lution from the Senate ; it was read as fol lows: Resolved, That the two Houses will assemble in the Chamber of the House of Representa tives on Wednesday, the 14th instant, at 12 ZACHARY TAYLOK, PRESIDENT. 105 o clock, and the President of the Senate shall be the presiding officer ; that one person be ap pointed a teller on the part of the Senate, and two on the part of the House of Representa tives, to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate, who shall an nounce the state of the vote, and the persons elected, to the two Houses assembled as afore said ; which shall be deemed a declaration of the persons elected President and Vice-President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. The said resolution was agreed to. IN HOUSE OF REPRESENTATIVES. Friday, February 9, 1849. ("Congressional Globe," 30th Cong., 2d Session, p. 491.) The Journal of yesterday was read and ap proved, on which were announced the tellers on the part of the House to count the votes of President and Vice-President, as follows : Mr. Hunt and Mr. McClelland. Mr. Hunt, at his request, was excused from acting as teller on the part of the House to make a list of votes for President and Vice-President of the United States, and thereupon Mr. Barrow was appoint ed in his place. IN SENATE. Wednesday, February 14, 1849. ("Congressional Globe," 30th Cong., 2d Session, p. 533.) In compliance with the invitation from the House, the Senate then proceeded to the House of Representatives. On the return of the Senate, Mr. Davis, of Mississippi, from the committee appointed on the part of the Senate, jointly with the committee appointed on the part of the House of Representatives to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election, reported that the committee had performed that duty, and had instructed him to submit the following resolution : Resolved, That a committee of one member of the Senate be appointed to join a committee of two members of the House of Represent atives to be appointed by that body, ^o wait on General Zachary Taylor, of Louisiana, and inform him that he has been duly elected Presi dent of the United States, for four years, com mencing with the fourth day of March, 1849 ; and also to wait on Millard Fillmore, of New York, and inform him that he has been duly elected Vice-President of the United States, for four years, commencing with the fourth day of March, 1S49. The resolution having been concurred in, Mr. Johnson, of Louisiana, etc. IN HOUSE OF REPRESENTATIVES. Wednesday, February 14, 1849. ("Congressional Globe," 30th Cong., 2d Session, pp. 534, 535.) Mr. Barrow rose and said that he had a motion which he had reduced to writing, and which he desired to offer. It was read for in formation, as follows : jResolved, That the Clerk inform the Senate that the House is now ready to receive that body, for the purpose of proceeding to open and count the votes of the electors for Presi dent and Vice-President of the United States. The resolution was adopted. The Clerk having delivered the message to the Senate, informing them that the House was in waiting for the purpose of counting the votes for President and Vice-President The Senate attended in the Hall of the House. The Senate, preceded by the Hon. George M. Dallas, Vice-President of the United States, and its officers, entered the Hall. The Senators took the seats prepared for them in the circle in front of the Speaker s chair. The Vice-President took the seat of the Pre siding Officer, the Speaker of the House of Representatives being seated at his left hand. The Sergeants-at-Arms of the two Houses were on the lower platform, at the right and left. The Hon. Jefferson Davis, the teller on the part of the Senate, took a seat at the Clerk s desk, supported by the Hon. Washington Bar row and Robert McClelland, tellers on the part of the House of Representatives, who were assisted by the Secretary of the Senate and the Clerk of the House. When thus organized, the two branches of Congress in joint assembly, and the aisles and galleries densely crowded with ladies and citi zens, the Hall presented an imposing appear ance. The Vice-President then rose and said : " In obedience to law, the Senate and House of Representatives have assembled, on the present occasion, so that I may fulfill the duty enjoined upon me by the Constitution, by opening, in their presence, the sealed certifi cates of the lists of persons voted for, by the electors in the respective States, as President and Vice-President, cause the votes to be counted, and have the persons to fill those offices ascertained and declared agreeably to the Constitution." The Vice-President then opened the certifi cate of the electors of the State of Maine, and said : " I now open and present to the tellers chosen by the two Houses the certificates trans mitted by the electors of the State of Maine, that the votes therein recorded may be counted." Mr. Jefferson Davis proceeded to read the certificate, and the vote reported was regis tered by the tellers in duplicate lists. 106 SIXTEENTH PRESIDENTIAL TERM. The same form was observed with the cer tificates from the States of New Hampshire, Massachusetts, Ehode Island, Connecticut, Ver mont, New York, New Jersey, Pennsylvania, and Delaware. The certificates from the States of Maryland, Virginia, North Carolina, South Carolina, Georgia, Kentucky, Tennessee, Ohio, Louisi ana, and Mississippi, were severally presented in succession in like manner, and read by Mr. Barrow. Those from Indiana, Illinois, Alabama, Mis souri, Arkansas, Michigan, Florida, Texas, Iowa, and Wisconsin were read by Mr. Mc Clelland. The tellers having read, counted, and re gistered the votes of the electors of the thirty States, and compared their duplicate lists, de livered the same to the Vice-President. The Vice-President then rose and read the re port of the tellers. The result was as follows : 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 80 STATES. FOE PEE8I- DENT. FOR VICE- PRESIDENT. | 1 1 I 3 K 1 Maine * 9 9 6 " ii " 9 "as" ..,.. 12 9 9 7 8 5 " 4 4 4 New Hampshire 6 "*i 4 6 6 36 7 26 3 8 " ii " 16 12 13 ..... "B Massachusetts Ehode Island 12 4 6 Connecticut Vermont 6 86 7 26 3 New York New Jersey. . . , Pennsylvania Delaware.. Maryland 8 ""ii" ...... ""23" "* 12 9 9 7 3 5 Virginia North Carolina South Carolina Georgia 11 " io 12 13 Kentucky Tennessee Ohio Louisiana .... 6 Mississippi Indiana Illinois Alabama Missouri Arkansas Michigan Florida 3 Texas 4 Iowa .... 4 4 "Wisconsin ... . 163 127 163 127 The Vice-President stated that no motion was in order, and no other mode of proceed ing could be adopted but that pointed out by the Constitution of the United States, but that the tellers might abridge the reports so as to give merely the results of the elector ballotings in each State. The Vice-President of the United States then, in pursuance of the resolution adopted by the Senate and House of Eepresentatives * After the returns from the State of Maine had been read, Mr. Stephens rose and suggested that the reading at length of the returns from each State in detail be dispensed with. on the Vth instant, announced the state of the votes to the Houses of Congress in joint meet ing, as follows : That the whole number of electors appoint ed to vote for President and Vice-President of the United States is 90, of which number 146 make a majority. The state of the vote for President of the United States, as delivered by the tellers, is For Zachary Taylor, of Louisiana 163 For Lewis Cass, of Michigan 127 And the state of the vote for Vice-President of the United States, as delivered by the tell ers, is For Millard Fillmore, of New York 163 For William O. Butler, of Kentucky 127 That Zachary Taylor, of Louisiana, had re ceived a majority of the whole number of votes of the electors chosen in the several States to vote for President of the United States; and that Millard Fillmore, of New York, had received a majority of the whole number of votes of the electors chosen in the several States to vote for Vice-President of the United States. And thereupon The Vice-President of the United States declared that Zachary Taylor, of the State of Louisiana, is duly elected President of the United States for the term of four years, to commence on the fourth day of March, 1849 ; and that Millard Fillmore, of the State of New York, is duly elected Vice-President of the United States for the term of four years, to commence on the fourth day of March, 1849. The joint meeting of the two Houses of Con gress was then dissolved, and the Senate re turned to its Chamber. Mr. Barrow, from the joint committee ap pointed on the part of the House of Eepre sentatives to ascertain and report a mode of examining the votes for President and Vice- President of the United States, and of notify ing the persons elected of their election, re ported the following resolution, which was read, and unanimously agreed to : JResolved, That a committee of two members be appointed on the part of the House of Repre sentatives, to join a committee of one member on the part of the Senate, to wait upon Zachary Taylor, of Louisiana, and inform him that he has been duly elected President of the United States for four years, to commence on the 4th day of March, 1849 ; and also to wait on Mil lard Fillmore, of New York, and inform him that l\e has been duly elected Vice-President of the United States for four years, to com mence on the 4th day of March, 1849. And then the House adjourned. Ix SENATE. Tuesday, February 15, 1849. ("Congressional Globe," 30th Cong., 2d Session, p. 535.) The Vice-President informed the Senate that no order had been made yesterday as to ZACHARY TAYLOR, PRESIDENT. 107 the appointment of a committee on the part of the Senate to wait on the President-elect, and notify him of his election. It was then or dered that the appointment be made by the Yice-President. IN HOUSE OF REPRESENTATIVES. Thursday, February 15, 1849. (" Congressional Globe," 30th Cong., 2d Session, pp. 541-543.) A message was received from the Senate, informing the House that the Senate had passed the following resolution, in which the Senate requested the concurrence of the House, viz. : Resolved, That a committee of one member be appointed on the part of the Senate to join a committee of two members on the part of the House of Representatives, to wait upon Zachary Taylor, of Louisiana, and inform him that he has been duly elected President of tho United States for four years, to commence on the fourth day of March, 1849; and also to wait upon Millard Fillmore, of New York, and inform him that he has been duly elected Vice-President of the United States for four years, to commence on the fourth day of March, 1849. The resolution received this morning from the Senate (given above), to appoint a joint committee of the two Houses of Congress to wait on the President and Vice-President elect, and inform them of their election to said of fices, was read and concurred in. SEVENTEENTH PRESIDENTIAL TERM 1853-1857. X PIEECE, President; WILLIAX R. KIXG, Vice-President. IN SENATE. Monday, January 31, 1853. ("Congressional Globe," 32d Congress, 2d Session, p. 450.) Mr. Hunter offered the following resolution, which was considered by unanimous consent and agreed to : Resolved, That a committee be appointed to join such committee as may be appointed by the House of Eepresentatives to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election. On motion by Mr. Hunter, it was Ordered, That the committee on the part of the Senate be appointed by the President pro temp ore. And Mr. Hunter, Mr. Bright, and Mr. Pearce, were appointed. IN HOUSE OF "REPRESENTATIVES. Tuesday, February 1, 1853. ("Congressional Globe," 32d Congress, 2d Session, p. 469.) Here a message was received from the Sen ate by the hands of Asbury Dickins, its Secre tary, informing the House they had passed the following resolution : " Resolved, That a committee be appointed to join such committee as may be appointed by the House of Eepresentatives to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election " And that Mr. Hunter, Mr. Bright, and Mr. Pearce, were appointed the committee on the part of the Senate. IN HOUSE OF REPRESENTATIVES. Wednesday, February 1, 1853. (" Congressional Globe," 32d Congress, 2d Session, p. 466.) Mr. JOKES, of Tennessee. I ask the gentle man from Alabama to allow me to ask the House to take up the Senate resolution which was sent in here this morning, to appoint a joint committee to report the manner and mode of counting the presidential votes. Mr. HOUSTON. I waive my motion for that purpose if it will not consume much time. No objection was made, and the resolution was taken up and read, as follows : Resolved, That a committee be appointed to join such committee as may be appointed by the House of Representatives to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election. And Mr. Hunter, Mr. Bright, and Mr. Pearce, were appointed a committee. The question was taken, and the resolution was adopted. 108 SEVENTEENTH PRESIDENTIAL TERM. IN SENATE. Friday, February 4, 1853. "Congressional Globe," 32d Congress, 2d Session, p. 499.) Mr. Hunter, from the joint committee ap pointed on the 31st of January last, to ascer tain and report a mode of examining the votes for President and Vice-President of the United States, and notifying the persons elected of their election, reported the following resolu tion, which was considered by unanimous con sent, and agreed to. Resolved, That the two Houses will assemble in the Chamber of the House of Represent atives, on Wednesday the 9th inst., at 12 o clock, and the President of the Senate pro tempore shall be the presiding officer ; that one person be appointed a teller on the part of the Senate, and two on the part of the House of Representatives, to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate pro tempore who shall announce the state of the vote and the persons elected to the Houses as sembled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. On motion, it was ordered that the teller be appointed by the President pro tempore, and Mr. Hunter was appointed. IN HOUSE OF REPRESENTATIVES. Friday, February 4, 1853. ("Congressional Globe," 32d Cong., 2d Session, p. 509.) Mr. JONES, of Tennessee. I rise to what I conceive to be a question of privilege. I sub mit the following report from the joint com mittee appointed to examine and report a mode for counting the votes for President and Vice- President of the United States. I do not ask action on it now, but only that it shall be read and informally passed over until we receive a message from the Senate announcing its adop tion by that body : Resolved, That the two Houses will assemble in the Chamber of the House of Representa tives on Wednesday, the 9th instant, at 12 o clock, and the President of the Senate pro tempore shall be the presiding officer ; that one person be appointed a teller on the part of the Senate, and two on the part of the House of Representatives, to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate pro tempore, who shall announce the state of the vote and the persons elected to the two Houses assembled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Here a message was received from the Sen ate of the United States, by the hands of As- bury Dickins, Esq., its Secretary, informing the House that the Senate had passed the following resolution, viz. : Resolved, That the two Houses will assemble in the Chamber of the House of Representa tives on Wednesday, the 9th instant, at 12 o clock, and the President of the Senate pro tempore shall be the presiding officer; and one person be appointed teller on the part of the Senate, and two on the part of the House of Representatives, to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate pro tempore, who shall announce the state of the vote and the persons elected to the two Houses assembled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President of the United States, and, together with a list of votes, be entered on the Journals of the two Houses. Ordered, That Mr. Hunter be the teller on the part of the Senate. Mr. JONES, of Tennessee. I ask if that message from the Senate is not a question of privilege, which takes precedence of a mere privileged question? The SPEAKER. The Chair thinks it is a question of privilege. Mr. JONES. The message from the Senate is the report of the joint committee appointed to ascertain and report the mode of counting the votes for President and Vice-President, which I presented to the House this morning. I move that the resolution be concurred in. The motion was agreed to, and the resolution of the Senate was concurred in. Mr. JONES. I move that the Speaker of the House appoint the two tellers, on the part of the House, provided for in that resolution. The motion was agreed to, and The Speaker thereupon appointed Messrs. Jones, of Tennessee, and Chandler, as tellers on the part of the House. IN SENATE. Saturday, February 5, 1853. ("Congressional Globe," 32d Cong., 2d Session, p. 516.) A message was received from the House of Representatives by Mr. Hayes, its Chief Clerk, announcing that it concurred in the resolution of the Senate respecting the mode of count ing the vote for President and Vice-President of the United States, and had appointed Mr. George W. Jones, of Tennessee, and Mr. Chan dler, of Pennsylvania, tellers on their part. IN SENATE. Tuesday, February 8, 1853. ("Congressional Globe," 32d Cong., 2d Session, p. 549.) The twelfth amendment to the Constitution of the United States provides that the electo- FRANKLIN" PIERCE, PRESIDENT. 109 ral colleges shall make distinct lists of all per sons voted for as President and Vice-President, and of the number of votes for each, u which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate ; the President of the Senate shall, in the presence of the Senate and House of Rep resentatives, open all the certificates, and the votes shall then be counted ; the person hav ing the greatest number of votes for President shall be the President, if each number be a majority of the whole number of electors ap pointed." The same provision is applied to the election of Vice-President. The act of Congress approved March 1, 1792, section 2, provides that " the electors shall meet and give their votes on the said tirst Wednesday in December, at such place in each State as shall be directed by the Legisla ture thereof; and the electors in each State shall make and sign thre-e certificates of all the votes by them given, and shall seal up the same, certifying on each that a list of the votes of such State for President and Vice- President is contained therein ; and shall, by writing under their hands, or under the hands of a majority of them, appoint a person to take charge of and deliver to the President of the Senate, at the seat of Government before the first Wednesday in January then next en suing, one of the said certificates; and the said electors shall forthwith forward, by the post-office, to the President of the Senate, at the seat of Government, one other of the said certificates ; and shall forthwith cause the other of the said certificates to be delivered to the judge of that district in which the said electors shall assemble." A joint committee having been appointed by the Senate and House of Representatives to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the per sons elected of their election, under these pro visions of law and of the Constitution, the fol lowing resolution was reported and approved, and the tellers appointed were Mr. Hunter, of Virginia, on the part of the Senate, and Mr. George W. Jones, of Tennessee, and Mr. Jo seph R. Chandler, of Pennsylvania, on the part of the House : " Resolved, That the two Houses will assem ble in the Chamber of the House of Representa tives on Wednesday, the 9th instant, at twelve o clock, and the President of the Senate pro tern- pore shall be the presiding officer ; that one per son be appointed a teller on the _part of the Sen ate, and two on the part of the House of Repre sentatives, to make a list of the votes as they shall be declared ; that the result shall be de livered to the President of the Senate pro tempore, who shall announce the state of the vote, and the persons elected, to the two Houses assembled, as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President of the United States, and, together with a list of votes, be entered on the Journals of the two Houses." A message having been received from the House of Representatives by Mr. Forney, its Clerk, announcing that the House of Repre sentatives was ready to receive the Senate, in conformity to the Constitution and in compli ance with the order of the two Houses, for tho purpose of opening and counting the votes of the electors of the several States for President and Vice-President of the United States, the Senate proceeded to the Chamber of the Hoube of Representatives, preceded by its President and other officers. The Senators having returned to their Cham ber, the President resumed the chair. Mr. HUNTER. The tellers appointed by the two Houses to count the votes for Presi dent and Vice-President of the United States have instructed me to make a further report: Resolved, That a committee of one member of the Senate be appointed by that body to join a committee of two members of the House of Representatives, to be appointed by the House to wait on Franklin Pierce, of New Hampshire, and notify him that he has been duly elected President of the United States for four years, to commence on the 4th day of March, 1853. The resolution was considered by unanimous consent, and agreed to. Mr. HUNTER. I move that the President of the Senate, by unanimous consent, appoint the committee on the part of the Senate. The motion was agreed to ; and Mr. Hunter was appointed. Mr. HUNTER. I am also instructed by the same committee to report the following reso lution : Resolved, That the President of the Senate do cause William R. King, of Alabama, to be notified that he has been duly elected Vice- President of the United States for four years, to commence on the 4th day of March, 1853. The resolution was considered by unanimous consent, and agreed to. IN" HOUSE OF REPRESENTATIVES. Wednesday, February 9, 1853. ("Congressional Globe," 32d Cong., 2d Session, pp. 549, 550.) Mr. JONES. My motion is, that the Clerk of the House inform the Senate that the House of Representatives are now ready to receive the President and members of the Sen ate, to count the votes for the late election of President and Vice-President of the United States, this being the day fixed by the Consti tution for that purpose. The question was taken, and the motion was agreed to. The message was transmitted to the Senate. At half-past twelve o clock the Senate, pre ceded by the Hon. D. R. Atchison, its Presi- 110 SEVENTEENTH PRESIDENTIAL TERM. dent pro tempore, and its officers, entered the Hall of the House, to join the House of Rep resentatives in counting the votes for Presi dent and Vice-President of the United States, in conformity to the Constitution, and in pur suance of the following joint resolution, here tofore adopted by the two Houses: " Resolved, That the two Houses will as semble in the Chamber of the House of Rep resentatives on Wednesday, the 9th instant, at twelve o clock, and the President of the Senate pro tempore shall be the presiding officer ; that one person he appointed a tel ler on the part of the Senate and two on the part of the House of Representatives, to make a list of the votes as they shall be declared ; that the result shall be de livered to the President of the Senate pro tempore, who shall announce the state of the vote and the persons elected to the two Houses assembled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice-President of the United States, and, together with a list of votes, be entered on the Journals of the two Houses." When the Senate entered the Hall of Rep resentatives they were received by the House standing. The President pro tempore of the Senate having been conducted to the chair, the Speaker of the House (the Hon. Linn Boyd) took a seat on his left, and the Senators occu pied the seats assigned to them in the area fronting the Clerk s desk. The Sergeants-at-Arms of the two Houses occupied seats on the platform, at the right and left of the Chair. The Hon. R. M. T. Hunter, the teller on the part of the Senate, and the Hon. George W. Jones and the Hon. Joseph R. Chandler, the tellers on the part of the House of Repre sentatives, took their seats at the Clerk s desk, and were assisted on the right by Asbury Dickins, the Secretary of the Senate, and on the left by John W. Forney, the Clerk of the House. Messrs. Machin and Hickey, Clerks of the Senate, and Messrs. Hays and Barclay, Clerks of the House, acting as recording clerks, were seated at a table in front of the Clerk s desk. The two Houses being thus organized, the President pro tempore of the Senate rose and said: The Senate and House of Representatives have assembled for the purpose of counting the votes for President and Vice-President of the United States. I present to the tellers the certificates of the electoral college of the State of Maine. Mr. R. M. T. Hunter received and read the certificate, and the vote reported was duly recorded by the tellers. The same proceedings were observed with reference to the certificates from the several States. The certificates from the States of Rhode Island, New York, Delaware, North Carolina, Kentucky, Louisiana, Illinois, Arkansas, Texas, and California, were read by Mr. Hunter. Those from New Hampshire, Connecticut, New Jersey, Maryland, South Carolina, Ten nessee, Mississippi, Alabama, Michigan, and Iowa, were read by Mr. Jones ; and those from Massachusetts, Vermont, Pennsylvania, Vir ginia, Georgia, Ohio, Indiana, Missouri, Florida, and Wisconsin, were read by Mr. Chandler. The tellers, having read, counted, and regis tered the votes of the electoral college of the thirty-one States, and compared their lists, de livered to the President pro tempore of the Senate the result, which was read by him, as follows : Statement of the Votes for President and Vice- President of the United States for Four Years, from the Fourth Day of March, 1853. I I "<o *o 1 8 5 13 4 6 5 35 7 27 3 8 15 10 8 10 12 12 23 6 7 13 11 9 9 4 6 3 4 4 5 4 296 STATES. PRESIDENT. VICE- PRESIDENT. Franklin Pierce, of New Hampshire. "WSnfield Scott, of New Jersey. William E. King, of Alabama. j William A. Graham, 1 of North Carolina. Maine g 8 New Hampshire 5 " is 5 *"4" "is" Rhode Island Connecticut .... 6 6 5 " 35 7 27 3 8 15 10 8 10 5 12 12 35 New Jersey 7 27 Delaware ... 3 8 15 10 8 10 "i2 Maryland Virginia North Carolina South Carolina Georgia Kentucky 12 "28" 6 7 13 11 9 9 4 Ohio 23 6 Louisiana Mississippi 7 13 11 9 9 4 :::::: Indiana Illinois A labama Missouri . .... Michigan C 3 4 6 8 4 4 5 4 : ! . Florida . ... Texas Iowa 4 Wisconsin ... .... 5 4 254 42 254 42 The President pro tempore of the Senate said: Gentlemen : The whole number of electoral votes cast for President and Vice-President of the United States is 296, of which 149 are necessary to a choice. The state of the vote for President of the United States, as delivered by the tellers, is: for Franklin Pierce, of New Hampshire, 254; for Winfield Scott, of New FRANKLIN PIERCE, PRESIDENT. Ill Jersey, 42 ; and the state of the vote for Vice- President of the United States, as delivered by the tellers, is: for William R. King, of Ala bama, 254 ; and for William A. Graham, of North Carolina, 42. ! I therefore declare that Franklin Pierce, of the State of New Hampshire, having the great est number of votes for President, and that number being a majority of the whole number of electors, has been duly elected President of the United States for four years, to commence on the 4th day of March next. I also declare that William E. King, of the State of Alabama, having the greatest num ber of votes for Vice-President, and that num ber being a majority of the whole number of electors, has been duly elected Vice-President of the United States for four years, to com mence on the 4th day of March next. The business for which the joint meeting of the two Houses was convened is dispatched, and Senators will now return to their Chamber. The joint meeting of the two Houses of Congress was then dissolved, and the Senators repaired to the Senate Chamber. The Speaker then resumed the chair. Mr. Jones, of Tennessee, submitted the fol lowing resolution : Resolved, That two members of the House be appointed by that body to join a commit tee of one member of the Senate, to be ap pointed by that body, to wait on Frank lin Pierce, of New Hampshire, and inform him that he has been duly elected President of the United States for four years, commencing on the 4th day of March, 1853. Mr. JONES. That resolution is the one usu ally adopted by the two Houses upon such oc casions. It merely provides for the appoint ment of a joint committee to wait upon the President-elect, to inform him of his election. It says nothing as to informing the Vice-Presi dent of his election. The custom, upon exam ination, is found to have been that, when the Vice-President was in the city, or was ex pected to be here by the time of the inaugura tion, the committee would also wait u^on him and inform him of his election. But it has been the universal custom, when the Vice- President elect was not at the seat of Govern ment, for the Senate to adopt a resolution di recting their presiding officer to cause the Vice- President elect to be informed of his election. That is the reason that this resolution does not include him. The question was then taken on the adop tion of the resolution ; and it was decided in the affirmative. Mr. JONES, of Tennessee. I move that the Speaker appoint the committee provided for in that resolution. The SPEAKER. Does not that follow as a matter of course? Mr. CARTER. Certainly it does. The SPEAKER. The attention of the Chair has been called to the resolution just adopted. From its language, the Chair cannot appoint the committee unless directed by the House. Mr. JONES, of Tennessee. I move that the Chair appoint the committee named in the res olution. The question was taken, and the motion was decided in the affirmative. A message was here received from the Sen ate by the hands of Asbury Dickins, its Sec retary, informing the House that the Senate had passed a resolution that a committSe of one member of the Senate be appointed by that body to join a committee of two mem bers of the House of Representatives, to be appointed by the House, to wait upon Franklin Pierce, of New Hampshire, to notify him that he has been duly elected President of the United States for four years, to commence on the 4th day of March, 1853, and that Mr. Hun ter had been appointed such committee on the part of the Senate. Mr. JONES, of Tennessee. I move that the message be taken up and concurred in. The motion was agreed to, and the resolu tion concurred in. Mr. JONES. I move that the Speaker ap point the committee. The SPEAKER. The House has already ordered the committee to be appointed by the Chair. Mr. JONES. Our resolution has not yet gone to the Senate, and it will not be neces sary to send it, as the Senate resolution has been concurred in, and the Speaker can ap point the committee under this Senate resolu tion. The motion of Mr. Jones was agreed to, and the Speaker appointed Messrs. George W. Jones and Harry Hibbard as such committee on the part of the House. 112 EIGHTEENTH PRESIDENTIAL TERM. EIGHTEENTH PRESIDENTIAL TEEM. 1857-1861. JAMES BUCHAXAN, President / JOHN C. BRECKINEIDGE, Vice -President. IN HOUSE OF REPKESENTATIVES. Monday, February 2, 1857. ("Congressional Globe," XXXlVth Cong., 3d Ses sion, p. 638.) A message was received from the Senate by Mr. DICKINS, its Secretary, notifying the House that the Senate had passed a resolution consti tuting a committee of three members, to join such committee as might be appointed by the House of Eepresentatives, to ascertain and re port a mode of examining the votes for Presi dent and Vice-President of the United States, and of notifying the persons elected of their election ; and had appointed Mr. Bigler, Mr. Benjamin, and Mr. Foot, the committee on the part of the Senate. Mr. JONES, of Tennessee. I move that a committee of five be appointed by the Chair, in conformity with the resolution of the Sen ate. The motion was agreed to. IN SENATE. Monday, February 2, 1857. (" Congressional Globe," XXXIVth Cong., 3d Ses sion, p. 543.) Mr. BIGLER. I discover, on looking over the history of presidential elections, that it has been the custom, on the 31st day of January preceding a presidential inauguration, to raise a committee in each branch of Congress for the purpose of examining into the mode of counting and determining the votes for Presi dent. With a view to that purpose, I offer the following resolution : Resolved, That a committee be appointed, to join such committee as may be appointed by the House of Eepresentatives, to ascertain and report a mode of examining the votes for President and Vice-Presi- dent of the United States^ and of notifying the per sons elected of their election. The resolution was considered by unanimous consent, and agreed to. Mr. BIGLER. I suggest that the committee consist of three members. It was so ordered ; and the President pro tempore appointed, on the part of the Senate, as members of the committee, Messrs. Bigler, Benjamin, and Foot. IN HOUSE OF REPEESENTATIVFS. Tuesday, February 3, 1857. ("Congressional Globe," XXXIVth Cong., 3d Ses sion, p. 558.) The SPEAKER appointed Messrs. Jones of Tennessee, Washburn of Maine, Fuller of Pennsylvania, Leiter, and Bocock, a commit tee on the part of the House to cooperate with a like committee on the part of the Sen ate, to ascertain and report a mode of examin ing the votes for President and Vice-President of the United States, and of notifying the per sons elected of their election. The SPEAKER stated the business in order to be the special order, assigning this day for the consideration of business belonging to the District of Columbia. IN SENATE. Wednesday, February 4, 1857. " Gongressional Globe," XXXIVth Cong., 3d Session, p. 568.) Mr. BIGLER, from the joint committee ap pointed by the Senate and House of Repre sentatives, to ascertain and report a mode of examining the votes for President and Vice- President of the United States, and of notify ing the persons elected of their election, re ported the following resolution : Resolved, That the two Houses will assemble in the Chamber of the House of Eepresentatives on Wednesday, the llth instant, at twelve o clock, and the President of the Senate pro tempore shall be the presiding officer ; that one person be appointed a teller on the part of the Senate, and two on the part of the House of Eepresentatives, to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate pro tern- pore, who shall announce the state of the vote and the persons elected, to the two Houses assembled; which shall be deemed a declaration of the persons elected President and Vice-President of the United States, and, together with a list of votes, entered on the Journals of the two Houses. The resolution was considered by unanimous consent, and agreed to. IN HOUSE OF REPRESENTATIVES. Thursday, February 5, 1857. "Congressional Globe," XXXIVth Cong., 8d Session, p. 587.) A message was received from the Senate, by ABBUEY DICKINS, its Secretary, informing the House that the Senate had adopted the follow ing resolution, reported by the joint commit tee appointed by the Senate and House of Representatives to ascertain and report a mode of examining the votes for President and Vice- President of the United States, and of notify ing the persons elected of their election : Resolved, That the two Houses will asssemble in the Chamber of the House of Eepresentatives on Wednesday, the llth instant, at twelve o clock, and the President of the Senate pro tempore shall be the presiding officer ; that one person be appointed a teller on the part of the Senate, and two on the part of the House of Eepresentatives, to make a list ot JAMES BUCHANAN, PRESIDENT. 113 the votes as they shall be declared ; that the result shall be delivered to the President of the Senate pro tempore, who shall announce the state of the vote and the persons elected, to the two Houses assem bled; which shall be deemed a declaration of the persons elected President and Vice-President of the United States, and, together with a list of votes, en tered on the Journals of the two Houses. Mr. JOXES, of Tennessee. I ask that the resolution from the Senate be now considered. It is the report of the joint committee of the two Houses upon this subject, and is in the form prescribed in Jefferson s Manual, and which has been uniformly adhered to hereto fore, I believe. I move that the resolution be agreed to. The resolution was agreed to. Mr. JOJSTES, of Tennessee. I move that the Speaker appoint the tellers provided for in the resolution to be appointed upon the part of the House. The motion was agreed to ; and the Speaker thereupon appointed Messrs. JONES, of Ten nessee, and HOWAED as the tellers on the part of the House. IN SENATE. Thursday, February 5, 1857. ("Congressional Globe," XXXIVth Cong., 3d Ses sion, p. 574.) The PRESIDENT pro tempore appointed Mr. BIGLER a teller on the part of the Senate to count the votes for President and Vice- President of the United States, under the reso lution adopted yesterday. And, subsequently, a message was received from the House of Eepresentatives, by Mr. CULLOM, its Clerk, an nouncing that the House of Eepresentatives concur in the resolution of the Senate respect ing the mode of counting the votes for Presi dent and Vice-President of the United States ; and have appointed Mr. GERGE W. JONES, of Tennessee, and Mr. HOWARD, of Michigan, tellers on the part of the House. IN SENATE. Wednesday, February 11, 1857. ("Congressional Globe," XXXIVth Congress, 3d Session, pp. 614-650.) The following message was received from the House of Representatives by Mr. OCJLLOM, their Clerk : Mr. PRESIDENT: I am directed by the House of Representatives to inform the Senate that the House of Representatives is now ready to receive the Senate for the purpose of counting the votes of the electors of the several States for President and Vice-Presi dent of the United States. The PRESIDENT pro tempore. Pursuant to the concurrent order of the Senate and House of Representatives, the Senate will now proceed to the Hall of the House of Represent atives for the purpose of counting the votes 8 for President and Vice-President of the United States, for the term prescriberl by the Consti tution, to commence on the 4th day of March next. The Senate thereupon proceeded to the Hall of the House of Representatives. At ten minutes past two o clock the Senate returned to their Chamber, and the President pro tempore resumed the chair, and called the Senate to order. Mr. BIGLER. Mr. President, the tellers on the part of the Senate and House of Represent atives to count the presidential votes have in structed me to make a report. Before deliver ing the report to the Secretary to be read, I wish to allude to the difficulty which occurred in convention in reference to the vote of the State of Wisconsin. Mr. SEWARD. Will the honorable Senator allow me to interrupt him? I think he used the word "convention." I think it is not found in the Constitution or any law of the United States ; and, as this is an important proceeding, I should like to guard against any misapprehension by way of precedent. Mr. BIGLER. Then I will say that the two Houses assembled in the Hall of the House of Representatives, which is the form prescribed. I was about remarking, Mr. President, that this difficulty is not entirely new. There have been similar cases ; but they seem to have been an ticipated and provided for in advance. Mr. STUART. I wish to make a suggestion to the Senator of which I think he will see the propriety. It is, that he make such report as he intends to make first, and then make any explanation afterward. Mr. BIGLER. I was about making an ex planation of the peculiar character of the re port. Several SENATORS. Let us hear the report. The Secretary read it, as follows : The tellers on the part of the two Houses report that they have counted the votes of all the States, cast for President and Vice-President of the United States of America, for the constitutional term of four years from the 4th day of March, ] 857, and find that on the first Wednesday in December, 1856, the electors of all the States assembled in their respective States, being the day prescribed by law for the assembling of the electors, except the electors for the State of Wisconsin ; that of those who assembled and cast their votes on the said first Wednesday of Decem ber, 1856, James Buchanan, of the State of Pennsyl vania, received 174 votes for President of the United States ; John C. Fremont, of California, received 109 votes ; and Millard Fillmore received 8 votes for the same office : that for Vice-President of the Unit ed States, John C. Breckinridge, of Kentucky, re ceived 174 votes; William L. Dayton, of New Jer sey, received 109 votes ; and Andrew J. Donelson, of Tennessee, received 8 votes : that from the re port of the electors of the State of Wisconsin, it ap pears that the electors for that State assembled in Madison, the capital of that State, on the 4th of De cember, 1856, the day after the day prescribed for the meeting of the electors for President and Vice- President of the United States, and so assembled on that day did cast the electoral votes of that State, five for John C. Fremont, of California, for Presi- 114 EIGHTEENTH PRESIDENTIAL TERM. dent, and five for William L. Dayton, of New Jer sey, for Vice-President of the United States, WILLIAM BIGLER, Teller on the part of the Senate. GEORGE W. JONES, of Tennessee, WILLIAM A. HOWARD, of Michigan, Tellers on the part of the House of Representatives. Mr. HUNTER. The Senator from Pennsyl vania will allow me to make a suggestion. This whole matter is new ; no difficulty of this sort ever occurred before when the two Houses were sitting together. Heretofore similar diffi culties have been provided for, and provided for by the committee proposing a resolution simply declaring that, no matter how the vote of the disputed State was counted, it should not affect the general result. It seems to me, and I suggest it for the consideration of the teller in regard to the action which he may propose, that the best way would be for the Senate to propose to the House of Representa tives that the committee which has been ap pointed on this subject should confer in regard to the report they have made. I have no doubt they will agree to make some such re port as was made in the case of Michigan and Missouri ; and when the two committees have agreed that that shall be made, let us go back in joint convention and settle it as it was set tled in the case of Michigan and Missouri. I move, then, that the committee which has been heretofore appointed by the Chair on this subject I forget its title be instructed to confer with the same committee on the part of the House of Representatives in regard to the report they shall make. Mr. SEWARD. And report to the Senate? Mr. HUNTER. Yes, sir. Mr. SEWARD. I second that motion. The PRESIDENT pro tempore. The Chair will state that, four years ago, upon a like occasion, it appears, from the Journal of the Senate, that the chairman of the committee appointed jointly with that of the House of Representatives to prescribe the mode of count ing the votes, etc., made a report to the Sen ate after the votes had been counted, so that the functions of the committee are presumed to be still continued. The Chair will further state to the Senate, as the result of the action in the Hall of the House of Representatives in counting the votes, that the duty was devolved upon the presiding officer there, by the concurrent order of the two Houses, to declare the result of the vote as delivered to him by the tellers. That dec laration did not involve, in the opinion of the Chair, the validity or the invalidity of the vote of the State of Wisconsin. The declaration made by the Chair in the presence of the two Houses as to the gentleman who had been elected President was written down, and is in these words: "That James Buchanan, of the State of Pennsylvania, having the greatest num ber of votes for President, and that number being a majority of the whole number of elec tors, has been duly elected." Whether the vote of the State of Wisconsin be included or not, the declaration made by the presiding officer, that Mr. Buchanan had a majority of the votes, and that that majority was a majority of the whole number of the electoral votes, was strictly conformable to the fact. Mr. NOURSE. I wish to suggest to the gentleman from Virginia a difficulty, in my mind, to see if he can obviate it. This is a point which becomes important when the vote in question is going to decide the result, but until that occasion comes it is unimportant. It is important now as a precedent, because such a case as that may occur, and then it would be vastly important. Now, if the con vention, so to call it, of the two Houses is not to decide whether the vote of a certain State is to be counted or not, who is to decide it ? It must be decided by somebody ; and if the two Houses separate and do not agree, what is to be the result, and what is to come of it ? If the convention assembled have a right to settle the question they can settle it undoubtedly ; but, if it depends on the concurrent action of the two Houses, why may not a result be de feated altogether ? Mr. BUTLER. I feel a little concerned about this question, I confess, as one of those who think the States ought to maintain their relative influence under the Constitution as States, and the Representatives as representa tives. Now, sir, 1 dispute the right, out and out, of ascertaining who is elected President, and who is not elected President, except by the rule of addition. Whether the return from Wisconsin forms a part of the vote or not, I want to know; because if this circumstance had happened to fall on New York or Penn sylvania, there might have been a different re sult. Mind I wish to be as emphatic as I can on this subject if this convention, as it is called, in which the Senate is a part only, can assume the jurisdiction of saying how votes shall be counted (and that is what they have assumed to do in some measure), I presume they can make a President of the United Statea without an election, by simply saying what votes shall be counted, and what not counted ; and the Presidency of the United States would be virtually committed to the numerical strength of the House of Representatives, with out what I consider the controlling power of the Representatives of the States. That is my opinion. I do not say it in any other spirit than an abstract one. I have no feeling on this subject, for it makes no difference in the result, and it is fortunate that it is so. But I shall insist upon it, in adding up the votes, that you shall say and I differ from the Chair in that respect that Mr. Fremont received such a number and no more ; and you shall say that Mr. Buchanan received such a number and no more, and no less. That is the mode of ascer taining who has the greatest number, and what are the relative numbers of the two. I JAMES BUCHANAN, PRESIDENT. 115 never will consent, Mr. President, that this Wisconsin vote shall be counted. Mr. SEWARD. Will the honorable Ssna- tor from South Carolina allow me to interrupt him for one moment? Mr. BUTLER. Certainly. Mr. SEWARD. I barely wish to inquire of him, and of Senators generally, whether it will not be thought advisable that the motion of the honorable Senator from Virginia, which is intended to bring this matter to a close, shall be passed which I believe does not involve the point now in debate and then we may have time to discuss the question. Mr. BUTLER. I do not wish to debate it; but I am not going to let any question of this kind pass by because it is considered necessary to economize time. Mr. SE WARD. Certainly not ; but I sug gest that we adopt this motion, so as to bring the matter to a close. Mr. BUTLER. I have not concluded, but I yield to the suggestion of the Senator from New York. I believe it is made in sincerity, and perhaps it is rather a wise suggestion than otherwise, to let the vote be taken on the mo tion of the Senator from Virginia. I do not, however, mean to give up, on any notion of economizing time, or anything of that kind, my right to express my voice on a great cardinal question affecting the organization of this Gov ernment. Mr. STUART. It is to the question of the motion to raise this committee that I ask the attention of the Senate for a few minutes. I think, and I shall submit the reason why I think so, the question should not be thus con sidered. The Constitution of the United States has been read several times to-day, and is un doubtedly familiar to every gentleman present. I call the attention of the Senate to a single clause of the law made in pursuance of it, and desire to submit my views against this propo sition. The fifth section of the law of 1792 provides : u 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, snail 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 Constitu tion." Now, sir, I submit that, in obedience to the Constitution and law of the United States, the two Houses met together not as a convention, for no such body is known to the Constitution or the law of the United States for the pur pose of having in their presence the votes which had been cast by the electors for Presi dent and Vice-President counted, and the re sult, in the language of the law, ascertained and declared. Those votes were counted ; the Pre siding Officer of the Senate ascertained the count, and declared the result. That is the end of the subject. The reason why I am against this proposi tion is this : precedents are dangerous things very dangerous things. I object to going on now with somewhat of a supposititious case, and taking a procedure, oa the part of Con gress, that shall stand as a precedent here after. It is quite easy, and I submit to the consideration of Senators that it is some what indispensable, that the Congress of the United States should further declare, by law, that electoral votes not cast on the day re quired by law shall not be counted. It is competent for Congress to do that. It is per fectly competent for Congress, who have de clared that the electors shall meet in their re spective States on the first Monday in Decem ber to cast their votes, to follow it up with the declaration that, unless they be then cast, those votes shall not be counted. But, Mr. President, when you leave the clear functions of Congress under the Constitution of the United States, and depart from their dis charge in the manner prescribed in the Con stitution, the Senate, as a separate body, repre senting States an I voting by States, and un dertake to say that a question raised in the two Houses when they are convened for the pur pose of hearing the result, may be decided by a vote of the two together, or that the body thus assembled can decide anything, you raise the question, if they can, how can they decide it? The Constitution is silent as to how those men thus assembled shall vote. The law of the United States is silent as to IIOAV they shall vote. The weight of the Senate representing States is swallowed up by the weight of the House of Representatives representing popu lation. It seems to me that what was said in the Hall of the House of Representatives in re spect to the tellers signing the statement is entirely superfluous. As a matter of form, it may be very well, but it is a matter of form without substance. It is not necessary that they should make any formal statement at all. There is nothing in the law, nothing in the Constitution, that requires it. When the tell ers, by their organ, reported to the presiding officer of that body, being the President of the Senate, that they had counted the votes, and that this was the result, their duties were ended ; they had no further power, and the presiding officer was right in announcing the result. Then the question returns which will be come an interesting one at some time or other, perhaps whether the vote of the State of Wisconsin shall be counted. Upon the pres ent law, made in obedience to the Constitu tion, one of two constructions it seems to me is inevitable. The Constitution provides how the electoral votes shall be received, to whom they shall be delivered, and how they shall be kept. The same officer to whom they are delivered, the President of the Senate, retains possession of them, and opens them in the 116 EIGHTEENTH PRESIDENTIAL TERM. presence of the two Houses. The Constitution declares that he shall open them in the pres ence of the two Houses. The law follows up the language of the Constitution, declaring that they shall be counted and the result de clared. I submit that whenever this matter is exam ined and I submit it now only as a question having some relation to this subject one of two things will be ascertained : either the Pre siding Officer is bound to count all the votes that are certified to him by the State authori ties, or else the Presiding Officer, under the present law, and he alone, has a right to de cide whether he will count or reject them. In my humble judgment that is the construction of the Constitution and law as they now stand. In either event, it will be conceded, I think, by every Senator, that it is a dangerous power. It is dangerous to leave it to the certifying offi cers or the electors themselves, who make the certificates on the part of the States ; it is dan gerous to leave it in the hands of the Presiding Officer of the Senate ; but in one or the other it rests ; and I submit that to undertake to say that it rests in the two Houses assembled to gether in mass to decide such a question, would fall but little short of a revolution. Therefore, believing that the matter has been ended, so far as the duties devolved on Con gress by the Constitution and laws of the Unit ed States are concerned, I express the hope that no further action will be taken whicli may stand in the way hereafter as a precedent, un less it be action in the shape of additional leg islation to detine precisely what shall be done in a case of this kind. Mr. TOOMBS. Mr. President, I protested against the action of the Presiding Officer of this body in the other House ; because, as I understood it, the Presiding Officer counted the vote of Wisconsin, announced it in his place, and assumed and exercised the right of declaring that A had received so many votes, and B so many, and of announcing who were elected President and Vice-President of the United States. These are the facts. I under stood distinctly this Presiding Officer to say that James Buchanan had 174 votes, John C. Fremont 114, and Millard Fillmore 8 votes; and then he made the announcement read a few minutes ago by the Chair. The Chair supposed, under the clause of the Constitution which he read, that he and the tellers had the right to determine what were legal votes. That I denied ; that I protested against. The question is not whether a joint conven tion of the two bodies, as it is termed, can de termine it. They cannot, in my judgment; but that the presiding officer and the tellers cannot, I am well assured. When we are called upon to see these votes counted, it becomes our first duty to know what are the votes to be counted. Suppose there had been presented ten votes from Nicaragua, and the Chair and the three tellers had said, " These shall be counted" suppose, as might often happen, there was a double return from some State, as in the New Jersey case, shall the President of the United States be made by the presiding of ficer and the tellers? Is not that the result? No one can be heard there, it appears, but the presiding officer and the tellers. I deny that. I say it is not law. When you count the votes, it belongs to the Senate and House of Repre sentatives of the United States to determine what are the votes. I denied then, and I deny now, the authority of the presiding officer of this body, with two tellers of the other House and one of this, to settle that question. I en tered my protest there, and I renew it here. It is a question to be determined by Congress. The Constitution has made these two bodies judges ; and the idea of the Senator from Michigan, that you are to declare the result which, according to law, makes the President, and try the question afterward, is like trying a man alter he is executed. Mr. STUART. I beg the Senator s pardon that was not my proposition. Mr. TOOMBS. Very well. I state mine, which opposes all other ide#s ; and it is, that it is our duty to count the votes, and to decide what are votes. This is a necessary duty de volved on the Senate and the House of Repre sentatives. They must do it in their separate capacities, I think ; but they alone can deter mine it, and not the President of the Senate and the tellers of the two Houses. That is the point I made there, and I renew it here. It is a high privilege, a dangerous one to the liber ties and Constitution of this country not one conferred on these persons by the Constitution or the law. The circumstances of the case ne cessarily involve the right and the duty of the two branches of the Legislature, the Senate and the House of Representatives, to determine what are the votes to be counted ; and the Pres ident of the Senate can only announce those to be votes which are thus decided by compe tent authority ; and any attempt on the part of the presiding officer to declare what votes he may deem to be legal, or to decide what are the votes, no matter whether it affects the re sult or not, or even to say the question shall not be decided, however highly I respect the Chair, I submit is not a power given to the pre siding officer by the Constitution and the laws. The PRESIDENT pro temper e. The Pre siding Officer desires to say as he thought he had distinctly stated while presiding over the two Houses in the Chamber of the House of Representatives that the conception of the Senator from Georgia is entirely erroneous, in the judgment of the Presiding Officer. The Presiding Officer did not undertake to decide whether the vote of the State of Wisconsin was a good vote or a bad vote. The Presiding Officer, upon that matter, did no more than recite the fact which was reported to him by the tellers, pursuant to the concurrent order of the two Houses. The Presiding Officer did JAMES BUCHANAN, PRESIDENT. 117 no more than announce that the vote of Wis consin had been given to John 0. Fremont. Whether it was a good vote or a bad vote, he did not undertake to decide. The Presiding Officer announced further, that James Bu chanan had a majority of all the votes given, and that such majority was a majority of the whole electoral vote ; and he declared, as his duty required him to do, that James Buchanan was thereby elected President of the United States. If the result could have been affected by the collateral fact reported by the tellers, that the vote of the State of Wisconsin had been given on a day different from that pre scribed by law, the Presiding Officer would have considered it his duty to have reported, as the state of the vote, that whether a major ity of the whole electoral votes had been given to James Buchanan would depend on canvass ing the votes a duty that he did not assume. But, inasmuch as it appeared clearly, from the state of the vote, that whether the vote of the State of Wisconsin was counted or not, the re sult of the election remained unaffected, he an nounced, as he considered his duty required him to announce, that James Buchanan had a majority of all the votes cast, and that such majority was a majority of the whole number of the electoral votes. He disclaims having as sumed on himself any authority to determine whether that vote or any other vote was a good or a bad vote. Mr. BIGLER. Mr. President- Mr. TOO MBS. Did not the Chair count it? That involves the question. Mr. BUTLER. I hope my friend from Geor gia will allow me to say a word by way of ex planation. The PRESIDENT pro tempore. The Sena tor from Pennsylvania is entitled to the floor. Mr. BIGLER. I will give way. Mr. BUTLER. I think the conclusion of the Chair is right, that the mode in which the vote is to be announced to the country is the ordinary mode : that A B received forty- eight votes or fifty votes, and D sixty votes ; and these being a majority of so many, C D has been elected. That is the common way of do ing it. The Chair is entirely right in its state ment, and I do not undertake to question the decision, as far as regards the result. I should, however, question very much the propriety of any course that would not show to the coun try, and to these two bodies both responsible bodies the Senate and the House of Repre- sentatives, the exact result. I think the tellers should have reported exactly as the Secretary here reports, upon counting out the votes, that A B received so many, D so many, and the result thereof is that D is elected. That is the common course of procedure in every par liamentary body. But I hope we shall pro ceed with the motion of the Senator from Vir- inia, which, however, is objected to by the enator from Michigan, who takes the ground that the Chair can announce of its own mere will and motion, without any one else know ing it, who is elected. I do not agree to that. Mr. STUART. That is not what I said. Mr. BUTLER. What did you say ? Mr. STUART. What I undertook to say and I thought I rendered myself tolerably clear was that, as the Constitution and law of the United States now stand, the duty to be per formed to-day is a mere counting of the votes certified, and that one of two things is the construction either that the Presiding Officer must count all the votes certified to him, or, if they have not been given according to law, in his opinion, he objects to them. As the law now stands, the two Houses thus assem bled have nothing to do with the question at all. The Constitution has devolved that duty on the Presiding Officer of the Senate to count the votes in the presence of the two Houses. Mr. BUTLER. I have great respect for the President of the Senate, and I would trust him upon any question of controversy where we had to make a Chief Magistrate to hoist the flag under which we were to march ; but I will trust no man to determine for me who shall be President of the United States on his arbitrary decision. Mr. STUART. That is precisely what I said. Mr. BUTLER. Let him add up the votes and announce the result to me. I am one of the judges; or why do you call me there? I would trust you, sir; but I tell the Senator from Michigan, and I tell all others who choose to delegate to any one man such power in a matter of this kind, where there is dispute, I would trust it to no man. Suppose there were two certificates from one State, is he to be the judge? I assure you, sir, it is a power which, in time of temptation and God knows when the time of temptation may not arrive for some one to desire to be a President to rule this country I would not like to trust to many people. Mr. STUART. That is precisely what I said that it was a dangerous power to be in trusted to the Presiding Officer in cither event. I beg the Senator s pardon ; he must not un dertake to assume from what I said to the Senate, that I was submitting my views of what ought to be* the case very far from it. I was submitting rny views of what the law is ; and I said that I deemed it imperative on Congress, in the mode pointed out by the Con stitution, by legislation, to determine definite ly what should be done in this case. But, sir, the Constitution has devolved upon the Pre siding Officer the duty of receiving these votes, of keeping them, of opening them in the pres ence of the two Houses, of counting them, and declaring the result. What votes he shall count it is entirely competent for Congress by law to declare. Mr. BUTLER. I go much further than that, sir. I do not say that it requires previous legislation. I say we have jurisdiction at the 118 EIGHTEENTH PRESIDENTIAL TERM. time, without a previous law to regulate a matter of this kind. Can a President be made against the whole tenor of the Constitution, and against what may be the wishes of the different States, by the Presiding Officer of the Senate, counting what votes he may choose ? What is the use of Mr. Dickins, our worthy Secretary, reading the thirteen votes of Mas sachusetts, the thirty-five of New York, and so on ; and what is the use of putting them down, unless I can verify the facts as one of the judges? As I understand this subject, I assure you it is one of those things upon which I would stand here a long time before yielding the ninth part of a hair. The Senate of the United States is called into the other House as a corporate body an imposing corporate body, to be a witness to the election of the Chief Magistrate of this country, and to see that the votes are counted fairly ; and, sir, if the votes are not counted fairly, I protest against it. Mr. BIGLER obtained the floor. Mr. ADAMS. Allow me to make an ex planation as to a matter of fact. Mr. BIGLER. I have only a few words to say ; but I yield the floor. Mr. ADAMS. It is only in relation to a matter of fact which seems to have been over looked that I desire to call attention. I do not understand that the President of the Sen ate determined or counted the vote from Wis consin. I wish to call the attention of Sena tors to the report of the joint committee. The committee reported that on the day of election all the States gave their votes accord ing to the facts as stated, with the exception of Wisconsin, and that on a subsequent day Wisconsin voted for Mr. Fremont. That fact was reported by the committee; they could not have done otherwise. The Presiding Offi cer announced the final result, but did not either directly or indirectly intimate that he had counted that vote. That fact I wished to have brought to the notice of the Senate. Mr. BIGLER. The remarks of the Senator from Mississippi have to some extent supplied what I intended to say. I have felt unwilling to allow the remarks of the Senator from Geor gia to go to the country without some expla nation on the part of the tellers. His remarks are very well calculated to make the impres sion that the tellers in this case had attempted some usurpation that they had attempted to go out of the ordinary performance of their duty. Those tellers regarded their duty as sheerly ministerial not discretionary at all. What duty had the tellers to perform? To examine the returns and report the facts nothing more nor less. To have done less than that would have been to disregard duty. They could not know in advance what the facts would be on the face of the papers. We reported the facts as they appeared on the face of the returns ; and they are that, on the day prescribed by law, all the votes were cast, except as to the State of Wisconsin, and that vote was cast on the 4th instead of on the 8d of December. The tellers have simply reported the facts. They have stated those facts in the report which they make here. The Senator from Michigan will remember (for I believe he took the position, that after the result was an nounced the certificate of the tellers could not set forth the facts) when the returns were read particular attention was called to this difficulty and discrepancy Mr. STUART. The Senator is mistaken. I took the ground that there was no law making a certificate of the tellers necessary at all, and that in point of substance it was of no conse quence whether they ever made any. That was my position. Mr. BIGLER. It is a report call it a cer tificate or not. In cases similar, Mr. Presi dent, to which I was about to refer when we first came into the Chamber, one occurring in Michigan and another in Missouri, the difficulty had been anticipated, and the report of the tellers was accordingly. The joint resolution of the two Houses adopted prior to counting the vote in those cases provided for the diffi culty. Here it was not anticipated ; no pro vision was made for it; and the tellers de cided in their report simply to state the facts as they are. Now, I ask my friend from Georgia if there is any usurpation in that? W T hat else could we do? Wherein have the tellers at tempted to usurp power, or to state anything else than simply the facts as they appear on the face of the papers? Mr. WILSON. Will the Senator from Penn sylvania allow me to ask him a question ? Mr. BIGLER. Certainly. Mr. WILSON. I should like to ask the Sen ator how it happens that, after the tellers had counted the votes, and had made the announce ment to the convention that Mr. Fremont re ceived one hundred and fourteen votes, in cluding the vote of Wisconsin, and the Presi dent of the convention read their precise re port, using their exact language, these tellers, after having thus discharged their duty, and what seems to me their whole duty, make up and bring in another report here? Mr. BIGLER. I made the whole explana tion a moment ago, and it was this : that when the returns of the State of Wisconsin were read, special attention was called to them ; the addi tions of the votes were announced, of course, just as they stood after we had added them all up; but is that a reason why the fact should not be stated on the report, that as to the State of Wisconsin the vote was not cast on the day prescribed by law ? I have explained why this was done. If it had been anticipated, the joint resolution of the two Houses would have provided for it, and the tellers would have had no occasion to refer to it in the manner they have done. Mr. HUNTER. Mr. President, I submitted this motion, and I should like to say a word in JAMES BUCHANAN, PRESIDENT. 119 regard to it. My object was to enable the two Houses to do, after the difficulty had occurred, what had been done on two former occasions to avoid a difficulty of precisely the same na ture. When heretofore there was a difficulty in regard to counting the vote of the State of Michigan, and another in regard to the vote of the State of Missouri, the joint committees which had been appointed by the two Houses to regulate the matter proposed a report, by which it should be declared that an election had been accomplished, whether they counted the votes of those States or not. Now the same state of facts exists here. We have no means of settling this dispute between the two Houses as to whether the vote of Wisconsin ought to be counted or not, and happily for the country it is not material for us to settle it. I think difficulties of this kind are matters which should be remedied by legislation to be applied to future cases. Fortunately, we are enabled to settle this election without attempt ing to arrive at any conclusion on this point in a joint meeting of the two Houses, or by an interchange of resolutions between them. I propose, therefore, that we shall settle this matter as similar matters have been settled be fore, and that we shall instruct the joint com mittee of the Senate, heretofore appointed on this subject, to confer with the joint committee of the House in regard to the report which they are to make on this question. But the Senator from Michigan thinks this is unnecessary, because, in his opinion, the action of the President of the Senate in the joint meeting of the two Houses has settled and concluded the whole question. That may be his opinion, but I apprehend it will not be the opinion of the House of Representatives, nor do I think it will be the opinion of a ma jority of the Senate. It is important so to act as to satisfy the House of Representatives of the propriety of the mode of action, and to secure their concurrence in it. I believe they will agree tfo settle this matter as it has here tofore been settled on two occasions, and then some other occasion in the next four years, if they should think proper to do so, to resort to legislation for the purpose of remedying the difficulty. Nor do I understand that the Chair claimed to have the right to preclude the two Houses by any declaration of the facts. It cannot be so, because the President of the Senate and of every parliamentary body is only the organ of that body, subject to its control, subject to its direction; and he could not therefore assume to act, and did not, as I understand the Chair to have said, independently of the House which he represented. But all these are ques tions which it is not now necessary to raise. What we desire to do is to settle this difficulty to settle it to the satisfaction of the two Houses, to the quiet of the country, and to dispose of it to-day. What will enable us to do this so readily as a resort to the very plan which has accomplished that object on two oc casions heretofore? I move, therefore, that the joint committee of the Senate be in structed to confer with the joint committee of the House on this subject. Mr. DOUGLAS. On looking into the law and the Constitution since we have returned to our Chamber, I have arrived at the con clusion that all has been done that the law re quires tD be done to make the action complete. We assembled in the Hall of the House of Representatives in pursuance of the law. The law has been complied with in all things. The fact that the tellers have not made a report is of no consequence ; first, for the reason that the law does not provide for tellers. The tell ers appeared in this transaction only in pur suance of the joint resolution of the two Houses, and those tellers have done all that the joint resolution required. It was in these words : " That one person be appointed teller on the part of the Senate, and two on the part of the House of Kepresentatives, to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate pro tempore, who shall announce the state of the vote and the persons elect ed to the two Houses assembled as aforesaid, which shall be deemed a declaration of the persons elect ed President and Vice-President of the United States, and, together with the list of the votes, be entered on the Journals of the two Houses." The tellers did deliver to the Presiding Of ficer the result of the count, as provided in this resolution. They read it first to the. two Houses, and then formally delivered it to the Presiding Officer. The Presiding Officer read over that list distinctly, and thereupon an nounced that James Buchanan was duly elected President of the United States, and John 0. Breckinridge duly elected Vice-President. Hence, so far as the legality of the election is concerned, so far as any compliance or any non-compliance with the law of 1792 is con cerned, it has been complied with ; and there is an end of the controversy, so far as any duties are imposed upon us to be performed this day under the Constitution and law. Then, sir, there is one point of irregularity, in my opinion, to which it is well for us to turn our attention on this occasion not be cause anything more is necessary to be done at this time with regard to the late election, but with reference to preventing confusion in the future. In my opinion, Wisconsin ought not to have been entered on the tellers list, for this simple reason: that the two Houses assembled to hear announced the votes of all the States of this Union which assembled, by their electors, on the 3d day of December last, and cast their votes for President and Vice-President of the United States. You had no right to receive any vote, or any re turn, except of an election on the 3d day of December last, for that was the day appointed by law. I submit that, when twelve o clock at night of the 3d day of December last ar- 120 EIGHTEENTH PRESIDENTIAL TERM. rived, there were no presidential electors in "Wisconsin. The fact appeared on the face of the certificate that they assembled on the 4th day of December, at three o clock in the afternoon. Those electors had been chosen by a law which continued them in office to the night of the 3d of December, when their office as electors expired. These individuals were not electors of the State of Wisconsin on the 4th day of December. They had no more au thority to cast the vote of Wisconsin on that day than any other five individuals in that State had, or than had the five individuals who were electors four years before. They were out of office ; and they had no power to cast the vote of the State. I think it was an irregularity to place the State of Wisconsin on the list ; but, inasmuch as it has been put there with a statement of the fact that it was cast on the day afterward, inasmuch as it has been duly announced in the report by the tellers and the Presiding Officer that James Buchanan received a majority of all the votes, and as that majority was a majority of all the electors chosen, I think the Constitution and law have been complied with. The only ir regularity is that the name of Wisconsin is un necessarily on the list. In this state of the case, I am inclined to ar rive at the conclusion which my friend from Virginia suggests, that we had better let this committee make a report in accordance with the precedents that have been alluded to in the Michigan and Missouri cases. It is imma terial whether Wisconsin was counted or not ; the result is the same, and consequently the duty has been complied with. I think we have had sufficient to warn us of the necessity of legislation with reference to the future; but our duty for this day has been complied with without any further steps being taken ; but, as a matter of form, I will close it up in the man ner indicated by the Senator from Virginia. Mr. REID. Mr. President, I suppose every member of the Senate must be perfectly sat isfied that the course pursued by the President of the Senate was from the purest and highest consideration. I understood the whole diffi culty to occur while the Senate was in the Representatives Hall, upon this single, isolated point : it was apprehended that at some future time the question involved in the vote of Wis consin to-day might determine who should be President of the United States ; and the pro test made there by Senators and Representa tives was merely for the purpose of declaring, as their opinion, that the settling of the ques tion as to the validity of the votes cast for President and Vice-President did not rest alone with the President of the Senate of the United States. I did not understand the President of .the Senate to settle that the vote of Wisconsin was a valid vote that question was left out entirely but that the election was made whether that vote were legal or void. The difficulty arose upon the ground which I have stated, that if our action to-day was to be regarded as a precedent hereafter, the count of the President of the Senate must be consid ered as conclusive. The Constitution requires that " the President of the Senate shall, in presence of the Senate and House of Repre sentatives, open all the certificates, and the votes shall then be counted." The President of the Senate does not open the votes in the presence of the two Houses in their individual characters ; but the two Houses are assembled in their character as a Senate and House of Representatives under the Constitution ; and I infer that the counting of those votes is to be directed and controlled by the two Houses. It has often happened that the Vice-President is a candidate for reelection ; and we can scarcely suppose that the Constitution intended to confer on him the power of declaring him self elected by the votes he may count, without an appeal from his decision. The framers of the Constitution seemed to contemplate, if there was any power given to revise at all a contested election of President, that it should be jointly in the Senate and House of Repre sentatives. It is true, the Constitution of the United States confers on the House of Repre sentatives alone the power to make the elec tion in the event of none having been made by the electors ; but it does not confer on the House of Representatives alone the power of settling a contested election for President. Nor, in my opinion, does it confer on the Presi dent of the Senate alone the right of declaring that vote when either of the two Houses may dissent. Then I think the course that should be pur sued in the practice of the two Houses is this : When they are assembled together, it is the duty of the President of the Senate to open the votes; but whenever it shall be suggest ed by any member of either branch of Con gress that the returns are informal, or that they require to be investigated, the two Houses should retire in their separate capacity to de termine such questions for themselves, as we have done to-day. That the vote of Wisconsin is illegal, and ought not to be counted, is most clear: "The Congress may determine the time of choosing the electors, and the day on which they shall give their votes ; which day shall be the same throughout the United States." This is a con stitutional requirement that the votes shall be given on the same day throughout all the United States. But this question is not mate rial here. The only apprehension is, that our action now may be regarded hereafter as a precedent in settling this point. I think it is perfectly right for the Senate, if it chooses, to waive the decision of the question in regard to the legality of the vote, because it is not mate rial here ; but the point being suggested by a member of either branch of Congress, I think it is the duty of the two Houses to investigate the question. I should be perfectly willing JAMES BUCHANAN, PRESIDENT. 121 and perhaps it may be the better practice al ways to pursue to let the determination of such questions alone until a time shall arrive making it necessary to decide them. I think it would be better to postpone this question until the time shall arrive when it is indispen sably necessary that it should be settled. Mr. 8 E WARD. I do not object to this de bate because I am desirous to have this resolu tion passed and the question settled; but in asmuch as I find the opinion is quite generally expressed here, and I have heard it expressed by members of the House of Representatives also, that the vote of Wisconsin could not be properly counted under the circumstances, I rise to express my dissent from that proposi tion not to declare the opinion that it ought to be counted, because I have not made up my mind to that; but certainly I have not made up my mind to the other conclusion. I wish to congratulate Congress, and the Senate, and the country, that it is unnecessary to pass on that question now. Sir, it would seem to be a very different case if the vote which was pro posed to be rejected or was questioned was a vote which determined the election of a Presi dent and a Vice-President of the United States, and it would then be found -to be a very dan gerous thing for either the presiding officer, or the Senate, or the House of Representatives, or botli Houses concurring, to undertake to decide that a presidential election was deter mined in one way, when it involved the exclu sion of the votes of one of the States, which exclusion was the result of an accidental delay produced by the interposition of Providence preventing the vote being cast at the prescribed time. But, sir, I passed it by, rejoicing that it is not necessary to decide it; and now I come to the present state of the case. I agree with the honorable Senator from Michigan [Mr. STUABT], and I agree with the honorable Senator from Illinois [Mr. DOUGLAS], that all has been done which the Constitution and laws require to be done to determine who has been elected President and Vice-President of the United States ; and I have a strong be lief that James Buchanan will be the Presi dent for the next four years ; and he will be, whether we do anything more than we have already done, or whether we stop where we are, or undertake to undo what we have done. But while that is my opinion, and while that is their opinion, it is known to us all that a doubt arises a misunderstanding exists in both Houses of Congress, whether the Presi dent of the Senate, acting, as I hold, as the organ of the Senate, has not passed upon the question, and counted the votes from the State of Wisconsin, and whether that may not be drawn into a precedent hereafter. I am one of that number who think the President has not counted them, and who are entirely satis fied with the manner in which he has per formed and discharged this duty. I think it was left entirely open; but it is due to those who dissent who think that the record of our action may be misunderstood unless it shall be made more accurate, that the record shall be made to correspond to the fact, and shall show that in the proceedings, when the two Houses were assembled together, the declaration made by the President in the name and as the organ of the two Houses of Congress, that James Buchanan was elected President of the United States, was made upon the ground that, with out counting or rejecting, or even if you were to count the votes of the State of Wiscon sin, the result would be unchanged, and there fore the question of counting those votes was avoided. That is due to the House of Repre sentatives, which House we left under a high state of excitement, arising out of the fact that the President of the Senate, an officer foreign to them, seemed to them to have undertaken to decide that question against the views, if not a majority, at least of a portion of the House. I have no doubt that all the House of Rep resentatives desire, and all any portion of the members of the Senate desire, is that the rec ord shall be made to correspond to the fact, and to show that this declaration was made, this result was thus attained without passing upon the votes of Wisconsin one way or the other, and without settling the question, or attempting to settle the question, for present or future effect, whether a vote given under such circumstances ought ever to be count ed. Insomuch as the danger in our country of revolution must be seen to arise from the possibility that injustice may occur in cases where the law has not provided, with suffi cient care, for ascertaining the will of the people, I hope this resolution will not pass without the Judiciary Committee, or some other competent committee of this House, tak ing up the subject and providing for just such a contingency. Mr. COLLAMER, Mr. President, I should be willing to vote for the appointment of a committee of conference, if I could perceive that there was any question for them to settle or confer about, or any question now pending which ought to be settled between the two Houses. I have not been able, however, to perceive that there is any such question. It is true, I do not altogether concur in the con struction which gentlemen on the other side of the Chamber have given to the Constitution and law, nor in the course taken by the tellers. In my estimation, the moment the tellers came to a certificate irregular on its face, stating that the votes were cast on a day differing from that prescribed by law, they should have stopped there, and announced the fact to the Chair, and the Chair should immediately have stated that condition of things, and the two Houses should have separated to make provi sion in relation to the manner of settling it. In my opinion, further, the Chair, immediate- ly on being informed of that fact at any stage 122 EIGHTEENTH PRESIDENTIAL TERM. of the proceedings, should have stated it to the body, and then the two Houses should have separated and taken proceedings in rela tion to the matter. In these remarks, I am proceeding entirely on the ground that there was no previous prep aration as to the manner of settling these ques tions, which, I think, should have been pro vided for by law long ago ; or, if not provided for by law, everything reasonably to be antici pated should have been provided for in the resolutions making arrangements for the meet ing of the two Houses. Neither by law, nor by the previous resolutions of the two Houses, had any such arrangements been made. Now, what is the condition of things ? Mr. BIGLER. The Senator from Vermont will allow me to explain for the purpose of being accurate. I have by my side the teller who made the report [Mr. GEOKGE TV. JONES, of Tennessee]. TV hen the returns from the State of Wisconsin were opened and read, the teller reading those returns stated distinctly that the vote of that State was cast on the 4th of December instead of the 3d, the day pre scribed by law. Now, will the Senator from Vermont say that the tellers had any discretion on this subject? Could they have refused to read the certificate ? When the tellers an nounced the result of the addition, they gave the vote of Mr. Fremont as one hundred and fourteen, including Wisconsin, in order that the point might be distinctly presented to the body. Mr. COLLAMER. The gentleman s version of the transaction does not alter the case, in my mind. My idea is, that when they came across a certificate which was irregular appar ently on its face, they should have announced that fact to the Chair. Mr. BIGLER. I have just asserted that they did announce that fact. Mr. COLLAMER. That is not material to my point. I say the Chair should have im mediately announced it to the body, and tlje body should have separated, each House going to its respective Chamber, to provide for such a contingency, and prescribe a mode of arrang ing it. That is my view of what was the proper course, instead of going through the count and seeing whether it would not turn out right without the vote of this State. They did, however, go on and finish the count. Very well. Then, when the whole count was announced, it was stated at the same time what was the fact in regard to the Wisconsin certificate. That was a proper announcement. The result having been reduced to writing, and read in that form, was delivered to the Chair, and the presiding officer read it in the same way ; not reading in it, however, what the teller making the announcement had stated, that the certificate from Wisconsin was irregular. That fact did not constitute any part of the written paper which the Chair had, and therefore he did not announce it ; but the body understood it from the announcement of the teller. If the Chair, on that occasion, de cided any question which is material to the re sult, it is well enough to have this committee for the purpose of arranging it. But did the Chair decide anything about the Wisconsin vote? I insist that it did not. The Chair only decided the ultimate result that James Buchanan was elected President by the votes of a majority of the electors. If it was mate rial to that decision that the Wisconsin votes should be passed upon, then the Chair did pass upon it ; but if that announcement was the statement of a result which would have been the same independently of that vote, then he did not pass upon it. He certainly did not pass upon it in terms. Mr. PUGH. I think the Senator is mis taken. I think the presiding officer said there were one hundred and fourteen votes for Mr. Fremont, and took no notice of the fact re ported by the tellers, that the vote of Wiscon sin was contested. My impression is, that the President of the Senate did not advert to that fact at all. Mr. COLLAMER. The annoucement of the tellers was, that Mr. Fremont received one hundred and fourteen votes, including the vote of Wisconsin, they having stated how the fact was in regard to Wisconsin. The Chair read it in the same way. Now, I say, if the Chair in terms decided the question in relation to Wisconsin, the Chair perhaps did that at least which ought to be inquired into by a commit tee ; but 1 say the Chair decided nothing as to the Wisconsin vote being lawful or unlawful. He read over the figures and then announced the result for President. If, in announcing that result, the Chair necessarily passed upon the legality or illegality of the Wisconsin vote, then the Chair decided that question ; but if, in making that announcement, it was not ma terial whether the Wisconsin vote was count ed or not, then the Chair did not pass on it. Now, we all understand that the result the election of James Buchanan as President of the United States is a matter entirely inde pendent of that law. Deciding that the result was the election of Mr. Buchanan, does not, either directly or indirectly involve a decision of the legality of the Wisconsin vote. As it does not, I do not see what more we have to do. It appears to me that is the end of the subiect. Mr. HALE. Mr. President, I was not in the House of Representatives when these pro ceedings took place. I had made up my mind very early that Mr. Buchanan was elected ; and indeed after the October elections in Penn sylvania last year, I came to the conclusion that he would be elected soon after that. I did not wait to hear the votes read with much interest. I wish now, however, to express my dissent from what seems to be the received opinion of almost every one whom I have heard speak on the subject here, that the vote JAMES BUCHANAN, PRESIDENT. of Wisconsin should not bo counted. I pro test against that, hero and now, forever and always. I say those votes should have been counted. Form should always yield to sub stance, except where the form itself is sub stance. Prior to the passage of the act of 1845, you left every State to fix the day upon which the people should vote for electors; but in that year Congress, in its wisdom, for cer tain purposes, prescribed the same day through out the Union. M. BELL, of Tennessee. The Constitution of the United States provides that the electors shall vote on the same day in all the States. Mr. HALE. I speak of the day on which the electors are chosen. That formerly was different in all the States ; but in 1845, 1 think, you passed a law compelling all the States to vote for electors on the same day. Mr. CRITTENDEN. Allow me to read the Constitution : " The Congress may determine the time of choos ing the electors, and the day on which, they shall give their votes, which day shall be the same throughout the United States." Mr. HALE. Exactly; but the Constitution does not fix the day. The provision of law fixing the day is one of those provisions which are not essential to the merits of the case one of those provisions which are directory, and ought to yield to the substance. The sub stance is, that the people of Wisconsin did, on the day prescribed by law, cast their votes, and did, by a large majority, choose an elec toral board. By an interposition of Provi dence, it may be said, or from some unavoidable accident, those electors sailed to cast their votes on the precise day fixed by law; but just as soon as they could, tfhey proceeded to cast them en the day following. I am not clear in my own mind that, as a legal question, those votes were not given on the day indicated in the law, in legal intendment ; for this reason : they began, they entered upon the work, they were impeded and not able to complete it so as to throw their votes on the particular day prescribed. Whether that construction be so or not, this is a matter of direction. The main and the great point is, did the people of Wis consin, by a major vote, do all they could do to express their voice in the presidential elec tion? If they did, they ought to be heard; and if by accident the men whom they merely delegated as their agents failed to get together at the immediate hour prescribed, the penalty of being disfranchised should not be visited on the whole State of Wisconsin. Suppose that, instead of the failure to cast this vote at the proper time having resulted from accident, it had resulted from fraud; suppose it had resulted from collusion or con nivance : would you visit this high penalty on the people of a State, because their electors failed to meet together at the prescribed hour? If they failed to arrive at the State capital on the 3d of December, and arrived on the 4th, are the whole people, who have done every thing that the Constitution and laws required them to do, to be visited with this tremendous penalty of disfranchisement, simply because the form of casting these votes on the 3d day of December has not been complied with ? I say not, sir; and just exactly as you stick to forms and depart from substance, you depart from the spirit of the Constitution, and you will come to that result to which the British Parliament came when they gave a man a seat in the House of Commons as a representative from the Middlesex district, I think, who had received only two hundred votes, and turned out a man who received fourteen hundred. Why was that ? Because of exactly the same stickling at form, and setting aside of sub stance, which would decide that the vote of Wisconsin now should not be counted. It is fortunate for us that this election is de cided irrespective of this vote ; but there is a principle here which I am not willing to see trampled down; and I ana not willing to sub mit to have it conceded away, as it has been by almost every one who has spoken, except my honorable friend from New York [Mr. SEWAED] ; and even he seems to approach it so timidly as not to have formed an opinion on it. Sir, I was born with an opinion on that ques tion, and I have always entertained it. My opinion always has been that form shall yield to substance. When the people have spoken, and have done everything to give force and effect to their sentiments, they should not be deprived of the constitutional result to which they have come, by an accident happening to the agents whom they have selected and made the depositary of their trust. But, sir, this occasion will not be entirely useless, if it sug gests to the distinguished men of the Senate, the leading men of the Senate I mean those who shape legislation here the necessity of a law Mr. WADE. The higher law ? Mr. HALE. No, sir. The law that is going to set aside the will of the people is a higher law. I say, this occasion will not be useless if it suggests the form of a law which shall pre scribe the manner in which this subject shall be regulated. I think there is, and has been for a long time, a necessity for such a law. If this incident, or accident, or whatever you choose to call it, shall suggest the necessity for such a law, I think it will not be without profit. Mr. BUTLER. I have a resolution to offer, which I hope will be voted upon, and I think it will settle the question. I am willing to acquiesce in the decision of the Chair, pro vided the record will hereafter show what I regard to be the true state of the case. The PRESIDENT pro tempore. The Chair will say to the Senator from South Carolina that a motion has been offered by the Senator 124 EIGHTEENTH PRESIDENTIAL TERM. from Virginia, which is the question now be fore the Senate. Mr. HUNTER. I have been requested by several friends to withdraw that proposition. I withdraw it. The PRESIDENT pro tempore. The resolu tion of the Senator from South Carolina will be read. The Secretary read it, as follows : Whereas, the Senate having met the House of Eepresentatives, in accordance with the fifth section of the act of the 1st of March, 1792, relative to the election of President and Vice-Presideut of the United States, and the electoral votes having been opened by the President of the Senate in the presence of the two Houses of Congress, and counted by the tellers appointed on the part of the two Houses, and_it appearing that James Buchanan, of Pennsyl vania, had received 174 votes, John C. Fremont, of California, 109 votes, and Millard Fillmore, of New York, 8 votes, for President of the United States ; and that John C. Breckinridge, of Kentucky, had received 174 votes, William L. Dayton, of New Jer sey, 109 votes, and Andrew J. Donelson, of Tennes see, 8 votes, for Vice-President ; and the same hav ing been duly declared by the President of the Sen- ale in the presence of the two Houses : Therefore, Resolved, That the Senate are of opinion that the Constitution and laws have been duly executed, and that no further declaration of these facts is neces sary than the announcement that James Buchanan is elected President of the United States, and John C. Breckinridge elected Vice-President of the United States. Mr. COLLAMER. If that resolution be passed, it in effect disposes of the question re specting the "Wisconsin votes, and rejects them. It is totally unnecessary to pass on that ques tion, and I think it is not desirable to do so. I propose to amend the resolution so as to make it a simple statement that James Bu chanan having received one hundred and sev enty-four votes, and that number being a ma jority of the whole number of electors, is elected President of the United States; and that John C. Breckinridge having received the same number of electoral votes, which is a ma jority of the whole number, is elected Vice- President of the United States, and that the same having been properly announced, no fur ther proceedings are required. I would pre fer to have a resolution in this simple lan guage, leaving out all detail, simply stating the result, and then make it a joint resolution re quiring the action of both Houses. Mr. BUTLER. If the proposition takes that form, I shall not object materially, but I cannot consent to receive any other than actual votes. I ask, and insist upon, a decision of this ques tion, because I desire it to be understood that I do not intend to put into the volume of his tory a fact that is not so. I am not like the Senator from New Hampshire, who was born with an opinion. Mr. COLLAMER. I wish to add to my proposed amendment, that the President and t Yice-President elect be informed of the result. Mr. TOOMBS. I hope the amendment of the Senator from Vermont will be adopted for another reason. The resolution of the Senator from South Carolina, in my judgment, does not recite the facts. As I before stated, I do not think I am mistaken in the fact that it was announced that John C. Fremont had received 114 votes, and not 109 votes. Mr. WILSON". The annunciation was " 114, including the vote of Wisconsin." Mr. TOOMBS. That, however, was the an nouncement of the Chair, that he had received 114 votes. This resolution says it was an nounced that he got 109 votes. Mr. BUTLER. It does not say "was an nounced," but "be announced." Mr. TOOMBS. My only solicitude on the subject was as I stated before Mr. BUTLER. If my friend from Georgia will allow me, I will accept the amendment at once. Mr. TOOMBS. I am glad that it has been accepted. My solicitude on the subject was this : The Chair having announced that it did not decide whether the vote of Wisconsin was counted or not as a good vote, then my objec tion was, that the Chair so ruled as not to per mit it to be decided. Certainly the presiding officer was of opinion that there was no au thority to decide it ; for, whether he deter mined that the vote was a good vote or not, the Chair having said that it did not decide that point, determined that it should not be decided at all. I want no such fact j-pread on the record. I again affirm, as I did before, that it is competent for the two Houses, in their separate capacities, to decide which are the votes under the Constitution. It is ex pressly declared by the Constitution that " the votes" shall be counted, but not by the officers of this body, or of the other House, or by tellers, but it is by law provided that they shall be opened and counted before the two Houses. The point is, what are the votes to be counted? I insist that nothing shall, by legal intendment or implication, assert the doctrine that anybody can determine what are votes except the Senate and House of Repre sentatives, or that any one can prevent them from deciding that question. That is all I wish to be provided against. The PRESIDENT pro tempore. The order that was made by the Senate of the United States prescribing the mode of counting the votes for President and Vice-President is not a joint resolution. It is a resolution of the Senate, in which the House of Representatives concurred. The entry in the House of Repre sentatives is : 1857. THE HOUSE OF REPRESENTATIVES, February 5, Resolved, That the House of Eepresentatives concur in the foregoing resolution of the Senate." That resolution prescribed to the presiding officer simply this duty. The resolution pro vided for the appointment of a teller on the part of the Senate, and two tellers on the part JAMES BUCHANAN, PRESIDENT. 125 of the House of Representatives. It required of those tellers to make a list of the votes as they should be declared ; then " that the re sult shall be delivered to the President of the Senate pro tempore, who shall announce the state of the vote, and the persons elected, to the two Houses assembled as aforesaid." The President of the Senate, having received the list from the tellers, announced as the state of the vote, the state of the vote as it appeared on that list. In the list the vote of "Wisconsin was assigned to John 0. Fremont, and the Chair so read it. The presiding officer did no more than give the result as stated by the tell ers, and then, in the further discharge of the duty devolved upon the presiding officer by the concurrent resolution, he announced the person who was elected, the Constitution pro viding that "the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed." The presiding officer in his own judgment believed then, as he believes now, that he declared cor rectly, as the state of the vote, that James Buchanan had received the greatest number, and that that number was a majority of the whole number of electors, not undertaking to decide, and not having decided, whether the vote of the State of Wisconsin had been given to John 0. Fremont or not a power that the Chair utterly disclaims and never asserted. Mr. COLLAMER. Let the resolution be read as I have amended it, which the Senator from South Carolina accepts. The Secretary read, as follows : Whereas, having met the House of Representatives in accordance with the fifth section of the act of March 1, 1792, relative to the election of President and Vice-President of the United States, and the electo ral votes having been opened by the President of the Senate in the presence of the two Houses of Con gress, and counted by the tellers appointed on the part of the two Houses, and it appearing that James Buchanan, of Pennsylvania, had received one hun dred and seventy-four votes, such number being a majority of all the electoral votes of the several States, and that John C. Breckinridge, of Kentucky, had received one hundred and seventy-four votes, such number being a majority of all the electoral votes of the several States, as Vice-President of the United States, and the same having been duly declared by the President of the Senate in the presence of the two Houses : Therefore, JResoloed by the Senate and House of Representatives of the United, States of America in Congress assembled, That the two Houses are of opinion that the Consti tution and laws have been duly executed, and that no further declaration of these facts is necessary than the announcement that James Buchanan, of Pennsyl vania, is elected President of the United States, and John C. Breckinridge, of Kentucky, is elected Vice- President of the United States. Mr. TOUCEY. I do not rise for the pur pose of entering into a debate on any question which Jias been raised. I think it due to the Presiding Officer of the Senate to say that he did not undertake to admit or to exclude the vote of Wisconsin, or to express any opinion on that question, because it was entirely im material to the result to be announced. I un derstand the Chair to decide that, in joint con vention, there is no propriety in deliberating or debating, and I do not understand that there is any diversity of opinion in the Senate on that point. There is no question, I think, any where, that when the Senate and House of Representatives are together for the purpose of witnessing the counting of the votes given for President of the United States, there can be no action. If there is to be any action, or deliberation with a view to action, the two Houses must separate, deliberate, and act sepa rately. That was the course which I under stood the Chair to indicate nothing more than that. If the tellers had made a written report, such as has been presented here in the Senate, there would have been no question there would have been no difficulty because that presents distinctly the number of votes given, and leaves out of the count the votes of Wis consin as being doubtful whether they would be counted or not, and expresses no opinion on that point; but, the result being the same, the declaration was made by the Chair. I have no objection to the resolution proposed, as amended by the Senator from Vermont, or leaving the whole subject in the condition in which it is understood on all sides to be. I hope, therefore, we shall act on it promptly, if at all. Mr. HOUSTON. Mr. President, I am very reluctant to occupy any portion of the Senate s time. It seems to me that there is really no ground for discussion. In the first place, I believe that the presiding officer discharged correctly the constitutional and lawful duty assigned to him while this body was in the Hall of the House of Representatives. He was bound to open, in the presence of the two Houses, the electoral votes which he had re ceived. The law vested him with no discre tionary power to decide as to the validity and legality of those votes. In the next place, it was proper that he should make the announcement which he did make, in pursuance of the Constitution and law. He has carried out, in my opinion, in these two acts opening the votes received by him, and announcing the result all the func tions delegated to him by the Constitution and law. I look upon every subsequent act by either body, or both bodies, as done without legal or constitutional authority. There was no means by which a decision could be had in the House of Representatives upon the validity or insufficiency of the votes, and therefore the President of this body was estopped from taking action thereon. Mr. President, I call for the reading of the second rule of the Senate, which prohibits conversation while a Senator is speaking. 126 EIGHTEENTH PRESIDENTIAL TERM. The PRESIDENT pro tempore. Senators will please not converse in the Hall. Does the Senator from Texas insist on the reading of the second rule ? Mr. PIOUSTON. I seldom speak in this body, and I do not ask for the reading of this rule with relation to myself; but I desire to hear what is going on. I suggest that hereaf ter the Sergeant-at-Arms put out of this Cham ber every person who whispers sufficiently loud to be heard above the voice of the speaker. Sir, I well remember the august and solemn appearance of this body some twenty years ago when the Fathers sat here. Then it was a majestic body, indeed. There was something awful in its appearance. The solemn stillness, the gravity of Senators, the propriety of con duct, the silent auditory all impressed the spectator with a solemn awe when he entered this Chamber or came into its galleries or lob bies. The House of Representatives, too, was silent. If there a voice was heard in the gal leries, instantly the eye of the Speaker rested upon the Sergeant-at-Arms, and a messenger or the Sergeant in person immediately repaired to the individual in the gallery and touched him, and there was silence. If a member sat in an indecorous position, or laid his foot upon his desk, the Speaker sent his page with this message: "The compliments of the Speaker to Mr. , and he will please take down his foot; " and he never put it up a second time. There was grandeur about legislation then ; there was impressive awe. Then, when you came into the Senate Chamber, there was no hum, no noise, no whispering, no talking; and legislation then was as beneficial to the country as it is at this hour. The time is coming when this body will be hurried and pressed with business, and the tumult of business will be sufficient without the, .noise and hum of con versation. I shall protest against it, and sug gest that the President have his eye on the Sergeant-at-Arms, and that he maintain silence in this Chamber and in the galleries. Now, sir, after this digression, most impor tant, and I am sorry to say necessary, I will proceed with my remarks. When the votes were counted, and when the presiding officer announced the individual constitutionally elect ed President of the United States, all his func tions ceased. It was not material whether the tellers certified the result or not. It was be fore the nation when the announcement was made to the constitutional bodies to bear attes tation of the facts. There was no necessity of further action ; and every attempt at it on a supposed contingency was unnecessary and improper. There is no law determining in what manner a vote shall be rejected ; and, if Congress has failed to pass laws for regulating a contingency of this kind, or to say how it shall be determined, it cannot be determined, no matter what the consequence may be. Every act done beyond the constitutional functions imposed on the President of this body in this instance, is a revolutionary act. This very resolution is not known to the Con stitution, nor is it known to the laws of Con gress, and it is therefore of itself revolutionary. If in this matter anything be done which is not known to the Constitution and laws, it is done in violation of them, and is not only a nullity, but is revolutionary in its character. You may say it is only a form ; but, sir, it is a form not known to the Constitution, and I in voke this body not to adopt such forms, lest they become substance. There is no evil aris ing from the insufficiency or illegality of the vote of Wisconsin in this case, and there is no necessity for adopting a resolution \vhich mere ly goes to a matter of form and has no validity, because it is not known to the law or the Con stitution. I maintain that the election is good, constitutional, and lawful. That is the an nouncement made in conformity with the Con stitution and the law, and the election is valid without any plastering up by resolutions of this kind. I have no doubt of the opinion of every individual here as to the validity of the election. It is not necessary to decide the question of the Wisconsin vote. There is a constitutional majority without it, and no ac tion of this body or of the House of Represent atives is required. The President of the Sen ate has told the nation what is the result. He is the organ for communicating the votes of the electoral college to this nation, and his an nouncement gives it all the validity that a thousand resolutions could do, without law, without precedent, and, so far as I can see, without reason. I am against such resolu tions. Mr. WELLER, ^ I desire to terminate this debate. I regard it as a very unprofitable one the discussion of a mere abstraction. No body doubts the validity of this election. The very moment the announcement was made by the President of the Senate of the result of the vote, Mr. Buchanan became President-elect of the United States. He has but to wait for the arrival of the 4th of March to be inau gurated. All that remains for the Senate to do, is simply to appoint a committee to inform the President-elect of his election. This reso lution, however, is based on the assumption that our action has been, illegal or irregular ; that there is some informality which may affect the result of the election. Now, suppose, in the present organization of the House of Rep resentatives, they do not choose to agree to that resolution : what is the consequence ? Does it not stand on the assumption that there is something irregular which we endeavor to cure, and that it requires the action of the Sen ate and House of Representatives to cure that irregularity. They seem to have taken up the idea that the President of this body had usurped a power which properly did not belong to him. In that they do him injustice. But in the JAMES BUCHANAN, PRESIDENT. present organization of that House the discus sion may last for days. Cui ~bono f Who is to be benefited by that? I wish to move that this resolution lie on the table ; giving notice that, if it be laid on the table, I shall move for the appointment of a committee to inform the President-elect of this day s work ; which is all, in my judgment, we are called upon to do. I move to lay the resolution on the table. Mr. BUSK. Will the Senator withdraw that motion for a moment ? Mr. WELLEE. My object was to prevent discussion. Mr. BUSK. I do not desire to discuss the question, but simply to read the Constitution. Mr. WELLER. If the Senator will renew my motion, I shall withdraw it for him. Mr. BUSK. I shall renew it. The Consti tution declares : " Every order, resolution, or vote, to which the concurrence of the Senate and House of Representa tives may be necessary (except on a question of ad journment), shall be presented to the President of the United States ; and before the same shall take effect, shall be approved by him, or, being disap proved by him, shall be repassed by two-thirds of the Sanate and House of Representatives, according to the rules and limitations prescribed in the case of a bill." I think we acted hastily in appointing tellers, because that was done by a resolution con curred in by the House of Bepresentatives. I agree that we should not pass this resolution ; and I renew the motion that it be laid on the table. Mr. BELL, of Tennessee. I hope, before that question is taken, I shall be allowed to say a word. Mr. BUSK. I withdraw the motion for the accommodation of the honorable Senator. Mr. BELL, of Tennessee. If it is supposed that this resolution is necessary at all, I think it should be modified. Mr. BUTLER. To terminate this debate, as I see there is no disposition The PRESIDENT pro tempore. Does the Senaior from Tennessee vield the floor? Mr. BELL, of Tennessee. No, sir. Mr. BUTLER. I intended to withdraw the resolution. Mr. BELL, of Tennessee. I was going to say that, if the resolution be necessary, it should be modified. Mr. BUTLER. If I withdraw it, it will not be necessary to discuss it. Mr. BELL, of Tennessee. The honorable Senator will excuse me, if he pleases, for not yielding him the floor, but going on myself, as I have it. Mr. BUTLER. Certainly. Mr. BELL, of Tennessee. I do not rise to make a speech on this subject, but to express my opinion. I think the President of this body acted in conformity strictly with his duty, according to my comprehension of it. It is due to him, that opinion on that point, if I do so. I think, when the vote of Wisconsin was called, and the tellers reported it as having been taken on a wrong day, it was then proper for some member of the House of Representa tives or of the Senate to raise the question whether it should be counted; but the pre siding officer had no right to suggest or dic tate such a course. His duty, under the Con stitution, was to open the votes in the presence of the two Houses. He discharged that duty. The tellers reported that the vote of Wisconsin was cast on a day not provided by law, and of course it was unconstitutional in that respect. If this resolution is to be sustained, I suggest, and I think it will recognize the announcement of the President of the Senate before the two Houses and legalize it, and render it entirely in conformity with the Constitution, it should be amended so as to be in the language of the Constitution. The constitutional provision is : " The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors ap pointed." That is not the language of the resolution now before us. It should, in conformity with the Constitution, say that the presiding officer having announced that James Buchanan re ceived one hundred and seventy-four votes, being the greatest number of votes, and being a majority of the whole number of electors appointed, has been duly elected. That decla ration, of course, would include Wisconsin, if it was proper that its vote should be included. Whether the vote cast in Wisconsin was cast in conformity with the law or not, makes no difference. According to the language of the Constitution, the announcement of the Presi dent of the Senate was right. The Constitution having required that the electoral votes shall be cast on the same day throughout the United States, my impression at present is, that the vote of Wisconsin on this occasion ought not to be counted ; but that is not a material question now. It makes no difference to the result in the present case. Electors were appointed by the vote of the people of Wisconsin-, and James Buchanan was announced by the President of the Senate to have received a majority of the whole number of electors, including those appointed by Wis consin ; and for this purpose it makes no differ ence whether their votes be counted or not. The form of the annoucement in this case ex cludes the question of the legality of the vote in any particular State. As neither House ob jected to the announcement, and there was no separation of the two Houses to deliberate upon the question whether the votes were all legally counted or not, it seems to me to be unneces sary to pass this resolution ; but if passed at all, it should be amended as I have proposed. 128 EIGHTEENTH PRESIDENTIAL TERM. Mr. WELLER. I make the motion to lay the resolution on the table. Mr. CRITTENDEN. I wish to suggest an amendment which I intend to offer to the res olution. The PRESIDENT pro tempore. The motion is to lay the resolution on the table. Several SENATORS. . It has been withdrawn. The PRESIDENT pro tempore. The Chair is not aware of it. Mr. WELLER. The Senator from South Carolina withdrew it. He could not do it at that time, because there was another Senator on the floor. The PRESIDENT pro tempore. The Chair will put the question on laying the resolution on the table. The motion was agreed to. Mr. WELLER. Tnow offer this resolution, which I think will complete the business so far as the Senate is concerned : Resolved, That a committee of one member of the Senate be appointed by that body to join a commit tee of two members of the House of .Representatives, to be appointed by the House, to wait on James Buchanan, of Pennsylvania, and notify him that he has been duly elected President of the United States for the constitutional term, to commence on the 4th day of March, 1857 ; and also to wait on John C. Breckinridge, of Kentucky, and inform him that he has been duly elected Vice-President of the United States for the constitutional term, to com mence on the 4th day of March, 18f 7. Mr. CRITTENDEN. I may as well offer my amendment to this resolution as any other. I think it is of importance that we should avail ourselves of this occasion for settling a ques tion that may be a most momentous one here after. In this election the question that has sprung up is not important, for the result is altogether independent of that question; but we may imagine what would have been the state of things, if the result had been depend ent on the vote of the State of Wisconsin. It was ruled, when the Senate was in the Cham ber of the House of Representatives, that no objection could be made to it. It was ruled that the counting must proceed, and the count ing did proceed, and the result was announced. I am looking to the future. Suppose some future presiding officer th ere, when the vote of Wisconsin would determine the result, should decide that it should or should not be admitted, how is such a decision as that to be met? Suppose he should declare the vote admitted, and the party to whom it was given elected President of the United States, what could ever countervail that declaration ? How could you ever question the election of a Pi esident thus announced according to the forms of the Con stitution, but in disregard of the substance of it, as I think ? We could easily see to-day what would be the result ; confusion and rev olution springing up instantaneously in their worst form on the floor of that House, and scattered like wild-fire through the whole 1 country. Such a question as that ought to be met and settled. I propose, therefore, as an amendment to this or any resolution offered on the subject : But it is resolved furthermore, That the vote of Wisconsin being given on a day different from that prescribed by law, ought not to have been included in the count of the electoral vote, and that any mem ber of either the Senate or House of Representatives had the privilege and right to object to the counting of said vote, and that it was competent for the Sen ate and House of Representatives alone to decide upon that objection. I think the Senate is not in a condition to decide this question x now. I do not think there is a quorum, or anything like a quorum pres ent. We shall know that, however, by the vote, for I shall call for the yeas and nays on the adoption of the resolution. | Mr. WELLER. I hope the Senator from Kentucky will offer that as an independent proposition. Mr. CRITTENDEN. If I do I shall never be able to get it up. Mr. WELLER. It has no sort of connection with the appointment of a committee to wait on the President-elect. I shall be compelled, perhaps, to vote for the resolution of the Sen ator from Kentucky, but I do not see any con nection between his proposed amendment and the resolution which I offered. I certainly feel every disposition to give the resolution of the Senator from Kentucky a hearing, and I should like to have a vote on it, and, entertaining the opinions I do now, I shall be compelled to vote in its favor, although it would, in effect, dis franchise a State. It is one of the cases not provided for in the Constitution. Under the Constitution we have power to fix the day, and it must be uniform. I think it doubtful whether we can say that if they do not meet on that particular day if they are prevented by the act of Providence, or otherwise, from assembling they may assemble at some future time. I doubt that power, but I think 1 we ought to withhold this until we pass on L tho other resolution. Mr. CRITTENDEN. If my resolution be passed first, I shall have no objection ; but if it is not, I shall never be able to get it con sidered hereafter. Mr. WELLER. I really cannot see any rea son why it should not receive the considera tion of the Senate at any time. I am sure the Senate will have every disposition to receive the resolution of the Senator from Kentucky, and pass upon it. I have no objection to act ing on it first, but I do not wish it attached to the resolution I have offered, with which it has no connection. Mr. STUART. If the Senator from Ken tucky wishes to obtain a vote on his resolution, it ought to be taken when the Senate is full, and therefore I move that the Senate adjourn. JAMES BUCHANAN, PRESIDENT. 129 The motion was agreed to, and the Senate adjourned. LV HOUSS OF REPRESENTATIVES. Wednesday, February 11, 1857. ("Congressional Globe," 31th Cong., 3J Session. pp. 651-660.) Mr. JONES, of Tennessee, said: Mr. Speaker, the hoar of twelve o clock, M., has no\v ar rived, and I move the following order : Ordered, That the Clerk inform the Senate that the House of Representatives is now ready to receive tliat body for the purpose of proceeding to open and count the votes of the electors of the several States for President and Vica-Preaident of the United States. The motion was agreed to. The SPEAKER then ordered that seats in t;i 3 area ba prepared for the reception of the numbers of the Senate. Mr. WHITNEY. If it be not out of order at the tirn3 I should like to ask a question of the Chair on a matter of high importance. The SPEAKER. The House is acting under a special order. If it relates to that subject it is in ordor. Mr. WHITNEY. I simply wish to inquire, Mr. Speaker, whether the committee appointed at the first session of this Congress a select committee to investigate in reference to the expense of public buildings is still in exist ence ? The SPEAKER. It is the opinion of the Chair that that subject is not in order at this time. Mr. WHITNEY. I simply wish to know if that committee is still in existence? The SPEAKER. The House is aating under a special order. Mr. WHITNEY. Does the Speaker decide that it is not in order to ask a question at this time? The SPEAKER. No debate is in order. No question is before the House. The House is acting under a special order. An inquiry re lating to the special order is in order. Mr. WHITNEY. I simply desired to pro pound a question for the information of the House a3 well as for my own information. The SPEAKER. It can only be received by unanimous consent. Mr. RUFFIN. I object. {r. WHITNEY. If the committee be still existence I would like to ask the Chair Mr. RUFFIN. I call the gentleman from York to order. The SPEAKER. The gentleman is not in order. Mr. H. MzYRSHALL. Do I understand the Chair that nothing relating to national in terests is pertinent to this solemn occasion?, [L right 31-.] Mr. LETCHER. I propose to make a com promise with the gentleman The SPEAKER. No compromise is in order on this occasion. Mr. LETCHER. Well, I will give him the information he wants at a future day. Mr. ELLIOTT. I desire to know from the Chair whether it is in order for the American party to withdraw Mr. Filltnore at this time ? [Laughter.] Mr. FLORENCE. And substitute another ninny ? [Laughter.] At twelve o clock and twenty minutes, the Doorkeeper announced the Senate of the United States. The Senate entered the Hall, preceded by its Sergeant -at-Arms, and headed by its President and Secretary the members of the House standing in their seats. Mr. MASON, the President of the Senate, took his seat on the right of the Speaker of the House of Representatives, and presided over the two Houses, and the members of the Sen ate took seats provided for them in the area of the House. The PRESIDING OFFICER. Pursuant to law, and in obedience to the concurrent order of the two Houses, the President of the Senate will now proceed to open and count the vojes which have been given for President and Vice- President of the United States, for the term prescribed by the Constitution, to commence on the 4th day of March, 1857. The teller ap pointed on the part of the Senate and the two tellers appointed on the part of the House will please take the seats assigned them in dis charge of their duties. Mr. BIGLSR, the teller appointed on the part of the Senate, and Messrs. JONES, of Tennessee, and HOWARD, the two tellers appointed on the part of the House, took their seats at the Clerk s desk. The PRESIDING OFFICER thereupon proceeded to open and hand to the tellers the votes of the several States for President and Vice-Pres ident of the United States, commencing with the State of Maine. Pending the count, Senator CASS said : I suggest that it is better to read the results of the vote, and not the cer tificates in full, unless the reading of the cer tificates be called for. The PRESIDING- OFFICER. Tho presid ing officer considers that the duty of counting the vote has devolved on the tellers under the concurrent order of the two Houses; and he considers, further, that the tellers should deter mine for themselves in what way the votes are verified to them, and road as much as they may think proper to the two Houses assembled. The tellers discontinued the reading of the certificates in full, and merely announced the votes of each State. It appeared from the cer tificate of the electors of the State of Wiscon sin that the electoral vote of that State 130 EIGHTEENTH PRESIDENTIAL TERM. had not been cast on the day prescribed by law. Mr. LETCHER. If I understand the vote which has just been read, it has not been cast on the day prescribed by law for voting for President and Vice-President of the United States. I do not know what would be proper in a case of this sort ; but I desire now to call attention to it, in order that the point may be brought to the attention of the country. A time may come when it would be a matter of importance to have these votes in regular shape. I desire, so far as I am concerned now, as a Representative of the people, to present my objection to the reception of this vote. The PRESIDING OFFICER. The pre siding officer considers that debate is not in order while the tellers are counting the votes. Mr. JOKES, of Tennessee. I suppose, Mr. President, the proper way would be for the tellers to report the facts to the convention of the two Houses, and let them decide. The PRESIDING OFFICER. The presid ing officer so considers. Mr. SMITH, of Tennessee. Would it be in order now to move that the vote of the State of Wisconsin be received ? The PRESIDING OFFICER. It would not be in order. The count of the votes having been con cluded Mr. JONES, of Tennessee, one of the tellers, reported. He said : Mr. President, the tellers appointed on the part of the two Houses to count and report the votes given for President and Vice-President of the United States, report that they have examined all the returns, and find that they were all regular, and that the votes were cast on the day required bylaw, except in the case of the votes cast by the elec tors of the State of Wisconsin. Their returns show that they cast their electoral vote in that State on the 4th of December, instead of on the first Wednesday of December (which was the 3d), as required by law. All the returns show that James Buchanan, of the State of Pennsylvania, received 1V4 votes for Presi dent of the United States; that John C. Fre mont, of the State of California, received in cluding the votes of Wisconsin 114 votes for President of the United States ; that Millard Fillmore, of the State of New York, received 8 votes for President of the United States ; that John C. Breckinridge, of the State of Kentucky, received 174 electoral votes for Vice-President of the United States ; that William L. Dayton, of the State of New Jersey, received includ ing the five votes of Wisconsin 114 electoral votes for Vice-President of the United States ; and that Andrew Jackson Donelson, of the State of Tennessee, received 8 electoral votes for the Vice-Presidency of the United States. The following is the full statement of the tellers : Statement of Votes for President and Vice- President of the United States, for Four Years from the 4th of March, 1857. EC 1 I 1 W 1 p ft 8 5 13 4 6 5 35 7 27 3 8 15 10 8 10 12 12 28 6 7 18 11 9 9 4 6 3 4 4 5 4 296 STATES. PRESIDENT. VICE- PRESIDENT. 1 James Buchanan, of Pennsylvania. 1 John C. Fremont, of | Calilornia. < 1 John C. Brecklnridge, of Kentucky. 1 William L. Davton, of * j New Jersey. 1 Andrew J. Donelson, of Tennessee. Maine K g 18 18 Rhode Island 4 4 6 6 5 R5 5 86 7 9,7 7 Delaware 8 o 8 8 Virginia 15 If) North Carolina 10 8 .... 10 3 .... Georgia 10 10 V? 12 1?, Ohio 23 23 r> 7 7 13 12 Illinois 11 11 q q Missouri 9 4 9 4 Michigan 6 6 - Florida 8 8 Texas 4 r::: 4 4 4 o 5 .... California 4 4 Totals 174 114 8 174 114 8 Mr. LETCHER. Is it in order now to move to exclude the vote of Wisconsin! from that count? The PRESIDING OFFICER. No debate is in order, in the opinion of the presiding officer. Senator CRITTENDEN. Do I understand the Chair to decide that Congress, in no form, has power to decide upon the validity or inva lidity of a vote ? The PRESIDING OFFICER. The presid ing officer has made no such decision, he will inform the Senator from Kentucky. The Chair considers that, under the law and the concur rent order of the two Houses, nothing can be done here but to count the votes by tellers, and to declare the vote thus counted to the Senate and House of Representatives sitting in this Chamber. "What further action may be taken, if any further action should be taken, wih\de- volve upon the properly constituted author ities of the country the Senate or House of Representatives, as the case may be. The Chair was misunderstood by the Senator from Ken tucky. In pursuance of the order of the two Houses, the presiding officer will now an- JAMES BUCHANAN, PRESIDENT. 131 nounce the vote which has been delivered to him by the tellers. The presiding officer proceeded to recapitu late the vote as announced to the joint conven tion b y Mr. JONES, of Tennessee, one of the tell ers upon the part of the House, and then said : Thus it is reported bj the tellers that the whole number of electors appointed to vote for Pres ident and Vice-President of the United States is 290, of which 149 make a majority. The state of the vote for President of the United States, as delivered bj the tellers, is for James Buchanan, of Pennsylvania, 174 votes; for John 0. Fremont, of California, 114 votes ; for Millard Fillruore, of New York, 8 votes ; and the state of the vote for Vice-President of the United States, as delivered by the tellers, is for John 0. Breckinridge, of Kentucky, 174 votes; for William L. Dayton, of New Jersey, 114 votes; and for Andrew J. Donelson, of Tennessee, 8 votes. In further execution of the concurrent order of the two Houses, the presiding officer there fore declares that James Buchanan, of the State of Pennsylvania, having the greatest number of votes for President, that number being a ma jority of the whole number of electors, has been duly elected President of the United States for the term prescribed by the Constitution, to commence on the 4th of March, 1857. I also declare that John C. Breckinridge, of the State of Kentucky, having the greatest number of votes for Vice-President, and that number be ing a majority of the whole number of electors, has been duly elected Vice-President of the United States for the term prescribed by the Constitution, to commence on the 4th day of March, 1857. Mr. H. MARSHALL. Mr. President, I think that it is a matter of public importance, not for this occasion, but for some occasion which may arise hereafter, that the ruling of the Chair upon this occasion should be publicly excepted to. I understand the Chair to have ruled that it is within the competency and function of the President of the Senate, in the presence of the Senate and House of Repre sentatives, to open certificates and to count the votes, thereby giving to the President of the Senate the function of counting. Now, in the case which has arisen the case of Wis consin the President of the Senate, through the tellers, announces the vote of Wisconsin, and the vote of Wisconsin is therefore counted, upon your decision. Whether that is a vote or not must depend upon the determination of this convention; and, if you will regard the verbiage of the Constitution, you will find that your function goes no further than to open the certificates. The language of the Constitution is, that " the President of the Senate, in the presence of the House of Rep resentatives, shall open all the certificates ; " and then the phraseology changes, and pro ceeds, "and the votes shall be counted," not by you, but by us ; and whenever a vote is challenged, this is the time, and this the only place, where a determination can be formed whether it is a vote. I merely want to raise the point, as we all know it makes no difference in the result in this case, but a case might arise in which it might make a differ ence. Mr. SMITH, of Tennessee. I rise to a ques tion of order. Is debate in order ? The PRESIDING OFFICER. The presid ing officer would state that, the votes having been counted and announced, the functions of the two Houses, assembled for the purpose of counting the votes, are discharged. Senator TOOMBS. I except to that decision of the Chair, and appeal from that judgment. I wish to enter my dissent from that decision, that it may not be hereafter drawn into a pre cedent. I do not consider it law, and I do not consider that the presiding officer has the right to close the mouths of Senators and Represent atives here, in whose hands the decision of this question must rest. The PRESIDING OFFICER. The presid ing officer was about to state that the Consti tution provides that the President of the Sen ate shall, in the presence of the Senate and House of Representatives, open all the certifi cates, and the voles shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed. And so as to the Vice-President. The concurrent order of the two Houses pro vides : " That the two Houses will assemble in the Chamber of the House of Representatives oa Wednes day, the llth. instant, at twelve o clock, and the President of the Senate pro tempore shall be the pre siding officer ; that one person DC appointed a teller on the part of the Senate, and two on the part of the House of Representatives, to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate proternpore, who shall announce the state of the vote and the persons elected to the two Houses assembled ; which shall be deemed a declaration of the persons elected President and Vice-President of the United States, and, together with a list of votes, entered pn the Journals of the two Houses." Mr. LETCHER. Will the Chair indulge me for a moment ? The PRESIDING OFFICER. The presiding officer will be allowed to conclude what he was saying.. The presiding officer considers that the only duty imposed by the Constitution \vas, that the vote should be counted in the presence of the Senate and House of Represent atives. He considers that the vote has been counted by the tellers in the presence of the two Houses, and under the charge, he pre sumes, of the presiding officer. The tellers have reported the facts upon the vote. In reference to one State, the State of Wisconsin, the tellers have reported that the vote of that State was cast on a day different from that prescribed by law. The presiding officer is not aware that what effect, if any, such a dif- 132 EIGHTEENTH PRESIDENTIAL TERM. ference would have on the vote of that State can be decided by him. Nor is it his duty to decide upon whom devolves the duty of deter mining what the effect may be. The presiding officer is further required to declare the whole vote as given. That duty he has discharged. He is further required to declare who has re ceived a majority of the whole vote from the list delivered to him by the tellers, and to de clare such person elected President or Vice- President, as the case may be. Senator BUTLER. Mr. President, this is a question of rather a novel character, and I should regret very much to see it come to be regarded as a precedent. Now, sir, I should regard it myself as the most dangerous devia tion from the Constitution and law, that one State should assume, either by act or by inad vertence, or in any other way to give a vote at a different time from another State ; because if, when we were electing a Chief Magistrate of this Confederacy, the vote should be so equal ly divided that one State, by reserving its power, in other words, by not voting at the time the other States did postponing it one month or one day with this telegraphic com munication running to every part of the Union, would change the result, that State would be umpire in choosing the President of the United States ; and I am not going to allow any one State to be a corps de reserve in this matter, if I can help it by my vote. I am very decided ly 6f the opinion that the Chair ought not to count the vote of Wisconsin as a vote on this occasion. Senator BIGLER. I am instructed by the tellers to state to the President and the con vention that they have not yet signed this cer tificate, and that they have determined to sign it only when it sets forth all the facts. One of those facts is with reference to the vote of Wisconsin the vote of that State not having been cast on the day prescribed by law. The certificate which they will sign will set forth that fact. As to the determination on that discrepancy, the tellers have no suggestion to make. Senator CRITTENDEN. I shall not pre sume before Congress to occupy a moment s time with argument. I wish merely to say that the sense of duty, an honorable sense of duty I have no doubt, upon which the presid ing officer has acted in assuming to declare the number of votes, involves the privilege of de termining a presidential election, and saying who shall be President. I protest against any such power. Senator TOOMBS. I join with the Senator in that protest. The PRESIDING OFFICER. The presid ing officer is utterly unaware that he has as sumed the exercise of any such power. Senator TOOMBS. I consider that the pre siding officer has done so. The PRESIDING OFFICER. The concur rent order of the two Houses makes it the duty of the President of the Senate to an nounce the state of the vote, and the persons elected, to the two Houses assembled. That duty lie has discharged, and none other. Mr. ORR. I move that the vote of the State of Wisconsin be rejected, and that the tellers be instructed not to include it in their count. Mr. President, I have but a few words to say. The necessity of this action will, I think, be apparent, if we will look at the matter, assum ing that the vote of Wisconsin would deter mine the result. Suppose the result of the election would depend on the vote of that State : how would it be possible to declare who was elected until it had been decided whether or not that vote was to be received? Who is to decide that ? The Constitution and the laws require that the two Houses shall meet in joint convention, and that the votes of the electors of the several States shall be opened and counted before them. Senator TOOMBS. "What votes? Mr. RR. The votes for President and Yice- President. This, in my judgment, confers upon them the power to determine whether a vote be valid or invalid. Otherwise it is a mere farce if they are called on only to witness the counting. The counting might just as well be done by the Vice-President or the President of the Senate, without the presence of the two Houses. But it is to guard against an illegal vote being counted that the two Houses are required to be assembled together. I there fore move that, the vote of the State of Wis consin, having been cast on a day different from that provided by law, be rejected, and that the tellers be instructed to make up their account accordingly. Senator CASS. I wish to submit a single remark to the President and to the Senate, for I do not consider that this convention can be addressed. We can take no vote. How are we to vote? Per capita or by States? Are we to vote as representatives of the people or representatives of States ? If we cannot vote here, we cannot discuss. The only thing which remains for us to do, if there are in superable difficulties in the way, is to adjourn immediately to our respective Halls. Then let the Senate or the House of Representatives bring up the matter for action. By the pres ent proceeding we are overturning the Gov ernment we are making this a national con vention. Senator BUTLER. I concur in that, and insist on that mode of procedure. Let us preserve our separate organized existence. The PRESIDING OFFICER. The duty which brought the Senate into this Hall hav ing been discharged, the Senate will return to its own Chamber. Senator SEWARD. I was about to propose that. Senator TOOMBS. I protest against that JAMES BUCHANAN, PRESIDENT. 133 order. We have the right to determine that question. I enter my protest as a Senator from the State of Georgia. The PRESIDING OFFICER. The presid ing officer is informed bj the tellers that they have nofc yet made out their certificate. [Laughter.] Senator DOUGLAS. I rise to state that, in my opinion, the tellers have no right to au thenticate that certificate until the two Houses have passed upon it as to its being a true count. I rise to protest against this joint convention being dissolved until the question which has been raised shall have been decided. Senator TOO MBS. That is right. Senator DOUGLAS. I am willing that the Senate shall retire to its own Chamber to con sider and determine the question in dispute ; but I do protest solemnly against the deed being done before we have had an opportunity of deciding this question. Senator TOOMBS. I want to vote on it. Mr. ST ANTON. I rise to a question of order. Who shall determine when the busi ness for which the joint convention assembled has been concluded the presiding officer, or the body itself? I understand that a motion is pending to adjourn the joint convention, and that, pending that motion, the President o: the joint convention announces that it is dissolved, and that the Senate will retire. Am I correct ? If I am, then I insist that the joint convention is not dissolved ; and that, if the Senate retire without any vote of the two Houses, and pending a motion to adjourn, it does not amount to a dissolution of the joint convention. ^The PRESIDING OFFICER. The pre siding officer would again refer to that clause of the Constitution which, in his judgment, prescribes the only functions to be discharged in this presence : " The President of the Senate sh-ill, in the pres ence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." Senator TOOMBS. What votes ? The PRESIDING OFFICER. The votes for President and Vice-President of the Unit ed States. Senator TOOMBS. That is the question: What are the votes ? The PRESIDING OEFICER (reading) : " The person having the greatest number of votes for President shall be the President, if such num ber be a majority of the whole number of electors appointed ; and if no person have such majority, then from the persons having the highest number, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately by ballot a President." The presiding officer, therefore, again states it as his judgment that the Senate came here under the Constitution only for the purpose of counting the votes in the manner prescribed by the Constitution ; that the mode of doing it was provided for, in addition, by the con current order of the two Houses. Mr. ST ANTON. I wish to inquire whether it is not essential to the completion of this question, that the motion of the gentleman from South Carolina [Mr. OER] to reject the vote of the State of Wisconsin should be first determined ? How can the object for which we are assembled here be decided until we shall have settled the question as to whether the vote of a State is to be counted or not ? For what purpose did we come here, if not to decide such questions as the motion of the gentleman from South Carolina? I differ with that gentleman, and shall vote against his motion. But it is a question the right to determine which I will not surrender. The PRESIDING OFFICER. It is the opinion of the presiding officer that no vote can be taken as a joint vote by the two Houses thus assembled, and that no motion calling for a vote is in order. The presiding officer, there fore, rules the motion out of order. Mr. HAVEN. I desire to submit a remark here. The President of this joint meeting or convention has announced and I think very properly that the duty of the joint conven tion is to count the votes given by the electors in the several States. The proposition which I submit is, that we have not yet counted them. That is the only question here have we counted the votes from the State of Wiscon sin ? It is alleged on the part of some gentle men here, that there are votes from the State of Wisconsin to be counted. It is alleged by some others, that there are no votes here from Wisconsin to be counted. Does the certificate from the electors of that State certify a vote, a legal vote, of which we ought to take cog nizance? No final certificate of our action here has yet been made ; and the two Houses are at issue, not as separate bodies, but individ uals of both bodies seem to differ in opinion as to whether there is or is not a vote from Wisconsin here, which, according to the Con stitution and the laws, we are to count. It is but of slight importance in this particular case, but may become of vast importance as a prece dent on some future occasion. Now, in reference to what should be done with the alleged vote of Wisconsin, I differ from many gentlemen. My own opinion is, that we ought to count that vote for John 0. Fremont and William L. Dayton. But it is right that gentlemen here who think that we ought not to count it should be heard on this subject, either here, or in the separate Houses by the members thereof, and that this con vention should by some mode come to a con clusion. It is understood, I believe, as a mat ter of history I do not know whether there is any proof on the subject that it was an act of Providence, so to speak, which prevented the electors of the State of Wisconsin from meeting and giving their vote on the precise day appointed by law, the 3d of December. 131: EIGHTEENTH PRESIDENTIAL TERM. My own individual judgment on this subject is, that when the electors of a State are pre vented from meeting on the day fixed by law, either by public enemies or by the act of God and when nothing appears to impeach the good faith of the electors, and they cast their vote at the earliest practical moment such votes are the lawful electoral votes of the State, and should be counted by the two Houses on an occasion like this; otherwise the people of such State will be utterly dis franchised, when they have performed every possible duty incumbent upon them under the Constitution. The acts of God and of public enemies have always been held to excuse men from the performance of an incumbent duty. On the other hand, the Senator from South Carolina [Mr. BUTLEE] declares that, in his opinion, such votes ought not to be counted, and in effect the State ought to be disfran chised. Now, I do not propose to settle that question ; but I do say that we ought not final ly to leave this Hall as joint convention, and finally to separate, and abandon our duty under the Constitution in this regard, until we have put the public mind of the country at ease on the question as to whether the votes of "Wis consin are to be counted or not ; and I, too, wish to enter my protest against the President of the Senate and the tellers settling the ques tion for us, and in spite of us, as to whether the votes of a State shall be counted or not, and whether she shall be disfranchised or not, under such circumstances. Senator HUNTER. I rise to a question of order. I wish to know how we can debate questions in joint convention? Each House must debate the question for itself. The PRESIDING OFFICER. The presid ing officer would inform the Senate and House of Representatives thus assembled that the tellers have not yet completed their certificate. The motion of the gentleman from South Carolina [Mr. ORE], in the opinion of the Chair, is not in order. Senator HUNTER. Let me suggest this point of order. If a question arise during the process of counting which requires action of the two Houses, I believe we can settle it in committee of conference, as we settled the Michigan and Missouri cases. It can be settled very soon if we separate, through our commit tees. I move that the President of the Senate conduct the Senators back to the Senate Chamber. The PRESIDING OFFICER. The presid ing officer would again state that the duty of the tellers has not yet been discharged. The tellers, it would appear, made their report be fore they had signed the certificate. The vote will be again read to the two Houses, and they can determine what shall be done. Mr. BILLINGHURST. I rise for the pur pose of addressing an inquiry to the Chair, which is, whether or not an official certificate of the causes which prevented the electors of Wisconsin from voting on the 3d of December accompanied their return ? If so, I ask that it be read to the convention. The PRESIDING OFFICER. The paper will be read by the general consent of the two Houses. Mr. COBB, of Georgia. I desire to inquire of the Chair what disposition has been made of the motion submitted by the gentleman from South Carolina [Mr. OEE] ? The reason why I make that inquiry is, that I wish to call the attention of the Chair as well as of the two Houses to this point. I regard it as not material in this case whether you decide to count the vote of Wisconsin or not ; but I do consider it important that it should be decided whether or not this convention is to adjourn by the decision of the Chair or by the judg ment of the convention. And I desire to in quire of the Chair whether or not he proposes, when the tellers shall have completed their report, to adjourn the convention of his own accord and on his own motion, or whether he proposes to submit it to the judgment of the convention whether or not they have dis charged their duty? I desire, Mr. President, that this convention shall decide before it ad journ whether we have completed the business for which we have been called together by the Constitution, and that that shall not be decided simply by the presiding officer of the con vention. In order, Mr. President, to bring this question directly before the convention, if the Chair rules out the resolution of the gentle man from South Carolina, I appeal from that decision. Senator BUTLER. I call the gentleman to order. It is not a debatable question. The Senate should go out without any other order. The States shall not be overruled here, so long sa I represent the State of South Carolina. Mr. ORR. Is my motion pending ? The PRESIDING OFFICER. The Senator from South Carolina rises to a question of or der, which he will be good enough to state. Senator BUTLER. My point of order is that this is not a debatable question in this con vention, so far as it requires a decision to be given one way or the other. Each House should deliberate upon it separately. Mr. COBB, of Georgia. All questions are debatable in all bodies, unless prevented by special rules even a motion to adjourn. Mr. ORR. I desire to know what dispo sition has been made of my motion? The PRESIDING OFFICER. The Chair decided that it could entertain no motion which would involve a vote of the two Houses, or of .either of them, and he rules the motion out of order. Mr. COBB, of Georgia. I take an appeal from that decision. The PRESIDING OFFICER. The Chair desires to be indulged a moment longer, in re gard to an inquiry made by the gentleman from Georgia. It is the judgment of the Chair JAMES BUCHANAN, PRESIDENT. 135 that the Senate is sitting hero pursuant to the Constitution, and that when the Senate may determine that its duties here are ended, the presiding officer of hotli hodies will re ceive a motion from any Senator to return to its own Chamber, where its sitting will be re sumed. Tiie Senate is in session now. Mr. ORR. If the Chair will allow a sugges tion, I think perhaps we may be relieved from tai.s diffiaulty. This question arises now, whether a vote shall bo counted? A Senator, 1 think, properly objects that the vote shall be taken per capita. Let a motion be made that the Seriate retire to their Chamber to de termine the question, and allow this House to do the same. It can be done by an inter change of messages between the two Houses, when the two Houses can again come into joint convention. I wish to have my motion taken down, and then the convention can sep arate. Mr. JONES, of Tennessee. I hope that this convention will not separate until they receive the report which the tellers have to make; and it will be for the convention then to de termine what thsy will do with the report. Mr. WASIIBURNE, of Illinois. I demand the reading of all the official papers connected with the Wisconsin case. I think the con vention have the right to know what those papers are. L The PRESIDING OFFICER. The Chair will direct them to be read. Senator TRUMBULL. I rise to a question of order. It is simply this : The Senate is here in session, and we cannot vote here. I move that the Senate return to its own Cham ber. Let us there decide what we will do. A difficulty has arisen, and it cannot be settled in this body. Mr. JONE3, of Tennessee. I hope they will first receive the report of the tellers. Senator TRUMBULL. No, we do not want the report. Mr. JONES, of Tennessee. Then you will not know what you are acting on. Senator TRUMBULL. A difficulty has arisen here. Let us retire and consider it in the only constitutional way in which we can, and that is in separate bodies; and I move that the Senate return to their own Chamber to consider this question. The PRESIDING- OFFICER. The Chair would respectfully state, as his judgment, that whatever difficulty may have arisen, it cannot be officially known to either House until it is reported by the tellers, to whom the duty of counting: the votes was confided. Mr. WASHBURN, of Maine. The tellers have declared the vote, and the Presiding Officer has announced who is elected Presi dent, and nothing more is in order. It is not in order to go over the ground and report again, they having once reported the result to the Presiding Officer, and that result having boon announced by him. Senator STUART. I wish to present a question of order for the consideration of the Senate. I wish to state for the consideration of the Presiding Officer of this body, that after the tellers made the report, and the Pre siding Officer announced the result, the Con stitution, and the law of the. United States in pursuance of the Constitution, was fulfilled. Now, sir, I wish to suggest to the Presiding Officer of this body, at this time, that he place himself at the head of the Senate, and that we return to our Chamber without any further discussion, or any further motion here. I hope the Presiding Officer will pursue that course. The PRESIDING OFFICER submitted to the Senators the motion that the Senate re turn to the Senate Chamber ; and said motion was agreed to. The Senate, preceded by its President and other officers, thereupon retired from the Hall of the House, and the Speaker resumed the chair. Mr. CAMPBELL, of Ohio (while the Sen ate was retiring). Mr. Speaker, I call for the regular order of business. The SPEAKER. The gentleman from Maine [Mr. WASHBURJS"] reported from the Committee of Elections a resolution in rela tion to the seat of the delegate from the Ter ritory of Kansas, and the pending motion is to lay the resolution on the table. Upon that motion the yeas and nays have been partly taken. The Clerk, will proceed to read the votes. Mr. ORR. I object to any such proceeding. The House determined, by resolution, that they would receive the Senate in joint con vention. The object for which that joint con vention assembled has not been accomplished, and no other business is now in order, unless it be business which has arisen during the progress of that joint convention, and which must be decided by this House before the Sen ate returns. The SPEAKER. If the gentleman from South Carolina makes a point of order, the Chair overrules the point of order, and the Chair will state the ground of the decision. The House is in session for the transaction of its business, and under the rules the House can take up no other business except that which is pending. If the gentleman proposes to suspend the proceeding, and introduce a new motion, the Chair will hear what it is. Mr. HAVEN. I have a word to say upon this subject, and I would not intrude it upon the House but for the peculiar turn which the proceedings have taken. I believe the provi sion of the Constitution is that the House shall elect a President if there be a failure in the joint convention. I want to know whether that is not now the first thing in order ? [Great laughter.] Mr. ORR. I appeal from the decision of the Chair. 136 EIGHTEENTH PRESIDENTIAL TERM. Mr. SMITH, of Tennessee. If the gentleman from South Carolina will yield to me for a moment, I will make a motion which I think will entirely obviate the present difficulty. I wish to move that the vote of the State of Wisconsin be excluded from the count. The SPEAKER. No question relating to that subject can be received. Mr. ORE. Is not the House in joint con vention ? The SPEAKER. It is not. It is in session as the House of Representatives. Mr. ORR. I appeal from the decision of the Chair, and on that appeal call for the yeas and nays. The SPEAKER. The Chair will state the question. The House having resumed its reg ular session, the Chair directed the Clerk to proceed with the call of the roll, which was the business in which it was engaged when in terrupted by the special order. Mr. ORR. But the joint convention has not adjourned. The SPEAKER. It has dissolved; the House of Representatives is now in regular session. Mr. ORR. The Senate has retired to con sult and discuss a question which arose during the progress of the proceedings of the joint convention. It is now proper that we should consider the same question, so that we may be prepared to receive the Senate on its return. The SPEAKEPy. If the gentleman will sub mit a proposition in order the Chair will receive it. Mr. ORR. I propose to make this proposi tion: That the House reject the vote of the State of Wisconsin in the count which may be consummated upon the return of the Senate, because that vote was not cast on the day pre scribed by law. Mr. CAMPBELL, of Ohio. Is that motion in order ? The _SPEAKER. The Clerk will read the proposition. The ClerK read, as follows: " It appearing, from the face of the certificate of electors from the State of Wisconsin for the election of President and Vice-President, that the. vote for President and V ice-President was not cast on the day prescribed by law : therefore, " Resolved, That the vote of the State of Wisconsin be excluded from the count." Mr. ORR. I will modify that resolution so that it will read : " Resolved, That the Senate be informed that the House of Representatives have decided that the vote of Wisconsin be excluded from the count when the joint convention shall reassemble." Mr. CAMPBELL, of Ohio. I understand that the Chair has decided that we are not in joint convention ; that we are now in the trans action of the regular business of the House? The SPEAKER. The House is in session, and the Speaker is in the chair. Mr. CAMPBELL, of Ohio. I object, then, to anything but the regular order of business. The SPEAKER. The resolution is not in regular order ; but will be received unless there be objection. Mr. CARLILE. I object. Mr. ORR. 1 think there can be no question of higher privilege than my resolution, and I therefore appeal from the decision of the Chair ruling it out of order ; and on that question I call for the yeas and nays. Mr. WASHBCRKE, of Illinois. I move that the appeal be laid on the table. Mr. H. MARSHALL. I consider this an important question, and would like to say a word or two on it ; but I shall be precluded from doing so, if the gentleman from Illinois insists on his motion to lay on the table. Mr. WASHBURNE, of Illinois. I withdraw the motion to lay on the table. The SPEAKER. The House adopted an order to meet this day with the Senate for a specific purpose. That order has been com plied with. The Senate has met with the House, and it has withdrawn. The Speaker has resumed the chair, and the House is in session for the transaction of the regular order of business, The gentleman from South Carolina [Mr. ORE] has proposed a resolution which has been read to the House. The Chair is of the opinion that it is not in the regular order of business, and can be received at this time only by unani mous consent. From that decision the gentle man from South Carolina takes an appeal. The question now is: "Shall the decision of the Chair stand as the judgment of the House ? " Mr. H. MARSHALL. This matter is worthy of the most serious consideration of the House, and should be treated of calmly and consider ately, for the precedent we are now to estab lish will be cited as authority through the fu ture of this Government. The House of Rep resentatives the popular branch of the legis lative department should come full up to the line of its duty ; I ask no more. The special rule under which the Senate came to-day into this House was made in con formity with the Constitution and the law. The Constitution requires that the President of the Senate shall open all the certificates of the electoral votes in the presence of the Sen ate and House of Representatives, "and the votes shall then be counted," and the question of election or no election determined. The President of the Senate has to open all the certificates, and then Ms function is performed ; and after all the certificates have been opened, the counting of the votes is then to commence and ~be concluded. A question has arisen here to-day, when the certificate of the vote of Wis consin was opened by the President of the Senate, whether that vote should be counted ; and when that vote was challenged by a mem ber of this House, the President of the Senate undertook to say that debate was not aduiis- JAMES BUCHANAN, PRESIDENT. 137 sible upon the proposition, and proceeded to read that vote from a paper furnished to him by tellers who were appointed to keep the count, as if that vote was to be counted, when the very question before the bodies was, whether it, is a vote or not? I entered my protest, as a Representative of the people, against such a proceeding, which in effect gives a construc tion to the Constitution so as to draw the whole power into the hands of the President of the Senate ; and thereupon a question arose us to the true theory of the Constitution, and of the function of the two Houses when in the presence of each other, for the discharge of this interesting duty. What is the function of the Houses when in the presence of each other? Are they mere spectators of a scene in which the President of the Senate and the tellers are the actors, or are the two Houses to act themselves ? And if they are the actors, how do they meet and how can they act ? "When a vote is to be taken or a point determined, how do they voteper capi- t:t, as individuals in an assembly, or as Houses in a joint convention? It appears to me there is no real difficulty on the last point. Who are in the presence of each other ? The Senate as a Senate, and the House of Representatives as a House. There could be no such thing as a vote per capita, without destroying the theory on which the Constitution rests ; for it must be plain that there might exist a state of case, now or hereafter, in which, in a vote per capi ta, the members of the House would over whelm the voice of the Senate, and so draw undue power to the House, thereby enabling a dominant party of the House to execute its own purposes without regard to the wishes or views of the representatives of the States. The bodies meet, sir, and vote as distinct organiza tions ; and when a vote is to be taken the Sen ate very properly retires to consult separately how the vote of the Senate shall be given upon the question, and its vote will then be an nounced by its own appointed organ. According to my understanding, the Senate retired upon the motion of the Senator from Illinois [Mr. DOUGLAS], and I presume the Sen ate will consult as to its vote. We have now, as a House, to determine for ourselves whether the vote of the electors of Wisconsin, as certi fied by them, shall be counted among the votes cast in the late presidential election. If you adopt any other construction of the Constitution than that I have indicated, on the one hand you supersede the Houses and place all power over the count in the hands of the President of the Senate ; on the other hand you destroy the just weight of the Senate, and may establish a precedent, by virtue of which, at some future day, a large body of Representa tives may set aside an election made by the people through the electoral college, and as sume the power of bringing the election before the House of Representatives. I am, therefore, clear that the Houses meet as Houses, and no vote, pzr capita, can be taken. Still, I am sure that the duty of determining whether a vote shall be counted belongs to the Senate and House, and not to the President of the Senate; and it is a duty I insist we should per form before the vote shall be counted. The House and Senate do not play the parts of automata, nor are they mere lookers-on at a spectacle in which the President of the Senate is sole performer. As to the tellers they are part of the dramatis persons not known to the Constitution mere facilities, sir, adopted by the Houses for convenience instrumentalities, whose acts are no acts at all until the Houses adopt them. Their count of the votes is the count of the Senate and House when the Sen ate and House agree on the report they make, and then they are, as tellers, obliterated, and are not known at all in the transaction the count is performed l>y the Senate and House: and I say, sir, until the Senate and House do count the votes certified, and the certificates of which are opened by the President of the Senate in their presence, there can be no con stitutionally declared election of a President and Vice-President of the United States. The functions of the tellers commence when the Houses order them to record a vote as counted, and they have no right to register a vote* as counted, unless the Senate votes to count it and the House agrees it shall be counted. The acquiescence of each House may dispense with the formality of a separate vote on each certifi cate from the electors of a State ; but the the ory of the Constitution is as I have stated it, I think, and the responsibility of the count is on the Houses, respectively. To take a report of tellers before the Houses have counted, or be fore the Houses have agreed, respectively, to the report, and while a vote from a body of electors is under challenge from a Representa tive of the people, is premature and unauthor ized and is not a constitutional ascertainment of the election of the President and Vice-Presi- derit. The SPEAKER (interrupting). The Chair will relieve the gentleman from Kentucky of the question he is now debating. The ques tion is simply a question of priority of busi ness whether the resolution of the member from South Carolina is in order, and super sedes the regular order of business of the House. The Chair is of opinion that it does not; but if the gentleman from Kentucky de sires to make a proposition for a meeting of the two Houses for a specific purpose, the Chair will receive it as a matter of privilege, and such conditions as the House propose can be stated. Mr. H. MARSHALL. I understand the Chair has already, heretofore, decided that the resolution offered by the gentleman from South Carolina is not in order as a question of privi lege, and that an appeal from that decision is pending. The SPEAKER. It is. 138 EIGHTEENTH PEESIDENTIAL TERM. ^Mr. H. MARSHALL. Well, I am already discussing the matter pertinent on the appeal. The Chair decides the resolution out of order, because, in the opinion of the Chair, the meet ing of the Senate and House required by the Constitution has definitely closed ; while I am of opinion that it has not, and that the House should now deliberate whether, when the two Houses meet again, this House will vote to count the vote of Wisconsin or not. The Sen ate has, as I understand it, returned to its Chamber to deliberate on that proposition. The SPEAKER. If the gentleman from Kentucky will make a point of order on that proposition, the Chair will rule it so that the House can decide. Mr. H. MARSHALL. I thought the point of order was made. I thought it was made when the resolution of the gentleman from South Carolina [Mr. ORE] was offered, as a matter of privilege, rejecting the vote of Wis consin, and the Chair decided it could not su persede the ordinary pending business of the House, which has no relation to the special meeting of the two Houses. The appeal of the gentleman from South Carolina from that deci sion of the Chair rests on the ground that the special meeting has not closed, but that this House should now proceed to determine, by its own separate vote, whether it will or will not count the vote of Wisconsin, when the Senate and House meet again in order to count out the votes which have been opened in their joint presence. The SPEAKER. The point of order pre sented by the gentleman from South Carolina is, that the resolution proposed by him is in order, and the Chair thinks it is not, as not being the regular order of business under the rules. But the question whether the House is now in session has not yet been put. Mr. ORR. Will the gentleman from Ken tucky yield to ine a moment? There seems to be a difference, more in form than in substance, between the opinion of the Chair and my own. The Chair intimates that, if a proposition be made in the shape of an order, that the House continue the joint convention at a particular hour, with such limitations and instructions as the House may direct, it will be in order, and in that order it may be proper for us to say, * It is ordered that the vote of Wisconsin be not counted." Mr. H. MARSHALL. Will the gentleman permit me to close what I desire to say ? I will do so in the least possible time. I would be compelled to vote against the gentleman s resolution, because he has inserted in it " the Senate concurring," thereby making it a joint resolution of the two Houses ; whereas, I think this House determines by itself, and for itself, how its own vote on the proposition to receive or reject an electoral vote shall be cast when the Houses are acting in presence of each other. We do not want the concurrence of the Senate to enable the House to determine how it will vote ; and the view of my friend is defective, there fore, in making the concurrence of the Senate a condition on which only his resolution will be effective. This view is apart from any con siderations which may determine my vote as to whether the vote of Wisconsin should or should not be received. I do not enter on those now, because I want to see these other points set tled. The idea, as I understand the Chair, is that the joint meeting of the Houses has closed. How did it close? Has this House determined what votes, cast at the presidential election and certified, it is willing to count ? Has the Speak er of this House interchanged, by authority of this House, any words on that subject with the President of the Senate, as the organ of that House? Has this House acted at all? Has it been called to say yea or nay on any point con nected with the whole subject, and has it not merely gone so far as to see the certificate opened by the President of the Senate? Is this not, in law, all that has been done? It may be said the tellers have reported, and the President of the Senate has declared the ma jority of the President and Yice-President, and that they are elected. Mr. Speaker, one of the tellers on the stand said they had signed no report would sign none except to state the whole facts. But I care not what the tellers said .or signed, or what the President of the Senate said. He said the Senate was in ses sion here. So was the House in session. He presided over the Senate and over the conven tion; but you presided, then and there, over the House. The Houses were in the presence of each other, and each under its own officer. The Constitution requires this House to act, and to count the vote ; and my proposition is that, until the House agrees to the vote offered to be counted, it is not constitutionally count ed, and the President of the Senate cannot, of his own mere will, give that vote any force or validity in that election, or declare a result to which the House has not agreed by a count of the votes. You say the joint meeting has closed. The Constitution provides that, when the votes are " then counted," if it shall appear that a candi date has the majority, he shall be President. The law of 1792 says, on the second Wednes day in February the certificates shall be opened, the votes counted, and the persons who are to fill the offices of President and Yice-President shall he ascertained and declared agreeably to the Constitution. Ascertained by whom, sir ? declared by whom, sir? Is the President of the Senate to ascertain it is he to declare it agreeably to the Constitution? Or, are the Houses, in the presence of each other, to ascer tain the fact ; and are they to declare, through their respective organs, and in the presence of each other, who are the persons to fill these offices ? Until the fact has been ascertained and declared by the sanction of the House, I say it has not been done "agreeably to the Constitu tion." Suppose, sir, that the House should JAMES BUCHANAN, PRESIDENT. 139 not agree to the result as declared by the Presi dent of the Senate not in this case, for here there is no doubt who is elected, and we are only trying to determine what is proper, and to do that properly suppose that the result depended on this vote of Wisconsin, and that vote had been challenged, as it has been to day : would you, or any other member of this House, say that vote could be counted and the result declared without the concurrence of this Home ? Or, would not the House of Represent atives undertake, in such an event, to judge for itself whether the majority had been cast whether the vote had bean counted agreeably to the Constitution and whether it would or would not, in pursuance of a duty devolved on it by the Constitution, proceed to elect a Presi dent of the United States agreeably to the con stitutional requisition, in the event of a failure of any one to have a majority? The House holds in its own hands the means of protecting its own dignity, and of preserving^ the substan tial requisitions of the Constitution, by seeing that the votes are properly counted. Mr. CRAIGE. I understood the Chair to announce that it would receive a proposition touching the joint convention. I suggest, therefore, the propriety of a motion, to the effect that this House will appoint a commit tee of three or five to confer with a committee on the part of the Senate as to the mode of bringing this matter to a close. Mr. H. MARSHALL. There may be much in that proposition that is wise, but I cannot give way now for its introduction, as I want to conclude without turning away from the grave question on which the House is now deliberating. Has the constitutional require ment been fulfilled of counting the votes for President and Vice-President, and has the sub ject been disposed of by the decision of the President of the Senate, though a vote pro posed to be counted was objected to by the member from Virginia [Mr. LETCIIER], and be fore the House has acted upon that objection, or we have consulted as to whether it shall be counted? Has the joint meeting closed, and is the House now in session to proceed with the ordinary business? If the purpose of the Constitution has been accomplished and prop erly met, and we are to proceed to the usual routine of business, the Speaker s decision of the pending point is correct. If we are- here to deliberate as to our consent to register and count the vote of Wisconsin, then the decision of the Chair must be erroneous. But, sir, if th.3 Houses have not in the presence of each other counted the votes, and the Speaker is right in saying the joint meeting has closed, a question might arise whether we have a<cer- tained the election of the President and Vice- President agreeably to the Constitution. For my own part, I am unwilling to believe that this House means to surrender its own powers, and to agree to the exclusion of the House from a fair participation in the duty of ascertaining and disclosing the result. That is the real point at issue here, to be decided on this appeal. Will the House say that the President of the Senate has a right to pro claim who is elected President or Vice-Presi dent of the United States, when no certificate of the fact was signed even by the tellers or certified to him, when no count has been veri fied by the House as a House; but, on the contrary, a vote is disputed by a member of the House ? Will the retirement of the Presi dent of the Senate "with his Senate at his heels," if intended to be final, overcome the House, and make us yield our constitutional privilege? If the Speaker of the House an nounces that there is no longer any joint con. vention, and if the whole thing be broken up in confusion, the question may very well arise as to what then becomes the duty of the House of Representatives ? I know very well that the President of the Senate finally said that the tellers had made their report; but, as I understood him, the tellers had not completed it. I heard one of the tellers say that they did not intend to cer tify until some event occurred which had not then transpired, and in that state of facts the Senate retired from the House. The question is, for what purpose? to consult as to their vote, or upon the asumption that thoir office here had been performed fully ? If the latter, what will this House say? Mr. SMITH, of Tennessee. Will the gentle man allow me a moment ? Mr. H. MARSHALL. Will the gentleman say what he has to say when I have done? I want to guard the House, if possible, against wrong action, and to induce it to do what ia proper for its own dignity and due to the pro priety of the occasion. Mr. SMITH, of Tennessee. I want to cor rect the impression which the gentleman is making. Mr. H. MARSHALL. It seems almost im possible for a Representative to speak here except under continual interruption. Upon a subject like this, I did hope that what I had to say could have been said to attentive ears with out this; but, as it is otherwise, I prefer to yield the floor rather than to conclude under a continued stream of interrogations, and I yield the fioor entirely. Mr. QUITMAN". I think, sir, that if the House will reflect upon the consequences of any misstep in its proceedings now, it will de liberate calmly and maturely as to the proper mode which ought to be pursued. It was my fortune upon one occasion to sit as the presid ing officer over two legislative bodies assem bled in convention not, I confess, as turbu lent bodies as those I have seen here to-day. Questions of a similar character to these arose, and I have been obliged to give them some attention. But what I wish to impress upon this House now is, i hat unless some conciliation and some prudent measure takes place, this is 140 EIGHTEENTH PRESIDENTIAL TERM. but the commencement of a revolution. [" Hear, Lear I"] Do you suppose, gentlemen, that a majority of the people of the United States who, through their electoral colleges, have selected a President of the United States, will quietly submit, on account of some technical proceeding, to see that selection made by this body ? And, Mr. Speaker, unless we get out of this dilemma, I know not how we are to cure it. The question, then, is this and it was prop erly put by the gentleman from South Caro lina who introduced this resolution : was the joint convention of the two Houses termi nated by the withdrawal of the Senate? No, sir; it was terminated by no act of either branch of this convention. The convention still exists in contemplation of law. It was laid by the honorable gentleman from Ken tucky (Mr. II. MARSHALL) that we assembled here in convention as two distinct bodies, and that we must even vote upon every question, even questions of order, when appealed to, as separate bodies. In the case to which I re ferred, the President of the Senate took a vote of the Senate in the presence of the House, and the Speaker of the House took a vote of the House upon the same subject, to save time, in the presence of the Senate. But here the Senate, over whose proceedings as a distinct body we have no control, have seen fit to re turn not to break up the joint convention, not to dissolve it, but to return to their own Chamber, as we are to believe, though not officially informed of it, to deliberate upon and decide questions which arose while the joint convention was in existence. But, sir, are we to suppose that the Senate have abandoned the business which was before that body? It is still before this body, and that is the busi ness before us ; and, until it is disposed of, in my judgment nothing else is in order. There fore, it is perfectly right and proper that this House should take up the subject, decide it, aed respectfully communicate the result of our action to the Senate, and invite the Senate to return, and continue and conclude the business for which we assembled together. Mr. STANTON. I have no idea .of permit ting this question of the power of the pre siding officer of the joint convention to be overslaughed. I think my friend from Ken tucky [Mr. H. MARSHALL] makes a mistake when he assumes that because each House has a right to a separate vote, that therefore the two Houses can separate without dissolving the joint convention. I think the decision of the Chair is correct upon this point of order; and I very much regret that this question, as to the right to decide upon the validity and legality of a vote for President, should be complicated with a question of order. Now, sir, the question as to whether or not these two Houses are in convention, is a physi cal fact, determinate by observation. The question as to whether the two Houses must vote per capita upon all questions, while in joint convention, is a question to be decided at the proper time and in the proper place. But assuming that gentlemen are correct in saying that each House is entitled to a separate vote, it by no means follows that the joint con vention should be suspended or dissolved, or that the two Houses should separate. I appre hend that it is an every-day occurrence in the Legislatures of the several States, when assem bled in joint convention, that the Clerk of each branch of the body calls his own branch and records its vote, and the presiding officer of each branch announces the vote of each branch to the joint convention. But, sir, I take it that whenever the Senate or the House, which goes into the Chamber where the joint convention is to meet, and there proceeds to the consideration of the busi ness which devolves upon it, and withdraws, that withdrawal, not professedly for any tem porary purpose, not professedly for the purpose of consultation, not with the avowed purpose of returning to resume the joint convention, does dissolve the joint convention. I do not see how there is any escape from that conclu sion. I regret that this question as to the right of a joint convention to decide upon the electoral vote of a State should be complicated with a question as to the priority of business. I hope the vote will be taken. Why will not gentle men permit the result to be announced upon the motion of the gentleman from Missouri to lay the report of the Committee of Elections upon the table ? Mr. CRAIGE. However it may be in the ory, I apprehend there is no difficulty in point of fact as to whether we are in joint convention or not. Whether it has adjourned, or is mere ly suspended, is a matter of no moment. It is clear that we are not now in joint convention. I apprehend that it was the intention of the Senate to consult about this very matter ; and therefore I propose, if it is in order, to move that a committee of three be appointed upon the part of the House, to confer with a like committee upon the part of the Senate upon the subject of the reassembling of the joint convention. Mr. ORR. I desire to modify my proposi tion. I propose the following, in lieu of the resolution offered originally : Ordered, That when the Senate shall return to this House to complete, in joint convention, in pursu ance of the order of the two Houses, already adopt ed, the counting of the votes for President and Vice-President of the United States, the vote of any State cast on a day other than that provided by law, to wit. the 3d of December last, shall be rejected hy the tellers of this House. Ordered, That the Clerk acquaint the Senate with the foregoing order of this House. The SPEAKER. The proposition, in the opinion of the Chair, is in order as a matter of privilege. Mr. ORR. I have very little to say. It seems JAMES BUCHANAN, PRESIDENT. 141 jo me that that is perhaps the best way of re- .ieving ourselves of the present difficulty. If there be gentlemen here, as 1 have no doubt ;here are from the intimations which have fallen from some of them, who think that the vote of the State of Wisconsin ought to be sounted, let them move an amendment to the order. My own opinion is that the vote ought not to be counted. It was not cast on the day prescribed by law. If the States be allowed ;o cast their electoral votes on different days, you will put it in the power of the electors of ;he States to make combinations, so as to se cure the election of a President and Vice-Presi dent against the voice and will of the people. Mr. MfLLSO^i. I rise to a question of order. Mr. WASIIBURXE, of Wisconsin. I move that the order be amended, so that the vote of Wisconsin be counted ; and on that motion I desire to make a single statement. The SPEAKER. The gentleman from Vir ginia rises to a question of order. Mr. MILLSOX. I will state in advance that what I raise as a question of order may be con sidered rather as reasons why this resolution should be rejected. If, however, it be a ques tion of order in the opinion of the chair, I will only say that I will indicate the points of or der, and seek an opportunity at some other :im3 to enforce my objection to the resolution. My point of order is this : The resolution as sumes that the Senate is to return in joint con vention, when I hold that they may never, and ieed never, return, the work having been ac complished. The second point is, that the Constitution is a body of rules for the government of this House, as well as those enacted by ourselves, ind under the Constitution the Senate and the [louse of Representatives have never been, and can never be, in joint convention. The third point is, that the resolution as sumes the right of the House to reject the vote of a State given for President and Vice-Presi- dent, when no such authority has been given !>y the Constitution either to the Senate or to ;he House of Representatives, and when I ;hink the power has been wisely withheld from both to determine any such question. The SPEAKER. The Chair overrules the question ot % order raised by the gentleman from Virginia. Mr. WASHBUBN, of Maine. I wish to say a word on this point of order. The SPEAKER. Debate is not in order until the Chair has given its decision. Mr. ORR. I will relieve the resolution from one of the difficulties suggested by the gentle man from Virginia. I propose to modify it by striking out "in joint convention." The SPEAKER. The Chair is of the opinion that the resolution is properly before the House as a matter of privilege. Mr. ALLISON". I rise to a question of order. My point of order is this : that this House can not know, as a House, what has been done in joint convention until the tellers appointed by the House shall have made their report. The tellers have not made their report. The SPEAKER. The Chair overrules the question of order raised by the gentleman from Pennsylvania. The laws of the United States require the two Houses to meet in joint session on this day for a specific purpose ; and the Chair holds that a proposition relating to that purpose is in order. Such a proposition is presented by the gentleman from South Carolina. It is not necessary that a report shall be made to the House by the tellers; nor indeed are they appointed for that purpose. Mr. WASHBURN", of Maine. I do not know that I am disposed to appeal from the decision of the Chair ; but, if necessary, I will take an appeal pro forma, at least, in order that I may make a few remarks on this ques tion. We have met the Senate here to-day in pursuance of the provisions of the Constitu tion, of a law of Congress, and a joint resolu tion adopted a few days since by the two Houses. At such meeting nothing could be done except what had been authorized by the Constitution and the laws of Congress. Mr. RUFFDT. If debate is not in order, then I call the gentleman to order. Mr. WASHBURN", of Maine. I will then take an appeal from the decision of the Chair. The SPEAKER. The gentleman has the right to state his point of order. Mr. RUFFIN. He is discussing, and not stating ; and he says that it is not a point of order. Mr. WASHBURN", of Maine. I am stating my point of order, which is that the motion of the gentleman from South Carolina [Mr. OUR] is not in order. !N"ow, sir, if that motion is entertained, and prevails, we shall be here, not in pursuance of the Constitution The SPEAKER. The gentleman from Maine does not present a question of order. He will please state his question of order. Mr. WASHBQRN", of Maine. I understand the Speaker to have decided that the resolution offered by the gentleman from South Carolina was in order. I make the point that the reso lution cannot be received, because this House at this time, and in this manner, has no juris diction over that question under the Constitu tion, the laws, or the joint order of the Houses. The SPEAKER. The Chair overrules the point of order of the gentleman from Maine on the ground that it is a question for the House to decide. Mr. WASIIBURtf, of Maine. Then I i-ili* an appeal, and [ desire to state my reasons. The Constitution provides that the President of the Senate, in the presence of the two Houses, shall open all the certificates, and that the votes shall be then counted, and the person having the greatest tfumber of votes for Presi dent shall be President of the United States, if such number be a majority of the whole num- 142 EIGHTEENTH PRESIDENTIAL TERM. ber of electors appointed ; and so in regard to the Vice- President. The votes shall be opened in the presence of the Senate and House of Representatives, and then counted. By whom ? There is no provision of the Consti tution, or of law, that they shall be counted by the Senate, or the House, or by a joint conven tion. There has been no joint convention, nor could there have been any. The assem blage here could do nothing for which it had not the authority of law, and there is no law authorizing the count of these votes by a joint convention, or prescribing the rules and regu lations to be observed therein. It was the duty of the President of the Senate here, in the presence of the two Houses, to open the cer tificates, and to cause the votes to be counted. The Houses had directed how they were to be counted, by a teller appointed on the part of the Senate, and two tellers appointed on the part of the House. These tellers made the count, and here, in the presence of us all, made their report to the President of the Senate ; and the President of the Senate, in the pres ence of the two Houses, and in exact conform ity with the provisions of the Constitution, did declare the whole number of votes, and did declare who had the majority. Nothing but that co aid have been done. There was no power on the part of the Senate, or on the part of the House, to interfere with the execu tion of this duty precisely as specified in the Constitution and in the resolution of the two Houses. I hold, therefore, that no motion whatever can be made; and that the meeting under the Constitution, the law of 1792, and the joint resolution, isfunctus officio. I have no doubt, sir, that there is here a casus omissus that there is no law and no provision of the Con stitution by which anything can possibly be done, except what has been done by the Presi dent of the Senate in the presence of the two Houses. I hold that he ruled aright when he refused to entertain the motions made to him, and when he announced from the chair, in presence of the Senate, and to the House, what had been declared to him by the tellers. Thnt is all that he did, and all- that he had authority to do. I am, at the same time, very clear that it is of the highest importance that there should be some legislation on this subject. All that we can now do is to acquiesce in the de cision that has been made, and to set ourselves to work immediately for the passage of a law which will prevent any trouble or difficulty of this kind in future. I received a letter but a few days ago from a gentleman, eminent for his wisdom and ability, who stated therein that the late Chancellor Kent, of New York, had told him that here was clearly a casus omissus ; that there was no power either in the House or Senate, or in a joint convention, to interfere and participate authoritatively in counting and declaring the votes and deciding upon their validity; and he said that the chancellor added, that he feared the time .might come when the country would be shaken to its centre on this point. It is very certain, Mr. Speaker, that this vast power should not be vested in the Presiding Officer of the Senate, or in any man ; nor should it remain uncertain and unfixed by whom, and how, it is to be exercised. The presiding officer may decide all questions and justly and fairly ; or, influenced by passion and warped by party heat, he may abuse the great power. He may contrive to exclude votes legally given, and thereby to defeat the will of the people. The depositaries of this power, and the manner of its exercise, should be fixed by law of Congress, so that hereafter, when any question shall arise, as arise it will, in reference to the legality or regularity of votes for President and Vice-President, the tribunal will be established by law for its decision, and the mode, manner, and forms prescribed, so that the trial may be had and the result ascer tained under the profusions of established and known law. We cannot over-estimate the necessity of such a law. Let the election of President depend upon the vote of a single State, and let that vote be contested in earnest, what weight or power would the decision of one man have with the country, or would that of Congress possess acting arbitrarily, without law, without rules and orders of proceeding, and with a view to making the President, rather than ascertaining who has been duly elected by the people? Suppose the will of the people defeated by a partisan President of the Senate, or a partisan majority of Con gress, acting without limitations or restric tions, with no established rules and forms, but making such for the case as the exigencies of party require, and what shall save us from revolution ? Instead of passing such a law as is demand ed by the necessities of the case, do not let us go to making precedents which will be useless for good, and will fail utterly when the weight of precedents is required to resist the pur poses of unscrupulous power; do not let us entertain motions here, when the principle upon which they are offered would imply au thority on the part of the House to do what would be inconvenient, absurd, nnd unconsti tutional. If the late meeting in this Hall were a joint convention, how should it vote per capita? Whence did the House derive power to insist upon voting in this manner ? By the Houses separately ? Then one House might lock the other by passing such orders or reso lutions as that offered by the gentleman from South Carolina [Mr. GEE], with conditions an nexed? Then, if you may agree to a result upon condition that the vote of one State shall be rejected, you may require that the votes of two or ten be rejected ; and the Senate may impose similar conditions. Does any one sup pose that the counting and declaring of the votes in the presence of the two Houses, as re- JAMES BUCHANAN, PRESIDENT. 143 quired by the Constitution, can ever be had in this way? But, sir, I took an appeal from your decision to enable me to make these few remarks, and now withdraw it. Mr. WASHBUfiKE, of Wisconsin. I offer the following as a substitute for. the resolution of the gentleman from South Carolina : Whereas, the electoral vote of the State of Wis consin, cast at the late presidential election, was not cast until the 4th of December last, the day after the day fixed by law ; and whereas the presidential electors of the said State were prevented from attend ing at the seat of government on that day to cast the vote of said State, by physical impossibility caused by the act of God: Therefore, JBj it resolved, That the tellers be directed to cast the vote of the said State the same as if the said vote had been cast on the day provided by law. Mr. DAVIS, of Maryland. I rise to a ques tion of order. I object to the reception of the resolution, as it relates to no matter which the House can now legally or constitutionally have before it. The SPEAKER. The Chair is of ^pinion that the resolution is in order, as it is based upon a statute specifying that the House shall sit on this day, and shall participate in the transaction of certain business. The resolu tion of the gentleman from South Carolina re lates to that, and is necessary to its comple tion. Mr. DAVIS, of Maryland. I take an appeal from that decision. It is with great reluctance Mr. Speaker, that I detain the House for a few moments upon this question; but I entirely concur with the gentleman from Kentucky [Mr. H. MARSHALL] as to the very great im portance of the precedent that we are about to set, and therefore I beg the indulgence of the House for a few legal considerations which I think ought to decide this question. In my judgment, the phrase "joint convention" has led everybody here astray. In my judgment, the duty which was assigned to the Senate and House of Representatives has already been dis charged. In my opinion there is no judgment to be passed, either by the Senate or by the House of Representatives, or by the tellers, or by the Speaker of the House. I think that the Constitution of the United States has de fined with perfect precision what we are here to do ; and beyond that there is nothing to be done, except on a motion which has not yet been made. The Constitution says that the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the cer tificates that are laid upon your table, as con taining the votes of the various States, and the votes shall then be counted. They are to be counted in the presence not of any joint convention but of the Senate sitting separate ly, and of the House sitting separately as sep arate Houses. It does not say that any result shall be announced. It does not require any judgment to be declared. It does not confer on either the Senate or the House the power to authorize the President of the Senate to declare who is the President of the United States. Mr. QUITMAN. Will the gentleman per mit me to ask a question ? Who is to count the votes, and to decide whether a vote is to be counted or not ? Mr. DAVIS, of Maryland. That is the pre cise point I rose to explain my views upon. The votes are to be " counted," and there the Constitution stops. What do gentlemen mean by the word "counted?" Do gentle men mean that counting a vote here has the effect of a judgment upon the vote that is counted and admitted, or upon a vote which is not counted and is rejected ? Do they mean to say that if a vote were rejected here upon the count by the tellers, or were admitted, it would bind any authority known to the laws of the United States ? It is that fertile source of all difficulty, this ambiguity in the phrase we are using. I apprehend that the only pur pose of assembling here is to identify the things which are sent here as votes. The act is a ministerial, and not a judicial one. Counting, or refusing to count, has no effect. Whether a vote shall or shall not have the effect of electing a President, is, after the mere min isterial act of counting out the things sent here by the various States, referred by the Consti tution of the United States to the body that is to elect in the event of a failure of election, and there is no motion that can be made here which can raise this question, unless some gen tleman shall rise and move, in pursuance of the Constitution of the United States, that the House now proceed to the election of a Presi dent; and when that shall have been done, and the question shall have arisen whether the papers laid upon the Speaker s table, identified by their official certificates, counted by the gentlemen who are appointed to count, are legal or illegal, that question the House, and the House alone, have the power to decide ; and, until we are called upon to decide upon the question whether we shall or shall not elect a President, there is no practical ques tion which can be raised in this House, upon which our decision" would be final. Although this House should go on and pass separate votes upon every vote before them, I appre hend they would be extra-judicial opinions upon facts which they have no right to pass upon separately, and they can only pass upon them upon the motion, or upon the presump tion that there is no election ; and the only decision this House can come to is, whether they will proceed or not now to elect a Pres ident. I presume that, with reference to the Vice-President, exactly the same question de volves upon the Senate, untrammeled by any count or refusal to count, accepting nothing as the basis of their decision except the papers identified here identified before the Senate and the House as witnesses to the fact. Now, sir, no strict constrtictionist, or wide EIGHTEENTH PRESIDENTIAL TERM. and loose constructionist, can find any function confided to both Houses together, or to one separately, which enables them to pass prelim inarily upon the point whether one vote shall be counted, or another rejected. No judgment is called for at all. On the contrary, the Con stitution carefully avoids asking for any judg ment by anybody upon a mere count. It does not say that anybody shall be declared Presi dent of the United States ; it does not say that anybody shall decide that question in joint convention ; but it simply says "the votes shall be counted ; " that is, that the things here as votes shall be ascertained, and that he who has a majority of votes shall be the President not that he shall be here declared President, for the law declares him ; and, the only way we can get on record any judgment of ours properly under the Constitution is, for some gentleman to move the practical question that this House do now proceed to elect a Presi dent. The moment that one practical ques tion is put, it appears how entirely futile all this difficulty is. There are cases where it might be important to determine whether this is, or is not, a legal vote ; but that case does not now arise; and no tribunal, no court, no judicial body, moots a mere abstract question of law. We are called upon here to enter nothing on the record, to pass no judgment, until culled upon to elect a President; and then we settle the great result that there is an election of President by refusing to go on and perform that duty. I submit, therefore, that the formal counting out of the certificates by the persons appointed has discharged all the functions which the Constitution requires to be performed in the presence of the two Houses, and they having been witnesses of that one fact, there is no reason why they should assemble again. Our tellers are called upon to give no certificate by any law. We are not called upon to identify the fact in any other manner than simply by counting out the votes ; and when the certifi cates have been opened, the Constitution itself declares to the legal mind of the body the fact that a President has been elected. Mr. COBB, of Georgia, obtained the floor. Mr. WASHBUKN, of Maine. Will the gen tleman from Georgia yield me the floor for a single moment, to read a few words from Kent s Commentaries? Mr. COB 13. I will yield the floor for that purpose. Mr. WASIIBURN" (reading) : " The act of Congress of 1st of March, 1792, sec tion 2, directs that the certificate of the votes shall be delivered to the President of the Senate before the first Wednesday of January next ensuing the election. The President of the Senate, on the sec ond Wednesday in February succeeding every meet ing of the electors, in the presence of both Houses of Congress, opens all the certificates, and the votes are then to be counted. The Constitution does not exress by whom the votes are to be counted and the result d eel tired. In the case of questionable votes and a closely-contested election, this ^xjWt r may lie impor tant f and I presume, in the absence of all legislative provision on the subject, that the President of the Senate counts the votes, and, determines the result. and that the Nouses are present only as spectators to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors. The House of Representatives, in such case, are to choose immediately, which, I presume, may be while the two Houses are together, though they may vote after they have retired, for the Constitution holds their choice to be valid, if made before the 4th day of March following." Mr. COBB, of Georgia. I think there are very important questions connected with the subject now before the House, and it strikes me that the two Houses are in the best possible condition to decide those questions properly, as I see no practical result to flow from any decision pronounced upon any point. The whole difficulty which arose while the two bodies were together was upon the simple point whether the presiding officer over the two bodies should decide when we had com pleted the duties for which we had assembled, or whether that question should be decided by the two bodies themselves. That is the point, and the only point ; and when we are relieved from that difficulty all others cease to exist. Kow, during that session I submitted that point to the presiding officer, and I then in sisted, and I now insist, that it was not within the province of the presiding officer to deter mine for the two Houses when the work had been completed, or to dissolve the joint con vention, or whatever else you may see proper to call it. And the question is, whether or not that question is to be decided when the two Houses are together, by the members of the two Houses per capita, or as Houses respec tively ? I confess, sir, that that is not free from difficulty. On the first suggestion of this ques tion, I was inclined to the opinion that it should be decided by the members of both Houses voting per capita. I listened with in terest and instruction to the able argument of the gentleman from Kentucky [Mr. H. MAE- SHALL] on this point; and I am inclined now very strongly to the opinion, that while the presiding officer shall not decide, but the two Houses shall decide, yet they must decide it as Houses, one as the Senate, and the other as the House of Representatives. If they differ, there is, I confess, no provision for that con dition of things ; and a casvs omiamis exists. Now, in reference to the view suggested by the gentleman from Maryland [Mr. DAVIS], I am not prepared to condemn it, but I will suggest to him the difficulty as it occurs to my mind. The student of the Constitution of this country finds no unmeaning provisions in it. Would the framers of that instrument have provided that the duty of examining and count ing the votes cast for President and Vice- President should be discharged in the presence of both Houses, and then leave the decision to be made by one House alone, and that, too, the House which was to elect a President, pro vided there was a failure to elect by the elec- JAMES BUCHANAN, PRESIDENT. 145 toral colleges ? If the argument of my friend from Maryland be well taken and sustained, then, sir, the President and members of the Senate are here for no practical purpose. Every duty could be as well performed by the Speak er and the House of Representatives alone. They could as well go through with the sim ple function of opening and recording the pa pers which have been returned to the t\vo bodies. If a question arises whether or not one of these papers is a forgery, who is to de cide it ? If a question arises whether or not one of these papers should be counted, who is to decide it ? Who is to decide either of these questions? Upon the theory of my friend from Maryland, nothing can be done except to make a record of the papers which have been placed in the charge of the President of the Senate. But when the Senate have retired, then the duty, the important duty, the great re sponsibility, according to the gentleman, is placed on this House to decide whether or not an election has transpired, and that if a ma jority of this House sees proper to declare that, on account of informalities, on account of one cause or another, the vote of this State, and of that and the other State, shall be re jected, so that the record shows no election has been had in conformity with the Constitu tion, then we are to proceed to elect a Presi dent of the United States. I say that the the ory of our Constitution could not have con templated such a state of things as that, and could not have required the President of the Senate and the Senate to come to this Hall to be witnesses of this transaction, with all the power residing in the House of Representa tives to determine the question. It strikes me, therefore, as the better course to be pursued in this state of things, that when a question arises, and the two bodies are to gether, it should be settled with the two bodies sitting here ; for, as the presiding officer of the joint convention very properly declared, the Senate was then in session, and he enter tained a motion from a Senator, and put it to the Senate to be voted on. Why could not the Senate then have acted on any question ? Why could not the House have acted on any ques tion ? Why could they not have cast their votes respectively ? This presents a fair op portunity of deciding this question, free from difficulty. What occurred during the time the two Houses were together ? The votes were counted, the tellers reported, and the presiding officer announced the result. The question arose as to the vote of the State of Wisconsin. That State did not vote for the persons elected ; but, whether counted or not, it would not change the result. Bat a case may arise here after when such a vote may change the result ; and I think we ought now to prepare for such an emergency. It strikes me that the suggestion made by my friend from North Carolina [Mr. CKAIGE] was entitled to more consideration than the 10 House has been disposed to give it ; and that was, that committees of the two Houses should meet and confer on this subject. If in the view presented by my friend from Virginia [Mr. MILLSOX] we have completed our work done all that is necessary to be done then I am inclined to the opinion that we have gone far enough for all practical purposes ; but if a majority of this House think we have not, if any member of this House is of the opinion that the duty devolving on the House under the Constitution and the law of the land has not been discharged, that member and that ma jority of this House cannot, without perjury resting on their consciences, adjourn this body until that work is completed. The House must see that the work has been done, that the declaration has been made and the duty dis charged, or, sir, you walk over the provisions of this Constitution, and disregard a duty you have sworn to discharge. I think, under this state of things, that it is well for the House to stop and consider ma turely, and free from all feeling and prejudice, there is nothing to cause it here fortunately; for the decision of such an important issue there is nothing to inflame the passions of members, nothing to swerve their judgments from a proper decision in this case the reso lution now before it. I object to the resolution of my friend from South Carolina, because I am not prepared to say that we have not gone as far already as is necessary in the discharge of our duty. That is my only objection to the resolution of the gentleman from South Carolina. I would prefer, if I could get the concurrence of the Senate and the House of Representatives, the adoption of the resolution of the gentleman from North Carolina. Let this House by its committee meet a committee of the Senate. Let us consider the questions which have arisen in joint convention, and pronounce such a judgment as will afford a precedent for the future one that the country can safely act upon and will acquiesce in. Mr. BINGHAM. Mr. Speaker, I desire to submit some remarks for the consideration of the House on the resolution submitted by the gentleman from South Carolina. The ques tion of the rejection of the vote of Wisconsin can in no manner affect the result of the elec tion, but its decision is made important only from the fact, that it has been assumed by the President of the Senate, when objection was made by a member of this House to the recep tion of that vote, that neither the two Houses, nor any member thereof, could be heard upon the question ; that it depended for its deter mination exclusively upon himself and the tellers. I cannot assent to that, nor to the opinion expressed by gentlemen here, that the two Houses are, in convention assembled, only in the capacity of spectators. It seems to me that the Constitution imposes upon Congress the Senate and House the duty of counting EIGHTEENTH PRESIDENTIAL TERM. and announcing the whole of the votes duly certified as having been cast for President and Vice-President on the day prescribed by law, and the further duty of ascertaining and de claring for whom, such votes were given. It is not for the President of the Senate nor the tellers to determine what votes shall be counted or rejected. The Constitution pro vides that " the President of the Senate shall, in the presence of the Senate and House, open all the certificates ;" but it does not provide that he shall count the votes, the language being that " the votes shall then be counted." What votes shall then be counted ? All that appear upon the face of the certificates thus opened ? Not at all ; but only the votes to which each State is entitled, and which by the certificates appear, or may presumed to have been given at the time required by the Consti tution, and prescribed by the statute. The Constitution provides (article two, section one) that " the Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which DAY shall be the same throughout the United States." The act of March 1st, 1T92, section two, pro vides that "the electors shall meet and give their votes on the first "Wednesday in Decem ber ; " and section four of the same act pro vides that " Congress shall be in session on the second Wednesday in February succeeding every meeting of the electors, and the said certificates shall then be opened, and the votes counted, and the persons who shall fill the offices of President and Vice-President ascer tained and declared, agreeably to the Consti tution." Congress, composed of the Senate and House, shall be in session on this day for what ? To look silently on, while the President of the Senate and the tellers jointly and severally as certain and declare who are elected President and Vice-President of the United States? The two Houses are here to count the votes, and to ascertain and declare the result. The President of the Senate and the tellers are but the mere agents or organs of the two Houses. .The DUTY to ascertain and declare these results is, in my opinion, devolved upon the two Houses, not upon the President of the Senate or the tellers. The two Houses are thus convened, not to elect a President and Vice-President, but to ascertain and declare the election which has been made (if any) by the electors appointed by the people in the several States. In the discharge of this duty, the Congress may not go behind the certificates, and inquire into the qualifications of the electors, or into any other fact not appearing upon the certificates. But, sir, the two Houses, in my judgment, may and should reject all votes which are certified to have been given on a day other than that pre scribed by law. Such a certificate upon its face shows that such votes were given con trary to the Constitution and the act in aid of the Constitution. The constitutional provision that " the votes shall then be counted " can only be construed to mean the votes given on the day prescribed by law, which the same in strument declares " shall be the same day throughout the United States," and that Con gress may determine the day on which such votes shall be given. That day Congress has fixed, and the certificate of Wisconsin shows that the votes of her electors were not given on that day, but upon another day. I am convinced that it is the office and duty of the House and Senate to see that no votes are counted which, by the certificate opened and read in their hearing, were given con trary to the express requisitions of the Consti tution and the statutes; and that they have no right to count votes certified to have been given for President or Vice-President on a day different from that prescribed. The electors of the several States cannot meet on different days, and vote for President and Vice-Presi dent ; and if they do, and so certify the fact, it is neither the province nor duty of the two Houses of Congress to ascertain and declare an election upon votes so certified. I am, there fore, for some declaration on the part of the House to that effect. Mr. SCOTT. Allow me to make an inquiry of the Chair. I understand that our Journal will show the action of the convention. The SPEAKER. The House has no Journal of the convention. Mr. BOYCE. Difficulties of a somewhat similar kind, Mr. Speaker, to those which now exist, have occurred before. In 1821. objec tion was made to counting the votes of the State of Missouri. I shall read what Mr. Clay said on that occasion, and how the difficulty was obviated. It seems to me that by pursuing the same course all the difficulties in this case will be obviated. u Mr. CLAY said he really saw no difficulty in this business ; and, before he sat down, should make a motion, with a view to put an end to this discussion. The House and Senate have, by a joint act, this day agreed that, in the event of an objec tion being made to the vote of Missouri, her vote should be counted hypothetically ; that the whole number should be announced, including the vote of Missouri, and that the number should also be stated as it would be, the vote of Missouri being excluded ; and the result not varying, that it should be de clared that, in either case, the person having the largest number of votes was duly elected. The mo tive which operated on the joint committee in rec ommending this course, and on the two Houses in adopting it, was to avoid the very difficulty into which the House was about to precipitate itself. It was an effort to provide, by previous arrange ment, for the very contingency which has arisen. The moment the objection was made, in that instant the rule adopted this morning took effect. Mr. Clay said it therefore appeared to him, with very great deference to the course of the presiding officer of the Senate, that he ought to have gone on, and, after the votes had been summed up, to have made the annunciation as proposed in the joint resolution adopted this morning. " The two Houses ought not, in the opinion of Mr. JAMES BUCHANAN, PRESIDENT. 147 Clay, to have separated until they have consummat ed what had been stipulated for. He was now not willing to take up any proposition on this subject or any other, however unwilling: he might have been to meet it at any other time. He was opposed to do so, because to do so is a violation of good faith between the two Houses, as pledged by the arrangement of this morning. He had not a doubt, he said, that Mis souri might be admitted into the Union in a variety of ways, and very possibly, on proper examination, the mode now proposed might be one of them, by the two Houses, jointly or separately, giving her the exercise of a right which, as a State, would belong to her. The House, however, as well as the Senate, had virtually determined to get round that question to-day, and to put an end to any controversy which might arise in respect to it, in the manner contem plated by the second resolution passed this morning. Mr. Clay therefore moved that the subject now un der consideration be laid on the table, in order to resume- the business which had been interrupted by the retirement of the Senate." Mr. BOYOE. The question was then taken on Mr. Clay s motion to lay the resolution on the table, and it was decided in the affirmative ; and then, on motion of Mr. Clay, it was or dered that a message be sent to the Senate to inform that body that the House was ready to receive the Senate in the Chamber of the House of Representatives, for the purpose of continuing the enumeration of the votes. I move, then, Mr. Speaker, first, that we adopt a resolution that the vote of Wisconsin be counted hypothetically ; and, secondly, that a message he sent to the Senate inviting that body to come in and continue in convention until the announcement is made. The SPEAKER. There is an appeal from the decision of the Chair pending, and the motion cannot now be received. Mr. SHERMAN". I move to lay the resolu tion on the table. Mr. FLORENCE. I submit a question of privilege. The SPEAKER. The gentleman from Penn sylvania rises to a question of privilege. Mr. FLORENCE. . Mr. Speaker, my ques tion of privilege is this : That, in compliance with the requirements of the Constitution and the act of Congress in relation to the subject, the Senate and House of Representatives hav ing assembled in joint convention, and having counted the votes, and the result having been duly pronounced and declared, there is nothing left but to adopt the resolution I submit, pro viding that a committee be appointed to inform James Buchanan, of Pennsylvania, that he has been elected President of the United States for the constitutional term, beginning on the 4th day of March proximo; and also to in form John 0. Breckinridge, of Kentucky, that he has been elected Vice-President of the United States for the same period. The fol lowing is the resolution : The Senate and House of Representatives having, in obedience to the requirements of the Constitution, assembled in the House of Representatives to count the votes cast for President and Vice-President of the United States, and it appearing that James Buchanan, of Pennsylvania, having received a ma jority of the votes cast for President of the United States, which said result having been pronounced and declared; and it also appearing that John C. Breckinridge, of Kentucky, having received a ma jority of the votes cast ^for Vice-President of the United States, which said result having been pro nounced and declared ; and it appearing that James Buchanan and John C. Breckinridge having received more than the constitutional number of the votes cast, without any question* or contest, objection or doubt : Resolved, That the Speaker of the House be re quested to appoint a committee, to act in conjunc tion with a similar committee of the Senate, to wait upon James Buchanan, of Pennsylvania, and inform him he has been elected to be President of the United States for the constitutional term of four years, com mencing on the 4th day of March, 185Y ; and also to wait upon John C. Breckinridge, of Kentucky, and to inform him that he has been elected Vice-Presi dent of the United States, for the constitutional term of four years, commencing on the 4th day of March, 1857. The SPEAKER. The resolution, in the opinion of the Chair, is not a question of privi lege, and is not in order at this time. Mr. FLORENCE. Very well, sir. It, how ever, occurred to my inind we had nothing else to do upon the subject but to pursue the course I have indicated. Mr. CAMPBELL, of Ohio. I ask my col league to withdraw the motion, until I can have read for information a resolution which I propose to offer as a substitute. Mr. SEWARD. I object. The SPEAKER. The motion to lay upon the table is not received pending the question of order as to whether the resolution itself can be received. Mr. SHERMAN". I move to lay the appeal from the decision of the Chair upon the table. Mr. FLAGLER (at twenty-five minutes to four o clock p. M.). I move that the House do now adjourn. The motion was not agreed to. Mr. AKERS. I move that the House take a recess until seven o clock. The SPEAKER. The motion is not in order. Mr. CAMPBELL, of Ohio. I ask to have my proposition read. Mr. SEWARD. I object. Mr. DAVIS, of Maryland. I withdraw the appeal from the decision of the Chair. Mr. CAMPBELL, of Ohio. I now propose as a substitute for the resolution of the gentle man from South Carolina the resolution which I send to the Chair. Mr. SEWARD. I rise to a question of order. The resolution of the gentleman from South Carolina was offered as an original proposi tion. A substitute was proposed for that by the gentleman from Wisconsin. My point of order is, that no other substitute can be in order. The SPEAKER. The gentleman from Wis consin moved to amend the original resolu tion ; and the gentleman from Ohio moves an amendment to the amendment, which is in order. The substitute offered by Mr. CAMPBELL was then read, as follows : 148 EIGHTEENTH PRESIDENTIAL TERM. Whereas the members of this House are satisfied that, in pursuance of the Constitution and laws of the United States, James Buchanan, of Pennsyl vania, has been elected President, and that John C. Breckinridge, of Kentucky ? has been elected Vice- President, for the constitutional term of four years from the 4th of March, 1857 ; and whereas they are further satisfied that a majority of the people of Wisconsin cast their votes for John C. Fremont as President, and William L. Dayton for Vice-Presi dent, and that the electors, by act of Providence, failed to cast their votes upon the day fixed by law ; and whereas the vote of the said State of Wisconsin cannot affect the result of the election : therefore, Resolved, That when the Senate again return to the Hall of the House of Representatives, under the provisions of the joint resolution, it is the opinion of this House that the vote of said State of Wiscon sin ought to be counted. Mr. LETCHER. I would suggest? to the gentleman from Ohio that he add to his resolu tion, that a committee be appointed to notify the Senate. Mr. CAMPBELL, of Ohio. The Senate left this Hall of their own accord, and when they see tit to return, this resolution, if passed, car ries with it the expression of the sense of this House. I am not in favor of sending any com mittee after that body. They left us, a co ordinate and coequal branch of the National Legislature, of their own will, abruptly ; and when they return here I trust we will receive them and treat them with becoming courtesy. No difficulty can grow out of the adoption of this resolution in future. It simply puts the facts of the case on record, and establishes no dangerous precedent. Mr. GARNETT. I desire to know of the gentleman from Ohio whether a single human being in the State of Wisconsin voted for John C. Fremont for President, or for William L. Dayton for Vice-President; and I wish to know, further, whether in the purview of the Constitution, and according to the facts, the people of that State did not cast their votes for electors of President, and not for President directly ; and whether he means to have this House stultify itself by declaring, by this reso lution, that to be a fact which is not a fact ? Mr. CAMPBELL, of Ohio. I will modify my resolution so as to meet the gentleman s peculiar views or abstractions. 1 will insert before "John C. Fremont" the words "elec tors favorable to the election of." And now, Mr. Speaker, having accepted the suggestion of the gentleman, and having modified my amendment, without going into any elaborate argument upon the abstruse principles of the law bearing upon this case, I will content myself by bringing the House, if I can, to a vote upon the proposition. I therefore move the previous question. Mr. JONES, of Tennessee. I wish to appeal to the gentleman from Ohio to withdraw the call for the previous question, that I may make a few remarks, as I was one of the tellers on the part of the House, and have not had an opportunity to say a word upon this question. Mr. CAMPBELL, of Ohio. The position of the gentleman from Tennessee is somewhat peculiar, he having been one of the tellers on the part of the House ; and with the under standing that he will renew the call for the previous question, I will withdraw it for his benefit. Mr. BOYCE. What has become of the res olution I sent to the Clerk s desk ? The SPEAKER. It was not received. Mr. JONES, of Tennessee. Mr. Speaker, I think there is no necessity for any of this ex citement or feeling en the present occasion. Mr. DUNN. I ask my friend from Tennes see to permit a resolution I have prepared, and which, when in order, I will submit, to be read for information. Mr. JONES, of Tennessee. No further amendment is now in order. Mr. SEWARD. And I object to the read ing of the resolution. Mr. JONES, of Tennessee. I have a very few remarks to make. I would say that I have no feeling on this occasion ; nor, Mr. Speaker, do I see the reason for any feeling or excite ment on the part of this House. The Senate and House of Representatives met here this morning, in pursuance of the Constitution and the law of the country, to open and count the votes cast for President and Yice-President of the United States. The President of the Sen ate, to whom the reports of the votes of the electoral colleges were made, opened them and handed them to the tellers appointed by the two Houses. The tellers reported these votes to the two Houses. When the vote of Wiscon sin was handed to the tellers, I read it to the two Houses. I read every word of the certifi cates attached to the vote of that State. It was dated December 4, 1856, the day after the day prescribed by law for the casting of that vote. The other certificates seemed to be in regular form. When I made the report from the tellers to the two Houses, I stated that of all the votes cast, James Buchanan, of Pennsylvania, had received for President of the United States 174 votes ; John C. Fremont, of California, in cluding the vote of Wisconsin, 114 votes ; and Millard Fillmore 8 votes; and that John C. Breckinridge had received for Yice-President of the United States 174 votes ; William L. Dayton, including the vote of Wisconsin, 114 votes ; and Andrew J. Donelson 8 votes. Now, what is the plain provision of the Con stitution ? After directing that the returns of the electors shall be sealed, and sent to the President of the Senate, it then provides that the President of the Senate shall, in the pres ence of the Senate and the House of Represen tatives, open all the certificates, and the vote hall then be counted. Was not that done, and was not the Constitution complied with ? It goes on then to say that the person having the greatest number of votes for President shall be President, if such number be a major ity of the whole number of electors appointed. JAMES BUCHANAN, PRESIDENT. 149 Is there a gentleman on this floor, or who was in the joint meeting of the two Houses, who doubts or questions the fact that Mr. Buchanan has received a majority of all the electoral votes, and is, therefore, elected President of the United States for the next four years? Here is the law of 1792, which provides : " 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 of the United States ascertained and declared agreeably to the Constitution." All this has been complied with ; the certifi cates were opened, the votes counted, and the tellers made their report. The presiding offi cer of the two Houses reported the result, and declared that James Buchanan, of Pennsyl vania, was duly elected President of the United States for the constitutional term of four years from the 4th of March next, and that John 0. Breckinridge was duly elected Vice-President of the United States for the same period. Mr. WELLS. I ask whether the gentleman from Tennessee knows why the electors of Wisconsin did not cast their votes on the proper day? Mr. JONES, of Tennessee. That was stated in a certificate on the other side of the paper which contained a statement of the votes. Mr. WELLS. I ask the gentleman whether the tellers read that to the convention ? Mr. JOKES, of Tennessee. We did not read it to the convention. Mr. WELLS. I call for the reading of that certificate. Mr. JONES, of Tennessee. That certificate is, I presume, in the hands of the Senate, as all the certificates of votes were taken by that body. It is known (and I suppose there is no controversy about that) that the reason why they did not assemble on the prescribed day was in consequence of the terrific storm by which their progress was impeded, and which prevented them from reaching the seat of gov ernment in time to cast their votes on the day prescribed by law. That is the reason. It makes no sort of difference, it seems to me, whether or not we put down the votes of Wis consin, and say they shall be counted. If they had cast their vote on the proper day, Mr. Fre mont would have received it. It makes no sort of difference now, whether any one of the votes cast for Mr. Fremont was legal or not, or wheth er they were all illegal. It does not change the result. Mr. Buchanan and Mr. Breckin ridge received one hundred and seventy-four electoral votes. It is conceded by all that they were legal and constitutional ; that they were cast on the day prescribed bylaw. Therefore, no exception can be taken to them. Now, it is argued here that it is all-impor tant to settle this question, for fear of the tremendous precedent we are about to set. Why, sir, is there a gentleman who believes (let us say what we will on this question) that at some future election a case can arise where (when the electors do not meet for one, two, three, or four days after the day prescribed by law, and when the votes of those States would affect or change the result) this would be held to be a precedent a controlling and influenc ing precedent, to be interpreted in favor oi the election of the gentleman who would have succeeded to the Presidency if the votes of the electors had been cast on the proper day ? I presume not. I have nothing more to say on the subject; and, as I received the floor from the gentleman from Ohio on condition that I should renew the previous question, I do so. Mr. SMITH, of Tennessee. I move to lay the whole subject on the table. Mr. H. MARSHALL. On that motion I call for the yeas and nays. Mr. KUNKEL (at four o clock P.M.) moved that the House adjourn. Mr. OOBB, of Georgia, called for the yeas and nays. The yeas and nays were ordered. The question was taken ; and it was decided in the negative yeas 80, nays 94 ; as follows : YEAS Messrs. Akers, Albright, Allison, Ball, Barbour, Billinghurst, Bingham, Bishop, Bliss, Branch, Brenton, Broom, Buffinton, Burlingame, Clawson, Clingman, Colfax, Comins, Cox, Cum- back, Henry Winter Davis, Timothy Davis, Dick, Dickson, Dodd, Durfee, Etheridge, Flagler, Henry M. Fuller, Galloway, Eobert B. Hall, Harlan, Harri son, Herbert, Halloway, Thomas E. Horton, Valen tine B. Horton, Howard, George W. Jones, King, Knapp, Knox, Kunkel, Leiter, McCarty, Morgan, Morrill, Murray, Norton, Andrew Oliver, Parker, Pelton, Perry, Pettit, Powell, Pringle, Purviance, Eeady, Eicaud, Sabin, Sage, Sapp, Savage, Sher man, Samuel A. Smith, Spinner, Tappan, Todd, Tyson, Wade, Wakeman, Waldron, Cadwalader C. Washburne, Elihu B. Washburne, Watkins, Wat son, Wood, Woodworth, and Daniel B. Wright 80. NAYS Messrs. Aiken, Allen, Barksdale, Hend- ley S. Bennett, Benson, Bocock, Boyce, Burnett, John P. Campbell, Lewis D. Campbell, Caruthers, Chaffee, Ezra Clark, Howell Cobb, Williamson E. W. Cobb, Cragin, Craige, Crawford, Damrell, Da vidson, Day, Dean, Dowdell, Dunn, Emrie, Eustis, Faulkner, Florence, Foster, Thomas J. D. Fuller, Garnett, Goode, Greenwood, Augustus Hall, J. Morrison Harris, Haven, Hickman, Hodges, Hoff man, Houston, Jewett, J. Glancy Jones, Kelly, Kidwell, Knight, Knowlton, Lake, Letcher, Lump- kin, Humphrey Marshall, Samuel 8. Marshall, Max well, McMullin, McQueen, Smith Miller, Millson, Millward, Moore, Mott, Nichols, Mordecai Oliver, Orr, Packer, Paine, Peck, Pike, Puryear, Quitman, Eeade, Eoberts, Euffin, Scott, Seward, Shorter, Wil liam Smith, Sneed, Stanton, Stewart, Stranahan, Talbott, Taylor, Thorington. Tratton, Trippe, Valk, Walker, Warner, Israel Washburn, Wells, Wheeler, Williams, Winslow, Woodruff, and John V. Wright 94. So the House refused to adjourn. Pending the c.nll, Mr. CAMPBELL, of Kentucky, stated that his colleague, Mr. UNDERWOOD, was detained from the House by indisposition. Mr. COLFAX moved a call of the House. 150 EIGHTEENTH PRESIDENTIAL TERM. Mr. WRIGHT, of Mississippi, called for the yeas and nays. And then, on motion of Mr. WASHBTJENE of Illinois (at four o clock and twenty min utes), the House adjourned. Ix SENATE. Thursday, February 12, 1857. (" Congressional Globe," 34th Cong., 3d Session, pp. 662-668.) On motion of Mr. WELLER, the Senate re sumed the consideration of the following reso lution submitted by him yesterday : Jfesolvdd, That a committee of one member of the Senate be appointed by that body, to join a committee of two members of the House of Representatives, to be appointed by the House, to wait on James Bu chanan, of Pennsylvania, and notify him that he has been duly elected President of the United States for the constitutional term, to commence on the 4th day of March, 1857 ; and, also, to wait on John C. Breck- inridge, of Kentucky, and inform him that he has been duly elected Vice-President of the United States for the constitutional term, to commence on the 4th day of March, 1857. The pending question being on the amend ment offered by Mr. CEITTEXDEN to add to the resolution But itis resolved furthermore, That the vote of Wis consin, being given on a day different from that pre scribed by law, ought not to have been included in the count of the electoral votes ; and that any mem ber of either the Senate or the House of Represent atives had the privilege and right to object to count ing the said vote, and that it was competent for the Senate and House of Representatives alone to decide upon that objection Mr. THOMPSON, of Kentucky. Mr. Presi dent, it is with great reluctance and diffidence that I express a legal opinion in reference to this matter. I, however, feel constrained to do so, because I believe there has been a con fusion of ideas, and a misunderstanding in rela tion to it. So far as the resolution of my col league declares that the vote of the State of Wisconsin ought not to be counted, I believe it is correct and proper, and I would so vote. I do not, however, believe in the right of any member of the Senate or any member of the House to object when we were in joint session, or to take any part in it ; and I will proceed to show very briefly why I do not believe it. I will read from the Constitution of the United States, and I will state very concisely what my view is. The Constitution provides: u The electors shall meet in their respective States and vote by ballot for President and Vice- President, one of whom at least shall not be an in habitant of the same State with themselves." I believe the State of Arkansas was particu lar enough to certify that fact : "They shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as Presi dent, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, direct ed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certifi cates, and the votes shall then be counted." Now, sir, I apprehend the whole of this dif ficulty began in what was an original error. The votes are sent here to the President of the Senate, who, as the officer presiding over the representatives of the States, is to open and count them. The Constitution says it shall be done in the presence of the Senate and House of Representatives. The House of Representatives might have been invited to this Chamber, or we might have gone to theirs. You, sir, according to my opinion, ought to count those votes, as the Presiding Officer of the Senate. I suppose that notions of convenience heretofore dictated to us the propriety of our going to the Chamber of the House of Representatives. This being a small Chamber, we did not wish to bring the mem bers of the House of Representatives here, and seat them around in the ladies galleries be cause they were curious to see, or put them in privileged seats, or niche-hole or pigeon-hole them in one place or another. As the Presid ing Officer of the Senate, the direction of the Constitution is, that you, sir, shall open and count the votes that is your duty before the Senate, and the members of the House of Rep resentatives are to be present as witnesses. In the contemplation of the framers of the Consti tution, what could have been meant by this? The idea was, that we were not to go into executive session, nor by some secret cabal or clandestine arrangement get together here and have a coup ffetat, and make a President. But the contemplation of the Constitution was, that the House of Representatives were to be present as witnesses, to see that the count was fair; that the Senate were to regulate the mode of counting, and that we should not have a secret session and exclude the other House. We might invite them here ; and, as a matter of courtesy between the two Houses, probably we ought to have invited them here. You know, sir, how these matters are gen erally arranged. Some person who is super- officious, and wishes to get placed at the head of a committee, and get his name in print I will not say in this body or in the other House, but anywhere else you please gets up and moves that such a thing be done. You go there, with the officers of your House, dress ing up your Secretary of the Senate and the Sergeant-at-Arms in the insignia of office, one man taking the right and the other the left, just as they do at an English dinner. The Constitution, in my judgment, is that hese votes are to be returned to us, and counted by us, and the House of Representatives are admitted to be present at the count to prevent a combination, a clandestine operation, a secret session, a coup d etat. The idea is that the people s Representatives, having a right to look on, by their majesty, by their presence, repre senting the people in their integrity and in their JAMES BUCHANAN, PRESIDENT. 151 might, may overawe us, and prevent us from acting unfairly. They are present to know the result, when it is declared. I suppose that the reason the House of Representatives have never met in this Chamber for this purpose, and have not been invited here, was that we had no place in which to put them, and we were com pelled to go to their Chamber because we had not tables enough at dinner to accommodate them. That is the whole matter. We had a right to pass, and ought to have passed on these votes ; and I will tell you why we ought to nave the right to pass upon them. The States return their votes to our presid ing officer. Because I speak of States, do not suppose that I am going oU on that second constitution, the Resolutions of 98 and 99 ; I do not suppose what I have said is anything eliminated from the occult virtues of those resolutions ; they were passed by my own State, and I do not want to quarrel with my grandfather. I say the votes were to be re turned to the Senate, and counted by the Senate. The Senate has to be in session as a body. I do not wish to be committed by any thing I did or did not do yesterday ; for when members of the other House got up and com menced speaking, while this body was in ses sion in the other hall, I left. I did not desire to call them to order, but I say they had no right to speak. They are like witnesses in the presence of a court. They have a right to look on, but not to participate. All that was done by them yesterday was out of order and improper. . The votes must be counted, and counted as the votes of States. Why so count ed ? There are Ohio, New York, and Penn sylvania, which might in the first place send on a fraudulent list ; and if you were to have a joint convention, as the members of the other House proposed, what would be the re sult ? Those three States would weigh down two dozen such States as Florida, Arkansas, Delaware, Rhode Island, or New Jersey ; and they might send on a fraudulent list; and those very identical States, by their overpower ing voice in such a convention, could carry out the fraud. I do not blame you, sir, under the novelty of the case, arising, as it did, for having lis tened to those men of the other House. I suppose a great many of them there would have thought the proceeding could never be fixed and never be finished, and never be a done-up job, unless they had a say in it. I do not believe they had a right to say any thing, or to interpose, or to be heard at all. The votes were sent to you, sir ; and you were to have them counted under the Constitution. The members of that House were to be wit nesses, that the proceedings might not be done clandestinely, nor in a caucus or cabal. They looking on in that way, and you having the votes, and counting them, when you came to the returns from the State of Wisconsin you might have very properly said : "Gentlemen, under the law of 1792, and ander the Consti tution, a certain day is prescribed for the meeting of the electors; this vote was not cast on that day. Shall we count it ? Then any Senator might have moved that it should be counted ; but what right had a witness a member of the lower House to put in at all ? We were standing there to count the votes for President of the United States the votes ot every State ; and your only security for State rights was, that nobody else should interfere ; that when you came to this vote you should pass upon it, whether it should be counted or not. That is the right view of the case. Talk about an .amalgamation of the two Houses ! I do not know what the precedents are, though allusions have been made to them. I do not consider myself committed by any thing that transpired ; I do not commit any future Congress, much less commit posterity, by what transpired yesterday, because, by the Constitution, the Senate, the representatives of the States, are to supervise the counting of the votes. The members of the House of Rep resentatives may be present, under such forms and ceremonies as you choose. Then, when ever the vote is counted out, and you have not a constitutional majority to elect a President, the House of Representatives ought to retire to their own Hall, and immediately proceed to elect, the Speaker beginning with the state ment that there has been a default of election under the Constitution, and now we will pro ceed by votes to elect a President if we can. We all know the fact that Wisconsin, under the act of 1792, did not vote in time. She ought not to stand as a corps d& reserve to vote after the proper day. The framers of the Con stitution mayjiave had no more notion of the telegraph which now puts the country in in stantaneous communication throughout all its borders, than Scipio Africanus or Hannibal had of gunpowder or cannon. But when we have such an instrument affording a means of en tering into combinations, it is wrong that a State should stand as a reserved corps. Under the Constitution, if you mean to carry it out and enforce it, whenever a State does not come up to time time being a ma terial matter in this proceeding her vote ought to be excluded. I have, perhaps, as much respect for, and confidence in, my colleague as one man ought to have in another ; and while I am willing to declare the fact, that the vote of Wisconsin ought not to be counted, I am not willing that we should pass a resolution conceding the idea of a joint convention, and saying that any member of either House had a right to put in, or to call us to order, or to do anything else. It has been a ceremony sanctioned by time, for the two Houses to meet in the Representa tives Hall. Suppose it is sanctioned by time ; if it is a bad precedent mains usus abolendus est the sooner you get back to the right course the better. 153 EIGHTEENTH PRESIDENTIAL TERM. I have stated my view of the Constitution, The votes are to be sent to you, sir ; and we are to count them. Resolutions are got up by superofficious men, who like to be figuring in such matters, and get their names in the news papers, that this, that, or the other course takes place in arranging the proceedings ; but when you come down to the real sense and understanding of the matter, it is that we, as representatives of the States, shall count the votes ; because at last there is to be some final tribune where justice, and honor, and reliance, and confidence reside. The presumption is that we will act right : but upon the predi cation that it was no harm to watch even us, the framers of the Constitution said that we should count these votes in the presence of the House of Representatives. We may place them in our lobby, or in the reporters seats, or anywhere else, but they are to look over the proceedings. After the votes are counted, and a majority is declared to have been given for a particular person as President, he is de clared elected. It is a fixed fact. I do not pretend to say that on the Journals here or in the House of Representatives, this, that, or the other thing ought to be entered in testi- moniam rei, as you would enter a formal writ in an action of ejectment or a chancery suit. The votes are to be counted, and when count ed, and the person declared to be elected President, it is a fixed fact, notorious to the representatives of the States and the people, and to everybody. It is a thing known, just as the courts judicially know the revolutions of the seasons, the natural divisions of time into night and day, the changes of the moon, the ebb and flow of the ocean. When it is done, it is done in that notorious way, and it is a fixed fact. This proceeding is not mate rial to the decision of the election just now, for everybody knows that Buchanan is elected President, and Breckinridge is elected Vice- President. Hereafter however, I am afraid I shall not live that long in the new Capitol I think we ought to make a new precedent, and have a large Senate Chamber, and let us invite the other House and seat them around very cleverly and properly. Let us count the votes in their presence ; they may be witness es ; they may look over it ; let us do it as a Senate in session, and let us regulate our own business, and not allow an interloping member (I mean no disrespect to any member who spoke yesterday in the other House) to put in I will not say his jaw and say the matter is not finished, because he did not get a chance to talk. We had the right to count the votes. When we found, in discharging that duty, that the State of Wisconsin, under the requirements of the law passed to carry out the Constitution, came up out of time, like a horse ruled out of time and distanced in a race, she ought not to be counted. I will vote for the naked fact as serted in my colleague s resolution as to the vote of Wisconsin ; but as to this idea of an amalgamation of the two Houses and a joint convention, I cannot go it. I take my politics from Washington and Marshall and that school of politicians, and I reckon that I never was as near coming up to what are the hidden, occult virtues of the Resolutions of 1798 and 1799 be fore in my life as I am in this instance. While I have not the vanity to think as did the French woman who said to her sister, " It is very sin gular I never knew anybody that was always right except myself," [Laughter.] I have an almighty confidence, at least in this particular instance, that I am right. The votes are to be returned here to the Senate, counted by the Senate, regulated by the representatives of the States, and if there is a failure of election the House of Representatives is to retire and pro ceed immediately to an election. In all civil ity, in all courtesy, in all propriety, we might notify them of the failure of the electors to choose, or the Speaker might march back with his squad or gang that he had brought over here, and proceed to elect a President simply because there had been a failure under the law to elect by the States. I am willing to declare that the State of Wis consin should not be counted. My politics I will not say my Federal teachings, because that is an odious word all lead me the other way ; but my opinion, under the law and under the Constitution, is that which I have stated as to the power of the Senate. I verily believe that is the simple, honest, naked, staightfor- ward view of the question. I say this with out any reference to collateral considerations and hypothetical cases that will occur to every gentleman in the Senate without my suggest ing them. We ought to stand by the Consti tution, and by the law, as far as the law in tends to carry it out, and execute it. I do not believe the vote of Wisconsin ought to be counted ; nor do I believe that members of the House of Representatives had any right in the world to do anything except to stand by and look on as witnesses while the count was go ing on, to see that the proceeding was done right. They could fall back on their parlia mentary or revolutionary rights, whatever they were, if we did wrong. That is my opinion, and I have felt it due to myself to state my view. I do not believe in any laumbuggery about the majesty of the rep resentatives of the people being there. The question comes before them in due time ; for if the States do not elect by proper electoral votes, it is remitted to the House of Represen tatives in their State capacity. Evidently the intention of the Constitution is that the votes are to be returned here, and counted off and decided on by the representatives of the States. Any other course would allow the State of New York to have as potential a voice as all the States from Kentucky to the Gulf of Mex ico, and swallow them all up. At her rate of increase, if you had not got in a good many new JAMES BUCHANAN, PRESIDENT. 153 States, she would have swallowed a great many of them, just as a shark swallows up minnows. She might get in a fraudulent vote ; and then, if the two Houses are to be amalgamated in a joint convention, the question is to be decided by the same political influence. I will not say it would be a fraud, but the same feeling that would control in the one instance would in the other. I think my State can take care of her self in any contingency. I feel confident of that ; but still she is concerned as to the fair ness and propriety of this count. I must say that this is the first time in my life that I had real State -rights sentiments come strongly over me so as to induce me to object to anything that is not consistent with them. I have made these remarks, sir, simply in justice to myself and v what I think are the sen timents and feelings of my commonwealth. Mr. STUART. Mr. President, I do not design to detain the Senate in a lengthy discussion of this question ; I occupied considerable time yes terday. Some objections were made by certain Senators to the views I then presented. I stated a strong objection to going any further in our action on counting the votes for President and Vice-President of the United States, and un dertaking to declare any further result, or do ing anything more than had been done by the presiding officer in the presence of the two Houses. My view was, and is, that the duty of counting the votes devolves upon the Presi dent of the Senate, and nobody else. The law and the Constitution are very clear as to how the electoral votes shall be cast, and as to when they shall be cast, and very clear as to the mode of their transmission to the President of the Senate. He then becomes the mere custodian to retain the votes. The Constitu tion declares, and the law of Congress makes it more specific, that he shall open those votes in the presence of both Houses of Congress, and they shall be counted. It seems to be supposed by some gentlemen that the count ing is to be done by the two Houses of Con gress ; but that is impossible in itself ; it is not, therefore, a fair construction of the Con stitution of the United States. I concede there is not that precise accuracy in language in this respect in the Constitution of the United States which usually character izes that instrument in all its provisions. It would have been more strictly accurate and definite to have said, " The President of the Senate shall open and count the vote in the presence of the two Houses of Congress ;" but the Constitution does not say in express terms who shall count them. Having made the President of the Senate the custodian of the votes having prohibited him from open ing them until the arrival of a particular day, and then providing for its being in the pres ence of the two Houses of Congress the law having provided that Congress shall be in ses sion on that day, it secures a certainty of action by tba President of the Senate he be ing an officer always in existence because, if a vacancy happens in any way, the law mak ing it the duty of Congress to be in session on that day, the Senate have the power to supply a vacancy, and have a President of the Senate. It may be said that Congress ought by law to define more particularly what shall be done on this subject. I yield to that opinion ; I ex pressed it yesterday. I think the law may be made more specific ; but I cannot admit that the law can provide for any other counting of the votes, under the Constitution, than that they shall be counted by the President of the Senate. Upon this subject allow me to turn your attention to the Commentary of Chancel lor Kent : " The President of the Senate, on the second Wed nesday of February succeeding every meeting 1 of the electors, in the presence of the members of both Houses of Congress, opens all the certificates, and the votes are then to be counted. The Constitution does not expressly declare by whom the votes are to be counted and the result declared. In the case of questionable votes and a closely-contested election, this power may be all important ; and I presume, in the absence of all legislative provisions on the sub ject, that the President of the Senate counts the votes and determines the result, and that the two Houses are present only as spectators to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors." That is precisely the view which I sought to present to the Senate yesterday. I disagree, therefore, with the honorable Senator from Kentucky [Mr. THOMPSON], when he supposes this is a count by the Senate. It is a count by the President of the Senate. To secure fair ness and accuracy, it is a public count before two responsible organized bodies under tho Constitution. All that was done here in re spect to the negotiation between the two Houses was simply done in courtesy. It had no binding effect as law. If it were a con current vote of the two Houses, it could only be binding by the approbation of the Presi dent of the United States. It was good only as a matter of courtesy for the purposes of convenience. When the President of the Sen ate counted the vote, no matter who aided him, it was his count. When he counted the vote, and declared the result, the authority conferred by the Constitution and law of the United States was ended, the duty was per formed, the individuals declared to be elected stand elected, and there is no power under the Constitution or law to review that decision. What may be done ultimately when cases may arise, when difficulties may intervene, will be better determined when those difficulties arise. I have simply expressed my solicitude not to go beyond the present case, and therefore I hope no further action will be had on the sub ject. Mr. HUXTER. Mr. President, the Consti tution evidently contemplated a provision to be made by law to regulate the details, and the mode of counting the votes for President and Vice-President of the United States. " The. 154 EIGHTEENTH PRESIDENTIAL TERM. President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the vote shall then be counted." By whom, and how to be count ed, the Constitution does not say. But Con gress has power "to make all laws which shall be necessary and proper for carrying into ex ecution the foregoing powers, and all other powers vested by this Constitution in the Gov ernment of the United States, or in any de partment or officer thereof." Congress, there fore, has the power to regulate by law the de tails of the mode in which the votes are to be counted. As yet, no such law has been found necessary. The cases, happily, have been rare in which difficulties have occurred in the count of the electoral votes. All difficulties of this sort have been managed heretofore by the con sent of the two Houses a consent either im plied at the time or declared by joint resolu tions adopted by the Houses on the recommen dation of the joint committee which is usually raised to prescribe the mode in which the count Is to be made. In the absence of law, the will of the two Houses thus declared has prescribed the rule under which the President of the Sen ate and the tellers have acted. It was by this au thority, as I understand it, that the President of the Senate acted yesterday. The joint reso lution of the two Houses prescribed the mode in which the tellers were to make the count, and also required him to declare the result, which he did. It was under the authority, therefore, and by the direction of the two Houses, that he acted. The resolutions by which the authority was given were according to unbroken usage and established precedent. Nor were the occurrences of yesterday without a parallel. Just such a difficulty arose in regard to the vote of Missouri when Mr. Monroe was elected ; and the scene in the House, to judge from the report, must have been more tumultuous than that of yesterday. The difference between that case and this was, that the joint committee had provided, by a resolution adopted previously to the count, that the result was to be announced as not being affected by the vote of Missouri in one way or the other, so that the resolution itself prescribed the mode in which the result was to be declared. This precaution was taken upon the motion of Henry .Clay, of Kentucky, for tunately enough, as the sequel proved. When the votes were being counted, and the certifi cate from Missouri was reached, Mr. Liver- more, of New Hampshire, objected to the re ception of her vote. Upon that debate arose ; and the Senate, upon motion of Mr. "Williams, of Tennessee, returned to -their own Chamber. When they were gone, a debate arose, and Mr. Clay said, that, with deference to the President of the Senate, he thought he ought to have declared the result, for u the moment the objection was made the rule (i. e., the joint resolution) adopted this morning took effect." He thought, therefore, that the Presi dent of the Senate ought to have done as I understand our President did yesterday, the resolution of the two Houses giving him this authority. Mr. THOMPSON, of Kentucky. Allow me one moment. From the tenor of the remarks of the gentleman from Virginia, an expression may be drawn which I wish to disclaim, in reference to the President of the Senate. In calling members of the House interloping speak ers do not understand me as in the least way saying that he acted improperly or wrong. He acted probably as most men would havo acted, and possibly as I might have done my self. I will not say that, in regard to that, there was anything improper. I think he acted very discreetly and prudently. But then, what is the right of the matter ? When we are count ing the votes (for the President of the Senate only counts them in his official capacity, and in the session of the Senate, because he cannot count them as a private individual) it is im proper for the House members to be anything but listeners. W T hen they commenced speak ing I retired as an individual. I did not think that it was in order for them to speak. Mr. HUNTER. The result in the Missouri case was, that the Senate was invited back by the House of Representatives to its Hall, and the President of the Senate did announce the result, as ordered by the joint resolution, in the midst of interruptions and murmuring ; and then, upon motion of a Senator, the Sen ate retired from the Hall, which so much pro voked Mr. Randolph, of Virginia, that he de clared the election vitiated, and offered resolu tions affirming the whole proceeding to have been illegal. In the midst of a debate upon these, the House adjourned; and this seems to have closed the proceedings in relation to the count of the electoral votes. It would seem, then, that whatever authority is vested in the President of the Senate as to the declaration of the result, has been supposed to have been given him by the joint resolution of the two Houses of Congress. It probably would be still better to regulate the whole matter by law. If, then, his authority be denied in either of these modes, the power of the two Houses to regulate the count is recognized. I thought, therefore, yesterday, that inas much as the joint committee had failed to take the precaution beforehand, which had been taken on two occasions heretofore, it would have been better to remedy the omission by a conference at the time. A joint resolution might thus have been adopted, which would have conformed to precedent, and reserved unmistakably to the two Houses the authority over the subject heretofore exercised by them. The opportunity for that has now passed away. I presume that the declaration as to the per sons elected is valid. If anything further ought to be done, it would seem to me that it would be to pass a resolution declaring that, as the vote of Wisconsin could not affect the JAMES BUCHANAN, PRESIDENT. 155 result in either way, it had not been reckoned in the count. Whether even that be necessary now, it will be for the Senate to consider. More than that cannot now be necessary, and per haps it will be sufficient to order the result of the election to be announced to those per sons who have been elected as President and Vice-President of the United States. Mr. CRI1TENDEN. It is the furthest from ray wish or purpose to embarrass the proceed ing that gentlemen desire to take. Fortu nately for us, this vote is of no consequence as it regards the result of the election. Mr. Buchanan is elected President of the United States, and it has been so declared ; but it seems, according to the judgment which pre vailed yesterday when we were in the other House, that, although objection was made to the counting of the vote of Wisconsin, there was, according to the opinion of the Presiding Officer, no way in which that objection could be decided. I think it is very important that we should decide it in some form or other. We see the danger that may arise out of the uncertainty existing on this subject. We saw enough yesterday to satisfy us that, if this presidential election had depended on the ad mission or exclusion of the vote of Wiscon sin, the result would have been little less than revolutionary. Is it not wise to avail our selves of this warning for the purpose of de termining whether such votes ought or ought not to be admitted ? I think it is. I think it is of great consequence, if we exercise any sort of providence or foresight on this subject, that the sense of the Senate and House of Representatives should be expressed on that question. Other difficulties may be removed by such legislation as the gentleman proposes ; but whatever may be you-r legislation on the sub ject, there must be electors, and you must ap point the day when the electors shall be chosen, and the day on which those electors shall meet and cast their votes ; and then the day of the election of the electors, and the day when they shall meet and cast their votes, must, by the express declaration of the Con stitution, be the same throughout the United States. You can, by no law, modify or nullify the election in this respect. On the same day on which electors are chosen in one State they must be chosen in all the States. The same day on which they meet and cast their votes must be the day for meeting in every State. That i-s a constitutional provision. As for the idea that it is in our power, or that we ought to admit a vote under any special circumstance not given on that day because of the wefther, is to make the con struction of the Constitution depend on the state of the weather is to make it depend on any accident, or the pretext of any acci dent, or the pretext of any unavoidable de tention of the electors from the place of vot ing. That cannot be. The Constitution says it shall be on the same day throughout the United States. You ought, therefore, in your law to fix that same day for all the Union. Here is a vote tendered us from a State given on another day. We call it a vote in com mon parlance ; but in the constitutional sense is it a vote at all ? Is it not merely null ? Unquestionably, it seems to me it is null and void. The constitution of a State, for instance, provides that its Legislature shall be elected on a prescribed day. Can any voter be allowed to vote afterward? Does his coming to the polls the day after the election is over, or an hour after, and declar ing his voice in any way he pleases, give any effect to his voice ? It is not a vote ; it is only a declaration of how he would have voted if h e had the privilege of voting at all. It- is idle to talk about circumstances changing the Constitution in this respect, or giving by acci dent validity to a vote which the Constitution prohibits. It is no vote at all, and should be rejected as such. That is my idea, and I wish to declare it. Upon more and more reflection, I am rather disposed to settle it, because the other difficul ties which have resulted from the joint meet ing as to the mode of procedure may be rem edied by legislation, and I hope will be. We have nothing, in my judgment, so important before us this day as the question that this presidential election has opened to our view. Let us avail ourselves of the warning which accident has given us a warning which comes at a time when the question is comparatively of no consequence, and we can calmly apply our minds to the proper constitutional consid eration of the question. But whatever legis lation may take place, electors must some day be appointed ; and the point I now propose to settle is one that may arise under any state of legislation you can possibly adopt. I am will ing to confine our action now to that unavoid able state of the case which may occur in every future presidential election, in spite of all we can do. We cannot give a single day longer than that allowed by the Constitution. The vote must be on a particular day. No time before, no time after, will do. That is the Constitution, and we cannot change it. We cannot say that, for the purpose of avoiding difficulties of this sort, and affording more time for the electors to meet, the election may take place any time within three days after a given time. We cannot give more days than one, and that one day must be the same throughout the Union ; so that this question may occur in any and every presidential election. Now is a vote, given on a day different from that pre scribed, null ? I think it is. I will ask leave, wishing, as far as it is in my power, to avail myself of every means of ob taining a vote on this question, to disembarrass the object which gentlemen have in view by the additional resolution ; and, therefore, as I understand that the gentleman from California, 156 EIGHTEENTH PRESIDENTIAL TERM. who offered the original resolution, is willing that a vote may first be taken on my resolu tion, I withdraw it in the form of an amend ment, and offer a distinct resolution embracing tli at single point. Mr. WELLER. For the purpose of effect ing the Senator s object, I can withdraw the resolution I offered for the time being, and the Senator from Kentucky can offer his proposi tion. Mr. CRITTENDEN. Very well. I am will ing to have them disconnected. Mr. COLLAMER. I understand that the resolution of the Senator from Kentucky is now offered. I wish it read. The PRESIDENT pro temper e. The reso lution of the Senator from California is under stood to be withdrawn. Mr. CRITTENDEN. I now offer this reso lution : Resolved, That the electoral vote of the State of Wisconsin, in the late presidential election, being given on a day different from that prescribed by law, was therefore null, and ought not to have been ad mitted or included in the count of electoral votes given in the late presidential election. Mr. BENJAMIN. Permit me to make a question to the Senator from Kentucky. I am perfectly willing to vote for all the prop ositions contained in the resolution ; I believe them to be founded in the Constitution and the laws of the land ; but in the shape of a res olution it will not avail so much as it would to pass a law now, directing that hereafter, when the vote of a State presented for count shall appear to have been given on a day dif ferent from that provided by law, it shall be the duty of the President of the Senate not to count that vote. If we pass a law declaring that, it will have effect for all future time. If not, this will be merely an expression of opin ion that does not bind any one ; and the diffi culty to which the Senator refers will again occur. With a law there can be no difficulty. Mr. WELLER. The Senator from Ken tucky, perhaps, can get at the question in this way: Let him offer his proposition in the shape of a resolution instructing the Judiciary Committee to report a bill providing that in such a case, where a State fails to give a vote at the time fixed by law, it shall not be counted. That will be a test vote, and we can get the sense of the Senate on that proposition. Mr. CRITTENDEN. I prefer this mode. I hear the gentleman s suggestions with great kindness and all proper respect ; but I do not know that a law may be passed. We have been now seventy years and more without any such law, and I do not know but that when this presidential election, and the consequences which might have resulted from it, have been lost sight of, we shall go on without legislation. I wish to change this resolution and make it a joint resolution of the Senate and House of Representatives ; and in that form I offer it : Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled t That the electoral vote of the State of Wisconsin in the late presidential eletion, being given on a day different from that prescribed by law, was therefore null, and ought not to have been admitted or in cluded in the count of electoral votes given in the late presidential election. Mr. BIGGS. Is it in order to move to re fer that resolution to the Judiciary Commit tee? The PRESIDENT pro tempore. It is per fectly in order. Mr. BIGGS. I move that reference. Mr. CRITTENDEN. I hope that will not be done. I hope we are prepared now to act. I think we ought to take a vote on it without a reference to the Judiciary Committee. Mr. COLLAMER. It is obvious, Mr. Presi dent, in the first place, that the form of this resolution is not the making of a law, but the expression of an opinion. In the second place, it is the expression of an opinion concerning a matter that is past, and has no operative ef fect. The matter is over to which it relates it is all done. There is no practical effect in the resolution when passed, unless it makes a law for the future. It is badly drawn with a view to that purpose, for it only declares that the vote of Wisconsin ought not to have been counted. That is gone by, and it makes no regulation in relation to the future at all. My first objection to it is that it is entirely inop erative. But, Mr. President, I should not have risen on that account merely. Strange as it may ap pear to gentlemen who may think proper to listen to me, I cannot but say that I entertain very serious doubts under the Constitution as to whether we possess any power to express any opinion at all about it. I very much doubt whether the framers of the Constitution ever intended to leave the subject of the presiden tial election to the House of Representatives, or the Senate, or either, or both of them. There was a great d^eal of debate in the conven tion that framed the Constitution as to the manner of choosing a President of the United States. Various projects were presented. Among others, it was very gravely debated whether he had not better be elected by Con gress. For some considerable time that propo sition was under consideration. Various plans were put forward, various suggestions made as to the manner of choosing a President, and much difficulty was found in relation to it be fore a plan was arrived at, and that so soon resulted in a practical failure as to lead to the change in the Constitution to what it now is in this respect. The Constitution vested in each House the power to decide upon the election of its members ; it provided carefully that it would not trust to the two Houses to elect a President. It seems to me that if we consult history at all, and consider the probability of things even as they fall within our own observation and experience, we shall find that there is very lit- JAMES BUCHANAN, PRESIDENT. 157 tie practical difference between leaving the presidential election to Congress and leaving Congress to decide that election. It will amount practically to about the same thing. Disguise it as we may, after all the truth con strains us to acknowledge, more or less, that, in deciding on the election of members of the two Houses of Congress, when the decision of the election of a proposed member or a con tested seat determines the state of political parties one way or the other, the vote is a po litical one. When the question arises in such a contingency, in such a crisis, it requires very little acquaintance with mankind to know what will be the result. It will be simply a political decision ; and individuals, instead of being held responsible for their opinions and votes on such occasions, will go with their party, and endeavor to get rid of personal re sponsibility in that way. In deciding upon an election which has been had by electors, the legality of that election is always a turning- point in politics. There are always candidates of different parties; and deciding one way would be the triumph of one party, and de ciding another way the triumph of another. It will always present that state of things. Now, is it difficult to see that, if the ques tion is to be submitted to Congress as to the propriety or legality of an election of Presi dent, it will always be a party decision? It will be so, as a matter of course. There is no difficulty, whenever you choose, in creating questions of that kind ; for it is a common charge of one party against another, that votes are procured by fraud and by corruption. In particular States, where there is a close vote, each party charges the other with producing the result by fraud, by violence, or trickery. Then, whenever the election of electors is close in a State, such as Delaware, or Louisiana, or one where the possibility is more likely, and it is decided one way or the other by only a small plurality, the moment that election comes to be canvassed before the two Houses, at once testimony will be offered to show that the election in that State was procured by fraud or violence, and therefore that the votes of its electors should be set aside. Such a question, I say, in any tolerably close election, may be raised at any time. Either party may at any time raise such a question ; and if they know how the Senate or House of Representa tives, or the two Houses, who are to pass on that question, stand, they know what will be the result always. Under this view of the case it is, to say the least, exceedingly questionable whether, when the Constitution said, not that Congress should decide the election of President, but that it should decide upon the elections of its own members, it at the same time meant to trust to these Houses, or either or both of them, the power of deciding the presidential election. I very much doubt whether, if we were now ar ranging the election of President, we should ever think of resorting to Juch a means as that ; but I am not fully s mind that that is so. If, however? WU ilflopt; this resolution, it is not merely an expression of our private opinion on the subject of the Wisconsin vote that is not all, by any means. If that were all, it would be of rather slight consideration ; but the truth is that, by the ex pression of our opinion in the form of this res olution in relation to the electoral vote of the State of Wisconsin, we in fact take upon us to say that we are judges of the election. We assume and exercise the right of judging on the legality of the vote of the different elec tors. We actually assume and take upon us the exercise of this exceedingly questionable power. Before we take this long leap, and undertake to express this opinion in this way, and thus assume this much contested power, it seems to me we ought to have some occasion to demand it ; and there is nothing in the pres ent occasion that in the least demands it. The whole matter is settled and ended. I do not say that, in my opinion, the House of Representatives and the Senate, or the Sen ate alone, are not judges of the election. I do not say it is not so ; I do not say it is so; but I think, by entertaining this resolution, we in fact decide that it is so ; and that is my great objection to entertaining it. I am un willing to have the question passed upon in this summary manner, and in relation to a case that does not demand anything to be done by us at all, for the whole matter is ended and completed. With these views, my motion is to lay the resolution on the table. Mr. TOUCE Y. Will the Senator from Ver mont withdraw that motion? Mr. COLLAMER. If the Senator will re new it, I have no objection to withdrawing it. Mr. TOUCEY. I will renew it. Mr. Presi dent, I should be very loth to express an opin ion on this question in opposition to that which has been declared by the honorable Senator from Kentucky, that the vote given by the State of Wisconsin, or which appears to have been given on the 4th of December by the gentlemen who were elected by the people of Wisconsin, as electors, was a valid vote. It strikes me that it is not in the power of Con gress to pass any law by which a vote given after the day prescribed by law, and upon which the Constitution acts when it declares that the day shall be uniform throughout the United States, shall be held to be valid. Any law of Congress undertaking to prescribe for any State or any class of States, on the ground of accident or any existing state of things, a day different from that prescribed for all the States of the Union, would, I apprehend, be null and void to all intents and purposes ; and it would be very difficult to show that Con gress, by a joint resolution, could have the power to do what they could not by an ex press law. But I do not intend to express any definite 158 EIGHTEENTH PRESIDENTIAL TERM. opinion on that subject, because there is no question arising in the present election. The only question that arose was, whether the President elect, Jamas Buchanan, had a ma jority of all the electoral votes. That fact was ascertained without controversy. That he had one hundred and seventy-four votes, a majority of all the electoral colleges, is admitted on all sides ; and the moment it appeared that he had one hundred and forty-nine votes, which was a majority, every other inquiry became perfectly irrelevant and immaterial ; every in quiry in regard to the electoral vote of Wis consin was entirely immaterial ; and when the presiding officer of this body declared the re sult of the election, he did not declare that those votes were admitted or rejected. He had no authority to declare the one or the other. The fact was announced as the fact existed, but it was immaterial ; and when he declared the result he declared that which it was his duty to declare, and the truth of which no one controverts. However, a question might arise, to which I beg leave to call the attention of the Senate. Suppose the electoral colleges had so stood that the rejection of the vote of Wisconsin would have left no choice, no one then having a majority of the electoral votes. I ask Sena tors what would then have been the condition of the case? Suppose the rejection of the vote of Wisconsin had left no choice by the presidential electors : if that vote was not an effective vote, the House of Representatives would have the power, without the assent or consent of this body, to elect a President of the United States by States. Who shall de cide that question? If I were a member of the House of Representatives, and believed the state of the vote required me, as a mem ber of that House, to go into the election, I should act without any reference to the opin ion of the Senate. It would be a duty de volved by the Constitution on the House of Representatives, and no act and no vote of the Senate could take away the power of the House of Representatives to elect a President in that case. Again: let me go a step further. Suppose the Senate should be of the contrary opinion, believing that the vote of Wisconsin was a valid vote ; and the gentleman elected Presi dent by that vote should assume the office of President and undertake to discharge its duties, and should send to this body his nomi nation for any officers which the Constitution authorizes the President to nominate ; and this body, acting upon its opinion, should confirm the nominations of the President thus elected by that vote which they declared to be legal, but which the House of Representatives de clared to be illegal and void. We have then a contest between two Presidents, one recog nized by the House of Representatives, and the other recognized by the Senate. Now, that this body would be called upon in that case to act and decide, I doubt not ; and that the House of Representatives, in the case I have supposed, would be called upon to act and decide, I doubt not ; because the Consti tution has devolved on them the power of act ing, and the right to act upon the hypothesis that there was no choice. Then how is the question to be decided ? Can the Senate de cide it? Can the House of Representatives decide it ? If they differ in opinion, can either branch decide it? The courts of justice are open. There is a mode of legal proceeding by which this question could be brought be fore the judicial tribunals of the country in any individual case; and any question that may arise may be carried to the Supreme Court and adjudicated in that particular case by that court ; and what can be done in one case can be done in another case. I suppose this state of things for the purpose of presenting the idea which is very strongly impressed on my mind, that it is not in the power of Congress to make a President, or to unmake one. There is no power in Congress to declare a man effectively to be President or not to be President except in a single case, where by the Constitution the power is de volved on the House of Representatives. That question is decided by the people. It is the people who make the President through their electors and by their votes ; and there is no power in Congress to change the result. The whole proceeding of counting is based on the idea merely of disclosing to the public in a safe, authentic way, the actual state of the vote ; and, when that is ascertained truly, the Presi dent who is chosen by that vote is President, let Congress do what it may. I say then, sir, that any resolution of Con gress on this subject is nothing more than an expression of opinion, not obligatory on those who may come after us; and any law of Congress which undertakes by its operation to change the actual result, as found upon an in spection of the facts, would, so far as it changed or varied the result, be inoperative and of no effect ; and hence I say to-day, as I said yes terday, that in my judgment the course of the presiding officer was entirely correct in the House of Representatives. When the two Houses met, they had no power as a delibera tive body. No motion could be submitted ; no question could be debated ; no vote could be taken. An objection might be interposed by a member ; and, if there was to be any de liberation, the two bodies must separate and act separately. But, when they act separately, they have very little power. In the present case they have no power, because it is admitted on all hands, without controversy, that a Presi dent and Yice-President have been chosen; and the result having been ascertained and de clared, neither House of Congress has any con trol over it. I hope, therefore, that no resolu tion will be adopted on this occasion, except only that which is proposed by the Senator JAMES BUCHANAN, PRESIDENT. 159 from California, appointing a committee to wait on the President and Vice-President elect, and give them the usual notice of their elec tion. Mr. STUART. I concur mainly in what has been said by the Senator from Connecticut ; and I only rise to correct what I think was a misapprehension in a single particular. The Senator states that it was not the duty of the Presiding Officer under the circumstances to make any decision in respect to the vote of Wisconsin. I say it was the duty of the Presi dent of the Senate to decide upon the vote of every State. The Senator from Connecticut is correct in saying that, after it was .ascertained that Mr. Buchanan had a majority of all the votes cast, it was immaterial as to the vote of "Wisconsin ; it was equally immaterial as to the vote of every other State except those counted for Mr. Buchanan. It was a question that should have been decided. It was a question, in my judgment, that ^houldhave been decided by the President of the Senate, and which could be decided by nobody else. There was no appeal from the decision. As the Constitu tion and the law stand, it is the duty of the President of the Senate, being the counting officer under them, to decide what he counts, and what he refuses to count, in every instance. This is all I designed to say, and I now renew the motion to lay the resolution on the table. Mr. PUGTI. I rose when the Senator from Michigan did, and I hope he will withdraw the motion for a few minutes. I desire to offer an amendment. Mr. WELLER. The Senator from Con necticut was under a pledge to renew the motion. Mr. PUGH. But he did not renew it. Mr. STUART. I cannot consider this as my motion. I renewed it, because I felt un der obligations to do so ; but I have a disposi tion to hear every Senator. As far as I am concerned, I have no objection to withdraw ing the motion. Mr. PUGH. Mr. President, I cannot vote for this as a joint resolution ; for if we pass it as a joint resolution it must go to the President of the United States, and pass under his approval or disapproval. The provision of the Consti tution is express, that every order, or resolu tion, or vote to which the concurrence of both Houses is necessary, except on a question of adjournment, shall be submitted to the Presi dent. Now, confessedly, the President has nothing to do with counting the votes for his successor. It seems to me, therefore, that it is an error to make this a joint resolution ; and the first amendment I wish to submit is to strike out the words, "by the Senate and House of Representatives of the United States of America in Congress assembled," so that it may be a separate resolution of the Senate. Then I shall move to add to it this further resolution : That a copy of the foregoing resolution "be sent to the House of Eepresentatives, together with a mes sage that the Senate is now prepared to proceed with counting the votes for President and Vice-President of the United States. It will be observed, by reference to the Mis souri case, that after the Senate retired, some debate occurred in both Houses ; and having settled in their own minds the proper course, a message was sent from the House of Repre sentatives notifying the Senate to return, and the Senate returned and completed the busi ness. The honorable Senator was interrupted by the delivery of the following message from the House of Representatives, by Mr. CULLOM, their Clerk: Mr. President, I am directed by the House of Representatives to inform the Senate that the House has passed a resolution appointing two of its members to act in concert with a committee of the Senate, to be appointed by the Senate, to notify the Hon. James Buchanan, of Pennsylvania, of his election to the office of President of the United States for four years, from the 4th of March next ; also to inform the Hon. John 0. Breckinridge, of Kentucky, that he has been elected to the office of Vice-Presi- dent for four years, from the 4th of March next ; and have appointed, on the part of the House, Mr. JOXES, of Tennessee, and Mr. FLOR ENCE, of Pennsylvania. Mr. WELLER. I hope my resolution will now be taken up by unanimous consent. Mr. PUGH. I object to it. I have partly the same objection to this as to the resolution of the Senator from Kentucky. It is in vain for us to resolve out of a ques tion of this magnitude. It is in vain for us to attempt to escape it. What are the facts as they occurred? The Senate and House of Representatives met yesterday, pursuant to the Constitution and laws, to count the votes for President and Vice-President. I certainly can never agree to any construction of the Constitution which fixes that that is the duty of the President of the Senate, in exclusion of the members of Congress. Two difficulties seem to me to stand in the way of that con struction. First, the Presiding Officer of this body may be the Vice-President of the United States, and may claim to be the President-elect; and he is to stand there, in the presence of both Houses of Congress, and reject votes, or admit votes, by his single will, and thus make or un make himself President. It is a power higher than the veto. I am bound to say, under my construction of the Constitution of the United States, no such power is lodged in any individ ual, whatever may be his station. The Consti tution says that the President of the Senate shall open the votes. That is the end of his duties. He is to open them and to read -them. The joint resolution never devolved on the tellers the right to read those votes. The joint resolution was that the tellers should record them. Who are the tellers ? We heard a great 160 EIGHTEENTH PRESIDENTIAL TERM. deal about their report yesterday. I do not care if they never reported. They are nothing but clerks clerks of the joint session of the Senate and House of Representatives. This is the very language of the joint resolution, which was copied from former precedents : u That one person be appointed a teller on the part of the Senate, and two on the part of the House of Representatives, to make a list of the votes as they shall be declared, that the result shall be de livered to the President of the Senate pro tempore, who shall announce the state ol the vote and the persons elected to the two Houses assembled." It was for the President of the Senate to open the sealed certificates which were sent to him, and to announce to the two Houses of Congress their contents, and then our clerks, to wit, the Senate teller and the two House tellers, were to record it ; and accordingly the Constitution says, " the votes shall then be counted." Who are to count them ? Congress. What are we there for? My friend from Kentucky [Mr. THOMPSON] supposed that the House of Repre sentatives could be brought to our bar. I ad mit they may come here ; but why do we want them for witnesses, or why are we to be wit nesses, if we have no control over it at any stage? Mr. THOMPSON, of Kentucky. Will the Senator allow me a moment ? Mr. PUGH. Certainly. Mr. THOMPSON, of Kentucky. I suppose, according to all sort of logic and proper pro ceeding, the President of the Senate counts the votes officially. He does not count them as Mr. Mason, of Virginia, but he counts them as the President of the Senate, under the direction and control of the Senate, where each State is equally represented. The mem bers of the House of Representatives are pres ent, looking on as witnesses, to prevent any clandestine cabal or secret association, or any sort of I will not say Cataline conspiration. The President of the Senate is to count, and do it under the regulation of the Senate. The members of the House of Representatives are to sit by, and whether we put them in the gallery, or the reporters desks, or in niches wherever they are placed they are to look on. When the President gets through with the counting, under the direction of the States as represented here, if it is ascertained that no person has obtained a majority of all the votes cast, the House of Representatives then retire to their Chamber ; or, I suppose, official cour tesy would require that we should notify them that no one had been elected ; and then the Speaker of the House should rise and call the roll of the States, beginning at the State of Maine, and ask the members of each State for whom they voted as President. That is to protect the States against any well, I will not say fraudulent combination I will not say anything about the big States, like whales swallowing up forty minnows at a bite, or any thing of that kind. I am of opinion that the House of Representatives had no right to say anything in regard to it, but I had nothing to say about the Presiding Officer, when the two Houses were assembled yesterday, recognizing one of the members of that House as entitled to the floor. I did not want to call any of them to order, but I got up and went out, as I stated some time ago. I thought they had no more right to talk about it than a witness has to interfere with the proceedings of a court of justice. In Kentucky phrase, they had no right to put in their "jaw" at all. [Laughter.] That is just the long and the short of the mat ter. That is exactly what I think about it. Mr. PUGH. I wish to put in a caveat, once for all, in speaking of the course which was taken yesterday, or the views expressed. I join the Senator from New York [Mr. SEW- AED]. I consider it fortunate that the vote of Wisconsin is immaterial to the result, and I consider it fortunate, too, that the Presiding Officer of the joint convention was not inter ested in the result of the vote at all; but I speak to-day as I understand the rights under the constitution. I think a grave error was committed yester day in the joint convention, and that it behooves us to remedy it by whatever means we can. It was the duty of the President of the Senate to open the votes, and declare the contents; it was the duty of the tellers, as clerks, to record the declaration ; and when ever a vote was presented to . which any objection could be made, the time to make the objection was when the vote was read. That was attempted yesterday. A Representative from the State of Virginia objected to the vote of the State of Wisconsin. He was told that that was not the proper time, and, submitting to the suggestion that the proper time would come directly, he took his seat, and we waited then until it was all through. Then a motion was made to reject the vote of Wisconsin, and it was said that was not the proper time. Then we were told to wait until the tellers reported. Well, the tellers reported; and they reported the fact that the vote of the State of Wisconsin was given on a day unau thorized by law. I agree with the Senator from Kentucky, that it, was a nullity. We cannot make it a vote. It is not in our power to do so, unless we can make the Constitution over again. Then the objection was raised by the Senator from Georgia [Mr. TOOMBS] and others, that it was now apparent, on the report of the tellers, that here was an illegal vote which had crept in ; but we were told that that was not the time. What farther ? Then the Presiding Officer of the two bodies read to us (here is his own statement): "That one hundred and fourteen votes had been cast for John C. Fremont, of California." If the vote of Wisconsin was a nullity, no such number of votes was given to Mr. Fremont ; and in making that announce ment, whether he designed to do so or not JAMES BUCHANAX, PRESIDENT. 161 and I accept his disclaimer he did, in fact, decide the whole question. He could not have made this declaration without deciding it. There were not one hundred and fourteen votes for John 0. Fremont, unless the vote of Wisconsin was counted. Then an objection was interposed, and we were told that the two Houses had discharged all they came for, and were to separate and go to their Chambers. So, at every stage of this proceeding, begin ning with the first presentation of the certifi cate, some one of the members of Congress ob jected to this vote, and he was told that the proper time had not come, and the whole pro ceeding was completed and ended, and we were called out of the Chamber and back here. At every stage we were told the proper time had not come ; and now, when we get here, we are told that the proper time has not come yet, or that it has passed. Mr. President, when is it to be settled ? Sup pose, as Senators have said, the vote of Wis consin would have led to a different result, we should have had anarchy in both Halls of Con gress. Bub now, when the question is here in the most favorable circumstances for its settle ment for t!i3 future, for a deliberate expression of the views of both Houses of Congress, we are told that we must lay it on the table until it shall come again in more terrible circum stances, and resolve ourselves out of it by ap pointing a committee of three gentlemen to go and tell Mr. Buchanan that he had a majority of the votes. It seems to me and I say it with due respect to Senators a trifling with the magnitude of the question. Let us un derstand what is our power. I believed at the time, and I believe now, that when t i9 Representative from the State of Virginia objected to that vote, his objection was rightiy made ; it was made at the right time and at the right place. I believe that the proceedin ^ should have stopped at that point that all that passed beyond that was illegal. Hera was a vote proposed; it was objected to by one of those who the Consti tution said should be present and assist in the counting; and it was then our duty to settle what should be done with this alleged vote from Wisconsin ; and, having settled it either admitted or rejected it then the result should have been ascertained and the declaration made. Instead of that, it was passed over. I appeal to Senators, was there any step m the proceeding yesterday when any member of either Housa was allowed to put in an ob jection, or debate an objection, or state it in the joint convention. I say it is fortunate that our presiding offi cer had no interest in the result. I know the presiding officer of this body will not suspect for a moment that I have any unkind feelings toward him. I have none. But suppose the case had been otherwise. Aaron Burr once sat in your chair, sir. Suppose he had under taken, or another Aaron Burr, if he should 11 come here, in the face of both Houses of Con gress, should undertake to exercise this ex traordinary and irresponsible power : it would be the end of this Government. It seems to me, then, that a great error was committed ; and although the presiding officer disclaimed intending to exercise it, and although I be lieve he did not intend to exercise it, yet prac tically it came to that ; for how could we as certain what the votes were at all, if the vote of Wisconsin was recorded by the tellers, and then, the tellers having reported to us, we could not pass upon the question ? This is not exactly the Missouri case. That was a case which is never likely to happen again. It was a question whether Missouri was a State or not. It could have been avoid ed on that occasion, and was avoided easily ; but here is a question that may occur one hundred times again, if the Government shall stand that many years. It seems to me, then, that my own impres sion differs from that of every Senator who has spoken, except the Senator from Maine [Mr. NODRSE], I believe the two Houses to gether were the proper forum to settle the question. I do not consider that it is a legis lative question. I do not believe that it is to be settled by a joint resolution or a bill. I believe the two Houses assembled together were a board of canvassers organized by the Constitution for the express purpose of count ing these votes. The whole number of Sena tors and Representatives taken together is equal to the whole number of electors in all the colleges. It is exactly the same body of men in number, equal to all of them. All the States, if they had voted there yesterday through their Senators and Representatives, would have exercised the precise power which they exercised in the election of President. Every State has a number of electors equal to her Senators and Representatives. Every State had in the joint body yesterday two Senators and her number of Representatives according to the apportionment ; and I be lieve, as I said, that that was a board of can vassers organized for the purpose of counting the votes for President and Vice-President. Mr. SE WARD. Will the honorable Senator allow me to ask him a question for the purpose of testing his position? Mr. PUGH. Certainly. Mr. SEWARD. Suppose the two Houses yesterday had decided to count the Wisconsin vote under the circumstances, and suppose that should have determined the election : Would the decision of the two Houses have been con clusive of the election ? Mr. PUGH. I think so. It would be like many a decision made by the courts. I have known courts of last resort to decide what I believed to be utterly unconstitutional ; but I believed it to be settled, at least for that case, and it was my duty to acquiesce in it. In a proper case it may be reconsidered. But I believe that 162 EIGHTEENTH PRESIDENTIAL TERM. very tribunal was adopted ; that that was the idea of adopting it ; that the States were there represented by their proper representatives, exactly as they were represented in the elec toral college ; that it was the duty of the Pres ident of the Senate to open the votes; that when on objection was raised that was the place and the time to settle it; and the question should have been put, in my judgment, to the joint convention : Shall the vote purporting to be the vote of Wisconsin be received and re corded? If it had been recorded, although I should have deemed it unconstitutional, I should have felt bound, as a citizen, to acquiesce in it as a decision made by the competent authority. Mr. MALLORY. Allow me to ask my friend a question. Do I understand him to take the position that this joint convention, as he terms it, but which term is found nowhere else than in the debates of yesterday, this union of the two Houses for the purpose of counting the votes, may determine what votes shall and what votes shall not be counted? Is that the idea that the Senate and House of Represent atives, assembled as they were yesterday, have the power to rule out or to rule in the votes of any State? Mr. PUGH. Why not ? Do not gentlemen propose to do it by joint resolution ? Mr. MALLORY. Then how are they to cast their votes per capita, or otherwise ? Mr. PUGH. Per capita. How do they cast their votes in the electoral college ? The Constitution says, for instance, that my State shall have twenty-three votes. Why ? Be cause she has twenty-one Representatives and two Senators. How many had she there yes terday ? Twenty-three votes no more, no less. Why adopt this number for the elec toral vote of the State, and make it exactly equivalent to the representation of the State in both Houses ? My friend says that I call this meeting a joint convention. I adopt that term merely for convenience. I do not care what title you give it. The counting is to be done in the presence of both Houses I care not what you call it. It is a convening of them both. It seems to be considered a very dangerous power to be lodged there. I acknowledge it ; but is it more dangerous to lodge it there, than in the person of the President of the Senate alone ? Mr. MALLORY. Is not my friend, then, providing a third mode of electing President and Vice- President, unknown to the Constitu tion, which prescribes that, when not chosen by the electors, the House shall immediately proceed to vote by States ? His method, as I understand him, provides a third method of electing the President and Yice-President in this manner. Mr. PUGH. I provide no method of elect ing. I provide a method of ascertaining the fact who is elected. Mr. MALLORY. That is electing. Mr. PUGH. I ask Senators again who else is to decide it ? Are you prepared to adopt the proposition which I understand was made by the Senator from Michigan [Mr. STUAET], that the President of the Senate alone has to decide this question? Are you prepared to declare that by a joint resolution, and have it vetoed by the President at the other end of the ave nue ? It is no legislative act. If it is, it is sub ject to a veto. Suppose this case were to arise : that the vote of Wisconsin decided the whole contro versy, and the President of the Senate should decide to count that vote, and a majority of one in the other House should agree with him, and we, the representatives of the States of which we have heard so much, should unanimously disagree with him : the vote would be counted in spite of us, for the President would put it down, and that House would disagree to your joint resolution to strike it out. That is the result of the course you now propose. There are ten thousand difficulties in any other prop osition to one in the proposition that I have suggested. The joint body is a general assem bly of all the States, represented according to their congressional power; but I only gave that as the expression of my opinion, and I wish to concur in what was said by the gen tleman from Maine [Mr. ISTouESE] yesterday. The purpose of my amendment to this reso lution now is that it shall be a resolution ex pressing the sentiment of the Senate that the vote of Wisconsin cannot be counted ; and that we notify the other House of the fact, and no tify them that, having arrived at that conclu sion, if they, by a separate resolution, come to the some conclusion, the two Houses can re convene and count the votes upon that basis, and announce the result. At present, I con fess, I think it is imperfect ; and I think it is imperfect for this reason : Here was a grave objection urged to the vote. The objection was not considered at any stage; it was ruled out at every stage, and the venerable Senator from Michigan [Mr. CASS] told us to come back to the Senate Chamber and consider it ; and we retired upon the suggestion that we could consider it. The Senator from Illinois [Mr. TEUMBULL] said that we are to retire for that purpose. We have retired and got here, and now we are told we should let the whole sub ject drop. It makes no difference to me. It is not denied in the resolution that Mr. Bu chanan is elected President and Mr. Breckin- ridge Yice-President, and I am sure that is perfectly acceptable to me. But the question may arise in the future ; and if we stand here upon an imperfect settlement of this question, it will come back to plague us or our success ors with a thousand -fold of its difficulties. This is the time for settling it, when no person can be accused of acting from interested mo tives, for it will not alter the result. I am sure no man can be accused of any intentional discourtesy to the State of Wisconsin, when it JAMES BUCHANAN, PRESIDENT. 163 is a purely naked case of construction under the Constitution. We can give our deliberate judgment; and our successors, if they choose, can avail themselves of that judgment on more difficult occasions. I hope, therefore, that instead of attempting to get rid of the resolution proposed by the Senator from Kentucky in any of these col lateral modes, it will be kept before the Senate, and in some shape or other the Senate declare its opinion on this question, and then notify the House of Representatives that, having settled this disputed question, it is ready to proceed. Mr. BENJAMIN". I move to lay the reso lution, with the amendments, on the table. I give notice that I will not withdraw my mo tion at the solicitation of any gentleman. The motion was agreed to. Mr. WELLER. I hope the resolution 1 offered this morning will now be taken up. I understand the House of Representatives has laid the whole subject on the table, and ap pointed a committee on the part of that Housa to wait on the President-elect. My object can be accomplished, perhaps, by con curring in the resolutions sent from the House of Representatives. The Secretary then read the following reso lutions of the House of Representatives : Ix THS HOUSE OF REPRESENTATIVES, February 12, 1857. Rxolved, That two members of the House be ap pointed by that body, to join a committee of one member oi the Senate, to be appointed by that body, to wait on James Buchanan, of Pennsylvania, and in form him that he has been duly elected President of the United States for four years, commencing on the 4th day of March, 1857 ; and also, to inform John C. Breckinridge, of Kentucky, that he has been duly elected Vice-President of the United States for four years from the 4th of March, 1857. Ordered, That Mr. George W. Jones, of Tennes see, and Mr. T. B. Florence, of Pennsylvania, be- the committee on the part of the House. Mr. WELLER. I move that the President of tho Senate appoint a committee of one. The PRESIDENT pro tempore. It is moved that the Senate concur in the resolution. Mr. WELLER. No, sir. My motion is that the President appoint a committee of one. The PRESIDENT .pro tempore. The Senate can have no committee till it concurs in the resolution. The resolution was concurred in, and, there being no objection, the President pro tempore was authorized to appoint the committee on the part of the Senate, and Mr. Weller was appointed. IN- HOUSE OF REPRESENTATIVES. Thursday, February 12, 1857. i " Congressional Globe," 3ith Cong., 3d Session pp. 672-G75.) The SPEAKER stated the question to be on the following resolution submitted by the gen tleman from South Carolina [Mr. OUR], the pending question being the motion of Mr. Smith, of Tennessee, to lay it on the table : Ordered, That when the Senate shall return to this House to complete, in joint convention, in pursu ance of the order of the two Houses, already adopted, the counting of the votes for President and Vice- President of the United States, the vote of any State cast on a day other than that provided by law. to wit, the 3d of December last, shall be rejected by the tellers of this House. Ordered, That the Clerk acquaint the Senate with the foregoing order of this House. Mr. ORR. Since the adjournment yester day, I have examined the Constitution and the law of Congress pas3sd to regulate the count ing of the votes for President. The count pro ceeded far enough to ascertain that Mr. Bu chanan and Mr. Breckinridga had each received for President and Vice-President one hundred and 83venty-four undisputed electoral votes, which, under the Constitution, was " a major ity of the whole number of electors ap pointed," and they are declared by the Con stitution u the President and Vice President," no further action being necessary to complete the result. The Senate, therefore, need not return to the House for any purpose whatever. I think a mistake was made yesterday, which, failing to be corrected at the time, cannot now be remedied. The vote of Wisconsin was counted, according to the declaration of the President of the Senate announcing the result, and I think improperly counted. The Consti tution says: "The Congress may determine the time of choos ing the electors and the day on which they shall give their votes, which day shall be the same through out the United States." The vote of Wisconsin was given on a day different from that provided by law, and was consequently illegal and void, and should have been rejected. How was this to be done ? The gentleman from Virginia [Mr. LETCHEK] objected very properly to the vote of Wiscon sin when the certificate was opened and was being handed to the tellers. The objection was overruled or not entertained by the pre siding officer, the President of the Senate. One other certificate was afterward opened, which completed the count. The objection might perhaps have been renewed then, but it was not. Nor was the point made when the tellers reported the result; nor was it made when the President of the Senate recapitulated the result, and declared Buchanan and Breck- inridge constitutionally elected President and Vice-President. Was it not then too late to make the question whether the vote of Wis consin should be counted, the result having been announced? I think it was. I am of opinion that the gentleman from Virginia [Mr. LETOIIER], as well as others of us who objected to the validity of that vote, erred in permitting tho count to proceed until the ques tion was decided. We erred in not requiring its decision before the tellers reported, and the error reached a point where it was irremedia- EIGHTEENTH PRESIDENTIAL TERM. ble when we permitted the result to be offi cially declared by the President of the Senate. That officer, in myjudgment, committed a mis take in refusing to entertain the objection of the member from Virginia. He should have submitted the question to the joint meeting or convention before proceeding further with the count. Who was to decide on the validity of the challenged vote ? The two Houses in joint convention by a per capita vote. The Constitution, in the twelfth amended article, says: " The President of the Senate shall, in the pres ence of the Senate and House of Representatives, open all the certificates, and the vote shall then be counted." Why were the Houses to assemble, and the votes then to be counted ? Was it to look on and allow any paper offered, though known to be fraudulent or illegal, to be received and reg istered? If the convention or meeting have no power to object, and, if necessary, reject that which purports to be a vote, why are the two Houses required to assemble together? Can it be assumed that the meeting is an idle, unmeaning, powerless form? If the joint meeting has no such power, then it would be a most useless form. But " the votes shall then be counted." If that which is illegal, and only purports to be a vote, is presented, can it be counted when it is not a " vote " under the Constitution and law ? If the State of Penn sylvania, being entitled to twenty-seven votes in the electoral college, should elect fifty elec tors, and they .should send fifty votes for Mr. A, would the members of the joint meeting have to remain silent, like so many automa tons, and permit fifty votes to be registered for Mr. A, when every member knew that the vote was illegal and void? The Constitution de volves on the two Houses of Congress the duty of being present, and the votes shall be counted then. Does not the requisition to be present at the counting necessarily carry the right to determine what votes offered are legal, and what votes may be void, as an inseparable in cident to the power of counting? Is the question to be determined concurrent ly, or by the joint decision of the two Houses? ff it is to be done concurrently, there could be no decision on a contested vote when the two Houses should disagree the one voting to count, the other to reject ; and if the admission or rejection of the challenged vote should de termine the result of the election, by electing or defeating one of the candidates voted for, we should then present the anomalous condi tion of having two Presidents elected, and pre senting themselves for inauguration Mr. A being President by the decision of the Senate, and Mr. B by the decision of the House. The next step in such a contingency as this would be revolution a resort to the sword to settle the question in fraternal blood, when it might properly be decided by the per capita votes of the joint convention, which would decide defi nitely for the one or the other. Nor is the dignity of the Senate or the sov ereignty of the States compromised or endan gered by any such proceedings. The Senate and House are equals in the joint meeting. Their combined numbers are the same as the electors in the electoral college : it is a pro ceeding having reference to the President of the United States. Senatorial electors in the several States possess no power or dignity su perior to those representing the congressional districts ; they all assemble together, and each one casts a per capita vote. The Senate, in joint meeting, in voting per capita on the ques tion, "Shall the vote excepted be counted?" wields the same power, relatively and absolute ly, as the senatorial electors in the electoral colleges. In pursuing this analogy, is any wrong done the Senate ? Are its prerogatives infringed ? Is the sovereignty of the States, as represented in the Senate, invaded ? The conclusion, then, to which I come, is this: any member of either House, when the two Houses meet to count the votes for Presi dent, may object to the counting of any par ticular vote, upon what he may conceive suffi cient ground. When the objection is thus taken, it is the duty of the presiding officer of the joint meeting to propound the question, Shall the vote be rejected ? which shall be de cided by a per capita vote of all the members of each House, and the vote so contested re ceived, or rejected, as the majority of the joint meeting shall determine. This is a legitimate construction of the Con stitution ; the only one which can enable the two Houses to reach a decision, and to relieve them from the ridiculous assumption that they can look on. and, knowing a vote to be fraudu lent, have no power to arrest its counting. The Constitution makes us the managers or canvassers to count the electoral votes ; and in doing so gives us the power to say whether a vote presented is or is not legal. The decision of the question, is of no prac tical consequence now. There were one hundred and seventy -four unimpenched votes counted for Mr. Buchanan and Mr. Breckin- ridge, which was a majority of all the electors appointed, and they are declared by the Con stitution elected President and Vice-President. No further action is necessary in the joint meeting, and I withdraw my proposition of fered yesterday. Mr. JONES, of Tennessee. I wish to intro duce a resolution which has been agreed upon by the joint committee on the subject of count ing the votes of President and Vice-President. The resolution was read, as follows : Resolved, That two members of the House be ap pointed by that body, to join a committee of one member of the Senate, to be appointed by that body, to wait on James Buchanan, of Pennsylvania, and inform him that he has bet-n duly elected President of the United States for four years, commencing on the 4th day of March, 1857 ; and also to inform John JAMES BUCHANAN, PRESIDENT. 165 C. Breckinridge, of Kentucky, that he has been duly elected Vice-Prcsident of the United States for four years, from the 4th of March, 1857. Mr. H. MARSHALL. I am opposed to the passage of the resolution. Mr. JONES, of* Tennessee (interrupting). I ask for the previous question on the resolu tion. The SPEAKER. The gentleman from Ken tucky [Mr. H. MARSHALL] has the floor. Mr. JONES, of Tennessee. Am I not enti tled to it ? The SPEAKER. The gentleman was en titled to the floor on the resolution, but he did not claim it, and the gentleman from Kentucky addressing the Chair was recognized. Mr. H. MARSHALL. I cannot say, Mr. Speaker, that I shall oppose strenuously the reception of the resolution offered by the gen tleman from Tennessee, but I am opposed to its passage at this time, because that yields all there is and has been in dispute as to the part which the Senate and House are constitution ally required to perform in the ascertainment and declaration as to the persons elected to the Presidency and Vice-Presidency by the elec toral college. Let me say here that of course I know, and admit, that Mr. Buchanan and Mr. Breckin- ridge have been elected; and I desire as much as does any member on this floor, or as can any citizen of this country, to have that elec tion declared. That is not the point. The question presented here is as to the manner in which that fact shall be constitutionally ascer tained and declared, and what part the Houses of Congress play in that ascertainment and declaration, agreeably to the Constitution. The President of the Senate yesterday directed the tellers to take their places ; he opened the certificates, and, one by one, he delivered them to the tellers, with the declaration, "I hand to the tellers the vote of the State of Maine," and so on. He assumed that the certificate showed a vote, and he ordered it to fie counted. When a member of this House desired to ob ject to a vote, the President of the Senate re pulsed him, and said no step could be taken involving the possibility of a vote of the Houses upon a proposition made before them while together. While the objection of a member of this House was bsing attempted, the Presi dent of the Senate declared a result, but after ward he said repeatedly that the tellers had not entirely performed their duty, and he post poned a motion of a Senator that the Senate retire, by saying that the tellers had not finished their duty. As a first lesson, there fore, to us, we behold the result of the election proclaimed before the tellers had performed their duty. I have no doubt that the result had been attained fairly attained. I do not know but that, were it not for the particular posture in which this question is placed, it might be well enough for the House to say that a result had been sufficiently attained to show the fact that Mr, Buchanan is elected President and that Mr. Breckinridge is elected Vice- President of the United States. I am willing that we should stop on the count, there being no vote excluded but that of Wisconsin, and no question except that of the vote of Wisconsin. I am perfectly willing that the two Houses, in the presence of one an other, may make the proclamation of that re sult. I indicated yesterday that my opinion was that the two Houses were in session ; that they were in session in the presence of each other; that the Speaker, occupying his posi tion, was then presiding over the House ; that the President of the Senate, occupying his position, was presiding over the Senate; and that, by a joint order passed by the two Houses, when the two Houses came into the presence of one another, the President of the Senate was, as an act of courtesy, allowed to preside over the ceremony which was being performed. But we were in session ; and we, as a House, have a constitutional duty to perform. We have a constitutional duty to see that the count is properly made ; and a separate resolution passing from this House to the Senate, and from the Senate back to this House, does not, according to my view, meet the requirements of the Constitution. The examination must bo made, and the proclamation must be made, in the presence of the two Houses. The resolution of the gentleman from Ten nessee does not come up to that question. In other words, in my opinion, it takes a false di rection. There is no gentleman of any party in this House, I suppose, who does not want to reach the result which proclaims Mr. Buchan an President, and Mr. Breckinridge Vice-Pres- ident of the United States for the next four years ; but there underlies all this the question of how that thing is to be done, and done prop erly, according to the Constitution. The ques tion, in fact, on this resolution, because this thing is to be hereafter looked back to as a pre cedent, is what part we are to play? Suppose a case. Tellers are appointed. As I remarked, yesterday, who are these tellers? They are not known to the Constitution. Who appoints them ? The House appointed two and the Sen ate appointed one. Whay are they? Mere instrumentalities, mere facilities, that we hold in our hands by whicli we perform our consti tutional duty. We were counting the votes, and, by our acquiescence, the tellers acted for us. There was no challenge. But suppose a vote is proposed to be counted, and a member challenges it; has he not the right to challenge it? The President of the Senate says not, I say he has. I believe Chancellor Kent, after a fashion, also says- not. He has a right to chal lenge it, and we have a right to vote as to whether that vote shall be counted. When the Constitution says the vote shall be counted, what does it mean ? What is to count ? What faculty does it involve ? I say not only the faculty of enumerating, but the faculty of 166 EIGHTEENTH PRESIDENTIAL TEEM. judging whether it is a vote 6r not. Suppose a case. The Constitution of the United States requires that the electors shall not vote for a President and Vice-President both of whom belong to the same State as themselves. Sup pose an electoral vote, certified regularly, is opened here, and that it shows on its face that the electors of the State of New York have voted for two citizens of that State for Presi dent and Vice-President, thereby clearly vio lating that provision of the Constitution. Sup pose that vote will decide the election: the question is, whether you will count or exclude it? You are under oath to support the Con stitution, and you cannot count a vote which violates that instrument and is a breach of the privileges of the electoral colleges. I present that as a case which might arise. I might mul tiply illustrations. The House is in session here to count, and a member of it has the right to challenge a vote ; and a vote cannot be final ly declared unless it meets with the concurrent sanction of the two Houses, in the presence of each other. Who gives the President of the Senate the right to declare the result? I would like to know that. The language of the Constitution is that the President of the Sen ate shall open all the certificates, and that then the votes shall be counted. It means that the President of the Senate is to open the certifi cates before any vote is to be counted. He is charged by the Constitution with the reception of all the papers I do not know whether it is the law or the Constitution. A MEMBER. The Constitution. Mr. H. MARSHALL. The Constitution it is. Well, the Constitution requires that the electoral votes shall be inclosed from the re spective places of voting in the various States, and sent to the President of the Senate. He is, by the Constitution, made the recipient of the certificates, and on a day named he comes into the presence of the two Houses with his charge, and opens the certificates in the pres ence of the two Houses. After he has opened all of the certificates, the Constitution says, u and then the votes shall be counted." He is to open all the certificates first. Now, yester day, he opened a certificate, and handed it down to the tellers. Who authorized them to count? Sir, the count yesterday never com menced . constitutionally. It was not done at all, except by our general acquiescence in what was a wrong proceeding. The count should have commenced after the certificates had been opened, and then, as the count progressed, any Senator or Representative could object to the counting of any vote ; and when an objection was made, it required the concurrent sanction of the two Houses, each acting in the pres ence of the other, to say whether or not that vote should be counted. You sit there, sir, as Speaker of this House, presiding over its deliberations. It was in ses sion, and you were there because you were its Speaker. We were in session then, as much as we are in session now. We were in session as a House, and in session in presence of the Senate. The two Houses were in presence of each other, under the requirements of the Con stitution ; and whenever I objected to a vote being counted, instead of addressing, except by courtesy, the President of our joint meet ing, I should have addressed myself to the Speaker of the House of Representatives, and have required the action of the House of Rep resentatives on my proposition to count or re ject a vote. This is a matter that ought to be fuarded. Who gives the President of the enate the right to declare the result? My opinion is, Mr. Speaker, that you ought to de clare the result, as well as the President of the Senate, and that the thing is not constitution ally fixed until, in the presence of each other, you both agree to proclaim the result. Suppose a case of the two Houses standing in the presence of each other, and a single vote determines the election take the case of the election when Clay and Polk were candidates, when the vote of New York did decide the election suppose the two Houses are in the presence of each other, and the vote of New York is challenged, and the two Houses should disagree as to whether it should be counted or not, do you believe that the Constitution ever intended that the President of the Senate might proclaim the result, and proclaim the election of a President? It requires your sanction as well as his ; and as a member of the House of Representatives, upon principle, I am unwill ing to yield to the proposition that the Presi dent of the Senate, or any other organ, can proclaim the result. You must concur in order to produce a result, and that concurrence must be proclaimed in the presence of the two Houses by you and the President of the Senate. Therefore, I am opposed to the passage of this resolution. I merely suggest this as the best mode the constitutional mode. It cannot affect the result. Nobody wants to change the result. Everybody knows how the election has resulted, and everybody is willing that the re sult shall be attained. All we want is, that as questions have arisen, and as they may be im portant in the future, we shall now ascertain the right of the House, and fix it upon definite constitutional principles. Mr. JONES, of Tennessee. I will read just one clause from the Constitution : " The Congress may determine the time of choos- ing the electors, and "the day on which they shall give their votes, which day shall be the same throughout the United States." I call the previous question. Mr. PURVIANCE. I ask the gentleman from Tennessee to give way while I offer the following amendment : Jtesolved, That after the announcement of the vote for President and Vice-President by the Presiding Officer of the Senate, in the presence of the two Houses in joint session, the functions of the paid Presiding Officer and joint session ceased, and that JAMES BUCHANAN, PRESIDENT. 167 this House has no right to take further cognizance of the matter. Mr. WHEELER. I object, and call for the regular order of business. Mr. PURVIANCE. Then I hope the House will not second the previous question. Mr. CAMPBELL, of Ohio. I ask the gentle man from Tennessee to withdraw the previous question, to enable me to offer as an amend ment the resolution I introduced yesterday, as an amendment to the proposition of the gen tleman from South Carolina, and which fell this morning. Mr. JONES, of Tennessee. The resolution I have offered is in the usual form. I would withdraw the previous question for the gentle man from Ohio as soon as for anybody, but I must decline to do so now. Mr. CAMPBELL, of Ohio. Then I rise to a question of order. It is, that the proposi tion of the gentleman from Tennessee cannot be introduced to-day. Mr. FLORENCE. Well, but it is in. The SPEAKER. The Chair thinks the res olution is in order, as a necessary result from that which appears upon the Journal Qf this day that a declaration of the election of Presi dent and Vice-President has been made. Mr. WALBRIDG-E. I move to lay the res olution upon the table. Mr. CAMPBELL, of Ohio. I call for the yeas and nays. The yeas and nays were ordered. The question was taken ; and it was decided in the negative yeas 24, nays 107 ; as fol lows : YEAS Messrs. Ball, Henry Bennett, Bishop, Bufnnton, John P. Campbell, Lewis D. Campbell, Caskie, Garnett, Haven, Humphrey Marshall, Mill- ward, Mooro, Morgan, Powell, Pringle, Purvianoe, Sage, Sapp, Scott, Spinner, Stantoii, S\vope, Wai- bridge, and Whitney 24. NAYS Messrs. Aiken, Akers, Albright, Allen, Barbour, Barclay, Barksdale, Bell, Hendley S. Ben nett, Bingham, Bliss, Bocock, Bowie, Bradshaw, Branch, Breuton, Broom, Burlingame, Burnett, Carlile, Bayard Clarke, Ezra Clark, Clawson, Cling- man, Ho well Cobb, Williamson R. W. Cobb, Col- fax, Comins, Covode, Cox, Cragin, Craige, Craw ford, Cumback, Damrell, Davidson, Jacob C.Davis, Timothy Davis, Day, Dean, Denver, De Witt, Dick, Dickson, Dodd, Dowdell, Dunn, Durfee, Edmund- son, Elliott, Emrie, English, Etheridge, Eustis, Faulkner, Flakier, Florence, Foster, Henry M. Ful ler, Thomas J. D. Fuller, Galloway, Gilbert, Goode, Granger, Greenwood, Augustus Hall, Eobert B. Hall, Harlan, J. Morrison Harris, Harrison, Herbert, Hickman, Hodges, Thomas R. Horton, Houston, Howard, Haghston, Jewett, George W. Jones, J. Glancy Jones, Kelly, Kid well. King, Knapp, Knight, Knowlton, Knox, Kunkel, Lake, Loiter, Letcher, Lumpkin, Mace, Alexander K. Marshall, Samuel S. Marshall, Maxwell, McMullin, McQueen, Killian Miller, Smith Miller, Millson, Merrill, Morrison, Mott, Murray, Nibhols, Norton, Andrew Oliver, Mordecai Oliver, Packer, Paine, Parker, Peck, Pel- ton, Perry, Pettit, Phelps, Pike, Puryear, Quitman, Reade, Ready, Ricaud, Robbins, Roberts, Robinson, Ruffin, Sabin, Sandige, Savage, Sherman, Simmons, Samuel A. Smith, William Smith, William R. Smith, Sneed, Stewart, Stranahan, Talbott, Tappan, Tay lor, Thorington, Thurston, Todd, Trafton, Trippe, yson, Underwood, Vail, Wade, Wakeman, Walk- r, Cadvvalader C. Washburne, Elihu B. Washburne, Tyson, Undt er, Cadwalad Israel Washburn, Watkins, Watson, Welch, Wheel er, Williams, Winslow, Wood, Woodruff, Wood- worth, Daniel B. Wright, John V. Wright, and Zollicoffer 167. So the House refused to lay the resolution upon the table. Pending the call of the roll, Mr. PURVIANCE stated that he voted " ay," because he believed that, after the an nouncement of the President of the Senate, this House had no right to take any further cognizance of the matter. The previous question was then seconded, and the main question ordered to be put ; and under the operation thereof the resolution was adopted. Mr. JONES, of Tennessee, moved that the vote by which the resolution was adopted be reconsidered ; and also moved that the motion to reconsider be laid upon the table. The latter motion was agreed to. Mr. JONES, of Tennessee. I move that the Chair appoint the committee provided for in the resolution, on the part of the House. The motion was agreed to ; and The SPEAKER thereupon appointed Messrs. JONES, of Tennessee, and FLORENCE, as such committee on the part of the House. The SPEAKER stated that the business next in order was the report of the Committee of Elections on the contested seat from Kansas ; the pending question being on a motion to lay the report upon the table, upon which the House had ordered the yeas and nays to be taken. Mr. DUNN. I rise to a question of privilege. I would inquire of the Chair whether it is not in order to offer another resolution in regard to the election of President ? The SPEAKER. It is impossible for the Chair to decide without knowing what the resolution is. Mr. DUNN. I send it up, that it may be read for information. Mr. SMITH, of Tennessee. I object. Mr. WHEELER. I call for the regular order of business. Mr. DUNN. I understand that this is a privileged question, and the House ought to dispose of it definitely and finally. The SPEAKER. The resolution is proposed as a question of privilege, and it will be read for information. The resolutions were read, as follows : Resolved, That in accordance with the require ments of the laws relating thereto, Congress being in session on the llth day of February, A. D. 1857, being the second Wednesday of said month, the President of the Senate, in the presence of the Sen ate and House of Bepresentatives, assembled in the Hall of the House of Representatives, did open all the certificates of the election for President and Vice-President of the United States, and counted the votes given therefor, whereby it was ascertained that James Buchanan, of the State of Pennsylvania, had been duly and legally elected President of the United States for the term prescribed by the Con- 168 EIGHTEENTH PRESIDENTIAL TERM. Btitution and laws, to commence on the 4th day of March next ; and, in like manner, it was ascertained that John C. Breckinridge, of the State of Kentucky, had been duly elected Vice-President of the United States for the like term, to commence also on the said 4th day of March next. Resolved, That it appearing that the vote of the State of Wisconsin having been attempted to be cast by the electors of that State on the 4th day of December, A. D. 1856, instead of the 3d day of that month, as prescribed by law, therefore the vote of Baid State could not be counted for President and Vice-President without a violation of the second paragraph of the first section of the second article of the Constitution of the United States. Mr. DUNN". I ask for the reading of the second paragraph of the first section of the second article of the Constitution. Mr. WALBRIDGE. I object to the intro duction of the resolution. Mr. SMITH, of Tennessee. I rise to a ques tion of order. This question having been dis posed of, so far as this House is concerned, no question of privilege can arise in reference to it. The SPEAKER. The Chair is of opinion that the resolution cannot he received. It ap pears by the Journal, accepted by the House, that a declaration of the election of a Presi dent and Vice- President has been made in the presence of the House. If the resolution of the gentleman from Indiana, reaffirming the fact that an election has been made, be re ceived, a resolution would be received disaf firming the fact that an election has been made. The Chair thinks the resolution can not be received without general consent. Mr. DUNN. I would make this single sug gestion. According to the Journal, it is left uncertain whether the vote of Wisconsin is counted or not. Mr. SMITH, of Tennessee. I object to the resolution. Mr. DUNN. These resolutions aro intended to declare that a^ declaration of election in fact took place, as the Journal cites ; and in addition declares the further fact, that the vote of Wisconsin cannot be constitutionally count ed. The SPEAKER. The Chair thinks the reso lution can be introduced only by unanimous consent. Mr. WALBRIDGE. I object. Mr. STANTON. I rise to a question of privilege. I move to correct the Journal, so as to show that during the session of the joint convention of yesterday the gentleman from South Carolina [Mr. ORE] moved to reject the vote of Wisconsin; further, that the presid ing officer ruled it out of order ; further, that the gentleman from South Carolina took an appeal from the decision of the Chair, and that the President of the Senate ruled the ap peal out of order. I ask to have the Journal further corrected, so as to show that, during the time the two Houses were together, the Senate, on a motion of the Senator from Illi- noise [Mr. TBUMBULL], retired for consultation, and that in that mode the joint convention of the two Houses was dissolved. The SPEAKER. The Journal of the House has been read, and approved by the House. Mr. STANTON. I submit that there can be no approval when there was no motion of ap proval. The SPEAKER. There has been no motion to approve the Journal ; but it is assumed, no question being made. That is the established rule in reference to the reading of the Jour nal. Mr. STANTON. Is it assumed that, if the motion to correct the Journal be not made in stantly on the close of the reading, the Jour nal is approved ? The SPEAKER. That has been the uniform practice of the House as regards the Journal. The Chair assumes, instead of stating the ques tion to the House, that the Journal is approved by the House, unless some question be raised. Mr. STANTON. That is certainly all cor rect; but suppose a gentleman cannot get the floor to make a motion to correct: suppose there be another privileged question pending The SPEAKER. No privileged question can arise between the reading of the Journal and its approval by the House. It is a question above all other questions. Mr. SMITH, of Tennessee. I object, and call for the regular order of business. Air. STANTON. Is the approval of the Journal treated as a vote of the House, and, if so, is it not subject to reconsideration ? The SPEAKER. The Chair thinks it is sub ject to reconsideration. Mr. STANTON. Then I move to reconsider the approval of the Journal. Mr. COB B, of Georgia. The Chair was right originally. There is but one time to consider the question of the approval of the Journal, and that is when it is read. When that point is passed, it cannot be reached unless by general consent of the House. The SPEAKER. It is the established prac tice in all deliberative assemblies, that when the Journal is read it is considered as approved unless a question be raised. There has been no vote taken ; and the rule relating to recon sideration requires that a vote be taken. Mr. STANTON. Then, does the Speaker hold, that unless a motion be made instantly on the reading :when perhaps a gentleman cannot make it there is no possibility of cor recting the Journal by reconsideration or other wise? Mr. CLINGMAN. If other business has been done you lose your chance, of course. The SPEAKER. It is an assumed vote. It is doubtful whether the gentleman loses a right, under the rules of the House, to bring the mat ter before the House again by a motion to re consider. Mr. CLINGMAN. I take it that it is exact ly like the case of the Chair announcing that a vote is carried. Any man may raise a ques- JAMES BUCHANAN, PRESIDENT. 169 tion, and call for a division ; but if the an nouncement is acquiesced in, and the House goes to other business, it cannot come back. After the Journal is read, a motion to amend takes precedence of everything else ; but when we go on to other business, we cannot go back to the Journal. The SPEAKER. This is a case like that spoken of by the gentleman from ^orth Caro lina; but there is a further question in this case, whether a member has not the right to reconsider it. The approval of the Journal is a constructive vote. Mr. STANTON". Then I insist on the motion to reconsider. Mr. SMETH, of Tennessee. There is a way by which the Journal can be amended. That is, by a regular motion to amend the Journal ; and that is to be made as every other motion that comes before the House. As to recon sidering the approval of the Journal, such a thing has not been known in the House. Mr. STANTON. It certainly is a matter of some consequence that the history of yester day s proceedings should go on the Journal correctly. It certainly ought to be known hereafter what in fact was done, and let its effects be judged of by it. Whatever was done, whatever was decided, and however the thing is disposed of, is a matter which certainly ought to be entered on the Journal, and ap proved. It will not occupy much of the time of the Houss to correct the Journal. Mr. OOBB, of Georgia. I rise to a question of order. Do I understand the Chair as enter taining a motion to reconsider the vote by which the House approved the Journal ? The SPEAKER. It has not been so stated. Mr. COBB, of Georgia. Than, on what point is the gentleman from Ohio addressing the Chair? Mr. STANTON". On the motion to recon sider, as the gentleman from Ohio supposed. Mr. COBB, of Georgia. Then I submit, as a point of order, that that motion is not in or der. No motion to reconsider a constructive vote of the House is in order. You can only reconsider a vote that has been taken. I think it important that this question should bo dis posed of, and, if the motion be entertained, I propose to take an appeal from the decision of the Chair, in order that it may be decided by the House. I think the difficulty can be reached in a different way in the usual way. I sug gest to the Chair, with the permission of the gentleman from Ohio, that the ruling of the Chair at the commencement of this matter was correct. The proper time to object to the Jour nal is when it is read. Afterward it is in or der to move and amend the Journal; but that is not a privileged question, and you must get in your motion just as any other motion is brought to the consideration of the House by general consent or by a suspension of the rules. The House having determined that it shall not suspend the rules on this day, the motion can only be entertained by general consent. A mo tion to amend the Journal is not excluded ; but it is not a privileged question. That is the point I make. I think the Chair ruled very correctly. But I trust that we will not get in to the habit of moving, at any time during the day, to reconsider a vote, never taken, approv ing the Journal. With your experience in the chair, sir, you will readily perceive how often the House will be led into embarrassments by entertaining such propositions. Mr. STANTON. Will the gentleman from Georgia answer an inquiry? Mr. COBB, of Georgia. Certainly. Mr. STANTON. Will he tell me what is the difference between a correction of the Jour nal and an amendment of the Journal ? Mr. COBB, of Georgia. None whatever. I am only speaking of the time. The gentleman is entitled to move his amendment when the Journal is read. Failing to do so, the House has approved it. Afterward he has the same right to move to amend the Journal, but his motion is not a privileged question. If to-day you could suspend the rules, you might move to suspend them for the purpose of amending the Journal, or the motion can be entertained by unanimous consent. The only point I make is, that this is not a privileged question, as the House has passed on from the approval of the Journal to the ordinary business of the House. That has been the practice of the House all the time, as far as I understand it. Mr. STANTON. If I understand the gen tleman s point it is, that this motion loses its dignity as a question of privilege if it be not made on the instant. Mr. COBB, of Georgia. Yes. Mr. ST ANTON. If the Journal be signed by the Speaker, or ratified, I take it for granted that no subsequent amendment is in order. It cannot be moved at all. Mr. COBB, of Georgia. Allow me to sug gest in reference to that, that the Journal is not approved if a gentleman rises at once and objects to it. Mr. SMITH, of Tennessee. I object to all debate, and call for a decision on the question. The SPEAKER. If the gentleman from Ohio insits on the question, the Chair, will submit the question to the House. Mr. ST ANTON". Yes, sir, I do. The SPEAKER. The gentleman from Ohio rises to a question of privilege, and claims a right to move an amendment to the Journal. The Chair decides that the Journal, having been examined this morning by the Speaker, approved by him, and read to the House, and no question having been made by the House, is approved ; and the Chair further decides that no question of privilege can arise between reading the Journal and its approval by the House ; that the question of correcting it is higher than all other questions, and must be first determined. The gentleman from Ohio then claims the right to move a reconsidera- 170 EIGHTEENTH PRESIDENTIAL TERM. tion of the constructive vote of the House ap proving the Journal; and the Chair submits the question to the House, "Shall the motion to reconsider be admitted as a question of high privilege, relating to the Journal? " Mr. EUSTIS. Is it in order to move to lay the motion on the table ? The SPEAKER. It is not in order, as the motion is not received. Mr. CLINGMAN. Is the question debat able? If so, I will move the previous ques tion. The SPEAKER. It is hardly a question for debate. The Speaker then put the question, and the House determined it in the negative. So Mr. STANTON S motion was not admitted. Mr. SEWARD. I rise to a question of order. On the fifty-eighth page of the Manual I find the following words : " It is a breach of order for the S to put a question which, is in order. Now, the 56th rule of this House is as fol lows : " When a motion has been once made, and carried in the affirmative or negative, it shall be in order for any member of the majority to move for the recon sideration thereof." If .the House of Representatives by a con structive vote, approved the Journal read this morning, the gentleman from Ohio having voted in the affirmative, and with the majority, has the right to move a reconsideration of that vote. The Chair, therefore, is out of order in not putting the motion to reconsider. The SPEAKER. No vote has been taken ; and no affirmative or negative vote has been given. NINETEENTH PKESIDENTIAL TERM. 1861-1865. ABRAHAM LINCOLN, President ; HANNIBAL HAMLIN, Vice- President. IN SENATE. lOin PEES. TERM. Friday, February I, 1861. (" Congressional Globe," XXXVIth Congress, 2d Session, p. 682.) Mr. TRUMBULL. Before the Senate be gins, I ask leave to offer a resolution, and if there is no objection I hope it will be con sidered now : Resolved, That a committee be appointed by the President of the Senate to consist of three members, to join such committee as may be appointed by the House of Representatives, to ascertain and report a mode for examining the votes for President and Vice-President of the United States, and notifying the persons chosen of their election. Mr. LATHAM. Is that disposed of? Th e> VICE-PRESIDENT. The Chair hears no objection to the present consideration of the resolution. Mr. BIGLER. I object to it. The VICE-PRESIDENT. There is so much confusion that the Chnir cannot hear Senators. The Chair understands some Senator to object. Mr. BIGLER. I object. The VICE-PRESIDENT. Then the reso lution will lie over. IN SENATE. Saturday, February 2, 1861. ("Congressional Globe," XXXVIth Congress, 2d Session, p. 698. Mr. TRUMBULL. I yesterday offered a resolution preparatory to counting the votes for President an.d Vice-President, the consider ation of which was objected to by the Senator from Pennsylvania. I desire to have that resolution called up, and if there is to be op position to counting the votes for President and Vice-President let us know it. Mr. BIGLER. I made the objection simply because I desired to go on with other business. That was my only reason. The motion to take up the resolution was agreed to, and the Senate proceeded to con sider it. It is as follows : Resolved, That a committee be appointed by the President of the Senate, to consist of three members, to join such committee as may bo appointed by the House of Representatives, to ascertain and report a mode for examining the votes for President and Vice-President of the United States, and notifying the persons chosen of their election. The resolution was adopted, and Mr. Tram- bull, Mr. Foot, and Mr. Latham were appointed the committee on the part of the Senate. IN SENATE. Monday, February 4, 1861. (" Congressional Globe," XXXVIth Congress, 2d Session, p. 720.) The message further announced that the House had agreed to the resolution of the I Senate to appoint a committee to join such I committee as may be appointed by the House I of Representatives, to ascertain and report a ABRAHAM LINCOLN, PRESIDENT. 171 mode for examining the votes for President and Vice-President of the United States, and notifying the persons chosen of their election, and had appointed Mr. Elihu B. Washburne. of Illinois; Mr. Garnett B. Adrian, of New Jersey ; Mr. James Craig, of Missouri ; Mr. Alfred Ely, of New York, and Mr. William C. Anderson, of Kentucky, the committee on the part of the House. IN SENATE. Tuesday, February 5, 1861. (" Congressional Globe," XXXVIth. Congress, 2d Session, p. 740.) Mr. TRUMBULL. The joint committee ap pointed to ascertain and report a mode for ex amining the votes for President and Vice-Presi dent of the United States, and of notifying the persons chosen of their election, have in structed me to report in part the following resolution : Resolved, That the two Houses will assemble in the Chamber of the House of Representatives, on Wednesday, the 13th day of February, 1861, at twelve o clock, and the President of the Senate shall be the. presiding officer; that one person be appointed a teller on the part of the Senate, and two on the part of the House of Representatives, to make a list of the votes as they shall be declared ; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, and the persons elected, to the two Houses assembled as aforesaid, which s hall be deemed a decla ration of the persons elected President and Vica-President of the United States, and, to gether with a list of the votes, be entered on the Journals.of the two Houses. If there be no objection, I ask for the adop tion of the resolution now. I will state that it is the usual form of canvassing the votes for President and Vice-President, which has been adopted since the foundation of the Govern ment. The resolution was considered by unanimous consent and agreed to. Mr. TRUMBULL. If it be necessary, I move that the Vice-President appoint the tell er on the part of the Senate. I do not know but that that would follow at any rate. If, however, it needs a motion, I make that mo tion. The VICE-PRESIDENT. The Senator from Illinois moves that the presiding officer of this body appoint the teller on the part of the Senate, for counting the presidential votes. The motion was agreed to by unanimous consent. IN SENATE. Wednesday, February 6, 1861. ( u Congressional Globe," XXXVIth Congress, 2d Session, p. 762.) The Vice-President appointed Mr. Trumbull teller on the part of the Senate to count the electoral votes for President and Vice-Presi dent of the United States. A message was subsequently received from the House of Representatives, announcing that the House of Representatives had concurred in the resolution reported by the joint committee appointed to ascertain and report a mode for examining the votes for President and Vice- President of the United States; and that it had appointed Mr. Elihu B. Washburne, of Illi nois, and Mr. John S. Phelps, of Missouri, tellers on the part of the House. IN SENATE. Wednesday, February 13, 1861. "Congressional Globe," XXXVIth Congress, 2d Session, p. 882.) The message further announced that the House had passed the following order : IN THE HOUSE OF REPRESENTATIVES, ) February 13, 1861. j" Ordered, That the Clerk inform the Senate that the House of Representatives is now ready to receive that body for the purpose of pro ceeding to open and count the votes of the electors of the several States for President and Vice-President of the United States. Mr. FOSTER. I present the petition The VICE-PRESIDENT. The Chair will state to the Senator from Connecticut that, in pursuance of the order of the two Houses, nothing is now in order but to proceed to the House of Representatives. Mr. BIGLER. I move that the Senate now proceed to the House of Representatives, in compliance with the order of the Senate. The VICE-PRESIDENT. It is moved and seconded that the Senate now proceed to the House of Representatives, for the purpose of counting and declaring the electoral votes. The motion was agreed to. The VICE-PRESIDENT. The Chair will state that the usual order of proceeding to the House of Representatives has been for the Sergeant-at-Arms to go in advance ; then the Secretary and Presiding Officer, with a mes senger bearing the votes ; and then the body of the Senate. If there be no objection, that order will be pursued. The Senate thereupon proceeded to the Hall of the House of Representatives. At twenty minutes to two o clock the Senate returned to their Chamber. The VICE-PRESIDENT resumed the chair, and called t he Senate to order. 172 NINETEENTH PRESIDENTIAL TERM. Mr. CAMERON. I move now to take up the regular order of the day, the tariff bill. ["Oh, no!"] Mr. TRUMBULL. Before we proceed to the consideration of that bill, which of course will take considerable time to dispose of, I de sire to make a report in connection with our business to-day in the other House. The PRESIDING OFFICER. Doss the Senator from Pennsylvania yield the floor? Mr. CAMERON. I cannot, unless it is un derstood that I give way only for that pur pose ; and that, after that, my motion can be carried into effect. Mr. TRUMBULL. I suppose it is a privi leged question, connected with the election of President, to carry out the action of the two Houses meeting in joint convention. I am in structed by the committee appointed on the part of the Senate and the House of Represent atives, to make a report. The PRESIDING OFFICER. Does the Senator from Pennsylvania yield the floor? Mr. CAMERON. With the understanding that my motion is to be carried into effect im mediately afterward, I will, Mr. HALE. I do not agree to that. Mr. CAMERON. Then I do not yield. Mr. TRUMBULL. I move to suspend all other business for the purpose of making a re port from the committee of the two Houses in connection with the election of President. It is a mere formal resolution, and I suppose it will be adopted in a moment. Mr. MASON. It seems to me to be but respectful to a coordinate department of the Government that this subject should be acted on promptly. The PRESIDING OFFICER. The Chair has no hesitation in regarding the proposition of the Senator from Illinois as a privileged one, connected as it is with the proceedings of this day in reference to the election of Presi dent and Vice-President, and will receive the report of the Senator from Illinois. Mr. CAMERON. Then I shall give way; because, if it is a privileged question, it does not interfere with my motion. Mr. BIGLER. Certainly not. Mr. TRUMBULL. The committee of the two Houses, appointed to devise a mode for canvassing the votes for President and Vice- President of the United States, and for notify ing the persons elected of their election, have instructed me to make the following report: That the joint committee, in further execu tion of the duties with which they were charged by the two Houses of Congress, have agreed to the following resolution, in which resolution their committee recommend to the Senate to concur : Resolved, That a committee of one member of the Senate be appointed by that body to join a committee of two members of the House of Representatives to be appointed by that House, to wait on ABEAHAM LINCOLN, of Illi nois, and to notify him that he has been duly elected President of the United States for four years, commencing with the 4th day of March, 1861 ; and also to notify HANNIBAL HAMLIN, of Maine, that he has been duly elected Vice- President of the United States for four years, commencing with the 4th day of March, 1861. Mr. MASON. I do not know whether that resolution is in the usual form, and I will ask the Senator that question. Mr. TRUMBULL. It is copied from prior resolutions. The resolution was considered by unanimous consent and agreed to. IN HOUSE OF REPEESENTATIVES. Wednesday, February 13, 1861. (" Congressional Globe," XXXVIth Congress, 2d Session, pp. 893, 894.) Mr. WASHBTJRNE, of Illinois, submitted the following resolution ; which was read, consid ered, and agreed to : Ordered, That the Clerk inform the Senate that the House of Representatives is now ready to receive that body for the purpose of pro ceeding to open and count the votes of the electors of the several States for President and Vice-President of the United States. At twenty minutes after twelve o clock, the Doorkeeper announced the Senate of the United States. The Senate entered the Hall, preceded by the Sergeant-at-Arms, and headed by the Vice- President and their Secretary, the members of the House rising to receive them. The Vice- President took his seat on the right of the Speaker of the House of Representatives, and presided over the joint convention of the two Houses. The members of the Senate occupied seats provided for them in the area of the Hall. Mr. TEUMBULL, the teller appointed on the part of the Senate, and Messrs. PHELPS and WASH- BUENE of Illinois, the two tellers appointed on the part of the House, took their seats at the Clerk s desk. The VICE-PEESIDENT then said : The two Houses being assembled, in pursuance of the Constitution, that the votes may be counted and declared for President and Vice-President of the United States for the term commencing on the 4th of March, 1861, it becomes my duty, under the Constitution, to open the certificates of election in the presence of the two Houses of Congress. I now proceed to discharge that duty. The VICE-PEESIDENT then proceeded to open and hand to the tellers the votes of the several States for President and Vice-President of the United States, commencing with the State of Maine. The votes having been opened and counted, the tellers, through Mr. Trumbull, reported the following as the result of the count : ABRAHAM LINCOLN, PRESIDENT. 173 Statement of Votes for President and Vice- President of the United States for Four Years, from the 4th of March, 1861 : 1 o 1 to 8 5 13 4 6 5 85 7 27 3 8 15 10 8 10 T* 12 23 6 7 13 11 . 9 9 4 6 3 4 4 5 4 4 8 803 STATES. PRESIDENT. VICE-PRESIDENT. Abraham Lincoln, of Illinois. | . 1 o 1 ca 1 Stephen A. Douglas, of Illinois. John Bell, of Tennessee. Hannibal Ilatnlm, of Maine. Joseph Lane, of Oregon. - Herschel V. Johnson, of Georgia. Edward Everett, of Massachusetts. 8 5 13 4 6 5 35 4 8 5 13 4 , Rhode Island s is 12 12 6 5 35 4 27 23 is 11 "6 3 8 io 8 10 "Q 7 9 4 3 4 . New York 27 s 8 Virginia . North Carolina. 10 8 10 . . South Carolina. Georgia Tennessee O lio 23 e 7 9 *9 Louisiana.. . Mississippi Indiana 13 11 Illinois Alabama Missouri 4 3 4 Michigan 6 Florida Texas Iowa .... 4 5 4 4 3 - 4 5 4 4 3 Wisconsin .... California. Minnesota Oregon 180 72 12 | 89 130 72 12 39 "Whole number of votes. . 330 Necessary to a choice 152 The VICE-PRESIDENT then said: ^ Abra ham Lincoln, of Illinois, having received a majority of the whole number of electoral votes, is elected President of the United States for four years, commencing the 4th of March, 1861. Hannibal Hamlin, of Maine, having re ceived a majority of the whole number of electoral votes, is duly elected Vice-President of the United States for four years, commenc ing the 4th of March, 1861. The business for which the two Houses were assembled having been finished, the Sen ate will now return to its own Chamber. The Senate, headed by the Vice-President and its officers, then retired from the Hall. IN HOUSE OF REPKESENTATIVES. Tuesday, February 14, 1861. ("Congressional Globe," XXXVIth Cong., 2d Session, p. 906.) The Speaker appointed Messrs. Washburne, of Illinois, and Burlingame, as the committee on the part of the House, to inform the Presi dent and Vice-President elect of their election. 174 TWENTIETH PRESIDENTIAL TERM. TWENTIETH PRESIDENTIAL TEEM. 1865-1869. ABRAHAM LINCOLN, President; ANDREW JOHNSON, Vice -President. IN HOUSE OF REPRESENTATIVES. Monday, December 19, 1864. ("Congressional Globe," XXXVIIIth Cong., 2d Session, p. 65.) Mr. Wilson introduced a joint resolution de claring certain States not entitled to represen tation in the electoral college, which was read a first and second time, and referred to the Committee on the Judiciary. Ix HOUSE OF REPRESENTATIVES. Tuesday, December 20, 1864. ("Congressional Globe," XXXVIIIth Cong., 2d Session, p. 82.) Mr. Wilson, from the Committee on the Judi ciary, reported back House joint resolution No. 126, declaring certain States not entitled to rep resentation in the electoral college, and moved that it be ordered to be printed and recom mitted to the same committee. The motion was agreed to. Mr. Pendleton moved to reconsider the vote just taken ; and also moved that the motion to reconsider be laid on the table. The latter motion was agreed to. IN HOUSE OF REPRESENTATIVES. Monday, January 30, 1865. ("Congressional Globe," XXXVIIIth Cong., 2d Session, p. 505.) Mr. WILSON. I ask unanimous consent of the House to report back from the Committee on the Judiciary joint resolution of the House No. 126, declaring certain States not entitled to representation in the electoral college. It is important that it should be acted upon at once. Mr. LE BLOND. I object. Mr. WILSON. I move to suspend the rules, for the purpose of having the joint resolution considered now. The question was put ; and two-thirds voting in favor thereof, the rules were suspended. Mr. WILSON. I now report the joint reso lution, and I ask the previous question upon it. The preamble to the joint resolution recites that the inhabitants and local authorities of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Missis sippi, Louisiana, Texas, Arkansas, and Tennes see rebelled against the Government of the United States, and have continued in a state of armed rebellion for more than three years, and were in a state of armed rebellion on the 8th day of November, 1864. l The joint resolution provides that the States mentioned in the preamble are not entitled to representation in the electoral college for the choice of President and Vice-President of the United States for the term of office commenc ing on the 4th of March, 1865, and that no electoral votes shall be received or counted from those States concerning the choice of President and Vice-President for that term. Mr. MALLORY. I hope the gentleman from Iowa will hear me for one moment. Mr. WILSON. I withdraw the previous question for that purpose. Mr. MALLORY. I would suggest to the gentleman from Iowa that the case provided for by the joint resolution which he reports, ought to be met by the two Houses of Congress when they meet in joint session to receive and count the votes of the various States for Presi dent and Vice-President. I do not see why we should prejudge the matter now. We are competent to settle it when we come to count the votes. I would say further to the gentleman from Iowa, that I have been instructed by the Com mittee on Rules of this House, to introduce an amendment to the rules concerning the very case contemplated by this joint resolution, and directing the mode in which any contest as to the right of any State to cast its vote shall be settled by the two Houses of Congress in their joint session. If the gentleman will allow me, I will send to the Clerk and ask him to read the report which I have been instructed to make by the Committee on Rules. Mr. WILSON. I have no objection to its being read. The Clerk read as follows : Resolved (the Senate concurring), That the following be added to the joint rules of the two Houses : 23. The two Houses shall assemble in the Hall of the House of Representatives at the hour of 1 o clock, p. M. on the second Wednes day in February next succeeding the meeting of the electors of President and Vice-President of the United States, and the President of the Senate shall be their presiding officer; one teller shall be appointed on the part of the Sen ate and two on the part of the House of Rep resentatives, to whom shall be handed, as they are opened by the President of the Senate, the certificates of the electoral votes; and said tell ers having read the same in the presence and hearing of the two Houses then assembled, shall make a list of the votes as shall appear ABRAHAM LINCOLN, PRESIDENT. 175 from the said certificates ; and the votes having been counted, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote and the names of the persons, if any, elected, which announcement shall be deemed a suffi cient declaration of the persons President and Vice-President of the United States, and, to gether with a list of the votes, be entered on the Journals of the two Houses. If, upon the reading of any such certificates by the tellers any question shall arise in regard to counting the votes therein certified, the same, having been stated by the presiding officer, shall be submitted, first by the President of the Senate to that body, and then by the Speaker to the House of Representatives, and no ques tion shall be decided affirmatively, and no vote objected to shall be counted except by the con current vote of the two Houses, said votes of the two Houses to be reported to and declared by the presiding officer ; and upon any such question there shall be no debate ; and any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner. At such joint meeting of the two Houses, seats shall be pro vided as follows: for the President of the Sen ate the Speaker s chair ; for the Speaker, a chair immediately upon his left ; for the Senators, in the body of the Hall upon the right of the pre siding officer; for the Representatives, in the body of the Hall not occupied by the Senators ; for the tellers, Secretary of the Senate, the Clerk of the House of Representatives, at the Clerk s desk ; for the other officers of the two Houses, in front of the Clerk s desk and upon either side of the Speaker s platform. Such joint meeting shall not be dissolved until the electoral votes are all counted and the result declared ; and no recess shall be taken, unless a question shall have arisen in regard to counting any such votes, in which case it shall be competent for either House, upon motion made and submitted to ifs own presiding ofh\ cer, to direct a recess not beyond the next day* at the hour of 1 o clock p. M. Mr. WILSON". I think there is a majority of the House in favor of the passage of the joint resolution which I have reported, but I think it very doubtful whether a majority of the House would be in favor of the adoption of the rule which the gentleman from Kentucky (Mr. MALLORY) has. had read at the Clerk s desk. And as it is very important that this question shall be determined at once, inasmuch as the opening and counting of the electoral votes are to take place next Wednesday week, I think we had better act on the joint resolution now, leaving the proposed amendment to the rules to be reported and discussed at the proper time. I therefore move the previous question. Mr. MALLORY. If the gentleman will allow ms, I will offer the rule as a substitute for the joint resolution, and let the sense of the House be taken on it. Mr. WILSON. No, sir; I cannot do that. That would create a good deal of discussion, I am satisfied, from the provision made there for the determination of the question by the two Houses sitting in- the Hall. I therefore move the previous question on ths joint reso lution. Mr. MALLORY. I hope the House will vote it down, and let the Senate have some thing to do with the settlement of the ques tion. The previous question was seconded, and the main question ordered; and under its opera tion the joint resolution was engrossed and read the third time. Mr. WILSON. I move the previous ques tion on the preamble. The previous question was seconded, and the main question ordered ; and under its operation the preamble was engrossed and read the third time. Mr. Wilson moved the previous question on the passage of the preamble and joint resolu tion. The previous question was seconded, and the main question ordered ; and under its opera tion the preamble and joint resolution were passed. Mr. Wilson moved to reconsider the vote by which the preamble and joint resolution were passed, and also moved to lay the .motion to reconsider on the table. The latter motion was agreed to. Ix SENATE. Tazsclay, January 31, 1865. ("Congressional Globe," XXXVIIIth Congress, 2J. Session, pp. 513 and 522.) A message from the House of Representa tives, by Mr. McPherson, its Clerk, announced that the House had passed a joint resolution (H. R. No. 126) declaring certain States not entitled to representation in the electoral college. The joint resolution (II. R. N"o. 126) declar ing certain States not entitled to representa tion in the electoral college was read twice by its title, and referred to the Committee on the Judiciary. IN SENATE. Wednesday, February 1, 1865. ("Congressional Globe," XXXVIIIth Cong., 2d Session, pp. 533-537.) Mr. TRUMBULL. The Committee on the Judiciary, to whom was referred the joint resolution (II. R. No. 126) declaring certain States not entitled to representation in. the electoral college, have instructed me to re- 176 TWENTIETH PRESIDENTIAL TERM. port the resolution back to the Senate with a recommendation that the resolution pass, and with an amendment to the preamble. I will ask for the consideration of the resolution at this time as the electoral votes are to be counted a week from to-day, and it may avoid difficulty in the canvass of the votes if the two Houses take action in regard to this matter prior to that time. No change is made in the House resolution; it is in print on Senators tables, and they can see at once what it is. There being no objection, the Senate, as in Committee on the Whole, proceeded to con sider the joint resolution ; which was read, as follows : Whereas the inhabitants and local authorities of the States of Virginia, North Carolina, South Caro lina, Georgia, Florida, Alabama, Mississippi, Louisi ana, Texas, Arkansas, and Tennessee, rebelled against the Government of the United States, and have continued in a state of armed rebellion for more than three years, and were in said state of armed rebellien on the 8th day of November, 1864 : Therefore, JBe it resolved by t7>e Senate and House of Representa tives of the United States of America in Congress as sembled, That the States mentioned in the preamble to this joint resolution are not entitled to represen tation in the electoral college for the choice of President and Vice-President of the United States for the term of office commencing on the 4th day of March, 1865 ; and no electoral votes shall be re ceived or counted from said States concerning the choice of President and Vice-President for said term of office. The amendment of the Committee on the Judiciary was to strike out of the preamble the following words : And have continued in a state of armed rebellion for more than three years, and were in said state of armed rebellion on the 8th day of November, 1864. And to insert the following in lieu thereof : And were in such state of rebellion on the 8th day of November, 1864, that no valid election for President and Vice-President of the United States according to the Constitution and laws thereof was held therein on said day. Mr. TEN" EYCK. Is this a proper time to move an amendment to that amendment as re ported by the committee ? The VICE-PRESIDENT. It is. Mr. TEN EYCK. Then I move to strike out the word " Louisiana " in the preamble. The VICE-PRESIDENT. That is not part of the amendment of the committee. The question is on the amendment reported by the committee. The amendment was agreed to. The VICE-PRESIDENT. The Senator s amendment would now be in order. Mr. TEN EYCK. I move to strike out of the preamble the word "Louisiana." I will simply state that it is a matter of history that the State of Louisiana has reorganized, or at least attempted to do so, and in the opinion of many, and perhaps most of the loyal citizens of that State, has reorganized as a State. It is a matter of history that they have elected State officers and a State Legislature, that they have elected members to a constitutional con vention and framed a new constitution for that State; that that Legislature passed a law authorizing the election of electors for Presi dent and Vice-President of the United States in the last presidential election, and that such electors have met and cast their votes. Under these circumstances I think there is a striking distinction between the State of Virginia and the State of Louisiana. My object in moving this amendment is, under this state of facts, that some opportunity may be afforded to a loyal people who have suffered all the horrors of the rebellion, who have got the better of it, and put it under foot, of coming back and resuming their place in the councils of the nation. Mr. HALE. I move now to take up the res olution of inquiry which I submitted yester day. Mr. SUMNER. I should like to have the resolution I offered yesterday taken up. The VICE-PRESIDENT. There is a ques tion now before the Senate, and it is extremely unpleasant to the Chair and not promotive of the dispatch of business to be continually doing business out of order. The joint resolu tion (II. R. No. 126) declaring certain States not entitled to representation in the electoral college is before the Senate as in Committee of the Whole, and the pending question is on an amendment offered by the Senator from New Jersey [Mr. TEN EYCK], and that Senator was upon the floor when interrupted by the proceeding which has just taken place. Mr. TEN EYCK. I had said all that I in tended to say at this time. Mr. TRUMBULL. I think we had best dis pose of the question under consideration before passing to any other. It is important to settle at an early day the mode of counting the votes for President and Vice-President, which, under the Constitution and laws, are to be opened &nd canvassed a week from to-day in joint session of the two Houses. It is known probably to every member of the Senate that no rules" have ever been adopted for action in that joint convention. I recollect that in 1856, when Mr. Buchanan was elected, there was a question in regard to the electoral vote of the State of "Wisconsin. The law requires that the electors shall meet at the capitals of their re spective States and cast their votes for Presi dent and Vice-President on a particular day. The electors of the State of Wisconsin were prevented by a severe snow-storm in that State from reaching the capital on the day fixed by law to cast their votes for President and Vice-President. They, however, reached it on the subsequent day, and cast the vote. When the vote of the State of Wisconsin was opened in joint session of the two Houses, the question was immediately raised, was the vote of that State entitled to be counted, it not having been cast on the day prescribed by law ? ABRAHAM LINCOLN, PRESIDENT. 177 and there was no mode of settling it. Some insisted that that was a question to be decided by the joint convention then in session voting per capita, each Senator counting as one Rep resentative. Others insisted that the Senate must withdraw, and that no question which should arise in regard to the counting of the vote could be settled in any other way than by the concurrent action of the two Houses, each acting separately. The matter was finally dis posed of, without deciding that question, by declaring that if the vote of the State of Wis consin was counted the total vote would stand thus and so ; but that in either event Jame*s Buchanan and John C. Breckinridge, whether you counted the vote of Wisconsin or not, had received a majority of all the electoral votes, and were therefore declared elected President and Y ice-President of the United States. Now, sir, we are likely to have similar questions arise when the votes cast at the reoent presidential election shall be counted a week from to-day. It is known as a matter of public notoriety in the country that several of the States included in the President s procla mation of 1861, I think Arkansas, Tennessee, and Louisiana, have cast electoral votes. There is a question as to the authority of these States to vote for President and Vice-President, in consequence of the insurrection which pre vailed there on the 8th of November last, when the election took place, and the House of Rep resentatives has passed this joint resolution declaring that the votes of certain States, naming them, shall not be counted. This res olution is accompanied with a preamble which the Committee on the Judiciary have moved to amend, and now the Senator from New Jersey moves further to amend the preamble by striking out the word " Louisiana," there by deciding that the vote of Louisiana shall be counted. It is a matter of notoriety to the whole country, and is certainly known to every mem ber of the Senate, that it will not affect the result one way or the other whether the vote from Louisiana be counted or not ; but, if we decide to receive the vote from Louisiana, it will be a decision by the Congress of the United States that the State of Louisiana was in such a condition as to vote for President and Vice-President on the 8th of November last. The Committee on the Judiciary, by the amendment they have reported, propose to alter the preamble somewhat. The object of this alteration is to avoid as far as possible any committal upon the subject which the amend ment of the Senator from New Jersey brings up. The object of the amendment of the com mittee is simply to put the preamble in such form that if it is adopted and the resolution passed, Congress will not have decided whether Louisiana is in the Union or out of the Union, whether she is a State or not a State. It will be time enough to decide that question when 12 it is presented to us. If our amendment is adopted, we place the resolution upon the ground that the condition of things on the 8th day of November last, the day of the presi dential election, was such in all these States that no election was held according to the Con stitution and laws of the United States. The preamble, if amended as we propose, will read: Whereas the inhabitants and local authorities of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee, rebelled against the Government of the United States, and were in such state of rebellion on the 8th day of November, 1864, that no valid election for electors of President and Vice-President of the United States according to the Constitution and laws thereof was held therein on said day. And therefore it is declared that the States mentioned in the preamble are not entitled to representation in the electoral college. That will be the form of the preamble if the Senate shall concur in the amendment recommended by the Committee on the Judiciary. Mr. HOWE. Allow me to inquire of the Senator if there is any report from the Com mittee on the Judiciary accompanying this joint resolution. Mr. TBUMBULL. There is not. Mr. HOWE. No statement of facts ? Mr. TRUMBULL. No statement of facts. This is a House resolution, and I am not aware that there was any report accompanying it from the House committee. There certainly was none before the committee of this body, and we made no written report on the sub ject. Now, sir, in regard to the State of Louisi ana, whatever may be the view of Senators as to the organization which we understand has. been gotten up in that State, and although Congress may perhaps hereafter think proper to recognize that organization as legitimate-, it does not necessarily follow that the condi tion of things in the State of Louisiana on the 8th of November last was such as to au thorize us to count the vote cast there for President and Vice-President ; and why ? It is a matter of public notoriety known to every child in the land, that a large portion of the State of Louisiana on the 8th of November last was in the possession of a hostile enemy. There was no opportunity to vote for Presi dent and Vice-President in a very considerable portion of that State ; and it might be a very serious question whether when the half of a State or the third of a State was overrun by an enemy, an election held under such circum stances and under the auspices of our own guns, would be an election which would au thorize the Congress of the United States when in joint convention it comes to. canvass the votes for President and Vice-President, to count votes cast under such circumstances. In our action on this question I do not mean to commit the Senate one way or the other in, regard to the organization which has been 178 TWENTIETH PBESIDENTIA*L TERM. gotten up in the State of Louisiana ; and it was with that very view that the committee moved to amend the preamble. I trust that the State of Louisiana wijl not be stricken out. I think if we strike that out and decide to re ceive the electoral vote in that State on the 8th of November last, we do decide directly that there was a State government there, and that there was an election for electors for President and Yice-President in accordance with the Constitution and laws of the United States. Now, I do not believe that. I think such was not the fact. There could be no election according to the laws and Constitu tion of the United States in the State of Lou isiana when a very considerable portion of that State was overrun by the enemy, and the legal voters had no opportunity to vote one way or the other. I am not advised how many votes were cast at the election on the 8th of No vember. No evidence has been submitted showing how many were cast. Again, sir, the President of the United States, in pursuance of an act of Congress, declared the inhabitants of the State of Lou isiana to be in a state of insurrection against the Government of the United States. We passed a law authorizing him to issue the proclamation declaring that fact. In pursu ance of the law the proclamation was issued. That proclamation has never been recalled. According to the law of the land, according to the proclamation of the President, the inhab itants of the State of Louisiana are to-day in a state of insurrection against the Government of the United States. Can you receive a vote cast by the inhabitants of a State for Chief Magistrate of the Union, when your own laws declare and your executive proclamation de clares that they are in a state of insurrection against the Government of the United States ? Sir, until there shall be some action by Con gress recognizing the organization which has been set up in Louisiana, we ought not in my judgment to count electoral votes from that State. "Whether we shall recognize that or ganization or not, I will not undertake to say. We have not done so yet ; and until we do it we ought not to count the electoral vote. I trust, therefore, that the amendment of the Senator from New Jersey will not prevail. Mr. TEN EYCK. I am aware, sir, that this is a very delicate and important question, and it was with a great deal of diffidence that I under took to propose an amendment to the resolu tion. I know that questions of such grave im portance as the one now before the Senate ought to be considered calmly and coolly, and upon a great deal of reflection, and perhaps the wisest course in general would be to remain quiet, rather than to throw before the Senate for its hasty consideration a matter of such vital importance. But, sir, I hold to the doc trine that none of these States can be out of the Union ; that having taken up their lot and part with their sister States at the time they were admitted into the Union, they are not now legally out of the Union ; their govern ments have been in abeyance ; they have been overrun by the feet of hostile armies, and many of their citizens have by usurpation and in violation of their duty to their fellow-men and to their God attempted to carry these States out of the Union. That being my opinion, whenever the testi mony is furnished to my mind that these States thus in the Union have, by the aid of the General Government, or by the efforts of their own people, or by the act of both combined, reestablished themselves, so to speak, or set their State governments in action anew and have commenced again to revolve in their old orbits, I shall feel it to be my duty, so far as I am concerned, to extend to them all the privileges and all the rights which the loyal people of a loyal State are entitled to at the hands of their sister States, whether upon this floor or anywhere else. It was simply in that view and aspect of the case that I made the motion to amend the preamble of this joint resolution, for the purpose of excluding from the operation and effect of the resolution the State of Louisiana, judging and believing from the testimony which is notorious throughout the country, and which has come to the knowledge, I apprehend, of the Senate through various channels, that the present condition of the State of Louisiana is such as I have just stated. I can well see that there is a propriety in passing some such joint reso lution as this in relation to States that are manifestly in the condition alluded to in its preamble ; States that are in rebellion or such a condition of rebellion as that no election could be held or was held for the purposes that are requisite to establish them as a State ; States that are not in the exercise of the ordi nary constitutional powers of a State. The chairman of the Committee on the Ju diciary states that it was the desire of a ma jority" of the committee to avoid a committal on this subject. It would not perhaps be amiss to insist that a committal shall not be had against the interest of the State any more than in its favor. The Senator says that the adop tion of the amendment proposed by myself will be a declaration by Congress that the State of Louisiana was in a condition to per form all the functions of a State government, and to appoint State officers and Senators and members of the national House of Represent atives. I admit that that question is involved in this amendment ; but the same question is involved in the resolution, and it will be de termined against the State if this joint reso lution passes as it stands, for you will then decide that this State is now, this day, in a state of rebellion such as to deprive it of all the powers, rights, and privileges of the State of Louisiana. I am not prepared to go to that extent. Now, sir, what is the present condition of ABRAHAM LINCOLN, PRESIDENT. 179 that State, so far as it regards the question of its being in a state of rebellion ? According to the bost information that can be derived from various sources, from the action of the State itself, from various memorials, papers, and documents that have come into the possession of the Senate, and have been published by its order, it appears that nearly a year ago, or perhaps quite a year ago, an election was held in Louisiana for State officers, and a very large number of votes were cast at that elec tion, about two-thirds or approximating to two-thirds of the largest number of votes that had been cast at any former election for State officers in the State. Mr. TRUMBULL. The Senator is certainly under a misapprehension with reference to the statements we receive in committee. No such vote as that has been cast. There may have been perhaps two-thirds of the former votes of those localities that voted, but not two- thirds of the vote of the State. Mr. TEN" EYOK. There were eleven thou sand four hundred and fourteen votes cast at that election. Mr. TRUMBULL. There have been upward of fifty thousand votes cast in the State. Mr. TEN" EYOK. It was stated that a large number of the former voters had gone into rebeldom or the rebel army, and a great many had been killed. I may be in error in relation to the statement as to the number of votes cast in the whole State. This election of which I now speak, together with the election for mem bers of a constitutional convention, and all the other elections in the State, were free and un interrupted, without the interference of any military control whatever. Indeed, it has been stated by a person who was upon the ground and whoss attention was called to it, that " no effort whatever was made on the part of the military authorities to influence the citizens of the State, either in the selection of candidates or in the election of officers, and that the direct influence of the Government of the United States was less in Louisiana then in the elec tions probably of any State of the Union ; that the officers representing the Government, both civil and military, were divided, so far as they entertained or expressed opinions, on the ques tion of candidates and upon the policy pursued in the organization of the Government." It seems that here was an election held by the people of that State, and there have been since several elections held by those people for several purposes, and if any military influence was exerted it was merely in aid of them, and that the civil authority was not at all in sub ordination to the military. Under these circumstances, and in view of the invitation that has been held out by the Government to all the loyal people of these States to come back and endeavor to organize themselves anew, when the loyal people who have come through the fire and blood of this contest, and gained sufficient strength to pre sent themselves civilly and quietly at the ballot to choose their own State officers and to choose delegates to form a new State constitution, and when they claim the rights of other States, are they to be met by the plea that upon certain out-bounds of the State there still may be the tread of rebel feet? Why, sir, it appears by all the testimony that the population and busi ness and property of the State of Louisiana are confined to the cities and districts of country immediately bordering upon the river, and that the residue of the State is very sparsely settled indeed, with very few inhabitants, such portion of the country as is not submerged by water being used for planting purposes, and that the property and population are condensed within very small spaces which are within the control of the United States and the loyal people of that State whose anxiety and desire is to return to the United States Government and to sup port it and its authority. Sir, I could have desired that the people of this State should have a much more able and earnest advocate than I am ; but under the cir cumstances I have felt it my duty to raise the question. Mr. POWELL. If the Senator will allow me, I desire to ask him a question. t Mr. TEN EYOK. I shall conclude present ly, and then I shall be happy to answer your questions if it be in my power. The chairman of the Committee on the Judiciary has stated that there was no evidence as to how many votes were cast at the election for electors of President and Vice-President of the United States. Why, sir, the electors of President and Vice-President were chosen by the mem bers of the Legislature in accordance with a law passed by themselves for that purpose, fixing a day for that election by a prior vote. In consequence of the authority contained in that law the election was held. I believe it is not illegal on account of its having been held in that way, although that course has not been usual for many years. . Another objection is made on the ground that the President of the United States has declared this State to be in a condition of in surrection and rebellion, and therefore all its acts tending toward a return to the Union are to be disregarded until the President shall withdraw his proclamation. If that be the test and criterion, all that the Executive has to do, or if we had been so unfortunate as to fail in the reelection of the present incumbent of the presidential chair, and his antagonist had been elected, and he should see fit to re fuse to withdraw the proclamation declaring a State to be in insurrection, he could keep a State thus circumstanced and thus situated for all time, or at least during the whole period of his administration, from returning to the Union although every individual soul within its limits might be desirous and anxious to return to their ancient loyalty. Sir, I do not mean to continue this discus- 180 TWENTIETH PRESIDENTIAL TERM. sion ; it is most important in its consequences ; but it appeared to me that we were in danger of committing ourselves to a policy that will be more injurious to us by excluding the vote of the State of Louisiana, as it is proposed, than by admitting it. Having said thus much, I submit the amendment to the better judgment and discretion of the Senate without intend ing to prolong the debate. Mr. HOWE. As I propose to vote for the amendment moved by the Senator from New Jersey, and as the reasons which will control my vote are widely different from those which he has stated as controlling his own, perhaps the Senate will pardon me a very few minutes in stating what my own views are. I shall vote to strike out the State of Louisi ana from this preamble and resolution, and in doing so I am not controlled at all by the con* sideration of how many citizens of Louisiana participated in that election in the choice of electors. I am governed by the single fact that a statute of your own, existing at the time of that election, declared that the people of that State had the right to choose electors, and that certain of them did participate in making that choice. The Senator from Illinois says but a small portion of the people of the State participated in that choice. Your statute said that all might. Does the refusal of a large portion or a small portion of the people of a State to participate in an election deprive the minority, if you please, no matter how small, of their right under your statute ? If the re fusal of any portion or the inability of any portion of the people to participate in an elec tion deprives the remainder of the right they have under existing laws, tell me what is the number whose disability or whose neglect or whose refusal imposes this disfranchisement on the residue? Is it a majority ? Is it the peo ple of half the State? Is it the people of ten counties? Is it the people of a single county? My own idea about it is, that when the exist ing law gives to the people of a particular lo cality a right, that right is to be exercised, in the absence of local restrictions, by just so many of the people as see fit to participate in it. There is one fact, Mr. President, which ex isted in the State of Louisiana, which exists in the State of Virginia, and in South Carolina, and each one of the seceded States, which in my judgment has authorized the Congress of the United States to repeal that act which gave those people the right to participate in the choice of a President, and to participate in the legislation of the United States. It au thorized the Congress of the United States to repeal that law, and authorized nobody else. That fact, which I think conferred that author ity upon us, is the fact of a rebellion, which (although we are told over and over again that it did not take the State of Louisiana, or any of those States, out of the Union) did destroy every semblance of an American State. I know it did not take the territory out of the Union, out of the rightful jurisdiction of the United States, but that rebellion was just as fatal to any such thing as an American State, as Louisiana had been, as a bullet through the heart would be fatal to the man. There is the form of a man, but the life of the man is not there ; it is a carcass. To have an American State you must have a community not only with governors and legislators and local courts, but you must have a community interlaced, as it were, with national tribunals and organiza tion ; yon must have a community in which Federal courts and Federal organs, collectors, and postmasters, and the like, exist, and are allowed to act; and when these Federal or gans are destroyed, that State, as an American State, within the definition of the Constitu tion, is ended. I do not care whether you call it out of the Union or in, an American State is not there ; and when that happens, inasmuch as it is obligatory on you who wield national authority to furnish government of some kind for all your people, I think the event has hap pened (and I have said so once in reference to the State of Arkansas) which not only author izes you, but in some sort demands of you that you step in and furnish a government, and a civil government, for the community so placed. Hitherto we have refused to do that, and the law, as it stood on your statute-book in Novem ber last, authorized these people to participate in the choice of a President. Some of them, I do not care whether a dozen or fifty, did par ticipate, and I think it is too late to disfran chise them. I shall vote for the amendment proposed by the Senator from New Jersey, because I understand that Louisiana did make choice of electors. I understand that two other States have also chosen electors. I should vote for an amendment to strike them out of the reso lution. It is no time, and I have no dispo sition to argue the question ; I simply wished to occupy the time of the Senate long enough to state, so far as there was a difference be tween the views which governed my action and those which have been laid down by the Sen ator from New Jersey, that difference. Mr. TEUMBULL. The Senator from New Jersey seems to suppose that a refusal to count the electoral vote from Louisiana settles the question just as much against the present State organization in Louisiana as the counting of the vote would settle the question in favor of that State organization. Cannot the Senator from New Jersey conceive of a case where a State might be perfect in all its State organization and yet its electoral vote be rejected ? Then it does not decide it so completely. Here was a case from Wisconsin. Nobody supposed that the State of Wisconsin had not a right to vote for President ; but there were many who sup posed that her vote, not being in accordance with law, not being cast at the proper time, ought not to be counted. I will not undertake ABRAHAM LINCOLN, PRESIDENT. 181 to say who was right in reference to it ; but, if we had refused to count that vote, we should not thereby have decided that there was no such State as Wisconsin. Mr. TEN EYOK. That might be a perfect answer to what I suggested on this subject, if the reason were not assigned in the preamble why these electoral votes should not be counted. The reason assigned in the preamble, as I understand it, is that the State is in such a condition of rebellion that no election could be had. I said that passing this resolution with that preamble would establish, so far as Congress could establish that fact, the status of Louisiana before the country and before the civilized world. Mr. TRUMBULL. I think it would estab lish no such principle. A civil commotion or insurrection might exist among the people of a State, so that no election could be held, and yet the State organization might not be ques tioned by anybody. The State organization might be loyal and true to the Union, notwith standing a foreign enemy had come into Lou isiana ; and I will put that case as a complete answer to the Senator s suggestion. Suppose this had been a foreign war, and a foreign enemy had taken possession of the State of Louisiana, and held such possession that no election could be held throughout the State. I want to know if the Senator from New Jersey would count the electoral vote from that State when not twenty men could have assembled in the State and voted for President and Vice- President ? If we so decided, would that say that the organization of the State of Louisiana was not to be recognized, and was repudiated ? The prearoble to the resolution states (and that was the object of amending it) first the fact that the inhabitants and local authorities of certain States were in a state of insurrec tion. Does the Senator from New Jersey doubt that? Does he propose to count the vote from South Carolina? Why not? Be cause it is in a state of insurrection, I suppose. That was once the condition of Louisiana. Thon what other fact is stated ? That such a state of things existed on the 8th day of No vember, 1864, that no valid election according to the laws and Constitution of the United States could be held in the State. We do not decide that the State organization which has been inaugurated there may not be a valid one. We meet that question, and will have to meet it when we come to investigate the right to seats of the gentlemen who have presented themselves here as Senators from the State of Louisiana. We may admit those gentlemen to seats, and yet such a state of things may have existed in Louisiana on the day of the election in November last as would not authorize us to count the electoral vote of that State. I think, therefore, the Senator is mistaken in suppos ing that we decide as much by excluding the vote as we do by receiving it. If we receive the electoral vote of Louisiana, we do decide that she was in a condition to cast her elec toral vote at that time, that she had her State government, and that an election was held there in pursuance of the laws and Constitu tion of the United States. Now let me say a word in reply to what was said by the Senator from Wisconsin [Mr. HOWE], who I am sorry is not in his seat. He says he is for receiving the vote of the State of Louisiana because your statute said the people should have the right to vote. I would like to see the statute that said the people of Louisiana had the right to vote at the last presidential election. I can show the Senator the statute of the Congress of the United States that says that the President should have authority to declare, in an exist- isting state of facts, the inhabitants of certain States in insurrection against the Government of the United States ; and if there is any stat ute authorizing the people of a State to vote for President of the United States, this act, so far as it is inconsistent with it, repeals it ; it is the last law on the subject ; and in pursu ance of this act of Congress the President has issued his proclamation and has said that the inhabitants of the State of Louisiana were in a state of insurrection against the Government of the United States. But, says the Senator from New Jersey, has Congress, then, put it out of its power ever to reinstate these States in their proper position toward the Federal Government, and does it depend upon the recalling by the President of the United States of his proclamation? By no means. Congress may repeal the law under which the President issued his procla mation, and then what becomes of the procla mation based upon the law? Suppose some person were elected President who desired un justly to keep these States from representa tion in the Congress of the United States, or from voting at a presidential election, and re fused to recall his proclamation when the in surrection was suppressed and the rebellion put down ; Congress has only to repeal the law by virtue of which the President issued his proclamation, and the proclamation falls. There is nothing in that position. The Senator from Wisconsin asks, is the re fusal of a portion of the people to vote to be a reason for not receiving the vote of a State ? Not at all ; but I will tell you what is a reason for refusing the vote of a State : when the people of that State have had no opportunity to vote. That is the question. Have the peo ple of Louisiana and is there a Senator who believes they have had an opportunity to vote, unrestrained by military authority, un- awed by hostile armies, for President and Vice-President of the United States ? Does the Senator from New Jersey believe it ? If a large portion of the inhabitants of any State of this Union have had no opportunity to vote, I want to know if the vote of a township or a county shall be taken as a vote of a State 182 TWENTIETH PRESIDENTIAL TERM. for President ? The refusal to vote when they had an opportunity would be no reason for excluding the vote of a State ; but the want of opportunity to vote and to exercise the franchise to which the inhabitants of a State are entitled would be a reason for not receiv ing the vote of the balance. I am not furnished with the facts in regard to the number of votes cast in Louisiana at the presidential election ; but I know, gener ally, that a large portion of the State of Lou isiana in territorial extent, I think I may say three-fourths of the State, on the 8th of No vember last, was in the possession of the ene mies of the United States, and no person could have cast a vote within that jurisdiction. The largest vote ever cast there under any of these organizations was some eleven or twelve thousand, while the vote of the State, when all her legal voters had the privilege of going to the polls, was more than sixty thousand. Mr. TEN EYCK. Fifty-one thousand, I can state to the Senator, was the highest vote ever cast, and the average vote of the State was thirty-four thousand. Mr. TRUMBULL. I thought it was sixty thousand. Mr. TEN EYCK. No, sir ; the highest vote ever cast was fifty-one thousand, and the aver age was thirty-four thousand. Mr. TRUMBULL. It may be so; I have not the figures before me ; but eleven or twelve thousand is but a small part of fifty-one thou sand. But, sir, I do not place it upon that ground. I should agree entirely with the Sen ator from Wisconsin if his facts were right ; if the voters of Louisiana had the opportunity to vote, the refusal of a portion to vote consti tutes no reason why the vote of the State should not be received. But, sir, I do not desire to prolong the de bate. I do not, at this stage, want to go into a discussion of the question, and we are not yet prepared to act upon the question as to the or ganization in the State of Louisiana. There are many facts connected with the settlement of that question, and we are not fully advised as to the facts. The Committee on the Judi ciary has been considering it, and has bestowed much attention upon it. But here is a question that is pressed upon us at once, that must be decided within the week. However the ques tion of the State organization of Louisiana may ultimately be decided (which I do not wish to prejudge; about which at this time I wish to express no opinion), the Committee on the Ju diciary thought it was proper to concur in the resolution of the House of Representatives and not count the electoral vote from the State of Louisiana. I trust the Senate will concur in the resolution and settle this question, and avoid any difficulty in canvassing the vote, without committing ourselves one way or the other as to the ultimate decision in regard to the organization which has been inaugurated in the State of Louisiana. Mr. HARRIS. It think it is to be very much regretted, Mr. President, that this question, which affects the admission of the members pf Congress from Louisiana to both Houses, should be thus incidentally brought before the Sen ate. I would much prefer to have the same course adopted by Congress in counting these votes which it is said was adopted in the case of Wisconsin at a previous election. We all know that whether the votes of these States, Louisiana, Arkansas, and Tennessee, are counted or not, it will not affect the result. It was so in the case of Wisconsin. It seems to me it would be far better to say in this case, as was said then, " if we count the votes of these States the number of votes for Mr. Lin coln and Mr. Johnson will be so many ; if we reject these votes the number of votes will be so many ; and in either case these candidates are elected ;" and thus pass over this question. Sir, the more I reflect upon it the more diffi culty I see in the way of adopting any such resolution as this. It was not discussed in the committee ; but my reflection has led me to think there is great importance in the question ; that it is a very grave question. I ask the chairman of the Committee on the Judiciary, what right has Congress to say by a resolution passed by a majority of each House that the State of New York shall not be represented in counting these votes? Why may you not in clude in the preamble to this resolution, and in the resolution itself, the State of New York as well as these other States? I ask the chairman of the committee to tell me how he can distin guish between them? If Congress has the power to declare that Louisiana shall not vote, why has it not the power to declare that New York shall not vote ? It seems to me that is a very serious question. There is no need of settling such a question here. We can pass over it without any difficulty in the case. But, sir, I did not rise to discuss that ques tion. I am opposed to the preamble to this resolution. I do not like it. In my judgment, it is not true. I admit that the rebel States have been declared to be in a state of insurrec tion, and the first clause of the preamble is true ; the inhabitants and the local authorities of those States have been in a state of insurrec tion ; but are the local authorities in Louisiana and Tennessee and Arkansas now in insurrec tion ? I deny it. Who are the local authori ties of Louisiana ? I insist that they are those authorities that have been put in power by the proceedings under the Federal Government. I understand that Michael Halm is the Gover nor of that State, and that they have a Legis lature elected by the loyal people of that State ; and if that be so, then it is not true that on the 8th of November last the local authorities of that State were in a state of armed rebellion. The PRESIDING OFFICER (Mr. FOOT in the chair). The Senator from New York will suspend his remarks. The hour of two o clock having arrived, that being the hour fixed for ABRAHAM LINCOLN, PRESIDENT. 183 the consideration of a special order, in pursu ance of that special order the galleries will b cleared, and the Senate will proceed to th consideration of executive business. IN SENATE. Thursday, February 2, 18G5. (" Congressional Globe," 38th Cong., 2d Session, pp 548-562.) Mr. TRUMBULL. I now insist on proceed ing with the unfinished business. The Senate, as in Committee of the Whole resumed the consideration of the joint resolu tion (II. R. No. 126) declaring certain States not entitled to representation in the electora college, the pending question being on the amendment of Mr. TEN EYOK to strike out the word "Louisiana" in the third line of the pre amble to the resolution. Mr. HARRIS. It is proper, perhaps, Mr, President, that I should say that the question as to the power of Congress to legislate in rela tion to the counting of votes for President and Vice-President was not considered by the Com mittee on the Judiciary. The question there was as to the form of the resolution and as to the recitals in its preamble. Since the discus sion of this question in the committee, I have been led to doubt exceedingly whether it is competent for Congress to legislate at all in reference to the counting of the votes. The Constitution authorizes Congress to fix the time for choosing electors. It also empowers Con gress to specify the time when those electors shall perform the functions of their office, when they shall vote; and, so far as I can find in perusing the Constitution, that is the extent of the power of Congress over the subject. It fixes the time when the votes shall be counted, and it declares that, in the presence of both Houses of Congress, the Vice-President shall open all the certificates returned it is careful to specify that he shall open them all and the votes shall be counted. I cannot find in the provisions of the Con stitution any authority for Congress to pass a law (for this amounts to that) excluding any votes that shall have been returned to the Vice-President. I do not see how it is possible. I am not prepared to say that in case the rebel States had sent votes here which would be controlling in the election, that in such an ex treme emergency as that Congress would not be called upon to do something what, I am not prepared to say ; but in this case I am clearly of opinion that even though Congress may possibly have the power, it is inexpedient for us by legislation to declare that these votes shall not be counted. I doubt the power very much; but of the inexpediency of exercising any such power, if it exists, I am very clear. I hope, therefore, that this resolution will not^be adopted. I believe there is no necessity for it ; and until an extreme necessity arises I am not in favor of exercising any such power. Whether these votes are counted or not, it is conceded the result will be the same. Why should we exercise such an extreme power as this, one so doubtful, as it must be conceded to be, to declare in an act of the national Legislature that the votes of a certain number of States shall not be counted? The power is not to be found in the Constitution, I am sure. But, sir, if the Senate shall be of opinion that such a law as this is called for, then I am opposed to the recitals in the preamble to this resolution. It seems to me that these recitals are not strictly true. At any rate, I am not prepared to assert that they are true. It is true that the States specified- did rebel ; the first part of the recital is true ; but that the inhabitants of those States and the local author ities of all of those States were in a state of armed rebellion on the 8th day of November, the day of the presidential election, I am not pre pared to assert. On the contrary, I choose to leave that question open. I think it ought to be left open until the question as to whether or not the Senators who are now applying for admission here from the State of Louisiana shall be admitted shall be brought before the Senate. I do not like to have that question prejudged by a recital in the preamble of this resolution. I am therefore opposed to the resolution on both grounds. I think it inex pedient to pass any such resolution, and I am not prepaired to assert the truth of the recitals in the preamble. Mr. DOOLITTLE. Mr. President, I can see very clearly that there is a great distinction be tween Congress exercising the power of legis lation by providing in advance in what manner the electoral votes of President and Vice-Presi dent shall be given, and a law of Congress which, after the votes are said to have been given under existing laws, by its retroactive effect declares that certain votes are null and void. The distinction is as wide as the world ; t is as wide as the east is from the west. I concede that Congress could pass a law, and I relieve such a proposition was pending at the ast session of Congress, providing that certain States or certain people in a State of insurrec tion should not have the legal power to east electoral votes for President or for Vice-Presi- iont; but no such law was enacted. The laws as they existed were permitted to stand ; and now, after it is said that votes have been given, "or Congress to assume to declare that those r otes are null and void, and shall not be count- id, is altogether a different thing; and the >oint which was taken by my colleague when his question was up yesterday I think is fatal n that view of the case. But, sir, I have very serious doubts whether Congress is clothed with any power over the ubject of the counting of these electoral votes, "he Constitution prescribes what powers Con- ress shall have : The Congress may determine the time of choosing 184 TWENTIETH PRESIDENTIAL TERM. the electors, and the day on which they shall give their votes ; which day shall be the same through out the United States. In pursuance of that provision of the Con stitution, Congress have passed an act on the subject, in the following words Mr. JOHNSON. What is the date of the act? Mr. DOOLITTLE. January 23, 1845. " Be it enacted, by ihe Senate and House of Repre sentatives of the United States of America, in Congress assembled, That the electors of President and Vice- President shall be appointed in each State on the Tuesday next after the first Monday in the month of November of the year in which they are to be appointed : Provided, That each State may by law provide for the filling of any vacancy or vacancies which may occur in its College of Electors when such college meets to give its electoral vote : And pro vided also, When any State shall have held an election for the purpose of choosing electors, and shall fail to make a choice on the day aforesaid, then the electors may be appointed on a subsequent day in such man ner as the State shall by law provide." Here by this act of January 23, 1845, Con gress did exercise the power with which it is clothed under the Constitution of determining the time of choosing the electors and the day on which they shall give their votes, which day, by the Constitution, must be the same throughout the whole United States. What is the provision of the Constitution on this subject ? The provision as it now stands is contained in the twelfth article of the Amendments to the Constitution, and is in these words : " The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves : they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-Presi- dent, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Sen ate." The Constitution provides for all that, for the giving of the votes, for the counting of the votes, the sealing up of the votes, and the transmission of the votes into the hands of the President of the Senate. Then what is to be done with them? It does not say that Congress shall have anything to do with them, that Congress shall say what votes the Presi dent of the Senate shall count or shall not count, that Congress shall have any power to annul any one of these votes that are sealed up and sent to the President of the Senate. Congress is clothed with no authority what ever over the subject. They come to the President of the Senate. Certainly it will not be said that the House of Representatives have any control over the President of the Senate, but the House of Representatives are essential to constitute a Congress. Possibly you might argue that because they are sent to the Presi dent of the Senate, the President of the Sen ate presiding over the Senate, lie might in some measure, by appeal or otherwise, be subjected to the decision of the Senate ; but certainly the House of Representatives has no control over it. But then the Constitution provides : " The President of the Senate shall, in presence of the Senate and House of Representatives" The Senate and House of Representatives meet together in joint convention, the Presi dent of the Senate presiding over the conven tion, and the Constitution then says what shall be done with the votes : " The President of the Senate shall, in. presence of the Senate and House of Representatives, open all the certificates " Not open such as Congress tell him to open, but the President of the Senate shall " open all the certificates " which are sent to him " and the votes shall then be counted." Here arises, Mr. President, under our Con stitution, one of the most grave questions which, under certain circumstances, could pos sibly arise ; and that is, whether the President of the Senate, presiding over this joint conven tion of the House of Representatives and the Senate, is, by the Constitution, made the sole judge as to what votes shall be counted or not ; or whether, being the President of the joint convention, he is in some measure, by some kind of parliamentary law not expressed in the Constitution itself, to be subjected to the con trol of that joint convention. Practically the question arose in 1856 on the vote of the State of Wisconsin. The law provided that the vote should be given on a certain day. In conse quence of an extraordinary storm in that State, it was impossible to cast the vote on the day prescribed ; the votes were not given on that day. The question arose whether the votes of the State of Wisconsin should be counted. Who was to decide that question? Who, in the first instance, was to decide whether the votes of Wisconsin were void or were good ? Was it the Congress? Was the Committee on the Judiciary of the Senate to report upon it and Congress to pass a law about it, to decide that the votes of Wisconsin were valid or in valid ? Not at all. The Constitution says the President of the Senate shall open the votes and count them ; and upon the President, in the first instance, is the responsibility. He, and he alone, is to decide. But then arises the ther question, whether from his decision there is an appeal to the body over which be pre sides? That question arose in 1857. It was a grave question, and as it was not necessary that it should then be decided in order to dis pose of the result of that election, the question was neither decided by the President nor by :he joint convention over which he presided. The question was waived just as everybody and every judge and every tribunal who acts wisely will always waive a question when it is un necessary to be decided. If. in the decision of ABRAHAM LINCOLN, PRESIDENT. 185 the Dred Scott case, the court had only de cided the questions which were necessary to be decided, we never should have heard of such an opinion as that which has convulsed the country from one end to the other by the dog mas that are contained in it and the unnecessary opinions that were given. In 1857, whether the votes of "Wisconsin were to be regarded as valid or invalid did not affect the result, and therefore the President of the convention declared that if the votes of "Wisconsin were counted Mr. Buchanan was elected; if they were rejected Mr. Buchanan was still elected ; and hence it was not neces sary to decide the question whether they should be counted or not. So, too, in this very case, which is to come off in the next joint conven tion, we all know that whether the votes of certain States, Louisiana and Tennessee, are counted or not counted, does not affect the re sult ; and it is not necessary for Congress now to assert a doctrine which in some future time may be the very destruction of the Govern ment, namely, that a political majority in Con gress can decide that certain votes of certain States shall be canceled and others shall be re ceived. It will never do to set that precedent. "We had better follow the Constitution as it is written. Let the votes that are sent to the President of the Senate be opened by the Presi dent of the Senate, who presides over the joint convention of the two Houses ; and then, if it be not necessary to decide this question, it is better that it should not be decided any more now than it was in 1857. It will be time enough to raise the question in the joint con vention ; and whether that joint convention has, from the fact that the President- of the Senate is to preside over it, a power of appeal from his decision, with a power to reverse his decision according to parliamentary law, or whether the members of both Houses are called there simply as witnesses to the fact, without the power of appeal from his decision, is a very grave question under the Constitution itself, upon which I do not propose to express an opinion. Mr. President, as I said in the beginning, even if Congress had some power under the Constitution to regulate the manner in which those votes should be given, they have no pow er under the Constitution in this mode to an nul votes or declare void votes that have been given. But, sir, it is not my purpose to take up the time of the Senate ; I have simply ex pressed in brief words my opinion. Mr. HALE. Mr. President, it is refreshing at the present time to hear anybody urge any special measure in a contrary direction to the provisions of the Federal Constitution. It seems to me that upon this question, if upon no other a question upon which depends the continuance of the Government it is necessary to adhere to the Constitution, and to look for it and see if we have any guide or direc tion in that instrument. I foresaw this evil, and I introduced at the last session of Con gress a joint resolution directing in advance what should be done ; but, for some reason or other (owing to the press of other business, probably, certainly not more important busi ness), that resolution was not acted upon. It struck me at that time and I have not lost any of the strength of that conviction now that it was one of the most important measures that could possibly be presented to the considera tion of Congress, and it was not then without the range of possibility or probability that on that question might depend the very continu ance of this Government. No one could have known to the contrary of that at the last ses sion ; for let me suppose that the result of the presidential election might have been deter mined by the votes of these States who have now proposed to offer them I think there are three of them, Tennessee, Louisiana, and Arkansas let me suppose that, in November, the votes of these three States had decided which way the majority was, would the party against whom they voted have submitted ? I tell you nay, sir. If the counting of these votes had determined the result of the presi dential election it would have deluged this land in blood, and another civil war would have followed, just as certain as that we have one now on hand. My friend from Michigan [Mr. HOWARD] shakes his head. "Why, sir, what caused the present rebellion ? Nothing at all in comparison with this. My friend from Wisconsin [Mr. DOOLITTLE] says that Congress has no power over this sub ject. It would be one of the strangest things that ever occurred on earth if it had not the power. The provision of the Federal Con stitution is that no member of Congress or any person holding an office of profit or trust under the Federal Government shall be an elector. Suppose when the two Houses meet in convention to count the votes it is palpable to them that the electoral votes of some States were given by members of Congress, has Con gress no power to say that they shall not bo counted ? But, sir, the Constitution is not so silent on this subject as my friend from "Wisconsin seems to imagine ; for the election of Presi dent and the mode of counting the votes is one of the means and measures by which the national life is to be preserved. If this is not followed, carried out, and executed, there is an end to the Government, there is no Pres ident elected, and the whole fabric falls to chaos. Now, is it within the range of pos sibility or probability that the framers of the Constitution were so derelict, so blind, as not to have provided that there should be some mode of conducting, and conducting legally, the machinery of this great measure which is essential to the very life of the nation? No, sir. The Constitution would have been one of the most imperfect things that were ever cre ated without some provision of this sort, and ac- 186 TWENTIETH PRESIDENTIAL TERM. cordingly I find that the framers of the Con stitution made the most ample provision for exactly this case. I find in the Constitution a clause declaring that Congress shall 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." Is not the power to choose a President one that is vested in the Government of the United States ? It is the most essential power that there is ; without it all the other powers are nothing; and the Constitution says that for carrying into execution this po\ver thus granted Congress may make all laws which shall be necessary. It seems to me that it would be impossible to frame in broader or more comprehensive terms a provision which shall give Congress exclusive jurisdiction over this matter than that which I have just read, and -it is found on tenth page of Hickey s Constitution. Well, sir, what would be the common sense, and what the reason of the thing? What does Congress meet for when the votes are counted ? Is it to see as a matter of curiosity how the thing is done? Is it to go there to seethe Constitution trampled upon and not have the power to remedy it? Is it when they see that there is danger of the Constitution being vio lated that they shall not provide by law against it ? It seems to me that to say that Congress has no power, is to say that the Con stitution itself is a dead letter, inoperative, and of no force. I remember very well, Mr. President, and you probably remember it, although at this moment I do not recollect whether you were present or not, the occurrence that took place in 1857 on the counting of the votes. I re member that I was then utterly astonished at the announcement made by some of the Sena tors, who are not now members of the body. I may name Mr. Mason, of Virginia, and I think others concurred with him, who expressed themselves utterly indignant that there should be any attempt to settle anything in that joint meeting. " State rights " reared up its hydra head, and was shocked at the idea of State sovereignty being trampled under foot by the doctrine of the supremacy of a majority, and so nothing was done ; the thing passed over. Now, 1 contend that it is the part of wisdom before the emergency comes to settle this ques tion. There never was a more favorable time for its settlement than the election of 1856 presented, and there will be none more favor able than this election presents. It is the part of sagacity, of wisdom, and of patriotism, when we see that such a contingency as this may be fraught with the consequences of revolution to provide beforehand against it. There never was a time when you could do it, when you would be less liable to the charge of any sinis ter influence, because it cannot change the re sult, it cannot determine anything except to settle the principle ; and then when an occa sion occurs that evil consequences may follow from settling it one way or the other, here will be a precedent showing that Congress at a time when there was no inducement to anything but an honest and a straightforward decision of the case maturely settled it, and settled it in such a manner that the influence of the deci sion will be morally binding upon our succes sors, and will be preserved. Mr. President, suppose that some of our Ter ritories had organized a State government and were not yet recognized by the Congress of the United States ; . suppose that the young State of Nevada, which has lately done herseff so much honor and the Senate so much benefit by sending to it the illustrious men that she has sent suppose that Nevada, impatient of the colonial condition, had undertaken to cast her vote for presidential electors before she had gone through the forms of the Constitu tion requisite to constitute her one of the States of the Union would it not be competent for Congress in that case to say that the vote of Nevada should not be counted? If not, there is no limit, no control, no jurisdiction anywhere to exclude the votes of any persons that may take it into their heads that they have a right to vote at the presidential elec tion. I was not much struck by the suggestions made by the honorable Senator from New York [Mr. HAEEIS] that it would not be com petent for Congress to exclude the vote of the State of New York. I have, I think, as high a regard and respect for New York as anybody in the world has, not excepting even the Senator himself; but that very thing has been done heretofore even in regard to that State. If the Senator will take the trouble to look at the table of electoral votes for Presi dent and Vice-President, cast since the adop tion of the Federal Constitution, he will find that at the first election, when George Wash ington was elected President of the United States, the vote of the State of New York was not counted ; she had no voice in that elec tion. The precise manner in which that was done does not appear ; but I have before me the table of electoral votes for President and Vice-President of the United States for the term commencing March 4, 1789, and termi nating March 3, 1793, and I find that the States which voted were, New Hampshire, Massa chusetts, Connecticut, New Jersey, Pennsyl vania, Delaware, Maryland, Virginia, South Carolina, and Georgia. North Carolina and Ehode Island did not vote, because they had not then adopted the Constitution ; but eleven States had adopted it, and New York was among the number ; and yet for some reason which does not appear on the face of the ta ble, the tremendous occurrence which the Sena*;or from New York holds up to-day as such a bugbear actually occurred, and in counting the votes on that occasion there ABRAHAM LINCOLN, PRESIDENT. 187 were no votes counted from the State of New York. It is the dictate of the plainest common sense, independent of the constitutional pro vision, that there must of necessity he a pow er residing somewhere to preside over, recti fy, and govern this whole transaction; and although it would have heen wise in my hum ble judgment for Congress to have passed this resolution preceding the presidential election, it hy no means follows that it may not do it now. This law is not subject to the reproach of being a retrospective or retroactive act. Congress does not propose to say that any State shall not express its opinion. All that Congress proposes to say now is that these States being in a condition where no valid, no constitutional election was held, their votes shall not be cou-nted ; and if we cannot do that, it seems to me that we are powerless to do any thing. Mr. TRUMBULL obtained the floor. Mr. DOOL1TTLE. I desire to say a word in reply to the Senator from New Hampshire. Mr. TRUMBULL. If the Senator prefers speaking now, I will yield the floor for any thing personal. Mr. DOOL1TTLE. The Senator from New Hampshire stated me rather strongly as having expressed the opinion that Congress had no power over this subject. I did aver that Con gress had power over it, for the Constitution gives them certain powers over the question of choosing electors, but it limits that power. The Constitution says that " each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Repre sentatives to which the State may be entitled in Congress; but no Senator or Representa tive, or person holding an office of trust or profit under the United States, shall be ap pointed an elector." Now I ask the Senator from New Hampshire if he believes Congress has power to appoint or to direct the manner of the appointment of the electors when the Constitution says that they shall be appointed as the Legislature of the State may direct ? Mr. HALE. Certainly not. Mr. DOOLITTLE. " Certainly not. 1 The Senator agrees with me, then ; there are cer tain powers that Congress have not got over this subject ; but the Constitution goes on to say what power Congress shall have. " Con gress may determine the time of choosing the electors, and the day on which they shall give their votes" after they are chosen, "which day shall be the same throughout the United States." It does say in substance that Con gress shall not do some things, because it pro vides that the States shall direct the manner of the appointment of electors, whether they shall be chosen by the people at large, or ap pointed by the Legislature, or chosen in sepa rate districts, or in whatever way the State may direct. There is merely the power in Congress to determine the day on which they shall be chosen and the day on which the} shall give their votes. When Congress has done that it has passed laws to carry into effect this power under the Constitution, and all the rest belongs to the States. My honorable friend seems to condemn this doctrine for which I contend as if it was a part and parcel of that State rights doctrine which lias involved the country in this civil war. I believe just as much in the rights of the States as they are secured under the Con stitution as I do in the rights of the Federal Government as they are also secured by the Constitution. I believe in the rights both of the States and of the Union ; and the party in this country that shall undertake to aver that the States have not rights secured to them under the Constitution will go against the whole history of this Government from the beginning. Such a party has had but a short history in the past, and will have a shorter history in the future, for when this war is over and the necessity for the exercise of tre-. mendous powers by the Government to defend its existence in this conflict is past, I tell you that the doctrine in favor of reserving to the States all the powers which are secured to them under the Constitution will be the popu lar doctrine and the necessary doctrine to save the liberties of this people and of this country. Mr. President, I am for giving this Govern ment all the power which is conferred upon it by the Constitution, and not for giving it more. This country is too large, it covers too many and too varied interests, to endure the estab lishment of the doctrine that this is one consoli dated empire, and t^iat this Congress and this Government can exercise unlimited power of legislation over all the interests of this great people. But, Mr. President, while I say this and assert it, I am just as much opposed to the State rights doctrine run mad to Calhoun- ism, and all the consequences that have fol lowed from it, as the Senator from New Hamp shire is or can be. Under the Constitution as it 13 I am for maintaining the rights of the States as they are secured by it, with just as much tenacity as I am for maintaining the rights of this Government against States or in dividuals when they undertake to rebel against it. Now, Mr. President, what I maintain under this provision of the Constitution is that, after the votes have been given, there is no power in Congress as a legislative body to declare certain votes valid or invalid. Congress is not * the tribunal to which the question is referred ; but the tribunal to which it is referred is the President of the Senate of the United States, presiding over the joint convention of both Plouses. I admit that the President of the Senate has in his hands the power in the first instance to count or not to count the votes. He is to decide whether he is to receive the votes in the first instance to decide whether 183 TWENTIETH PRESIDENTIAL TERM. they are votes coming up from States or from Territories. The Senator put the question, suppose one of the Territories should send up votes, what would you do ? I will take the case that he supposes and presume that the Territory of Montana should send up, sealed under the seal of the Territory of Montana, three votes for President and Vice- President. The President of the Senate is to open the votes and count them in the presence of the Convention ; but the votes which he is to count are the votes which come from States ; and as he opens the votes coming from Montana he says, "These are not votes of a State ; this is a Territory claiming to be a State ; I do not count these votes;" and then arises another question. Suppose some other person should insist in the Convention that Montana, instead of being a Territory, was a State, perhaps he could raise the question then on an appeal from the de cision of the President to the joint body in convention assembled, the Senate and House of Representatives. There is the tribunal. There the President of the Senate alone counts the votes, or it is the body over which he pre sides, having a power over his decision by ap peal in the final resort, to decide the question. That is what I have contended for. Mr. TRUMBULL. I did not suppose, when the Senator from Wisconsin insisted upon tak ing the floor, that he designed making a speech on the question generally, but I thought it was merely to reply to some remarks of the Senator from New Hampshire. Mr. DOOLITTLE. I will say to my honor able friend that I had spoken on this question, and the Senator from New Hampshire went into a long speech in reply to me, and I replied to him, taking up some of the points that he discussed. I did not intend, of course, to tres pass on my friend from Illinois. Mr. TRUMBULL. I am sorry, Mr. Presi dent, to see any manifestation of feeling on the part of any member of the Senate in refer ence to this question ; it is not one to excite any. Mr. DOOLITTLE. My honorable friend does not understand that I manifest any per sonal feeling toward anybody on this question certainly. That I feel an interest in the ques tion, as a grave question, I do not deny. I take an interest in ail these questions, and gen erally have feeling. Mr. TRUMBULL. If the Senator from Wis consin will allow me to go on, I shall say noth ing unkind of him, I am sure, and I did not suppose that he had any personal feeling in regard to any one. I thought he manifested a great deal of zeal, and I admit I was a little afraid that his zeal might run away with his better judgment. Now, sir, this is a question that no one, I apprehend, can have any other desire than to have settled properly and rightly. I am a lit tle surprised at the course taken by my friend from New York [Mr. HARRIS]. He is a mem ber of the Committee on the Judiciary, and I certainly understand him to agree to this reso lution as reported by that committee. How ever, he has a right to change his views, I sup pose; but the matter was pretty thoroughly discussed in the committee, and I certainly did understand that he was in favor of the resolu tion, though I was aware he did not like the words of the preamble. That, however, we have amended. Mr. TEN EYCK. In the absence of the Sen ator from New York, I beg leave to state that I did not understand him as agreeing to the preamble to the resolution. Mr. TRUMBULL. The Senator from New Jersey misunderstands me. I said the Senator from New York agreed to the resolution dis tinctly in committee. He objected to the pre amble. Does the Senator from New Jersey mean to controvert that ? Mr. TEN EYCK. I do not. The VICE-PRESIDENT. It is not in order to refer in debate in the Senate to the proceed ings of committees. Mr. TRUMBULL. I intended to state the matter as it was. I was taken a little by sur prise at the opposition manifested by the Sen ator from New York. But, sir, both the Senator from New York and the Senator from Wisconsin doubt the power of Congress to pass this resolution, and they place themselves upon the Constitution. The Senator from Wisconsin insists, as also does the Senator from New York, that the Vice-President, or the Presiding Officer of the Senate, is to determine this question in the first instance. The Constitution does not say that the presiding officer of the Senate shall count the votes even, and in the practice of the Gov ernment since the days of Washington till this moment the Vice-President never has counted the vote. The Constitution says, " The Presi dent of the Senate shall, in presence of the Sen ate and House of Representatives," do what ? " Open all the certificates." That is what he shall do. Then what follows? "And the votes shall then be counted." By whom? Another clause in the Constitution already re ferred to declares that Congress shall have authority to pass all laws necessary and proper to carry into effect every one of the granted powers. The power to count the votes is given by the Constitution ; the mode of doing it is not prescribed by the Constitution; but an other clause of the Constitution says that Con gress shall have power to provide by law for carrying into effect every provision of this in strument ; and here is a provision of this in strument that these votes shall be counted; the manner of doing it is now determined by the Constitution, and it is clearly constitution al and proper for Congress, in the exercise of its authority to carry into effect the granted powers of the Constitution, to pass the neces sary laws to count the votes, and Congress has ABRAHAM LINCOLN, PRESIDENT. 189 done it from the beginning of the Government. If it were not so, we should have revolution at every presidential election. Why, sir, is the ground to be assumed here that South Carolina in a state of rebellion against this Government, her people at war with us, and it being declared by acts of Con gress a felony for any man to deal with those people, they being forbidden to come within our lines or our people to go within theirs, has a right to elect a President for us ; and that we have no right to declare the mode of count ing the votes so as to exclude her vote ? Let me ask the Senators from New York and Wis consin, is the State of Louisiana to-day in any different position legally from the State of South Carolina, or are the inhabitants of Lou isiana in any different position ? I have before me the statute of 1861, which provides that the President in a certain contin gency shall be authorized to declare the in habitants of a State in insurrection against the United States, and what then? "And there-, upon all commercial intercourse by and be tween the same and the citizens thereof and the citizens of the rest of the United States shall cease and be unlawful so long as such condition of hostility shall continue," and all goods going into that State shall be forfeited. And yet, forsooth, when the inhabitants of Louisiana have been declared to be in this state of insurrection, when goods taken there, unless under a particular license, are forfeited by the laws of the land, and when an individual trad ing there is taken up and tried as a felon, we are told that we cannot determine by act of Congress that they cannot elect a President for us ! Now, sir, it is said that the votes of these States will not affect the result. That may be so ; we may know outside that it probably is so; but this war may last four years more. I trust in God it will not ; I do not believe it will ; but suppose it shall run four years longer, and the doctrine contended for here is to ob tain, how do you know but that at the next presidential election your President may be selected by these very States in rebellion ? Sir, I say to you here what I believe ; that if the result of the presidential election depended upon the vote of Louisiana, I care not which way it was cast, if the pretended electoral votes of Louisiana were to choose the next President of the United States, after the 4th of March, decided either way, it would produce a revolution in this country unless you had some provision to settle it by law in advance. Mr. DOOLITTLE. That is what I com plained of, that the law was not passed in ad vance. This is retroactive, operating on votes already cast. If you want to provide by a gen eral law for the future, and declare generally that States in insurrection shall be incapable of voting, that is another thing. Mr. TRUMBULL. If the Senator admits that we can do that he gives up the power ; that abandons the chief argument of the Sen ator from Wisconsin. If you could provide for it in that way, you can provide, when the vote is offered, for counting it or not counting it, and that is the proper time to decide it. Suppose some other question should arise in reference to the vote from the State of Wis consin when the votes are opened by the Pre siding Officer of the Senate on Wednesday next, in the presence of the two Houses, how is that question to be settled? Does the Sen ator mean to say that it is to be settled by a vote in joint convention by appeal from the decision of the Chair? I understand him to say so. Why, sir, there is no such thing known to the Constitution of the United States as an act of a joint convention of the two Houses. They meet together, it is true; but the only mode to carry into execution the powers of the Con stitution is by laws of Congress. They are not enacted in joint convention of the two Houses ; they are enacted by the different branches, each acting within its own sphere and concurring in the passage of an act ; and the only way that any question could be set tled in joint convention would be, if a ques tion arose, for the bodies to separate, and at last you would have to settle it by law or by the action of the two Houses in passing a con curring resolution. But the Senator from New York thinks it inexpedient to settle this question. It is be cause of the expediency and the necessity of having it settled in advance, that I am urging it upon the consideration of the Senate at this time. How will you settle it when you get in joint convention? The Senator from New York proposes to count the votes. The House of Representatives have sent us a resolution in which they say the vote shall not be counted. Now, what is your position when the vote is opened from the State of Louisiana ? You have a disagreement at once, and can you ever count the vote ? I propose that we have con current action in some shape before the vote is opened ; and I hold that it is entirely com petent and proper to settle the question in ad vance ; and it is not retroactive, it does not re late to the manner of casting the vote ; and in this case I will state for the information of the Senate that the people of Louisiana have not voted for electors of President and Vice-Presi- dent. There has been no election of the peo^ pie there voting for electors ; but a body of men in Louisiana assuming to be the Legisla ture of the State of Louisiana have appointed these electors a Legislature that was elected by less than nine thousand votes. About eight thousand of the voters of Louisiana, out of more than fifty thousand, chose what they call a Legislature, and that Legislature has elected certain electors of President and Yice- President. There has been no vote of the peo ple. Mr. HENDRICKS. I wish to ask the Sen ator, for information, whether the Legislature 190 TWENTIETH PRESIDENTIAL TERM. of Louisiana was authorized by the constitution recently adopted there to select electors in that mode? Mr. TRUMBULL. I do not remember whether the constitution made a provision on that subject or not, and I do not know that it would be material. Mr. HENDRICKS. It seems to me to be an important question. Mr. TRUMBULL. I am unable to answer the Senator as to that question. I do not re member whether there is any provision in the constitution adopted for Louisiana authorizing the Legislature to choose the electors. Mr. JOHNSON. I do not think such a pro vision is to be found in the constitution of any of the States ; it is regulated by the Constitu tion of the United States. Mr. TRUMBULL. The fact would be im material. I do not think there is any impor tance in the suggestion whether the constitu tion of the State of Louisiana provided for it or not. In fact I do not think the constitu tion of a State could provide for that. The electors in each State are to be chosen, accord ing to my recollection of the Constitution, in , the manner prescribed by the Legislature of the State, and therefore the State constitution could not regulate it. In reference to that constitution in Louisiana and its validity, and the recognition of that Legislature in Louisi ana, the whole question is an unsettled one, upon which at this time I do not propose to express an opinion. We have pending before us, as is known to the Senate, the application of two gentlemen for seats in this body, claim ing to have been elected Senators by the same Legislature of Louisiana which elected the electors. That question is yet undisposed of, and the view which the Committee on the Judiciary took in reference to this question was to report a concurrence in the joint reso lution from the House of Representatives, changing the preamble slightly so as not to declare that these people were in a state of armed insurrection on the 8th day of Novem ber last. I was not exactly satisfied with the preamble, even as it now stands. I would have preferred it in a little different form ; but a majority of the committee insisted upon it in the form in which it has been amended. I am not particular about it now, but prefer for myself that the preamble should be entirely stricken out. I do not care anything about any preamble. What I wish to get at is to dispose of the question as to what is to be done with these votes brought up from the States of Louisiana and Tennessee, for I un derstand Tennessee has sent a vote here as well as Louisiana. Whether the other rebel lions States, or the inhabitants of those States declared to be in insurrection, have attempted to send up votes, I am not advised. The ob ject which I have in view, the object which the committee had, was to settle this question and avoid difficulty when we come to act in joint convention in opening the votes ; and so far as the preamble is concerned, for one I would quite as soon it was stricken out ; but it came to us from the House of Representatives and the committee thought proper to amend it, and the amendment has been made, and I am willing to take it the way it is, although I believe I should be better satisfied if there were no preamble at all. Mr. COLLAMER. Mr. President, it is, no doubt, true that we are often wedded to par ticular forms of expression, which we have premeditated, attaching importance even to the forms, because we believe those forms are material to the substance which they contain and represent. Now, sir, in relation to the general principle of the power of Congress over this subject of voting for President and Vice-President, I do not know any difference between the provisions of the Constitution in regard to it and its provisions on any other subject. I understand that Congress is clothed with power to make all needful laws to carry into effect the powers granted by the Consti tution to this Government; and when the Constitution provides a mode of electing Presi dent and Yice-President, I take it Congress have a right to make laws to carry those pro visions into effect. I do not mean laws to con tradict them ; I do not mean laws inconsistent with them ; I mean to make laws honestly and fairly to carry into effect the declared purpose of the Constitution. If a law was presented which was at war with the provisions of the Constitution, under pretense of carrying them into effect, there would be ground of objec tion; but I take it that any law not incon sistent with the provisions of the Constitution, and which really intends to carry them into effect, is entirely constitutional. The subject has been legislated upon, and necessity may show that further legislation is required. With these general remarks I come to the consideration of this resolution. I have objec tions to the form in which it is. I have great objections to all particular legislation. I ob ject entirely to legislating of and concerning any State whatever by name. I want all laws to be general in their operation, general in their application. I want them so made that every State shall become subject to their operation in a like contingency. Make your laws general for the United States, and pro vide that in such and such contingencies a State which falls within those contingencies shall be subject to the operation of the law now and forever. There is one other general principle which should be borne in mind. It very much be comes us, for consistency s sake as well as our own general character as legislators, that we should legislate in view of the laws we have passed. We should shape our laws with a view to what we have already passed into law, not forgetting that, not overlooking it. Now in relation to this resolution : its pre- ABRAHAM LINCOLN", PRESIDENT. 191 amble declares that certain States, naming them, or the inhabitants of those States, were in a condition of armed rebellion, and have continued in that condition for a certain time, and then the resolution legislates of and con cerning those States. I think that is all wrong, all uncalled for. Let it be remembered that in 1861 Congress passed an act making a large body of provisions for the condition of things which had then arisen. It is an act entitled " An act further to provide for the collection of duties on imports, and for other purposes," which was approved July 13, 1861. In the fifth section of "that act, drawn, as I know, with a great deal of thought and care, it was pro vided : That whenever the President, in pursuance of the provisions of the second section of the act entitled " An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrec tions, and repel invasions, and to repeal the act now in force for that purpose," approved February" 28, 1795, shall have called forth the militia to suppress combinations against the laws of the United States, and to cause the laws to be duly executed, and the insurgents shall have failed to disperse by the time directed by the President, and when said insurgents claim to act under the authority of any State or States, and such claim is not disclaimed or repudi ated by the persons exercising the functions of government in such State or States, or in the part or parts thereof in which said combination exists, nor such insurrection suppressed by said State or States, then, and in such case it may and shall be lawful for the President by proclamation to declare that the inhabitants of such State, or any section or part thereof, where such insurrection ex ists, are in a state of insurrection against the United States ; and thereupon all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States shall cease and be unlawful so long as such condition of hostility shall continue ; and all goods and chattels, wares and merchandise, coming from said State or section into the other parts of the United States, and all proceeding to such State or section, by land or water, shall, together with the vessel or vehicle con veying the same, or conveying persons to and from such State or section, be forfeii States. forfeited to the United In short, a state of war was declared to exist in that event. It will be observed that that statute did not make any law for the States which had attempted to secede and were in arms. It named no State whatever. It was a general law that when the people of a State are in insurrection and claim to act under the authority of the State, and the State authori ties do not repudiate it and do not stop it, then the President may declare them to be in insur rection, and thereupon a state of war exists ; and the Supreme Court of the United States, differing about the blockade question before that, all decided that after that act was passed the state of war was complete. Now, Mr. President, in order to conform our legislative acts to that law which we have al ready passed and that condition of things which exists, I propose to offer a substitute for this resolution, which I shall presently ssnd to the desk. The President s proclama tion declaring certain States to be in a state of rebellion and insurrection was duly issued under the law of 1861, which I have just read. That is all matter of public record. - We know what the proclamation is. We know that it was issued according to law. It declared a state of war. The proclamation is before me, but I need not read it. It declares under the act which I have read, that certain States are in a condition of war and insurrection. Has that ever been changed? Have any States, de clared by that law and proclamation to be in this condition, ever altered their condition ? The state of war certainly still continues. In view of the statement which I have made, I propose in place of the resolution, which seems to me obnoxious to the objections I have made, to strike it all out, and also the pre amble, and to insert simply this : That the people of no State, the inhabitants whereof have been declared in a state of insurrec tion by virtue of the fifth section of the act eatitled " An act further to provide for the collection of duties on imports, and for other purposes," ap proved July 13, 1801, shall be regarded as em powered to elect electors of President and Vice- President of the United States until said condition of insurrection shall cease and be so declared by virtue of a law of the United States. This is not a resolution declaring any State to be in this condition and legislating for any State by name, or making any distinction be tween particular States. It is simply a law in pursuance of the act of 1861, declaring what shall be the effect which shall follow a certain condition of things into which any State may fall. For the reasons I have stated, I desire that this substitute shall be adopted in lieu of the resolution. If put in this shape, it will be a statute declaratory of the existing law, de claring that States in such a condition have no power to vote for electors. Mr. JOHNSON. The Committee on the Ju diciary, I suppose, from what I collected of their views, would have no objection to any change of phraseology of the resolution which will ac complish the object that the committee had in view and that the other branch of Congress had in view in adopting the resolution as it stands. The object of the committee in the report is to prohibit the counting of the votes that have been cast in the States there named, the committee assuming that the States there named are States in rebellion, and being States in rebellion are not authorized to vote for President and Yice-President of the United States. The honorable member from Vermont pre fers his mode of accomplishing that end ; but virtually it is the same, provided his amend ment covers the case now existing; but I rath er think the form of his amendment will be found to provide only for subsequent cases, and not for an existing case. It seems to me to be prospective in its provisions, and not retrospec tive. The case to be provided for is one which has already occurred. Nor do I see any ma- 192 TWENTIETH PRESIDENTIAL TERM. terial difference, or any difference in point o1 fact, between the preamble as it stands and the amendment proposed by the honorable member from Vermont. He objects and in the general the objection is certainly well founded that it is unadvisable to legislate for particular cases : but I am at a loss to see how in substance the particular case will not be provided for by his amendment. He refers to the act of July 13, 1861, under the authority of which the President was authorized to declare certain States to be in a condition of insurrec tion or rebellion, and he tells us, what we all know, that, in pursuance of the authority so conferred, the President has declared certain States to be in rebellion, and those States are the very States mentioned in the preamble to this resolution ; so that the only difference be tween the resolution as it stands, in this par ticular, and the resolution as proposed to be amended by the honorable member from Ver mont, is, that the States are memtioned in the resolution before the Senate, and will be found mentioned in the proclamation to which the amendment and the Senator from Vermont re fers. But as I said in the beginning, as far as I am individually concerned 1 have no objection to such a change of the phraseology of the resolu tion as will accomplish the purpose, that pur pose being to declare that votes cast by the States which are named in the preamble are not to be counted. Whether that is to be ac complished by naming the States, or is to be accomplished by referring to the act of 1861 and what has been done under that act, is to me perfectly immaterial, and, I think, makes no difference as to the effect of the resolution. But even if the amendment proposed by the honorable member from Vermont should be preferred by the Senate, I submit to him and to the Senate that it will be necessary to change its phraseology so as to make it very clear that it will cover the existing case. The question, then, Mr. President, is whether Congress have any authority to legislate at all on this subject. I agree with the chairman of the Judiciary Committee and my friend from Vermont that the authority exists ; and I was somewhat surprised to find that it was disputed by gentlemen of such distinction every way, and particularly in their profession, as the hon orable member from Wisconsin and the honor able member from New York. The Constitu tion of the United States does not provide in any way a mode by which a contested election growing out of an alleged informality in vot ing, or an alleged illegality upon the part of those who voted, or an alleged incapacity on the part of those voted for, is to be decided. The honorable member from Illinois is right in saying that if we are governed by the mere letter of the Constitution in this particular, there is no power existing by which anything more can be done than to have the votes counted. He is right in saying that looking to the mere letter of the provision there is no au thority given to the President of the Senate to count the votes. He is right, also, in saying that there is no provision in the Constitution which decides who shall declare the result of the voting after the votes shall have been counted. In relation to all these points the Constitution is silent ; the Constitution pro vides that certain persons shall not be voted for as President of the United States. No one who is not a native-born citizen of the United States, or who was not a citizen at the time of the adoption of the Constitution, can be voted for. Members of Congress and officers under the Government cannot be selected as electors. The States are only authorized to appoint through their Legislature a number of electors equal to their number of Senators and Repre sentatives. Now, if a person not a native cit izen of the United States, cr not a citizen in 1789, when the Constitution was adopted, is voted for as President, or if a member of Con gress of either branch or an officer of the United States is voted for as an elector, or if more than the number of votes to which a State is entitled is cast, there is no clause in the Constitution which provides a mode by which these objections may be obviated. If the Vice- President is to count the vote, and he is to de cide the result, and is merely to decide the re sult according to the words of the instrument alone, then he may declare that A B is elected President of the United States, although the whole country knows that A B was not a na tive citizen of the United States. So he may count all the votes of any one State (for his function it is supposed is only to count) ; he may count all the votes cast by the State of New York when, in point of fact, New York has cast more votes than she is authorized to cast under the Constitution. How are these questions to be decided ? As it is very clear that in the instances to which I have referred and there are others there is the absence of any authority given to the Vice-President or to the two Houses when meeting in convention to decide them if they should arise, one would suppose unless we are to remain without a President, or to have placed in the presidential office a man who is not eligible, or to have one placed there by- votes which there was no constitutional right to cast that there must be some mode by which those difficulties are to be obviated. If there is under the Constitution no au thority conferred upon the Vice-President, or upon either House acting separately, or upon the two Houses when meeting in convention, and there must be an authority to settle these questions, or otherwise you visit upon the men who framed the Constitution the imputation of having been entirely unable to accomplish that work, there must be somebody, some de- wtment of the Government, vested with au- ;hority to provide for the exigency ; and when you go to the legislative department of the ABRAHAM LINCOLN, PRESIDENT. 193 Government you find that all legislative power is vested in the Congress of the United States, and you come to the. conclusion that the Vice- President has no power to cover the particular case when the votes are being counted, nor the House of Representatives, nor both Houses meeting in convention. Unless the work of the members of the Federal Convention has been very imperfectly accomplished, the power must be vested in the legislative department of the Government. I never heard before I speak it with entire respect to my learned brothers that it was doubted that it was within the province of Congress to provide for cases of this descrip tion. The doubt was, and perhaps that doubt was well founded, whether votes could be ex cluded by either branch of Congress or by the two when they met in convention. Nobody supposed that the Vice-President could exclude them. But I was about to say that I never heard it doubted before that such a contin gency, as might well happen because of the manner in which the constitutional provision was framed, could not be provided for by legis lation. Chancellor Kent, in the first volume of his Commentaries, says : " The President of the Senate on the second Wednesday in February succeeding every meeting of the electors, in the presence of both Houses of Con gress opens all the certificates, and the votes are then to be counted. The Constitution does not expressly declare by whom the votes are to be counted and the result declared. In the case of questionable votes and a closely-contested election, this power may be all-important, and I presume, in the absence of all legislative provision on the subject, that the Presi dent of the Senate counts the votes and determines the result." He admits that it is in the power of Congress to legislate, and doubts only whether in the absence of legislation there exists any depart ment of the Government, or any officer of the Government, vested with power to count the votes and declare the result, and in relation to that he is only able to bring himself to state by way of opinion that he presumes the Presi dent of the Senate is to count the votes and declare the result. But he presumes that only in the absence of legislation. Legislation on the subject, therefore, according to the high authority of this distinguished jurist, is admis sible, and of course within the power of Con gress. Now, Mr. President, the honorable member from New York I do not understand my friend from Wisconsin as going to the extent of that objection says that he denies to Con gress the power to declare that the votes of any State are not to be counted. Does he mean to say that the votes of the States in re bellion are to be counted ? I do not speak of Louisiana, because he may perhaps be able to except Louisiana out of the category of rebel States ; but assuming now that there are rebel States, and assuming that Louisiana is one of the rebel States, does nay friend from New 13 York say that the votes of those States are to be counted ? I presume -not ; and yet if we do not legislate upon the subject, where is the power to exclude them ? The Vice-President of the United States may think it his duty to count them ; he may think it his duty, count ing them, to declare the result of the election consequent upon that count ; and it makes no difference that we know outside of the ballot ing that the result will be the same whether those votes are counted or excluded, the prin ciple is the same. We are not to know, we do not officially know, what the result of the election has been. Who can know (officially, I mean) how the electors have voted ? There may be, for aught that we know, a contested election by the ballots, and the result of that contest may depend upon the counting or de clining to count the votes from the rebel States. Everybody will admit, I am sure no body more cheerfully than the honorable mem ber from New York, that if in such a contest one citizen is elected by the votes of the loyal States excluding the votes of the disloyal States, and another is elected only by includ ing the votes of the disloyal States, the first, although receiving a smaller number of votes numerically, is to be declared elected. If we all think that, are we willing (not because we feel in doubt as to what would be the result in the particular case, but we are establishing a principle) are we willing to leave it to the Vice-President of the United States to an nounce as elected President and Vice-President two gentlemen who may be elected only by the votes of those rebel States ? Everybody will say no. Well, if we are not willing to leave the power to him, and there must be such a power somewhere, unless the Constitution of the United States vests in him the power, and exclusively vests in him the power, why should we not at once by legislation guard against the possible mischief of such a state of things ? It is true that my honorable friends from New York and from Wisconsin, and that is my opinion as I am at present advised, think that the efforts of those rebellious citizens to take those several States out of the Union are le gally imperfect ; that is to say, in the contem plation of the Constitution they are still sub ject to the powers of the Constitution, and the war is being carried on for the purpose of mak ing them yield obedience to the Constitution upon the hypothesis that they are responsible to all the obligations of allegiance. That is all true ; but it is equally true that they are in a state of rebellion. The Supreme Court of the United States has decided unanimously that since the passage of the act to which my friend from Vermont has referred, the act of July 13, 1861, all the States named in the preamble to this resolution are now at war with the United! States, and that the United States have not only the right but it is their duty to prosecute- that war to a success by bringing them back, they being (not in a constitutional sease but 194 TWENTIETH PRESIDENTIAL TERM. practically) out of the Union. Now, is it pos sible that the inhabitants of a State thus at war with the United States have a right to vote in any Presidential election for President of the United States ? In the war of 1812 a portion of the State of Maine was taken possession of by England, and held from the month of September, or June, or August, I forget which, until the declaration of peace made by the Treaty of Ghent, and it was decided by the Supreme Court of the United States, in consequence of being so held, to be a foreign country for the time. Would my honorable friend from New York have said, if the whole State of Maine had been ta ken possession of by the enemy and held, that Maine, at a presidential election occurring dur ing the time of that possession, could elect electors of President and Vice-President of the United States, and that Congress was di vested of all authority to exclude them ? I am sure he would not ; and what difference is there between a possession of that description held by force of arms by a public enemy in an international war, and a possession held by the rebels who have raised their arms against the United States, and taken possession of certain States, and held that possession by force of arms, claiming to be independent of the au thority of the United States ? Mr. COWAN. I should like to hear the hon orable Senator from Maryland speak to this question, which is involved in the last clause of the amendment offered by the Senator from Vermont : suppose the rebellion to be entirely suppressed, is it necessary then, in order to restore them to their rights in the Union, that we should enact a law that it was suppressed ? Mr. JOHNSON. I have not said that. That is stated in the amendment suggested by the honorable member from Vermont. I have not expressed any such opinion, and I am not pre pared to say that I shall hereafter, when I come to examine the question thoroughly, come to the same result. My own opinion has been throughout that the States are not out in one sense ; and if all the inhabitants of those States were now to throw down their arms, admit their allegiance to the United States, and elect their members to the Senate, etc., here after, after the rebellion was entirely termi nated, perhaps they would be entitled to their seats ; but I am not prepared to say whether I shall hold that opinion upon examination or not. All that I mean to say now is, that it is incumbent upon us to provide by law for a contingency which has now happened, although it may never happen again, so far as the par ticular facts are concerned, ; and it is now, above all, the best time to provide for it, be cause, although we do not know officially that it will have the slightest effect upon the result, we do know that there is involved in an ex igency of that description very great peril. We have now, thank God, as I think I speak it with due respect to others who differ with me, and particularly my friend from Kentucky got rid of the disturbing element of slavery as far as we can get rid of it, and that ended, and protection provided in the fu ture against the peril consequent upon this particular clause in the Constitution looking to the organization of the Executive, I look forward to a perpetuity of the Union, and, certainly as long as it exists, the increase of its prosperity and power. Mr. COLLAMER. I desire to add to the amendment that I have offered these words : Nor shall any vote cast by any such electors elect ed by the votes of the inhabitants of any such State, or the Legislature thereof, be received or counted. According to my view, when a state of war has been declared to exist, declared according to law, we cannot recognize a state of peace and reconciliation in any other way but by de claring it by law, or authorizing the President to declare it by law. Mr. HOWAED. Mr. President, I am unwill ing to give a final vote upon this very impor tant measure without expressing my views upon it. I certainly regard it as a measure of very great importance, especially as a precedent for the future, and as indicating the opinion of Congress on the subject, to use a familiar term, of "reconstruction," or rather the rights of the States in rebellion. I do not doubt the power of Congress to legislate upon the sub ject of the counting of the votes in the conven tion which is required by the twelfth amend ment o the Constitution. That provision de clares that after the two Houses of Congress shall have assembled together, of course in joint convention " The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." There is no doubt about the duty of the President of the Senate on this occasion. It is simple and plain. The act which he is re quired to perform is the opening of the certifi cates. That is an especial duty intrusted to his individual care and charge, and one with which the two Houses, thus assembled, have nothing to do. I confess I do not doubt the power of Congress, should they see fit, to authorize the President of the Senate to count the votes after he has opened the certificates ; but in the absence of such a statutory provision I certainly could not concur in the "presump tion" of Chancellor Kent, that the President of the Senate would have the right to count the votes and declare the result. It is impossi ble for me to concur in this intimation of that very distinguished authority. I should, on the contrary, hold, in the absence of an act of Con gress, that the duty of counting the votes de volved upon the two Houses of Congress thus assembled. Why are they thus assembled ? It is a maxim that the law never requires a nugatory act ; it never requires the performance of an act which is in itself immaterial, useless, or trifling ; and ABRAHAM LINCOLN, PRESIDENT. whatever it commands to be done is supposed to have attached to it importance and interest. Let me ask, why are the two Houses of Con gress thus required to assemble in the same Hall, sitting together, and composing, of course, one body ? Is it for the mere purpose of act ing as spectators of the process to be performed by the President of the Senate of opening the votes? Is that all? Mr. HARRIS. I suggest to the Senator from Michigan that if he will read the very next sentence in the Constitution he will find an answer to his question. They are to pro ceed, in case there is no election, immediately to choose a President. Mr. HOWARD. I shall come to that in a moment. I am speaking now of the ceremony of counting the votes. Are the two Houses thus assembled to act as the mere spectators and wit nesses of the ceremony of opening the certifi cates by the President of the Senate? Is that the sole and only office which they are required to perform on that occasion ? Mr. CLARK. I suggest to the Senator that it is only the House of Representatives that is to elect the President in a certain contingency named ; it is not the convention. Mr. HOWARD. I know that. I am coming to that clause. It seems to me, on the other hand, that the intention of the convention which framed the Constitution was that the two Houses thus assembled should sit together as one joint body for a much higher purpose than merely looking upon the ceremony of breaking the seals of the certificates, and that they are really required to perform the office of counting the votes. This was the early con struction given to the Constitution by the Sec ond Congress of the United States, which passed the act of 1792. Mr. CLARK. I hope the Senator will per mit me to interrupt him, because I desire to hear him upon one point right here. I agree with him that the convention should count the votes; but I want to hear him on this point : if the convention is to count votes, how can the two Houses, sitting by themselves, restrict or enlarge that count by saying they shall count so and so, or only so and so ? The Senator will get my point. Mr. HOWARD. Yes, sir. Mr. COYNESS. Suppose there be an ob jection made in th convention? Mr. HOWARD. I may best answer that question by putting another. Suppose that votes were found to be embraced in this cer tificate which were in reality void for fraud or deception ; suppose they were a mere im position upon the Vice-President, and that the persons casting them were not really in exist ence, or that the certificate itself was a for gery: is there no way to prevent the count ing of such forged and fraudulent votes ? And if there be any such mode, is not that ques tion, ex m termini, by the terms of the Con stitution referred to this sembled together? Mr. CLARK. I see the Senator has not got my point. I agree with him that there would be power to prevent the counting of such votes, and it would be in the convention ; but not in the two Houses of Congress separately. Mr. HOWARD. I am speaking of them sit ting together in one and the same body. Mr. CLARK. The point I made was this : if it belongs to the convention, the two Houses sitting together, to determine this question, how can it be limited or enlarged by the two Houses sitting separately ? Mr. HOWARD. Of course it cannot be lim ited or enlarged. Mr. CLARK. That is the point. Mr. HOWARD. I consider that the power of counting the votes and of rejecting votes which are void for fraud or illegality, is, under the Constitution, in the joint convention thus assembled. I have not any doubt about that, because I believe that the two Houses thus assembled are assembled for a great and pro tective purpose, that they are exercising the tutelary authority of the people in protecting the nation from the imposition of false and fraudulent ballots and certificates. The article proceeds : " The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors ap pointed ; and if no p_erson have such majority, then from the persons having the highest numbers not ex ceeding three on the list of those voted for as Presi dent, the House of Representatives shall choose im mediately, by ballot, the President." Did my honorable friend from New York forget that the Constitution in this clause only referred to the matter of the election in the House of Representatives ? He seems to be of opinion that it was the duty of these two Houses thus assembled together, in case there was no election of President, to proceed at once to the election of a President. That would be a very strange proceeding indeed; the Senate manifestly would have no business to intermeddle with it. It belongs exclusively to the House of Representatives sitting, not in convention with the Senate, but in their own Hall as a distinct legislative body. Mr. President, I regret very much that the Committee on the Judiciary saw fit to strike out the last clause of the preamble ; and with the indulgence of the Senate I will state briefly what my views are upon this subject. I do not wish to consume their time unnecessarily, and will not ; but the question is in my judg ment one of the most important imaginable. The preamble to the resolution as it comes to us from the House of Representatives is as follows : Whereas, the inhabitants and local authorities of the States of Virginia, North Carolina, South Caro lina, Georgia, Florida, Alabama, Mississippi, Louis iana, Texas, Arkansas, and Tennessee, rebelled 196 TWENTIETH PRESIDENTIAL TERM. against the Government of the United States, and have continued in a state of armed rebellion for more than three years, and were in said state of armed rebellion on the 8th day of November, 1864: There fore, etc. It affords me a little gratification, I confess, that my learned friend from Maryland has at length found himself compelled to adopt the sentiment which I long since expressed upon this floor, that the United States, in the pros ecution of this war against the rebellion, have the same power and authority over the con quered States, over the communities once States in this Union but now conquered and subjected by our arms, as the nation itself would possess over foreign territory conquered in the same way. The only difference between the two cases is this : that in the case of a con quest of a rebel State by the arms of the Unit ed States the Government hold the territory thus subdued in trust for a specific purpose, and that purpose is to restore it ultimately and in its own discretion to its original position in the Union, to the enjoyment of all the privi leges, and to the performance of all the func tions pertaining to or required of a State of the United States under the Constitution. By the act of 1861, and the President s proc lamation under that act, the eleven States em braced in this preamble were declared to be in rebellion against the Government of the United States, to be in insurrection. Upon the prin ciples of the laws of nations and the laws of war, principles which have been repeatedly recognized by our own Supreme Court, all the people embraced in these rebellious States, thus declared to be in insurrection, are enemies of the Government of the United States and enemies of the remaining loyal States and people. They are enemies in every sense in which a foreign foe would be our enemy. Have such people any political rights under the Government of the United States ? Have public enemies any right to enjoy the privi leges of loyalty under the Government of the United States? Have they, in other words, the right of being the enemy and at the same time the friends of the United States ? Can they have their cake and eat their cake at the same time ? Can South Carolina rightfully, if her people were so disposed, proceed to elect electors of President and Vice-President of the United States and forward to this Govern ment a certificate of the election ? Why, sir, the very fact that they are public enemies shows the utter impossibility and absurdity of such a supposition. The same principle covers not only South Carolina, but every foot and every inch of every one of these eleven rebel lious States thus declared to be in insurrec tion ; and that State of hostility will continue against the Government of the United States until our arms have completely triumphed, and until, in the language of my respected friend from Vermont (Mr. COLLAMEE), peace is re stored by an act of Congress revoking and an nulling the proclamation issued under the act of 1861. These communities have no right at all to enjoy the benefits of the Government of the United States further than we see fit to extend to them those benefits ; and those ben efits are conferred upon them and preserved to them, while the war shall last, by the points of our bayonets. I look upon this measure as necessary, as one form in which the sense of Congress ought to be expressed against any hasty attempt to readmit these rebellious States into the Union. For one, I am prepared to say, and I take this occasion to say it, that I shall never conscious ly give my vote for the readmission, directly or indirectly, of one of these rebellious States back into the Union, either by way of admit ting her Senators here or in any other form, until I am perfectly satisfied, upon doe evi dence, that the decided majority of the voting population of such State has become loyal to the Government of the United States, is friendly to that Government, and willing and anxious to proceed in the discharge of the functions of a State of the Union, honestly and fairly, as required by the Constitution of the United States. The theory of our Government is different from that of almost every other Government on earth. It is that the will of the majority shall govern ; in common phrase, the majority of the people, but practically the majority of the voting population. That is the basis, and the sole basis, upon which our republican sys tem is based ; and that is a principle too often recognized by our public writers and public speakers, too often recognized by our judicial tribunals, to need any discussion here. The moment we abandon the fundamental idea that a majority shall govern, that moment we place the government of a State in the hands of a minority, and so far as the principle is concerned, it is immaterial whether this minor ity consists of one-tenth of the population or the one-thousandth part of the population, or even of one out of the whole population. We may not discard the principle that republican government, as understood on this continent, rests upon the willing assent of a majority of the people of the particular community ; a willing obedience to the laws of the United States, and a disposition for the future to pro ceed in the regular discharge of their duty as citizens of the State. If we abandon this great principle, that a majority not only shall, but must govern, we have thrown the leading prin ciple upon which all our governments, State and Federal, are organized to the winds ; we have given up the great experiment of republi can government. Mr. President, I repeat (for I do not intend to consume the time of the Senate) that I look upon it as a bounden duty of Congress, in every case, to keep out of the Union every one of these eleven seceded States until, in pursu ance of our laws, passed or to be passed, it has ABRAHAM LINCOLN, PRESIDENT. 197 become perfectly evident to us that there is in such State a clear, absolute majority of its vot ing population friendly to the Government of the United States, and willing to proceed in the discharge of their functions as a State ; and, until that is done, you may be perfectly sure, so long as I hold a seat in this body, my vote will be given against any such proposal. I never will consent to admit into this Union a State, a majority of whose people are hostile and unfriendly to the Government of my coun try. I prefer to hold them in tutelage (for that is really the word) one year, five years, ten years, even twenty years, rather than o*un the risk of a repetition of this rebellion, which has cost us so much blood and treasure. I hope, therefore, Mr. President, that this resolution will pass ; and I hope it will pass precisely as it is sent us by the House of Repre sentatives. I hope that we shall continue the language in this preamble, the recital that on the 8th day of November, 1864, each of these eleven States was in armed rebellion against the United States, which was the legal fact of the case. Why flinch from it? Why shun the declaration? Were they not our enemies? Mr. SUMMER. Allow me to remind the Senator that that language has been struck out on the report of the committee. Mr. HOWARD. It is not struck out yet by the Senate. I believe it was stricken out inj Committee of the Whole. I shall call the yeas and nays upon that question in the Senate. Each of these States, sir, on that particular day was, as a political community, an enemy of the United States, and all their men, women, and children were enemies of the United States by the laws of war and the laws of nations. This is all I have to say on the subject at present. Mr. TEN" EYOK. I am not in favor of the adoption of the substitute proposed by the Senator from Vermont, although it is always with the greatest diffidence in the world that I venture to differ from him in any well-con sidered proposition that he submits to the Senate. I understand his substitute to be based upon the idea that under the act of Con gress and the President s declaration, we are now in an actual state of war with these eleven southern States, and that it will require an act of Congress to enable them to resume their position again in the Federal Union. That pre supposes, in the first place, that they are out of the Union, a fact which I am not willing to admit and can never assent to ; but I do not propose to insist upon that. The main direc tion of the argument is, that inasmuch as the President has declared these States to be in a condition of insurrection under an act of Con gress passed in 1861, therefore it will require an act of Congress to enable them to resume their legitimate or ordinary State functions; or. in other words, it will require an act of Congress to authorize them to elect electors for President and Vice-President, and, as a necessary consequence, to elect Senators to this body, or Representatives to the House of Representatives. I do not mean to weary the Senate by read ing at large the statute of 1861, but I may be permitted perhaps to refer to it for the pur pose of showing the object, intent, and scope of that enactment. It is entitled, not " An act to declare war against the States of South Car olina, Virginia, and others," but " An act fur ther to provide for the collection of duties on imports, and for other purposes." The fifth section authorizes the President in certain cases to declare the inhabitants of certain States to be in a state of insurrection by virtue of the power conferred upon him by the act of Feb ruary 28, 1795. It goes on to declare that it shall be lawful for the President, whenever he shall call forth the militia, in pursuance of the act to which I have referred " To suppress combinations against the laws of the United States, and to cause the laws to be duly executed, and the insurgents shall have failed to dis perse by the time directed by the President, and when said insurgents claim to act under the author ity of any State or States, and such claim is not dis claimed or repudiated by the persons exercising the functions of government in such State or States, or in the part or parts thereof in which said combina tion exists, nor such insurrection suppressed by said State or States, then, in such case, it may and shall he lawful for the President, by proclamation, to de clare that the inhabitants of such State, or any sec tion or part thereof, where such insurrection ex ists " Not a state of actual war " are in a state of insurrection against the United States ; and thereupon all commercial intercourse by and between the same and the citizens thereof, and the citizens of the rest of the United States, shall cease, and be unlawful so long as such condi tion of hostility shall continue." This is the object of the act. When these people, in the opinion of the President of the United States, are in the condition specified in this act, he shall issue his proclamation declar ing that fact ; " and thereupon all commercial intercourse by and between the same and the citizens thereof, and the citizens of the rest of the United States, shall cease, and be unlawful so long as such condition of hostility shall con tinue." f In pursuance of that act of Congress the President issued his proclamation, and I shall refer to a portion of it. The proclamation bears the date of August 16, 1861. It recites the act of 1861 to which I have just referred ; it also recites the act of 1795, under which he derives the authority, and then proceeds to declare : " Now, therefore, I, Abraham Lincoln, President of the United States, in pursuance of an act of Con gress approved July 13, 1861, do hereby declare that the inhabitants of the said States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Ala bama, Louisiana, Texas, Arkansas, Mississippi, and Florida (except the inhabitants f that part of the State of Virginia lying west of the Alleghany Moun tains, and of such other parts of that State and the other States hereinbefore named as may maintain a 198 TWENTIETH PRESIDENTIAL TERM. loyal adhesion to the Union and the Constitution, or may be, from time to time, occupied and controlled by forces of the United States engaged in the dis persion of said insurgents), are in a state of insur rection against the United States, and that all com mercial intercourse between the same and the in habitants thereof, with the exceptions aforesaid, and the citizens of other States and other parts of the United States, is unlawful, and will remain unlaw ful until such insurrection shall cease or has been suppressed." The object, design, and intent of the act was to prohibit trade with these insurgents, to pre vent persons in the loyal part of the Union from carrying on commercial intercourse with them, and from furnishing them with provi sions and munitions of war with which they might continue to prosecute this rebellion ; and then there was an exception from the scope and effect of the act in favor of the State of Wes Virginia and such other States, or parts oi States, as maintained a loyal adhesion to the Union and the Constitution, or may be from time to time occupied and controlled by forces of the United States engaged in the dis persion of the insurgents. Now, if it comes to the knowledge of the joint convention to be assembled on Wednes day of next week that in either of these States this insurrection has been suppressed, and that the people of either one of those States have assumed the suspended functions of their State government, have reorganized a State constitution, have elected State officers, and have put their civil government into full exe cution and operation, and that fact comes be fore us attested and undisputed, I inquire whether, under the provisions of this law and the proclamation of the President, it is neces sary that there should be an act of Congress passed in order to establish the fact that these people have reorganized and reassumed their ancient loyal functions? I am as much op posed as any other Senator can be to the ad mission of Senators from the State of South Carolina, if such a thing could occur, or to the electoral vote of the State of South Carolina being counted in the electoral college; but, sir, if the fact appeared that that State, con trary to all its predispositions toward rebel lion, had resumed its loyal functions under the ancient Union, and that there were a large body of loyal people there, sufficient for the purpose of performing all their duties under the State government and under the Govern ment of the United States, even South Caro lina, polluted and covered over as she is and has been with treason, might yet by possibility be permitted to resume her position upon this floor and have her electoral vote also counted in the joint convention of both Houses. Why, sir, I thought that this whole war, the expen diture of thousands of millions of dollars and of oceans of blood, was for the very purpose of restoring this Union and bringing back these shooting-stars to their ancient orbits. I differ with the Senator from Michigan, who would make the return of these States to the Union attendant with the utmost difficulty. Whenever I was satisfied that there was a true, genuine, loyal feeling among the inhabitants of any of these States to repudiate their here sies and return to their allegiance, and that there was a sufficient body of them to justify the proceeding, and to carry on all the essential, necessary operations of State governments, and to perform their duties within the limits of the Union, I should be disposed to extend the hand of encouragement to the loyal people, always saving and reserving not only terms of indignation for the leaders, but the privilege and firm determination of punishing in the most condign manner the guilty authors and leaders and instigators of the rebellion. I do not be lieve that there is any necessity for any such act of Congress as has been referred to. I do not believe that it is, at this time, under the existing state of things, prudent, advisable, or proper to throw these impediments in the way, to make the return of these erring States de pendent solely upon the wish and will of Con gress. Inducements have been held out to them by the Executive of the United States. I know that that course of conduct on the part of the Executive has been criticised ; yet, at the same time, these people, who have been like frowning men struggling in the midst of a. storm, contending against their neighbors and their efforts to keep them in rebellion, have seized hold of this offer or inducement held out to them by the Executive of this nation, and have proceeded in the common, legitimate, lawful, and ordinary mode, in the mode in ac cordance with their ancient traditions, in ac cordance generally with their constitutions and the laws they had enacted in times past, to perform all the duties which good, loyal, and true citizen should perform, to manifest their devotion to the ancient Union, and to return to the ancient ark. Several of them have attempted this thing. Tennessee has made some effort toward it. Arkansas has made an effort toward it. I, however, having some familiarity with the case of Louisiana, saw fit to select that in my motion of amend ment yesterday from the operation of this joint resolution, considering it, from the knowledge I had of the situation of these sev eral States, as the strongest case that could be brought to the consideration of the Senate. olt may not be so, but I so regard it. I understood the Senator from Illinois to-day to take exception to the course pursued by the people of Louisiana. He wished to know if it were possible that some eight thousand votes cast in an election for the purpose of returning again to their ancient allegiance could be sufficient where the State had been in the habit of casting some fifty thousand votes in other elections. I do not understand the facts exactly as the Senator from Illinois understands them. I will read from a paper ABRAHAM LINCOLN 7 , PRESIDENT. 199 famished by a gentleman who is familiar with these facts, and who has had something to do in attempting to set this new State govern ment in operation. He states, in regard to the State election : " It was fixed for the 22d day of February. Three candidates were presented, and the canvass was general and spirited, each party sustaining its can didates by public meetings, precisely in the same manner as in a State unaffected by the revolution. " Eleven thousand four hundred and fourteen votes were polled ut this election. u The average vote for ten years previous to the rebellion in these parishes was fifteen to sixteen thousand." Surely if the average vote in the parishes that voted at this State election in 1864 for the period of ten years past did not exceed fifteen or sixteen thousand, we may say that a full vote was cast by the people of these parishes in February, 1864, when they cast eleven thousand four hundred and fourteen votes, taking into consideration the wasting effect of war upon that people, and the fact that a large number of them had actually gone into the rebel army. " The highest vote ever given [in these parishes] was in I860, when the subject of the rebellion was considered, and the people were represented by four presidential candidates. The vote in that year was twenty-one thousand." So that the votes cast in the State election of 1864 in these parishes amounted to more than one-half the whole number of votes cast in the presidential election immediately pre ceding, when there were four candidates run ning, and when the question of rebellion was baiug considered, and when it is fair to pre sume that every voter who could be brought to the polls was brought and his ticket de posited. I desire now to give the statistics of the vote of the State generally for the purpose of put ting the facts right before the Senate : 41 The highest average vote of the State of Louis iana in ten years past was thirty-four thousand. " The highest vote ever given was about fifty-one thousand. "In ten years past the vote is even as low some times as twenty-two thousand." " The ordinary vote of the city of New Orleans was six or seven thousand previous to the revolu tion. * The highest vote ever given in the city was ten thousand. " In these elections, therefore, the vote actually polled was more than one-third of the average vote for ten years past." I was anxious to save the State of Louisiana from the effect of this joint resolution. I feel as anxious to save the State of Tennessee from the effect of the resolution, because I cannot conceal the fact that the Vice-President-elect of the United States is a citizen of that State. If that State be not a State in the Union, then he is an alien, and I do not see clearly how an alien can take his seat to preside over this body as the Vice-President of the United States. Still, I did not see fit to start that question, or to discuss it, because I had not fully looked into it and considered it, so as to justify me in attempting to detain the Senate in any remarks which I might make on the subject. There was another view that 1 entertained of this case, and that was a motive which induced me to confine my amendment to the State of Louisiana. It was to avoid a committal on the subject, and to save the Senate from de claring its opinion beforehand with respect to the eligibility of the Senators chosen by that State to occupy seats upon this floor. The Sen ator from Illinois differs with me. He thinks that by the passage of the resolution that ques tion will be avoided, that we shall not be com mitted upon it. I do not think so. I do not say that that is a sufficient reason to regulate and rule the transactions of this body ; and yet I think we ought not in advance to commit ourselves on this subject. Why shall we com mit ourselves on the question ? If we pass this resolution declaring that the State of Louisiana was in such a state of rebellion during the year 1864, that no legal election could be held there-, and even as late as the 8th of November of that year, then we declare that the Legislature of that State, elected in February of the same year, was illegally elected. Then if we refuse by this joint resolution to allow the electoral vote to be counted in the electoral college on Wednesday next, on the ground that this Leg islature was illegally elected, we preclude the question in relation to the election of these Senators, because they were elected by the same Legislature, in pursuance of a law enacted by themselves, under the power conferred upon them by the Constitution, to enact a law pro viding for the election of electors for President and Vice-President of the United States. So far from avoiding a decision on this question, we, by our vote, if we pass this joint resolu tion, prejudge and predetermine the question in relation to the admission of the Senators from that State upon this floor, as well as the admission of the members elected to the House of Representatives. I wish to avoid settling that question. It can make no difference as to the result. The choice of the people so clearly manifested during the last election will be acknowledged, and ratified, and carried out whether the votes of these States are cast in the electoral col lege or not. I should much rather prefer leav ing this question to be settled and determined, if it should arise, in the electoral college, having faith in the good sense and honesty of purpose of the representatives of the people in both Houses, than to undertake to venture upon a doubtful power, claiming that the Con gress, and the Congress alone, have the power to determine this question, and at the same time settle in advance other questions which we shall be called upon to settle hereafter, and which Senators on this floor declare it is their wish to avoid. p 200 TWENTIETH PRESIDENTIAL TERM. I will not detain the Senate by any further remarks. Mr. POMEROY. I am not opposed to the object of this joint resolution, but rather to the form in which it is presented. I do not suppose that States that are not represented in either House of Congress should have a representation in the electoral college. There seems to be an impropriety and an inconsist ency in admitting their votes and counting them ; but this resolution as it is presented to us goes on to state certain things about some of these States which are so far from being true that they become almost offensive In the preamble of this resolution, it is said, of Arkansas, for instance, among other States, "the inhabitants and local authorities have continued to be in armed rebellion for three years, and were so during the last election on the 8th day of November." Mr. TRUMBULL. If the Senator from Kan sas will allow me, those words to which he re fers have been stricken out. The amendment reported by the committee, striking out all after the words " United States " in the pre amble, and substituting other words in lieu of them, has been adopted. Mr. POMEROY. Let me inquire if the words substituted in lieu of them make any reference to Arkansas? Mr. TRUMBULL. Arkansas is left in the first part of the preamble, to which, I presume, the Senator from Kansas has no objection. It now reads, " whereas the inhabitants and local authorities of the States of Virginia, North Carolina, South Carolina, Arkansas, and oth ers, rebelled against the Government of the United States." The Senator does not deny that. Mr. POMEROY. No, sir. Mr. TRUMBULL. The rest of the preamble is stricken out, and a substitute has been adopt ed, the very object of which was to avoid this statement upon which the Senator is com menting. Mr. POMEROY. I am very glad to learn that. I was not in my seat at the time that amendment was adopted. So far from the local authorities of the State of Arkansas hav ing been in armed rebellion for three years, the authorities who did rebel have not been inside the State for a year. The rebel governor and legislature were driven out long ago, and have not been back, and cannot come back ; some of them are dead, and never will come back. I thought, with such a state of facts as that, the statement in the preamble to this resolution, that the State had continued in re bellion up to the 8th of last November, was very inconsistent. But I want to say again that the State of Arkansas has not voted at all in the presi dential election. There are no votes from that State. Under the instructions and im pressions that the members from Arkansas received here last Session, they distinctly un derstand that States not represented in either branch of Congress would have no right to vote at the presidential election. They re turned to Arkansas and so reported, and they never had any election ; there are no votes here from that State. They have been in sus pense awaiting the action of Congress, and while that state of things lasted, of course they held no election. So far as this resolution is concerned, it does not affect that State one way or the other ; there are no votes to count from that State. Mr. COWAN. I have but a word or two to say on this question. I suppose as a general proposition all States have a right to be repre sented in this election of our President; but it appears that there is a difficulty in regard to some of the States named here. I am- not sure that I know exactly the condition of this preamble. I understand that Arkansas is stricken out. Mr. TRUMBULL. No, sir. Mr. COWAN. Do they, all remain as they are here? Mr. TRUMBULL. Yes, sir. Mr. COWAN. And the question is on the motion of the Senator from New Jersey to strike out the word " Louisiana? " Mr. TRUMBULL. Yes, sir. Mr. COWAN. The preamble states the fact of the rebellion prevailing in these States, and the resolution declares that because of this fact stated in the preamble these States ought not to vote. That is the proposition from the committee. The amendment of the honorable Senator from Vermont, on the other hand, proposes to take the question in blank, and to declare that all the States which were pro claimed to be in a state of insurrection by the President ought not to vote until that insur rection has been declared by law to be sup pressed. I am opposed to that amendment for divers reasons, and I think if we come to ex amine this question fairly we shall see that any action of ours intended to prevent Louisiana, for instance, and Arkansas from voting will be perhaps a breach of faith on the part of this Government, and a violation of that courtesy which is due from one department of it to another. Sir, what are the facts ? It is said that by the act of July 13, 1861, these States are cut out from the Union and debarred from all their privileges as States, political as well as others. I do not so read the act of July 13, 1861 ; nor do I conceive that that was its pur pose, because in endeavoring to get at a fair construction of a law, it is always necessary to ascertain what was the purpose of the law giver. I apprehend, so far from its being the purpose of that law to put these States out of the Union, it was its intention to keep them in ; that it was intended to be a means to keep them in, although for the purpose of better achieving that end all commercial inter course was cut off with them, but not political ABRAHAM LINCOLN, PRESIDENT. 201 intercourse. They ware not deprived of any of their rights as States, or from exercising any of the functions of States, provided they were able to do so in due time. In pursuance of that act of Congress, the President, by his proclamation of August 16, 1861, declared Louisiana in a state of insurrec tion. By the proclamation of January 1, 1863, he exempted thirteen parishes of the State from the operation of the emancipation proc lamation. Why? Because he says in that proclamation that the rebellion does not exist in those thirteen parishes ; that that condition of things upon which he was allowed before that time to issue his proclamation did not ex ist in those parishes, and therefore he exempted them. We recognized the validity of that proclamation I believe; at least we have always ti-eated it with that respect which is due to the act of another department of this Government when it is not grossly in violation of law or of the Constitution. By the proclamation, however, of the 8th of December, 1863, the President invited the people of Louisiana and of all the other States to resume their State rights and State functions, provided one-tenth of them would agree to make the proper or ganization. Now, as I understand the question here, it is simply this: in pursuance of that invitation extended by the President, and upon the foot ing of his proclamation declaring that those rights should bd restored to them, and that they would be protected in the exercise of them, the people of Louisiana, in numbers suf ficient to bring them within his terms, have organized a State government, and have it now actually in operation in the State of Louisiana. The question simply is, whether we will carry out that arrangement of the President in good faith, or whether we will violate it ; and that is the question which presents itself distinctly upon the propositions now before this body. The President has invited a number of the people of these States which have been op pressed with the rebellion to go to work to reorganize their State governments, and has promised that he will extend, and this Govern ment will extend, to them the protection guaranteed by the Constitution ; and he goes so far as to state that phrase of the Constitu tion in hcsc verba. Will we stand by it ? That is the question. Will we carry it out in good faith ? If we are willing to do so, then there is no difficulty; and this one-tenth of the people, or whatever the number may be, will become for this occasion the State of Louisiana, and the State of Arkansas, or any other State that sees fit to accept those conditions. I may here remark, Mr. President, that no member of the Senate has yet undertaken to determine what number of people in a State shall be in rebellion in order to deprive the residue of the population of their rights. It is perfectly clear, I take it, the State being a corporation, that if the officers of the corpora tion refuse to do their duty, refuse to carry out the laws of the franchise, that that does not destroy the corporation. The corporation still remains, and a court would appoint trus tees for the purpose of sustaining it, and for the purpose of carrying out the original intent with which it was created. If a portion of the people of a State, say ten thousand, were to drive away the State officers, or even if the State officers were to leave themselves, and for the time being suspend the functions of the State government, it is perfectly clear that that would not affect the rights of anybody else who had not been engaged in the original enterprise, however much they might have obeyed those who obtained the control of that go vernment, and which exercised its authority over them. Then if ten thousand cannot do it, can twenty thousand, can thirty thousand, or can any number of people in a State, being rebellious and disloyal, deprive the loyal of the privileges granted to them under the Con stitution ? Those aro questions which have not been settled. Those are questions upon which I have not heard an opinion. Can the majority of the people of a State destroy that State ? They may derange and disorder its functions as such, but the moment they are suppressed and put down, and the usurpation removed, I would like to know whether the rights do not all remit themselves to the loyal people and those who have not been engaged in the enter prise ? I am not prepared to say that these rights have all come back to these people in Louisi ana. I am not prepared by any means to de termine that question, simply because the President has better means of ascertaining and determining it ; and I think the question re mains with him. It was his business as the agent, the Executive in fact of the United States Government, to put down this rebellion, to relieve the people from its oppression, and to restore them precisely to where they were when the rebellion found them. If that is done, in ten days after his proclamation, eo instanti, the people resume their rights and functions ; and in this case I understand they are not only in possession of the right, but are actually in the enjoyment of it, having a regu larly-organized government with all the ma chinery necessary and proper to a government. Whether it is a government of so many people as will be enabled to maintain its supremacy over the whole State is a question, but it is a question which the Executive is to decide, because he is to sustain it there, and make it able to be supreme within the limits of that State ; and if I understand it, that is just ex actly why we are now giving him men and money, armies and navies. It is in order that he may bring about that desired result. Mr. President, this involves a direct conflict between the legislative and executive bodies of this Government, and at this time I am of opin- 202 TWENTIETH PRESIDENTIAL TERM. ion that we cannot afford to enter into that conflict. We cannot afford to quarrel now, because the game would not pay for the can dle. There is no practical value in the ques tion that is raised here at any rate, because it will not alter the result of the presidential election a hair s breadth whether the electoral votes of Louisiana and Arkansas are counted, or are not counted ; and it is admitted to be a very grave question, and one upon which our people will be likely to divide. Then why should we raise it when it is not necessary ? By not raising it, we are left free to decide it when it shall be a material question before us really. By raising it now upon an issue in which it is not wholly involved or wholly eliminated, we may be precluded hereafter from deciding it as we would desire to decide in such a case. Therefore I think, for my own part, that it would have been better not to moot the ques tion now, seeing that it can have no practical result, that the only possible consequence which can follow it is to divide and distract the va rious departments of this Government. I am unwilling to do that. I am willing at the pres ent time to submit to anything that is not ma terially fatal. I am unwilling to raise any ques tion which does not cross our path distinctly and in front of us while this \var is pending, because I have my own notions about that it is war, and I would devote the whole ener gies of the nation to the successful conduct of that war, such a conduct of it as will enable us when it is brought to a successful conclusion to meet and adjust these questions in freedom, and without having impending over us the prospect that all the questions may be futile even if they are decided. Mr. DAVIS. I believe the honorable Sen ator from Pennsylvania is about through, and with his permission I will occupy the floor for a few minutes. [Laughter.] Mr. COWAN. Very well. Mr. POMEKOY. I desire- Mr. COWAN. Oh, I hope the Senator from Kentucky will be allowed to make a speech. I shall be exceedingly sorry to see him prevented from en joying that rare privilege. [Laughter.] Mr. POMEROY. I merely wish to make a sjngle correction, if I may be allowed to do so. I want to say to the Senator from Illinois, the chairman of the Committee on the Judiciary, that the modification which has been made is not such as I understood him to say it was. Mr. DAVIS. I do not yield the floor. The VICE-PRESIDENT. The Senator from Pennsylvania having yielded the floor to the Senator from Kentucky, the latter is entitled to it and will proceed. Mr. DAVIS. It seems to me that a good many questions have been brought into this debate that are foreign to the point in issue. The presidential election has taken place; it remains now to count the vote. The question is how the vote is to be counted, and by whom the vote is to be counted. Preliminary to the count of the vote the Presiding Officer of the Senate has by the Constitution one office to perform, and what is it ? Simply to open the votes. He is to perform no "other function or act than to open the votes. When the votes are opened they are still to be counted, and who is to count them ? The two Houses in convention are to count them. I have no doubt of that fact. And the question now under consideration is, have the two Houses of Congress in their legislative capacity the power to lay down certain rules by which this office of counting the vote may be performed ? I think that they have. The clause in the Constitution read first by the Senator from New Hampshire and subsequently by other Senators seems to me to confer full and ple nary power in relation to the manner of count ing the votes upon Congress ; and Congress may declare by its legislative action certain rules to regulate the count of the presidential vote. This may be declared by an act of Con gress or by a joint resolution passed previous ly for the purpose of convenience and to pre vent disorder in the matter of counting the vote. The vote is to be counted in the pres ence of the two Houses, and would it not be competent for Congress to pass a law directing that as the certificates are opened by the Pre siding Officer of the Senate they should be counted in the presence of the two Houses by the Secretary of the Senate and the Clerk of the House of Representatives jointly? Mr. COWAN. Will the Senator allow me to ask him how the question can possibly be raised, until after we get into joint convention, whether the vote of a State shall be counted or not ? Mr. DAVIS. Just as any other question could be. Mr. COWAN. I ask the Senator whether to-day Congress could pass a law that the vote of Pennsylvania should not be counted for any reason whatever? Mr. DAVIS. It could if it pleased. Mr. COWAN. Would the law be valid ? Mr. DAVIS. It is only the vote that is counted that rules the presidential election. Whatever vote is counted in that election de cides the question of the election to the Presi dency. Who is to perform that office of count ing the vote ? I maintain that it is to be done by the two Houses, or in the presence of and under the supervision of the two Houses. The question now is whether the two Houses, in their legislative capacity, may lay down cer tain principles and regulations to prevent dis order and confusion in the act of counting the presidential votes ? 1 think they may. Where the Constitution directs an act to be done it invests all needful power to enable that act to be conveniently done. As I understand the Constitution, the power to count the votes is vested in the two Houses of Congress. That- is a power to be executed under the Constitu- ABRAHAM LINCOLN, PRESIDENT. 203 tion. A general provision of the Constitution provides that Congress may pass all laws ne cessary and proper to carry into execution any power vested by the Constitution in the Gov ernment of the United States, or in any of the departments or officers thereof. This power to count the presidential votes is certainly vested by the Constitution somewhere. It is vested in the two Houses. The manner in which the count shall be made is not prescribed by the Constitution. Then comes in the gen eral power given to Congress to pass all laws necessary and proper to execute any of the powers vested by the Constitution in the Gov ernment or in any department or officer thereof. I understand that that incidental power is simply proposed to be executed by this joint resolution in declaring certain principles and forms by which the count shall be made. This count is to be made in subordination to the Constitution. The Constitution declares that no man shall be eligible to the office of Presi dent unless he be a native-born citizen or a citizen of the United States at the adoption of the Constitution. Suppose the State of Louisi ana had voted for a man who did not come up to that qualification, who was not a native citizen of the United States, or who had not resided in the United States at the time of the adoption of the Constitution, would it not be the duty of the two Houses, in counting the vote, to decline to count the vote of Louisiana that had been cast for a person for President in direct conflict with the spirit and the letter of the Constitution ? It certainly would. The vote must be counted. How can it be counted until it is ascertained? The vote must be identified. It must be identified and ascer tained in obedience to certain principles of the Constitution. One of those principles is that the candidate voted for must be thirty-five years of age; another is that he must have been a citizen of the United States at the time the Constitution was adopted, or he must be a native-born citizen. Any vote cast in opposi tion to these plain and palpable provisions of the Constitution would be null and void; it would not be a vote for President in conform ity to the Constitution, and therefore it would be void. To ascertain whether this vote is so cast or not, the two Houses of Congress, acting in the count of the vote, must decide whether any State has voted for a man under thirty-five years of age, or voted for an alien, against the provisions of the Constitution. They are to ascertain whether such votes have been" given or not, before they can make a constitutional count of the votes. Now, sir, as -I understand the effect of this joint resolution, it is simply in a form to do that duty ; that is, to ascertain whether the votes of certain States have been cast in con formity to the Constitution or not, and de ciding that they have not been cast in con formity to the Constitution, to exclude them from the count. Some gentlemen here think the election in Louisiana was illegal for one class of reasons; I think it was illegal for another class of reasons ; but as we both come to the same conclusion, it is immaterial upon what ground. The vote of that State is illegal. If I assume that it is illegal on one reason, and the Senator from Michigan [Mr. HOWARD] as sumes that it is illegal upon another reason, I shall not dispute with him about the grounds that brought him to the conclusion to exclude the vote of Louisiana, but I will agree that ha shall vote to exclude it upon his reason and I will vote to exclude it upon mine. But, sir, the position I intended to state and upon which I rely, is simply this ; that Con gress, for the convenience of the two bodies when they are in convention, and to prevent disorder and confusion at the time and place of counting the presidential votes, may pre viously by joint resolution declare certain principles upon which that count shall take place ; that the resolution now under consider ation simply does that, and therefore it comes legitimately and properly within the exercise of an incidental power of Congress to pass such laws as shall be necessary and proper to enable any expressly granted power in the instru ment to be executed ; and it is simply for that purpose that this resolution was offered, and it ought to pass. Mr. POWELL. I am opposed to the amend ment of the honorable Senator from New Jer sey to strike out "Louisiana" from the pre amble, and I am also opposed to the substitute offered by the honorable Senator from Ver mont to the resolution reported by the Com mittee on the Judiciary. The Senator from New Jersey yesterday, speaking of Louisiana, referred to a statement made by General Banks before the Judiciary Committee, in which he declared that the recent elections in that State were conducted without any inter ference from the military ; and he read this clause in the statement of General Banks: " I desire to state in the most unqualified terms that no effort whatever was made on the part of the military authorities to influence the citizens of the State either in the selection of candidates or in the election of officers, and that the direct influence of the Government of the United States was less in Louisiana than in the election, probably, of any other State of the Union." I do not concur with General Banks in that statement, and the paper in which it is con tained entirely overthrows the position taken by General Banks about the non-interference of the military authorities with the election in the State of Louisiana. General Banks, in this paper, tells you that the military authori ties prescribed the qualifications of voters in that State ; that they allowed persons to vote who were disqualified from voting by the con stitution and laws of the State of Louisiana. Under the constitution and laws of Louisiana, persons in the army and navy are not legal voters. General Banks tells you that he modi fied that provision and allowed those persons 204 TWENTIETH PRESIDENTIAL TERM. to vote. He tells you further that the voters were required to take, and did take, every one of them, the oath prescribed in the President s amnesty proclamation of December 8, 1863, and that the military authorities not only pre scribed the qualifications of voters and the oath they should take, but fixed the rule for the eligibility of candidates to office. The amnesty proclamation of the President of December 8, 1863, it will be borne in mind, requires each person to swear not only that he will support all the laws of Congress passed on the subject of slavery, but all the proclama tions issued by the President on that subject or that he may hereafter issue. That was a condition precedent to anybody being qualified as a voter at these elections in Louisiana. Al though these facts all appear in this very state ment of General Banks, he comes here and tells you in another part of the statement that the interference of the Government in the elec tions in Louisiana was probably less than in any State of the Union ! Did General Banks think for a moment that the members of this body were so grossly ignorant of public affairs as not to know that his statement was incor rect? I ask you, sir, what greater interference there could be by the governmental authorities with the elections of a State than to prescribe qualifications of voters different from those prescribed in the constitution and laws of the State? Will General Banks tell me that in any State of the Union (except in some parts of Kentucky, where the military authorities did pretend to prescribe the qualification of voters), the authorities of this Government have the power to prescribe those qualifica tions ? Has it been done in any of the adher ing States save in some localities in the border States? Has the Government of the United States, by any or all of its departments, pre sumed to prescribe the qualifications of a voter in the State of New Jersey, or the State of New York, or the State of Ohio? No, sir. And yet General Banks tells you in this paper, which is relied upon by the Senator from New Jersey, that there was no governmental inter ference with the elections in Louisiana, or, at least, less probably than in any State of the Union. General Banks is greatly mistaken when he asserts that, and the very paper that lie submits clearly and palpably stamps the statement as erroneous. I am opposed to admitting on this floor per sons who are elected under the bayonet in fluence in any way whatever. I very well know that there was no free expression of the people of Louisiana in these elections. I know that they but obeyed the behests of the military, whatever commanders may say about it. General Banks tells you in this very state ment that the military authorities there under took to alter the constitution and laws of the State of Louisiana, and by military proclama tions and orders to pf escribe the qualifications of voters. Does any man tell me that an elec tion held under such circumstances is a free election ? No, sir. My friend from Ohio [Mr. WADE] says it is a farce, and but for its tragi cal results upon republican liberty it would be the greatest of farces. Its effect upon the liberty of the people, and upon every princi ple of self-government and every principle of republican government, is most tragic and dis astrous. While I hold a seat here or have a voice anywhere, never with my consent shall any man take position in the councils of the nation who was elected by force of military power. The military must stand aloof from elections. Let them fight the armed enemies of the country, and let the people in their civil capacity go forward, and, uninfluenced by anything else than their own good judgments, vote as they please. Let the constituted authorities of the States prescribe, as they have a right to do, the qualifications of their voters and of their candidates for office. Whenever you depart from that principle, you stab in the most vital part our system of gov ernment, you overthrow the representative republican system, and you establish on its ruins a military despotism. I will not consent to it in any form or in any manner. So much for the elections in Louisiana. I am opposed to the substitute offered by the distinguished Senator from Vermont to the resolution before the Senate. There is in his amendment a power given to the President of the United States which would enable him, if he had almost any strength, to reflect him self. That amendment declares that the vote of any State which may have been declared to be in rebellion by the proclamation of the President made in pursuance of the act of July 13, 1861, shall not be counted. Now suppose I will merely suppose the case for illustra tion that at the next presidential election Mr. Lincoln should be again a candidate ; and suppose on a general survey of the political field he should find that it was necessary that the votes of New York and Ohio, for instance, should be excluded in order to secure his re election; and then suppose that in order to prevent their votes from being counted, which if counted would certainly defeat his election, he should manage to have a little row kicked up there, and then declare Ohio and New York in a state of rebellion ; what would be the result? According to the amendment their votes could not be counted, and that would -insure his reelection. It is a power which I will never by any vote of mine clothe the Executive with. - For the reasons which I have thus briefly stated, I cannot support either the amendment offered by the Senator from New Jersey or that offered by the Senator from Vermont, but prefer to adhere to the resolution as it came from the Committee on the Judiciary. I believe that the States in revolt are still States of the Union. I believe they are not ABRAHAM LINCOLN, PRESIDENT. 205 out of the Union. I believe, furthermore, that when they choose to lay down their arms and to elect officers of their State governments who acknowledge this Government, and to send members to the House of Representatives and Senators to this Chamber, they have the right to do so, and I believe that they ought to be permitted to do so. While I say that, I know of course that each House is the judge of the qualifications of its members, and each House is to judge for itself whether the resist ance to the Government in any State has sufficiently ceased to entitle it to representa tion here, and hence it is that each case must stand upon its own merits as it is presented here. For myself, I would vote to-morrow to receive Senators in this Hall from every State that is in revolt, provided I believed that a majority of the people of those States, unawed by the military power, uninfluenced by any outward force, of their own good-will, in the exercise of their own volition, had in good faith elected those men in the way prescribed by their constitution and laws. I think, when ever they manifest such disposition to return, a majority of the people will indicate that it is our duty to allow them to return. We, of course, and the other House, must be the judges of that matter to a great extent; we must sit in judgment upon each case ; and we must decide whether or not a majority of the people of the State have ceased their resistance to the authority of the "United States, and whether or not the parties who present them selves were elected by the free suffrages of those people, unawed by the military or any other power. Mr. COWA"N". Allow me to ask the honor able Senator what he would do if a majority of the people of a State were to establish a monarchy ? Mr. POWELL. The Constitution guaran tees a republican form of government. Mr. COWAN". The remedy is to be found in the Constitution, to make war upon it and overturn it. But suppose they persist in it continuously, would the Senator hold them by conquest, or would he help the minority to preserve a republican form of government and control the monarchical majority ? Mr. POWELL. I think it is the duty of the United States, under the Constitution, to see that every State has a republican form of gov ernment, and I would always do my duty as I understood it. But, sir, the question which the Senator puts is not one that has anything to do with subject which I am discussing. I am speaking of facts as they are. I say, be lieving that these States are States in the Union, that they are not out of the Union, whenever a majority of the people in either one of these States shall of their own free-will cease to resist the authorities and Govern ment of the United States, and shall elect of their own free-will Senators and Representa tives to Congress, I will only inquire as to the fact whether they have ceased their resistance and whether a majority of the people have de termined to be loyal to the Constitution and Government of the United States; and that fact being established so as to leave no doubt upon my mind, I would then be ready to ad mit their Representatives as our equals here. That is my notion of the matter, and I believe the proposition presented from the Judiciary Committee is about the best we can pass un der the circumstances. It does not preclude us hereafter from deciding upon any of the questions which have been incidentally alluded to in debate. I supported the resolution in committee, and I shall vote for it here. Mr. COWAN. The inquiry which I put to the Senator from Kentucky I think is one which reaches to the very marrow of this question. The people of a State are divided ; about half of them desire to preserve their connection with the Union, to give it their allegiance ; but the other portion, say a ma jority, refuse, and insist upon secession. We are bound by the Constitution to preserve the Union and to preserve the rights of the people under the Union ; not merely the rights of a majority, but the rights of the people, of all the people, and of any number of the people, .however small. What are we to do? A minority of the people come forward and say, " If you aid us for a while we can preserve this State and keep her in the Union." " But no," according to the doctrine advanced here, "there must be a majority of you before we can recognize you as in the Union." Suppose they answer you, " The majority, by persisting in abandoning the Union, can destroy forever the State and deprive us of our rights which were guaranteed to us as a portion of the people of the State." A portion of the people of Louisiana come here and say, "We are loyal, we owe you allegiance, we have a State government or ganized and in operation, and if you will aid and assist us we will keep it in organization and operation, and we will control and domi nate after a time the rebels and secessionists." What is it proposed to answer to them ? " You cannot come back; there are not enough of you." That will be very poor encouragement for the loyal men of the rebel States to try and bring back their people to reason, and it pre sumes another thing that never was true, that the people, the masses of a country under cir cumstances like those which surround us, ever were in rebellion. The masses of the people even in the Southern States never were in re bellion against the Government of the United States. They never could have been. The masses never go into rebellion unless they have wrongs to redress and injuries to avenge. That was not the case in this rebellion. It is a rebellion of leaders, and the masses are de luded away by falsehoods industriously circu lated everywhere and inflammatory speeches made. It is impossible for them to get back 206 TWENTIETH PRESIDENTIAL TERM. unless we create some such scaffolding in the rebel States as these governments of Arkansas and Louisiana will furnish. We ought to cul tivate them. We ought not, I think, to stop and inquire whether they constitute a tenth or a twentieth of the inhabitants ; we ought to make the most of them. They are all we have there ; and if we repulse them and take away their authority, what is left in those States, what have we there ? Will not those loyal men say: "What is the bounty to loyalty that you propose? Why, that we wait without any State government, that we submit to this military rule and dictation, which is so much deprecated, until we can convert more than a majority of the people to establish a State government." Mr. President, I have one more word to say, and I was about to say it when I yielded the floor to the venerable Senator from Kentucky [Mr. DAVIS]. This question, I take it, is here prematurely. It ought not to be here at this present time. It is not legitimately raised now. It can only be raised, I take it, in the joint convention which will meet on next Wednesday for the purpose of counting these votes. The Constitution provides that the President of the Senate shall, in the presence of the Senate and House of Representatives,, open all the certificates, and the votes shall then be counted, not by the Vice-President, for that does not follow, but shall be counted by that body there assembled in joint conven tion. Are we to undertake to decide before hand what shall be done, without knowing what votes are to be presented there ? We cannot tell what votes you have now in your drawer, Mr. President, to be presented to that convention. We cannot tell whether the Gov ernors have returned them. We cannot tell whether you have received them by mail or received them by the hands of the Governors, or whether you have received them from the district judges, who are to hold them as a last resort, so that you may get them. W T e cannot tell anything about that. Then why raise the question ? Mr. SHERMAK I should like to trespass on the good-nature of my friend from Pennsyl vania to ask him a question. As I saw an ex periment of this kind once tried, I should like to ask him, if this power of ours can only be exercised after we have formed a joint conven tion, what rules would regulate the conduct of that joint convention? I will tell him a little circumstance which occurred eight years ago, when a somewhat distinguished individual of his own State was elected President of the United States. I was then a member of the House of Representatives. The Senate came into the Hall of the House with great form and ceremony, two and two, Mr. Mason, of Vir ginia, the arch-traitor, at their head. He took his seat as President of the Senate by the side of Mr. Speaker Banks. A question arose as to the vote of the State of Wisconsin. On ac count of a heavy snow-storm, the electors of that State could not meet on the day fixed by law, and consequently the vote was not cast on the day prescribed by law. When that fact appeared on reaching the vote of that State, a row, as we called it in the House, commenced. Mr. Humphrey Marshall wanted to make a speech and addressed u Mr. President." Mr. Mason refused to recognize him, but Mr. Banks recognized him ; they were both sitting side by side. Then some Senators wanted to say something, and in five minutes we were in such complete confusion that Mr. Mason left his place at the Speaker s desk, went out, some of the Senators following him, and some remaining behind, amid the general jeers of the whole convention. That was the condition of affairs then, and it will be the condition of affairs perhaps next week if we leave this ques tion open. As I happened to be present at that scene and saw it, I want to guard against its recurrence. Can the Senator tell me by what rules the joint convention is to be governed ; how they shall vote, whether per capita or by States ; who shall preside ; who shall put questions ; whether the rules of the Senate as to debate shall prevail or the rules of the House of Rep resentatives ; because if the rules of the Senate prevail in the joint convention, we never could get through until a second President was elect ed ? Surely that would be so in a convention of two hundred men, when we find it very difficult here in a body of forty or fifty to get to the end of any controverted matter. The votes would not be counted that day if the rules of the Senate prevailed as to debate, and the law prescribes that they shall be counted on that day. Who would put an end to the discussion ? The question came up in the in stance I put, when Mr. Humphrey Marshall proposed to speak and the President of the Senate would not recognize him, and would not recognize a Senator, and the Speaker of the House did recognize Mr. Humphrey Mar shall ; and the consequence was we got into disorder and confusion, and the joint conven tion broke up. It was one of the most ridicu lous spectacles I have ever seen in a legislative body, and I hope never to see another such. Mr. COWAN". I am only to take the Con stitution as I find it written ; and it is no argu ment to me that a general law has not been made by which to regulate the proceedings of this joint convention, if such a one is neces sary. Perhaps the legislative department in this case has not deemed it necessary that there should be a general law to regulate the action of that convention when it was in session. Yet they are perfectly competent to make it. Per haps they could not foresee that it would be have in such an extraordinary and ridiculous manner as has just been represented by the Senator from Ohio. What I mean to say is, that whether it has any law made beforehand to govern its action or not, it is unquestionably ABRAHAM LINCOLN, PRESIDENT. 207 clothed with the power of receiving there and counting the votes. I have no objection to the passage of a law by Congress that the Vice-President of the United States shall preside in that convention, or that the Speaker of the House shall preside in it, and that the rules of the Senate, or the rules of the House of Representatives, shall be adopted for its governance. If the disorder spoken of did occur, why did it occur ? It did not occur because it was improper to clothe that body with that power, but it occurred because it was casus omisnu, no provision had been made for the governance of the body in joint convention ; but that it has the power, and that it is the only tribunal which can count these votes and can settle the question as to what votes shall be counted, I take to be in disputable from this provision of the Constitu tion. If there is the mischief attendant upon it that has just been described, as I have stated before, that mischief should be cured by law. It is not to be cured by our usurping the functions of that convention while we are separate and distinct bodies. It is not for us to provide by a law for this, particular case, and to decide before we go there what votes shall be counted, because if the convention cannot decide that question what is it there for ? Some honorable Senators have said that the members of the two Houses are there present only as witnesses, idle spectators of a scene in which they can take no part, and over which they have no authority. If that be the case, then there is one instance in this Constitution, magnificent monument of human wisdom as it is, which is utter, sheer absurdity. Are the two Houses there, as the jockeys say, merely for the purpose of " seeing fair," or are they there in some capacity in which they have power and authority to determine such ques tions as may arise while the counting is going on ? I take it they have the authority, and that if they did not adopt rules for their gov ernance, if they did not appoint a President, if they only went there loosely as a mob, a herd of men without organization, they could not expect to adjourn in anything less than the row which resulted upon that occasion. I have only to repeat that I think this ques tion is premature, that it is here improperly, and that nothing but mischief will come of it if we entertain it in this shape ; that no mat ter what we do with it, it will have no practi cal bearing upon the great end for which the whole of this machinery was created, that is, the election of a President and aVice-President. That election will not be influenced a hair s breadth one way or the other by our deter mination, no matter what we may do, and as to the mischief of this thing, the mischief is just as much on one side as the other. If the President may fabricate fictitious States in order to give him votes, so if we have the authority to declare who shall and who shall not vote, we may destroy actual and loyal States in order to carry out our party pur poses. I hope neither of these propositions will pass. Mr. WADE. Mr. President, about a year ago Congress, anticipating that such questions as this might arise, in my judgment very wisely framed a law and passed it through both branches with the hope of settling this matter in advance. That law was made upop great deliberation in both bodies of Congress ; it received a very large vote in each House. It was very proper in my judgment that Con gress should fix the matter then, because every body could anticipate that a question of the most serious danger to the Republic might arise in the then approaching presidential elec tion which might endanger the stability of our Union, and which might under certain circum stances precipitate these Northern States into a civil war. Apprehending that such a ques tion might arise, Congress wisely, in my judg ment, provided against it ; but the President did not agree with them, and he vetoed their bill, leaving the question open with all its dangers, which, thank God, have not arisen. What would be our condition now, if in the presidential election which has just passed the vote had been so balanced that in order to carry the election for one or the other of the candidates it was necessary to resort to some of the States that are now sought to be recog nized as part and parcel of the present Govern ment ? Could we ever have settled the question ? I fear that we could not, and I was the more apprehensive of it because I was present on the occasion to which my colleague has alluded. I saw even there, when we were in joint convention, and there was an irregu larity as to the vote of a single State, a mere technicality and nothing more, it created a sensation in that body which threatened the stability of the Government. There was not a right-minded man present there who did not fear that even then that technicality, which would not affect the result whichever way it was decided, might lead to the setting up of pretensions which were dangerous to the sta bility of the Government. Now, sir, it is time that we should settle the question by some legislation that will reach the whole subject. In my judgment the propo sition of the Senator from Vermont is the wisest, the most far-reaching, and the best adapted to settle the controversy for the pres ent occasion and for all time to come. I do not like to have such questions unsettled so long. I suppose the bill to which I have referred was vetoed by the President because Mr. JOHNSON, and others. It was not vetoed. Mr. WADE. I speak of it as having been vetoed, because I do not care much about the form of the thing. It amounted to a veto. He put the bill in his pocket. Mr. JOHNSON. If he had vetoed it, it might have been passed over his head. 208 TWENTIETH PRESIDENTIAL TERM. Mr. WADE. "We might or might not Lave passed it over the veto. The President pre vented our making it a law, and he did so con stitutionally. He did not transcend, in that respect, the powers which the Constitution vested in him. We passed the bill less than ten days before the session expired, and there fore he had a perfect right to withhold his assent from it, and give us no reasons for so doing. He chose to do that, and, as I suppose, he did it in defense of the proclamation which he had put forth, declaring that whenever a tenth part of the people of a State would come back, he would recognize them as the State, and as part and parcel of this Government a proposition which, with all my respect for the Chief Magistrate, I am bound to say is the most absurd and impracticable that ever haunted the imagination of a statesman. A man imbued with republican principles must know that the foundation of all free govern ment depends upon the elective franchise. The ingenuity of man has failed to devise any other way whereby people can govern them selves except submission for the time being to the will of the majority, constitutionally and legally expressed. If you cut loose from that principle you have nothing else to regulate your conduct. So far as human sagacity in the way of government has yet gone, I say, if you cut loose from that great principle there is nothing left, and all before you is open sea, all anarchy, all confusion ; and I must say of that proclamation of the President that it was the most contentious, the most anarchical, the most dangerous proposition, that was ever put forth for the government of a free people. What, sir, one-tenth part of the people of a State govern the rest ? The thing is impossible, impracticable ; it cannot be done. Take away your military power from those States, with draw your army, and leave the one-tenth to govern the remaining nine-tenths in the State, and where would they be? The result would be to sacrifice every Union man in the South ern States. When the General Government abandons them, when it leaves the one-tenth in the hands and under the dominion of the nine-tenths, what will be their condition ? I had a conversation with the now Vice-Presi- dent elect of the United States on that subject, and with other gentlemen on the Union side in the Southern States, and I do not know of one of them who was not filled with the deepest apprehension that if this principle should pre vail they would be annihilated by the nine- tenths. Can any portion of the territory of a State attempt to govern the whole ? Suppose you have got one loyal county in a State, can it control the destinies of all the rest of that State ? If you have by military authority within the lines of your encampment a great city or a por tion of a State where there is a population, is it very difficult for the President or for the commanding officers there to get up all the paraphernalia of a State upon a ten-acre piece of land ? When you have done that, and un der the shadows of your armies attempt to elect all the magistrates and all the officers necessary to perfect the machinery of your government and put it in operation, can you be so blind as to suppose that when you have by military power, for it is nothing else, clothed these men with authority to govern, it is a re publican government? Sir, it is just as much a military government as it was before you went through the farce of selecting those offi cers. There is your military governor ; has he ever been withdrawn from Louisiana ; or if another governor has been substituted, by whom was he substituted? By the Commancl- er-in-Chief of all the Armies of the United States. When the mandate went forth from the President to Mr. Hahn, "Be Governor of that State," he did not consult the Senate, he did not consult anybody in particular, but the mandate issued from the President of the Unit ed States unaided, unknown, uncounseled by anybody, 4t Mr. Hahn, be Governor of that State, call a convention, declare what your status shall be in the Eepublic, elect your Representatives, organize in form the shadow of a State government, and you shall be a State government." They could make out the sem blance, but it lacks all the reality of a govern ment, because it does not represent the will of the people; or at least we have no evidence that it is the will of the people of the State. There is no alternative. If you have a re bellious people who are determined that they will not submit to the laws and authority of the General Government, if a majority of a State are thus inclined, a free government in that State is impossible. You need not talk to me about your one-tenth. The Senator from Pennsylvania wants to know if it takes a majority to govern a State. I wish he was here, because I want to put the question to him, how do you understand it ; " how read- est thou ; " is there any principle of free gov ernment that has decided that anything less than a majority of the people of a State, or of the voters of a State, can govern its desti nies? I mean upon republican democratic principles. I speak not of the farce of a civil government overshadowed by a military gov ernor, a wheel within a wheel, a military gov ernment dominating your whole political com munity, and, inside of that and under it and subordinate to it, a civil government pretend ing to be a free government ! I say it is a farce ; it is unworthy of the American Senate to give it a moment s consideration. Let us look the fact right straight in the face. You can have no peace, you can have no free government, you can have nothing but the shadow and semblance of one, until the ma jority of the people of a State are loyal. Why make this false pretense? It is a government upon false pretenses. Withdraw your Army from Louisiana to-day, and what would be its ABRAHAM LINCOLN, PRESIDENT. 209 condition ? Have you any evidence as to what that people would do to-morrow if you with drew all your military force from there ? Have they voted, have they given any evidence to show that they are loyal to the Government of the United States ? Not a lisp of it, not a word of it. More than four-fifths of the ter ritory of that State now is trampled down be neath the feet of military power, just where it ought to be for its rebellion, and you dare not withdraw your armies from there ; and yet you talk of free republican State government there ! Sir, you cannot have it. Mr. DOOLITTLE. If the Senator will al low me, I should like to ask him a question on that point. He seems to think the presence of an army is opposed to all free government. Where would the Senate and House of Repre sentatives be if you withdrew the Army of the Potomac ? Where would they have been any time these last three years? Is there no army here? Mr. WADE. We have not, thank God, been captured yet. This capital has not been over run yet by the enemy. If it had been, and Mr. Davis s army were predominating in this capital, I think our legislation would be a mere sham. Does the gentleman suppose that our legislation would be endured, provided the armies of Mr. Davis predominated in the capi tal ? That would be like Louisiana now, be neath the feet of the Federal Government. They cannot act freely. That is what I con tend for. f Neither could we if we were in like condition, and if we pretended to be a free peo ple it would be the merest mockery and farce. These armies somehow must be got rid of be fore legislation can take place. Where armies are, the law is silent. But I do not wish to argue this question ; I have argued it ; the Senate and House of Rep resentatives have argued it, and we have sent forth our will on this subject. I am aston ished to find now any considerable difference of opinion in a body that so unanimously passed the bill to which I have referred, less than a year ago. Has anything occurred since to change our opinions ? It is true that there has been an effort in Louisiana to get up a delega tion, and they have come here. How much of the State^ do they claim to represent? How much of it was able to hold a free election ? Can you really claim that that portion of it was free even where your army was? The Senator from Kentucky [Mr. POWELL] has al ready told you that you did not govern accord ing to the laws of that State; you did not even found the basis of your government upon the laws of the State, but your military au thorities regulated the elective franchise there. Is there any freedom in that ? No, sir. I make these observations because I am ex ceedingly jealous of military power, and I never will consent that a people predominated over by a hostile military power shall found an American republican State. They cannot do 14 it. To do it, they must be free as the air, and until they are in that condition it is impossible to have a free Government there ; and until some evidence shall be presented to us that such is the condition of a majority, you may talk about your State government until dooms day; but every man imbued with American principles of democracy knows it is a falsehood, a mere semblance, and not a fact. We are asked if the loyal men in a State ought not to govern it, whatever their numbers may be. I know it is very unfortunate for a man to locate himself in a community of law breakers, whether they commit one kind of crime or another. If a great majority of them are traitors to the best Government on God s earth it is his misfortune that he has fallen into such a den of thieves. Statesmen pro ceeding upon general law and regulating great communities cannot take into consideration the fact of the individual hardship of this man or the other. He is surrounded by a great number 6*f men who outvote him, who declare that the Government under which he has lived is all wrong. They have declared war against the old Government. He may not concur with them, but if they outvote him and outfight him, and establish another Government, what remedy have you but that of force ? You can not select him out and protect him. If he cannot live there, he must make his way as best he can out of the community, and you cannot make laws to reach his individual case when there is a majority of his neighbors against him. How can you prosecute a man there for treason ? How can a man who is injured in that State because he is a loyal man, a man who is tres passed upon, whose person is violated by those who are in flagrant war with the United States, obtain redress ? Are their courts open to him for the redress of his wrongs ? Can he have redress ? You know he cannot. What a farce, then, to contend that because there are a few Union men scattered through these com munities a statesman can undertake to protect each one in his individual rights ! The thing is impossible ; the statesman that conceives it is blind. If a majority of the people where I live and from which I come provided the supposition can be entertained for a moment or a controll ing number of them, should turn violent traitors to the Government under which we live, what rights should I have, claiming to be a Union man ? I might endeavor to maintain the laws of my country ; but in that case they would have declared that to be a crime punishable by imprisoment or death, and I, standing by the old Constitution, should be amenable to this vile law of theirs. Could you rescue me? Could you say that there was a good Government there ? Could I appeal to the courts admin istered by traitors and get my rights there as a Union man ? The thing is impossible. Why do you struggle to maintain impossibilities ? 210 TWENTIETH PRESIDENTIAL TERM. Sir, these States must remain under military dominion, but I hope with all the equities that can be extended to a people thus unfortunate until such time as they manifest to the people oJ the United States that they are able to govern themselves properly and subject to the laws of the General Government. There is no middle course. The bill which we passed last year provided for that. We knew that nothing less than a majority at least of the loyal men could maintain a loyal State government, because we knew of no rule except that of proceeding by majorities, and therefore we provided in the bill that whenever the provisional governor be lieved there was such a majority, it should be his duty to appoint commissioners to take a cen sus of the State and ascertain the number of the people ; and if there was a majority who were willing and anxious to submit to the Gen eral Government, a convention should be called and should be invested with immediate power to frame a government upon democratic prin ciples, in their own way. That is the just and equitable bill which the President vetoed in order to vindicate his anarchical principle of ten per cent, of loyalty. This resolution, if amended as proposed by the Senator from Vermont, meets my approba tion more fully than any proposition which has been offered, and therefore I shall vote for it. Gentlemen have spoken of South Carolina, and said they cannot recognize her nqw, and they would not count her votes. I think the Sena tor from Pennsylvania said he would not count the votes of South Carolina if she sent them here. Why not? What is the difference be tween this case and that of South Carolina? Can anybody tell me ? There is territory enough under the flag of the United States in South Carolina to get up a State Legislature just as good as that of Louisiana. We have nearly as much of South Carolina under the dominion of our flag as there is of Louisiana. Why then reject the one and admit the other ? They both stand upon like principles. If you only meas ure by acres what dominion we have, what difference is there ? In my judgment, the only sensible plan is to leave these communities until in some way we can have at least reasonable evidence to show that a majority of them are loyal, and in a condition to maintain a free republican govern ment of their own. Then I shall be the first man to reinvest them with the power. Let them have it so. Nobody regrets more than I do that any State of this Union has placed her self in a condition where we cannot trust her with the power to govern herself. I wish to God we could! Whenever it can be done I shall be the very first man to claim, as I have always claimed, that the people shall govern themselves wherever they can do it ; nor will I yield to military despotism or to outside domination and pressure, getting up the sem blance of a Legislature and calling it a fact. It -Is not a fact, and your legislative action cannot make it so. I thank God that in the last presi dential election we were strong enough to carry our principles through, so as not to in volve us in this question which might have launched us in civil war at the North. Let us keep clear of all such questions. Let us settle now and forever the principle that the Presi dent of the United States cannot in times of civil war, wherever he happens to have an army in a State, improvise by military force a Legislature, and call it the power of a State in such sort as to count that semblance in his favor as a fact. If it were attempted I know for one that I would not put up with it. I ask any Union man on this floor, suppose the States which now claim to be represented here had chosen electors in favor of General Mc- Clellan, and given him their votes, and those votes would have elected him President, would we submit to it? I do not believe there is a man on this floor who would. There is not one here who would not spill the last drop of his blood before yielding to such a thing. We would have said at once, " These communities were improvised ; these powers were conferred on them by the military power of the United States ; they do no represent the people, and, therefore, they shall not be represented on this floor or in the electoral college." Mr. JOHNSON". It would be the same thing, I suppose, if those votes would have elected Mr. Lincoln. There would be the same oppo sition. Mr. WADE. Just the same ; and I intend to say that although I was strongly against Mr. McClellan and in favor of Abraham Lincoln, yet if it, had taken these semblances, these counterfeits, to make out his title to the Presi dency, before God I would not have consented to receive them. If the man whom I opposed had received the votes of the nation, he should iave had the position, and that would be the feeling of every Senator here, I have no doubt. There is not a man here now who will rise in his place and say that if these votes could have been so changed as to elect our opponent we would iave yielded to such a state of things. Would any one have done it ? I want to hear the Senator who will rise and tell me that he would have permitted these counterfeits, these disloyal States, these States which have declared war upon the General Government, to select a President for us. I say they have declared war against the General Government and they iave never revoked that declaration of war, ? or I believe there is no one of these States which has yet revoked its act of secession and declaration of war. It is important to know how that fact is. Have the people that claim ;o be represented in this body as a State by my vote repealed their act of secession and war? Are gentlemen here contending that men in flagrant war against the United States shall send a delegation here to represent them ? s that so ? If nobody can answer my question will apply to the case a well-known princi- ABRAHAM LINCOLN, PRESIDENT. 211 pie of law. The last we heard from them was that they had declared themselves out of the Union, and in flagrant war with the Union, and if nobody can show the contrary, that state of things exists to-day, for whoever contends that a state of things once proved to exist has been changed must submit to the fact that it exists now, unless he produces proof to the contrary. | Mr. HENDERSON". I will state,_ with the Senator s leave, that my understanding is that Louisiana, Arkansas, and Tennessee, all three, by their conventions, have passed an ordi nance repealing the ordinance of secession. By stating that fact I am not attempting to confute the argument of the Senator, but I merely state the fact as a fact. My recollection is that all three of them have done so. Mr. "WADE. I do not. know whether it is so or not, but it is a mere sham if they have done so. They might as well have done that as any other part of this business, because all that was done by such voters as your military power prescribed, and they would have voted precisely as they were wanted to vote, wheth er to repeal the ordinance of secession, or to elect members to come here and claim seats. It is all of a piece. The great argument against it all is that these men do not represent the people of the State. The Senators who claim seats here from Louisiana cannot assert that they are here by the assent of a majority of that people fairly expressed. They represent nothing but the military power of the United States, and God knows that if I can prevent it they shall not sit here upon equal terms with me, who claim to be here by the voice of a majority of the State to which I belong. I will have no such company if I can help it, nor shall they ever be recognized by me. Sir, this great question should be settled now and forever before we meet in joint convention. Mr. DOOLITTLE and Mr. WRIGHT sought the floor. The VICE-PRESIDENT. The Chair will award the floor to the Senator from New Jersey, both he and the Senator from Wiscon sin rising at the same time, and the Senator from Wisconsin having already spoken upon the question. Mr. WRIGHT. I move that the Senate do now adjourn. Mr. TRUMBULL. I ask the Senator from New Jersey to withdraw his motion for a moment to allow me to say one word. Mr. WRIGHT. Certainly. Mr. TRUMBULL. I trust that we shall not now adjourn. This question ought to be settled. Let us sit here and dispose of it. If gentlemen wish to make remarks let us go on until we can get a vote. I think we had better hold on. I hope the Senator will not persist in his motion. Mr. WRIGHT. I renew the motion to ad journ. Mr. TRUMBULL called for the yeas and nays, and they were ordered ; and being taken, resulted yeas 16, nays 25 ; as follows: YEAS Messrs. Anthony, Chandler, Dixon, poo- little, Grimes, Harlan, Harris, Henderson, Hendricks, Howard, Howe, Nesmith, Pomeroy, Ramsey, Stun ner, and Wright 16. NAYS Messrs. Buckalew, Clark, Collamer, Con- ness, Cowan, Davis. Farwell, Foster, Johnson, Lane of Indiana, Lane ot Kansas, Morgan, Morrill, Nye, Powell, Sherman, Sprague, Stewart, Ten Eyck, Trumbull, Van Winkle, Wade, Wilkinson, Willey, and Wilson 25. ABSENT Messrs. Brown, Carlile, Foot, Hale, Harding, Hicks, McDougall, Richardson, Riddle, and Saulsbury 10. So the Senate refused to adjourn. Mr. COWAN. The honorable Senator from Ohio is mistaken when he supposes that I said I would not count the vote of South Carolina in the coming convention. Mr. WADE. Some gentleman on that side of the question said so ; I thought it was the Senator from Pennsylvania. Mr. COWAN. It is not very material; I merely wished the correction to be made. I have only to say that if South Carolina was in the condition of Louisiana and Arkansas, if her capital, as I hope it will be shortly, was in the possession of our armies, if there was no rebel government within her borders, if there was one-tenth of her people willing, anxious, to establish, organize, get up, and sustain a State government, I would receive her vote; I would acquiesce under the proclamation of the President, although perhaps if I had been making that proclamation in the first place, I would not have couched it in his phrase, I would not have subjected it to his terms ; but as he has done it, as he has invited these people to enter upon the work on that basis, I am willing in good faith to carry out the stipula tions that he has made with them. I would recognize them, and I would do as I believe he would do if he were a member of this body he would submit to that vote. I do not see why he should not do so, and I have no doubt he would. That is all that I desire to say, except this : that these governments having been formed, a nucleus around which the loyal men are to gather, and clothed with the authority which is so potent among men, and which is so well calculated to bring them to any cooperation, I think they ought to be encouraged, and en couraged by all means. Mr. WADE. Will the Senator permit me to ask him a question ? Mr. COWAN. Certainly. Mr. WADE. The Senator says he would permit one-tenth of the people to govern the State. Now I want to know of the Senator what protection that one-tenth will have when you withdraw all external power from them, and leave them to themselves? What chance will they have with the nine-tenths opposed to them? Mr. COWAN. That is the very question that we must now meet. It is the question 212 TWENTIETH PRESIDENTIAL TERM. now whether we will maintain State govern ments there in connection with the Union or whether we will treat these people as a con quered people, as conquered provinces ; wheth er we will assume the task of governing them entirely or whether we will do that which th President is endeavoring to do now. I am very free to say that I am in favor of his plan I very much prefer it ; and I have no doubt that the one-tenth of the people of a State or ganized with the reins of State government in their hands, the means of enforcing its author ity, aided by the General Government, will finally bring back all these States to obedience, allegiance. I have no doubt about it. But re pulse this one-tenth, repulse the loyal people of the States who are endeavoring to bring them back, drive them away into rebellion, what then ? If you have not the one-tenth, you have nothing. If you have not these peo ple who are your friends in Louisiana and Arkansas and the other States, whom have you ? Are you determined to drive them all into utter and inextinguishable rebellion, or are you willing that the repentant, as well as those who have always been loyal, shall come back and eadeavor to establish themselves in such form that the Union may be restored ? To state the question, in my judgment, is to answer it. It is said that the tenth of the people do not represent the whole people. They may not represent the whole people, loyal and disloyal, but they represent the loyal people, and it is /the loyal people of these States for whom we have made this tremendous struggle. Is there a Senator on this floor who would have em barked on this war if it were not to rescue the loyal people of these States from the usurpa tion which oppressed them? Certainly not. What right should we have had to do so ? If the whole of this people had gone away into secession, what right should we have had to restrain and control them? We began with the belief that this was a conspiracy on the part of a few to lead away the masses, and that the masses, so far as they had an opportunity of expressing their pref erences and giving their opinions by their votes, were loyal, and it was a contrivance and conspiracy that led them away into rebel lion; and now, when that is broken up, when they are willing to come back, I am willing to receive them as they come, and I am not dis posed to cavil upon the ninth part of a hair as to whether they constitute a majority or not. It is enough for me to know that they are loyal people, and that they desire the restora tion of the Union ; they desire to be reunited to the great body-politic as members, part and parcel of it, and, if they represent the loyal people, it is enough. Mr. SHERMAN. I am afraid we shall not get through with this matter to-night, and there are two bills which I am anxious to have taken up and acted on, and I therefore ask the indulgence of the Senate to allow the bill fix ing the duty on printing-paper and the legisla tive, executive, and judicial appropriation bill to be now taken up and made the special order for to-morrow at one o clock. Mr. WILSON. Let us vote on this question. Mr. SHERMAN". My impression is that this is going to lead to a general debate, and I do not think it ought to stand in the way of or dinary legislative business. I am willing to have it go over and occupy the morning hour to-morrow, but I want an arrangement made by which the bills that I have referred to may be considered. Mr. TRUMBULL. I cannot consent to the proposition of the Senator from Ohio that this resolution shall go over and occupy the morn ing hour to-morrow. Every person who has spoken on the subject regards it as necessary that we should do something to settle this question. I will state to the Senate that a committee has been appointed to devise the mode of canvassing the votes for President and Vice-President on Wednesday next, the time fixed by law for that canvass. That com mittee cannot act very well while this proposi tion is pending ; and if they do act they will have to report some way to canvass the votes, and then this difficulty will be upon us again. We ought to settle it, and we ought to settle it now. It is important that we should settle it at once. We have but a few days to make the necessary reports and get them adopted, to canvass the vote in the usual way; and if we cannot sit the resolution out to-night, which I should prefer, I shall insist, so far as I am concerned of course the Senate will control it that we go on with it to-morrow to the exclusion of all other business until we dispose of it. I think no other business should interfere with this question. Mr. SHERMAN. I certainly have not taken any time in the discussion of this matter. I had hoped it might be voted on to-day, but it has occupied two days, and from our recent experience on a resolution on the passage of which not even the yeas and nays were called for, but which was debated here for ten days, my impression is that this resolution will be pending on next Wednesday, when we are eady to form in procession to march to the House of Representatives to count this vote. Mr. JOHNSON. Hardly. Mr. SHERMAN. It looks very much like t ; and therefore I think we had better pro ceed with other business. The VICE-PRESIDENT. The Senator from 3hio asks the unanimous consent of the Senate to proceed to the consideration of the bill named by him for the purpose of making it a special order. Mr. TRUMBULL. I object. The VICE-PRESIDENT. Objection being made, the bill cannot now be taken np. Mr. SHERMAN. Can I make a motion at ;his time to postpone all other orders for the ABRAHAM LINCOLN, PRESIDENT. 213 purpose of proceeding to the consideration of that bill ? If I can, I make that motion. The VICE-PRESIDENT. The Senator from Ohio moves to postpone the further considera tion of the pending bill, for the purpose of pro ceeding to the consideration of the joint reso lution relating to the duty on paper, and that is the question now before the Senate. Mr. TRUMBULL. I hope the Senate will not agree to that motion. Mr. CONFESS. I feel a great interest in the settlement of the question now proposed to be called up by the honorable Senator from Ohio, the chairman of the Committee on Finance, but it appears to me that his own suggestion in regard to this measure is the greatest reason why we should continue and resolve to come- to a vote upon it. It is cer tainly a question of no secondary importance, but on the contrary a question of the first con sequence, and I cannot vote as I usually do with the honorable Senator to take up meas ures from the Committee on Finance. I desire, with the leave of the Senate, for a reason that will be apparent, to ask leave to be excused, before I take my seat, from serving further upon the select committee on slavery and freedmen. There are other Senators that have arrived here who have not a place on committees, and I do it with that view. I hope the place will be filled by motion from some Senators. I ask to be excused from serving on that committee. The VICE-PRESIDENT. Is there any ob jection to receiving that motion ? The Chair hears none. The motion to excuse the Senator from Cali fornia was agreed to. Mr. SUMNER. I move that the Chair be authorized to fill the vacancy. The motion was agreed to by unanimous consent, and the Vice-President appointed Mr. NYE to fill the vacancy on the committee on slavery and freedmen ; he also appointed Mr. STEWART to fill the vacancy on the Com mittee on Public Lands occasioned by the ab sence of Mr. HARDIXG, who in consequence of the state of his health has received leave of absence for the residue of the session. Mr. FARWELL. I suggest to the Senate that a recess for one hour be taken. [" Oh, no!"] The VICE-PRESIDENT. The question be fore the Senate is on postponing the pending joint resolution for the purpose of proceeding to the consideration of the bill relative to the duty on paper. Mr. SHERMAN". I simply want to promote the business of the Senate ; and, as I see some of the members of the Committee on Finance will not vote to take up the bill I referred to, I withdraw the motion in the hope that by to morrow at one o clock we may get a vote on this question, Mr. LANE, of Indiana. I desire to make a motion, and preliminary to that to state in a very few words my position. I am opposed to any legislation whatever upon this subject at this time. The right of the people of a State to vote for President is a constitutional right, and cannot be restricted or modified by any joint resolution of Congress. The right to count the vote in joint convention is devolved on that joint convention, and not upon this Congress. I do not believe that Congress has the constitutional power to say in advance what States shall be counted and what not. I will trust the convention when the certificates are presented of the votes from the several States. I do not believe we have the power here as an act of legislation to control the counting of the votes in joint convention. I therefore move the indefinite postponement of the resolution and pending amendments. Mr. HENDERSON. I move that the Senate adjourn. Mr. TRUMBULL. If the Senator will with draw his motion and let us take a vote on the indefinite postponement of the question, we may settle it. Mr. HENDERSON. I am perfectly well sat isfied we cannot get through with this ques tion to-night. There are several Senators who desire to speak. Mr. CONNESS. Let us try. The VICE-PRESIDENT. The question is on the adjournment, and it is not a matter of debate. Mr. HENDERSON. I insist on my motion to adjourn. Mr. Trumbull called for the yeas and nays, and they were ordered ; and being taken, re sulted yeas 15, nays 21 ; as follows: YEAS Messrs. Anthony, Collamer, Cowan, Dix- on, Doolittle, Farwell, Harlan, Harris, Henderson, Howard, Howe, Powell, Sprague, Sumner, and Wil kinson 15. NAYS Messrs. Buckalew, Clark, Conness, Davis, Foster, Hale, Johnson, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nesinith, Nye, Sherman, Stewart, Ten Eyck, Trumbull, Van Winkle, Wade, Willey, and Wilson 21. ABSENT Messrs.Brown, Carlile, Chandler, Foot, Grimes, Harding, Hendricks, Hicks, McDougall, Pomeroy, Ramsey, Richardson, Riddle, Saulsbury, and Wright 15. So the Senate refused to adjourn. The VICE-PRESIDENT. The question now is on the motion of the Senator from Indiana to postpone the joint resolution indefinitely. Mr. LANE, of Indiana, called for the yeas and nays, and they were ordered. The Secretary proceeded to call the roll. Mr. HARLAN (when Mr. GKIMES S name was called) said : As this is in the nature of a test vote, I am authorized to state that my col league is paired with the Senator from Kansas, Mr. POMEROY, and that if my colleague were here he would vote for a resolution similar to the amendment proposed by the Senator from Vermont. Mr. LANE, of Kansas (when Mr. POMEROY S TWENTIETH PRESIDENTIAL TERM. name was called), said : My colleague is ab sent, having been paired off with Mr. GEIMES. The result was announced yeas 11, nays 26 ; as follows : YEAS Messrs. Cowan, Doolittle, Farwell, Har- lan, Harris, Howe, Lane of Indiana, Nesmith, Ten- Eyck, Van Winkle, and Willey 11. NAYS Messrs. Anthony, Buckalew, Clark, Col- lamer, Conness, Davis, Dixon, Foster, Hale, Hen derson, Howard, Johnson, Lane of Kansas, Morgan, Morrill, Nye, Powell, Sherman, Sprague, Stewart, Sunnier, Trumbull, Wade, Wilkinson, Wilson, and Wright 26. ABSENT Messrs. Brown, Carlile, Chandler, Foot, Grimes, Harding, Hendricks, Hicks, McDougall, Pomeroy, Kamsey, Kichardson, Kiddle, and Sauls- bury 14. So the motion was not agreed to. Mr. WILKINSON. I move that the Senate adjourn. The motion was agreed to, there being, on a division yeas 20, nays 16; and the Senate adjourned. IN SENATE. Friday, February 3, 1865. ( Congressional Globe," 38th Cong., 2d Session, p. 574.) The VICE-PRESIDENT. The hour of one o clock having arrived, the unfinished business of yesterday comes up. The joint resolution (H. R. No. 126) declaring certain States not entitled to representation in the electoral col lege is before the Senate as in Committee of the Whole, the pending question on the amend ment of the Senator from New Jersey (Mr. TEN ETCK) to strike out the word " Louisiana " from the preamble. Mr. DOOLITTLE. Mr. President, the ques tion pending before the Senate will have no practical effect whatever in disposing of the result of the presidential canvass. Whether the votes of the States named in the preamble to this resolution are counted in or counted out, or not counted at all, the result is not to be changed. So far, therefore, as that question is concerned, this whole dicussion is wholly immaterial. The action of the Senate one way or the other has nothing to do with the result. But the honorable Senator from Maryland (Mr. JOHNSON) says that now is the time to fix the law, which shall, perhaps, have effect on some future presidential canvass. Why the necessity of acting upon it now any more than at any time within the next four years ? There can not be another presidential canvass until four years from next fall. Why this haste, and why the necessity now of acting upon a matter which has no practical reference to the present canvass, and can have no reference to any other canvass for at least four years to come ? At any day of any session of Congress from this time forward for four years, we can just as well act on the question as we can act on it now. My honorable friend from Ohio (Mr. SHER MAN) says that, for the good order of the con vention when the Senate and the House of Representatives meet together to canvass the votes, he thinks some legislation is necessary, for, he says, in 1857, when the Senate of the United States under the presidency of Mason, of Virginia, went into the House of Represent atives, some proceedings occurred there that were discreditable and ridiculous, and that Mason, for some supposed offense or other, undertook to take the Senate out of the joint convention and march out at the head of some Senators, they following him two and two, presenting a ridiculous aspect to the country and the -civilized world. They went out amid the jeers of all who were present, my friend says. But 1857 was an exceptional case. We have had eighteen joint conventions of the Senate and House of Representatives ; did my friend from Ohio ever hear of any discreditable pro ceedings on any other occasion than in 1857? Never. Have we no confidence in ourselves ; have we no confidence in the Senate of the United States and the House of Representatives, that they can sit in joint convention and yet not be guilty of any breaches of decorum or gentlemanly conduct? Are we to suppose that now the Senate of the United States has Mason of Virginia to preside over it ? We know who is the presiding officer of the Senate, and we know the Senate; we know the House; and we have as much confidence in them as was felt in any House, or in any Senate, or in any presiding officers of either of the two bodies from the beginning of the Government. I have as much confidence in the present presid ing officers to keep order and decorum in these proceedings as I have in any of the presiding officers of these two Houses from the beginning of the Government to the present time. Mr. President, I said yesterday that, in my opinion, Congress has no power in its legisla tive capacity, acting, as we are now acting, to declare, in relation to votes that have already been given, that those votes are null and void. Sir, the question is not before us; the votes are not before us ; and we cannot act on those votes to ratify or to annul them. The votes were given by the electors of the several States, sealed up under the provisions of the Constitu tion, and sent to the President of the Senate, the seals unbroken, and there is no power that has the right to break them until he meets the joint convention of the two Houses ; and then, under the constitutional provision, they are to be opened in their presence, and I say that it is usurpation on the part of Congress to under take to act upon those votes which are sealed up from them, and which they have no power to look at, either to affirm their validity or to declare them null. I maintain, too, s,ir, that it is a most danger ous precedent for Congress to undertake to speak of votes that have already been given declaring them to be null and void. It is pos sible, as I said before, that by some legislation ABRAHAM LINCOLN, PRESIDENT. in advance of the giving of those votes Con- gress might make provision by law on this sub ject. I have some doubts, however, in relation to that ; but upon that question I shall not oc cupy the attention of the Senate. I said yes ; terday all I desired to say in regard to it. But, sir, I shall come now to the immediate ques tion, the one pending, the question of Louisi ana, which the Senator from NQW Jersey moves as an exception to the other States that are mentioned in this resolution. And, first of all, the interest which I feel in this question is because, in my judgment, the resolution of the Senate upon this incidental question expresses its opinion upon the validity or the invalidity of the constitution adopted by the people of Louisiana. Believing, as 1 do, that that is a most important question ; believ ing, as I do, that it is wholly unnecessary for us now in this incidental way to enter upon the discussion and decision of that question, I think it is unwise to press this resolution at the pres ent moment. But, sir, the question seems to be raised, and gentlemen express their opinion upon it ; and I propose to call the attention of the Senate to some points involved in it, and to some of the facts bearing on the validity of this present constitution of Louisiana. And what are the facts ? The Senator from Ken tucky [Mr. POWELL] declares that this election of the people of Louisiana was carried by mili tary power, by military authority, and is the result of military dictation and military des potism over the people of Louisiana. The Senator from Ohio [Mr. WADE] responds to this with all his heart. He says it is a mere military election, and, more than all, he says it is a miserable farce. Mr. President, we look upon a strange spec tacle here when the two extremes in this body come together in this way. .One would sup pose that Pilate and Herod had joined hands both to attack the Administration in its policy on this subject, and to see if they could crucify the free State of Louisiana. Sir, let us look at the facts of this case, strip off a little of this passionate declamation, and come down to the naked truth. On the 22d day of February a year ago an election was held at which there were cast eleven thousand four hundred and fourteen votes for this constitution of Louisiana. But the Senator from Kentucky and the Senator from Ohio say it was the military authorities that controlled this election in Louisiana. Sir, I take issue with them upon the fact. It is not true that the military authorities controlled the election. The election was fixed for the 22d day of February, says General Banks. Mr. WADE. Will the Senator tell me who authorized the election for a convention ; who initiated it ? Mr. DOOLITTLE. General Banks issued his order notifying the people of the State of Louisiana to hold an election. I am speaking of that election. Mr. WADE. Let ma inquire if the request of a military commander in such a case is not just about equal to a command. Is there any real difference ? Mr. DOOLITTLE. I shall have occasion be fore I ijnish my remarks to discuss this question in the aspect of what my friend calls a military despotism over the people of Louisiana, and I think I shall be able to satisfy him even, al though it is a great undertaking to do it, that the only possible mode in which a military government can be surrendered to the civil ad ministration of the people of a State must be that the initiative shall be taken in the first instance by the governor in military command inviting the people in their civil capacity, to enter upon the election. Mr. POWELL. If the Senator will allow me, I would like to ask him a question. Mr. DOOLITTLE. If it is a question bear ing on this subject I have no objection ; but I propose to submit some observations on the subject, and the Senator can reply when I get through. Mr. POWELL. The Senator has indicated that the Senator from Ohio and the Senator from Kentucky were incorrect in saying that there was military interference. I ask the Senator whether the military authorities did not prescribe the qualification of voters ? Did they not assume by military orders to alter the constitution of Louisiana and prescribe differ ent qualifications for voters from those fixed by that instrument ? Mr. DOOLITTLE. On that point the con stitution of Louisiana was adopted as the rule prescribing the qualifications of voters, with this exception, that the citizens of Louisiana who had enlisted into the armies of the United States were permitted to vote. The only change, the only alteration was, not that citi zens of other States were permitted to vote, but that citizens of Louisiana who had enlisted into the Army and were then serving in Louisiana, shall be entitled to vote. Mr. POWELL. I call the Senator s atten tion to the fact that General Banks states in this paper that they were required to take the oath prescribed in the President s amnesty proc lamation of December 8, 1863, and that of itself was prescribing a qualification of voters different from the prescription made by the constitution and laws of Louisiana. Mr. DOOLITTLE. I will read what Gen eral Banks says : " The order relating to the election is herewith in closed. It was fixed for the 22d day cf February. Three candidates were presented, and the canvass was general and spirited, each party sustaining its candidates by public meetings, precisely in the same manner as in a State unaffected by the revolu tion. " Eleven thousand four hundred and fourteen votes were polled at this election. " The average vote for ten years previous to the rebellion in these parishes was fifteen to sixteen thousand." 216 TWENTIETH PRESIDENTIAL TERM. Eleven thousand four hundred and fourteen voting now where there were but fifteen or sixteen thousand before the rebellion began. " In this election no person voted who was not by the constitution and laws of Louisiana a voter, ex cept one class of persons. These were the soldiers who, as citizens of Louisiana, had enlisted in the armies of the United States. " A provision of the constitution prohibited men enlisted in the Army or Navy from voting. It was understood to be the intention of this provision of the constitution that soldiers or sailors should not become voters under a mere residence in the State while under orders as soldiers or sailors. " While it would be perfectly just that a citizen of another State sent into Louisiana under military orders should not be permitted to gain a residence while acting under these orders, it was not thought to be just that a citizen wlio enlisted in the Army of the United States for the defense of his own State should be deprived by such enlistment of the right of suifrage. It was thought that any Legislature of the State would change that provision, and the order of election directed the change upon this prin ciple." That was the only change that was made by military authority, a change authorizing citi zens of Louisiana who had enlisted in the Army of the United States in Louisiana to vote. We have done the same thing in Wisconsin, in Ohio, in Pennsylvania, in New York, all growing out of exigencies which have oc curred since this rebellion began, passing laws authorizing men, although in the Army of the United States, still to take part in the elections, providing that they should not be deprived of their rights of citizenship because they had enlisted in the Army to bear all the sacrifices which are necessary to defend their country in this struggle. And, sir, I maintain* that there was nothing wrong in this. But even if it were wrong, it did not affect the result in the slightest degree, for there were only eight hundred and eight of all the soldiers who voted. Out of eleven thousand four hundred and four teen voters, I say to the Senator frem Ohio but eight hundred and eight soldiers voted; and do you complain of this as a military elec tion and held under military dictation ? Was the election carried by soldiers votes or by military power and military authority ? These soldiers who voted did not all vote one way ; a part of the soldiers voted on one side and a part voted on the other. They voted with perfect freedom, without any restraint or con straint whatever. There are nearly ten thou sand persons enlisted in the Army of the United States from Louisiana, including both whites and blacks. General Banks says : " Of these, in the election of the 22d of February, eight hundred and eight soldiers and sailors voted at the different military posts. " A separate registry is made of their votes, a copv of which is with the Committee of Elections of the House of Kepresentatives." He says further : u I do not believe that five hundred persons voted in this election of the 22d of February who were not citizens of the State previous to the rebellion, and every candidate for office was either a native of the j State or had been identified with its public affairs for fifteen or twenty years." It was no imported election into the State of Louisiana. It was no election by soldiers or sailors who were under the authority of any military commander imported into the State of Louisiana, It was only the people of Louisiana and the soldiers of Louisiana who were voting upon the adoption of a constitu tion for themselves. All these charges of military usurpation and military dictation, and that it was a mere farce, fall to the ground to gether. They are not true. ; Nor was it an election controlled by Federal office-holders. What General Banks says is true, that the Federal office-holders of Louis iana, civil or military, did not assume to exer cise so much influence upon the result of the election in Louisiana as they do in New York, Massachusetts, and every other State in the Union where Federal officers are appointed. Allow me to read from his statement again on that subject : " Neither of these elections were controlled by the officers of the Government, civil or military. On the contrary, the influence of the officers of the Govern ment, both civil and military, was indifferent, if not hostile, to the organization." We all know that the officers who were appointed in Louisiana under the control of one of the Departments of this Government, taking a certain ground, as they did, in the affairs of Louisiana, looked rather with hostility than with friendship upon the effort at the re organization of that State and the construction of its free constitution, end accordingly we find that " The registrar of voters states that of one hun dred and twenty persons employed in one depart ment of the Treasury offices only twenty-five voted for or against the abolition of sslavery in the election of the 5th of September." How much interest did the office-holders in the State of Louisiana take in attempting to get up this State organization, which the Sen ator from Ohio denounces as a miserable farce, and which the Senator from Kentucky says was a military usurpation? They did nothing at all. General Banks says again : "And in each of the general elections the soldiers who voted followed their own inclination s, as shown by the record, voting for or against the different candidates and constitution as they chose." Does this show that there was a command of some military officer requiring a certain constitution to be adopted or a certain course to be carried, when, of the very soldiers under his command, some were voting for and some against it, voting indifferently, following their own inclinations, without the slightest intima tion of an opinion or wish to control the action of those men in that State ? " At one post the entire vote in the election of February would be in favor of one candidate, while at another military post the larger majority or entire military vote would be in favor of another." This shows that there was no concert among ABRAHAM LINCOLN, PRESIDENT. 217 the military commanders of Louisiana coming from the commander-in- chief of the depart ment requiring votes to be given or a certain constitution to be adopted. There was no concert, no conspiracy, no domination. It is all a false assumption, from beginning to end. I believe there is no man who knows General Banks that questions his word for truth and veracity, and his honor is as unimpeached and unimpeachable as that of any gentleman who sits on this floor. General Banks says : " I desire to state, in the most unqualified terms, that no effort whatever was made on the part of the military authorities to influence the citizens of the State, either in the selection of candidates or in the election of officers, and that the direct influence of the Government of the United States was less in Louisiana than in the election probably of any other State of the Union, and that the officers repre senting the Government, both civil and military, were divided so far as they entertained or expressed opinions upon the question of candidates and upon the policy pursued in the organization of the govern ment." Here is his unqualified declaration of a fact which he himself, the commander-in-chief of the department, is the only living man who certainly knows ; and upon his word of honor as a man and as commander-in-chief of that department, he avers that there was no in fluence undertaken to be exercised by the mili tary authorities to control or to influence the determination of those elections. And yet my friend from Ohio [Mr. WADE] says it is a farce ; and the Senator from Kentucky [Mr. POWELL] joins with him, and says it is a military dicta tion and a military usurpation ! Sir, am I too strong in my language when I say the extremes join hands together here in their war on the Administration and in their determination to crucify the free State of Louisiana asking for her representation on this floor and the floor of the other House ? Now, Mr. President, let us go a little further into these figures. I do not propose to be blinded, nor led off the track by this kind of passionate denunciation and declamation that we have heard on this subject. What are the facts ? When you come down to the figures you find that the average vote in the State of Louisiana, for ten years, has been thirty-four thousand. The highest vote that was given in ten years has been only fifty-one thousand. Where are those voters now ? Forty thousand have enlisted in the rebel armies. The voting population and the fighting population of a State run along together, almost pari passu. I refer now to the white population of that State. We know that our voting population in the free States and our fighting popu lation are very nearly the same. Fifty- one thousand was the highest voting popu lation of Louisiana in any election in ten years, and forty thousand have enlisted in the rebel armies. Undoubtedly three-fourths of those are in their graves, and those that live are still in the rebel armies, for the conscrip tion of the rebels, wherever they have had the opportunity to do it, has been almost uni versal, taking every able-bodied man in whole counties and townships and parishes into the army of the rebellion. If you deduct from fifty-oi^e thousand the highest vote which Louisiana has ever given in ten years, the forty thousand who have gone into the rebel armies, how many remain ? Eleven thousand would remain, if their voting and fighting population were equal in numbers ; and the vote shows that eleven thousand four hundred and four teen freely gave their votes at the election which occurred on the 22d day of February, 1864. Does the Senator from Ohio stand up here denouncing this as a miserable sham, when a vote has been given equal to the differ ence between the rebel population enlisting into the rebel armies and the whole voting population of Louisiana during the last ten years ? Sir, this kind of declamation will not bear the test of examination when you come down to the truth and look into the facts and figures in this case. Mr. HENDRIOKS. If the Senator will per mit me Mr. DOOLITTLE. I hope the Senator will allow me to finish my remarks. I do not de sire to take up a great deal of time, and I pre fer to go through with what I have to say ; and then I will answer any question the Sena tor desires. Mr. President, I do not assume that in all cases the voting population and the fighting population are the same, but they run along nearly the same, and it is but fair to count the one as about equal to the other. But suppose there is a considerable difference. In my opinion, the vote of eleven thousand four hun dred and fourteen, which was given for this constitution, is two-thirds, if not three-fourths, of all the loyal men of Louisiana now alive and living within Louisiana. Gentlemen fail to consider the vast difference in the condition of these States where this war has been going on, as it has in Louisiana. We captured and took possession at an early day of about one-third, I suppose, of the real territorial extent of the State of Louisiana ; we captured and took pos session of the rivers ; and from the very con formation of Louisiana, it is upon the banks ot the rivers that her good lands all lie, and when you go back from the rivers, you go into those interminable morasses and swamps where men can hardly live at all ; so that, although we do not cover the whole of the State of Louisiana by our military lines, we do cover and do hold by far the greater portion in value and the greater portion which is capable of being cul tivated and inhabited as a State. Mr. President, I was observing that men seem to forget the terrible destruction of the popula tion in these States, both black and white, caused by the war. I have no doubt that it you could at this day take the census of both the living and the dead, it would be found that 218 EIGHTEENTH PRESIDENTIAL TERM. one-half of the whole population of Louisiana, white and black, is beneath the sod, growing out of the terrible convulsions which this war has produced and the terrible sacrifices and sufferings and deaths that have followed in its train. General Banks estimates it at very near ly the same figure. He says the whole popu lation of Louisiana now existing does not ex ceed four hundred and fifty thousand, although in the beginning of this contest it was between seven and eight hundred thousand. Not only have the white men who were the voters in Louisiana enlisted in the rebel armies to the amount of thirty thousand, but multitudes of those who were subject to do so have fled from Louisiana and have gone abroad to Europe ; they have left the State ; they are not there ; they perhaps will never be there again. But of the loyal people now living two-thirds, three- fourths, I believe, took part in the election on the adoption of this constitution. The Senator from Ohio, in the course of his remarks, undertook to denounce in very strong terms the policy adopted or suggested by the President of the United States in his message as the policy upon which he would attempt the reorganization of civil government and civil institutions in the States where the insurrec tion had prevailed. There has been so much said about it, and so much misrepresentation also, that I desire for a few brief moments to call the attention of the Senate to that prop osition. Every person knows that there must be some form of government in these States. If, with our armies, we enter into a State or country, and take possession of it by military power, some form of government must be es tablished military, of course, in the first in stance. The civil government is displaced, so to speak, by military power. In the midst of arms the laws are silent, is the old expression of the Romans inter arma silent leges. When the people of a district become so far obedient to their obligations of loyalty to the Govern ment which thus assumes, by military power, to put down an insurrection, an attempt may be made to surrender the military power and .establish a civil administration by the people themselves. For a time the form of govern ment may be, to a certain extent, a mixed form, both of civil and military power, each leaning upon the other. As the thing pro gresses and grows still further, the military power may be more and more withdrawn, and still greater power and authority given to the civil administration and the civil officers of the Government. Now, sir, what is the actual state of the case in relation to Louisiana? When we first capt ured New Orleans, and by our forces took possession of the rivers and the lands adjoining, there could be no government but that of a military character. But, after an experience of one, two, or three years, the people there became so well satisfied of the great mistake of going into rebellion against the Government of the United States, and of the necessity of sub mitting to its authority and its jurisdiction, that they began to come back to their allegiance to this Government, and were willing to join in the organization of the civil government of the State, and resume their relations to the Government of the United States. According ly we find that, when asked to do so, eleven thousand four hundred and fourteen of the loyal citizens of that State joined in the organization of a new constitution, which was submitted to the people, adopted by them, and a Legislature and other officers chosen by virtue of it, and the whole machinery of civil government put into full operation in that State. By virtue of the authority of that constitution, they now have their own government, their own Legisla ture, they are making municipal laws and regu lations for themselves. Their courts are sitting every day in judgment upon the rights of in dividuals. Under the authority of this new constitution all the relations of life are now being regulated. Under the authority of this new constitution, I tell my friend from Ohio that nearly ninety thousand slaves, who were not reached by the emancipation proclamation, have had their fetters knocked from their limbs and freedom given to them. Yes, sir, freedom has been given to ninety thousand slaves by this very constitution which he would under take to trample under his feet as a military usurpation and as a miserable farce. Can he stand up in the face of this country when Lou isiana presents herself in this attitude as a free State, knocking off the chains from ninety thousand of her slaves whom the emancipation proclamation did not reach (for they were ex- cepted) and deny to free Louisiana her rights of representation here, and her right to be heard as one of the free States of this Union in voting upon the very constitutional amendment which w*e have submitted to the States for their ratification ? Mr. WADE. Does the Senator- Mr. DOOLITTLE. I shall soon be through, and I will then hear the gentleman from Ohio at length. Mr. WADE. No, you will not. Mr. DOOLITTLE. Well, I will hear him, then, very briefly. Mr. WADE. You will not hear him at all. [Laughter.] Mr. DOOLITTLE. That perhaps will be better yet. Mr. President, I can very well understand why the Senator from Kentucky [Mr. POWELL] is opposed to recognizing this free constitu tion of Louisiana, which sets free almost ninety thousand slaves ; but I did not expect that the Senator from Ohio would object to it for that reason, among others. I expected that the Senator from Ohio, and the friends of freedom on this floor, would take the free States by the hand, one after another, as they presented themselves here, and welcome them into the ABRAHAM LINCOLN, PRESIDENT. 219 family of free States. I did not expect oppo sition from the Senator from Ohio as I did from the Senator from Kentucky. He could consistently oppose it ; for he is opposed to emancipation, opposed to the adoption of the free constitution of Louisiana, opposed to al lowing Louisiana to vote on the constitutional amendment which we have just submitted to the States, and whose vote may be necessary to its ratification. It requires, as I am in formed, twenty-seven votes, or the votes of twenty-seven Legislatures of the different States, in order to ratify the constitutional amendment ; and by no ciphering of mine can I see how they are to be obtained unless you allow the Legislature of the free State of Louisiana to express her voice on the subject. Is the Senator from Ohio prepared to prevent that? Go tell it to the free people of this country that upon the floor of the Senate the Senator from Ohio, who has been looked upon as the champion of freedom, is now taking position side by side with the Senator from Kentucky to denounce as a military usurpation and as a miserable farce the adoption of a free constitution by the people of Louisiana! But, sir, to return once more to this much- denounced policy of the President. It is de nounced as a military usurpation. It is direct ly the reverse of that. It is an attempt on the part of the President to lay down the military power, to put it into the hands of the civilians; to take it from the Army and to give it to the people. What does he say? He says this in substance : " Whenever one-tenth or a portion of jthe population equal to one-tenth of the whole voting population of the district or the State before the rebellion began are willing voluntarily to undertake the business of ad ministering civil government, I, as President of the United States, and Gommander-in-Ohief of the Army, pledge to them my good faith that I will stand by them and try and enable them to do it." That is all there is of it. So far from being a military usurpation, it is an attempt on the part of the President to lay down his military power ; and under that pro vision of the Constitution which compels this Government to guarantee a republican form of government to every State in the Union, the President is endeavoring in good faith to do it. Sir, how else can it be done ? These gentle men who are denouncing with so much glib- ness the policy of the President had better point out some better policy. How can you lay down your military power without build ing up a civil power to take possession of the government ? How can you do it unless you make a beginning? If you cannot begin with the whole of the people of a State, you must begin with what loyal people there are in the State ; and if you can get as many as one-tenth of those who are there, or a number equal to one-tenth of the voters of the State who are willing to join in the attempt, is it not the duty, and the bounden duty, of the Executive to make the trial, or shall he continue to hold them as mere military conquests governed by military officers and military law ? Shall there be no attempt at civil administration ? We all know what martial law is. There is no people under the canopy of heaven who do not desire to get rid of martial law as fast as they can. I join with them in the desire to get rid of mili tary law and military administration; and if you can get one-tenth of the population in a State like Louisiana, where three-fourths have joined the rebellion and enlisted in the rebel army, who are willing to take hold and aid in the administration of the government, it is enough to begin with. I do not say that where they amount to but one-tenth their Kepresent- atives ought to be admitted to seats in Con gress. The President does not recommend anything like that. But this case of Louisiana does not go upon the basis of one-tenth. I have demonstrated to the Senate, and I defy the Senator from Ohio or any other Senator to show to the contrary, that at least two- thirds of all the loyal people of Louisiana, and more than two-thirds of the difference between the number of rebels who have joined the rebel armies and the highest vote Louisiana has given in ten years, have joined in adopting this con stitution for the free State of Louisiana. But, Mr. President, in relation to that rec ommendation made by the Executive, he made it as a suggestion. He did not commit him self to it as if that was the policy to be pur sued and he would not pursue any other. He is willing to join hands with anybody who will propose any better policy for the reorganiza tion of these States ; but he is willing to begin even with one-tenth to attempt to build up something like civil government in these States. That does not apply, however, to Louisiana; for, as I have shown you, more than two- thirds, if not three-fourths, of all the loyal men that now live in that State joined in elect ing the delegates to this convention, and in adopting this constitution. Does my friend from Ohio propose to allow the rebels of Lou isiana to take part in the government of that State ? Have we not already provided by law that they cannot vote unless they take the oath of allegiance, and swear to support the Consti tution of the United States, and renounce all allegiance to any other or pretended govern ment? It is the loyal people of a State alone that have a right to vote. Sir, I believe that each department of this Government takes part in the recognition of the authorities of the several States. The Su preme Court takes its part in that recognition. For instance, there is a tribunal now erected in Louisiana, purporting to be a court of the State of Louisiana. A case arises, of ejectment, if you please, deciding the title to a township of land. An appeal is brought from the decisic-n of that court to the Supreme Court here. Some lawyer rises up in the Supreme Court of the 220 TWENTIETH PRESIDENTIAL TERM. United States, and, adopting the view of the Senator from Ohio, says: "May it please the Court, that court is a humbug ; the constitution of Louisiana is a farce ; it was adopted by mili tary usurpation ; you must not hear an appeal from that court ; I move that it be dismissed." The Supreme Court look into the question, pass on the case, and they decide that the court is a regular court of Louisiana, or is not. They therefore, in that decision, perform a high office as the supreme judicial power of this Government in recognizing the judicial power of the State of Louisiana. So, too, the Executive has his office to per form in recognizing the power of the States of the Union. "When you look into the Constitu tion, you find that one of the greatest powers conferred upon the Executive of the United States is this very power of recognizing the authority of the State governments of the States of the Union. How does it arise ? It arises just in this precise case. An insurrec tion breaks out in one of the States. There are two parties, and you may say they are nearly equally balanced, one for one govern ment, one for another. Each chooses its governor ; each chooses its legislature ; each chooses its various officers of administration ; and they commence a conflict, and there is an insurrection. Then comes an appeal to the Executive to put down an insurrection, just the case that arose in Rhode Island in the time of Dorr s rebellion, as it is called. The appeal is made to the Executive ; and then is cast upon the Executive the most important question that the Executive is ever called to pronounce upon, and that is, which party is the rebellion and which party is the true government of the State where the rebellion exists. The Presi dent decides that question, and from his deci sion there is no appeal. That was precisely the case in Rhode Island. Dorr s rebellion arose against the existing government. They had their two legislatures and their two ex ecutives, and were ready to enter into a con flict of arms and the shedding of blood. An appeal was made to the President of the United States to put down the insurrection, and the President of the United States decided that Dorr s party were the party in rebellion, and must be put down, and that ended the contro versy ; for in the little State of Rhode Island they would not undertake to contend when the whole power of the Government was thrown in upon one side. Here is a power of the Executive in recog nizing the existing power of a State, whether it be the true State government or the insur rectionary State government, that belongs to no other department of this Government. It does not belong to Congress. The appeal is not made to Congress to put down the insur rection in a State. It is made to the Presi dent, and the President alone can decide that question. The Supreme Court, in that case from Rhode Island, expressly decided that it was a political question over which the court had no control, nor Congress either, but which belonged to the Executive, and the Executive alone ; and the Executive having decided which party constituted the rebellion and which party constituted the true government of Rhode Isl and, the court were bound to acquiesce in the decision of the Executive, and did so acquiesce, and sustained the old government of Rhode Island against the Dorr government. But, Mr. President, I do not deny that Con gress also has a power of recognition of these States, but it is Congress acting separately in the two Houses of Congress, and in no other way. How do we act ? Two gentlemen pre sent themselves for admission to this floor as Senators from Louisiana. The question is at once raised. One gentleman says there is no State of Louisiana ; it is a mere Territory ; it is a mere farce to call it a State. Mr. WADE. Do you say that I said that ? Mr. DOOLITTLE. You did not say that ; but you said it was a mere farce to call it a State ; that the election was a farce. Mr. WADE. Yes, that is it. Mr. DOOLITTLE. The question is raised, first, is there any State of Louisiana? Sec ondly, was there a Legislature chosen in Lou isiana who could elect Senators ? And third ly, do these men possess the requisite quali fications to become Senators of the United States ? Those questions are raised here, dis cussed here, and the Senate act upon those questions and decide them, and from our de cision there is no appeal. Mr. COKNESS. Will the Senator permit me to ask him a question ? Mr. DOOLITTLE. Is it on this point ? Mr. CONKESS. Yes, sir ; it would not be pertinent otherwise, I apprehend. Mr. DOOLITTLE. I will hear the Senator. Mr. CONFESS. With the Senator s con sent, I ask him if he holds that the right of Congress to act upon the question of the or ganization or admission of the States now in rebellion can only occur and take place when Senators present themselves from those States here, or if the Senator denies to Congress a right to participate in the question of their re organization as States ? I desire the informa tion, because it is important. Mr. DOOLITTLE. My opinion is very clear that we act upon the question when it is pre sented to us, and the Senators appear here and ask admission, first, whether there is a State to represent ; secondly, whether a Legislature has been chosen which can send representa tives ; and, thirdly, whether the men who ap pear here have the constitutional qualifica tions ; and on this subject our decision is final. The President has nothing to do with it; the House of Representatives has nothing to do with it : we have the sole and conclusive jurisdiction. Mr. CONNESS. Will the Senator again permit me to ask him a question ? I do not ABRAHAM LINCOLN, PRESIDENT. 221 wish to do so if it is the slightest interruption to the Senator. Mr. DOOLITTLE. The question raised by the Senator is not one that I have discussed in this argument. It is a very distinct and dif ferent question from the one I am now dis cussing, and I do not intend to go into a dis cussion of it now. Possibly on some other oc casion it may come up, and I may discuss that question ; but I understand it is a very differ ent one from that I am now arguing. Mr. CONFESS. I so understand it ; and I understand the Senator ; but I understood him to say that upon the question of the admission of Senators from those States only could our right to act on the question occur or come up ; and therefore I ask the Senator if he held the opinion that Congress has no right and no power to act upon the question of whether those States should be reorganized or not ; be cause, although the Senator may not believe that the latter question is involved in the prop osition now before the Senate, I differ with him, and believe that it is involved in it. Therefore I asked the Senator the question. Mr. DOOLITTLE. I do not intend to go into the discussion of that question, which leads into a much broader field of inquiry, and there are certain other provisions of the Con stitution that would have to be discussed that I do not intend to take up now. I prefer to go on with my train of argument, and finish what I have to say on the point directly under consideration. I was saying, Mr. President, that our deci sion on that question of the admission of Sen ators is without any appeal, and whatever law might be passed by Congress would not in any way whatever abridge our supreme jurisdic tion over the question of the admission or re jection of Senators in this body. The House and the Senate act entirely independent of each other on that question. Take the case of Virginia. We have Virginia represented on this floor. The House of Representatives re fused Virginia any representation in that body. We act upon our own responsibility, each for itself. We determine whether men shall come in here and sit as the representatives of States. The House determine whether they shall go into that body as the Representatives of the districts of the several States. There is another question, it seems to me, that may be involved in this decision. If we assume to say, as is contended for by the Sena tor from Michigan [Mr. HOWARD], I believe, that these several States which have been de clared to be in insurrection have ceased to be States of the United States, and are to be re garded as mere subjugated provinces or terri tories, as if acquired from some foreign power ; if that doctrine is to prevail a doctrine which finds support in some circles and places this other consequence will follow Mr. HOWARD. I am quite sure the honor able Senator from Wisconsin does not intend to misstate what I said, and in order that he may understand me more clearly, I hope he will allow me to make the correction here. Mr. DOOLITTLE. I have no objection. Mr. HOWARD. What I stated, or intended to state, was this : that the power of the United States over a conquered State which has been in rebellion is the ordinary power of the con queror over conquered territory ; but that in this particular case there is superadded to the rights and duties of the conqueror a trust, Growing out of the Constitution of the United tates, which is to be performed by the United States in its discretion and in due time, in the shape of a restoration of the conquered State to the Union. Congress may take its own time to bring about this restoration. There are no limitations in the Constitution in regard to the mode or time in which it is to be done. The territory, however, having been once a State, must be restored to its condition of a State by the action of Congress at some time, and ac cording to the discretion of Congress, carrying out honestly and fairly the obligation of the Constitution ; but in the mean time, under stand me, I hold that while in this conquered state it is subject to be governed by military authority, by a provisional government, or by any other means which Congress may see fit to adopt ; and I hold it to be the duty of Con gress at an early day, as early as is reasonable and practicable, to pass an act which shall ap ply to all such cases, and not to leave it to the unlimited discretion of the Commander-in- Chief of the Armies of the United States. Mr. DOOLITTLE. The point that I under stood the Senator to make the other day, and I am not quite clear now whether I understand him to controvert it, was, that these States once declared in insurrection cease to be States of the Union. If I was mistaken in that I am glad to be corrected. Mr. HOWARD. If the Senator will allow me a moment Mr. DOOLITTLE. Certainly ; I do not wish to misunderstand the Senator. Mr. HOWARD. If they are States in insur rection, as they have been pronounced to be by the constituted authorities of the United States, then as States, as political communities, they are enemies of the United States. Can a community which is an enemy of the United States be treated as one of the United States ? It is only necessary to ask the question to an swer it. De facto these States are out of the Union, and all the gentleman s argument and all he may imagine cannot, de facto, constitute them States until our arms have triumphed. Mr. DOOLITTLE. I of course did not wish to misunderstand or misrepresent the Senator from Michigan. I understand him now to say that they are out of the Union. Mr. HOWARD. De facto. Mr. DOOLITTLE. De facto out of the Union. Mr. HOWARD. Undoubtedly. 222 TWENTIETH PRESIDENTIAL TERM. Mr. DOOLITTLE. De facto out of the Union ; they are no longer States of the Union. I do not wish to charge upon that Senator doctrines that he does not entertain. I know that it has heen advocated in certain other quarters that those States, by virtue of their insurrection, have ceased to exist as States, are no longer States of the Union; that they are not only out of the Union, hut have ceased to be States at all. I do not un derstand precisely whether the Senator be lieves in that or not. He perhaps raises a dis tinction between States de facto and States de jure. Perhaps he admits that de jure they are States in the Union, and de facto they are States out of the Union. But I do not wish to go into an argument with him as to his views on that subject. I simply wish not to misun derstand him. Now I understand the Senator from Michi gan to say that he regards them as States de facto out of the Union, and as States hostile to the United States, as public enemies. There is another provision of our Constitution that ought not to be forgotten; and that is, that when we elect a President and Vice-President they must both be residents of some State of the Union. We have elected Mr. Lincoln from Illinois. Undoubtedly that is a State in the Union. We have also elected Andrew John son, from the State of Tennessee, as Vice- President of the United States. Is he a public enemy ? Does he live in a State of this Union, or does he live in some subjugated territory ? Sir, whatever fine-spun theories gentlemen may give loose to in their imaginations, I tell you that the doctrine that any one of these States is out of the Union is the very doctrine which we have been fighting against from the beginning. The very ground on which we stand is, that they are not out of the Union, that they have no power to go out of the Union ; and it is to maintain that doctrine that we have poured out our treasure and our blood like water upon every battle-field. In my opinion the doctrine I do not say that the Senator contends for it, for I do not precisely understand his position but the doctrine that says these States are no longer States of the United States is one huge, infernal, constitu tional lie, that would stamp all our conduct from the beginning as murder, and cover us all over with blood. When it comes to be dis cussed, it is the most abhorrent doctrine that can be presented to the American people. And I tell you that whatever fine-spun theories poli ticians may adopt here at Washington or else where, when the convention came to meet at Baltimore, freshly representing the people of the United States, they trampled the miserable humbug under their feet by nominating An drew Johnson, of Tennessee, as Vice-President of the United States Tennessee, still a State of the United States, although its people have been driven into insurrection and rebellion. Mr. SUMNER. Will my friend allow me to interrupt him right there? Mr. DOOLITTLE. I am nearly through. Mr. SUMNEE. I understood the Senator a few moments ago to say that the Constitution required that the President and Vice-President should come from two different States. Mr. DOOLITTLE. Not be residents of the same State. Mr. SUMNER. I think the Senator has not quoted it correctly. I have it before me. It is as follows : " The electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves." All that is required is that the candidate shall be a citizen of the United States ; and I presume nobody ever questioned that Andrew Johnson was a great and loyal citizen of the United States. Mr. DOOLITTLE. The Constitution also provides that " No person, except a natural-horn citizen, or a cit izen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President." And there is another provision in the Con- "stitution requiring their residence in the States of the Union. Mr. President, I insist that on this incidental question as to how the joint convention of the two Houses shall be conducted, which has been conducted heretofore during eighteen different sessions with no difficulty whatever, except in the single case of 1857, when some indecorous conduct under the lead of James M. Mason, of Virginia, occurred, there is no necessity that we should enter upon the discussion and the agitation of the questions which have been de bated here and urged as the foundation for the adoption of this resolution. There is no ne cessity for the friends of this Administration, in the midst of this gigantic war still pending, to keep up one continued attempt to attack its own Administration, and to destroy its influ ence and its power with the people of the coun try. There is no necessity to make this on slaught upon the free constitution of Louisiana a free constitution which gives liberty to ninety thousand slaves that the emancipation proclamation did not reach. I undertake to say that it is unnecessary, unfounded, and un just. I do not say that all the Senators who support this resolution maintain the doctrines contended for by the Senator from Ohio, or the Senator from Kentucky. I understand the Senator from Illinois, who introduces the reso lution, to express the wish to avoid the ques tion of the validity of the constitution of Lou isiana. In what I have said, I do not refer by any means to all Senators here, but I have directed my attention more particularly to the objections taken by the Senator from Ken tucky, and the Senator from Ohio, where the ABRAHAM LINCOLN, PRESIDENT. 223 two extremes are meeting in one common pur pose to attack the Administration and to crucif y the free State of Louisiana. Mr. SHERMAN". Mr. President, I shall de tain the Senate but a few moments, and only to state my own position on this question. I regret that debate has occurred as to the existence of the State of Louisiana. I have no doubt that Louisiana is just as much a State in the Union as the State of Ohio. I do not agree with the sentiment of other gentlemen who think that Louisiana by its attempted secession has gone out of the Union, or is out of the pale of the law of the United States ; but that is not the question now before the Senate. The question is, what votes shall be counted at the meeting of the joint convention next Wednesday ? What rule shall govern the con vention when it meets ? Shall the whole thing be postponed until the two Houses get together without any rules or organization, so that con fusion will probably occur the very moment the question arises ? Upon that question I have very clear convictions, and my convictions upon that point will control my vote. I alluded incidentally yesterday to the scene that occurred in the joint convention eight years ago. If we do not determine this ques tion now, we know that any member of either House may present it to us in the joint con vention. We know that the Senator from Wisconsin, or any other Senator who believes that the vote of Louisiana ought to be count ed, may demand that that vote shall be count ed. Suppose the Yice-President should decide that Louisiana, having been declared in a state of insurrection, cannot vote in the Electoral College : what then ? Is his decision final ? Is it so that under our system the Vice-President may throw out the vote of any one or more States, and his decision be final ? Is there no appeal ? If there is an appeal, how can it be taken ? Suppose the Vice-President should re ject the vote of the State of Ohio, and I, a rep resentative from that State, should demand that his decision should be reversed : how can it be done ? How can any question be taken there ? These difficulties must be met beforehand; and to say that we cannot by law prescribe the mode and manner in which these questions shall be decided before the meeting of the joint convention, is to declare the framers of the Constitution fools. So it seems to me; because if the Vice-President should decide in the case I have named, that Louisiana is not entitled to vote, the Senator from Wisconsin may demand an appeal from that decision. Who shall decide that appeal ? Shall Senators and Representatives vote per capita ? Shall they vote by concurrent resolution? If so, then the right of debate grows up. Shall Sen ators debate ? If so, must they debate in the presence of the House of Representatives? How can they vote? All these difficult questions are to be decided. The honorable Senator from Wisconsin says he has great confidence in the present Vice- President ; that he is not Mr. Mason. So have I, just as much confidence as he has ; but that is not the point. The difficulties are insuper able ; and any man, whatever may be his po litical tenets, may raise the question of diffi culty in the presence of the convention, and that convention will be utterly powerless, and will be the laughing-stock of the gallery. In the case I mentioned eight years ago, when there was a totally immaterial question raised in that convention, when the State of Wiscon sin was prevented from voting by an unfore seen event, the happening of a great snow storm in the Northwest, and when objection was made to counting the vote of the State of Wisconsin, a debate sprang up, members of the House addressed themselves to "Mr. Speaker," members of the Senate addressed themselves to " Mr. President," the one gentleman recog nized one person, and the other gentleman another, without any preliminary understand ing as to the form of putting the question, with out any preliminary understanding as to who should preside over the joint convention, with out any rules for its government. I say, these same questions of difficulty will present themselves again, and they will be presented by the counting of the vote of the State of Louisiana. Suppose in the joint con vention the Vice-President shall take up a piece of paper in his hand, a thing that will inevitably occur, and say, "I have here what purports to be the certificate of the State of Louisiana;" suppose he should say that the State of Louisiana is in rebellion against the Gov ernment ; that by the proclamation of the President it is declared to be in a state of insurrection, and that that condition of affairs has been recognized by both Houses of Con gress ; "I therefore will not allow the vote of Louisiana to be counted in the electoral vote." Suppose he* should so decide. The Senator from Wisconsin would object at once. Mr. DOOLITTLE. Not at ail. He may decide just as he likes ; it does not make a bit of difference to me. He may rule it in, or rule it out, and he shall find me making no objection. Mr. SHERMAN". Probably my friend from Wisconsin would make no objection, but any member from the House of Representatives or any member of the Senate who is of opinion that the vote of Louisiana ought to be counted, will at once enter his protest, and say that Louisiana has a right to vote. How shall that question be decided? Shall the Vice-President decide it, and shall his de cision be final ? I say not. There must be Mr. COLLAMER. Some member of the convention would object to the counting of an illegal vote, because they do not know, offi cially, what the other votes are. Mr. SHERMAN. Certainly not. They can not tell that until the votes are counted. Sup- 224 TWENTIETH PRESIDENTIAL TERM. pose the Vice-President were to take it into his head to reject the vote of the State of New York ; and in a possible case he might reject enough votes to elect General McClel- lan, a scarcely possible event. We are now prescribing rules and making precedents for history. We cannot expect to travel through many presidential elections in the history of our country with so unanimous a result as at the last, and we are now making a precedent Mr. FARWELL. If the Senator will allow me Mr. SHERMAN. I would prefer to go on and finish what I have to say. Mr. FARWELL. I was going to ask a sin gle question. Suppose the Vice-President does undertake to reject the vote of New York will this resolution settle it, or has that got to be settled in the joint convention ? Mr. SHERMAN. I do not suppose this res olution will settle all the questions that may arise. Suppose, on the other hand, the Vice- President should believe that Louisiana is a State in the Union, and should decide in favor of the view of the honorable Senator from Wisconsin, my colleague would object. I know he would. Mr. WADE. Mighty quick. Mr. SHERMAN. I know the Senator from Massachusetts [Mr. SUMNER] would say that Louisiana is not in the Union, and therefore the vote must not be counted. If they would not, there are members in the House that would ; and how is the question to be decided ? Then the joint convention assembled under the Constitution to do the highest act of per petuating the Government of the United States may find itself in a wrangle ; and it is in just such scenes as these that revolutions are born. It was in such scenes as these that Poland wit nessed all the struggles which finally led to the destruction of her nationality. In my judgment, therefore, every question that will affect the organization of the joint convention ought to be settled beforehand by some de cisive vote ; and therefore it is that I am in favor of having this matter decided now. But I have said that I believed Louisiana was a State in the Union. I have no doubt of it. My views upon that point concur with those of the honorable Senator from Wiscon sin ; but the question is not whether Louisiana is a State in the Union, but whether Louisiana can now vote in the Electoral College. What is the record? By the proclamation of the President, Louisiana is declared to be in a state of insurrection; by the votes of both Houses of Congress that condition is recog nized ; all the loyal, legal authority of Lou isiana is overthrown, and we have now a pro visional governor ; we have had military Gov ernors in the State of Louisiana, and have now. That is the case presented to us by the record. But the honorable Senator says that there have been movements made in Louisiana to reorganize the State of Louisiana ; that there is a local government now there representing the loyal people of Louisiana. Suppose I ad mit that fact. Can I tell from the reading of the papers he has read here to-day that that is so ? What tribunal has decided that question ? He says the President; but I cannot agree with him that the President must decide that question. By the Constitution, each House must decide upon the qualifications of its own members ; and I say that no vote can be cast for Louisiana in the Electoral College until she can vote in Congress ; and she cannot vote in Congress until the Senate and House of Representatives concur in her voting here. The idea that Louisiana shall vote in the Electoral College and make a President for us when no man can speak for her here, and no man can speak for her in the House of Representatives, is, in my judgment, an absurdity. The very moment that the loyal people of Louisiana shall form a government which is recognized by both branches of Con gress and by the President, that moment she will have a right to vote in the Electoral Col lege ; and the idea that she should attempt to vote before her condition is fixed by Congress, it seems to me, is wrong. I do not wish to criticise the action of our friends in Louisiana. I recognize the loyal people who have formed this new movement in Louisiana as loyal and true men. I recog nize Louisiana as a State in the Union ; but until their action, whatever it is, is approved and sanctioned by Congress with deliberation and premeditation, she ought not to appear here to claim her vote in the Electoral Col- lego. That is my judgment ; and in saying this I do not assail the President. I think my friend from Wisconsin stated the point too strongly when he said that in voting for this joint reso lution we sought to cast censure upon the Presi dent. Mr. DOOLITTLE. That is not what I said or intended to say. I said that the Senator from Ohio [Mr. WADE] in the doctrines he ad vanced, and the Senator from Kentucky [Mr. POWELL] by responding to him, may join hands together to attack the Administration. I did not say that the resolution was intended for that at all. I was dealing with the doctrines of the Senator s colleague. Mr. SHERMAN. Then I misunderstood the Senator. I have no doubt that the President of the United States may recognize the locaL tribunals there, and may seek to blend the loyal people of Louisiana into the form of a State government, and I will aid him in doing it ; but I must be satisfied that such portion of the people of Louisiana are in a condition to conduct a free government, to found and reorganize or reestablish the State government overthrown by the insurrection. The very moment that is done, I am willing to give their Senators their seats upon this floor; I am willing to give their members seats in the House of Representatives ; but until then their ABRAHAM LINCOLN, PRESIDENT. 225 condition is fixed by the proclamation of the President, sanctioned by Congress; and that is, that Louisiana is in a state of insurrection, and until that insurrection is so far overcome as to enable a portion of her people to estab lish a form of government and the right of suffrage may be protected, she has not a right to representation here, nor to a vote in the Electoral College. Nor will I now pass judgment upon the question whether her Senators are entitled to seats here. I will hear what they have to say. That question has not yet come up before us. If I am satisfied of some of the facts stated by the honorable Senator from Wisconsin, that a majority of the people of Louisiana have taken part in this organization, that they have had an opportunity to vote, and have voted^I will recognize the right of the loyal people of Louisiana to representation here. I do not, therefore, commit myself upon the question of the right of these Senators to take their seats by my vote on this resolution; but I know, as the case now stands, with the rec ord before us, that Louisiana is declared by law to be in a state of insurrection, and that we have no official decision that she has re sumed her place in the Union. We have evi dence read from a pamphlet, but we have no decision that she is in the Union and entitled to vote in the Electoral College. I thought, therefore, that the resolution of the House of Representatives which, I believe, passed there without much objection when it came here, ami was reported from the Committee on the Judiciary, was a wise measure to avoid con tention and strife, to avoid raising prematurely a question of great difficulty, which ought to be settled so far as the action of the convention was coucerned by the deliberate vote of Con gress. All the questions that may grow out of the admission of Louisiana I am prepared to decide when the case is fairly argued and discussed before us ; but at present I am per fectly clear that the vote of Louisiana, no mat ter by whom cast, ought not to be counted in the Electoral College, and that we ought now to settle that question, so that it will not trou ble the Vice-President of the United States when he comes to count this vote. If this resolution is passed, the Vice-Presiderit, when he comes to these papers, as he must present them to the body, will say that, by the con current action of Congress, or of both Houses, which must pass upon the condition of Lou- isiarn, the State of Louisiana is in insurrection and cannot vote in the Electoral College ; and that is the end of the matter. I think we ought to assume that responsibility rather than to throw it upon the Vice-President. Mr. HARRIS. I do not rise to protract this discussion. My belief is that the Senate are quite weary of it now. and that it may be brought to a close as well now as any other time. But, sir, I have embodied in a preamble and resolution the views that I have hereto- 15 fore expressed in relation to this subject, which I desire to submit to the Senate. The recitals in this preamble are what is conceded to be the truth by every Senator; and although it is not in order now, yet my friend from New Jersey shall be satisfied to adopt this amend ment, it will be in order if he should withdraw his proposition to strike out the State of Lou isiana. I will read the proposition, which I intend to submit at the proper time : Whereas in pursuance of an act of Congress, ap proved on the 13th of July, 1861, the President did, on the 16th of August, 1861, declare the inhabitants of certain States, and among others the States of Tennessee and Louisiana, to be in a state of insur rection against the United States ; and whereas, with a view to encourage the inhabitants of such States to resume their allegiance to the United States and to reinaugurate loyal State governments, the Presi dent did, on the 8th of December, 1863, issue his proclamation whereby it was declared, among other things, that in case a State government should be re-established in any of said States in the manner therein specified, such government should be rec ognized as the true government of the State ; and whereas the loyal inhabitants of the States of Ten nessee and Louisiana, invited so to do by the said last-mentioned proclamation, have in good faith established said State governments loyal to the Uni ted States, or attempted so to do ; and whereas such loyal inhabitants at the recent presidential election have chosen electors for President and Vice-Presi dent, who have, in pursuance of the requirements of the Constitution, cast their votes for President and Vice President ; and whereas doubts exist as to the validity of such election of presidential electors in the States of Tennessee and Louisiana; and whereas it is well understood that the result of the presidential election could in no way be affected by the votes of said States, whether the same shall be counted or not : Therefore ? Be it resolved, &c., That it is inexpedient to deter mine the question as to the validity of the election of electors in the said States of Tennessee and Lou isiana, and that in counting the votes for President and Vice-President, the result should be declared as it would stand if the votes of said States were counted, and also as it would stand if the votes or said States were excluded, such result being the same in either case. It seems to me that this covers the whole ground ; it recites the whole truth in relation to it ; it is what no Senator will deny ; and it seems to me that for us to go on to vote for anything beyond what is contained in this proposition, is to vote for the merest abstrac tion in the world. It is to anticipate a ques tion which may possibly arise but which will probably never arise in the history of this country. I hope to have an opportunity to present this proposition, and I shall ask the vote of the Senate upon it. Mr. POWELL. Mr. President, the Senator from Wisconsin [Mr. DOOLITTLE] seemed to think that he had made a most happy and striking comparison. He commenced his speech by comparing the Senator from Ohio and my self to Herod and Pontius Pilate, and about the centre of his speech he repeated the com parison, and at the very close he announced it for the third time. Hence I come to the conclusion that he thinks it a very powerful 226 TWENTIETH PRESIDENTIAL TERM. statement. I think I understand the Senator s tactics perfectly well when he tries to amaze the Senate by the statement that extremes have met; that the honorable Senator from Ohio [Mr. WADE] and myself agree on this measure. The Senator from Wisconsin but resorts to one of the artful dodges that are sometimes resorted to by some speakers who have been not inapt ly called demagogues I do not apply that term to the honorable Senator, however when they wish to excite the prejudices of the crowd. I do not think the honorable Senator can, by that kind of dodge, affect the vote of any Sen ator on either side of the Chamber. I am sure no Senator on this side of the Chamber and when I use that term I mean the Democrats and Conservatives that are here can be driven from what he conceives to be his duty because he has the assistance of the Senator from Ohio ; and I am certain that there is no Senator on the other side whose intelligence is so low, whose mind could be so governed by his pre judices, that he will be driven from his posi tion because some members on this side advo cate a proposition of which he is in favor. I do not know whether the honorable Sena tor intended to liken me to Herod or to Pilate, but he said that the two Senators, the one from Kentucky and the other from Ohio, like Herod and Pilate, desired to crucify this young free State of Louisiana. I was not aware before that Herod had much to do with the crucifix ion. I knew that Pontius Pilate judged on that occasion, and his judgments have been decreed infamous. However, I shall make no defense of the Senator from Ohio, he is in the Senate, and is fully able to defend himself. But, sir, if the comparison should be applied to anybody, the Senator from Wisconsin ought to apply it .to the Executive and to General Banks. It is they, if anybody and I will not charge that they desire to crucify the free State of Lou isiana. Herod and Pontius Pilate were wicked and cruel aggressors upon the civil and divine rights of the people. I, sir, resist the aggres sions of usurping officials ; the Senator is their advocate. Had I lived in Judea in the day of Herod, I would have denounced the cruel and bloody decrees of that wicked king as I do here arraign the President for his usurpations, his violations of the Constitution, and his as saults upon the civil liberties of the people. I would have denounced in the harshest lan guage the infamous judgments of Pontius Pilate, the governor, as I do the unlawful, wicked, and unconstitutional military orders of General Banks. Judging from the Senator s course here, had he lived in the day of Herod and Pontius Pilate, they would have found in him an able and zealous advocate. Perhaps my views of a free State are a little more expansive than those of the honorable Senator from Wisconsin. I regard a State free that is governed by the laws made by the sov ereign people of that State without the dicta tion of presidents or major-generals. I regar that State as a free State which is governed b law, knowing that there is no freedom save i the supremacy of the law. The honorabl Senator from Wisconsin in his contracted vie 1 seems to suppose a State is free, provided n African is held in slavery. May not whil men in Louisiana be kept in chains as well { black men ? I confess I have more sympath for the white than I have for the black rac< Not so with the honorable Senator. He willing that the decrees of the Executive an the orders of General Banks shall go forth t alter the constitution of the people of Louis ana, and prescribe the qualifications of the: electors and of candidates for office, and to ho] the white men of Louisiana in slavish submi: sion to those decrees ; and he calls a State formld and so conducted a free State, mere] because its constitution indicates that involui tary servitude shall not exist there. Awa: sir, with such a free State! It is the veriei slavery, slavery of your own race, slavery < your own kith, slavery of your own kin. It a striking down of every principle of republ can liberty for the purpose of elevating a fe 1 miserable Africans. The Senator from Ohio and myself are i accord on this matter. He desires to vindical the right of the people of Louisiana, in tl. exercise of their own sovereign power, to d cree their own form of government, unbiase< uninfluenced by outside dictation, wheth< from the Executive Mansion or from tl headquarters of a major-general. The Senat< from Wisconsin takes the very converse c that position. He is amazed that the Senat< from Ohio should advocate these proposition but he is not at all astonished at the course the Senator from Kentucky, because the Sen tor from Ohio is for freedom, and the Senat, from Kentucky is opposed to emancipation, do not know what right he has to say that am opposed to emancipation by those w have the power to decree emancipation, am not opposed to the people of the State Louisiana or Georgia or any other State this Union declaring, if in their soverei capacity they choose in a legal and forn manner to decree, that they will have no s very existing there. Nor should I be oppos to the people of the State of Wisconsin, they choose so to decree in the exercise their sovereign power, declaring that slave should exist there. These are matters that a left by our fundamental law to the people each State ; and, when they exercise the po\v in the manner prescribed by their constituti and laws, it is a matter of their own concei ment, and will receive no opposition from n If, however, the Senator means that I ; opposed to the amendment of the Consti tion of the United States on that subject, is right. I was opposed to that amendrm of the Constitution when it was pending this body. I spoke against it and 1 vol ABRAHAM LINCOLN, PRESIDENT. 227 against it; and I think the day will come when the Senator himself will regret that faithless act. What is that act?- It decrees that millions upon millions of property held under the constitutions and laws of the States hy virtue of the Constitution of the United States shall be taken from the owners without compensation. I regard that as nothing else than bad faith and legislative robbery. The Senator may regard it as he pleases. Regard ing it as I do, I am opposed to it. I hold that by that amendment you upturn the whole system of oar Federal Government, because if there is one characteristic feature of this form of government it is that the States are at liberty to form and regulate their domestic institutions in their own way, and you have as much right to amend the Constitution so as to regulate the condition of master and slave as you have to amend it in regard to the regulation of the relation of husband and wife, guardian and ward, parent and child, and no more. If you have a right to pass that constitutional amendment, you have a right to decree that this shall be an empire or a kingly form of government. It is destructive of the system, in my judgment. I think it is in bad faith. I think it overthrows and disregards vested property rights. I fear that the day will come when, in view of our vast and accumulating debt, some demagogues will desire to repudi ate it. I never expect to be of that number, but when that is done, and you rich men of the North shall talk about property rights and the faith of the Government pledged to pay its debt, they can be told that by legislative enactment, by constitutional amendment this vast amount of property was destroyed in the slave States without compensation to the own ers, and their mouths will be stopped. But, Mr. President, enough of such matters. I will say to the Senator that, if the people of any State in the Union choose to abrogate sla very in their own way, it is their matter, not mine. I have a right to speak on that subject in no State of this Union but one, and that is the Commonwealth of Kentucky, and there I have been opposed to emancipation. But, sir, the Senator tells us that General Banks s statements are all true, and that the statement of the Senator from Ohio and my self, that there was military interference with the election, has no foundation in truth. Let us bring the honorable Senator to the facts on that point, and see who is in error. Who has the right to prescribe the qualifications of vot ers in a State of this Union ? There is not a Senator in this Chamber who will not answer, the people of that State. That is the very foundation of your republican representative form of government. What power has the President, what power has Major-General Banks, to prescribe the qualifications of a voter in Louisiana? Tell me not, sir, that there has been no military interference with the elections in that State, when the Executive and the military commander of that depart ment have prescribed the qualifications of vot ers. Make me a major-general, and clothe me with the power to prescribe the qualification of voters, and if I had a hundred followers in the State of New York, I could carry that Em pire State by prescribing such qualifications as would exclude all but those on my side. The Senator sees that ; he knows it ; he cannot deny it, and yet he says there was no military interferencs. I was astonished that a Senator, usually so candid and fair in his statements to the Senate, should allow his judgment to be so warped by his zeal as to maintain for a mo ment that there had been no military interfe rence with the elections in Louisiana. Mr. DOOLITTLE. With the Senator s per mission, I will say that I stated precisely wherein and to what extent I understood the order of General Banks to have affected the elective franchise, by directing, what the con stitution of Louisiana did not direct, that the soldiers who were citizens of Louisiana en listed in the army might be permitted to vote ; and that of the whole number of those citizens in the army there were only eight hundred and eight who voted, while the total number of votes cast was eleven thousand four hun dred and fourteen. Mr. POWELL. So far as the principle is concerned it does not matter if there was but one ; it was an infamous usurpation ; and I speak of it as infamous because it violates the Constitution of the country. Mr. DOOLITTLE. I have no objection to the Senator drawing his own inferences ; but he seems to express the idea that I had main tained that there was nothing done under the military authority. I stated expressly, as I mean always to state, the facts as I understood them. Mr. POWELL. Here is the constitutional provision on the subject of the qualification of electors : u The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." That is the only clause of the Constitution on the subject. Was that constitutional test ap plied to the electors in Louisiana? It certainly was not in more instances than that admitted by the honorable Senator. In the statement of General Banks, which I hold in my hand, he admits that he altered the constitution of Louisiana concerning the qual ifications of voters so far as to permit soldiers and sailors in the public service to vote. What right had Nathaniel P. Banks, major-general of the United States army, to lay his hand upon the constitution of the State of Louisi ana ? When he did it he committed a usurpa tion and violated the law, and so far from being lauded he should be censured in the harshest possible terms. TWENTIETH PRESIDENTIAL TERM. But that is not all. General Banks says, in this paper, that everybody who was registered and voted in Louisiana took the oath pre scribed in the President s amnesty proclama tion of December 8, 1863. Now, let us see what was the oath contained in that amnesty proclamation : " I, , do solemnly swear, in the presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States 2 and the union of the States thereun der ; that I will, in like manner, abide by and faith fully support all acts of Congress passed during the existing rebellion with reference to slaves, so long and so far as not repealed, modified, or held void by Congress, or by decision of the Supreme Court ; and that I will, in like manner, abide by and faithfully support all proclamations of the President made during the existing rebellion having reference to slaves, so long and so far as not modified or declared void bv decision of the Supreme Court. So help me God." After having prescribed the oath, that proc lamation goes on to declare : " And I do further proclaim, declare, and make known that whenever, in any of the States of Arkan sas, Texas, Louisiana, Mississippi, Tennessee, Ala- buma : Georgia, Florida, South Carolina, and North Carolina, a number of persons, not less than one- tenth in number of the votes cast in such State at the presidential election of the year of our Lord, 1860, each having taken the oath aforesaid and not hav ing since violated it, and being a qualified voter by the election law of the State existing immediately before the so-called act of secession, and excluding all others, shall reestablish a State government which shall be republican, and in nowise contra vening said oath, such shall be recognized as the true government of the State, and the State shall receive thereunder the benefits of the constitutional provision which declares that the United States shall guaranty to every State in this Union a repub lican form of government, and shall protect each of them against invasion, and, on application of the Legislature, or the Executive (when the Legislature Ciinuot be convened), against domestic violence. " The President in his proclamation says that if one-tenth of the voters shall take the am nesty oath, they may form a State Govern ment, and those taking the oath shall be quali fied voters, and that they alone shall be voters who were qualified voters under the constitu tion and laws of Louisiana as they existed before the rebellion. General Banks in his order has violated the proclamation of the President. The President s proclamation says that the government may be formed by per sons " each having taken the oath aforesaid, and not having since violated it, and being a qualified voter by the election law of the State existing immediately before the so-called act of secession, and excluding all others." Does General Banks exclude all others? Does he not allow soldiers and sailors to vote ? He does. He extends and adds to the Presi dent s proclamation prescribing the oath ; he enlarges it. All the President requires is that this oath be taken; and that makes a man a qualified voter, provided he was otherwise a qualified voter under the laws of Louisiana. I admit that the requisition of this oath was usurpation ; but General Banks enlarges even upon that. The President says that this oath shall be sufficient; but General Banks goes further and says that the soldiers and sailors may vote. Under the President s proclama tion they could not vote, being prohibited by the constitution of Louisiana, but General Banks allowed them to vote. Is it compatible with the Senator s notions of a free State that one-tenth of the qualified voters, provided they take a humiliating oatli which would degrade them in many respects, shall legislate for the nine-tenths ? The one- tenth fixed by the President is one-tenth of the qualified voters, as they were by the State con stitution and laws before the rebellion ; that is, one-tenth of the white people over twenty- one years of age entitled to vote under the constitution of the State, excluding Sambo. The population of the State of Louisiana is about equally divided between whites and blacks, and the Senator advocates the proposi tion that one-tenth of the voters of the white race, and a bare majority of that one-tenth, shall form a government for all the other people of the State ; and because the Senator from Ohio and myself .choose to resist that most anti- republican feature, to resist this tyrannical encroachment on the rights of the people, we are to be likened to Herod and Pontius Pilate crucifying a free State. Was there ever such a monstrous utterance ? I suppose that if the Senator from Ohio and I were to oppose the admission or recognition of a State formed by one-twentieth of the legal voters the Senator from Wisconsin would think we were trying to crucify a free State. Why, sir, if there ever were sentiments uttered that crucified free States and free republican governments, they are to be found in the speech of the Senator from Wisconsin in defense of the usurpations of the President and of General Banks. These are the sentiments of cruci fixion complete ; there is nothing left for the Senator from Ohio and myself to crucify. The Senator from Wisconsin has crucified and ut terly destroyed the great principles that under lie civil liberty ; he has killed every principle of civil liberty ; he has become the advocate of the tyrannies and usurpations of the Executive and Major-General Banks. He supports the act of the President in prescribing the qualifi cations of voters in the States, and declaring that if one-tenth of them take the oath he prescribes they shall have power to establish a government to rule over the nine-tenths. The Senator is the advocate of those who commit these usurpations, and he denounces those who oppose them as Pilates and Herocls. In my judgment the decree of Pontius Pilate was a great wrong, that of Herod was cruel. The latter was that all the children of Bethle hem under two years of age should be de stroyed ; but infamous as the decree of Herod was, it is not half so infamous as the principles advocated by the Senator from Wisconsin, for ABRAHAM LINCOLN, PRESIDENT. 229 that affected but individuals ; it took the lives of tender infants, who, if they died, under his Christian code the Senator would believe went directly to heaven ; but the Senator crucifies free States, and puts under his iron heel every principle that underli.es a free Commonwealth ; and after murdering those principles he de nounces those of us who in our humble way resist, as Pilates and Herods. He, in my judg ment I say it with great deference has out- HeroJed Herod. If anybody should be called Herod or Pontius Pilate, I think it is those who govern affairs as they are governed in Louisiana. The Senator tells us that one-half of the whole population of Louisiana at the time the war began, whites and blacks, have gone under the sod are dead. The popula tion of the State of Louisiana in 1860 was about seven hundred thousand souls. Under the policy of these rulers you have killed about four hundred thousand of those people. One- half of all the negroes there, the Senator says, are dead. Instead of attending to Sambo, such has been your policy that you have put about two hundred thousand of the sable people of that State under the sod. The decree of Herod was not half so cruel as that, because it only took the children under two years of age ; and here you take not only them, but you take blooming virgins and the youug men in stal wart youth, and the aged, decrepit, and infirm, and you sweep them all away with one re morseless blow. Now, sir, I think I have disposed of King Herod, and I come to look at the Pontius Pi late part of the proceeding. I do not know whether the Senator from Wisconsin intended to liken me to Herod or to Pilate. I told the Senator from Ohio that he might take either; if he thought he was likened to Pilate, he might defend Pilate, and if he thought I was likened to Herod, I would stand on that. He stated he did not care a toss of the copper which. [Laughter.] How is it that the Sen ator from Ohio and myself have been likened to Pontius Pilate sitting in judgment upon this matter? "We have not judged at all ; we are now in the council chamber ; but I will tell the Senator who did sit in judgment upon that free State. It was the President and Ma jor-General Banks. It was they who violated the fundamental principle of constitutional and civil liberty. It was they who put the knife to the throat of that free State. When I speak of a free State here I speak of the initiatory measure to form a government for the State to come back into the Union, although I believe she never was out. The first bulletin that was issued from the executive chamber on the subject, declared that if one-tenth of the qualified voters would take the prescribed oath which I have recited, they might form a State government. What was that oath ? Not alone that they should be true and faithful to the Constitution and laws of the Union, but that they would support all the laws and resolves passed by Congress, and all the proclamations that had been issued by the President on the subect of slavery since the beignning of the rebellion ; and not only that, but that they would support all proclamations on that subject which the President might hereafter issue. I ask the Senator from Wiscon sin, would he so lower his manhood, would he so far debase himself as to go and crouch at the footstool of executive power and take that oath before being admitted to the rights of a free-born citizen ? Would he take the oath to support proclamations which might afterward be issued? That would be swearing in the dark, as they say out West, and no honest man would do it ; yet that was the requirement of the President. That was the first ukase which was issued to murder the great principles of civil and republican liberty in Louisiana. That was received there, and then General Banks issued his ukase, and he set aside a clause of the constitution of Louisiana which the President in his proclamation allowed to stand and be in full force concerning voters, and that was, that soldiers and sailors in the service should vote, when it was declared in the constitution of Louisiana that they should not vote. Banks found that the President had not carried the thing far enough, and he, too, must not only carry out the unconstitutional edicts of the White House, but he must make an unconsti tutional edict of his own, which he did, by proclaiming that soldiers and sailors, who were not qualified voters by the constitution of Lou isiana, should be qualified voters. That is the attitude in which General Banks and the President stand, and the Senator from Wisconsin is their advocate. He denounces the Senator from Ohio and myself because we resist this usurpation. I am willing for myself to receive the fulminat^ms of the Senator from now until doomsday. While I am so in trenched in the right I fear not the assaults of the Senator, no matter how strong his armor, how keen his cimeter, for the blows will fall harmless at my feet; the truth will be my protection ; the advocacy of just and correct principles my shield. But, sir, General Banks did more. I did not intend to criticise that learned statesman and, as I have no doubt the honorable Senator from Wisconsin would say, able general. He issued a proclamation concerning this subject. I re gret that I have not that proclamation here ; but I have an extract from it, which I will read to the Senate : u Opinion is free, and candidates are numerous. Open hostilities cannot be permitted. Indifference will be treated us a crime, and faction as treason." That is the proclamation of this most worthy Solon, General Banks indifference will be treated as a crime and punished with an iron hand. If a man, after submitting himself to these humiliating conditions and having taken this oath, refuses to vote, General Banks says he will treat that as a crime. Was there ever 230 TWENTIETH PRESIDENTIAL TERM. a more atrocious sentiment uttered in a free Government? The reason why General Banks put that clause in his proclamation is obvious. He knew that not even one-tenth of the voters of Louisiana, if left unbiased, would come up to vote at his election the way he wished them to vote; and hence he said: All that have taken the oath and are thus qualified shall vote, and if you do not vote, your indifference will be treated as a crime. A more atrocious senti ment was never uttered, and yet the Senator from Wisconsin Bays that is a free election where the major-general commanding says who shall be entitled to suffrage, and further says that all entitled to suffrage who do not vote shall be treated as criminals, and punished. He put the iron heel on them. Is that what the Senator calls freedon of election ? There was not a scintilla of freedom in the whole matter ; and when General Banks announces, in the statement which has been read, that there was less interference by Gov ernment authority in that election than per haps in the election in any State in the Union, he never made a more erroneous statement. He must have known that it was not true. Suppose that the major-general in command of the military forces in the Senator s State should undertake to prescribe the qualifications of voters in Wisconsin, and the qualifications so established by him were different from those prescribed by the constitution and laws of the State, and, in addition to that, he should issue a decree that those who did not vote, that all who exhibited indifference, should, be treated as criminals and punished with an iron hand, would the Senator think there was much freedom of election there ? General Banks thought he would make a great reputation by bringing back Louisiana into the Union, and giving his friend, the Sen ator from Wisconsin, a chance to make assaults on others for their attempts to crucify the young, free State of Louisiana. The general had made several efforts, in a military point of view, without winning many laurels. I be lieve that if General Banks had devoted him self as assiduously to his military duties, and to fighting armed rebels, as he did to control ling elections, and issuing ukases on that sub ject, he would not have met with the disaster which he encountered on Red river. I hope I am mistaken in this opinion ; but I think that if he had had more love for the glory of great achievements in arms, and less for political trickery, and less hankering after cotton, he would not have been so disastrously and dis gracefully defeated as he was on the Red river. His vocation, it seems, was twofold. Being a politician of some success, he thought he could run the political machine best ; and he did run it, and he ran it with a vengeance. He ran it over, and destroyed every principle of repub lican liberty. Let me tell the Senator that we are not to be driven from our advocacy of the right by being likened to Pontius Pilate or to Herod. We will do what we believe is right. We will meet him in the argument on every point. Let him prove to the Senate that the President or General Banks had any power under the Constitution, under our system of government, to prescribe the qualifications of voters and of candidates for office in the States. Unless he can do that they must stand confessed, in his own judgment, as usurpers. I use the word usurpers to indicate those who administer the functions of their office in violation of law. It was a maxim of the Athenians, the wisest of the ancient commonwealths, that all who ad ministered the functions of their office in violation of law were usurpers. It is in that sense that I use the term. However good their intentions may have been, I say that in their exercise of power in Louisiana they over threw the Constitution and laws of their country which they had sworn to support; and hence, in my judgment, they are technically usurpers. While we are not to be driven from our posi tion, I think nobody is going to be dismayed or deterred from doing their duty by the Sena tor announcing here that extremes have met. I would to God that we could have more fre quent meetings of the extremes. The Senator from Ohio and myself are regarded as on the extreme verge of opposite opinions here. I am willing, whenever the Senator from Ohio draws his sword and makes a charge on those who are overthrowing the dearest rights of the people, and destroying the constitutional lib erty of the citizen, to fight under his banner; and, sir, he is a sturdy old leader. I was gratified when the Senator from Ohio made his manly speech on this subject. I am willing to fight under his banner, and I will fol low him to the fight when the Senator from Wisconsin and the Executive and major-gen erals make crusades against the civil liberties of the people. I differ from the Senator from Ohio upon many subjects; but there is a blunt honesty and manhood and candor about him which I admire. He is unlike the Senator from Wisconsin in one thing. While his phi lanthropy and his love of freedom are most ex pansive, I believe more so than my own, for I do not think the negroes arc going to be near as well off free as they are in slavery, while he wants them free, and goes even as far as the Senator from Wisconsin on that point, he has a just appreciation of the constitutional and civil liberties of the white man. He is willing to fight for the liberties of the white man. Just at that point, however, the Senator from Wiscon sin falls off, and goes off with a sickly sentimen tality for the woolly-headed negro, and cares nothing for " the poor white trash " of Louisi ana. The Senator from Ohio stands manfully in the breach when their rights are assailed. When he defends the poor down-trodden white man of Louisiana, he defends the people of the whole land. It is their common defense ABRAHAM LIXCOLX, PRESIDENT. 231 against those who assail the great principles of constitutional and civil liberty. We will stand to our guns on that point, notwithstanding the denunciations of the Senator from Wisconsin, and we will fight the battle out and will not surrender. As I have enlisted under the Sen ator from Ohio in this fight, I am not for yield ing, and I do not think he is for yielding, and we both, I believe, are animated by honest con victions to defend the white people of the country against those who seek to overthrow their constitutional and civil liberties, and I believe we will do battle to the very end; and I trust and hope we may conquer and over throw all the enemies of constitutional and civil liberty. So long as the Senator from Ohio is engaged in defending the constitutional and civil liberties of the white man, he will find me a faithful ally. Mr. THUMB ULL. Mr. President, I am not going to prolong this debate by attempting a reply to the position assumed by the Senator from Wisconsin in his excited remarks this morning. We have had everything brought into the debate. The Administration has been defended when nobody has assailed it. Pontius Pilate and Herod have been assailed and defended. We have had a general discus sion about reconstruction, and an excited de bate upon a question which it seems to me should have called for no excitement ; and all I have to say to the Senate now is to appeal to its members that, however much they may be disposed to crucify over again Pilate or Herod or the free State of Louisiana, they will not crucify us here by bringing in all these ex traneous circumstances and prolonging this debate. I think every Senator understands the question. All we wish to settle is to deter mine whether, on Wednesday next, when the canvass of the votes for President and Vice- President takes place, the votes from the States unrepresented in Congress, in a condition of rebellion against the Government, into which goods are not permitted to go, with whom we have no friendly intercourse, shall be counted ns votes cast for President and Vice-President of the United States. We neither determine that those States are in the Union nor out of the Union. That is the question ; and I appeal to Sen ators to let us vote upon it. Business is press ing ; the chairman of the Committee on Fi nance is urgent with his bills. I think every Senator understands this question. Although I have no doubt every Senator could reply to all that has been said inconsistent with the views he himself entertains, if all will forego the making of those replies, we may have the vote, and settle the question. I trust that course will be adopted. The VICE-PRESIDENT. The question is on the amendment of the Senator from New Jersey, to strike out "Louisiana" from the preamble. Mr. TEN EYCK. I ask for the yeas and nays. The yeas and nays were ordered. Mr. JOHNSON. I beg leave to say that my colleague [Mr. HIOKS] is confined to his room by sickness, and has been for the last two or three days. The question being taken by yeas and nays, resulted yeas 16, nays 22 ; as follows : YEAS Messrs. Cowan, Dixon, Doolittle, Far- well, Harlan, Harris, Howe, Lane of Indiana, Lane of Kansas, JNesmith, Pomeroy, Ramsey, Ten Evck, Van Winkle, and Willey 15. NAYS Messrs. Brown, Buckalew, Clark, Colla- mer, Conness, Davis, Foster, Henderson, Hendricks, Howard, Johnson, Morgan, Merrill, Powell, Sauls- bury, Sherman, Sprague, Sumner, Trumbull, Wade, Wilkinson, and Wright 22. ABSENT Messrs. Anthony, Carlile, Chandler, Foot, Grimes, Hale, Harding, Hicks, McDougall, Nye, Richardson, Riddle, Stewart, and Wilson 14. So the amendment was rejected. Mr. LANE, of Kansas. Is it in order to move to strike out the preamble ? The VICE-PRESIDENT. It is. Mr. LANE, of Kansas. I make that motion, and I ask for the yeas and nays upon it. The yeas and nays were ordered. Mr. TRUMBULL. The Senator from Kan sas will observe that if the preamble is stricken out the resolution will be unmeaning, and we shall then have to put into the resolution the names of the States. To strike out the pre amble and do no more would leave the resolu tion unmeaning. Mr. LANE, of Kansas. I should like to have the preamble and resolution read. Mr. POMEROY. If the Senator from Illi nois will modify the preamble by using the words " in such a condition," instead of " in a state of rebellion," the preamble will not be objectionable to me. Mr. TRUMBULL. I have no objection to that if the Senator makes the motion ; but I have no authority to make the modification. Mr. POMEROY. As it is in order to mod ify the preamble before the question is taken on striking it out, I move to amend it by sub stituting the words " such a condition " instead of " state of rebellion." Mr. TRUMBULL. That is in the part of the preamble which was amended on the re port of the Judiciary Committee. Mr. SUMNER. As I understand it, the amendment of the Senator from Kansas is not now in order ; he proposes to amend words which have been voted into the preamble on the motion of the Committee on the Judiciary. The VICE-PRESIDENT. If that be the case the amendment is not in order. Mr. SUMNER. The Senator may make his motion at another stage. Mr. LANE, of Kansas. I asked the Chair if my motion was not in order, and he an nounced that it was. The VICE-PRESIDENT. The motion of 232 TWENTIETH PRESIDENTIAL TERM. the Senator was to strike out the preamble to the resolution, upon which the Senate had not voted ; but an amendment to alter words which the Senate have already inserted is not in order. Mr. LANE, of Kansas. I suppose I can make my motion at a future time. The VICE-PRESIDENT. The Senator s motion is in order. It is the amendment of his colleague which is out of order. Mr. TRUMBULL. Is it in order to strike out a preamble which, if stricken out, will leave an unmeaning resolution? By looking at the resolution you will find that it refers to the preamble, and if you strike out the pream ble the resolution will have no meaning. The VICE-PRESIDENT. The motion to strike out is clearly in order. Mr. TRUMBULL. I have no objection to the preamble being stricken out, but I will not vote to strike out the preamble, if it is to leave an unmeaning resolution. If the Senator from Kansas prefers that the preamble be stricken out and will at the same time propose to alter the resolution, so that it will read, " that the States of Virginia, North Carolina," etc., in stead of the words u the States mentioned in the preamble," I shall have no objection to his motion ; but I cannot consent to strike out the preamble and leave an unmeaning resolu tion. I presume he himself would not desire that. Mr. LANE, of Kansas. "Sufficient unto the day is the evil thereof." I propose, if the preamble be stricken out, to offer then to amend the resolution to meet my own views on the subject. Mr. TRUMBULL. I hope then it will not be stricken out. Mr. SUMNER. I will simply observe that the motion of the Senator from Kansas, if it prevailed, would make nonsense of the resolu tion. I think, therefore, we had better vote against it. Mr. LANE, of Kansas. Will not the resolu tion be in the hands of the Senate for amend ment, if the preamble be stricken out. My object is to have the resolution amended to suit my own views. The question being taken on the motion of Mr. LANE, of Kansas, by yeas and nays, re sulted yeas 12, nays 30; as follows: YEAS Messrs. Cowan, Doolittle, Harlan, Harris, Howe, Lane of Indiana, Lane of Kansas, Nesmith, Pomeroy, Ten Eyck, Van Winkle, and Willey 12. NAYS Messrs. Brown, Buckalew, Chandler, Clark, Conness, Davis, Dixon, Farwell, Foster, Grimes, Hale, Henderson, Hendricks, Howard, John son, Morgan, Morrill, Nye, Powell, Ramsey, Sauls- bury, Sherman, Sprague, Stewart, Sumner, Truni- bull, Wade, Wilkinson, Wilson, and Wright 30. ABSENT Messrs. Anthony, Carlile, Collamer, Foot, Harding, Hicks. McDougall, Richardson, and Riddle 9. So the Senate refused to strike out the pre amble. Mr. COLLAMER. I now offer my amend ment to strike out the preamble and the whole of the resolution except the resolving clause, and to insert : That the people of no State, the inhabitants whereof have been declared in a state of insurrection by virtue of the fifth section of the act entitled " An act further to provide for the collection of duties on imports, and for other purposes," approved July 13, 1861, shall be regarded as empowered to elect elec tors of President and Vice-President of the United States until said condition of insurrection shall cease, and be so declared by virtue of the law of the United States ; nor shall any vote cast by any such electors elected by the votes of the inhabitants of any such State, or the Legislature thereof, be re ceived or counted. Mr. HARRIS. I propose to amend that amendment by substituting what I sent to the Chair. Mr. COLLAMER. Before the amendment of the Senator from New York is read, I de sire to modify my amendment, at the sug gestion of the Senator from Ohio [Mr. SHER MAN], by inserting the words " or until they shall be represented in both Houses of Con gress," after the cjause relative to the condition of insurrection having ceased, and been so declared by virtue of a law of the United States. The VICE-PRESIDENT. The Senator s amendment will be so modified. The question now is on amending the amendment of the Senator from Vermont, by striking it all out and inserting the substitute proposed by the Senator from New York, which will be read. The words proposed to be inserted by Mr. HAEEIS were read, as follows: Whereas in pursuance of an act of Congress ap proved on the 13th day of July, 1861, the President did, on the 16th day of August, 1861, declare the inhabitants of certain States, and among others the States of Tennessee and Louisiana, to be in a state of insurrection against the United States ; and whereas, with a view to encourage the inhabitants of such States to resume their allegiance to the Uni ted States and to reinaugurate loyal State govern ments, the President, on the 8th day of December, 1863, issued his proclamation, whereby it was de clared, among other things, that in case a State gov ernment should be reestablished in any of said States, in a manner therein specified, such govern ment should be recognized as the true government of the State ; and whereas the loyal inhabitants of the States of Tennessee and Louisiana, invited so to do by the said last-mentioned proclamation, have in good faith established State governments loyal to the United States, or attempted so to do ; and whereas such loyal inhabitants at the recent presi dential election have chosen electors of President and Vice-President, who have, in -pursuance of the requirement of the Constitution, cast their votes for the President and Vice-President ; and whereas doubts exist as to the validity of such election of presidential electors in the said States of Tennessee and Louisiana; and whereas it is well understood that the result of the presidential election could in no way be affected by the votes of the said States, whether the same be counted or not : Therefore, Beit resolved, etc., That it is expedient to deter mine the question as to the validity of the election of electors in the said States of Tennessee and Lou isiana, and that in counting the votes for President and Vice-President the result be declared as it ABRAHAM LINCOLN, PRESIDENT. 233 would stand if the votes of the said States were counted, and also as it would stand if the votes of the said States were excluded, such result being the same in either case. Mr. WILSON". There is a statement of fact in that proposition which I think is not a fact, and that is, that the State of Tennessee has es tablished a loyal State government. There h:ts been no State government established there, though I am told one will go into opera tion on the 4th of March. Mr. TRUMBULL. We all understand the question. Let her vote. Mr. HARRLS. I ask for the yeas and nays on my amendment to the amendment. The yeas and nays were ordered; and be- in^ taken, resulted yeas 12, nays 31 ; as fol lows : YEAS Messrs. Cowan, Doolittle, Farwell, Har ris, Howe, Lane of- Indiana, Lane of Kansas, Nes- mith, Fomeroy, Ten Eyok, Van Winkle, and Wil- ley-12. NAYS Messrs. Brown, Buckalew, Chandler, Clark, Collamer, Conness, Davis, Dixon, Foster, Grimes, Hale, Harlan, Henderson, Hendricks, How ard, Johnson, Morgan, Morrill, Nye, Powell, Ram sey, Saulsbury, Sherman, Sprague, Stewart, Surn- ner, Trumbull, Wade, Wilkinson, Wilson, and Wright 31. ABSENT Messrs. Anthony, Carlile, Foot, Har ding, Hicks, McDougall, Richardson, and Riddle 8. So the amendment to the amendment was rejected. Mr. TRUMBULL. The practical effect of the amendment offered by the Senator from Vermont is the same as that of the resolution which has passed the House of Representa tives. Under the operation of the amendment the electoral votes from the States named in the House resolution will be excluded, so that practically there is no difference bet ween them as to the effect in canvassing the votes on Wednesday next. The Senator s amendment, however, goes a little further ; it has the ad vantage of being a general proposition, as the Senator thinks; but, when you come to scan it, it has no advantage in that respect, because you have to look to the proclamation to con strue the Senator s amendment to find what States are declared in insurrection, and then the States are named ; they are named in the proclamation just as they are named in the preamble of the House resolution, so that you come right around to the same place. The practical effect is precisely the same. There is this difference, however, between the proposi tions : the Senator s proposition is not limited to the case now in hand; if the rebellion should continue four years longer, and until another presidential election is held, it would be in the power of the President of the United States, by a proclamation, to declare any State in the Union to be in a state of insurrection, and to prevent its voting at a presidential elec tion. He could issue his proclamation and de clare the State of New York, or any other State, to be in a state of insurrection ; and un der the amendment her vote could not be counted. I do not think it well to go further than the occasion requires. That is one sug gestion that I make in reference to it. Another is this: the House of Representa tives have originated and passed this resolu tion ; and, unless something is to be gained by a change of its language, it is not desirable to change it. The Committee on the Judiciary had this resolution before them ; and, although perhaps they would have preferred some change in it, they made none. The committee con sidered it carefully, and recommended the Sen ate to adopt the resolution as it came from the House. They did propose a change in the preamble because they thought it would com mit the Senate to a fact which some members of the committee desired not to be committed to. As it passed the House of Representa tives, the preamble stated that these States, naming them, continued in a state of armed re bellion for three years, and were in such con dition of rebellion on the 8th of November last. There was some dispute as to that among the members of the committee ; and, to avoid that, that portion of the preamble was recom mended to be stricken out, but the resolution itself was not interfered with. Now, sir, inasmuch as the House has sent us the resolution in this form, inasmuch as the practical effect of the amendment offered by the Senator from Vermont will be precisely the same as that of the resolution the Housa have sent us, I think we had better adhere to the House resolution and the report of the Committee on the Judiciary. If the House had sent the proposition to us in this form, instead of the form in which they have sent it, I do not know but that I should have pre ferred to take that. As the question is now before us, and there is one objection that may properly lie against the substitute, I think we had best adhere to the report of the commit tee on the House resolution. Mr. JOHNSON. T have no objection to the amendment pro t j >sed by the honorable member from Vermont, and I do not think I could vote for it if the proposition had como in that form from the House of Representa tives. The act of July, 1861, does not state that there are any particular States in rebel lion ; it names no State at all. It only pro vides that when the President shall think that a state of insurrection exists, he may proceed under the act of 1795. and declare that State to be in a state of rebellion. Mr. COLLAMER. That is not it. Mr. JOHNSON. I think that is it substan tially. I do not think I can be mistaken about it ; but if I am mistaken as to that, I am cer tainly right in saying that that act does not name any particular State in rebellion. [Mr. COLLAMER nodded assent.] So far, the honor able member admits that I am correct in my recollection. Then they have been placed in the condition which the honorable member supposes would deprive them of the right of 234 TWENTIETH PRESIDENTIAL TERM. electing electors, by virtue of the President s proclamation issued under the authority of that act. We have left it to him, therefore, to say what States are to be considered as States in rebellion; and the proposition of the honorable member is that any States which he may have declared to be in a state of rebellion are to be considered, \vith reference to the power of electing electors, as remaining in rebellion un til Congress by act shall declare otherwise, or until the members elected from such States as Senators and Representatives shall have been admitted by both branches. That I under stand. Now, as I think and I believe that is the opinion of the honorable member him self these States have never . been, in a constitutional sense, out of the Union; and they are to be considered, therefore, with reference to our power over them, as States in the Union. My idea is, that if the Presi dent, by his proclamation issued in pursu ance of the act of 1861, can deprive them of the right of electing electors, it is only be cause they are to be considered as in a state of rebellion ; and if he can place them in a state of rebellion, why can he not say that that re bellion is terminated ? Suppose the President had, by a proclamation issued before the 8th of November, announced to the country that the war, as against Tennessee, for example, was not to be carried on because the rebellion in Tennessee was put an end to ; she was to be considered as in the Union. If my friend s amendment is the proper course to be pursued, she would not have been authorized to elect electors. According to that view, her author ity to elect at any time afterward would depend upon the happening of one or two facts; either that Congress should have passed a law admit ting Tennessee into the Union, or declaring that the rebellion in Tennessee was terminated, or upon the fact that, in the absence of such act of Congress, Tennessee had elected Represent atives and Senators, and each branch had re ceived the members elected to that branch. Now, Mr. President, suppose the President of the United States had declared that the re bellion in Tennessee was at an end, or, to put it stronger, suppose he had issued a proclama tion before the 8th of November stating, and the fact was so, that the war had ceased in each one of those States who were declared by his proclamation issued under the authority of the act of 1861 to be in a state of rebellion ; suppose w T e all knew that ; suppose every Sen ator here was satisfied that the President s proclamation was true in point of fact, that the war had terminated, that the authority of the United States in these States was restored, and just as effectually as it existed before the rebellion was inaugurated, and Senators from those States had come here properly appointed by the Legislatures of the States ; are we pre pared to say that we would not receive them unless the other House should have received the members, or would the other House be willing to exclude members elected under such circumstances until the Senate should have declared that it would receive the Senators elected under the same circumstances? My idea is that all that is necessary in order to en title those States to be represented, either in the Electoral College or in Congress, is the fact that at the time the members are elected to one House or Senators are appointed to the other, the rebellion should have then termi nated, and that peace should have been re stored, the authority of the Constitution rein stated. If I am not right as to that, it is because the opinion which I stated just now (and in which I believe the Senator from Vermont concurs, to a certain extent at any rate) is erroneous. Are the States out of the Union? I say they are not. If the States are still in the Union, just as much a part of the United States as they ever were a position demonstrated by the fact that we are carrying on the war in order to force them to yield upon the hypothe sis that they are in the Union if that proposi tion is right, that the States are in the Union, it must be true, as I think, that they have a right to elect Representatives and Senators the moment the contingency has happened that puts an end to the obstacle which, as long as it continued, deprived them of the authority to elect ; that is to say, on the termination of the rebellion. If my friend is right, Tennessee may have yielded, every man in it may have yielded long before the 8th of November; all the courts of the United States may have been again organized ; the whole authority may have been reinstated ; and yet she w r ould not be entitled to appoint Senators or to elect Representatives until Congress should declare that the rebellion was ended as to her, or until both Houses should agree to receive Senators and Representatives. Now, I submit to my friend from Vermont that, if he concurs with me in thinking that these States are now in the Union, a proposition like that is notoriously in conflict with that opinion ; and I hope, there fore, with due deference to the better judg ment of the honorable member who moves the amendment, that it may not be adopted, but that, on the contrary, we shall adopt the proposition as it came from the House of Representatives and as it stands amended by the report of the Judiciary Committee of the Senate. Mr. COLLAMER, Mr. President, I under stand that this resolution, as passed by the House of Representatives, has already been amended in the Senate on the recommenda tion of the Committee on the Judiciary. Then it must go back to the House of Representa tives for action. Having already been amend ed by the Senate, it will have to receive action again in the other House, and the amendment ABRAHAM LINCOLN, PRESIDENT. 235 which I propose, if adopted, will not alter that condition. There is, therefore, no objection to ray amendment on that ground. In the act of 1861 Congress did not attempt to declare any particular State to be in a con dition of war or insurrection. That act was drawn with care, and was intended to be so. It states a condition of things, and declares that when that condition of things arises in any State, in that contingency the President may issue his proclamation declaring the in habitants of that State to be in a condition of insurrection, and thereupon the consequences are to ensue which are stated in the act, the consequences of a state of war. Congress alone under our Constitution has the power to declare war, and therefore Congress alone is to define what shall be a condition of war with any of our own States. In fact, there may be a war of our own States against the Govern ment, as we have experienced sadly, and of course, therefore, there may be a war of the Government against them. I say Congress is to declare when that condition of circumstances exists; and Congress did it in the act of 1861. I dislike the proposition contained in this House resolution, because by it Congress un dertakes to exercise the power of declaring now, and in relation to a pending election, that the votes of particular States, by name, shall not be counted, because those States are in a condition of insurrection. I dislike to under take to legislate for a State by name particu larly, as I have before stated to the Senate. I want a general law on the subject. The act of 1861 was a general law by which all States were subjected to its operation in the same contingency. It seems to me that Congress, who defined in the act of 1861 what should be a condition of things which would put the inhabitants of a State in a state of insurrection against the Government, can alone define and decide upon that condition of things which shall restore a State to its allegiance. The de cision must be by the same body, the same power. I know in relation to foreign nations that if we have a war with them declared by Congress, the President, with the concurrence of two-thirds of the Senate, may make a treaty of peace; but even in that case, there is the intervention and the exercise of power by one branch of Congress, the legislative department. But it seems that some gentlemen imagine that when we have made a law declaring the cir cumstances and contingencies which shall cre ate a condition of insurrection and war on the part of States against the General Government, that condition may cease by the decision of the Executive, without any intervention of the power which created it. That does not seem to me to be so. A treaty of peace cannot be made with the insurrectionary States. The President cannot negotiate a treaty of peace with Mr. Davis or anybody in the South. No such treaty can ever come before the Senate. If you treat with them, you acknowledge their power as a nation ; you acknowledge them as an independent power. No such treaty ever can be made. The declaration made by the act of 1861, which the Supreme Court of the United States has decided amounted to a dec laration of war, was an act of the Legisla ture ; and inasmuch as the treaty-making power cannot make a treaty of peace in this case, I think the legislative power should be exercised in declaring the restoration of the condition of peace, in declaring when, in the judgment of Congress, we have reached a cessation of the condition of insurrection. Congress has power to put an end to the old condition, or both Houses by receiving members from those States decide in effect that the condition of war has ceased ; but, in the mean time, until that does take place, I think the people in such a State should not be exercising the powers of the in habitants of an independent State of the Union. I propose to do this thing by the exercise of the same power which created the existing condition of affairs in the act of 1861. I wish by the law to state the condition, and to let Congress decide upon the condition of things which will restore the States to their former relations. That should be done by the two branches of Congress, either by the passage of a law or the admission "of members. That seems to me to be untying the knot in the man ner in which it was tied. For these reasons, and because I want the law to be a general law like other laws for all States in the same contingencies, I prefer the amendment which I have presented. The sug gestion of the honorable Senator from Illinois, that the President might declare a State to be in a condition of insurrection in order to prevent her voting for President, is to me too distant, too improbable, too extravagant a supposition for anybody to present it as an argument. Mr. LANE, of Kansas. I desire to ask the Senator from Vermont a question, and before doing so I will make a statement. It is my purpose to recognize the State government of Tennessee, Louisiana, and Arkansas, and to vote for the reception of the Senators from those States whenever they present themselves. Suppose we adopt the amendment of the Sena tor from Vermont to-day, and Senators from those three States present themselves to-rnor- row for reception here, and the members of the other House present themselves to that House, is there anything in this amendment to pre clude such action ? Will the reception of those Senators and Representatives reinstate those States in the Union as they were before they rebelled ? Mr. COLLAMER. The gentleman has put this question very candidly, and he is entitled to as much of an answer as I am prepared to make. The adoption of my amendment would in no way, in my estimation, embarrass the I question which the gentleman puts, or any action which Congress might take upon it. To be sure, it would do what it says shut out 236 TWENTIETH PRESIDENTIAL TERM. the electoral votes which have heen cast in any of these States heretofore in the interim ; that is all. I will say further, that, in deciding upon re ceiving Senators from any State which has heen in a condition of insurrection, I do not think it is necessary that there should be a law like that which is ordinarily passed, called an " enabling act, 1 to enable a Territory to form a State government. I do not think it needs any new law of Congress to enable the people of any one of the States which are in insurrection to lay down their arms, gjp home, and submit to the operations of the General Government, reorganize their State govern ment, and present their representatives for admission here. 1 say it requires no previous law of Congress to enable them to do that. Indeed, we have decided repeatedly in Con gress that it needs no enabling act to enable a Territory to form a State government. If they do meet in convention, and do form a State constitution republican in its form, and actually elect their members and Senators under it, Congress has recognized such States and received those Senators and members elected before any act was passed on the sub ject by Congress. No doubt in my mind the same thing may be done here. If we are sat isfied that the reorganization is substantial and abiding, that it has been fairly made, and that it will answer the ends of reorganization, undoubtedly we may admit, by our act here, the Senators, and the other House may admit the Representatives, without any previous ac tion of Congress about it. I think the gentle man has my whole answer. Mr. POWELL. Allow me to ask the Senator a question. If the Senate were to admit the Senators from those States, and the other House should admit their Representatives, then would the electoral votes be counted in elec tions held hereafter unless Congress should pass a law preventing it? Mr. COLLAMER. Certainly. And I have put in my amendment the very words that they shall not cast electoral votes until either their condition of rebellion has been declared to cease by virtue of a law of Congress, or their mem bers are admitted to seats in both branches of Congress. Mr. POWELL. I was not aware that the latter provision was in the amendment. Mr. COLLAMER. I have made that modifi cation. Mr. POWELL. Was it proposed to-day? Mr. COLLAMER. Yes, sir. Mr. PO WELL. I was not aware of it. Mr. COLLAMER. I am free to acknowledge that I prefer the proposition in this form so that this law, when passed, shall stand consist ently with the laws we have heretofore enact ed. And I wish it to stand in a shape requir ing that the members shall have been admitted in both Houses. I do not want a quarrel and controversy got up by a possible supposition of the two Houses differing on the question. Mr. POMEROY. I do not yet understand the Senator from Vermont to have answered the question whether he would receive mem bers from States declared to be in insurrection, and admit them here unless there was a previ ous act of Congress or proclamation of the President removing the restriction. Would he receive Senators while there was non-inter course between the States they represented and the other States? Mr. COLLAMER. I thought I had answered that, and I think if I had been listened to at tentively it would be found that I had an swered. Mr. POMEROY. I listened attentively. Mr. COLLAMER. I resembled the case, for it is the nearest parallel I can make, to the case of a Territory which organized a State gov ernment and sent representatives here. Mr. POMEROY. There is no non-inter course proclaimed \rith Territories. Mr. COLLAMER. That makes no differ ence as to this point. Here we have prevented commercial intercourse because of the existence of a state of war. Though the people of a Territory had no right to elect a Senator when they did elect him in the case I have men tioned, and though they had no right at that time to elect members to Congress, yet if they did make a constitution and did make those elections, and Congress afterward by law rati fy what they have done, it is all well enough. Just so here ; though these States have not by any previous legislation of Congress been de clared to be out of the condition of insurrec tion, yet if they are so in point of fact, and it turns out that they have regularly reor ganized a loyal State government under the United States and made elections accordingly, and Congress on examination become satisfied of that, find that to be true, and that the gov ernment they have formed will answer all the purposes of a State government and can be perpetuated, and Congress then admits their representatives, that is the end of it. My amendment is that when their representatives are admitted by the two Houses their electoral votes shall be received. Mr. COWAN. I should like to know, after we authorize the President by proclamation to cut off all commercial intercourse with the re bellious States, whether the President himself, without any further act of Congress, cannot restore that commercial intercourse ; whether, as fast as the rebellion disappears before the advance of our armies, this intercourse is not restored in the same proportion? I think the honorable Senator s view of it involves a non sequitur. Because we have authorized the President to cut off intercourse with these States, it does not follow that it will require another law to restore it. It restores itself, of itself, the moment the rebellion has been put ABRAHAM LINCOLN, PRESIDENT. 237 down. It comes back of itself ; it is the natu ral condj^ion which was disturbed and de ranged by this abnormal state of affairs which the rebellion introduced; it is not necessary that there should be any further legislation in order to bring it back to the healthful and or dinary condition. Mr. JOHNSON". When I was up before I had not the act of July, 1861, before me, to which my friend from Vermont has referred. I have it now, and I think it will be found en tirely inconsistent with the proposition which his amendment includes. I understand his amendment to be that no votes, either cast now or cast hereafter for electors of President and Vice-President, are to bs counted until either Congress shall by law declare that the States are to be considered as States in the Union, or until both branches of Congress shall have received the representatives who may have been elected by the inhabitants of such States. The proclamation to which my friend refers is the proclamation which the President was authorized to issue under the authority of the fifth section of the act of July 13, 1861. A majority of the Supreme Court decided that war existed between the United States and the rebellious States just as efficiently be fore the act of July 13, 1861, was passed, as afterward. The only difference between the judges was whether it was to be considered as existing until the act of July 13th was passed; but the court decided that it would have been perfectly immaterial whether the act of July 13th had been passed at all; and the majority who held that opinion said that, after the act of 13th of July was passed, there could be no doubt of the question, because that act recog nized a state of war. The minority of the court was of opinion that until the act of July 13th was passed, it was to be considered merely as an insurrection, not affecting at all the politi cal relation existing between the States in re bellion and the rest of the States. The act of July 13th, in the section which alone ap plies to the casa, merely says : " That whenever the President, in pursuance of the provisions of the second section of the act en titled An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrec tions and repel invasions, and to repeal the act now in force for that purpose, approved February 28, 1795, shall have called forth the militia to suppress combinations against the laws of the United States, and to cause the laws to be duly executed, and the insurgents shall have failed to disperse by the time directed by the President, and when said insurgents claim to act under the authority of any State or States, and such claim is not disclaimed or repudi ated by the persons exercising the functions of gov ernment in such State or States, or in the part or parts thereof in which said combination exists, nor such insurrection suppressed by said State or States, then and in such case it may and shall be lawful for the President by proclamation to declare that the inhabitants of such State, or any section or part thereof, where such insurrection exists, are in a state of insurrection ngaibst the United States ; and thereupon all commercial intercourse by and be tween the same and the citizens thereof and- the cit izens of the rest of the United States shall cease and be unlawful." How long? Until Congress shall declare that the condition of hostility no longer exists, or until the President shall declare that it no longer exists? No, but " Shall cease and be unlawful so long as such con dition of hostility shall continue." So that, looking to the mere words of the act, and looking to the constitutional authority of Congress, and consequently the duty of Con gress, the moment jthe insurrection ends, or, to use the language of the act, the moment the hostility ceases, then the commercial inter course begins again, and, that beginning, the State is back in the Union for all purposes. Now, therefore, the only question is (as that act does not provide that the state of hostilities is to continue until Congress shall, by some act thereafter, declare that such hostilities have terminated), whether the act itself, with refer- to the provisions contained in the fifth section, does not expire upon the happening of the con tingency of the cessation of hostilities. How would that be in a certain state of things that can well be imagined? That act was passed on the 13th of July. The President, some time in August, issued a proclamation stating that these States were in a state of insurrection. Suppose soon after that, Congress having adjourned and not being in session, every man in each one of these States so declared to be in hostility to the United States had laid down his arms, ceased to carry on any hostile proceeding against the United States, would they not be entitled to the benefit of the Constitution of the United States until Congress should meet in the following month of December and by act of Congress de clare hostilities to have terminated, or until the two branches should have received the members ? I submit of course with due deference, be cause my friend from Vermont entertains a different opinion that the moment that in point of fact hostilities have ended, the rebel lion is at an end; and the moment the rebel lion is at an end the States are back. My friend tells us, and tells us very properly, that in the case of an international war once prop erly commenced, it cannot be terminated by any treaty which does not receive the sanction of the Senate of the United States. This is all true enough, but the war may terminate long before any treaty is made. Suppose that during the last war with Eng land she had withdrawn all her armies, had pronounced her determination through her Parliament that as far as she was concerned she wished to be considered at peace with the United States, would not the war in point of fact have terminated, although there was no treaty of peace? The Constitution provides that Congress shall declare war. Suppose they 238 TWENTIETH PRESIDENTIAL TERM. do not declare war, may not war exist in the absence of a declaration? Certainly it may. That the courts have decided over and over again. And if war can commence by the hap pening of hostilities in point of fact, and be accepted by the President in defending the nation under his authority to see that the con stitution and laws are faithfully executed, why cannot the war be terminated in point of fact, even an international war ? But in relation to a war of this description, as I stated just now, there can be no doubt on that point. Con gress has no constitutional right to carry on a war against States. If my. friend will look at the decision in the prize cases he will find that the majority and minority both admitted that there is not in Congress, or in any department of the Government, any power to declare war as against a State. It is not provided for in the Constitution. The whole authority that Congress have on the subject is under the power to suppress insurrection. Whether in suppressing insurrection the insurrection may culminate to such a point as to amount to war in the meaning of the prize law, is another question ; but so far as the declaration of war is concerned, there is no authority at all in Congress, or in any other department of the Government, legislative or executive, to declare war against a State. Then what is the authority, the sole authority ? To call out the militia and the forces of the United States to put down insurrection. How long does that last ? Only so long as that insurrection continues. That must be very clear. How was it with what is called the whiskey insurrection? It did not go to the extent that the courts or the President would have been authorized to say that a state of war existed between Pennsylvania and the United States. Congress did not declare that the in surrection was at an end ; nothing like it. The President declared it. It ended itself. The insurrectionists laid down their arms, expressed willingness to yield obedience to the authority of the United States, and that ended the in surrection and disbanded our forces, and that happening, the State of Pennsylvania, every part of it, stood exactly in the relation, for all purposes, in which the State and every part of it stood before the insurrection was com menced. There is in the Constitution no power to declare war against the State of Tennessee (to take a single case), and nobody, I suppose, will say that there is. The Constitution never contemplated such a contingency. It was pro posed in the Convention, but it was objected to upon the ground that a provision of that description would place the United States in their relation to the State against which war was declared as a foreign nation for all pur poses, and carry the State out of the Union. The answer was that all that was necessary to have accomplished what could be accom plished by giving to Congress the authority to declare war against a State, was to make each citizen of the United States amenable to the Constitution and laws of the United States, and to empower the Government to put down insurrection. That being my view, I maintain, I repeat it again (with great respect for the opposite opin ion entertained by the honorable member from Vermont), that if these men were to throw down their arms to-morrow they would be in the Union, and we have no authority to keep them out. The authority to keep them out now is because of the insurrection, and be cause of our authority by force of arms to put down that insurrection ; but, the insurrection terminating, they stand as they stood before. Mr. CLARK. I suppose the Senator would not insist that this vote should be counted even if they did throw down their arms ? Mr. JOHNSON". Not at all ; by no manner of means. Now, Mr. President, a singular state of things is existing at the very moment I am speaking. The President of the United States, under the authority of the act of 1861, has declared these States in a state of insurrec tion, and we have hundreds of thousands of men upon the field of battle. What is said to be the case? Officially or unofficially he sends or authorizes to go to Richmond a very re spectable gentleman, as it is supposed, to ascer tain upon what terms this war can terminate, or, to state it in different words, on what terms or conditions this insurrection can ter minate. He goes. He is said to have re turned. While there he had no interview with these rebel authorities. He returns. He goes back again in a Government vessel. Did he, after his return and before he went back to Richmond, have an interview with the Presi dent of the United States ? If so, what was the result of that interview? We do not know, but we may have our speculations about it. Suppose that in that interview, acting under an express authority from the Confed erate authorities, he informed the President of the United States that they are willing to lay down their arms now, and come back into the Union at once ; that they are willing to admit that slavery is either actually abolished by force of his proclamation, or that it has been abolished to the extent that your armies have gone and you have got actual physical possession of the negro ; and that they are willing to leave the question of the effect of the proclamation over such portion of the slaves as have not come within the possession of the military au thority of the United States to be passed upon by the courts. The President, it is said, is willing to do that. He has said that more than once. Suppose, further, that they are willing I am dealing in speculation, but I believe to a certain extent it is right suppose they are willing to say, " We assent in coming back to the Union to be governed by any constitu tional amendment which may be now in prog- ABRAHAM LINCOLN, PRESIDENT. 239 ress, or which may be started hereafter, abol ishing slavery throughout the United States;" and the President says (for no treaty is neces sary), " I agree ; I am warring against you now exclusively under the authority of the act of the 13th of July, 1861. I agree to that; if you will throw down your arms and express a willingness to abide by the decision of the courts on all questions of doubt in relation to the continuance of slav ery, if you will not claim the right to have restored to slavery those who have enjoyed even for a moment the blessings of free dom, and you are willing to stand by any con stitutional amendment upon that subject which may be adopted by the required number of States, come back, corne back, for I have no right to carry on the war further; the war ends of itself." It would be, in my view, upon the part of the President murder if he authorized a single man to be shot upon the field of battle or otherwise after such a state of things as that should arise. Suppose *and no doubt that will be a con dition if we are to have peace, and I pray to God we may have it these gentlemen should say further that there is one condition which must be understood between us. Suppose they should say (and I believe it is true of some of them) they have honestly believed that the right of secession exists. Gentlemen are not to forget that upon that question some of the best minds in the country, North and South, have held different- opinions. Many of them have entertained that opinion. I think it is a terrible heresy, as the result has proved, a most pestilent heresy, a destructive heresy, but it was earnestly entertained. The President of the United States himself, when he was in Congress in 1845 or 1846, if he meant what his words stated, entertained it. Some of the leading presses of the country at the North have entertained it. I mention it not for the purpose of giving it any little support that it might possibly derive from any opinion of my own upon it, or weakening it by the expres sion of an adverse opinion, an opinion which I have sincerely entertained from the time I was capable of thinking ; but I cannot be blind to the fact that some of the best men of the South, patriotic men, were of that opinion ; and the inhabitants of the South to a great extent, and particularly the young and ardent, who thought they were the salt of the earth, because, of the existence of the institution of slavery, and that there could be no civilization without it, have been made to believe that the doctrine was a sound one. They have seen their error. God knows they ougfct to have seen it. They see it now in its recognition in their own constitu tion. They are threatened now with destruc tion, with dissolution, because they have in corporated that doctrine in their constitution. They see and God be praised that they have been made to see it that the resolution of the country is so perfect, and the devotion to the Union is so absolute, that, happen what will, we of the loyal States mean to prosecute the war to the end until the insurrection is put down, which has no other foundation in point of law than the assumed right of secession. Now, suppose that these commissioners who are said to be with the President Stephens, who denounced secession, and predicted almost in words what the South has suffered ; Hunter, who never was a party to it ; Campbell, of the Supreme Court, who, I know, whatever his opinions may have been when he was at the bar of Alabama, after he came to be a mem ber of the Supreme Court, and it was his duty to study the decisions of that tribunal to make himself fit to discharge its eminent du ties, and after he became eminently capable, thought it was the vilest heresy that ever en tered into the imagination of man, but was carried away by circumstances surrounding him suppose they come and say to the Presi dent, and say to us, " We know that the whole thing has been wrong; we see the horrors which have resulted from it. To say nothing of the consequences to the North, which are comparatively trifling, we cannot look upon our own fields, our own States, and our own homes, without feeling that we have com mitted the error of our lives, and sinned against the God of justice, whose judgment it has been to visit ns with these horrors. We see it all ; we know that we have been led astray by a few master-spirits ; but we feel in honor bound to stand by them. We ask, therefore, a general amnesty; pardon all." Suppose the President says, and he has a right to say it under the authority with which he is clothed, the pardoning power these men being offenders against their duties as citizens, and having committed treason, he has the power to pardon them suppose he says, " I pardon all." He issues the amnesty proclamation to-mor row, announces that the rebellion is ended, the insurrection terminated, and upon terms hon orable to the United States. The plea upon which it rested for its justification constitu tionally is withdrawn. They confess it has no foundation. They are back. Can you say that he has not the authority to do so ? We have not the authority ; it belongs to him ; and it is for him to decide when he will exer cise it. He turns to the act of 13th July, 1861, and he finds that the termination of his power to use the navy and army of the United States and the militia of the United States to put down the insurrection is the termination of the insurrection, and he comes back to the seat of Government and announces to the constituted authorities of Congress and the country that the war is over. What are we to say ? It is not necessary to consult us ; I mean in point of law. The manner of doing this is quite another thing. I have my own opinion about that. I do not choose to express it here. But suppose he comes back and issues a 240 TWENTIETH PRESIDENTIAL TERM. proclamation such as I have indicated and God grant that he may, provided the terms be honorable and fair and communicates the facts to Congress, what are you going to do ? Why, Senators, what happened the other day ? It was shown that, notwithstanding the arts of the traitor and the demagogue, no length of time will be sufficient to exclude from the bosom of Americans the affection which they hold toward each other and toward their coun try. These commissioners, it was known, had left Richmond on their way here upon some mission of peace. They first went through the lines of their troops. How did they go through? Amid the huzzas and gladdened shouts of the thousands and thousands of men who are there in battle array against the oppo site foe. They passed their lines; and we are told by the Richmond press that the moment the news reached the army of the United States, the soldiers cheered universally until each man grew hoarse. Cheered for what on either side ? Cheered because they saw, as they thought, that the war which had made them enemies was about to terminate ; that the ancient brotherhood was to be restored ; that they should no more meet each other in battle array, or in the grasp of death, to do all they could to murder each other ; but that the time was approaching when they could em brace each other as brethren and as American citizens. Mr. CONNESS. Will the Senator permit me to ask him a question ? Mr. JOHNSON". Certainly. Mr. COKNESS. How does the Senator know but that the southern army, so called, cheered because they believed that those com missioners were going to arrange the terms for their independence, as they term it? And how does the Senator know but that our army cheered because they believed the commission ers were going to acknowledge the power of the Union and the supremacy of our flag ? Mr. JOHNSON. I do not know. I think I have already stated that I do not know any thing about it. But how does the honorable member know that they did not? If both sides cheered, the probability is that they were cheering for the same purpose. But let me answer the honorable member. The South ern soldiers, and are not so besotted is to terminate by the recognition of their in dependence, particularly at this time. The ar mies of the Union and the navies of the Union are triumphant everywhere. Victory perches upon our standard in every battle-field and upon every naval encounter, and these men know that. Jefferson Davis, or those in au thority, never would have authorized commis sioners except under an authority to yield their asserted independence and to recognize the continuing integrity of the Union. Mr. HOWARD. If the Senator will permit me particularly the officers, are d as to believe that this war Mr. JOHNSON. I would rather not be in terrupted now. Mr. HOWARD. Very well ; I merely rose to ask the Senator a question for information. Mr. JOHNSON. I have only a word or two more to say. Mr. CONNESS. I ask the Senator s par don for having interrupted him. Mr. JOHNSON. Not at all. I am perfectly willing that either of the gentlemen should rise and put any question to me, and I only objected to the honorable member from Michigan be cause I was about to close. I will not postpone any question put to me for any length of time. But suppose we do not know for what they were cheering. Have we any right to suppose that the fact is not as I have stated ? Is it so improbable that no sane man could suppose they were cheering for such a thing ? Mr. COLLAMER. Perhaps they were cheer ing at the idea that they would be able to go home in peace. Mr. JOHNSON. I have no doubt about that. I refer to this, Mr. President, simply for the purpose of showing that no matter what has happened in the past, no matter how bitterly we have felt toward the South, if we have felt bitterly toward the South, and no matter how bitterly, they have felt toward us, as certainly they have, all the indications are that they have seen the error of their ways ; and if, having come to that conclusion, they throw down their arms, and the President de clares by his proclamation of amnesty that they are all pardoned, and announces to the country that the war is at an end, you may pass as many acts of Congress to raise troops to carry on the war as you please, and you will not get a man. The hearts of the people would rebel at carrying on an unnecessary con flict with those who have stood shoulder to shoulder with us in some of the most trying periods of our history, carrying with us the standard of the Union upon every battle-field contributing to our glory, and sharing with us in that glory. They never will consent, and God forbid that they should, to carry oh the war a moment after, in point of fact, obedi ence has been yielded by these men, criminal or mistaken, and the authority of the Union restored everywhere throughout the country, and the flag floating upon every place on which the flag could properly float. I have been led into this discussion by my desire to meet the authority of the honorable member from Vermont, and nobody yields to it with more pleasure than I do, who seems to contend that this war must go on until the in surrection is declared to be terminated by Con gress, or until Senators and Representatives have been received in the Senate and House of Representatives under the act of July 13, 1861, because, by my interpretation of that act, the President has no power to carry on the war an hour after he is satisfied that the hostility which authorized him to employ the Army and ABRAHAM LINCOLN, PRESIDENT. 241 Navy has terminated. Once terminated, for all the consequences he is responsible to the country. Mr. COLLAMER. Mr. President- Mr. HENDRICKS. Would you rather speak to-morrow ? Mr. SHERMAN". Let us take a recess. Mr. COLLAMER. I do not want to come back here to-night. Mr. HENDRICKS. Well, we will adjourn until to-morrow. Mr. COLLAMER. If any gentleman wishes to move an adjournment, I will give way. Mr. COWAN". I move that the Senate do now adjourn. Mr. TRUMBULL. I hope not. I call for the yeas and nays. The yeas and nays were ordered ; and being taken, resulted yeas 22, nays 21 ; as follows : YE AS Messrs. Brown, Chandler, Collamer, Cowan, Davis, Dixon, Doolittle, Harlan, Harris, Henderson, Hendricks, Howard, Howe, Johnson, Nesmith, Pomeroy, Eamsey, Sprague, Sumner, Van Winkle, Wilkinson, and Wright 22. NAYS Messrs. Anthony, Buckalew, Clark, Con- ness, Farwell, Foster, Grimes, Hale, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Powell, Sher man, Stewart, Ten Eyck, Trumbull, Wade, Willey, and Wilson 21. ABSENT Messrs. Carlile, Foot, Harding, Hicks, McDougall, Kichardson, Eiddle, and Saulsbury 8. So the motion was agreed to ; and the Senate adjourned. Ix SENATE. Saturday, February 4, 1865. ("Congressional Globe," 33th Cong., 2d session, pp. 590-595.) The Senate, as in Committee of the Whole, resumed the consideration of the joint resolu tion (H. R. N"o. 126) declaring certain States not entitled to representation in the electoral college. The VICE - PRESIDENT. The pending question is on the amendment proposed by the Senator from Vermont [Mr. COLLAMER], and upon that question the Senator from Vermont is entitled to the floor. Mr. LANE, of Kansas. Before the Senator from Vermont preceeds, I desire to ask for the yeas and nays upon his amendment. The yeas and nays were ordered. Mr. COLLAMER. Mr. President, I think any man must be exceedingly dull who would not have understood from the hints and re marks made this morning in relation to this topic that the Senate are very impatient for a vote. I do not blame them for being impa tient. But, rising as I do to replyto the speech of the honorable Senator from Mary land [Mr. JOHNSON], delivered yesterday, I will not promise that I shall be able to gratify them with even my usual brevity. I will endeavor to be as brief as I can in justice to the sub ject. 16 In the first place. Mr. President, there per haps is due from me to that honorable Senator some little notice that I am not entirely insen sible to what he has on this and other occa sions permitted himself to indulge in in his re marks with respect to my professional ability and discernment. I have never made any re ply to them, but at the same time I wish it to be understood that I am not entirely ungrate ful or insensible to such remarks. I will mere ly say that the opportunities I have had to inform myself in relation to the honorable Senator s high acquirements in his profession, his legal acumen, and the perspicuity of his logic have given me a very high appreciation thereof. If I were to say merely that I recip rocate the sentiments he has expressed, and entertain a sincere respect for his professional superiority as high as he entertains of mine, he might consider it at least but a questionable compliment ; but I will add to it that I have as high an estimation, and even higher, of him than he has thought proper to express in rela tion to me. I think that ought to be satisfac tory. But, sir, after all, I could not but observe that the honorable Senator, when speaking in that manner, very courteously and very kindly, always accompanied it with an argument of great weight, coming from him, to show that the positions I took were wholly untenable. How much, therefore, the respect that is paid to my opinions is worth when accompanied by such sort of argument, he and other gentlemen can answer for themselves. Mr. President, the amendment which I have proposed has in it one very important feature, to which the gentleman has addressed himself; and that is, that the States which have been declared in a state of insurrection are incapable of exercising their privileges or their duties within this Government as integral parts of this Union while they continue in that situa tion, and that their restoration shall be either by an act of Congress or by the reception of their representatives by the two Houses. That involves this point : whether Congress have anything to do in the matter in relation to the reorganization and reestablishment of these States. The Senator seems to think not ; and he goes on to make some remarks which I will not attempt to repeat, but the substance of them is that they are States in the Union I agree to that and, being in the Union, if the hostilities cease there is an end of all action about it ; they are remitted to all their rights, and may exercise all their functions as integral parts of this Government without the consent of this Government one way or the other. There I dissent. The gentleman says that a war may exist without any declaration of war. I agree to that. He says that if Great Britain should wage a Avar upon us, and were in the exercise of that war, it would be a war though we had not declared it, nor they either. I grant it. TWENTIETH PRESIDENTIAL TERM. He then says that if they should upon the whole surcease that war, withdraw their mili tary force, and Parliament should declare that they were no longer in a state of hostility with the United States, that that would be an end of that war. There is exactly the point where we differ. That is exactly the point where we separate. I know that one party between two or more nations may make a war, but I say that both parties are required to make peace. If Great Britain were to actually levy war upon this country, besiege our cities, lay waste our coasts, capture our vessels, and then, when we had undertaken to defend ourselves with some success, they should withdraw from it, and declare to the world that there is peace between us, that would not be peace, nor would that war be ended. I insist that both parties must agree to the peace, and that the surcease of hostilities by one side does not end the war. Every nation undoubtedly has the right in a state of war, when negotiating for peace, to insist upon indemnity for the past and security for the future. If one party can make a war and make a peace when they please, without the consent of the other party, then neither of these rights of insisting upon indemnity > for the past or security for the future can any longer exist. I say that if Great Britain had made such a war upon us, we would not be obliged to surcease our hostilities in defense of ourselves and the capture of their vessels be cause they ceased, until we had made a treaty which gives us indemnity for their having made that unjustifiabfe war upon us. There is the exact point where we separate ; and it is in the application of that same point to this war and its analogies that we differ again. But the Senator says you cannot make war upon a State; they are now States in the Union, and if they surcease hostilities you can not prosecute the war. I am not insisting that if these people lay down their arms and return peaceably to their habitations, the Presi dent can carry the war into their houses. That is not what I am talking about. I am talking about when and how the political status of these States is to be restored, and with whose consent it is to be restored. Is it true that the right to make war in this country consists in the right of the States to make war upon the General Government, but the United States cannot make war upon them ? Is it their pe culiar privilege and exclusive right to make war upon the General Government? Cannot we do anything about it? Cannot we prose cute war against them ? Is it their privilege to make war on the United States as long as they have a mind to do so, and when they be come satisfied they are not getting along very well, they have nothing to do but to stop and begin it again when they please, renew it when they have a mind to do so, and it is all an ex parte proceeding, and the Government of the United States has nothing to do with it? I cannot agree to any doctrine of that kind. But I desire to make a few remarks on this subject of making war upon a State. I have heard a great deal about that first and last* I do not know but I was to blame, when I first heard that doctrine, brought forward by Mr. Jefferson Davis in the Senate, for not correct ing him. He quoted from the remarks of Mr. Sherman, Mr. Madison, and several other mem bers of the convention that formed the Con stitution who stated that. They did state it; and Mr. Davis used to quote from them. I understood how that was then. It is true I did not at that time explain it. I did not suppose that other people would be misled by it ; nor did I suppose that my explanation would ever reach the community, and perhaps never reach the Senate. The remarks I am now making not only will never be read and understood by the community, but will never be read and understood by half the Senate. But still I feel it my duty at this time, as the doctrine is re peated and those quotations are again alluded to, to make some explanation on that point. Mr. President, you will observe, and any gentleman who chooses to examine into it will find, that Mr. Buchanan put into his last mes sage that same doctrine, and alluded to the very quotations made by Mr. Davis. If you will read that message it will be perfectly ap parent that that portion of it which says you cannot make war upon the States was inter polated into the message after it was drawn up. I do not mean clandestinely ; I mean inter polated by the President. It is obvious from its connection that it is so. I know that while that message must have been in a period of preparation Mr. Davis returned from his ex cursion to Maine, where he had spent that summer; and that was the very ground and those were the very quotations which Mr. Davis had used in the Senate ; and after his return here, as I think, it was put into that message at his suggestion. Now, sir, it will be recollected that the Arti cles of Confederation were never adopted by the people. They never were a constitution ; they were a league ; and it was declared in them that the States should retain and continue their sovereignty; that it was a league for the mu tual defense of the States against foreign pow ers. The States were represented in the Con gress under the Confederation by their Legisla tures appointing the delegates, and withdraw ing them when they pleased ; and that body had no power of making laws except on the single subject relating to piracy on the high- seas. They merely made requisitions on the States that they wanted so much money and so many men ; and the States agreed to furnish them, or did not furnish them, as they saw fit. It will be observed that each State had but one vote in the Congress of the Confederation ; each had the same weight. "When they came to get together in a convention to form a new Constitution, the small States were very desir ous of preserving the Articles of Confederation ; ABRAHAM LINCOLN", PRESIDENT. 243 of having a mere league ; a mere treaty. They were unwilling to give up the weight which they had under the Articles of Confederation ; and they therefore proposed that they should be amended so as to oblige the States to famish their quotas. The question whether they should mend up the old Articles of Confedera tion, or form a Government with all the func tions of Government, executive, legislative, and judicial, was the first great question before that convention. Even the State of New York, then counted a small State, was very persistent in favor of having the Articles of" Confedera tion amended merely, and when it was finally resolved to abandon that project and form a Government, two out of three of those delegates from New York, Mr. Lansing and Mr. Yates, went home and never returned again. It was when the convention were debating that question that these remarks by Mr. Sher man, Mr. Madison, and others, which have baen so often quoted, were made about making war upon the States. They said: "You can not coerce these States to furnish their quota. Why ? Because it is war ; you can only do it by force. These Articles of Confederation are a treaty, a league, between these States. It is the settled law of nations that a war be tween the members of one treaty always puts an end to all the treaty stipulations existing ; and, therefore, if you make war upon one of these States under the Articles of Confedera tion to coerce them, that moment you end your Confederation, because it is war, and the war ends it." It is perfectly palpable and plain to me that with articles merely of association in the nature of a treaty between the States, that was strictly and literally true ; it could not be done. All the remarks then made by those gentlemen, which are now quoted, were made as applicable to the condition of a league ; and yet they are now quoted upon us as being ap plicable to the condition of a nation as^it is now formed, of a national Government. If we follow out the doctrines of these Southern gentlemen who have seceded, they are not inconsistent, because they hold that we are nothing but a league now, and there fore the making of a war would end that league. They therefore are not inconsistent in it ; but no man who views this as a Govern ment, with ajl the functions of government at tached to it, and not a league, can quote with propriety those expressions as applicable to our condition. So much for that. Now, Mr. President, there commenced an insurrection in this country. It never arose, perhaps, to the dignity of a war until the act of 1861 was passed. I know a majority of the Supreme Court decided that in relation to laying a blockade and the making of prizes, etc., a war existed before that act of 1861 was passed ; but all agree that after the act of 18fil was passed it took the character of war. What shape was it that it took ? It was this : Congress declared that where there was an insurrection existing in a State claiming to act under the authority of the State, and the au thorities of the State did not disclaim it and did not suppress it, in that case the President might declare the inhabitants of that State in a state of insurrection, and all intercourse between the inhabitants of that State and the inhabi tants of the rest of the United States should cease. Observe, sir, they did not declare that the war was to be against men who were in surgents. It included all the people of a State whose authorities sustained the insurgency, whether they were loyal or disloyal people. That is the condition of things in a state of war in every country. It may be the misfor tune of the minority ; but that is their un avoidable condition in time of war. This was declared to be a war with the whole inhabit ants of that State. Then it was that it took, in relation to our inhabitants, its true charac ter and condition of a war, and a war between those States, made by them through their functionaries and the body of their people, against the General Government. Such being the state of war, the question presents itself, When and how is that war to cease, and when and how is the formal politi cal status of the States which are engaged in it, or the inhabitants of those States, to be re stored, and who is to declare it ? The gentle man from Maryland has argued at much length to show that under the act of 1861, if the hos tilities on the part of the enemy stop, the President is compelled to stop hostilities on his part. I do not wish to make controversy about that. What if he does ? I know that the President can withdraw all our forces from the Southern States to-morrow, if he pleases ; he can withdraw all our ships from off the coast and order them to the harbor of New York or Boston. I know that military operations may cease altogether by his act. I know he may pardon all crimes committed against the United States, including treason. That is his power. But, sir, does that alter the condition of the political status of those States in their relationships to this General Government ? Suppose the hostilities entirely cease; suppose the rebels throw down their arms and go home to their several habitations ; there are in those States the functionaries ol their government, their governors, their legis latures, all organized in this revolutionary operation and carrying it on ; and is it" true that they then have the right to send members to the Senate and House of Representatives, and if they have a right to send them, to demand: their admission here, and we have nothing to say about it? Is it true that they may make war upon the General Government, carry it along as far as they please, then stop it, and we are obliged to receive them, until they have had time to revive their powers or resolution and start again, and we cannot help ourselves ? Sir, are there not two sides and two parties to this war ? It is the strangest war men ever 244 TWENTIETH PRESIDENTIAL TERM. heard of if it has but one side to it. I take it there are two parties to this war ; the several States who have made it, on the one side, and the national Government against whom they have made it, on the other ; and I suppose the two parties must participate in the restoration of peace and quietness, and their restoration to their former condition, or a condition where they can perform their functions within the Government as integral parts ol the Union. It is for Congress to say when that state of things exists. Congress is not bound to receive their members, or to treat them as being regular, loyal, integral members of this Union because they have surceased fighting and surceased military operations, until we have seen a return to loyalty and an obedience to their allegiance and the performance of their fealty, a true res toration of themselves to their former condi tion of loyalty and obedience ; and that must be for Congress to decide. That is the main and essential sentiment of the amendment I have presented. Sir, when will, and when ought, Congress to admit these States as being in their normal condition? When they see that they fur nish evidence of it. It is not enough that they stop their hostility and are repentant. They should present fruits meet for repentance. They should furnish to us by their actions some evidence that the condition of loyalty and obe dience is their true condition again, and Con gress must pass upon it ; otherwise we have no securities. It is not enough that they lay down their arms. Our courts should be estab lished, our taxes should be gathered, our duties should be collected in those States ; and before they come here to perform their duties or priv ileges again as members of this Union, they should place themselves in an attitude showing to us that they have truly taken that position, and we should pass upon it ; and I insist that the President, making peace with them, if you please, by surceasing military operations, does not alter their status until Congress passes upon it. The great and essential thing now to insist upon, in my judgment, is that Congress shall do nothing which can in any way create a doubt about our power over the subject. In deed, it is right to assert at the proper time that we have that power ; and how, and when, and in what manner we shall execute that power, is in the discretion of Congress. I do not mean to occupy very much time with that ; but one thing I have to say: I believe that when reestablishing the condition of peace with that people, Congress, representing the United States, has power in ending this war as any other war, to get some security for the future. It would be a strange think if it were not true that this nation, in ending a civil as jwell as a foreign war, could close it and make peace by securing, if not indemnity for the ipast, at least some security for future peace. I jdo not believe that Congress is stripped of that power in relation to this or any other war; and here I do not wish to be understood as un dertaking to assert the existence of such a power without some warrant in the Constitu tion. The Constitution has in it what is well known as the guarantee section, by which this Government guarantees to every State in the Union a republican form of government. Now, what is implied in that? Several things which are quite obvious. In the first place, that guarantee can only be kept and redeemed by preserving -the States within the Union. We cannot carry out a guarantee to States on any other ground than by having and keeping them within the Union. That is necessarily implied. In the next place that guarantee is to the States as States. It is a guarantee to the State of North Carolina, for instance, that North Carolina, as a State, shall have a republican form of government within this Union ; not to be taken and split up and made into different States, but it is a guarantee to that State as a whole State. Another thing is implied. That is a guar antee to the minority in a State. No man who will read Mr. Madison s remarks upon the subject can be mistaken in that. The very nature of the thing implies that. The majority in a State can shape their form of government as they please without any help from Congress ; but the provision was inserted from a fear that the minority might be overborne, espe cially, said Mr. Madison, in a slaveholding State. The guarantee was therefore inserted for the security of the minority in a State, though there may be but one man there to redeem Sodom. Again, it is a guarantee from which the States can never discharge the United States. You may say that when they make war on us they discharge us from our obligation in the matter; but that is impossible. That guarantee is not merely for the people of that State; it is a guarantee made for the security of all the States of the Union. I have a right as a representative from the State of Vermont to say that the State of Vermont insists that you shall keep North Carolina in the Union ; we formed it with her in it ; we had that guarantee, that she should be kept in with a republican form of government, and we have a right to insist on the redemption of that guarantee. Therefore I say no one State can discharge the United States from it. Such being not only the clearly-expressed guarantee but the plighted national public faith which we are bound to keep, let me put a case. Suppose in all candor that Congress bad by experience become convinced that they could not sustain a State within the Union with a republican form of government, holding slaves ; suppose we had tried it over and over, and we had beaten them and made peace with them, allowing them to keep their ABRAHAM LINCOLN, PRESIDENT. 245 slaves, and they had repeated their rebellion over and over until every man became con vinced that it was utterly impracticable and impossible to have a republican form of gov ernment under such an aristocracy as that en gendered and sustained ; and suppose Congress in all candor and seriousness became convinced that we could not keep this guarantee in rela tion to those States that hold slaves, and they, being at war with us, choose to lay down their arms or we beat them, disperse their forces, and a question arises about fixing the status of those States again, their political condition in relation to this Government, that is, making peace ; I say that Congress has a right, if so convinced in all candor, to say that in order to preserve our plighted public faith contained in that guarantee we will destroy and abolish that institution ; for we cannot keep our guar antee without doing it. Cannot Congress un der the general provision of the Constitution make all laws proper and necessary to carry into effect the powers granted in the Constitu tion? Clearly. If that is so, then Congress may, in fixing the status of these States, if they are convinced of the proposition I have just stated, make it one of the conditions of their again exercising their franchise as in tegral members of this Union, that they shall be placed in a position which will enable the Union to continue and exist. Such being my view, it remains for me to say a few words about what the Senator said yesterday in regard to the present probability of peace. I know nothing about that. I have no admissions to the "White House, and no knowledge of proceedings there ; but I guess, after all, I have about as much as some mem bers of the Cabinet [laughter], and you know a Yankee is allowed to " guess." I have but little expectation of any present cessation of hostilities, even. I have before remarked that I do not think the mere cessation of military operations is necessarily a peace, nor do 1 think the political status of these States is thereby reestablished. I think it requires two parties to make a peace. I know not what the President may do. I grant that the President may, if he sees fit, pardon all treason. He has that power. Whether he can really dispense with the operations of what is called the con fiscation act, I do not know. I had but very little to do with that act, but I believe it pro vides for making confiscations by proceeding in rem, and trying a man without notice to him. I do not understand much about such proceedings, nor exactly know how far they may go. But it seems to me that, before the President can reestablish these States in the Union, performing the functions of loyal States within this Government and integral parts of it, somehow or other the action of Congress will be needed. That is the very point we have now in discussion, the very point I am after. I think it does need the action of Congress. How will he get rid of that confiscation law by any action of his own ? I surely do not know. Then a law has been passed with his approval declaring that persons who have been engaged in this rebellion are ineligible to appointments to office in this Government. I do not know but that perhaps he may get them in without having that law repealed by Congress, but I cannot tell how. So in whatever aspect you look at the case it is evident that no reestab- lishment of the former condition of things can take place without the action of Congress. There are many other acts of similar character which stand directly in the way of doing what the Senator from Maryland thinks can be done by the President. Put an end to the hostilities, and there, he says, is the end; the States are in, and we have nothing to do with it ; and he cannot support a resolution which declares that we have to do with it! I say we have to do with it ; we are the other party in the war, and I think we must participate in the rees- tablishment of peaceful relations. The power existing in Congress in the rees- tablislnnent of peaceful relations to annex such conditions as are necessary to our preservation and life, another question arises, when and how and in what manner you will exercise the power. Will you ever exercise it at all? "Will you ever annex any such conditions ? We are told by the papers, which seem to be very hun gry for peace, and to be crying " Peace, peace, when there is no peace," that there is no need of saying anything more about the condition to which I have adverted, because the Senate and House of representatives have passed a constitutional amendment, and that will ac complish the purpose. If I were entirely con vinced that we could not sustain a republican government in these States and keep them within this Union in any other way than by having the institution of slavery abolished, and I was inquired of whether I would insist upon that as a prerequisite and condition pre cedent to their reestablishrnent, I would say this : if I was perfectly convinced, fully satis fied in my own mind, that the constitutional amendment referred to would be adopted by the constitutional number of States, that would remove the occasion for the exercise of any such power on the part of Congress, but I do not know how that will be. That is a matter which lies in the future. Neither I nor any other man can tell when and how and in what manner it will take place, or whether it will ever take place at all. While things remain suspended in this condition I reserve to myself the right of exercising this power which I think in the extreme Congress constitutionally possesses. In what manner I shall exercise it will depend upon the occasion as it shall pre sent itself. It will depend upon their desire to restore their former condition, how far they have returned to loyalty and allegiance, how far they have so shaped their institutions as to furnish security for the future that the peace 246 TWENTIETH PRESIDENTIAL TERM. would be kept. All these matters would have to be examined into in each case as it present ed itself. Mr. DAVIS, I move to amend the amend ment by striking out all after the word " that," where it first occurs, and inserting : The States of Virginia, North Carolina, South, Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee, are not entitled to representation in the electoral college for the choice of President and Vice-President for the term of office commencing on the 4th day of March, 1865 ; and no electoral votes shall be received or counted from said States concerning the choice of President and Vice-President for the said term of office. The simple effect of my amendment to the amendment is to strike out the preamble and to leave the resolution just as the Committee on the Judiciary reported it. It seems to me that three-fourths of the debate that has taken place upon the subject has originated out of the preamble. I think that there is a clear, indicated majority of the Senate in favor of the resolution, and that the Senate are ready to vote simply on the resolution. I do not in tend to prolong the debate. I merely rise to announce what will be the effect of the amend ment. As I believe that the preamble has given rise to the great body of the debate that has already occurred, I propose to cut off further discussion on the preamble by moving to strike it out, and bring the Senate to act directly and simply upon the resolution. The PRESIDING OFFICER (Mr. CLARK in the chair). The Chair will inquire of the Senator from Kentucky whether his amend ment is a substitute for the original resolution and preamble. Mr. DAYIS. My amendment is an amend ment to the amendment of the Senator from Vermont. Mr. TRUMBULL. I hope the Senator from Kentucky will not persist in his motion. We had a distinct vote yesterday on striking out the preamble. He and I desire to accomplish the same object. I think the debate is pretty much over, and if we can get to a vote we shall soon settle this matter, and it seems to me we had better adhere to the resolution as the Com mittee on the Judiciary have reported it back. There seems to be a disposition in the Senate to pass a resolution of some character, and we shall soonest accomplish our object by just vot ing for the proposition as it is. Perhaps it is not in the very best form. As an original prop osition I cared nothing about the preamble, nor do I now, but still I think we shall the soonest get through by not offering amend ments. I believe the Senate is about ready to vote; and the object to be accomplished seems to be acquiesced in, and that is, to prevent the counting of the votes of certain States. Mr. DAVIS. If the Senate will come to a vote without any further debate, I will not press the amendment to the amendment. Mr. TRUMBULL. Let us try. Mr. DAVIS. Well, sir, I withdraw it, in the hope that we may come to a vote. ^ Mr. SAULSBURY. I hope the. honorable Senator from Kentucky will not withdraw it, but will accept a modification by inserting after " 1865 " the words "for the reason that there has been no valid election or appointment of electors of President and Vice-President in any of those States." Mr. TRUMBULL. The Senator from Dela ware will allow me to suggest that that is the very preamble now. Those very words that he proposes to put in are in the amendment reported by the Judiciary Committee. Mr. SAULSBURY. If that is so, very well. I was not aware of it. Mr. TRUMBULL. If the Senator will have the preamble read as it was concurred in the Committee of the Whole, I think it will satisfy him. Mr. JOHNSON. I am not about to con tinue the debate, but only to refer to a sen tence or two in two of the books I have on my table. My friend from Vermont seems to sup pose that what was said in the convention that framed the Constitution in relation to the use of force against States had reference alone to the States as they existed under the Articles of Confederation. He will find that Mr. Madi son I read from his Debates in that conven tion, in speaking to what was proposed as a clause to be inserted in the Constitution, au thorizing an exertion of the force of the whole against a delinquent State, spoke in this way : " He observed that the more he reflected on the use of force the more he doubted the practicability, the justice, and the efficacy of it when applied to people collectively, and not individually. A Union of the States containing such an ingredient seemed to pro vide for its own destruction. The use offeree against a State would look more like a declaration of war than an infliction of punishment, and would probably he considered ~by the party attacked as a dissolution of all previous compacts to which it ought to be bound." Then he is speaking in reference to a pro posed power in the Constitution of the Union, as we have it, to authorize the use of force against a State as such. Mr. COLLAMER. That was a proposition to carry into effect the Confederation. Mr. JOHNSON. No ; it was in the con vention to adopt the Constitution. But I will not fatigue the Senate by going further into that subject. I stated yesterday that both the majority and the minority of the judges of the Supreme Court by whom the prize cases were decided, expressly nagatived the idea of any authority to carry on a war or declare a war against any State of the Union. That will be seen first in the opinion of the majority on page 668, 2 Black s Reports, in which, speaking for the court, Mr. Justice Grier, who delivered the opinion, says : "By the Constitution Congress alone has the pow" er to declare a national or foreign war. It cannot declare war against a State, or any number of States* by virtue of any clause in the Constitution. The Constitution confers on the President the whole ABRAHAM LINCOLN, PRESIDENT. 247 executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in- Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare war against a foreign nation or a domestic State. But by the acts of Con gress of February 28, 1795, and 3d of March, 1807, he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the Government of a State or of the United States." And at page 693, Mr. Justice Nelson, who gave the opinion of the minority, says : " The acts of 1795 and 1807 did not, and could not, under the Constitution, confer on the President the power of declaring war against a State of this Union, or of deciding that war existed." And Congress has not undertaken to do it by the two acts referred to by the court or by the act of July 13, 1861. Those acts all pro fess to act exclusively under the clause of the Constitution which authorizes the employment of force to suppress an insurrection. The subject has been fully discussad in Con gress ; on the questions in issue between my friend from Vermont he has said all that can be said on his side, and I have endeavored to say what I could on the other. I shall not, therefore, detain the Senate by any further discussion. The PRESIDING OFFICEK. The question is on the amendment of the Senator from Ver mont [Mr. COLIAHEK]. The amendment was read, as follows : Strike out the preamble and resolution, and insert the following : Resolved, etc., That the people of no State, the in habitants whereof have been declared in a state of insurrection by virtue of the fifth section of the act entitled " An act further to provide for the collec tion of duties on imports, and for other purposes," approved July 13, 1881, shall be regarded as empow ered to elect electors of President and Vice-Presi dent of the United States until said condition of insurrection sha.ll cease, and be so declared by vir tue of the law of the United States, or until they shall be represented in both Houses of Congress ; nor shall any vote cast by any such electors elected by the votes of the inhabitants of any such State, or the Legislature thereof, be received or counted. The question being taken by the yeas and nays, resulted yeas 13, nays 27 ; as follows : YEAS Messrs. Anthony, Brown, Clark, Colla- mer, Dixon, Farwell, Foot, Harlan, Howard, Lane of Kansas, Ramsey, Sumner, and Wilson 13. NAYS Messrs. Buckalew, Chandler, Conness, Cowan, Davis, Doolittle, Foster, Hale, Harris, Hen derson, Hendricks, Howe, Johnson, Lane of Indiana, Morgan, Morrill, Nye, Pomeroy. Powell, Saulsbury, Sherman, Stewart, Ten Ey ck, TrumbulL Van Winkle, Willey, and Wrisjht 27. ABSENT Messrs. Carlile, Grimes, Harding, Hicks, McDougall, Nesmith, Eichardson, Riddle, Sprague, Wade, and Wilkinson 11. So the amendment was rejected. The joint resolution was reported to the Sen ate as amended. The PRESIDING OFFICER. The question is on concurring in the amendment made as in Committee of the "Whole. Mr. HOWARD. I understand that is an amendment by which a part of the preamble was stricken out. I ask for the yeas and nays upon the amendment. The yeas and nays were ordered. . - Mr. HOWARD. I hope the amendment will be read. The Secretary read the amendment, which was to strike out from the preamble the words "and have continued in a state of armed re bellion for more than three years, and were in said state of armed rebellion on the 8th day of November, 1864 ;" and in lieu of them to insert " and were in such state of rebellion on the 8th day of November, 1864, that no valid elec tion for electors of President and Vice-Pres- ident of the United States, according to the Constitution and laws thereof, was held there in on said day," so as to make the preamble read as follows : Whereas the inhabitants and local authorities of the States of Virginia, North Carolina, South Car olina, Georgia, Florida, Alabama, Mississippi, Louis iana, Texas, Arkansas, and Tennessee, rebelled against the Government of the United States, and were in such state of rebellion on the 8th day of November, 1864, that no valid election for electors of President and Vice-President of the United States, according to the Constitution and laws there of, was held therein on said day. Mr. POMEROY. I suppose it is in order to perfect the preamble before the question is taken on striking out ? The PRESIDING OFFICER. It is in order to amend the amendment. The question is not on striking out the whole preamble. Mr. POMEROY. I propose to offer an amendment to which I think the chairman of the committee will not object ; and that is, in stead of saying that these States continued up to the 8th day of last November in such a state of armed rebellion that a valid election could not be held, to say simply that they were in such a condition that a valid election could not be held. My amendment is to strike out the words "state of rebellion" and insert "condi tion." These States were not all in rebellion then, but I will admit that they were in such a condition that they could not vote. Mr. HOWARD. I had supposed that the amendment suggested by the Committee on the Judiciary, on which we are now again to vote, was simply to strike out a portion of the pre amble and not to substitute anything in its place. I perceive that in that respect I was mistaken, and that there is a substitution of o.ther words which satisfy me. I shall there fore vote for the amendment of the committee. Mr. TRUMBULL. I have no right to accept the amendment of the Senator from Kansas, which is only to insert the word "condition" in place of the words "state of rebellion," so as to declare that these States were in such a condition that no valid election could be held. I had no objection to that, individually, and as it seems to be more satisfactory to some mem bers of the Senate, and does not alter the mean- 248 TWENTIETH PRESIDENTIAL TERM. ing of the resolution or preamble, I shall not object to it. The preamble, if thus amended will then read that certain States rebellec against the Government, and were in such a condition on the 8th of November last that no valid election could be held. I am satisfied with that as an individual. Mr. COLLAMER. I do not see the proprie ty of this change. It says they rebelled at such a time and were in a bad condition on the 8th of November. What the condition was it does not state. Was it a bad condition health ? Mr. HALE. I think the history of the Sen ate affords a precedent for the phraseology that is to be used here. It was once stated in a cer tain case on the floor of the Senate that certain members did not belong to a healthy political organization. [Laughter.] Mr. POMEROY. The object which I desire to accomplish is a simple one. I do not like to state in the preamble what is not true. That the local authorities of these States did rebel against the Government four years ago I have no doubt; but that all of them continued that rebellion up to the 8th day of November last is not true, and there is no use in saying that it is. For instance, in the State of Arkansas and the same may be true of Louisiana the local authorities that rebelled have not been inside of the State within a year. Then how could they have been in rebellion in that State on the 8th day of November last? The prog ress of our armies has been such that they were not there ; and for us to say in this pre amble that they continued in a state of rebel lion up to that time is not true. I am willing to say that the disorganized condition of these States, and the fact that they had not been recognized by the General Government, left them in such a condition that it was not expe dient to hold an election. I am willing to say that, because I think that it is true. The other - statement is not true, and that is the reason I do not wish to make it. The PRESIDING OFFICER. The question is on the amendment of the Senator from Kan sas to the amendment made as in Committee of the Whole. Mr. JOHNSON. With due deference to the Senator from Kansas, I beg to say that it by no means follows because the authorities of the State of Arkansas were driven out of Arkan sas, that they are not in a state of rebellion. You might have driven all the inhabitants of Arkansas and all the authorities out, and they : still be waging war against the United States. In fact I suppose, as far as the authorities are . concerned, that is true I mean the authorities existing under the government of Arkansas ; at the time the rebellion commenced. Mr. POMEROY. They abandoned the State. The local authority is confined to the State. Mr. JOHNSON. They abandoned the State because they were driven out of it. Mr. POMEROY. They were not driven out as local authorities, but as individuals. Mr. JOHNSON. They could not have been driven out otherwise. Still in point of fact, when they were driven out, they were local authorities. Mr. POMEROY. Yes. Mr. JOHNSON. And in point of fact they were on the 8th of November in a state of re bellion; that is to say, they were warring against the United States, either collectively or individually. It is not strictly true to the letter that all the inhabitants and all the local authorities of any one of these States were in a State of rebellion on the 8th of November. There were a great many loyal citizens in each one of the States, and there may have been among the local authorities some loyal citizens who were driven by force to take part in the insurrection. But in point of law, as we have already said in the act of July 13, 1861, and as the President has said in his proclamation is sued in pursuance of that act, so far as our power to put down insurrection by force of arms is concerned, they were in a state of in surrection ; and then the question comes back whether a State whose inhabitants are collec tively for the most part in a state of insurrec tion (that is to say, are opposing the laws of the United States, and who are supported in that opposition by the local authorities, such as they are) can elect electors. Mr. POMEROY. The local authorities to which I referred were the rebel authorities. They never had but one election in the State that I alluded to since the rebellion, and their governor has been killed and the whole thing destroyed. It is not true that these rebel local authorities were in a condition to make war even outside of the State on the 8th day of last November. The real local authorities were loyal Union men ; and for us to say that the real local authorities of that State were in re bellion on the 8th day of last November will be saying what is not true. In the first place, the term of office of the old local authorities had expired by limitation ; and in the second place, the chief men in that government were Dot alive to exert any influence if they were disposed to do so. To say that they made war on the Government on the 8th day of last No vember, or were in a condition to do so, is say ing what cannot be true; and that our local authorities made war on the Government is equally untrue. I am willing to say that these parties not having been recognized or counte- lanced by the Government, were in such a con dition that they could not hold an election, and with that amendment I propose to sustain the resolution. I ask for the yeas and nays on my amendment to the amendment. The yeas and nays were ordered. Mr. DOOLITTLE. I suggest to the Senator from Kansas, and to Senators around me, to avoid any trouble about the recitals in the pre- ABRAHAM LINCOLN, PRESIDENT. 249 amble, that we strike out the preamble and just put the names of the States we intend to exclude from the electoral college into the enactment and let it go at that. Mr. TRUMBULL. We have had a direct vote on that, and now we are having a con troversy about a matter which I am sure if the resolution was printed and laid before Senators there would be no controversy in re gard to. The question now pending is simply whether the word " condition " shall be used in place of the words " state of rebellion. 1 The Senator from Vermont thinks it very ob jectionable because he supposes it may refer to the health of the States in some way. The word "condition" is to be understood in the connection in which it is used ; and the pre vious language of the preamble explains it. It seems to me nobody can misunderstand it who does not want to misunderstand it, with the resolution before him. The preamble now recites that the States of Arkansas, Tennes see, and others, rebelled against the Govern ment of the United States, and were in such state of rebellion that no valid election was held in November last. The Senator from Kansas objects to that because he thinks all those States were not in a state of rebellion on the 8th of November ; but he admits that the condition of things was such that no valid election could be held, and he wants to change the words " state of rebellion " to the word " condition." Does that alter the effect of the resolution, or does it alter the effect of the preamble ? If it would satisfy the Senator from Kansas, I was quite willing that it should be adopted. I can see no possible objection to adopting his amendment, and then we shall be done with the controversy. The question being taken by yeas and nays, resulted yeas 26, nays 13 ; as follows : YEAS Messrs. Anthony, Brown, Buckalew, Chandler, Clark, Conness, Davis, Dixon, Doolittle, Farwell, Foot, Harlan, Harris, Henderson, Hen- dricks, Lane of Kansas, Morgan, Porneroy, Powell, Kamsey, Saulsbury, Sherman, Trumbull, Van Win kle, Willey, and Wilson-26. NAYS Messrs. Collamer, Cowan, Foster, Grimes, Hale, Howard, Johnson, Morrill, Nye, Stewart, Ten Eyck, Wa<le, and Wright 13. ABSENT Messrs. Carlile, Harding, Hicks, Howe, Lana of Indiana, McDougall, Nesmith, Eichardson, Eiddle, Sprague, Sumner, and Wilkinson 12. So the amendment to the amendment was agreed to. Mr. LANE, of Kansas. I desire to move to strike out the preamble, and insert after the word " States," in the resolution, the names of the States recited in the preamble The PRESIDING OFFICER. The first question is on concurring in the amendment made as in Committee of the Whole as it has been amended. Mr. DOOLITTLE. It is true that yesterday the Senator from Kansas made a motion to strike out the names of those States from the preamble ; but he did not move to substitute for the whole resolution and preamble the resolution as it would read with the names of the States in. Merely striking out the names from the preamble, as the Senator from Illi nois remarked, left the resolution with no meaning, and therefore some Senators voted against it. But the present proposition of the Senator from Kansas is simply to indicate what is desired, that these States shall not be counted in the college, leaving out the pre amble ; for there seems to be some difficulty about the recitals in the preamble. This pre sents the question in a different point of view from that in which it was presented yester day. Mr. TRUMBULL. I do not see what is to be gained by striking it out. It is proposed to take the names of the States out of the pre amble and put them into the resolution. Will it be any better then? It is just taking up time. I hope the Senate will adhere to the resolution as it is, and vote down all amend ments which are proposed. Mr. COLLAMER. Without this preamble I do not understand that the resolution states the condition of that country at all. Mr. JOHNSON. It does not. Mr. LANE, of Kansas. I am satisfied that a majority of the Senate, as well as of the other branch of Congress, will vote in a few days, and be compelled to vote, for the recep tion of Arkansas, Louisiana, and Tennessee, and that there is or will be a clear majority in this body in favor of that proposition. It is not true, as stated in this preamble, that the local authorities of the States of Arkansas and Louisiana were not in a situation to cast their votes for President and Yice-President either by being in rebellion or by being in " such condition," as my colleague says. They were prepared to vote, and so far as Louisiana is concerned, did vote, for President and Vice- President. I want to get rid of the preamble because I do not want to be compelled to take the back track on my own action. By insert ing the names of the States in the resolution, as I have suggested, we reach the object de sired by the Senator from Illinois, and relieve ourselves from the embarrassment that will be upon us in the contingency I have stated. The PRESIDING OFFICER. The first question is on concurring in the amendment made as in Committee of the Whole to the preamble as that amendment has been amend ed. The question being taken by yeas and nays, resulted yeas 32, nays 6 ; as follows : YEAS Messrs. Anthony, Brown, Buckalew, Clark, Collamer, Conness, Davis, Dixon, Doolittle, Farwell, Foster, Grimes, Hale, Harlan, Harris, Hen derson, Hendricks, Howard, Lane of Kansas, Mor gan, Morrill, Nesmith, Nye, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Trumbull, Wade, Wil son, and Wright 32. NAYS Messrs. Cowan, Foot, Johnson, Ten Eyck, Van Winkle, and Willey 6. ABSENT Messrs. Carlile, Chandler, Harding, 250 TWENTIETH PRESIDENTIAL TERM. HiclvS, Howe, Lane of Indiana, McTDougall, Powell, Eichardson, Riddle, Saulsbury, Sprague, and Wil kinson 13. So the amendment as amended was con curred in. Mr. LANE, of Kansas. I now move to strike out the preamble, and to strike out after the word " States," in the third line of the resolution, the words "mentioned in the pre amble," and to insert in lieu of them "Vir ginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Tex as, Arkansas, and Tennessee;" and on this amendment I ask for the yeas and nays. The yeas and nays were ordered. Mr. JOHNSON". As far as the mere object is concerned, which is to exclude the votes of these States, whether the resolution pass in its present form or in the form now proposed makes no difference; but it seems to me sin gular legislation to resolve that the votes of certain States shall not be counted, without assigning any reason why they shall not be counted. How is the President to know why they should not be counted? How is the House of Representatives to know why they should not be counted? Ho\v is the public to know why they are not counted ? You have just as much right to say that the vote of any other State in the Union shall not be counted, looking to the face of the resolution alone, if it embraced any other State than those named. It appeared to me individually, and I think it appeared to the members of the committee, as evidently as it appeared to the other House, that when we are excluding certain States from voting we ought to state why we exclude them. For that reason I shall vote against this amendment. Mr. COWAN. The objection of the honor able Senator from Maryland, I think, is fatal to this kind of legislation. This is not really a law, at any rate ; it is simply a decision. Being a decision, it is insisted that the opinion of the judge shall contain the reasons on which the law is based. It strikes me this ought to be sufficient to show us the fallacy of this mode of legislation. That which we are now deciding ought to be decided next .Wednesday in the joint convention. We have got now just to that point when it is evident that this, instead of being a law, is simply a decision leg islative in its character. Mr. LANE, of Kansas. "We have spent sev eral days here trying to satisfy ourselves that a rule should be adopted for the control of the joint convention that is to meet next W 7 ednes- day. Now, I should like to learn from the Senator from Maryland if it is usual to give a reason for a rule to govern legislative action, in this or any other legislative body. We de sire to say that certain States shall not be en titled to have their electoral votes counted on next Wednesday, and we desire to say so now, in order to prevent confusion and disorder on that occasion. We have heard from several distinguished Senators that the object is to prevent the recurrence of a disorder that oc curred eight years ago in joint convention. Now, sir, I want to save the loyal people of Arkansas, and Louisiana, and Tennessee, from having their feelings further wounded. So far as one of those States is concerned, we drove their Senators from our doors last session. I am one of the men who believe that a State organization is indispensable to the protection of the Union men in those States. I am one of those who believe that the bringing back of any of the seceded States into the Union does more to demoralize our opponents and to close out this rebellion than any other act that we can accomplish. It is worth more than all the victories which can be gained in the field. I want these States brought back ; I want to encourage the Union men in all the seceded States when they evince that there is any Union feeling within their borders. Mr. JOHNSON. The honorable member is mistaken in supposing that this is a mere rule. A rule may be determined perhaps by the con vention, or certainly by the concurrent action of the two bodies that constitute the conven tion. What we propose to do now is to pass a law, to which the President s assent is neces sary before it becomes operative, declaring what electoral votes shall be counted legally. If we have the authority to pass such a law and I do not propose to discuss that question now ; I think very clearly we have the author ity when it is passed by both bodies and ap proved by the President, it is binding on the members of the convention when they meet together. It is therefore no rule ; nor is it a decision, as the honorable member from Penn sylvania supposes. A decision of what ? It is a declaration which is itself a law that those votes are not legitimate votes. Those who think it has no operation will vote against it in any form ; but if it operates at all, it oper ates as a law. Then the only question with me is whether it is proper in Congress, having au thority in certain cases, as I think, to exclude votes of electors, to declare that the votes of any particular State are to be excluded without stating why they are excluded. Mr. LANE, of Kansas. I should like to ask the Senator from Maryland if a concurrent resolution, that does not require the signature of the President, would not be just as potent on this subject as a joint resolution? Mr. JOHNSON, A concurrent resolution requires the approval of the President. Mr. LANE, of Kansas. A resolution of each branch separately, composing the joint con vention, would be as potent as this law for this purpose. Mr. DOOLITTLE. This preamble contains a recital which meets the views of some gen tlemen and is opposed to the views of others, and there are some gentlemen on this floor who have avowed their determination to vote in favor of the proposition to exclude Louisi- ABRAHAM LINCOLN, PRESIDENT. 251 ana upon this other ground, that Louisiana has no representation in Congress, and not having any representation in Congress should not be represented in the electoral college. The learned Senator from Ohio [Mr. SHERMAN] based his argument entirely on that ground. It seems to me it would be better, without a recital that these States continue in rebellion or that they continue in any condition, to de clare simply, for reasons satisfactory to each one voting for the proposition, that the votes of these States shall not be counted in the elec toral college; and then the preamble would have no embarrassing effect or any entangle ment connected with it upon the free action of any member of either House, in relation to any other question that may arise, whether the members from Louisiana or Arkansas shall be admitted or not. It seems tome that it is wise to strike out the preamble and leave the prop osition itself, and then each one who votes for it can satisfy himself with his own reason. Mr. TEN" EYCK. I have persistently voted " nay" on all the various propositions submit ted to-day for the amendment of the preamble, although some of them, I believe, are improve ments upon the preamble as originally report ed. Being opposed to the preamble and to the resolution itself, so far as it affects certain of the States mentioned, it might perhaps, accord ing to the ordinary method of parliamentary proceedings, have been esteemed excusable or proper in me to have voted "yea" on several of these propositions looking toward an ameli oration of the charge made in the preamble as to the condition of all these States ; but as I am persistently opposed to the whole measure, so far as it applies to at least one of these States, if not more, I think it more consistent to vote "nay" in relation to all these amend ments. Now, sir, if I were not prepared to say that the State of Louisiana or Tennessee was in such a state of rebellion on the 8th day of November last as that there could be no legal election held there, how could I be prepared to say that in consequence of this rebellion, on the 8th day of November last, they were in such a condition that they could not vote? I would much rather meet the question fairly and squarely and say that they were in a state of rebellion, than simply to evade the question, and say that they were in some sort of condition that I do not undertake to decide in this high place. I would not strip a State of her rights in this Union without having the boldness to assign a cause. That consideration regulates and controls my action in my vote on the amendment now pro posed by the Senator from Kansas. I am not prepared to vote barely and squarely that these States shall not be counted in the electoral col lege without assigning any reason under heaven for my action. I think if is due to the people there, if there be a corporal s guard of loyal men, that we should assign here the reason why we will not allow them to have an electo ral vote cast, after they have endeavored to do all that they could do to resume their position in the Union. I am opposed to the whole prop osition from beginning to end, and have voted, and I shall vote, consistently, I think, "nay" throughout. Mr. HO WE. Mr. President, I have not taken much part in this discussion, and do not pro pose to take much ; but I intended to say two or three words before the final vote should be taken on the passage of this resolution, and I believe I may as well say those few words now as at any time. It strikes me as a most peculiar feature of this debate that we have spent four days, I think, in discussing, not whether we shall pass the resolution or not, but what reason we shall assign for passing it. Ordinarily, when you are agreed as to what law yon will enact, you are in the habit of putting that in the bill, and looking there for the law, and looking into the Congressional Globe for the reasons to be given for it. But to me this whole debate seems very significant that the Senate were conscious that they were about to do an extraordinary thing, and therefore they felt it incumbent on them to assign the reasons upon* which they acted with a great deal of care and accuracy, and hence you have been debating for four days as to the question what reason you shall assign for enacting this law. I do not think you have occupied any more time than was absolutely necessary in order to assign a good reason for it. Mr. President, here is the Constitution of the United States, so it is denominated, declar ing that "each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole num ber of Senators and Representatives to which the State may be entitled in Congress." That the Constitution declares. When I came here you required me to step to your desk and take an oath to support it ; and now you ask me to vote for a resolution which declares that eleven States shall not vote, shall not appoint electors of President and Vice-President. I do not want to do it. I have sworn that I will not do it ; or, if I have not sworn that exactly be fore, I swear it now. Mr. President, that the people living in South Carolina, Georgia, and Tennessee, and those other States, had no right, in fact, had no equitable right to choose electors in No vember last, I believe ; but I believe it because there were no American States there. But you ask me to vote for a resolution which says that they are States, and yet which says that they shall not vote for President. Wherever there is a State in fact, there is the right, and there is the evidence of it, to give a number of votes for President and Vice -President equal to the number of Representatives in Congress in both Houses to which that State is entitled.- That is my judgment. During the last session TWENTIETH PRESIDENTIAL TERM. of Congress I had occasion to call attention to this very subject, and to say then that it seemed to me the fitting time to fix the relations of these communities before the election was held, before we knew what would be the sig nificance of their action. That was declined. Your law still said those are States ; three of them actually did vote, we are told, did choose electors ; and now you ask me to vote for a resolution which says that they are States, and yet which says that their votes shall not be counted. And now, Mr. President, look one moment at the reasons which have been assigned. The committee assign for a reason that there was no valid choice of electors in those States in November last. The committee say so ; they ask me to say so ; they ask the Senate to say so, that there was no valid choice of electors. Sir, is the law-making power of the United States made the judge of what is a valid elec tion of presidential electors ? " Each State shall appoint, in such manner as the Legisla ture thereof may direct." The Legislature is made the judge of the manner of choosing electors. It seems to me that the State itself is the final judge as to what is a valid election. There cannot be any other. The right is given in full to the State itself. Therefore I cannot agree to say that there was no valid election in these States. I think it belongs to these States respectively to determine that question. But if there was no valid election, there was some reason for it. What was the rea son ? The committee say because the people of those States were in a state of rebellion on that day. That may be, if true, a good rea son why a valid election could not be held ; but yet, right here in the Senate Chamber, while you are debating this resolution, there is an issue of fact formed as to whether it is true or not. The Senator from Kansas, who has opportunities for knowing the fact as well as any one, and who is competent to testify, tells you that there was no such state of rebel lion as prevented the people from making a valid election. That is his testimony upon the question of fact as to which we are at issue. Now, is it not dangerous legislation when you concede that the law you are about to pass de pends for its validity on the reasons you as sign for it, when in assigning reasons you dif fer not only upon the law as to what is a good reason, but differ upon the fact as to what reasons exist ? I wish now to call attention to one more re markable debate we have had. The commit tee recite these facts as the ground upon which you shall proceed to disfranchise eleven States. They recite them as facts, present them as rea sons why you should do it. The amendment which has created more debate than any other was the amendment moved by the Senator from Vermont, the effect of which was mainly to present as a reason for enacting this law, not anything that we affirmed to be a fact, but something that the President has affirmed to be a fact. The committee say, disfranchise those States because their people were in No vember in a state of rebellion ; the amend ment moved by the Senator from Vermont asked us to disfranchise the people of those States because the President said they were in rebellion ; and that was really the breadth of that issue, as I understood it. If you have a right to disfranchise the people of a State, does it matter whether you and I agree upon the fact for which we do it, or whether we act upon something that the President or some other agent of the Government has said ? It all looks to me as if we were about to pass a most extraordinary law. I shall not vote for it myself, and I shall be extremely sorry to see the Senate pass it, for there it stands side by side with your constitution, a law declaring in terms that the people of eleven States that you call States shall not vote. I think you might just as well declare that they should not marry. I think you can declare it just as well of the people of one State as another, if you insist upon it that they are States. I know you say that those people have rebelled. Some of them have ; but when a man commits murder, can you pass an act of Congress to hang the man that you think has committed the murder ? Would you not think that very extraordinary ? But is it half so extraordinary as to pass an act of Congress disfranchising the people of a whole State because part of them have com mitted treason or engaged in rebellion ? But you do not rely upon that ; the fact of rebellion you do not insist upon as a suffi cient reason for passing this law, and there fore you put in another one. The rebellion is not a ground for disfranchising the people of a State, but the rebellion was the circumstance which prevented a valid election from being held. Why do you want to assign the rea son why a valid election was not held ? If you are made the judges of what is and what is not a valid election, why do you not say that there was no valid election in those States, and let it stand there ? It is because you are not made the judges of a valid election that you think it incumbent on you to bolster up your judgment by some very extraordinary reason. This is the way it looks to me. I distrust this whole method of legislating. If you will take hold of the question of the po litical relations of these communities, and if you will tell what is the truth, and has been the truth since 1861, that there are no State organizations there, no State governments, I am with you. When you establish that, yon know what they may and what they may not do. The question being taken by yeas and nays, resulted yeas 7, nays 30 ; as follows : YEAS Messrs. Cowan, Doolittle, Harris, Lane of Kansas, Nesmith, Van Winkle, and Willey 7. NAYS Messrs. Anthony, Brown, Buckalew, ABRAHAM LINCOLN, PRESIDENT. 253 Chandler, Clark, Collainer, Conness, Davis, Dixon, Farwell, Foster, Grimes, Hale, llarlan, Henderson, Hendricks, Howard, Johnson, Morgan, Morrill, Nye, Powell, Kamsey, Saulsbury, Sherman, Sutnner, Ten Eyck, Trumbull, Wade, and Wright 30. ABSENT Messrs. Carlile, Foot, Harding, Hicks, Howe, Lane of Indiana, MoDougall, Pomeroy, .Eich- ardson, Kiddle, Sprague, Stewart, Wilkinson, and Wilson 14. So the amendment was rejected. The amendment was ordered to be engrossed, and the joint resolution to be read a third time. It was read the third time. Mr. WADE. I ask for the yeas and nays on the passage of the joint resolution. The yeas and nays were ordered, and, being taken, resulted yeas 29, nays 10; as follows: YEAS Messrs. Anthony, Brown, Buckalew, Chandler, Clark, Collamer, Conness, Davis, Dixon, Farwell, Foster, Grimes, Hale, Harlan, Henderson, Hendricks, Howard, Johnson, Morgan, Morrill, Nye, Powell, Eamsey, Sherman, Stewart, Sumner, T rum- bull, Wade, and Wright 29. NAYS Messrs. Cowan, Doolittle, Harris, Howe, Lane of Kansas, Nesmith, Saulsbury, Ten Eyck, Van Winkle, and Willey 10. ABSENT Messrs. Carlile, Foot, Harding, Hicks, Lane of Indiana, McDougall, Pomeroy, Biehardson, Eiddle, Sprague, Wilkinson, and Wilson 12. So the joint resolution was passed. Lsr HOUSE OF REPRESENTATIVES. ("Congressional Globe," XXXVIIIth Cong., 2d Session, p. 602.) Mr. WILSON. I ask unanimous consent to take from the Speaker s table the joint resolu tion (II. E. No. 126) declaring certain States not entitled to representation in the electoral college, in order that the House may concur in the amendment made by the Senate. There being no objection, the joint resolution was taken up, and the amendment was read, as fol lows : Strike out of the preamble the words " and were in such condition of armed rebellion for more than three years ; " and insert in lieu thereof, " and were in such condition on the 8th day of November, 1864, that no valid elec tion for electors of President and Vice-Presi- dent, according to the Constitution and laws thereof, was held therein on said day." There fore Mr. YEAMAN. I desire to offer a substitute for the joint resolution. Mr. WILSON. I desired to demand the pre vious question on the amendment. Mr. YE AM AN. I object if I am not allowed to offer a substitute. Mr. STEVEN S. Then I move to go to busi ness on the Speaker s table. Mr. YE AM AN. I withdraw my objection, and offer the following substitute for the joint resolution : Be it resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, That the votes of the presidential electors of any State shall be counted when presented and verified in the ordinary and legal method; and it is incom petent and immaterial for Congress to go be hind such verification, and inquire whether a part of the citizens of such State may have been in rebellion; and all laws and parts of laws and joint resolutions incompatible with this are hereby repealed. Mr. WASHBURNE, of Illinois. I raise the question of order that the amendment is not germane to the Senate amendment. The SPEAKER. The only matter before the House is the Senate amendment, and any amendment, to be in order, must be germane to that. The amendment offered by the gen tleman from Kentucky would be in order to the original bill, but is not in order to the Sen ate amendment. Mr. YE A MAN". I offer it as a substitute for the matter before the House. The SPEAKER. The joint resolution has been passed upon by both Houses and is not susceptible of amendment, except so far as applies to the amendment of the Senate. The amendment offered by the gentleman from Kentucky is not in order. Mr. WILSON. I demand the previous ques tion. The demand for the previous question was seconded. Mr. COX moved that the House do now ad journ. . The question was taken ; and the motion to adjourn was not agreed to. The question recurred on ordering the maiu question ; and, being taken, the main question was ordered. The question was then taken upon concur ring in the amendment of the Senate, and it was agreed to. Mr. WILSON moved to reconsider the vote by which the House concurred in the amend ment of the Senate ; and also moved that the motion to reconsider be laid on the table. The latter motion was agreed to. IN SENATE. Monday, February 6, 1865. ("Congressional Globe," XXXVIIIth Cong., 2d Session, p. 608.) Mr. TRUMBULL. With the consent of the Senator from Kentucky, I will ask unanimous consent of the Senate to make a report from the joint committee appointed to canvass the vote for President and Vice-President the day after to-morrow. It is indispensably necessary that we have action upon it as soon as possi ble. The House will have to concur in it. If the Senate will now consent to let the report be submitted and acted upon, it will take, I apprehend, but a few minutes I think there will be no objection to it and the House will then concur, "so that we shall be ready to take] action on the subject on Wednesday next. j The VICE-PRESIDENT. The Senator from! 254 TWENTIETH PRESIDENTIAL TERM. Illinois asks the unanimous consent of the Senate to submit a report from the joint com mittee- on the subject indicated. The Chair hears no objection. Mr. TRUMBULL. With the consent of the Senate, I will read the report, as the hand writing is more legible to me than to the Clerk. The joint committee to whom was referred the subject of ascertaining and providing a mode for canvassing and counting the votes for President and Yice-President of the United States have instructed me to report the fol lowing joint rule in part, in the discharge of their duty : Resolved, by the Senate (the House of Rep resentatives concurring therein), That the fol lowing be added to the joint rules of the two Houses, namely: The two Houses shall assemble rh the Hall of the House of Representatives at the hour of one o clock p. M., on the second Wednesday in February next succeeding the meeting of the electors of President and Yice-President of the United States, and the President of the Senate shall be their Presiding Officer. One teller shall be appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Sen ate, the certificates of the electoral votes ; and said tellers having read the same in the pres ence and hearing of the two Houses then as sembled, shall make a list of the votes as they shall appear from the said certificates ; and the votes having been counted, the result of the same delivered to the President of the Senate, who shall thereupon announce the state of. the vote and the names of the persons, if any elected, which announcement shall be deemed a sufficient declaration of the persons elected President and Yice-President of the United States, and, together with the list of the votes, be entered on the Journals of the two Houses. That is the usual form, as far as I have read, of the resolutions heretofore adopted. The committee have proceeded further to provide for a contingency : If, upon the reading of any such certificate by the tellers, any question shall arise in re gard to counting the votes therein certified, the same having been stated by the Presiding Officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision ; and the Speaker of the House of Representatives shall in like manner state the question to the House of Representa tives for its decision ; and no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurring vote of the two Houses, which being obtained, the two Houses shall immediately reassemble, and the Presiding Officer shall then announce the decision of the question submitted ; and upon any such question there shall be no debate in either House. And any other question perti nent to the object for which the two Houses are assembled may be submitted and deter mined in like manner. At such joint meeting of the two Houses seats shall be provided as follows: for the President of the Senate, the Speaker s chair ; for the Speaker, the chair on his left ; for Sen ators, the body of the Hall on the right of the Presiding Officer ; for Representatives, the body of the Hall not occupied by the Senators ; for the tellers, Secretary of the Senate, and Clerk of the House of Representatives, at the Clerk s desk; for other officers of the two Houses, in front of the Clerk s desk and upon either side of the Speaker s platform. Such joint convention shall not be dissolved until the electoral votes are all counted and the result declared, and no recess shall be taken unless a question shall have arisen in regard to the counting of any such vote, in which case it shall be competent for either House, acting separately in the manner hereinbefore provided, to direct a recess not beyond the next day, at the hour of one o clock P. M. Mr. JOHNSON. I understand the Senator from Illinois to say that the latter part of the report is not to be found in the reports here tofore made by which these conventions have heretofore been governed, and, if I recollect the reading aright, it provides only for a single contingency; that is to say, the contingency of votes being objected to. It appears to me it would be desirable to provide that in the event of any other question being made. Mr. TRUMBULL. It does so provide. It provides specifically for any other question pertinent to the matter for which the two Houses are assembled. Mr. JOHNSON. I did not so understand it. Mr. TRUMBULL. It so reads. Mr. COWAN. There is one difficulty I would suggest to the honorable Senator from Illinois. It is provided that when the questions shall arise in the joint convention, the Houses shall separate and consider the matter sepa rately. Now, suppose there is a question then whether the vote of Louisiana shall be counted. The Senate retires to its Chamber, and decides that it shall ; the House of Representatives organizes, and decides that it shall not : how is the question then to be decided ? Mr, JOHNSON. It falls, of course, and would not be counted. Mr. COWAN. I think there is a fundament al mistake at the bottom of this provision. I think it belongs to the Houses in joint con vention to decide that question when it arises. It is evident that they are there with some power and authority over it. They cannot be supposed to be mere idle and indifferent spec tators, because otherwise the votes might be counted separately, in the separate Chambers. Therefore I think that that provision is objec- ABRAHAM LINCOLN, PRESIDENT. 255 tionable. Any one of the Houses, then, could disfranchise a State, according to the construc tion that is to be put upon it. Mr. TRUMBULL. The question, then, has to be decided by the concurrent action of the two Houses, and, I suppose, committees of conference may be resorted to, to bring that about. It has to be decided somehow, and this provides a mode, when the question arises, by which it shall be settled. If the Senator from Pennsylvania chooses to suppose that you must take a vote per capita, the Constitu tion provides no means for any such action. The only way the two Houses of Congress can act is independently of each other. It was the unanimous opinion of the committee that it could not be done by voting en masse, as in public meeting. That question was very elab orately discussed the other day. I hope no discussion is to spring up on this report, be cause it is important that we have action upon it at once. Mr. COWAN. I ask the honorable Senator whether there is any other case in which the two Houses go into joint convention except this one ? Mr. TRUMBULL. They do not go into joint convention here. They meet together simply to provide for the counting of the vote ; but there is no provision for their taking ac tion as a joint body. They go there to see the votes opened, and thus Congress provides by law how they shall proceed. This is my view of it, Mr. COWAN". That assumes the very point in dispute. The allegation of some of us is that they do go into joint convention; that the phrase which gives them power and authority to do so is a general phrase. The mode and manner in which it is to be ex ercised of course must be fixed by law, or must be fixed by rules to be adopted for the government of this convention itself ; and to show that it is a convention, and to show it conclusively the resolution offered by the committee to-day provides for its organi zation, provides that it shall have a presiding officer, provides some rules at least for its government, provides for the appointment of tellers. Mr. TRUMBULL. Each House appoints the tellers, not the joint convention. Mr. COWAN. Then, I think, the joint con vention should appoint the tellers. Mr. TRUMBULL. It never has done since the Government was formed. That part of the resolution is similar to the one we have al ways acted under since Washington was elect ed President. Mr. COWAN. Then we encounter the mis chief I suggested a moment ago. If there was a partisan majority in the Senate opposed to the counting of the votes of a particular State, all it had to do would be to stand firmly upon its resolve that they should not be counted, and that State would be disfranchised by the act of the Senate alone. The House would have the same privilege precisely. Was that ever con templated ? Mr. TRUMBULL. If the Senator from Pennsylvania will allow me to put a question to him he will see there is nothing in the ques tion he asks. Mr. COWAN. Certainly; I shall be very glad to see it. Mr. TRUMBULL. Suppose either House obstinately refuses to go there at all. If you are to suppose that the Senate of the United States is determined to break up the Govern ment, they will not meet at all. You might just as well suppose that as to suppose that it will obstinately refuse to perform any other duty. Mr. COWAN. I have heard that argument repeatedly before, and it comes very badly from the mouth of one who provides for a proposition of the kind. I admit you have no right to presume it ; but you have no right to provide that they may do it. You have no right to put the Senate in such a position as that it may do it. You have a right to foresee the mischief before it happens ; but by the adoption of these rules it is a tacit admission that the Senate may do that thing. There is no presumption that the Senate will not go into joint convention, although I am very sorry to say that such a mode of procedure is too common now among the States, among men who think by that m.eans they can gain an ad vantage from the country when they are over throwing the very fundamental laws which underlie its institutions. I think this matter should be left with the joint convention ; that in that convention all questions which arise as to the validity of votes there to be counted by that convention should bo determined. The VICE-PRESIDENT. The question is on agreeing to the report of the committee. The report was agreed to. Lsr HOUSE OF REPEESEXTATIVES. Monday, February 6, 1865. (" Congressional Globe," XXXVIIIth Congress, 2d Session, p. 618.) Mr. COBB, from the Committee on Enrolled Bills, reported that the committee had exam ined and found truly* enrolled joint resolution (H. R. No. 126) declaring certain States not entitled to representation in the electoral col lege ; when the Speaker signed the same. A message was received from the Senate by Mr. HICKEY, its Chief Clerk, notifying the House that that body had passed a concurrent resolution providing joint rules for the govern ment of the two Houses in counting the votes for President and Vice-President of the United States, in which he was directed to ask the concurrence of the House. Mr. STEVENS. I ask unanimous consent to take from the Speaker s table and put upon 256 TWENTIETH PRESIDENTIAL TERM. its passage a concurrent resolution sent to us from the Senate to-day in reference to count ing the electoral votes. JSTo objection being made, the resolution was taken up, considered, and agreed to, as fol lows : Resolved, by the Senate (the House of Rep resentatives concurring therein), That the fol lowing be added to the joint rules of the two Houses, namely : The two Houses shall assemble in the Hall af the House of Representatives at the hour of one o clock p. M., on the second Wednesday in February next succeeding the meeting of the electors of President and Vice-President of the United States, and the President of the Senate shall be their presiding officer. One teller shall be appointed on the part of the Senate, and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, the certificates of the electoral votes ; and said tellers having read the same in the presence and hearing of the two Houses thus assembled, shall make a list of the votes as they shall appear from the said certificates, and the votes having counted, the result of the same shall be delivered to the President of the Senate who shall thereupon announce the state of the vote and the names of the persons, if any elected, which announcement shall be deemed a sufficient declaration of the persons elected President and Vice-President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. If, upon the reading of any such certificate by the tellers, any question shall arise in re gard to counting the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision ; and the Speaker of the House of Representatives shall in like manner submit said question to the House of Repre sentatives for its decision, and no question shall be decided affirmatively, and no vote ob jected to shall be counted, except by the con current votes of the two Houses, which being obtained, the two Houses shall immediately reassemble, and the presiding officer shall then announce the decision of the question submit ted ; and upon any such % question there shall be no debate in either House. And any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner. At such joint meeting of the two Houses seats shall be provided as follows : for the Presi dent of the Senate, the Speaker s chair ; for the Speaker, a chair immediately upon his left ; for the Senators, in the body of the Hall upon the right of the Presiding Officer ; for the Rep resentatives, in the body of the Hall not occu pied by the Senators ; for the tellers, Secretary of the Senate and Clerk of the House of Rep resentatives, at the Clerk s desk ; for the other officers of the two Houses, in front of the Clerk s desk and upon either side of the Speak er s platform. Such joint meeting shall not be dissolved until the electoral votes are all counted and the result declared, and no recess shall be taken unless a question shall have arisen in regard to the counting of any such vote, in whicn case it shall be competent for either House, acting separately, in the manner hereinbefore pro vided, to direct a recess not beyond the next day at the hour of one o clock p. M. Mr. Stevens moved that the vote by which the resolution was agreed to be reconsidered ; also moved that the motion to reconsider be laid on the table. The latter motion was agreed to. IN SENATE. Tuesday, February 7, 1865. ("Congressional Globe," 88th Cong., 2d Session, pp. 628, 629.) A message from the House of Representa tives, by Mr. McPherson, its Clerk, announced that the House of Representatives had agreed to the concurrent resolution of the Senate pro posing an additional joint rule of the two Houses, providing that the two Houses shall assemble on the second Wednesday in February next after the meeting of the electors of Presi dent and Yice-President of the United States, in the Hall of the House of Representatives, for the purpose of opening and counting the votes for President and Vice-President ; and prescribing the rules for the proceedings of the two Houses in such joint meeting. Mr. TRUMBULL. The joint rule which has been adopted by the two Houses in regard to counting the votes for President and Vice- President to-morrow makes it the duty of the Senate to appoint one teller on its part and the House to appoint two. I move that the Presi dent of the Senate appoint the teller on the part of the Senate, The motion was agreed to, and the Vice- President appoiuted Mr. Trumbull. IN HOUSE or REPEESENTATIVES. Tuesday, February 7, 1865. ( ll Congressional Globe," 38th Cong., 2d Session, p. 652.) The Speaker appointed Messrs. Wilson and Dawson as tellers on the part of the House to count the electoral vote for President and Vice-President of the United States. IN SENATE. Wednesday, February 8, 1865. (" Congressional Globe," 38th Cong., 2d Session, pp. 654-657.) A message from the House of Representa tives, by Mr. McPherson, its Clerk, announced 0? TTTR! ABRAHAM LINCOLN, PRESIDENT. that the House had, in conformity to the joint rule on the subject, appointed Mr. J. F. Wilson, of Iowa, and Mr. J. L. Dawson, of Pennsyl vania, tellers on its part, to examine and count the electoral votes for President and Vice- President of the United States on this day. The VICE-PRESIDENT. The hour agreed upon by the concurrent vote of the two Houses having arrived, the Senate will now repair to the Hall of the House of Eepresentatives, for the purpose of opening, counting, and declar ing the votes for President and Vice-President of the United States for the term commencing on the 4th of March, 1865. The Senate accordingly proceeded to the Hall of the House of Eepresentatives, pre ceded by the Sergeant-at-Arms, and headed by the Vice-President and the Secretary. The Senate returned to their Chamber at two o clock P. M. Mr. TRUMBULL. I ask unanimous con sent of the Senate to offer a resolution in con nection with our proceedings in conjunction with the House of Representatives. It is the usual resolution. The VICE-PRESIDENT. Is there any ob jection ? The Chair hears none. The resolu tion will be received, and read. Mr. TRUMBULL The joint committee on the part of the Senate, appointed to join such committee as might be appointed on the part of the House of Representatives to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election, in further execution of the du ties with which they were charged by the two Houses, have agreed to the following resolu tion, which I ask the Senate to consider now : Resolved, That a committee of one member of the Senate be appointed by that body to join a commit tee of two members of the House of Representa tives, to be appointed by that House, to wait on Abraham Lincoln, of Illinois, and to duly notify him that he has been, duly elected President of the United States, for four years, commencing with the 4th day of March, 1865 ; and also to notify Andrew Johnson, of Tennessee, that he has been duly elect ed Vice-President of the United States, for four years, commencing on the 4th day of March, 1865. The resolution was adopted. IIT HOUSE OF REPEESENTATIVES, Wednesday, February 8, 1865. (" Congressional Globe," 3Sth Cong., 2d Session, pp. 667-669.) At five minutes past one o clock p. M. the Doorkeeper announced the Senate of the United States. The Senate entered the Hall, preceded by its Sergeant-at-Arms and headed by the Vice- President and the Secretary of the Senate, the members and officers of the House rising to re ceive them. The Senators took the seats set apart for them in the eastern section of the Hall. 17 The VICE-PRESIDENT took his seat as presiding officer of the joint ecrnvention of the two Houses, the Speaker occupy in^ansfiair on the left of the Vice-President. Senator TEUMBULL, the teller appointed on the part of the Senate, and Messrs. WILSON and DAWSON", the two tellers appointed on the part of the House, took their seats at the Clerk s desk, at which the Secretary of the Senate and the Clerk of the House also occupied seats ; two of the Clerks of the Senate occupying seats at the reporters desk. The VICE-PRESIDENT. The Senate and House of Representatives having met under the provisions of the Constitution for the pur pose of opening, determining, and declaring the votes for the offices of President and Vice-Presi dent of the United States for the term of four years commencing on the fourth of March next, and it being my duty, in the presence of both Houses thus convened, to open the votes, I now proceed to discharge that duty. The Vice-President then proceeded to open and hand to the tellers the votes of the several States for President and Vice-President of the United States, commencing with the State of Maine. Senator TRUMBULL, one of the tellers, read in full the certificate of the vote of the State of Maine, giving seven votes for Abra ham Lincoln, of Illinois, for President of the United States, and seven votes for Andrew Johnson, of Tennessee, for Vice-President of the United States. Senator WADE. Mr. President, I move to dispense with the reading of everything in the certificate except the result of the vote. Mr. COX. Mr. President, I believe that it is not competent for this joint convention to have any motion submitted, but I suggest, as General Cass suggested in 1857, that only the result of the votes shall be announced. The VICE-PRESIDENT. That can be done, as suggested. The Chair does not think that it is within his power to receive the motion, unless the Senator from Ohio desire that the Senate shall separate in order to pass upon the question. Senator WADE. I do not propose any such thing. I believe we may dispense with the reading of all but the results. The VICE-PRESIDENT. The Chair will, therefore, if there be no objection, direct the results of the returns only to be read. The tellers will now read the results of the vote of the State of New Hampshire. The tellers reported, through Senator TRUM BULL, that they had examined the vote of the State of New Hampshire, that they found it in due form, that all the votes given for Presi dent of the United States were five, all which were for Abraham Lincoln, of the State of Il linois ; and that all the votes given for Vioe- President of the United -States were five, all of which were for Andrew Johnson, of the State of Tennessee. 258 TWENTIETH PRESIDENTIAL TERM. The same form was observed in announcing the votes of the other States. The tellers having read, through Mr. Wil son, the certificate from the State of Nevada, showing that two votes had been given for Abraham Lincoln, of Illinois, for President, and two votes for Andrew Johnson, of Ten nessee, for Vice-President The VICE-PRESIDENT said : The Chair will state to the convention that the messen ger who bore the returns from the State of Nevada communicated the fact that the third elector did not appear when the vote was taken. The State having been but recently admitted into the Union, had no law by which the vacancy could be filled ; and consequently but two votes were given for President and Yice-President. The vote of the State of Nevada having been recorded Senator COWAN said : Mr. President, I in quire whether there are any further returns to be counted. The VICE-PRESIDENT. There are not. Senator COWAN. And if there be, I would inquire why they are not submitted to this body in joint convention, which is alone ca pable of determining whether they should be counted or not. The VICE-PRESIDENT. The Chair has in his possession returns from the States of Lou isiana and Tennessee, but in obedience to the law of the land the Chair holds it to be his duty not to present them to the convention. Senator COWAN. I ask whether the joint resolution on that subject has become a law by having received the approval of the Presi dent of the United States ? The VICE-PRESIDENT. The Chair be lieves that the official communication of its approval by the President has not been re ceived by either House. The Chair, however, has been apprised of the fact that the joint resolution has received the approval of the President. Senator COWAN. Then, as a motion is not in order in this body, I suggest that the votes of Louisiana and Tennessee be counted, and that this convention determine the fact. Mr. COX. I suggest the reading of the joint resolution by which our action is to be deter mined. The VICE-PRESIDENT. The Secretary will read the joint resolution under which the House and Senate are now acting. The Secretary of the Senate then read, as follows : Resolved, ly the Senate (the House of Representa tives concurring therein), That the following "be .added to the joint rules of the two Houses, name ly : The two Houses shall assemble in the Hall of the House of Representatives at the hour of one o clock ,y. M M on the -second Wednesday in February next succeeding the meeting of the electors of President and Vice-Presideiit of the United States, and the President of the Senate shall be their presiding offi cer. One teller shall be appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, the cer- \ tificates of the electoral votes ; and said tellers hav- j ing read the same in the presence and hearing of the two Houses thus assembled, shall make a list of the votes as they shall appear from the said certificates ; : and the votes having been counted, the result of the same shall be delivered to the President of the Sen ate, who shall thereupon announce the state of the vote and the names of the persons, if any, elected, which announcement shall be deemed a sufficient dec laration of the persons elected President and Vice- President of the United States, and together with the list of the votes, be entered on the Journals of the two Houses. If, upon the reading of any such certificate by the tellers, any question shall arise in regard to count ing the votes therein certified, the same having been stated by the presiding officer, the Senate shall , thereupon withdraw, and said question shall be sub- j mitted to that body for its decision ; and the Speak er of the House of Representatives shall in like man ner submit said question to the House of Represent atives for its decision ; and no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses, which being obtained, the two Houses shall immediately reassemble, and the presiding offi cer shall then announce the decision of the question submitted ; and upon any such question there shall be no debate in either House. And any other ques tion pertinent to the object for which the two Houses are assembled may be submitted and deter mined in like manner. At such joint meeting of the two Houses seats shall be provided as follows : for the President of the Senate, the Speaker s chair; for the Speaker, a chair immediately upon his left ; for Senators, in the body of the Hall upon the right of the presiding officer; for the Representatives, in the body of the Hall not occupied by the Senators ; for the tellers, Secretary of the Senate, and Clerk of the House of Representatives, at the Clerk s desk ; for the other officers of the two Houses, in front of the Clerk s desk and upon either side of the Speaker s platform. Such joint meeting shall not be dissolved until the electoral votes are all counted and the result de clared, and no recess shall be taken unless a ques tion shall have arisen in regard to the counting of any such votes, in which case it shall be competent for either House, acting separately in the manner hereinbefore provided, to direct a recess not beyond the next day at the hour of one o clock p. ir. Mr. STEVENS. I do not think any ques tion has arisen which requires the two Houses to separate. That, according to the wording of the joint resolution, can only be upon the reading of the returns which have been opened by the President of the convention. Senator COWAN. I merely wish to say that, believing as I do that it rests with this joint convention, in its joint capacity, to deter mine all questions which ought to arise here, I have done what I have thought to be me duty in bringing to the attention of the convention the question which I have raised. Having done so, I now beg leave to withdraw it. The VICE-PRESIDENT. The Chair did not understand the Senator from Pennsylvania [Mr. COWAN] as making any distinct motion, but merely a simple suggestion. Senator COWAN. I understood that no mo tion could be entertained in this convention . ABRAHAM LINCOLN, PRESIDENT. 259 The VICE-PRESIDENT. Motions can be entertained upon any matters pertinent to the purpose for which the convention has assem bled. The decision of those motions must be determined by the two Houses separately, after the Senate shall have withdrawn from the con vention. Mr. TEAMAN". Mr. President, if it requires a distinct motion to determine the question, I will move that all the returns before this joint convention be opened and presented for its consideration. The VICE-PRESIDENT. The Chair is of the opinion that the motion of the member from Kentucky [Mr. TEAMAN] is in order, being pertinent- to the object for which the House and Senate have assembled in joint convention. The member will reduce his motion to writing, so that the precise question shall be in posses sion of the Senate when it shall retire for the determination of the question presented for the consideration of the convention. Mr. PRUTN". I wish to inquire whether a second proposition, one in regard to the count ing of the votes, can be entertained before the two Houses shall separate. If so I desire to move that the tellers be instructed not to count the vote of the so-called State of West Vir ginia. The VICE-PRESIDENT. In the opinion of the Chair the motion of the member from New Tork [Mr. PETJYN] is made too late, the vote of the State of West Virginia having been al ready annnounced and declared. Mr. PRUYN. With all respect to the Vice- President, I desire to say that I understand the rule to be this : the certificates of the votes of the respective States have been opened, read, and announced, and now the tellers, as the proper officers of this joint convention, are to pass upon those votes, and announce the result. My motion is that the tellers be instructed not to count the vote of the so-called State of West Virginia. Mr. WHALET. If it be in order, I would ask the gentleman from New Tork [Mr. PETJYN] to state his reasons for his motion. The VICE-PRESIDENT. The language of the rule under which the two Houses are now acting is as follows : " If upon the reading of any such certificate by the tellers, any question shall arise as to the counting of the votes therein certified," etc. The question must be raised when the vote is announced. In the opinion of the Chair the member from New Tork [Mr. PEUYN] should have made his motion, in order to come within the rule, at the time the tellers announced the vote of the State of West Virginia. Mr. COX. If the rule is that which has just been enunciated by the Chair, how is it that the gentleman from Kentucky [Mr. TEAMAN] can submit his motion before the Vice-Presi- dent shall have opened, and the tellers shall have announced, the votes of the States of Louisiana and Tennessee ? The VICE-PRESIDENT. In the opinion of the Chair the motion of the member from Ken tucky [Mr. TEAMAN] is in order. It does not apply to a return where objection is made, but it applies to a return which has not been sub mitted to the convention. It is a distinct mo tion that a return shall be submitted to the convention. It comes within the latter clause of the joint resolution, which relates to any other motion pertinent to the object for which the two Houses have met in convention. Senator FAR WELL. I would suggest that the question raised by the member from Ken tucky [Mr. TEAMAN] has already been decided by the two Houses of Congress in the passage of the joint resolution which has just been read. It is not in order, therefore, to again raise the question in this convention, the point of order having already been determined by the two Houses of Congress. The VICE-PRESIDENT. Does the Senator from Maine [Mr. FAEWELL] raise a question of order upon the ruling of the Chair? Senator FAR WELL. I raise the question of order that this question has already been decided by the two Houses of Congress in pass ing the joint resolution under which this con vention is acting, which joint resolution has been approved by the President. The VICE-PRESIDENT. The fact of that approval of the President is within the knowl edge of the Chair, and in consequence of that knowledge the Chair has seen tit to withhold the returns of the States in question. There has been no official promulgation of that ap proval of the President. Still, in the opinion of the Chair, if either branch of Congress shall be disposed to order the returns now upon the table to be read, it is within their po\ver to do so. The reading of the returns would be one thing ; then would arise another question, whether the vote in the return so read should be added to the count of the tellers. In the opinion of the Chair the motion of the mem ber from Kentucky [Mr. TEAMAN] is in order. Mr. TEAMAN. Bef ore I submit my motion in writing, I would inquire whether the sub mission of that motion would require the tem porary dissolution of this convention and the resolving of the two Houses into their separate bodies in their respective Chambers? The VICE-PRESIDENT. The Chair has no doubt upon that point. Each House must determine the question in its own Chamber ; and each House has a negative upon the deter mination of the other. Mr. TEAMAN. Then I desire to submit another suggestion. Mr. WASHBURNE, of Illinois. I object to any debate. the VICE-PRESIDENT. All debate is out of order. The rule itself prescribes that no question shall be debated in the convention. Mr. TEAMAN". Then I withdraw my mo- tion, if it requires the separation of the con vention into the two Houses. 260 TWENTIETH PRESIDENTIAL TERM. The motion was accordingly withdrawn. Senator TRUMBULL, on the part of the tellers, announced the following as the result of the vote for President and Vice-President of the United States: List of Votes for President and Vice- President of the United States for the Constitutional Term to commence on the 4th Day of March, 1865: Number of Electoral Votes. STATES. PRESIDENT. VICE- PKESIDENT. Abraham Lincoln, of Illinois. George B. McClellan, of New Jersey. Andrew Johnson, of Tennessee. George H. Peudleton, * of Ohio. 7 5 12 4 6 5 83 7 26 8 7 11 21 13 16 11 8 8 8 5 4 8 3 5 2 Maine . 7 7 5 New Hampshire . . . 5 12 4 12 4 Rhode Island and Provi dence Plantations 6 5 33 6 5 Vermont New York .... 83 y ..,. "ii" New Jersey Pennsylvania Delaware 26 "V 20 Maryland ^ ii 7 Kentucky Ohio 21 21 13 16 11 8 8 8 5 4 3 3 5 2 Indiana .... 13 Illinois 16 11 Missouri Michigan . . g Wisconsin 8 8 5 4 3 M Iowa California Minnesota Oregon Kansas 3 5 2 West Virginia Nevada Totals 233 212 21 212 21 The VICE-PRESIDENT. The tellers re port that the whole number of votes cast for President and Vice-President of the United States is 233; necessary to a choice, 117. For President of the United States, the tellers re port that Abraham Lincoln, of Illinois, has received 212 votes; George B. McClellan, of New Jersey, has received 21 votes. For Vice- President of the United States, the tellers an nounce that Andrew Johnson, of Tennessee, has received 212 votes, and George H. Pendle- ton, of Ohio, has received 21 votes: Wherefore, I do declare that ABRAHAM LIN COLN, of the State of Illinois, having received a majority of the whole number of electoral votes, is duly elected President of the United States for four years commencing on the 4th day of March, 1865 ; and that ANDEEW JOHN SON, of the State of Tennessee, having received a majority of the whole number of electoral votes for Vice-President of the United States, is duly elected Vice-President of the United States for four years commencing on the 4th day of March, 1865. [The announcement of the result of the vote was received with applause upon the floor and in the galleries.] The VICE-PRESIDENT. The object for which the House and the Senate have assem bled in joint convention having transpired, the Senate will retire to its Chamber. The Senate accordingly retired from the Hall of the House of Representatives, when The House was again called to order. IN SENATE. Friday, February 10, 1865. ( u Congressional Globe," 38th Cong., 2d Session, p.m.) The President pro tempore also laid before the Senate the following message from the President of the United States : To the Honorable the Senate and House of Represent atives : The joint resolution entitled " Joint resolution declaring certain States not entitled to representa tion in the electoral college" has been signed by the Executive, in deference to the view of Congress implied in its passage, and presentation to him. In his own view, however, the two Houses of Congress, convened under the twelfth article of the Constitu tion, have complete power to exclude from counting all electoral votes deemed by them to be illegal, and it is not competent for the Executive to defeat or obstruct that power by a veto, as would be the case if his action were at all essential in the matter. He disclaims all right of the Executive to interfere in any way in the matter of canvassing or counting elec toral votes, and he also disclaims that, by signing sucb resolution, he has expressed any opinion on the recitals of the preamble, or any judgment of his own upon the subject of the resolution. ABKAHAM LINCOLN. EXECUTIVE MANSION, February 8, 1865. Mr. JOHNSON. That to me is a very ex- traordinary course for the President to pursue. I have no doubt his motives are perfectly cor rect and patriotic ; but if his approval is neces sary to give effect to the joint resolution, ac companying that approval with a disclaimer of any belief in the doctrines of the resolution is wholly inconsistent with his duty of approv ing or disapproving. I suppose nobody will contend for a moment that the resolution, if his approval is necessary, though approved in the way in which he has thought proper to approve it, is not just as effective as if he had approved it without saying a word on the sub ject. It is, in my judgment, a reflection upon the Senate and upon Congress, although not so designed. If he is sincere (and of course I do not call in question his sincerity) in thinking that it was not a subject for the legislation of Congress, he ought to have disapproved the resolution ; but in my judgment he is entirely wrong in point of law. It may be true, and perhaps to that extent is true, that in the ab sence of any legislation, the two Houses of Congress, either acting in convention, or act ing separately, might establish for themselves rules by which they would be governed in ad mitting or excluding votes. But it is equally ABRAHAM LINCOLN, PRESIDENT. 261 true, in my judgment (and I speak it with all the deference I can feel for the opposite opin ion announced by the President), that it is a subject over which Congress has a right to legislate in order to guard against the very mischiefs which would result from leaving the subject, without legislation., to be disposed of by the convention. This is not the first time in which it has been done. The bill for the reconstruction of the seceded States was passed by an over whelming vote in both Houses at the last ses sion. The President, to be sure, did not re turn it with a qualified veto, or with any veto, or with any approval. There not being ten days between the passage of the bill and the adjournment of Congress, he had a right not to act upon it, and by not acting he put it out of the power of Congress to pass it ; but im mediately after Congress adjourned, he issued a manifesto or proclamation, in which he said that, according to his view, there were some good things in the bill passed by Congress, and some bad things ; as far as they were good he would act upon them ; as far as he considered them bad, or not as good as what he proposed himself, he would be governed by his own judgment. It seems to me to be his clear and manifest duty and I speak it with no possible want of respect to him ; I should say the same thing if any other man was in the presidential office to approve or disapprove, and not to do it in part by way of approval, and in part by way of disapproval. He reads us a lecture, vir tually, in this paper. He says we have legis lated on a subject with which we have nothing to do. It was for us to decide for ourselves whether it was within our jurisdiction, and we have decided. In the exercise of his constitu tional power of acting upon all subjects sub mitted to him in the form of legislation, he has a clear right to disapprove, if he thinks that he ought to disapprove, but not to take the course he has adopted in this case, or to take the course which he adopted in the other case to which I have adverted. The message was laid on the table. TWENTY-FIRST PRESIDENTIAL TERM. 1869-1873. ULYSSES S. GRANT, President ; SCHUYLER COLFAX, Vice -President. Ix SENATE. Wednesday, January 13, 1869. ( a Congressional Globe," 40th Cong., 2d Session, p. 332.) Mr. COCKLING- submitted the following resolution, which was considered by unani mous consent : Resolved, That the President of the Senate be au thorized to appoint the teller on the part of the Sen ate, provided for in the twenty-second joint rule of the two Houses, to receive and count the votes for President and Vice-President. Mr. EDMUNDS. Let the rule referred to be read. Mr. CONKLING-. The twenty -second joint rule covers everything except that it does not provide for the mode of the appointment. This resolution is simply to give the power to the Chair. Mr. SUMNEPw. Let the rule be read. The twenty-second joint rule was read, as follows : " The two Houses shall assemble in the Hall of the House of Representatives at the hour of one o clock p. M., on the second Wednesday in February next succeeding the meeting of the electors of President and Vice-President of the United States, and the President of the Senate shall be their Presiding Offi cer; one teller shall be appointed on the part of the Senate and two on the part of the House of Repre sentatives, to whom shall be handed, as they are opened by the President of the Senate, the certifi cates of the electoral votes ; and said tellers, having read the same in the presence and hearing of the two Houses then assembled, shall make a list of the votes as they shall appear from the said certificates ; and the votes having been counted, the result to the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote and the names of the persons, if any, elected ; which an nouncement shall be deemed a sufficient declaration of the persons elected President and Vice-President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. If upon the reading of any such certificate by the tellers any question shall arise in regard to counting the votes therein certified, the same having been stated by the Presiding Officer, the Senate shall thereupon withdraw, and said question shall be sub mitted to that body for its decision ; and the Speaker of the House of Representatives shall, in like man ner, submit said question to the House of Repre sentatives for its decision ; and no question shall be decided affirmatively and no vote objected to shall be counted except by the concurrent votes of the two Houses ; which being obtained, the two Houses shall immediately reassemble and. the Presiding Officer shall then announce the decision of the question sub mitted, and upon any such question there shall be no debate in either House ; and any other question pertinent to the object for which the two Houses are assembled may he submitted and determined in like manner. At such joint meeting of the two Houses seats shall be provided as follows : for the President of the Senate, the " Speaker s chair ;" for the Speaker, a chair immediately upon his left; the Senators in 262 TWENTY-FIRST PRESIDENTIAL TERM. the body of the Hall, upon the right of the Presiding Officer; for the Representatives, in the. body of the Hall not occupied by the Senators; for the tellers, Secretary of the Senate, and Clerk of the House of Representatives, at the Clerk s desk ; for the other officers of the two Houses, in front of the Clerk s desk and upon either side of the Speaker s platform. Such joint meeting shall not be dissolved until the electoral votes are all counted and the result de clared ; and no recess shall be taken unless a ques tion shall have arisen in regard to counting any of such votes, in which case it shall be competent for either House, acting separately, in the manner here inbefore provided, to direct a recess, not beyond the next day at the hour of one o clock p. M." The resolution was agreed to. IN HOUSE OF REPRESENTATIVES. TJmrsday, February 4, 1869. ("Congressional Globe," 40th Cong., 3d Session, pp. 885, 886.) Mr. SCHENCK. I rise to offer a resolution in reference to the counting of electoral votes for President and Vice-President, which I ask the Clerk to read : The Clerk read as follows: Resolved, That JAMES F. WILSON, of Iowa, and JOHN V. L. PEUYN. of New York, be appointed tellers on the part of tne House of Representatives to count the electoral votes for President and Vice-Presi dent. The SPEAKER. The Chair will state that for obvious reasons he has desired that the House should take the responsibility of this appointment instead of himself. The resolution was agreed to. IN SENATE. Friday, February 5, 1809. (" Congressional Globe," 40th Cong., 3d Session, p. 897.) The PRESIDENT pro tempore. The Chair will announce the appointment of Mr. CONK- LING, of New York, as the teller on the part of the Senate to count the votes for President and Vice-President of the United States. A message from the House of Representa tives, by Mr. McPnEEsoN, its Clerk, announced that the House had appointed Mr. JAMES F. WILSON, of Iowa, and Mr. JOHN V. L. PKTTYN, of New York, tellers on the part of the House to count the electoral votes for President and Vice-President of the United States. IN HOUSE OF REPRESENTATIVES. Friday, February 5, 1869. ("Congressional Globe," 40th Cong., 3d Session, p. 919.) A message from the Senate, by Mr. McDoN- ALD, its Chief Clerk, announced that the Sen ate had appointed Mr. CONKLING teller on its part to count the electoral votes for President and Vice-President of the United States. IN SENATE. Saturday, February 6, 1869. ( u Congressional Globe," 40th Cong., 3d Session, p. 934.) Mr. EDMUNDS. I ask leave to offer a con current resolution on a matter which is sub stantially a question of privilege, which must be determined before next Wednesday in order to avoid complications. I ask that it may be read for information ; and I also ask for its present consideration. The Chief Clerk read the resolution, as fol lows : Whereas the question whether the State of Geor gia has become, and is, entitled to representation in the two Houses of Congress, is now pending and undetermined; and whereas by the joint resolution of Congress, passed July 20, 1868, entitled "A reso lution excluding from the electoral college votes of States lately in rebellion, which shall not have been reorganized," it was provided that no electoral votes from any of the States lately in rebellion should be received or counted for President or Vice-Presi dent of the United States, until, among other things, such State should have become entitled to repre sentation in Congress pursuant to acts of Congress in that behalf: Therefore fiesolved ~by the Senate (the House of Representa tives concurring), That on the assembling of the two Houses on the second Wednesday of February, 1869, for the counting of the electoral votes for Presi dent and Vice-President, as provided by law and the joint rules, if the counting or omitting to count the electoral votes, if any, which may be presented as of the State of Georgia, shall not essentially change the result, in that case they shall be reported by the President of the Senate in the following manner : " Were the votes presented as of the State of Georgia to be counted, the result would be for for President of the United States votes: if not fcounted for for President of the United States, votes ; but in either case is elected Presi dent of the United States ;" and in the same manner for Vice-President. Mr. EDMUNDS. I ask the present consid eration of that resolution because the Senate will see it is a matter of importance. It will obviate a difficulty which will otherwise cer tainly arise on Wednesday next. If the Senate shall consent to consider it at this time, I will, in a word, explain that it is in accordance with the previous action of the two Houses in an analogous case. The PRESIDENT pro tempore. The ques tion is on taking up the resolution for consid eration at this time. Mr. TRUMBULL. Let it lie over. The PRESIDENT pro tempore. Objection being made, it goes over under the rule. Mr. TRUMBULL. I think that the resolu tion had better be printed, that we may see what it is. The PRESIDENT pro tempore. The order to print will be entered. ULYSSES S. GRANT, PRESIDENT. 263 Is HOUSE OF REPRESENTATIVES. Monday, February 8, 1869. (" Congressional Globe," 40th Cong., 3d Session, p. 965.) At this point the committee rose informally, and the Speaker having resumed the chair, a message from the Senate, by Mr. HAMLIN, one of its clerks, announced that the Senate had passed a resolution relating to the counting of the electoral votes of the State of Georgia ; in which he was directed to ask the concurrence of the House Is HOUSE OF REPKESENTATIVES. Tuesday, February 9, 1859. ("Congressional Globe," 40th Cong., 3d pp. 971, 972.) Session, Mr. WILSON, of Iowa. Mr. Speaker, I move to suspend the rubs Mr. ROSS. I rise to a point of order. The SPEAKER pro temper e. The gentle man will state his point of order. Mr. ROSS. My point of order is, that by agreement of the House the business for this evening was to be confined to the considera tion of the Army bill. The SPEAKER pro tempore. The Chair understands that the gentleman from Iowa [Mr. WILSON] is about to submit a motion to suspend the rules for a particular purpose, which, if made and adopted, will suspend that as well as all other rules that stand in the way of the object desired. Mr. ROSS. I refer to an agreement or un derstanding of the House; not to any rule. The SPFAKER pro tempore. A general understanding and agreement is always re garded as a rule. Mr. WILSON, of Iowa. I now move that the rules be suspended in order that the con current resolution of the Senate, in relation to the electoral vote of Georgia, may be taken from the Speaker s table and agreed to. Mr. WOODWARD. I ask the yeas and nays on that motion. Mr. TARN S WORT II. Let the concurrent resolution be read. The Clerk read as follows : Whereas the question whether the State of Georgia has become and is entitled to representation in toe two Houses of Congress, is now pending and unde termined; and whereas by the joint resolution of Congress passed July 20, 1868, entitled " A resolution excluding from the Electoral College votes of States lately in rebellion, which shall not have been reor ganized," it was provided that no electoral votes from any of the States lately in rebellion should be re ceived or counted for President or V ice-President of the United States until, among other things, such State should have become entitled to representation in Congress pursuant to the acts of Congress in that behalf: Therefore, Resolved b^ the, Senate (the House of Representa tives concurring), That on the assembling of the two Houses on the second Wednesday of February, 1869, for the counting of the electoral votes ibr President and Vice-President, as provided by law and the joint rules, if the counting or omitting to count the electoral votes, if any, which may be presented, as of the State of Georgia, shall not essentially change the result, in that case they shall be reported by the President of the Senate in the following manner: where the votes presented, as of the State of Geor gia, to be counted, the result would be, for for President of the United States, votes ; if not counted, for for President of the United States, votes ; but in either case is elected Presi dent of the United States ; and in the same manner for Vice President. Mr. RANDALL. I would like to ask the gentleman from Iowa [Mr. WILSON] a question? Mr. ALLISON". I think that would be in the nature of debate. The SPEAKER pro tempore. No debate is in order upon a motion to suspend the rules if objection is made. Mr. ALLISON. I will not make objection. Mr. RANDALL. The question I desire to ask is whether Mr. SHANKS. I renew the objection to debate. Mr. MAYNARD. I would like to inquire of the gentleman from Iowa Mr. RANDALL. I object to debate. Mr. MAYNARD. Then I will make a par liamentary inquiry of the Chair. The SPEAKER pro tempore. The Chair will hear the inquiry of the gentleman. Mr. MAYNARD. Would it be in order to move to amend this concurrent resolution of the Senate so as to make it apply also to the State of Louisiana ? The SPEAKER pro tempore. The motion is to suspend the rules for the purpose of tak ing from the table and agreeing to the resolu tion. That precludes all amendments. Mr. FARNSWORTH. I wish the gentle man from Iowa would simply move to suspend the rules for the purpose of taking up the reso lution. Mr. WILSON, of Iowa. I prefer my motion as I have submitted it. Mr. RANDALL. I rise to make a parlia mentary inquiry of the Chair. The SPEAKER pro tempore. The gentle man will state his inquiry. Mr. RANDALL. Does the Chair view this resolution as in the nature of a law, if passed, requiring the signature of the President to make it of any force ? The SPEAKER pro tempore. The Chair does not entertain that as a parliamentary question. Mr. RANDALL. Well, I would like to have the Chair or somebody else decide that ques tion. Mr. MAYNARD. I would ask the gentle man from Iowa to modify his motion so as to permit an amendment to this resolution to in clude the State of Louisiana. Mr. WILSON, of Iowa. I prefer not to do so. The question was upon the motion to sus- 264 TWENTY-FIRST PRESIDENTIAL TERM. pend the rules, upon which Mr. WOODWAED had called for the yeas and nays. The question was taken upon ordering the yeas and nays, and there were seven in the af firmative. The SPEAKER pro tempore. The yeas and nays are not ordered. Mr. BOSS. I move that the House now ad journ. Mr. RANDALL. Upon that motion I call for the yeas and nays. Mr. BE AM AN". I rise to a point of order. The SPEAKER pro tempore. The gentle man will state his point of order. Mr. BEAMAN. My point of order is, that pending a motion to suspend the rules a motion to adjourn is not in order. The SPEAKER pro tempore. The Chair overrules the point of order. The question was taken upon ordering the yeas and nays upon the motion to adjourn, and there were eleven in the affirmative. So the yeas and nays were not ordered. Mr. WOODWARD. I rise to a point of order. The SPEAKER pro tempore. The gentle man will state his point of order. Mr. WOODWARD. I called for the yeas and nays on the motion of the gentleman from Iowa [Mr. WILSOX] to suspend the rules. The next thing I heard in regard to my call was the announcement by the Chair that the House had refused to order the yeas and nays. Now, I submit that the question of ordering the yeas and nays must be submitted to the House so that we may have a vote on the question. I have not voted upon it, nor have I heard the question submitted. The SPEAKER pro tempore. The Chair counted those voting in the affirmative, and there were only six. The Chair stated that in his opinion there were not enough. No objec tion was made to that decision ; and the Chair announced the result. Mr. WOODWARD. I wish the Chair to understand the point I make. I do not deny that the Chair announced the result. I com plain that he did not state the question so that I heard it, or knew the vote was being taken. The first I heard was the announcement of the result. I did not vote on the question at all. The SPEAKER pro tempore. The Chair is informed that the reporters have the matter recorded as stated by the Chair. If the gen tleman failed to hear the putting of the ques tion the Chair regrets it. Mr. RANDALL. I demand tellers on or dering the yeas and nays on the motion to ad journ. Mr. ROSS. I move that the House resolve itself into Committee of the Whole on the State of the Union on the Army appropriation bill. The SPEAKER pro tempore. That motion is not in order pending the motion to adjourn. The question is on ordering tellers. Tellers were not ordered. So the yeas and nays were not ordered. The motion to adjourn was not agreed to; there being yeas 14, nays 99. Mr. RANDALL. I rise to a point of order, that on the vote just taken less than a quorum voted. Mr. FARNSWORTU. Less than a quorum can refuse to adjourn. Mr. RANDALL. But it requires a quorum to suspend the rules. The SPEAKER pro tempore. The vote last taken was on the motion to adjourn. Mr. RANDALL. I waive the point for the present. The question being taken on the motion of Mr. WILSOX, of Iowa, to suspend the rules for the purpose of adopting the concurrent resolu tion, there were yeas 95, nays 6 ; no quorum voting. Tellers were ordered; and Mr. WILSON, of Iowa, and Mr. WOODWARD, were appointed. The House divided ; and the tellers reported yeas 90, nays 10 ; no quorum voting. Mr. HOLMAN. I suggest that the call for a division be withdrawn, with the understand ing that by general consent the yeas and nays shall be taken upon the motion to suspend the rules. Mr. JONES, of Kentucky. I move that the House adjourn. The motion was not agreed to. Mr. WOODWARD. 1 ask unanimous con sent that the yeas and nays be taken on the motion to suspend the rules. There was no objection. So the yeas and nays were ordered. The question was taken ; and it was decided in the affirmative yeas 98, nays 17, not vot ing 107; as follows: YEAS Messrs. Allison, Ames. Banks, Beaman, Beatty, Benjamin, Benton, Blaine, Blair, Boles, Bowen, Boyden, Broomall, Buckland, Benjamin F. Butler, Roderick R. Butler, Churchill, Clift, Cobb, Coburn, Oorley, Cullom, Dawes, Delano, Deweese, Dickev, Dixon, Dod<*e, Eckley. Ela, Ferriss, Ferry, Garfleld, Halsey, Harding, Heaton, Higby, Hill, Hooper, Hopkins, Chester D. Hubbard, Hulburd, Jenckes, Julian, Kelley, Kellogg, Kelsey, Koontz, Lafiin, William Lawrence, Loan, Logan, Lough- bridge, Marvin, Maynard, McCarthy, McKee, Miller, Moore, Moorhead, Mullins, Norris, Paine, Perham, Peters, Pierce, Pile, Plants, Price, Prince, Raum, Roots, Sawyer, Schenck, Scofield, Shanks, Shella- barger, Starkweather, Stevens, Stewart, Stokes, Sto ver, Sypher, Taylor, Thomas, Trowbridge, Twichell, Upson, Robert T. Van Horn, Vidal, Henry D. Washburn, William B. Washburn, Welker, Whitte- more, William Williams, James F. Wilson, John T. Wilson, and Windom 98. NAYS Messrs^. Baker, Boyer, Farnsworth, G-etz, Holman, Hotchkiss, Johnson, Thomas L. Jones, Niblack, Phelps, Randall, Ross, Taber, Van Auken, Van Trump, Woodward, and Young 17. NOT VOTING Messrs. Adams, Anderson, Arch er, Arnell, Delos R. Ashley, James M. Ashley, Ax- tell, Bailey, Baldwin, Barnes, Barnum, Beck, Bing- ham, Blackburn, Boutwell, Bromwell, Brooks, Buck ley, Burr, Cake, Callis, Cary, Chanler, Reader W. Clarke, Sidney Clarke, Cook, Cornell, Covode, Dockery, Donnelly, Driggs, Edwards, Eggleston, ULYSSES S. GRANT, PRESIDENT. 265 Eldridge, Thomas D. Eliot, James T. Elliott, Fields, Fox, French, G-lossbrenner, Golladay, Goss, Gove, Gravely, Griswold, Grover, Haight, Hamilton, Haughey, Hawkins, Asahel W. Hubbard, Richard D. Hubbard, Humphrey, Hunter, lugersoll, Alexan der H. Jones, Judd, Kerr, Ketcham, Jiitchen, Knott, Lash, George V. Lawrence, Lincoln, Lynch, Mallo- ry, Marshall, MoCormiok, McCullough, Mercur, Mor- rell, Morrissey, Mungen, Myers, Newcomb, News- ham, Nicholson, Nunn, O Neill, Orth, Pettis, Pike, Poland, Polsley. Pomeroy, Pruyn, Robertson, Rob inson, Selye, Sitgreaves, Smith, Spalding, jstone, Taffe, Tift, John Trimble, Lawrence S. Trimble, Van Aernam, Burt Van Horn, Van Wyck, Ward, Cad walader C. Washburn, Elihu B. Washburne, Thomas Williams, Stephen F. Wilson, Wood, and Wood bridge 107. So the motion to suspend the rules was agreed to, and the concurrent resolution was adopted. Mr. WILSON, of Iowa, moved to reconsider the vote just taken ; and also moved that the motion to reconsider be laid on the table. The latter motion was agreed to. IN SENATE. Monday, February 8, 1889. ("Congressional Globe," 40th Cong., 3d Session, pp. 976-978.) Mr. EDMUNDS. If there are no further billa or resolutions, I move that the Senate now proceed to the consideration of the reso lution named by me. The motion was agreed to ; and the Senate proceeded to consider the following reso lution, submitted by Mr. EDMUNDS on Satur day last : Whereas the question whether the State of Georgia has become and is entitled to representation in the two Houses of Congress is now pending and unde termined ; and whereas, by the joint resolution of Congress, passed July 20, 1863, entitled " A reso lution excluding from the electoral college votes of States lately in rebellion which shall not have been reorganized," it was provided that no electoral votes from any of the States lately in rebellion should be received or counted for President or Vice-President of the United States until, among other things, such State should have become entitled to represntation in Congress pursuant to acts of Congress in that be- half: Therefore, _ Resolved by the Senate (the House of Representa tives concurring), That on the assembling of the two Houses on the second Wednesday of Februarv, 1869, for the counting of the electoral votes for presi dent and Vice-President, as provided by law and the joint rules, if the counting or omitting to count the electoral votes, if any, which may be presented as of the State of Georgia shall not essentially change the result, in that case they shall be reported by the President of the Senate in the following manner : Avere the votes presented as of the State of Georgia to be counted, the result would be. for for President of the United States, votes- if not counted, for for President of the United States, votes ; but in either case is elected President of the United States ; and in the same manner for Vice-President. Mr. EDMUNDS. I rise merely to say a few words on the subject, not to occupy the time of the Senate, because I hope the resolution will meet with unanimous approval. By the rules as they now stand, having been so cre ated after the difficulty of 1857 about count ing the vote of Wisconsin, if the vote of Geor gia should be objected to in the joint conven tion if I may so style it next Wednesday, it will be necessary for the Senate to retire im mediately and to consider without debate the question whether Georgia had complied with the reconstruction acts of Congress and the resolution of the 20th July excluding her vote from being counted until she should have become entitled to representation. That, of course, involves the whole question as to the condition of Georgia, whether she has become entitled to admission into this Chamber and into Congress, and has complied Avith the con ditions of the laws on that subject. Of course that is a question of the gravest import. It is a question about which there is a difference of opinion, as is seen in the two reports from the Judiciary Committee upon that subject. It appeared to me, inasmuch as we know morally that the question whether Georgia be counted or not will make no difference with the result, that we ought not to decide so important a question instantly and without debate, but that we ought to leave the question where it stands now, for fair discussion and deliberate action. This resolution, therefore, provides that if the vote of Georgia shall make no difference in the result, the presiding officer shall announce it hypothetically, which obviates all difficulty ; and I may say it is precisely the course that the two Houses took in 1821, under a similar resolution, in the case of Missouri. That State claimed to have complied with the act admit ting her into the Union, and voted for Presi dent in the fall of 1820, and her votes were forwarded here. It was claimed by one party in Congress that she had not complied with the act, and that her votes ought not to be counted ; by another, that she had complied, and that her votes ought to be counted. It turned out that it would make no difference in the result of the election how that question was decided, although it came within three or four votes of making a difference, and the two Houses, to obviate the difficulty, agreed upon a resolution, which is almost literally the one I have pre sented. I hope, therefore, that this resolution will meet with general approval. Mr. TRUMBULL. Mr. President, I do not know that I shall seriously object to the pas sage of this resolution in the state of existing facts, but it really seems to me that, prima facie, at least, these votes should be counted ; and I submit to the Senator from Vermont, who introduced this resolution and bases it upon the assumption that it is immaterial whether the vote of Georgia is counted or not, and states that we all know that it will make no difference in the result, if that be so, why should not the vote be counted as prima facie valid until Congress acts? It would seem to be very clear that Georgia was entitled to vote 266 TWENTY-FIRST PRESIDENTIAL TERM. for President. The resolution that was passed at the last session of Congress provided " That none of the States whose inhabitants were lately in rebellion shall be entitled to representation in the electoral college for the choice of President or Vice-President of the United States, nor shall any- electoral votes be received or counted from any of such States, unless at the time prescribed by law for the choice of electors the people of such States, pur suant to the acts of Congress in that behalf, shall have, since the 4th day of March, 1867, adopted a constitution of State government under which a State government shall have been organized and shall be in operation, nor unless such election of electors shall have been held under the authority of such constitu tion and government, and such State shall have also become entitled to representation in Congress pur suant to the acts of Congress in that behalf? Now sir, we all know that since the 4th of March, 1867, the State of Georgia has " adopted a constitution of State government under which a State government has been organized and is in operation." So much of this resolution is complied with. " Nor unless such election of electors shall be held under the authority of such constitution and government." It is not denied that the election in Georgia was under the constitution and government organized since March, 1867, "and such State shall have also become entitled to representation in Con gress." Not that it shall be represented in Congress, but that it shall have become " enti tled "to representation in Congress pursuant to the acts of Congress in that behalf." Now, by turning to another act of Congress, passed on the 25th of June, 1868, we find that Geor gia is declared to be entitled to representation in Congress. The act is in these words : " That each of the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, shall be entitled and admitted to represen tation in Congress as a State of the Union, when the Legislature of such State ah all have duly ratified the amendment to the Constitution of the United States." known as article fourteen, and also in the case of Georgia, having stricken out a provision of her relief clauses, so called. We have the evi dence before us, in pursuance of this act, that Georgia has duly ratified the constitutional amendment, the same as the other States of South Carolina, North Carolina, Alabama, and Louisiana. The President has issued his proc lamation in pursuance of this act of Congress, declaring the ratification of the fourteenth amendment by the Legislature of Georgia in the same manner that it has been ratified by the other States. We have also the evidence that Georgia complied with the other condition required of her by striking out a certain provi sion in her constitution known as the relief clauses clauses inserted for the purpose of preventing the collection of debts. Prima facie it would seem that Georgia was entitled to representation and entitled to vote for Pres ident. Congress has not yet set aside these proceedings. The question will arise hereafter whether Congress can set them aside, and upon that there will be some difference of opinion, I apprehend. It is known that there is a dif ference of opinion ; but at this time, prima facie, she is entitled to have her vote counted. But, as has been said by the Senator from Ver mont, it will make no difference in the result ; and he proposes to avoid any decision about it. I do not know that I shall seriously object to the passage of the resolution in that view. But, sir, it is a very dangerous proceeding that we are adopting ; and if the result depended on this vote of Georgia I do not know but that it might devolve this country in civil war. It is a very delicate matter to undertake to deter mine here in advance the votes from what States shall be counted and what not, when those States have cast their votes in pursuance of the laws of the land ; and to do that before any act of Congress has been passed declaring in any way that they are not entitled to vote, and to do it by resolution in this way, seems to me a dangerous precedent. My only object in rising was to call atten tion to the precise condition of Georgia at this time and to make the statement that I have made in regard to this electoral vote, and to express the opinion that inasmuch as it would make no difference in the result, and as, prima facie at least, Georgia had a right to vote, it would be better to count the vote without raising the question at all. Mr. EDMUNDS. I do not wish to occupy time, because my friend from Illinois does not really object to the passage of this resolution. I merely rise to say that I entirely disagree with my friend as to the prima facie state of the case. I believe it is capable of demonstra tion not only that Georgia is not prima facie entitled to have her vote counted or to be rep resented as a State in this Union, but that the evidence is conclusive the other way. But this is not the time to discuss that, because, as I said before, it is a grave question that re quires calm discussion and time for delibera tion. I only propose this to avoid the difficul ty that my friend sees will arise unless we agree to this resolution. Mr. HENDPJCKS. I wish to submit to the Senate whether the two Houses ought in ad vance of the count of the vote to assume to know who is elected President? Mr. EDMUNDS. We do not assume to know by the resolution. Mr. HENDPvICKS. The Senator from Ver mont says they do not assume to know that. Then I do not understand the resolution. The resolution is that the President of the Senate shall announce as follows : Were the votes presented as of the State of Geor gia to be counted, the result would be, for for President of the United States, votes ; if not counted, for for President of the United States, votes ; but in either case is elected Presi dent of the United States. Mr. EDMUNDS. My friend has omitted to cast his eye on the four or five preceding lines, which state that if in the counting the ULYSSES S. GRANT, PRESIDENT. 267 result shall not be changed he shall announce it in this way. If it turns out to be other wise, we shall be obliged to meet the question of course. Mr. HENDRICKS. This is the announce ment that the President is to make upon the presentation of all the votes. Mr. EDMUNDS. If Georgia s vote makes no difference in the result. Mr. HENDRICKS. When Georgia is reached in the call of States, what announcement is the President to make in regard to it ? Mr. EDMUNDS. Not any, until he gets them all. Mr. HENDRICKS. Then it is not to be counted in its order ? Mr. EDMUNDS. Yes; it will be counted the same way. Mr. HENDRICKS. I understand from the Senator from Vermont that when Georgia is reached in the call of States the vote of Geor gia is not to be announced as counted. Mr. EDMUNDS. My friend from Indiana does not quite understand the purport of this resolution, I think. It merely directs the President of the Senate that in making his an nouncement (and he announces the final re sult all at once of the whole vote, as the prac tice has always been), if the vote of Georgia makes no difference lie shall so announce it. Mr. HENDRIOKS. I want to know of the Senator from Vermont, when Georgia is called, is her vote to be counted by the tellers ? Mr. EDMUNDS. I suppose the tellers will count the votes and announce that the vote of the State of Georgia is so and so, but when the final footing up takes place and it is found that that number of votes makes no difference in the result the President will then announce it in this form. If it is found that it does make a difference in the result, then unquestionably the vote of Georgia will be objected to, if I happen to live at that time, and can get the floor ; and then we shall be obliged to decide, as I have said before, under the joint rules, the dangerous question that my friend from Illinois alludes to, without debate and without consideration. Mr. HENDRICKS. Then, for a while, Georgia is to be counted, and finally she is not to be counted, under this resolution. That is the proposition of the resolution. The tell ers are to count the votes, and call the States as completed, and then the Chair is to an nounce substantially that Georgia is not count ed. That is the substance of it, because he is simply to announce that if it were counted then the result would be thus ; if Georgia I were not counted then it would be thus ; so I that if the announcement of the Chair is any I part of the proceeding and of its substance Georgia is not to be counted. This resolution is to that effect. Mr. EDMUNDS. Not at all. Mr. HENDRICKS. Is such an announce ment to be made upon the ground that the counting or not counting of that vote will make no difference in the result ? Is the Sen ate prepared to say, in regard to a State, that she may not be counted and shall not be counted, because it will make no change in the result? As I understand the case of Georgia it stands thus : Congress by law has declared her entitled to representation and a State of the Union, upon two conditions : first, that she should ratify the fourteenth constitutional amendment. That she has done, and we have the evidence, which is regarded as conclusive on that subject, I believe, of the proclamation of the Secretary of State ; and the second condition was that her Legislature should pass a law repealing certain provisions of the constitution of the State in regard to relief to debtors. She has done that, as is shown by her records. So that upon the con ditions prescribed by Congress in the law there is no question of fact in the case ot Georgia. I understand that the objections to the admission of Georgia to representation in this body are not based upon her non-compli ance with either of these conditions. The ob jection rests upon other grounds, the conduct of her Legislature, the conduct of her people ; and in support of this proposition I refer the Senate to the report of the Committee on the Judiciary, made by the Senator from Nevada [Mr. STEWART], in which the grounds are stated, and I believe in that report it is not assumed that the Legislature has failed to com ply with either of the conditions. The Legis lature having complied with both conditions, and that being known to the Senate, upon what ground now is the Senate ready to say that Georgia shall not be counted ? It is not enough to say that the vote will not change the result ; you cannot stand upon that position. My colleague and myself could not sit here to-day quietly and consent that the vote of Indiana should not be counted, al though it would not change the result. We could not consent to a resolution like this, be cause for the time being it would be stripping her of one of her rights under the Constitution. If Georgia is a State in the Union, then we cannot pass such a resolution as this. I cannot vote for it, whatever its effect may be upon the result. Mr. WHYTE. I do not see with what pro priety the Senate could adopt -a resolution with such a recital in it as is contained in the reso lution now under consideration in the Senate. It starts with an allegation which, in my humble judgment, is wholly incorrect, and one which could not receive my support : Whereas the question whether the State of Geor gia has become and is entitled to representation in the two Houses of Congress, is now pending and un determined. I do not understand that question to be pend ing and undetermined anywhere but in the Sen ate. So far from there being any question as to the representation of Georgia in the two TWENTY-FIRST PRESIDENTIAL TERM. Houses, members from the State of Georgia are now acting in the House of Representatives, and voting upon the passage of bills which come from that House into the Senate Cham ber. Mr. CONKLING. Will the honorable Sen ator allow me to make a remark ? Mr. WHYTE. Yes, sir. Mr. CONKLING. There is a delegation sitting from Georgia in the House of Repre sentatives, but that delegation was elected long antecedent to the time at which the questions to which he adverts arose ; and in the House a resolution had been passed instructing the committee having charge of that subject to in quire into the right of Georgia to be represent ed for the present or the future in that body. Therefore, I remind the Senator that the ques tion has been made not only here, but in the other House. Mr. WHYTE. May I ask the Senator from New York to tell me whether those Represent atives from Georgia have not been admitted into the House of Representatives since the an nouncement of the acquiescence by Georgia in the requirements se t down by Congress? Mr. CONKLING. I am not able to speak of the date at which the actual admission took place ; but the election occurred in April, which was months before the convening of the Legis lature, and therefore before all of the things which constitute the impediments, if in truth impediments exist, to the right of Georgia to representation. Mr. WHYTE. Mr. President, the Senator from New York does not answer, or, as he states, cannot answer the question whether or not those members have not been admitted as Representatives from Georgia since the re quirement by Congress of the adoption of the fourteenth constitutional amendment. I ven ture to affirm that they have been admitted since that period of time, and the Senators presented themselves here for representation in this branch of Congress, desiring to take their seats. But in the meanwhile, between the admission of the Representatives in the other House and the presentation of the cre dentials of the Senators, a resolution was passed by the Georgia Legislature with regard to the eligibility of negroes to hold office in that body. But anterior to that time, and since the acqui escence by Georgia in the constitutional amend ment, her right to representation in the other House was acquiesced in and settled. Whether the other House is pondering the question whether it shall take steps backward and now unseat the gentlemen I do not know ; but that she has been admitted to representation, recog nized as entitled to representation, and conse quently entitled to vote at the presidential elec tion, there can be no doubt. The PRESIDENT pro tempore. The morn ing hour having expired, it becomes the duty of the Chair to announce that the joint resolu tion (H. R. No. 402) proposing an amendment to the Constitution of the United States is now before the Senate as in Committee of the Whole ; and on that question the Senator from Delaware [Mr. SAULSBUKT] is entitled to the floor. Mr. EDMUNDS. I wish to ask the Senator from Nevada and other Senators, in view of the immediate approach of the necessity for action upon the question of counting the votes for President, to let this joint resolution be laid upon the table for a few minutes in order that we may take the vote of the Senate upon the resolution which we had under discussion this morning. For that purpose, unless myfriend from Nevada feels obliged to oppose it andT hope he will not, because we shall sit out his measure to-night I move to lay the pending measure upon the table. Mr. STEWART. If no gentlemen will make that an excuse for not sitting out the constitu tional amendment to-night, I should be willing to let it be informally laid aside until the re cess, in order that the resolution of the Sena tor from Vermont may be disposed of. Mr. WILLIAMS. We do not want any re cess to-day. Mr. STEWART. If the resolution of the Senator from Vermont involves a long discus sion I shall insist upon going on with the con stitutional amendment. Mr. EDMUNDS. My motion is, as I have the floor, to lay this joint resolution on the table for the time being. Mr. DAVIS. I inquire of the honorable Senator who has charge of the measure under debate if he expects to get the vote of the Sen ate upon it in the course of to-day or to-night ? Mr. STEWART. That is the understanding. Mr. DAVIS. Then the Senator had better not give way to the other question. Mr. STEWART. I will yield to the Senator from Vermont for a few minutes. Mr. DAVIS. I mean that the time from now until the crowing of the cock to-morrow morning is not too long to give to the consid eration of this great subject. The PRESIDENT pro tempore. The Senator from Vermont moves that the joint resolution now before the Senate be laid upon the table. The motion was agreed to. Mr. EDMUNDS. I move that the Senate proceed to the consideration of the resolution I have indicated. The motion was agreed to; and the Senate resumed the consideration of the following resolution : Whereas the question whether the State of Geor gia has become and is entitled to representation in the two Houses of Congress is now pending and undetermined; and whereas by the joint resolution of Congress passed July 20, 1868, entitled " A reso lution excluding from the Electoral College votes of States lately in rebellion which shall not have been reorganized," it was provided that no electoral votes from any of the States lately in rebellion should be received or counted for President or Vice-Presi- dent of the United States until, among other things, ULYSSES S. GRANT, PRESIDENT. 269 such State should have become entitled to repre sentation in Congress pursuant to acts of Congress in that behalf: Therefore, Resolved by the Senate (the House of Representa tives concurring), That on the assembling of the two Houses on the Second Wednesday of February, 1869, for the counting of the electoral votes for President and Vice-President, as provided by law and the joint rules, if the counting or omitting to count the electoral votes, if any, which may be pre sented as of the State of Georgia shall not essen tially change the result, in that case they shall be reported by the President of the Senate in the fol lowing manner: Were the votes presented as of the State of Georgia to be counted, the result would be, for for President of the United States, votes ; ft" not counted, for for President of the United States, votes ; but in either case is elected President of the United States; and in the same manner for Vice-President, The PRESIDENT pro tempore. The ques tion is on the adoption of the concurrent reso- 1,11 ti on. The question being put, there were, on a division ayes 33, noes 8. Mr. HENDRICKS. I think this is an impor tant vote, and therefore I call for the yeas and nays. The yeas and nays were ordered ; and the Chief Clerk commenced the call of the roll, Mr. Abbott answering to his name. Several SENATORS. What is the question ? Mr. HENDRICKS. I am told the question \ is on taking up the resolution of the Senator from Vermont. If so, I do not want the yeas and nays. Mr. EDMUNDS and others. No ; it is on agreeing to the resolution. The PRESIDENT pro tempore. The ques tion is upon the adoption of the resolution, and the roll is being called. The call of the roll having been concluded, the result was announced yeas 34, nays 11 ; as follows: YEAS Messrs. Abbott, Anthony, Cameron,Cat- \ tell, Cole, Conkling, Corbett, Cragin, Drake, Ed munds, Frelinghuyseu, Howard, McDonald, Mor gan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Pool, Ramsey, Rice, Robertson, Ross, Sher man, Stewart, Sumner, Thayer, Tipton, Warner, Welch ; Willey, Williams, Wilson, and Yates 34. ^ NAYS Messrs. Buckalew, Davis, Fowler, II end- ricks, McCreery, Norton, Patterson of Tennessee, Saulsbury. Trumbull, Vickers, and Whyte 11. > ABSENT Messrs. Bayard, Chandler, Conness, Dixon, Doolittle, Ferry, Fessenden, Grimes, Ilarlan, Harris, Henderson, Howe, Kellogg, Osborn, Patter son of New Hampshire, Pomeroy, Sawyer, Spencer, Sprague, Van Winkle, and Wade 21. So the resolution was agreed to. IN SENATE. Wednesday, February 10, 1869. ("Congressional Globe," 40th Cong., 3d Session, p. 1044, pp. 1043-1055. ) A message from the House of Representa tives by Mr. McPherson, its Clerk, announced that the House had agreed to the resolution of the Senate in relation to the counting of the electoral votes of the State of Georgia. Mr. McPiiEESoN, the Clerk of the House of Representatives, appeared at the bar of the Senate, and delivered the following message : Mr. President, I am directed to inform the Senate that the House of Representatives is now ready to receive the Senate for the pur pose of proceeding to open and count the votes of the electors of the several States for President and Yice-President of the United States. Mr. MORTON. I move that the Senate now proceed to the Hall of the House of Rep resentatives. Mr. TRUMBULL. I hope not. The rule says " at one o clock." There is no use in going over there now. It lacks ten minutes to one o clock. Mr. VAN WINKLE. Our clock is too slow. Mr. DOOLITTLE. As evidently my col league must be aware, this bill cannot pass between this and one o clock. Mr. HOWE. I have not the slightest idea that it will. Mr. DOOLITTLE. I will therefore appeal to his courtesy, and ask of the Senate which I have not asked this session the privilege of taking up a little bill from the Military Committee which can pass in two minutes, and it must be done now. I ask the unani mous consent of the Senate that that bill be taken up. Mr. SUMNER. I ask permission to make a report. Mr. SHERMAN. I shall object. I do not want this bill displaced. The PRESIDENT pro tempore. It is moved that the Senate now proceed to the Hall of Representatives for the purpose of counting the votes for President and Vice-President of the United States. Mr. TRUMBULL. I move to amend that motion by saying that " at one o clock the Senate will proceed." Mr. CONNESS. If the votes are to be counted at one o clock the Senate should pro ceed to the Hall of the House of Representa tives before that time. Mr. TRUMBULL. The rule is that we as semble at one o clock. Mr. CONKLING. I am inclined to think it is quite one o clock now. The PRESIDENT pro tempore. There is no danger of getting there too soon. This question will be debated until after that time. [Laughter.] Mr. SUMNER. There is time enough to make a report. The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from Illinois, who moves to amend by saying that " at one o clock the Senate will proceed." The amendment was not agreed to. The PRESIDENT pro tempore. The ques tion now is on the motion of the Senator from Indiana [Mr. MORTON]. The motion was agreed to. 270 TWENTY-FIRST PRESIDENTIAL TERM. The PRESIDENT pro tempore. The Senate will now proceed to the Hall of the House of Representatives for the purpose of counting the votes for President and Vice-President of the United States. . The Senate, preceded by the Sergeant-at- Arms and Secretary, proceeded to the Hall of the House of Representatives. The Senate returned to its Chamber at twenty-five minutes past one o clock. The PRESIDENT pro tempore. The Sen ate will come to order. The Clerk will read the point raised in the joint meeting. The Chief Clerk read as follows : " Objection was raised to any count of the votes certified from the State of Louisiana; and the ques tion was raised in regard to them that no valid elec tion of electors for President and Vice-President has been held in said State." Mr. HENDRICKS. Mr. President, I move that it is the judgment of the Senate that the vote be counted. The PRESIDENT pro tempore. It is moved and seconded that it is the judgment of the Senate that the vote be counted. Mr. TRUMBULL. It had better be in the form of a resolution, I suppose. Mr. HENDRICKS. I suppose the Secretary will put it in the form of a resolution. Mr. TRUMBULL. I have prepared this resolution : Resolved, That in the opinion of the Senate the vote of Louisiana ought to be counted. Mr. HENDRICKS. I withdraw my propo sition. Mr. CONKLING. " The vote of the electors of Louisiana," it should be. Mr. TRUMBULL. I will so modify it, if that is the form of the Constitution. Mr. CONNESS. I offer an amendment to the resolution, which I sendto the Chair. Mr. HOWARD. I beg to inquire whether the Senate proceeds to act upon this question of the validity of an election without any proof, discussion, or debate ? The PRESIDENT pro tempore. No debate is admissible. Mr. CONNESS. I ask for the reading of mv amendment. Mr. HOWARD. I ask for the reading of the objection of the member of the convention which was read before. The PRESIDENT pro tempore. Let it be read again. The CHIEF CLERK. The objection was to any count of the votes certified from the State of Louisiana, and the question was raised in regard to them that no valid election of elect ors for President and Yice-President has been held in said State. Mr. HOWARD. I inquire whether that is all the evidence before the Senate? The PRESIDENT pro tempore. That is all there is here. Mr. WARNER. I move to strike out the words " ought to " in the resolution and insert the word u shall." Several SEXATOES addressed the Chair. The PRESIDENT pro tempore. No debate is in order. Mr. SAULSBURY. I do not rise to debate it, but to submit a motion. Mr. CONNESS. I have offered an amend ment which has not been read. The PRESIDENT pro tempore. The amend- ment will be-read. The CHIEF CLERK. The resolution submitted by Mr. TEUMBULL is : Resolved, That in the opinion of the Senate the vote of Louisiana ought to be counted. Mr. COXNESS moves to amend by striking out all after the word "resolved" and insert ing: That in the opinion of the Senate the election for President and Vice-President in the State of Louisi ana was valid, and that the vote shall be counted. Mr. TRUMBULL. I think we need not de cide anything more than is before us. It is simply whether the vote ought to be counted. Mr. EDMUNDS. That is debate. The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from California. The amendment was rejected. The PRESIDENT pro tempore. The ques tion now is on the resolution of the Senator from Illinois. Mr. WILSON. I ask for the yeas and nays on that. Mr. WARNER. I offer my amendment now. The PRESIDENT pro tempore. The Sen ator from Alabama offers an amendment to strike out the words " omrht to " and insert " shall." Mr. EDMUNDS. Let it be read as it will stand if amended. The CHIEF CLEEK. If the resolution be amended as now proposed it will read : Resolved, That in the opinion of the Senate the vote of Louisiana shall be counted. Mr. BUCKALEW. The Senate does not want it in that way. Mr. WARNER. I will amend it so as to read " that it is the judgment of the Senate that the vote shall be counted." The amendment was rejected. The PRESIDENT pro tempore. The ques tion is on the resolution of the Senator from Illinois. Mr. WILSON". I ask for the yeas and nays on its adoption. Mr. CONNESS. I call for the reading of the resolution again. The CHIEF CLERK. It is as follows : Resolved, That in the opinion of the Senate the vote of Louisiana ought to be counted. Mr. TRUMBULL. I think it ought to say " the vote of the electors of the State of Louisi ana." ULYSSES S. GRANT, PRESIDENT. 271 The PRESIDENT pro tempore. It will be so modified. Mr. MORTON. Is it competent to offer an amendment to that now ? The PRESIDENT pro tempore. It is com petent to offer an amendment, but debate is not in order. Mr. MORTON". I offer the following amend ment, which I will ask the Clerk to take down, to come in immediately after the word "re solved : " That while there is reason to believe from common report and information that the late presidential elec tion in Louisiana was carried by force and fraud, still there being no legal evidence before the Senate on that subject, therefore the electoral vote of Louisiana ought to be counted. Mr. HENDRICKS. Mr. President, I sub mit that that recital is not in order. I submit as a question of order that under the joint rule we have to decide the question made by the objection, and that we are not to recite a state of facts, but to decide the question that conies up, and that question is simply and nakedly whether the vote be counted. Mr. WILLIAMS. I object to debate. The PRESIDENT pro tempore. The Chair is of opinion that nothing else is in order ex cept the decision of the question made. Mr. HARLAN. I inquire whether it would be in order to call for the reading of the official papers that accompany the vote ? Mr. WILSON and Mr. TEUMBULL. They were read. Mr. HARLAN". They were read in the joint meeting, but they have not been read before the Senate. Mr. TEUMBULL. There is no irregularity in the papers. The PRESIDENT pro tempore. The papers are not in the possession of the Senate. Mr. NYE. I do not suppose that the Chair intends to rule by any means that Senators are not to act on the testimony in regard to the question that the y already possess. The PRESIDENT pro tempore. The Chair rules nothing except that he believes it would be out of order to attempt to decide anything except the question that is made and pre sented. Mr. EDMUNDS. I call for the reading of the resolution as it now stands, as modified. The PRESIDENT pro temvore. It will be read. The CHIEF OLEBK. It is as follows : Rxolved, That in the opinion of the Senate the vote ot the electors of the State of Louisiana oti^ht to be counted. f Mr. DAVIS. I move to amend by strik- ^^ the term -ought to" and inserting The amendment was rejected ; there beino- on a division] 1 ayes and 30 noes. Mr. SPRAGUE. I move to amend the reso lution by striking out all after the word " re solved " and inserting : That the votes of the electors of the State of Louisiana for President and Vice-President be counted. Mr. HENDRICKS. I think that is exactly right. Mr. EDMUNDS. I object to debate. The PRESIDENT pro tempore. No debate is in order. Mr. SUMNER. I send to the Chair a sub stitute. The PRESIDENT pro tempore. An amend ment to the amendment ? Mr. SUMNER. An amendment to the amendment by way of substitute. ^ The PRESIDENT pro tempore. The propo sition of the Senator from Massachusetts will be read. The CHIEF CLERK. The Senator from Mas sachusetts proposes to strike out of the pro posed amendment the words; " votes of the electors of the State of Louisiana for President and Yice-President be counted," and in lieu thereof to insert : The electoral vote of Louisiana shall be reported in the following manner, to wit : " were the votes presented as of the State of Louisiana to be counted the result would be for , for President of the United States, votes ; if not counted, for for President of the United States, votes ; but in either case is elected President of the United States ;" and in the same manner for Vice-President. Mr. SUMNER. That is the rule adopted in the Georgia case. Mr. EDMUNDS. That is not the question here. Mr. SHERMAN". I rise to a question of order. The point of order is that that does not decide the point raised, nor is it in order in the present state of the question. The PRESIDENT pro tempore. No debate is in order ; and the Chair believes that the amendment proposed is not in order. It does not respond to the objection made. Mr. SUMNER. Do I understand that the Chair rules the substitute which I offered to be out of order? The PRESIDENT pro tempore. The Chair thinks it is out of order. It is the opinion of the Chair that nothing but a direct response to the objection made is in order. Mr. SPRAGUE. I ask for the consideration of the amendment I have offered. t The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from Rhode Island. Mr. WILLIAMS. Let it be read again. The CHIEF CLERK. The amendment is to strike out all after the word "resolved " and insert : That the votes of the electors of the State of Louisi ana for President and Vice-President be counted. * Mr. WARNER. I suggest a modification like this, using the language of the Senator from Indiana : Resolved That it is the judgment of the Senate of the United States that the electoral vote of Louisiana be counted. 272 TWENTY-FIRST PRESIDENTIAL TERM. Mr. SPRAGUE. We do not want any "judgment ; " we express our opinion. The PRESIDENT pro tempore. Does the Senator move that amendment to the amend ment? Mr. WARNER. Yes, sir. The PRESIDENT pro tempore. The ques tion is on the amendment to the amendment. The amendment to the amendment was re jected. The PRESIDENT pro tempore. The ques tion now is on the amendment of the Senator from Rhode Island [Mr. SPEAGUE]. Mr. POOL. I move an amendment to the amendment, to strike out all after the word " that " and insert : The objection raised to the counting of the votes of the electors of the State of Louisiana for President and Vice-President of the United States is not sus tained by the evidence before the Senate, and there fore said votes be counted. The amendment to the amendment was re jected. The PRESIDENT pro tempore. The ques tion recurs on the amendment of the Senator from Rhode Island [Mr. SPKAGTJE]. Mr. CONKLING and Mr. CONNESS. Let that be read again. The CHIEF CLEJIK. The amendment is to strike out all after the word " resolved " and insert : That the votes of the electors of the State of Louisiana for President and Vice-President be counted. The amendment was agreed to ayes 46, noes not counted. The PRESIDENT pro tempore. The ques tion is on the resolution as amended. Mr. SUMNER and Mr. EDMUNDS called for the yeas and nays ; and they were ordered. The PRESIDENT pro tempore. The Chair will suggest to the Senate whether this ought not to be a concurrent resolution. The twen ty-second joint rule, under which we are act ing, provides : " If, upon the reading of any such, certificate by the tellers, any question shall arise in regard to counting the votes therein specified, the same having been stated by the Presiding Officer, the Senate shall thereupon withdraw, and said question shall be sub mitted to that body for its decision, and the Speaker of the House of Eepresentatives shall in like manner submit said question to the House of Eepresentatives for its decision : and no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses ; which, being obtained, the two Houses shall immedi ately reassemble, and the Presiding Officer shall then announce the decision of the question submitted, and upon any such question there shall be no debate in either House." Mr. FRELINGHUYSEN. It says " concur rent vote." Mr. EDMUNDS. That means the vote of each House the same way. Mr. HENDRICKS. I submit that does not mean a concurrent resolution, but simply that the two Houses shall unite. Mr. SHERMAN. According to the rule, we send this resolution to the House of Repre sentatives, they concur in it, and then we go back. Mr. TtfUMBULL. That is all. We pass our resolution expressing our judgment on the question raised. Mr. DOOLITTLE. It should be " resolved, (the House of Representatives concurring)." The PRESIDENT pro tempore. The ques tion is on the resolution as amended, upon which the yeas and nays are demanded. The yeas and nays were ordered. Mr. DOOLITTLE. I suggest that after the word " resolved " there should be inserted " the House of Representatives concurring." . Mr. HENDRICKS. I object to that. Mr. FESSENDEN.^Let us see how it stands. The CHIEF CLEEK. The resolution, as amend ed, is as follows : Resolved, That the voter of the electors of the State of Louisiana for President and Y ice-President be counted. Mr. EDMUNDS. I think it is tetter to say "the House of Representatives concurring," because we cannot reassemble till there is con current action. The PRESIDENT pro tempore. Wonld it not be better to say " in the opinion of the Senate " these votes ought to be counted ? Mr. TRUMBULL. Our resolution expresses our opinion. We ought to resolve that in the opinion of the Senate these votes ought to be counted ; and then if the House agree to the resolution that is the end of it. Mr. EDMUNDS. I ask unanimous consent to read that part of the rule : " No question shall be decided affirmatively, and no vote objected to shall be counted except by the concurrent votes of the two Houses ; which being obtained, the two Houses shall immediately reassem ble, and the Presiding Officer shall then announce the decision." If I am permitted to say by unanimous con sent Mr. GRIMES. I object. Mr. EDMUNDS. Then I do not want to say anything. I move to insert the words " the House of Representatives concurring" after the word "resolved." The PRESIDENT pro tempore. Is there any objection to that amendment ? Mr. SAULSBURY. I rise to make an ob jection. I have a right to make an objec tion, though I cannot argue it. I say that amendment cannot be entertained for the reason that the rule under which we are act ing does not require a concurrent resolution, but only a concurrent vote of the respective Houses. Mr. MORTON". I offered an amendment to the original resolution, and I think I am enti tled to have a vote upon it. The PRESIDENT pro tempore. The Chair thought it was a preamble suggesting other reasons than those raised by the objection. ULYSSES S. GRANT, PRESIDENT. 273 Mr. MORTON. I did not offer it as a pre- , amble. Mr. EDMUNDS. I ask to have the question put on the motion I made to amend by insert ing after u resolved " the Words " the House of Representatives concurring," to make it conform to the rule. The amendment was agreed to yeas 30, nays not counted. Mr. MORTON". I move to amend the reso- ! lution so as to make it read : That while there is reason to believe from common I report and information that the late presidential elec- :! tion in Louisiana was carried by force and fraud, still, I there being no legal evidence before the Senate on I that subject, theretore the electoral vote of Louisiana ought to be counted. On that question I ask for the yeas and i nays. Mr. TRUMBULL. I object to it on the question of order. The PRESIDENT pro tempore. The Chair was of opinion at first that it was out of order ; but it is now offered as an amendment to the resolution, and perhaps it is in order. The Chair before thought it was offered as a pre amble ; but now being offered as an amend ment, the Chair cannot rule it to be out of order. The question is on the amendment offered by the Senator from Indiana, and on that question the yeas and nays are called for. The yeas and nays were ordered. Mr. WILLIAMS. I respectfully inquire if the amendment is not open to debate. Are we to decide such a question without discussion ? The PRESIDENT pro tempore. The rule is express. The question must be decided with- i out debate. Mr. WILLIAMS. I have not examined the i subject. The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from Indiana [Mr. MORTOX]. The question being taken by yeas aud nays, resulted yeas 24, nays 35 ; as follows : YEAS Messrs. Cameron, Cattell, Chandler, Conk- ling, Harris, Howard, Kellogg, McDonald, Morgan, Morrill of Vermont, Morton, Nye, Osborn, Fool, Ramsey, Rice, Robertson, Spencer, Stewart, Sum- ner, Thayer, Tipton, Warner, and Wilson 24. NAYS Messrs. Abbott, Anthony, Buckalew, Cole, Conness, Corbett, Cragin, Davis, Dixon, Doo- little, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Hendricks, Howe, McCreei-y, Patterson of New Hampshire, Patterson of Tennessee, Ross, Saulsbury, Sawyer, Sherman, Prague, Trumbull, Van Winkle, Vickers, Whyte, Williams, and Yates 35. ABSENT Messrs. Bayard, Henderson, Morrill of Maine, Norton, Pomeroy, Wade, and Welch 7. So the amendment was rejected. Mr. McPHERSON, the Clerk of the House of Representatives, appeared at the bar and deliv ered the following message : Mr. President, I am directed to inform the I Senate that the House of Representatives, on i the objection made in joint convention against counting the electoral vote of the State of Lou- 18 isiana for President and Vice-President of the United States, have voted in favor of counting the said vote. Mr. CONKLING-. I move, as a substitute for the pending proposition, that the Senate send to the House of Representatives a resolu tion corresponding to that just sent to us from the House of Representatives, substituting the word "Senate" for "House" at the proper place, so that it will read that the Senate have determined in the same way. Mr. ANTHONY. That will not be a con current resolution. Mr. CONKLING. This is not a concurrent resolution. Mr. ANTHONT. Yes ; I believe the form is " the House concurring," which goes in as a matter of course. Mr. COCKLING-. I submit my motion as a substitute for the pending proposition, that it- be resolved by the Senate that the House of Representatives be informed in the language of the resolution just received from the House. The PRESIDENT pro tempore. Will the Senator put his motion in writing ? Mr. COCKLING. It is in writing now, in the hands of the Secretary, in the message just received from the House, and all that is necessary is to take that resolution and trans pose the word " House" to " Senate." Mr. DRAKE. I submit that that is not in order. We have not voted on the pending resolution yet. The PRESIDENT pro tempore. A question being pending, the motion of the Senator from N"ew York cannot be entertained except by unanimous consent. Mr. DRAKE. I object until we vote on the pending resolution and decide the question. The PRESIDENT pro tempore. The ques tion is on the resolution, upon which the yeas and nays have been ordered. The Clerk will call the roll. The Chief Clerk called the name of Mr. ABBOTT, and he responded. Mr. WARNER. Is it in order to move to lay the pending proposition on the table ? Mr. ANTHONT. There has been an an swer on the roll-call. Mr. GRIMES. A Senator has answered to his name, and nothing is now in order but the calling of the roll. Mr. ABBOTT. I had answered to my name. The call of the roll being concluded, the re sult was yeas 51, nays V ; as follows : YEAS Messrs. Abbott, Anthony, Buckalew, Cam eron, Cattell, Cole, Conkling, Conness, Corbett, Cra gin, Davis, Dixon, Doolittle, Drake, Edmunds, Fer ry, Fessenden, Fowler, Frelinghuysen, Grimes, Har lan, Harris, Hendricks, Howe, Kellogg, McCreery, McDonald, Morgan, Morrill of Vermont, Osborn, Pat terson of New Hampshire, Patterson of Tennessee, Pool, Ramsey, Rice, Ross, Saulsbury, Sawyer, Sher man, Spencer, Sprague, Stewart, Tipton, Trumbull, Van Winkle, Vickers, Warner. Whyte, Willey, Wil liams, and lates 51. 274 TWENTY-FIRST PRESIDENTIAL TERM. NAYS Messrs. Chandler, Howard, Nye, Robert son, Suraner, Thayer, and Wilson 7. ABSENT Messrs. Bayard, Henderson, Morrill of Maine, Morton, Norton, Pomeroy, Wade, and Welch 8. Mr. FESSENDEN. I suggest that now, as we have received a message announcing the action of the House of Representatives, and the rule requires only a concurrent vote, the words " House of Representatives concurring } he struck out of the resolution just adopted by unanimous consent. Those words had better be stricken out, otherwise the House of Rep resentatives may think it is necessary again to act on the subject. Mr. EDMUNDS. I have no objection to that course to ^ave time, so that we may send a mere message at once. The PRESIDENT pro tempore. Those words will be stricken out if there be no ob jection. The Chair hears no objection, and they will be stricken out. Mr. BUCKALEW. I move an order that the Secretary communicate this resolution to the House of Representatives. The PRESIDENT pro tempore. The House will be notified, of course. Mr. SHERMAN. I presume it is not neces sary for the Senate to wait until the message has been sent. Actual concurrence has now taken place. Mr. GRIMES. We can follow right after the Clerk, and we need not enter the House Hall until he has delivered his message. I move that the Senate proceed to the Hall of the House of Representatives. The motion was agreed to. The Senate returned to its Chamber at six minutes before three o clock p. M., and the President pro tempore resumed the chair. Mr. SHERMAN. Mr. President, is it in or der to proceed? The PRESIDENT pro tempore. The Senate will come to order. Mr. SHERMAN. I submit a resolution. Mr. VAN WINKLE. I ask the Chair to state for what question we are here. The PRESIDENT pro tempore. The objec tions will be read first of all. The CHIEF CLEKK. This is the wording of the objection made in the convention by a mem ber of the House of Representatives : I object, under the ioint rule, that the vote of the State of Georgia for President and Vice-President ought not to be counted, and object to the counting thereof, because, among other things 1. The vote of the electors in the electoral college was not given on the first Wednesday of December, as required by law, and no excuse or justification for the omission of such legal duty is set forth in the cer tificate of the action of the electors. 2. Because at the date of the election of such elec tors the State of Georgia had not been admitted to representation as a State in Congress since the rebel lion of her people, or become entitled thereto. 3. That at said date said State of Georgia had not fulfilled in due form all the requirements of the Con stitution and laws of the United States, known as the reconstruction acts, so as to entitle said State of Geor gia to be represented as a State in the Union in the electoral vote of the several States in the choice of President and Vice-President. 4. That the election pretended to have been held in the State of Georgia on the first Tuesday of Novem ber last past was not a free, just, equal, and fair elec tion; but the people of the State were deprived of their just rights therein by force and fraud. Mr. SHERMAN. I ask for the reading of the resolution I submitted. The PRESIDENT pro tempore. The resolu tion of the Senator from Ohio will be read. The resolution was read, as follows : Resolved, That the vote of the electors of the State of Georgia be counted and announced in the mode prescribed in the concurrent resolution of the 8th of February instant. Mr. EDMUNDS. I rise to ask a question, as of course debate is not in order, whether we have withdrawn to deliberate upon the propriety of counting the vote of Georgia, or to deliberate upon the point of order or ap peal taken by the gentleman from Massachu setts to the decision of the Chair, that the special rule made by the two Houses in the case of Georgia was to govern the proceeding in her case? The PRESIDENT pro tempore. The Chair will state that the gentleman from Massachu setts took exception to the counting of the vote for a different reason from any covered by the concurrent resolution. It was because the vote was not cast upon the day required by law, which goes behind the concurrent resolution, as it seemed to the Chair, for which reason it was thought best to retire and de liberate upon that. It was a different ques tion, not involved in the concurrent resolution, perhaps lying back of that, based on the ground that the vote was informal and not to be counted at all. The Chair cannot decide the effect of casting a vote on a different day from that required by law, which I believe was the objection made by the gentleman from Massa chusetts. Mr. FOWLER. I call for the reading of the concurrent resolution. Mr. DOOLITTLE. I inquire, for informa tion, whether the votes of the State of Wiscon sin in 1856 for President and Vice-President were or were not counted by the joint conven tion? The PRESIDENT pro tempore. My recol lection is that they were counted after consider able debate. Mr. TRUMBULL. It was not decided whether they should be counted or not. It did not affect the result. Mr. SHERMAN. They were announced in some such way as this. Mr. EDMUNDS. They were not announced at all. Mr. TRUMBULL. If the Chair will pardon me, I will make a statement in regard to that case. A controversy arose in the joint conven tion as to what should be done, and whether a ULYSSES S. GRANT, PRESIDENT. 275 question that arose there could be decided by the joint convention assembled together. A debate occurred when the two Houses were assembled, and some Senators insisted that it was improper to take any vote when the two Houses were together, as the Senate thereby lost its character, the House being more nu merous, and although the Senate voted all one way they might be voted down by the House. Senators insisted that no action should be taken, and we withdrew here to this Chamber and never did decide the question as to the vote of the State of Wisconsin ; and that gave rise to this joint rule, which was adopted af terward to avoid those questions. Mr. FERRY. What became of the votes of Wisconsin ? Mr. TRUMBULL. It was never decided whether they should be counted or not. Mr. FERRY. What was done in point of fact? Mr. TRUMBULL. The fact was announced that Mr. Buchanan was elected President. Mr. DOOLITTLE. By unanimous consent, as I do not wish to violate the rule, I will ask the Senator from Illinois one further question. Is this joint rule the same that was adopted then in the case of Wisconsin ? Mr. TRUMBULL. This joint rule was adopted afterward to avoid such difficulties. I think this joint rule was adopted not more than four years ago. Mr. DOOLITTLE. What was done with the vote of Wisconsin ? Mr. TRUMBULL. It never has been decided whether it should be counted or not. Mr. FRELIXGHUYSEN. I offer a resolu tion. The PRESIDENT pro tempore. There is a resolution pending offered by the Senator from Ohio. Mr. COCKLING. If it is in order I do not wish to debate it I wish to read what was done in the Wisconsin case. I have here the Globe, showing precisely the form of the announcement in the instance referred to. I will read it or send it to the Secretary to be read, if it be the pleasure of the Senate. Mr. DOOLITTLE. I hope by unanimous consent the Senator will be permitted to read it. Mr. COCKLING. I read from page 652 of the Congressional Globe, Thirty-fourth Con gress, third session : " Mr. JONES, of Tennessee, one of the tellers, re ported. He said : Mr. President, the tellers ap pointed on the part of the two Houses to count and report the votes given for President and Vice-Presi dent of the United States report that they have examined all the returns, and find that they were all regular, and that the votes were cast on the day re quired by law, except in the case of the votes cast by the electors of the State of Wisconsin. Their t) returns show that they cast their electoral vote in - that State on the 4th of December instead of on the first Wednesday of December (which was the 3d) as required "by law. All the returns show that James . Buchanan, of the State of Pennsylvania, received L74 votes for President of the United States ; that John C. Fremont, of the State of California, re ceived including the votes of Wisconsin 114 votes for President of the United States; that Millard Fillmore, of the State of New York, received 8 votes for President of the United States ; that John C. Breckinridge, of the State of Kentucky, received 174 electoral votes for Vice-President of the United States; that William L. Dayton, of the State of New- Jersey, received including the five votes of Wis consin 114 electoral votes for Vice-President of the United States ; and that Andrew Jackson Donelson, of the State of Tennessee, received 8 electoral votes for the Vice-Presidency of the United States." Then follows a full recapitulation of the votes in tabular form, in which Wisconsin appears : Mr. LETCHER. Is it in order now to move to exclude the vote of Wisconsin from that count? The PRESIDINO OFFICER. No debate is in order, in the opinion of the presiding officer. " Senator CRITTENDEN. Do I understand the Chair to decide that Congress in no form has power to decide upon the validity or invalidity of a vote 3 " The PRESIDING OFFICER proceeded to recapitulate the vote as announced to the joint convention by Mr. JONES, of Tennessee, one of the tellers upon the part of the House, and then said : Thus it is reported by the tellers that the whole number of electors appointed to vote for President and Vice- President of the United States is 296, of which 149 make a majority. The state of the vote for Presi dent of the United States, as delivered by the tell ers, is for James Buchanan, of Pennsylvania, 174 votes ; for John C. Fremont, of California, 114 votes: for Millard Fillmore, of New York, 8 votes ; and the state of the vote for Vice-President of the United States, as delivered by the tellers, is for John B. Breckinridge, of Kentucky, 174 votes ; for William L. Dayton, of New Jersey, 114 votes ; and for Andrew J. Donelson, of Tennessee, 8 votes." Mr. GRIMES. Does that include Wisconsin ? Mr. COXKLING. Yes, sir. " In further execution of the concurrent order of the two Houses, the presiding officer therefore de clares that James Buchanan, of the State of Penn sylvania, having the greatest number of votes for President, that number being a majority of the whole number of electors, has been duly elected President of the United States for the term prescribed by the Constitution, to commence on the 4th of March, 1857. I also declare that John C. Breckinridge, of the State of Kentucky, having the greatest number of votes for Vice-President, and that number being a majority of the whole number of electors, has been duly elected Vice-President of the United States for the term prescribed by the Constitution, to commence on the 4th day of March, 1857." And then what followed ? " Mr. H. MARSHALL. Mr. President, I think that it is a matter of public importance, not for this occa sion, but for some occasion which may arise here after, that the ruling of the Chair upon this occasion should be publicly excepted to. I understand the Chair to have ruled that it is within the competency and function of the President of the Senate, in the presence of the Senate and House of Representatives, to open the certificates and to count the votes, there by giving to the President of the Senate the func tion of counting. Now, in the case which has arisen the case of Wisconsin the President of the Sen ate, through the tellers, announces the vote of Wis consin, and the vote of Wisconsin is therefore counted upon your decision. Whether that is a vote or not must depend upon the determination of this convention ; and, if you will regard the verbiage of the Constitution, you will find that your function 276 TWENTY-FIRST PRESIDENTIAL TERM. goes no further than to open the certificates. The language of the Constitution is, that the President of the Senate, in the presence of the House of Rep resentatives, shall open all the certificates; and then the phraseology changes and proceeds ; and the votes shall "be counted, not by you, but by us ; and whenever a vote is challenged, this is the time, and this is the only place, where a determination can be formed whether it is a vote. I merely want to raise the point, as we all know it makes no dif ference in the result in this case, but a case might arise in which it might make a difference." Here follows a long debate which. I traversed the other day, and it resulted as the honorable Senator from Illinois mentions, in the two Houses separating after a somewhat animated discussion, to say the least, between the Chair and various members of the convention, but still the vote stood according to this record, as declared and counted. Mr. TRUMBULL. I have the Senate Jour nal before me by which it will appear what officially took place as recorded upon the Jour nals of the two Houses : Houses submitted the following report, which was "Mr. BIGLEB on the part of the tellers of the two loll read : " The tellers on the part of the two Houses report that they have counted the votes of all the States, cast for President and Vice-President of the United States of America, for the constitutional term of four years from the 4th day of March, 1857, and find that on the first Wednesday in December, 1856, the electors of all the States assembled in their respec tive States, being the day prescribed by law for the assembling of the electors, except the electors for the State of Wisconsin ; that of those who assembled and cast their votes on the said first Wednesday of December, 1856, James Buchanan, of the State of Pennsylvania, received 174 votes for President of the United States ; John C. Fremont, of California, received 109 votes ; and Millard Fillmore received 8 votes for the same office ; that for Vice-President of the United States, John C. Breckinridge, of Ken tucky, received 174 votes ; William L. Dayton, of New Jersey, received 109 ; votes, and Andrew J. Donelson, of Tennessee, received 8 votes; that from the re-port of the electors for the State of Wisconsin, it appears that the electors of that State assembled in Madison, the capital of that State, on the 4th of December, 1856, the day after the day prescribed for the meeting of the electors for President and Vice- President of the United States, and so assembled on that day did cast the electoral votes for that State, 5 for John C. Fremont, of California, for President, and 5 for William L. Dayton, of New Jersey, for Vice-President of the United States. WILLIAM BIGLER. " Teller on the part of the Senate. "GEORGE W. JONES, of Tennessee, "WILLIAM A. HOWARD, of Michigan, " Tellers on the part of the House of Representatives. 1 From which it appears that they did not in clude the vote of Wisconsin, but reported the fact, and on that report the President of the Senate announced that Mr. Buchanan was elected President. Mr. CONKLING. How many votes did he announce that Mr. Buchanan received ? Mr. TRUMBULL. He announced that Mr. Buchanan had of those assembled on the proper day 174 electoral votes for President, and John C. Fremont 109 votes, and then went on to state what the State of Wisconsin did. That was the official report of the tellers, and it never was decided. I was present, and this is in accordance strictly witli my recollection. This report is in the Senate Journal, required to be there. Mr. CONKLING. Was it a report made to the Senate ? Mr. TRUMBULL. It was the report made by the tellers to the joint meeting of the two Houses of Congress, signed by them and re corded here. Mr. CONKLING. I, of course, know noth ing about this except what appears in the Globe. Here is the report of the tellers taken down at the time, and here is the table, and the vote of Wisconsin does appear, not only in the table, but in the footing and in the declara tion of the votes as well as in the count. Mr. TRUMBULL. This is the official report signed by the tellers. Mr. FRELINGHUYSEN. The substance of the resolution which I wish to offer, I see, has been anticipated by the Senator from Ohio, and I simply desire to say that that resolution when reported will show that it proposes to count the vote of Georgia and that it be announced under the concurrent resolution, which, I think, there can be no question is the proper way. Mr. CONNESS. I call for the reading of the resolution. Mr. FRELINGHUYSEN. Let me make one remark and I shall be through. As to the objection that the vote was not cast on the proper day, I think if that question was before us for determination we would all agree that that was a mere directory provision of the law, and that we would not change the Government of the country or deprive the State of its vote because it had not complied with so insubstantial a provision. Therefore, if we were just considering that question we should admit the vote of the State of Georgia. I hope the resolution of the Senator from Ohio will be adopted. Mr. EDMUNDS. I do not agree to that doctrine. Mr. DRAKE. I offer a substitute for the resolution of the Senator from Ohio. Mr. CONNESS. Let the resolution be read. The PRESIDENT pro tempore. The reso lution of the Senator from Ohio will first be read. The CHIEF CLERK. The resolution of the Senator from Ohio is ; Resolved, That the vote of electors of the State of Georgia be counted and announced in the mode pro vided by the concurrent resolution of the 8th of February instant. Mr. DRAKE. Now I ask for the reading of my amendment. The CHIEF CLERK. It is proposed to strike out all after the word " resolved," and to insert : That upon the first ground of objection stated to the counting of the electoral vote of the State of Georgia, it is the judgment of the Senate that tho said vote should not be counted. ULYSSES S. GRANT, PRESIDENT. 277 Mr. DRAKE. Upon that I ask for the yeas and nays. Mr. COCKLING. What is the first ground that they voted on the wrong day ? Mr. DRAKE. Yes, sir. Mr. MCPHERSON, Clerk of the House of Rep resentatives, appeared at the bar of the Senate, and delivered the following message : Mr. President, I am directed to inform the Senate that the House of Representatives, upon the question, "Shall the electoral vote of the State of Georgia be counted, notwith standing the objections thereto ? " have voted in the negative. Mr. HOWE. Is the resolution pending sub ject to amendment? The PRESIDENT pro tempore. An amend ment to the amendment may be offered. Mr. HOWE. My amendment is to strike out the words "upon the first ground of objec tion" from the amendment of the Senator from Missouri. Mr. DRAKE. I think it is better to state the exact grounds of objection. Mr. HOWE. There might be differences of opinion. Mr. CONFESS. I object to debate. Let us vote. The PRESIDENT pro tempore. The reso lution as it would stand if the pending amend ment should be adopted will be read. The CHIEF CLERK. The Senator from Wis consin [Mr. HOWE] proposes to amend the amendment of the Senator from Missouri [Mr. DRAKE] so as to make it read " that the elec toral vote of the State of Georgia, in the judg ment of the Senate, should not be counted." Mr. HENDRICKS. I wish to submit a question of order, whether the Senate now, by a separate resolution, can modify the con current resolution adopted the other day. There is but one of the objections raised, as I understand, that does not fall within the concurrent resolution that was adopted. Now can the Senate, by a separate resolution, agree to reject that vote upon any ground included within the concurrent resolution ? Can the Satiate, in other words, amend or abrogate a rule that has been adopted by the concurrence of the two Houses? So far as this resolution proposes to modify that, I submit, as a ques tion of order, that it is not allowable. The PRESIDENT pro tempore. The Chair supposes that that concurrent resolution has no higher authority than any other resolution, and is subject to modification by both branches as every other law or resolution is. It is not a rule but a resolution of the two Houses. Mr. EDMUNDS. It is a special order. The PRESIDENT pro tempore. It is a special order in the nature of a resolution. It has no higher authority than any other resolu tion. Mr. HENDRICKS. It is a resolution adopted by both branches, they concurring. It is a law that governs their action, if it has any force. The PRESIDENT pro tempore. It is the opinion of the Chair that it cannot be modified by either branch alone, but it may be modified by a concurrent resolution of both Houses. Mr. HENDRICKS. Of course. Now the question I wish to submit to the Senate with out any debate is, that as the resolution taken together would now stand, if adopted, it would seem to be the judgment of the Senate that the vote of a State ought to be rejected be cause the electors may cast their votes on the wrong day. That is a very grave question. Mr. EDMUNDS rose. Mr. CAMERON. I rise to a question of order. With great deference to the Senator from Indiana and the Senator from Vermont now up, I believe we can have no debate. Mr. EDMUNDS. I have not said anything about it. Mr. CAMERON. No ; but you are getting ready. Mr. EDMUNDS. You do not know that. Mr. CAMERON. I say I object to any de bate. Mr. EDMUNDS. Mr. President, I suppose it is in order to ask what is the pending ques tion. [Laughter.] The PRESIDENT pro tempore. The pend ing question is the amendment moved by the Senator from Wisconsin [Mr. HOWE] to the amendment offered by the Senator from Wis consin [Mr. DRAKE]. Mr. WILLIAMS. I move to lay the resolu tion and all the proposed amendments upon the table, and that the action of the Senate be communicated to the House of Representatives. That will make some result. Mr. DRAKE. That is no result at all. Mr. WILLIAMS. I make that motion: The PRESIDENT pro tempore. It is moved that the resolution with the amendments be laid on the table. The motion was not agreed to. Mr. FOWLER. I submit this point of order, whether the concurrent resolution does no t cover the whole case ? The PRESIDENT pro tempore. The Chair believes it covers the whole case except the objection made by the member from Massa chusetts in the joint convention, going back of it, as was suggested before, and making a new objection that did not arise ; and that was about casting the votes on an improper day. Mr. GRIMES. I thought we came out to determine the question of order whether the Representative from Massachusetts could raise that point while there was in existence the con current resolution of the Senate and House of Representatives on this subject as to how the vote of Georgia should be counted. That is what I came here to consider, and I under stood the presiding officer to state as he left the chair of the joint meeting that the Senate would proceed to its Chamber for the purpose of de termining that question of order. That is the only thing we could determine. I simply desire 278 TWENTY-FIRST PRESIDENTIAL TERM. to say that if we adopt this resolution which is now pending, proposed by the Senator from Missouri [Mr. DEAKE], it cannot override- the concurrent resolution of the two Houses passed on the 8th of this month, which we cannot repeal except by one day s notice served upon the Senate. Mr. HOWARD. If it be in order, I will move that the Senate concur in the resolution which has been sent us by the House of Rep resentatives. Mr. EDMUNDS. It is not in order now, for we have another question up. The PRESIDENT pro tempore. That can not be done now except by common consent. Mr. EDMUNDS. Let us hear the pending amendment read, and know what it is. The PRESIDENT pro tempore. It will be read. The CHIEF CLEEK. It is proposed to amend the amendment so that if amended the amend ment to the resolution will read Mr. DRAKE. Let what is stricken out be read. Mr. TRUMBULL. Read the whole resolu tion. The CHIEF CLEEK. The amendment first proposed reads as follows : Strike out all after the word "resolved" iu the original resolution and insert: That upon the first ground of objection stated to the counting of the electoral vote of the State of Georgia it is the judgment of the Senate that the said vote should not be counted. It is proposed to amend that amendment so that if amended it will read Resolved, That the electoral vote of the State of Georgia, in the judgment of the Senate, should not be counted. The PRESIDENT pro tempore. The ques tion is on the amendment to the amendment. Mr. TRUMBULL. I think we had better have the yeas and nays on that. It is a very important matter, in my judgment, and I call for the yeas and nays. This decides the whole question. The yeas and navs were ordered. Mr. MORTON. " I am satisfied the question is not understood. I call for the reading of the amendment of the Senator from Missouri, and of the amendment of the Senator from Wisconsin to it. Mr. CONKLING. This is simply striking out three words, I understand. Mr. WILLIAMS. Let the question be stated. Mr. FERRY. Let the amendment be read. Mr. DRAKE. I ask that the Clerk not only read the resolution as offered and then as it would be if amended, but that he state what the words are that the Senator from Wiscon sin moves to strike out. The PRESIDENT pro tempore. The Clerk is endeavoring to do that very thing. Mr. DRAKE. He has not done it yet. The CHIEF CLEEK. Mr. SHEEMAX submitted the following resolution : Eesolved, That the vote of the electors of the State of Georgia be counted and announced in the mode provided by the concurrent resolution of the 8th of February instant. Mr. DEAKE proposed to amend that resolu tion by striking out all after the word "re solved " and inserting : That upon the first ground of objection stated to the counting of the electoral vote of the State ! Georgia it is the judgment of the Senate that the said vote should not be counted. Mr. HOWE moves to amend that amendment by striking out the words " upon the first ground of objection stated to the counting of," and striking out the words "it is" and inserting "in;" and striking out also after the word " Senate " the words " that the said vote ; " so that if so amended the amendment will read, " that the electoral vote of the State of Geor gia, in the judgment of the Senate, should not be counted." Mr. HENDRICKS. I make the point of order that the amendment proposed by the Senator from Wisconsin is inconsistent with the concurrent rule adopted by both Houses for this business, which is binding upon the Senate ; and that the amendment, therefore, is out of order, it covering a ground that the two Houses by joint action have already decided. I ask the ruling of the Chair on that question of order. I submit to the Chair that this is a resolution of the Senate. This now is not pro posed as a concurrent resolution or a modifica tion by the action of both Houses of their former order, but a separate resolution of the Senate. It cannot be done. Mr. FOWLER. I submit again that this is out of order. The concurrent resolution cov ers the whole case. If the Chair will examine it he will find it is. I will read the concur rent resolution, with permission, or send it to the Secretary to be read. The PRESIDENT pro tempore. The Clerk has that resolution. Mr. HENDRICKS. Let the concurrent res olution be read. Mr. WILLIAMS. I call for a decision on the question of order. Mr. HENDRICKS. I want the concurrent resolution read. The PRESIDENT pro tempore. The Chair supposed the resolution pending was a concur rent resolution. The other was a concurrent resolution that was sent to the House. If this is a concurrent resolution, the Senate has the power to modify the former concurrent reso lution with the concurrence of the House, as they passed the original resolution. Mr. WILLIAMS. Mr. President- Mr. FERRY. The decision is not announced yet. We have not had the decision. Mr. WILLIAMS. No. Mr. FERRY. The Chair has stated his opinion ; he has not made a decision. Mr. CORBETT. I call for the reading of the former concurrent resolution, the one we ULYSSES S. GRANT, PRESIDENT. 279 passed on the 8th of February, for the infor mation of the Senate. The PRESIDENT pro tempore. The Chair is perfectly aware that the concurrent resolu tion adopted the other day by both branches of Congress covers the whole ground except it be the first objection raised by the member from Massachusetts ; and he supposed that the reason why the Senate retired was because that was a ground independent of the concur rent resolution ; back of it. Mr. WILLIAMS. I ask the Chair if be will decide the question whether the amendment is in order. The PRESIDENT pro tempore. The Chair will state further that he so ruled in the joint convention, and would have stood by that rul ing in the joint convention, had it not been for some doubt whether the first objection made by the member from Massachusetts was not an independent objection going back of the concurrent resolution and demanding a decision. Mr. FOWLER. Do I understand the Chair has decided that that is an independent objec tion going back of the concurrent resolution ? Mr. WILLIAMS. What is the decision of the Chair upon the question ? The PRESIDENT pro tempore. Now, the point of order is raised that this is an attempt by the Senate alone to modify the concurrent resolution of the two Houses. That cannot be done, in our judgment. The only question in the mind of the Chair is whether the proposi tion now pending is a concurrent resolution or a resolution of the Senate. If it is a con current resolution, the Senate has the same power that it had when it passed the original measure, and can modify, change, or repeal that concurrent resolution. It is not a rule but simply a resolution. Mr. HENDRICKS. Upon that question just now suggested by the Chair I wish to say that the two Houses are engaged under a rule, and I believe under a law, in a joint business, and that that is the only business that can be considered by the Senate. The PRESIDENT pro tempore. Yes. Mr. HENDRICKS. And the Senate can not modify rules or take up any business ex cept the exact business that is before the two bodies. Mr. WILLIAMS. I ask for a decision. Mr. HENDRICKS. I wish to finish my re marks. Mr. CONNESS. I object to debate. Mr. DRAKE. I object to further debate on the question. Mr. HENDRICKS. I am not debating. The PRESIDENT pro tempore. The Sen ator from Indiana is stating his question of order. Mr. HENDRICKS. Yes, sir ; I intend it to be understood. My point is that the concur rent resolution adopted on the 8th of February cannot be modified pending this business of the count of the vote for President and Vice- President. Mr. DOOLITTLE. Mr. President The PRESIDENT pro tempore. As a de cision on that question is demanded Mr. DOOLITTLE. Mr. President, I rise to a point of order. As I understand, the Chair has decided Mr. CONNESS. I object, Mr. President The PRESIDENT pro tempore. The objec tion is not well taken. Mr. DOOLITTLE. I am stating my point of order. The PRESIDENT pro tempore. The Sen ator from Wisconsin will state his point of order. Mr. DOOLITTLE. The Chair has stated himself that he acted from a doubt in his own mind whether he should execute the concur rent resolution or not ; that that was the occa sion of his directing the Senate to withdraw, the doubt in his own mind on that subject. The PRESIDENT pro tempore. Not pre cisely, the Chair would state. Mr. DOOLITTLE. I so understood the Chair. The PRESIDENT pro tempore. If a ques tion was raised involving the concurrent reso lution, the Chair would have had no doubt about it, but an objection was made going back of that and resting on different grounds not covered by that resolution. The Chair had no doubt in joint convention that the concurrent resolution must be adhered to, at all events until it should be repealed, and he would count the vote according to the terms of that resolu tion; but there is an objection written out for mally here to counting the vote at all, because it is said that it was not cast upon the day re quired by law ; and that was the question that the Chair supposed was to be disposed of here. Mr. DOOLITTLE. The point of order which I desire to state is this : that the concurrent resolution does cover every objection to the vote of Georgia, and the Chair ought to have executed the order. That is the point of order which I make. Mr. CONNESS. Mr. President, there is a question of order before the Senate, raised by the Senator from Indiana [Mr. HENDEICKS]. I ask a decision of the Chair on that question first before any other question is received. The PRESIDENT pro tempore. The Chair rules, then, that it is not in order for the Sen ate to modify the resolution of both branches. [" That is right,"] Mr. DRAKE. Then the question is on my amendment: Mr. HOWE. I do not complain of the rul ing of the Chair, and am inclined to think it is right ; but the Senator from Indiana makes the point of order on a motion to amend the resolution, and if his point of order is good it is good against the resolution and not against the amendment proposed by me. If we can entertain the resolution we can amend it. TWENTY-FIRST PRESIDENTIAL TERM. That I wish to call the attention of the Chair to. Mr. HENDRICKS. I beg the Senator s pardon. My point of order rests on the point made by the Chair. Mr. CONNESS. I object to this. Mr. HENDRICKS. The Chair s point was that the first objection made by the member from Massachusetts is not within the concur rent resolution, and that is the only question the Senate can now consider in separate, ses sion. We have got to decide that one ques tion, and nothing else. Mr. CONNESS. I ask for the question be fore the Senate, or for the Chair to execute its order. If we debate we shall never arrive at a decision of anything. Mr. FERRY. Is there any question ? The PRESIDENT pro tempore. The Chair has no doubt about executing the order ; but he wishes instructions upon the point raised by the Representative from Massachusetts. Does that go back of the concurrent resolu tion ? Is it outside of that resolution and not covered by it ? Mr. EDMUNDS. On that point I have a resolution to offer, though I do not know that it is in order at this time. Mr. TRUMBULL. Let us see if the others are not ruled out first. Mr. EDMUNDS. You cannot tell whether it is in order or not till I offer it. I offer this resolution : * Resolved, That under the special order of the two Houses respecting the electoral vote from the State of Georgia the objections made to the counting of the vote of the electors for the State of Georgia are not in order. I offer that upon the ground that the con current resolution, saying nothing about its preamble, directs absolutely what treatment shall be given to those votes, reasons or no reasons. Several SENATOKS. That is right. Mr. TRUMBULL. I like the resolution of the Senator from Ohio better. It comes to the same result. Mr. CONNESS. If it comes to the same re sult take either. Mr. DRAKE. I ask for information whether the decision of the Chair rules out my amend ment and the original resolution of the Senator from Ohio? Mr. GRIMES. Of course it does. The PRESIDENT pro tempore. The Chair is of opinion, since the point has been made, that nothing would be in order except that the Chair should receive a new direction to stand by the concurrent resolution ; but that is unnecessary, as the Chair will stand by that anyhow, unless it is modified. The only diffi culty is as to the point whether it covers the objection raised by the member from Massa chusetts. Mr. GRIMES. I wish to inquire whether, if we adopt the proposition of the Senator from Vermont or of the Senator from Ohio, the other House having decided as it has, the result is that the vote of Georgia cannot be counted anyhow ? Mr. CONNESS. We do not know that. We cannot tell. Mr. GRIMES. According to our rule it cannot be counted. Mr. WILLIAMS. It cannot be counted. All we have to do is to get out of this scrape. Mr. GRIMES. All we have to do is to pre serve our own consistency and vindicate it on the record. The vote of Georgia is thrown aside anyhow. Mr. CONNESS. Then let us get to a vote. Mr. GRIMES. That is what I want. The PRESIDENT pro tempore. The Chair has ruled these resolutions out of order ; and if there is no appeal, the Chair will entertain no modification of the concurrent resolution of the two Houses. < Mr. EDMUNDS. Then I offer the resolu tion which I read. Mr. FERRY. That will cover the whole thing. The PRESIDENT pro tempore. That will be read. The Chief Clerk read Mr. EDMH^DS S reso lution, as follows : Resolved, That under the special order of the two Houses respecting the electoral vote from the State of Georgia, the objections made to the counting of the vote of the electors for the State of Georgia are not in order. Mr. CORBETT. Now, I call for the read ing of the concurrent resolution adopted on the 8th instant, so that we can judge. The PRESIDENT pro tempore. It will be read if there be no objection. The Secretary read the following concur rent resolution of the two Houses : Whereas the question whether the State of Geor gia has become and is entitled to representation in the two Houses of Congress is now pending and un determined ; and whereas, by the joint resolution of Congress passed July 20, 1868, entitled "A resolu tion excluding from the electoral college votes of States lately in rebellion which shall not have been, reorganized," it was provided that no electoral votes from any of the States lately in rebellion should be received or counted for President or Vice-President of the United States, until, among other things, such State should have become entitled to representation in Congress pursuant to acts of Congress in that be half: Therefore, Resolved, That on the assembling of the two Houses on the second Wednesday of February, 1869, for the counting of the electoral votes for President and Vice-President, as provided bylaw and the joint rules, if the counting or omitting to count the elec toral votes, if any, which may be presented as of the State of Georgia shall not essentially change the re sult, in that case they shall be reported by the Pres ident of the Senate in the following manner: "Were the votes presented as of the State of Georgia to be counted, the result would be, for for Presi dent of the United States, votes ; if not count ed, for for President of the United States, votes ; but in either case is elected Pres ident of the United States ; and in the same mannet for Vice-President. ULYSSES S. GRANT, PRESIDENT. 281 Mr. NYE. I want to ask a question. Is it at all material, after the resolution we h-ave received from the House of Representatives, what the action of this body is ? Mr. GRIMES. Not at all. Mr. NYE. The vote of Georgia cannot be counted. That is settled. Mr. EDMUNDS. Let us have the question. Mr! TRUMBULL. I ask the Senate to per mit me to make a statement. I have no other interest except to preserve the propriety of our action and prevent getting into a wrangle that will be disreputable to the Congress of the United States in both of its branches. It would relieve us of any difficulty if we adopted the same coarse that was adopted when Mr. Buchanan was elected. The President pro tempore of the Senate then announced that "James Buchanan, of the State of Pennsyl vania, having received the greatest number of votes for President, and that number being a majority of the whole number of electors, has been duly elected." It is not necessary to say how many votes he received. Mr. EDMUNDS. That is changing the rule. Mr. TRUMBULL. No ; it is not changing the rule. The rule provides what is to be done with Georgia that her vote shall be neither rejected nor received. The Senator from Nevada asks if the vote of Georgia can be counted when the other House has decided against it. Certainly. The Senate will never admit that the House of Representatives can settle by itself the votes which shall be counted. Mr. EDMUNDS. You have admitted it in the twenty-second joint rule. It says in ex press terms, "and no vote objected to shall be counted, except by the concurrent vote of the two Houses." Mr. TRUMBULL. We must concur with the House of Representatives. Mr. NYE. Not at all. If the other House says it shall not be counted it cannot be. Mr. TRUMBULL. Can the Senate, or the House by itself, throw out any votes ? Mr. EDMUNDS. I object to any further debate. Let us terminate this. The PRESIDENT pro tempore. The ques tion is on the resolution offered by the Sena tor from Vermont. Mr. NYE. I call for the yeas and nays. The yeas and nays were ordered. Mr. SHERMAN. I understood the Chair has ruled the resolution I offered out of order. The PRESIDENT pro tempore. The Chair did rule that to be out of order, as it was an attempt to overthrow the concurrent resolu tion. Perhaps it was not altogether so. Mr. SHERMAN. I will vote for the reso lution of the honorable Senator from Ver mont, or for the resolution I offered. I look upon them as tantamount, but that I do not see how the resolution I offered was displaced. I do not care about that, however ; I am ready to vote for whichever is first presented. Mr. RICE. I wish to ask a question. If it turns out that the vote of Georgia ought to be counted, would the concurrent resolution adopted yesterday be sufficient to prevent its being counted to-day? If it was a clear proposition that that vote should be counted now, would the concurrent resolution pre vent it ? Mr. EDMUNDS. It directs just what shall be done in literal terms. Several SENATOES. "Question!" "Ques tion ! " The PRESIDENT pro tempore. The Clerk will call the roll on the resolution of the Sen ator from Vermont. Mr. ABBOTT S name was called, and he re sponded. Mr. DAVIS. I should like to hear the resolution read. Several SEXATOES. It is too late. The call of the roll has commenced. The PRESIDENT pro tempore. If the Sen ator from Kentucky wishes to hear the reso lution read, the Chair will direct it to be read : The Chief Clerk read the resolution, as fol lows : Resolved, That under the special order of the two Houses respecting the electoral vote from the State of Georgia, the objections made to the counting of the vote of the electors for the State of Georgia are not in order. The question having been taken by yeas and nays, resulted yeas 32, nays 27; as follows: YE AS Messrs. Abbott, Anthony, Buckalew, Cat- tell^Donness, Corbett, Cragin, Davis, Dixon, Doolit- tle, WEdmunds. Fowler, Frelinghuysen, Grimes, Hendricks, Kellogg, McCreery, Morrill of Maine, Morrill of Vermont, Morton, Patterson of New Hampshire, Patterson of Tennessee, Eoss, Sauls- bury, Sawyer, Sherman, Sprague, Stewart, Tipton, Vickers, Whyte, and Williams 32. NAYS Messrs. Cameron, Chandler, Cole, Conk- ling, Drake, Ferry, Fessenden, Harlan, Harris, Howe, McDonald, Morgan, Nye, Pool, Ramsey, Kice, Robertson, Spencer, Sunnier, T haver, Trum- bull, Van Winkle, Wade, Warner, Willey, Wilson, and Yates 27. ABSENT Messrs. Bayard, Henderson, Howard, Norton, Osborn, Poineroy, and Welch 7. So the resolution was agreed to. The PRESIDENT pro tempore. The Chair would like to inquire now, as the two branches do not agree, what announcement is to be made to the joint convention. Mr. EDMUNDS. The Chair ought to an nounce the decision of the Senate, and then proceed under the joint rule. In point of fact the vote of Georgia is rejected by the action of the House of Representatives under the joint rule. Mr. TRUMBULL. But does not this special rule repeal so much of the joint rule as is in consistent with it? Mr. EDMUNDS. Certainly. The special rule made a decision of that case. All I can say is that I now move that a message be sent to the House of Representatives, informing that body of the action of the Senate. Mr. SHERMAN. I think the question made and presented is the gravest one I have ever 282 TWENTY-FIRST PRESIDENTIAL TERM. known in the Senate, because if the rule now laid down is to be observed, no President of the United States could ever be elected with the Senate one way and the House the other. It seems to me it is a very dangerous and a very hazardous proposition that the House of Representatives, or the Senate either, can de feat an election. Mr. EDMUNDS. We cannot debate that DOW. The PRESIDENT pro tempore. Will the Senate direct the Secretary to carry the reso lution just passed to the House of Representa tives ? Mr. HENDRICKS. I move to add to the resolution just adopted the resolution proposed by the Senator from Ohio ; not that I was in favor of the original proposition, but it became the law of the body. Mr. NYE. I want to make an inquiry. Mr. EDMUNDS. I wish the Chair would put the question on my motion. Mr. NYE. If I understand the effect of our vote, we declare that the vote of Georgia shall be counted. Mr. EDMUNDS. We do not declare any thing about it. Mr. NYE. If this indorses the resolution of the 8th, we do. The House of Representa tives have declared that the vote shall not be counted. Where does that leave us? After one House has declared that it shall not be counted, I claim that it is quite immaterial what course the other House take, the Hote cannot be counted. Mr. CONNESS. It leaves us, I answer, under the operation of the rule adopted on the 8th, which was a concurrent rule of both bodies which the House cannot repeal separately nor the Senate separately. Mr. EDMUNDS. That is true. Mr. WARNER. I rise to a point of order. My point of order is this : that all the points of order that have been made are out of order, and that the two Houses cannot one month or one week or one day beforehand decide what votes shall be counted in joint convention. The PRESIDENT pro tempore. There is nothing before the Senate, except Mr. HENDRIOKS. My motion. Mr. EDMUNDS. My motion that the Sec retary inform the House of Representatives of the action of the Senate. The PRESIDENT pro tempore. The latter motion is agreed to, the Chair understands. Mr. TRUMBULL. As a relief from the diffi culty I suggest that the proper course for us to pursue practically is this : when we return to the other House, the vote of Georgia having been already read, let the tellers read over the vote and the Presiding Officer of the Senate then announce, just as was done twelve years ago, that such a person has received a majority of all the votes cast for President and is there upon declared to be elected President ; and so for Vice-President ; and the joint convention will dissolve, and we shall leave this matter without any other decision of it than that. It will not affect the result, and I hope in a calmer time we shall take some measure to avoid the difficulty we are now in. The PRESIDENT pro tempore. The Chair would ask what would become of the concur rent resolution then ? Mr. EDMUNDS. I hope the Chair will obey the joint order of the two Houses, and announce that if the vote of Georgia were counted the result would be so and so ; if it were not counted it would be so and so ; and that in either event So-and-so is elected. That is what we have directed you to do. Mr. CONNESS and others. That is it ex actly. Mr. CONKLING. I should like to make a suggestion to the Senator from Vermont, if I can have consent to do it. I call his attention to these words in the Constitution : " The President of the Senate shall, in the pres ence of tlie Senate and House of Kepresentatives, open all the certificates, and the votes shall then be counted." This is the language of the Constitution. My difficulty is to see how the Chair, of his own motion, or authorized by a concurrent resolution, is to announce that that thing which the Constitution says shall be done is not to be done at all ; but that if it was done one way a certain result would happen, and if done the Other way a certain other result would hap pen, and that we do not do it either way. That is my trouble. Mr. HOWARD. Mr. President, I offer the following resolution. The PRESIDENT pro tempore. It will be read. Mr. HENDRICKS. I moved to add the resolution offered by the Senator from Ohio to the one just adopted. The PRESIDENT pro temyore. The reso lution of the Senator from Michigan will be read. Mr. HENDRICKS. Some time since I moved to add the resolution of the Senator from Ohio to the one already adopted. The PRESIDENT pro tempore. That was to a resolution before adopted. Mr. HENDRICKS. Of course it was. It was calling up the resolution of the Senator from Ohio for action. The PRESIDENT pro tempore. This will be read. The CHIEF CLEBK. The Senator from Mich igan [Mr. HOWAKD] offers the following reso lution : Resolved, That the electoral vote of Georgia ought not to be counted. Mr. WILLIAMS. I make a point of order on that resolution. It is out of order accord ing to the ruling of the Chair. Mr. EDMUNDS. And according to the vote of the Senate. ULYSSES S. GRANT, PRESIDENT. 283 Mr. HOWARD. Does the Chair rule it to be out of order ? The PRESIDENT pro tempore. It is not ou.t of order for the Senate to pass any reso lution they see fit to pass. Mr. EDMUNDS. I move that the Senate return to the House of Representatives. Mr. FERRY. There is a question before the Senate. Let us vote on it. The PRESIDENT pro tempore. It will be satisfactory to the Chair to know what is to be done when we get back. Mr. HOWARD. I did not understand the Chair to say that my resolution was out of order. The PRESIDENT pro tempore. The Chair did not say that it was out of order. The ques tion is on the resolution of the Senator from Michigan. Mr. WILLIAMS. I made a point of order on that resolution, that it was out of order ac cording to the recent ruling of the Chair. Mr. FERRY. The Chair has decided it to be in order. The Senator can take an appeal if he wishes. The PRESIDENT pro tempore. The Chan- does not understand that this question has been acted upon at all. Mr. WILLIAMS. I will ask the Chair to decide whether the resolution of the Senator from Michigan is or is not in order ? The PRESIDENT pro tempore. The Chair thinks it is in order, and has so stated. Mr. WILLIAMS. Then I respectfully ap peal from the decision of the Chair. The PRESIDENT pro tempore. The Sen ator appeals from the decision of the Chair. The question is, " Shall the ruling of the Chair stand as the judgment of the Senate ? " Mr. MORTON. I ask that the resolution of the Senator from Michigan be read. The resolution of Mr. HOWAED was read. Mr. MORTON. I make a point of order on that resolution that it is in direct conflict with the resolution just adopted, which was offered by the Senator from Vermont. The PRESIDENT, pro tempore. That is a question which the Chair cannot decide. It is for the Senate to decide. There is now an ap peal pending from the decision of the Chair. Mr. CONKLINO. What is the decision of the Chair? The PRESIDENT pro tempore. The deci sion of the Chair was that the resolution of the Senator from Michigan was in order, from which decision an appeal is taken, and the question now is, "Shall the decision of the Chair stand as the judgment of the Senate ? " Mr. HENDRICKS. Mr. President- Mr. WILLIAMS. I object to debate. The PRESIDENT pro tempore. It is not debatable. Mr. HENDRICKS. I wish to submit that the resolution of the Senator from Michigan is debatable. Mr. EDMUNDS. No, sir ; it is not. Any how, the point of order is not debatable. The PRESIDENT pro tempore. The ques tion is, " Shall the decision of the Chair stand as the judgment of the Senate ? " Mr. CONNESS. Upon that I call for the yeas and nays. The yeas and nays were ordered ; and being taken, resulted yeas 28, nays 25 ; as follows : YEAS Messrs. Abbott, Cameron, Chandler, Cole, Conkling, Drake, Ferry, Grimes, Harlan, Harris, How ard, Howe, McDonald, Nye ? Osborn, Patterson of New Hampshire, Ramsey, Rice, Robertson, Sawyer, Sherman, Spencer, Stewart, Sunnier, Thaver, Van Winkle, Warner, and Yates 28. NAYS Messrs. Buckalew, Cormess, Corbett, Cra- fin, Davis, Dixon, Doolittle, Edmunds, Fessenden, owler, Hendricks, McCreery, Morgan, Morrill of Maine, Morrill of Vermont, Patterson of Tennessee, Pool. Ross, Sprague, Tip ton, Vickers, Whyte, Willey, Williams, and Wilson 25. ABSENT Messrs. Anthony, Bayard, Cattell, Fre- linghuysen, Henderson, Kellogg, Morton, Norton, Pomeroy, Saulsbury, Trunibull, Wade, and Welch 13. The PRESIDENT pro tempore. The decision of the Chair is sustained. The resolution of the Senator from Michigan [Mr. HOWARD] ia in order, and the question is on agreeing to that resolution. Mr. HENDRICKS. Mr. President, I claim that this resolution is debatable. ["No!" " No ! "] I will state my point. Mr. CHANDLER. I object. I call the Sen ator to order. The PRESIDENT pro tempore. The Sen ator from Indiana may state his point of or der ; but of course he cannot debate the ques tion. Mr. DRAKE. I do not understand that he is stating a point of order. Mr. HENDRICKS. My point is this : that this resolution is not based in the Senate upon any objection made in the joint convention, but that it is an independent resolution of the Senate, and is therefore not controlled by the joint rule which prohibits debate upon a question made in joint convention. The Sen ate has decided, in support of the ruling of the Chair, that the objection made in the House is not in order, and the Senate has informed the House of that fact. Therefore this resolution does not rest upon that objection. The PRESIDENT pro tempore. Debate is not in order. Mr. HENDRICKS. Upon the ground I have just stated, I claim the right to debate the resolution. The PRESIDENT pro tempore. It is the opinion of the Chair that it is not debatable. Mr. HENDRICKS. Then I appeal from the decision of the Chair. Mr. MORTON. I desire to suggest a point of order. The PRESIDENT pro tempore. The ques tion is on the appeal. Mr. FERRY". One thing at a time. 284 TWENTY-FIRST PRESIDENTIAL TERM. The PRESIDENT pro tempore. The Sen ator from Indiana [Mr. HENDEICKS] appeals from the decision of the Chair, and the ques tion is, " Shall the decision of the Chair stand as the judgment of the Senate ? " Mr. HENDRICKS. I do not care enough about it ; I am not going to press an appeal on a question of this sort. The PRESIDENT, pro tempore. The appeal is withdrawn. Mr. MORTON". I desire to ask a question. I hold in my hand the resolution just passed, offered by the Senator from Vermont, which declares that the objections made to counting the vote in joint convention a little while ago was out of order and could not be entertained ; and now if we pass the resolution offered by the Senator from Michigan, that the electoral vote of Georgia shall not be received, which one shall be reported to the joint convention ? The PRESIDENT, pro tempore. The ques tion is on the resolution of the Senator from Michigan. Mr. CONNESS. I call for the yeas and nays. The yeas and nays were ordered. Mr. EDMUNDS. Let it be read. The Chief Clerk read the resolution of Mr. HOWAED. Mr. "WILLIAMS. I call for the reading of the other resolution that has just been adopted. The Chief Clerk read as follows: Resolved, That under the special order of the two Houses respecting the electoral vote from the State of Georgia, the objections made to the counting of the vote of the electors for the State of Georgia are not ia order. The question being taken by yeas and nays, resulted yeas 25, nays 34 ; as follows : YEAS Messrs. Abbott, Cameron, Chandler, Cole, Conkling, Drake, Harlan, Harris, Howard, Howe, Kellogg, McDonald, Nye, Osborn, Ramsey, Rice, Robertson, Sawyer, Spencer, Stewart, Sumner, T Layer, Wade, Wilson, and Yates 25. NAYS Messrs. Buckalew, Conness, Corbett, Cra- gin, Davis, Dixon, Dpolittle, Edmunds, Ferry, Fes- send en, Fotfler, Frelinghuysen, Grimes, Hendricks, McCreery, Morgan, Morrill of Maine, Mo rrill of Ver mont, Morton, Patterson of New Hampshire, Patter son of Tennessee, Pool, Ross, Saulsbury, Sherman, Sprague, Tipton, Trurnbull, Van Winkle, Vickers, Warner, Whyte, Willey, and Williams 34. ABSENT Messrs. Anthony, Bayard, Cattell, Henderson, Norton, Pomeroy, and Welch 7. So the resolution of Mr. HOWAED was re jected. Mr. EDMUNDS. Mr. President The PRESIDENT pro tempore. One mo ment. Shall the Secretary send the vote al ready taken to the House of Representatives? [" Certainly."] Mr. EDMUNDS. I made that motion long ago, and the President declared it carried, I understood. The PRESIDENT pro tempore. There were other resolutions, and we directed the Clerk not to go over yet, not knowing what would become of it. Mr. EDMUNDS. I move that the Presi dent direct the Clerk to go now. The motion was agreed to. Mr. EDMUNDS. I move that the Senate return to the House of Representatives. The motion was agreed to ; and the Senate, preceded by the Sergeant-at-Arms and the Sec retary, proceeeded to the Hall of the House of Representatives. The Senate returned to the Senate Chamber at four o clock and forty-five minutes p. M. Mr. MORTON. I offer the following reso lution : Resolved, That a committee of one member of the Senate be appointed by this body to join a com mittee of two members of the House of Represent atives, to be appointed by that House, to wait OD Ulysses S. Grant, of Illinois, and to notify him that he has been duly elected President of the United States for four years, commencing on the 4th day of March, 1869 ; and also to notify Schuyler Coif ax, of Indiana, that he has been duly elected Vice-Presi- dent of the United States for four years commenc ing on the 4th day of March, 1869. The resolution was considered by unanimous consent, and agreed to. The President, pro tempore. The Chair will appoint Mr. MORTON as the committee on the part of the Senate under this resolution. IN HOUSE OF REPEESENTATIVES. Wednesday, February 10, 1869. ("Congressional Globe," 40th Congress, 3d Session, pp. 1056-1059, 1062-1067.) Mr. SCHENCK introduced the following resolution ; which was read, considered, and agreed to : Resolved, That the Clerk inform the Senate that this House is now ready to receive that body for the purpose of proceeding to open and count the votes of the electors of the several States for President and Vice-President of the United States. At one o clock p. M. the Doorkeeper an nounced the Senate of the United States. The Senate entered the Hall, preceded by its Sergeant-at-Arms and headed by the Presi dent pro tempore and the Secretary of the Sen ate, the members and officers of the House rising to receive them. The Senators took the seats set apart for them in the eastern section of the Hall. The President of the Senate took his seat as presiding officer of the joint convention of the two Houses, the Speaker occupying a chair on the left of the President of the Senate. Senator CONKLING, the teller appointed on the part of the Senate, and Messrs. WILSON, of Iowa, and PEUTN, the two tellers appointed on the part of the House, took their seats at the Clerk s desk, at which the Secretary of the Senate and the Clerk of the House also oc cupied seats. The PRESIDENT/* tempore of the Senate. The Senate and House of Representatives hav ing met under the provisions of the Constitu tion for the purpose of opening, determining, ULYSSES S. GRANT, PRESIDENT. 285 and declaring the votes for the offices of Presi dent and Vice-President of the United States for the term of four years commencing on the 4th of March next, and it being my duty, in the presence of both Houses thus convened, to open the votes, I now proceed to discharge that duty. The President pro tempore then proceeded to open and hand to the tellers the votes of the several States for President and Vice- President of the Ttnited States, commencing with the State of New Hampshire. Senator COCKLING, one of the tellers, read in full the certificate of the vote of the State of New Hampshire, giving five votes for Ulysses S. Grant, of Illinois, for President of the United States, and five votes for Schuyler Oolfax, of Indiana, for Vice-President of the United States. The PRESIDENT. If there be no objection the certificates of the votes of the other States will not be read in full, but only the results stated, except when the reading of any certifi cate in full shall be called for by any member. The tellers reported, through Senator CONK- LTSTQ, that they had examined the vote of the State of Massachusetts ; that they found it in due form ; that all the votes given for Presi dent of the United States were twelve, all of which were for Ulysses S. Grant, of the State of Illinois ; and that all the votes given for Vice-President of the United States were twelve, all of which were for Schuyler Oolfax, of the State of Indiana. The same form was observed in announcing the votes of the other States until the State of Louisiana was announced, when Mr. MULLINS said : Mr. President, I call for the reading in full of the certificate accom panying the return of the vote of Louisiana. The certificate was read ; after which Mr. MULLINS said : I object to the count ing of the vote from the State of Louisiana. The PRESIDENT. The rule in this case will be read. The rule was read, as follows : " If, upon the reading ot any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same havincr been stated by the presiding officer, the Senate shall there upon "withdraw, and said question shall be submitted to that body for its decision ; and the Speaker of the House of Representatives shall in like manner sub mit said question to the House of Representatives for its decision ; and no question shall be decided affirm atively, and no vote objected to shall be counted, except by^ the concurrent votes of the two Houses, which being obtained, the two Houses shall immedi ately reassemble^ and the presiding officer shall then announce the decision of the question submitted ; and upon any such question there shall be no debate in either House. And any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner." The PRESIDENT. Objection has been made to counting the vote of the State of Lou isiana. Mr. ELDRIDGE. I rise to a question of or der. I insist that the rule which has just been read is in direct contravention of the terms of the Constitution. I call attention to the fol lowing clause of the twelfth amendment to the Constitution, which is as follows " The President of the Senate shall, in the pres ence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." The PRESIDENT. The rule which has been read is one that was adopted by both Houses. The Chair declines to entertain the question of order, but will say that he believes the rule to be in accordance with the Constitution. Mr. WOODWARD. I rise to a question of order, which I think will be entertained by the Chair. I submit that the objection made by the gentleman from Tennessee [Mr. MULLIXS] does not raise the question contemplated by the rule which has been read. To bring the case within the rule there must be specific ob jection, and until such specific objection shall be urged there is no occasion for the Senate to retire. The PRESIDENT. It will be observed that the rule says : " If, upon the reading of any such, certificate by the tellers, any question shalJ arise in regard to counting the votes therein certified," etc. The stating an objection without assigning any reason therefor, in the opinion of the Chair, is hardly " raising a question," within the meaning of the, rule. The gentleman from Tennessee [Mr. MULLINS] will therefore state in writing the reason for his objection. Mr. WASHBURNE, of Illinois. I hope the gentleman from Tennessee [Mr. MULLINS] will withdraw his objection, and let this matter proceed. Senator SUMNER. I would inquire whether we might not pass over the case of Louisiana informally, and proceed with the rest of the count ? Mr. WOOD. I object to that, Mr. President. Let us go on regularly. Senator SAULSBURY. I would like to know the objection that the Senate of the United States is to consider? The PRESIDENT. No debate is in order till the reason of this objection shall be pre sented. Senator SAULSBURY. I call for the read ing of the objection. The PRESIDENT. The reason for the ob jection will be read. Mr. Wilson, of Iowa (one of the tellers), read the objection of Mr. Mullins, as reduced to writing, in the following words : I object to any count of the votes certified from the State of Louisiana, and raise the question in regard to them that no valid election of electors for Presi dent and Vice-President of the United States has been held in said State. The PRESIDENT. Objection being made to the counting of the votes returned from the State of Louisiana the Senate will, according 286 TWENTY-FIRST PRESIDENTIAL TERM. to the rule, retire to their Chamber to deliber ate upon the objection. The Senate accordingly retired from the Hall. The House was again called to order. The SPEAKER. Under the twenty-second joint rule the Chair submits to the House, to be decided upon without debate, the objection made by the gentleman from Tennessee [Mr. MULLINS] in joint convention to the counting of the votes certified from the State of Louisi ana. The Clerk will report the objection, and the House will decide upon it without debate. The objection was again read. Mr. WASHBtfRNE, of Illinois. Will it be in order to move to lay that on the table ? The SPEAKER. It will not be. The ques tion must be decided by the House. Mr. NIBLACK. Is it in order, Mr. Speaker, to have the certificate of the Governor of the State of Louisiana again read ? Several .MEMBERS. Oh, no. Mr. WOOD. I think the rule requires the Speaker to put the question directly to the House. The SPEAKER. It does. The credentials are in possession of the joint convention. They were read in the presence of both Houses as information for the members of both. The objection which has been made by a member of the House must be decided upon without debate. Mr. JONES, of Kentucky. I call for the yeas and nays. The yeas and nays were ordered. The SPEAKER. The language of the twenty-second joint rule with respect to the proceedings of the joint convention is that "No vote objected to shall be counted except by the concurrent votes of the two Houses ; which be ing obtained, the two Houses shall immediately re assemble." The question is, Shall the votes certified from the State of Louisiana be counted? on which question the yeas and nays have been ordered. The question was taken ; and it was decided in the affirmative yeas 137, nays 63, not vot ing 22 ; as follows : YEAS Messrs. Allison, Ames, Axtell, Baker, Barnes, Barnum, Beaman, Beatty, Beck, Benjamin, Bingham, Elaine, Blair, Boyden.Boyer, Brornwell, Brooks, Broomall, Buckland, Burr, Roderick E. Butler, Gary, Chanler, Churchill, Coburn, Cullom, Delano, Deweese, Dickey, Dixon, Dockery, Dodge, Eggleston, Eld ridge, Farnsworth, Ferriss, Ferry, Garfield, Getz, Glossbrenner, Golladay, Gove,. Grave ly, Grover, llaight, Halsey, Hawkins, Heaton, Hig- by, Hill, Holman, Hooper, Hopkins, Hotchkiss, Asahel W. Hubbard, Humphrey, Ingersoll, Jenckes, Johnson, Alexander H. Jones, Thomas L. Jones, Judd, Kelly, Kellogg, Kerr, Ketcbam, Kitchen, Knott, Koontz, Laflin, Lash, George V. Lawrence, William Lawrence, Lincoln, Logan, Loughridge, Mallory, Marshall, Marvin, McCarthy, McCormick, McCullough, Miller, Moore, Moorhead, Mungen, Newcomb, Niblack, Nicholson, Norris, Nunn, Peters, Phelps, Pike, Pile, Plants, Poland, Polsley, Price, Pruyn, Randall, Raum, Robertson, Ross, Sawyer, Schenck, Scofield, Selye, Shellabarger, Sitgreaves, Smith, Spalding, Starkweather, Stewart, Stokes, Stone, Taber, Taffe, Taylor, Thomas, Tift, John Trimble, Trowbridge, Twichell, Van Auken, Burt Van Horn, Van Trump, Elihu B. Washburne, Wil liam B. Washburn, Welker, James F. Wilson, John T. Wilson, Windom, Wood, Woodbridge, Wood ward, and Young 137. NAYS Messrs. Delos R. Ashley, James M. Ash ley, Banks, Benton, Blackburn, Boles, Boutwell, Bowen, Buckley, Benjamin F. Butler, Cake, Callis, Reader W. Clarke, Sidney Clarke, Clift, Cobb, Cor- ley, Covode, Dawes, Donnelly, Driggs, Eckley, Ed wards, Ela, Thomas D. Eliot, James T. Elliott, Fields, French, Hamilton, Harding, Haughey, Ches ter D. Hubbard, Hulburd, Hunter, Julian, Kelsey, Loan, Maynard, McKee, Morrell, Mullins, Newsham, O Neill, Orth, Paine, Perham, Pettis, Pierce, Prince, Roots, Shanks, Stevens, Stover, Upson,Van Aernam, Robert T. Van Horn, Van Wyck, Vidal, Ward Hen ry D. Washburn, Whittemore, Thomas Williams, and William Williams 63. NOT VOTING Messrs. Adams, Anderson, Arch er, Arnell, Bailey, Baldwin, Cook, Cornell, Fox, Goss, Griswold, Richard D. Hubbard, Lynch, Mer- cur, Morrissey, Myers, Pomeroy, Robinson, Sypher, Lawrence S. Trimble, Cadwalader C. Washburn, and Stephen F. Wilson 22. During the roll-call, Mr. BARNES said : My colleague, Mr. ROB INSON, is detained from the House on account of important business; I think he was ex cused. Had he been here he would have voted "ay." On the conclusion of the roll-call, Mr. LAWRENCE, of Ohio, said : I desire to make objection to any announcement of the result of this vote. The SPEAKER. The Chair declines to en tertain it. The objection made by the gentle man from Tennessee [Mr. MULLINS] in the joint meeting of the two Houses to the vote of Louisiana being counted having been sub mitted by the Speaker of the House of Repre sentatives, under the twenty-second joint rule, to the House for its decision upon the ques tion, " Shall the vote of that State be counted notwithstanding the objection of the gentle man from Tennessee ?" the result is 137 yeas and 63 nays. The House therefore decided that it shall be counted ; and a message to that effect will be communicated to the Senate of the United States. Mr. JONES, of Kentucky. I move to re consider the last vote; and to lay the motion to reconsider on the table. Is not that a proper motion ? The SPEAKER. The Chair thinks not un der the joint rule. Mr. JONES, of Kentucky. This is a vote in the House, and by the House alone. I therefore think it is in order. f The SPEAKER. The Chair thinks the mo tion is in order. "When a motion has been carried in the affirmative or negative it is in order for any -member who voted with the majority to move its reconsideration. The latter motion of Mr. JONES, of Ken tucky, to lay the motion to reconsider on the table, was agreed to. ULYSSES S. GRANT, PRESIDENT. 287 Mr. SCHENCK. Mr. Speaker, having voted to admit the counting of the electoral vote of Louisiana, I ask unanimous consent to offer the following resolution : Resolved by the House of Representatives, That no proof being formally submitted to sustain the objec tion made to the counting of the vote of the electors of the State of Louisiana for President and Vice- President, this House, without affirming or denying anything in regard to the manner in which the elec tion for said electors was conducted, decide that no reason appears why the vote of the said electors shall not be counted, and that in the opinion of the House the same should therefore be counted. Mr. ELDRLDGE and Mr. WOOD objected. Mr. SHANKS. I ask unanimous consent to offer the following resolution : Resolved, That in the opinion of this House the ac ceptance of the vote of Louisiana for President and Vice-President will encourage the criminal practice of enforcing elections in the States lately in rebel lion, and involves the murder of thousands of loyal people. Mr. GLOSSBRENNER and others objected. Mr. LAWRENCE, of Ohio. I ask unani mous consent to have my point of order read. Mr. GETZ and others objected. Mr. RANDALL. I call for the regular order. Mr. MULLINS. I ask leave to introduce a resolution. Mr. WOOD. I object to any resolution. The SPEAKER. There is no regular order but to wait for a message from the Senate an nouncing the action of that body on the sub ject. Mr. MULLINS. I ask leave of the House for five minutes to give a personal explanation. Mr. GETZ. I object. A message from the Senate was communi cated by Mr. GOKHAM, its Secretary, inform ing the House that that body had resolved that the votes of the electors of the State of Louisiana for President and Vice-President of the United States be counted. Mr. SCHENCK. I move that a message be communicated to the Senate of the United States inviting their return to this Chamber to complete the business of the joint meeting. The motion was agreed to, and a message to that effect was accordingly communicated to the Senate. At a quarter past two o clock, p. M., the Senate in a body reentered the Hall, and The PRESIDENT, having resumed the chair, said: By a concurrent resolution of the two Houses the vote of Louisiana is ordered to be counted. The tellers accordingly proceeded to an nounce the vote of the State of Louisiana, and of the remaining States until the State of Georgia was reached. Mr. BUTLER, of Massachusetts. I ask for the reading of the certificate. The PRESIDENT. Let the certificate be read. Mr. PRUYN accordingly read the certificate, as follows : STATE OF GEOEQIA, ATLANTA, WEDNESDAY, December 9, 1868. The members of the electoral college of the State of Georgia convened this day at twelve o clock, M., at the citpitol of said State, in the city of Atlanta. A communication was received from his Excel lency, Rufus B. Bullook, Governor of said State, in closing certificates in triplicate of the persons elected electors of said State to vote for a President and Vice-President of the United States for a term of four years from the 4th day of March, 1869, of which certificates the following is a copy, and one of the originals of which is hereto annexed: EXECUTIVE DEPARTMENT, STATE OF GEORGIA, ATLANTA, December 9, 1868. This may certify that it appears from the official returns received at this department of an election held in this State on Tuesday, the 3d day of Novem ber, 1868, for nine electors to vote for President and Vice-President of the United States : That John B. Gordon, John T. Clarke, John C. Nicholls, Charles I. Goode, Raphael J. Moses, Au gustus O. Bacon, J. P. Gumming, H. P. Bell, and James D. Waddell were elected. Given under my hand and the seal of the execu tive department at the capitol, in the city of Atlanta, this the 9th day of December, 1868. RUFUS B. BULLOCK, Governor. [Seal of executive department attached.] By the Governor : B. B. DEGRAFFENREID, Secretary of Executive Department, for the Governor. Whereby it appears that John B. Gordon, John T. Clarke, John 0. Nicholls, Charles T. Goode, Raphael J. Moses, Augustus O. Bacon, J. P. Cumming, H. P. Bell, and James D. Waddell, were duly elected such electors at the election held in said State on Tuesday, the 3d day of November, 1868. They, the said electors, being assembled as above mentioned, and all present, proceeded to vote by ballot for President of the United States for a term of four years from the 4th clay of March, 1869. When all the ballots were cast and votes counted it appeared that Horatio Seymour, of the State of New York, had received nine votes, this being the whole number of votes given by the electoral college. In testimony whereof, the said electors do here unto set their hands, at Atlanta, Georgia, this 9th day of December, 1868. JOHN B. GORDON. JOHN T. CLARKE. JOHN C. NICHOLLS. CHARLES T. GOODE. RAPHAEL J. MOSES. AUGUSTUS O. BACON. J. P. CUMMING. H. P. BELL. JAMES D. WADDELL. The said electors then proceeded in like manner to vote by distinct ballots for a Vice-President of the United States for a term of four years from the 4th day of March, 1869. When all the ballots were cast and votes counted it appeared that Frank P. Blair, of_ the State of Missouri, had received nine votes, this being the whole number of votes given by the electoral college. In testimony whereof, the said electors do here unto set their hands, at Atlanta, Georgia, this 9th day of December, 1868. JOHN B. GORDON. JOHN T. CLARKE. JOHN C. NICHOLLS. CHARLES T. GOODE. RAPHAEL J. MOSES. AUGUSTUS 0. BACON. J. P. CUMMING. H. P. BELL. JAMES D. WADDELL. 288 TWENTY-FIRST PRESIDENTIAL TERM. EXECUTIVE DEPARTMETST, STATE OF GEORGIA, ATLANTA, December 9, 1868. This may certify that it uppears from the official returns received at this department of an election held in this State on Tuesday, the 3d day of Novem ber, 1868, for nine electors to vote for President and Vice-President of the United States : That John B. Gordon, John T. Clarke, John C. Nicholls, Charles T. Goode, Raphael J. Moses, Au gustus 0. Bacon, J. P. Cumming, H. P. Bell, and James D. Waddell, were elected. Given under my hand and the seal of the executive r T department at the capitol, in the city of At- LL< S<J lanta, this 9th day of December, 1868. RUFUS B. BULLOCK, Governor. By the Governor : B. B. DEGRAFFENREID, Secretary Executive Department, for the Governor. Mr. BUTLER, of Massachusetts. I object to the vote of the State of Georgia being count ed, and send my objections in writing to the Chair. Mr. PKFYX (one of the tellers) read the ob jections, as follows : I object, under the joint rule that the vote of the State of Georgia for President and Vice-President ought not to be counted, and object to the counting thereof because, among other things, the vote of the electors in the electoral college was not given on the first Wednesday of December, as required by law, and no excuse or justification for the omission of such legal duty is set forth in the certificate of the action of the electors. Secondly, Because at the date of the election of said electors the State of Georgia had not been ad mitted to representation as a State in Congress since the rebellion of her people, or become entitled there to. Thirdly, That at said date said State of Georgia had not fulfilled in due form all the requirements of the Constitution and laws of the United States, known as the reconstruction acts, so as to entitle said State of Georgia to be represented as a State in die Union in the electoral vote of the several States in the choice of President and Vice-President. Fourthly, That the election pretended to have been held in the State of Georgia on the first Tues day of November last past was not a free, just, equal, and fair election; but the people of the State were deprived of their just rights therein by force and fraud. The PRESIDENT. The concurrent resolu tion of the two Houses will be read on the sub ject. Senator DRAKE. As this objection requires the retirement of the Senate, I send up an ob jection to counting the vote of Nevada, to be considered at the same time. The PRESIDENT. The objection of the Senator is too late. Senator DRAKE. The vote of Nevada has been reported, but has not yet been decided on. It has not been decided authoritatively to count the vote of Nevada. The PRESIDENT. It is too late. The ob jection should have been made at the time the vote was read. Mr. PRUYN" (one of the tellers) read the following as the reason for the objection of Senator DEAKE : I object to the counting of the votes of the elec tors of the State of Nevada, because it does not appear that they voted by ballot. The PRESIDENT. It comes too late. The concurrent resolution of the two Houses in relation to the electoral vote of Georgia will now be read. Mr. PRUYN (one of the tellers) read as follows : Whereas the question whether the State of Geor gia has become and is entitled to representation in the two Houses of Congress, is now pending and undetermined; and whereas by the joint resolution of Congress passed July 20, 1868, entitled " A reso lution excluding from the Electoral College votes of States lately in rebellion, which shall not have been reorganized," it was provided that no electoral votes from any of the States lately in rebellion should be received or counted for President or Vice-President of the United States until, among other things, such State should have become entitled to representation in Congress pursuant to the acts of Congress in that behalf: Therefore, Resolved by the Senate (the House of Represent atives concurring), That on the assembling of the two Houses on the second Wednesday of February, 1869, for the counting of the electoral votes for Pres ident and Vice-President, as provided by law and the joint rules, if the counting or omitting to count the electoral votes, if any, which may be presented, as of the State of Georgia, shall not essentially change the result, in that case they shall be reported by the President of the Senate in the following manner : were the votes presented, as of the State of Georgia, to be counted, the result would be, for ior President of the United States, votes; if not counted, for for President of the United States, votes; but in either case is elected President of the United States ; and in the same manner for Vice-President. Senator EDMUNDS. I rise to a point of order. The objection of the gentleman from Massachusetts is not in order, the two Houses having, by special rule for this case, made a substantial change in the standing joint rule. Mr. BUTLER, of Massachusetts. I desire to call the attention of the President to the law that the votes must be counted or rejected by the convention of the two Houses, and that the prior concurrent action of the Senate and the House cannot bind the convention, but the convention may act after theyget together as they choose to do. Mr. CHANDLER, Mr. GARFIELD, and Mr. WOOD. Debate is not in order. The PRESIDENT. Debate is not in order. Mr. BUTLER, of Massachusetts. I have the right to state my question. The PRESIDENT. The gentleman has stated his objection in writing. Mr. BUTLER, of Massachusetts. And the gentleman from Vermont did not state his in writing. [Laughter.] Now I claim as a point of order, that the objection of the gentleman from Vermont is .not well taken, and I desire that to be decided by the two Houses. The PRESIDENT. The Chair is very much disposed to hold the Senate and House of Rep resentatives to their own concurrent resolu tion. The purport of the resolution, as we understand it, is that if the votes of the State ULYSSES S. GRANT, PRESIDENT. 289 of Georgia do not change the result of the election they may be counted, but if they did alter the result they should not be counted. [Laughter.] Senator DRAKE. I submit a point of order that the ground stated in the concurrent reso lution of the two Houses, upon which the pro- posed disposition of the electoral votes of Georgia was to be made, does not dispose of the first objection of the gentleman from Mas sachusetts, namely : that the vote of Georgia was not cast on the day required by law, and therefore that point must be determined by the votes of the two Houses. The PRESIDENT. The resolution of the two Houses declared that the vote of Georgia should be announced by the Vice-President pro tempore in a certain special way, and stated how that announcement should be made. The Chair is very much disposed to obey the directions of both branches of Con gress in this matter. Mr. BUTLER, of Massachusetts. With great respect for the decision of the Chair, as this is a matter of constitutional law and in other times may make great trouble, I propose that it shall be considered on appeal to the House of Representatives. Mr. FARNSWORTH. The gentleman can not appeal from the President of the joint con vention to the House of Representatives. Mr. JONES, of Kentucky. I rise to a point of order. I object to the counting of the vote of Georgia in the manner indicated by the Senate and the House. I submit that I have the right to object in that form under the joint rule. It is there provided : " If upon the reading of any such certificate by the tellers any question shall arise in regard to count ing the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision." Under that rule I have the right now to ob ject to any decision made by the House or Senate in regard to counting these votes, and especially made previous to this question. I will write out my objections and send them to the Chair. The PRESIDENT. Objection being made, the Senate will retire to their Chamber to de liberate, under the rules. Mr. WASHBURNE, of Illinois. On what? The PRESIDENT. On the objection that has been raised by the gentleman from Massa chusetts. Mr. JONES, of Kentucky. I thought that my objection was in order. The PRESIDENT. The Senate will retire according to order. [Laughter.] The Senate retired accordingly. The SPEAKER having resumed the chair and called the House to order, said: In the joint meeting of the two Houses when the cer tificate of the electoral vote of Georgia was read the gentleman from Massachusetts [Mr. 19 BUTLER] objected to counting that vote, for reasons which will be read by the Clerk. The Clerk read as follows : I object, under the joint rule, that the vote of the State of Georgia for President and Vice-Presiderit ought not to be counted, and object to the counting thereof, because, among other things, the vote of the electors in the Electoral College was not given on the first Wednesday in December, as required by law, and no excuse or justification for the omission of such legal duty is set forth in the certificate of the action of the electors. Secondly, Because at the date of the election of said electors the State of Georgia had not been ad mitted to representation as a State in Congress since the rebellion of her people or become entitled thereto. Thirdly, That at said date said State of Georgia had not fulfilled in due form all the requirements of the Constitution and laws of the United States, known as the reconstruction acts, so as to entitle said State of Georgia to be represented as a State in the Union in the electoral vote of the several States in the choice of President and Vice-President. Fourthly. That the election pretended to have been held in the State of Georgia on the first Tues day of November last past was not a free, just, equal, and fair election ; but the people of the State were deprived of their just rights therein by force and fraud. The SPEAKER. The question is " Shall the vote of Georgia be counted, notwithstanding the objection of the gentleman from Massa chusetts?" Mr. ELDRIDGE. I rise to a question of order. The Presiding Officer of the joint con vention of the two Houses twice decided not to entertain the objection, but to hold the con vention to the order which the House and the Senate in their separate bodies had made. The two bodies separated on the point of order raised by the gentleman from Kentucky [Mr. JONES]. The SPEAKER. The Chair overrules the point of order. Questions in regard to the decision of the President of the convention of the two Houses must be submitted to that offi cer when occupying the chair in that capacity. The point upon which the two Houses sepa rated was the objection of the gentleman from Massachusetts. Mr. KERR. I demand the yeas and nays upon the question in reference to the objection of the gentleman from Massachusetts. Mr. MUNGEN. I rise to a point of order. My point of order is that the second and third objections of the gentleman from Massachu setts [Mr. BUTLER] are not well taken. [Laughter.] I want to give my reasons. [Cries of "Order!"] The SPEAKER. The gentleman cannot give his reasons. That would be debate. The Chair cannot hear reasons. Mr. MUNGEN. Let me state my point of order in another way. [Cries of " Order ! "] The SPEAKER. The Chair would be glad to hear the gentleman from Ohio if it was in order, but it is not in order. Mr. MUNGEN. I want to state my point of order in another form. [Cries of " Order ! Order!"] 290 TWENTY-FIRST PRESIDENTIAL TERM. The SPEAKER. That would be in the na ture of debate. The Chair could not hear the gentleman from Massachusetts [Mr. BTJTLEK] explain his reasons, nor can he hear any other gentleman give reasons. The question is to be decided by a vote of the House without de bate. Mr. MUNGEIST. I do not wish to debate. I merely want to state my point of order. The SPEAKER. The Chair cannot enter tain the point of order. Mr. FARNSWORTH. I desire to make a parliamentary inquiry of the Chair. I desire to know whether the House is to vote upon the question whether the vote of Georgia shall be counted, or whether it shall or shall not be counted in the manner indicated by the con current resolution of the two Houses ? The SPEAKER. The Chair submits the question to the House, as the rule requires him to submit it. The concurrent resolution to which the gentleman refers devolves certain duties upon the President of the Senate, and he will perform them, the Chair supposes, un der that concurrent resolution. The question before the House as a House is, " Shall the vote of Georgia be counted, notwithstanding the objections of the gentleman from Massachu setts [Mr. BUTLER], and upon the question the gentleman from Indiana [Mr. KEEE] demands the yeas and nays. Mr. FARNSWORTH. I make the point of order that the joint resolution of the two Houses is of higher authority and is a later rule than the one which orders that question to be put to the House. The SPEAKER. The Chair overrules the point of order on the ground that the concur rent resolution devolves no duty on the Speaker of the House at all. It devolves a duty on the President of the Senate in presiding over the joint meeting of the two Houses. If the gen tleman will read the text of the concurrent resolution he will see that it devolves no duty on the Speaker or upon the House of Repre sentatives in its capacity as the House. Mr. KERR. I desire to make an inquiry of the Chair. Are the propositions submitted by the gentleman from Massachusetts [Mr. BUT LER] susceptible of division and separate votes ? The SPEAKER. They are not. The only question is " Shall the vote of the State of Georgia be counted? " And as the objection was made by the gentleman from Massachu setts, the Chair added, " notwithstanding the objection of the gentleman from Massachu setts." Mr. SHELL ABARGER. Before the vote is taken I ask that the certificate of the State of Georgia be again read. The SPEAKER. It is not in the possession of either House officially, but is in the posses sion of the convention of both Houses. The question was upon ordering the yeas and nays ; and being taken they were ordered. The question was then taken upon counting the electoral vote of the State of Georgia; and it was decided in the negative yeas 41, nays 150, not voting 31 ; as follows : YEAS Messrs. Axtell, Baker, Barnes, Barnum, Beck, Boyer, Brooks, Burr, Cary, Chanler, Eldridge, Farnsworth/Getz, Glossbrermer, Golladay, Grovtr, Haight, Hawkins, Holraan, Hotchkiss, Humphrey, Johnson, Thomas L. Jones, Kerr, Knott, Marshall, McCormick, Mungen, Nicholson, Phelps, Pruyn, Randall, Ross, Sitgreaves, Taber, Tift, Van Auken, Van Trump, Wood, Woodward, and Young 41. NAYS Messrs. Allison, Delos R. Ashley, James M. Ashley, Baldwin, Banks, Beaman, Beatty, Ben jamin, Benton, Bingham, Blaine, Blair, Boles, Bout- well, Bowen, Boyden, Bromwell, Broomall, Buck- land, Buckley, Benjamin F. Butler, Roderick R. Butler, Cake, Callis, Churchill, Reader W. Clarke, Sidney Clarke, Clift, Cobb, Coburn, Corley, Covode, Cullom, Dawes, Deweese, Dickey, Dixon, Dodge, Donnelly, Driggs, Eckley, Edwards, Eggleston, Ela, Thomas D . Eliot, James T. Elliott, Ferriss, Ferry, Fields, French, Garfipld, Goss, Gove, Gravely, Ha*l- sey, Hamilton, Harding, Haughev, Heaton, Higby, Hill. Hooper, Hopkins, Chester D. Hubbard, Hul- burd, Hunter, Ingersoll Jenckes.Alexander 11. Jones, Judd, Julian, Kelleyj KeUogg, Kelsey, Ketcham, Kitchen, Koontz, Laflin, Lash, George V. Lawrence, William Lawrence, Lincoln, Loan, Logan, Lough- ridge, Mallory, Marvin, Maynard, McCarthy, McKee, Miller, Moore, Moorhead, Morrell, Mullins, New- comb, Newsham, Norris, O Neill, Orth, Paine, Per- ham, Peters, Pettis, Pierce, Pike, Pile, Plants, Po land, Polsley, Price, Prince, Raum, Robertson, Roots, Sawyer, Schenck, Scofield, Selye, Shanks, Shella- barger, Starkweather, Stevens, Stewart, Stokes, Stover, Sypher, Taffe, Taylor, Thomas, John Trim ble, Trowbridge, Twichell, tlpson, Van Aernam, Burt Van Horn, Robert T. Van Horn, Van Wyck, Vidal, Ward, Elihu B. Washburne, Henry D. Wash- burn, William B. Washburn, Welker, Whittemore, Thomas Williams, James F. Wilson, John T. Wil son, Stephen F. Wilson, and Windom 150. NOT VOTING Messrs. Adams, Ames, Ander son, Archer, Arnell, Bailey, Blackburn, Cook, Cor nell, Delano, Dockery, Fox, Griswold, Asahel W. rence S. Trimble, Cadwala der C. W~a shburn, Wil liam Williams, and Woodbridge 31. The SPEAKER. On the question, " Shall the vote of Georgia be counted, notwithstand ing the objection of the gentleman from Mas sachusetts? " the yeas are 41, nays 150. The nays have it; and the House of Representa tives have decided that the vote of Georgia shall not be counted. A message will be sent to the Senate informing that body of this ac tion of the House. Mr. BUTLER, of Massachusetts. I move to reconsider the vote just taken ; and I also move that the motion to reconsider be laid on the table. Mr. ELDRIDGE. On that motion I call for the yeas and nays. Mr. BUTLER, of Massachusetts. Rather than lose the time necessary to take the yeas and nays, I will withdraw my motion. Mr. YOUNG. Mr. Speaker, I rise to inquire whether it would now be in order for me to enter my solemn protest in behalf of the peo ple of my State and in the name of the Consti tution and laws of the United States against the action of this House in thus excluding from ULYSSES S. GRANT, PRESIDENT. 291 the electoral college the State of Georgia. That State, sir, has a fall delegation on this floor; her Representatives, of whom I have the honor to be one, were admitted without contest or question. Georgia has performed all the conditions strictly required of her under the reconstruction acts of Congress, and al though she is denied, upon mere technical ob jections, her representation in the Senate, she has vested rights in this House, and she is again a State in the Union, with all the rights and privileges so far at least as her voice may be heard in this matter of any other State. To deny to her now and her citizens the dear est right of freemen, the elective franchise, and especially for the Chief Magistrate of the peo ple, is to strike down the great object and principle of republican government, and fore shadow and promote consolidation and despot ism. I reiterate my solemn protest against such action. Mr. WOOD. I desire to inquire whether any message has been sent to the Senate that we have determined this question with regard to counting the vote of Georgia, and are wait ing for the reassembling of the joint conven tion ? The SPEAKER. A message has been sent to the Senate, communicating the action of the House upon the objection of the gentleman from Massachusetts [Mr. BUTLER]. The Chair has learned informally, not from any official communication from the Senate, that that body has adopted a resolution that the objection was not in order under the joint rule. That action will be communicated to the House for its con sideration. Mr. ELDRIDGE. I would like to inquire of the Speaker whether he is now ready to an nounce what position the House will be in when that fact is officially announced ? The SPEAKER. The Chair is not prepared at present to answer the inquiry. Mr. FARNS WORTH. I desire in view of the statement of the Chair in regard to the ac tion of the Senate, to make one or two inqui ries of the Chair, that the House may under stand this matter. The SPEAKER. The Chair cannot answer any such inquiries until the action of the Sen ate has been officially communicated. The Chair merely stated his informal information. Mr. FARNSWORTH. I desire to inquire whether The SPEAKER. The Chair will decline to answer all inquiries with regard to the action of the Senate until that action has been offi cially communicated. Mr. FARNSWORTH. The point upon which I desire to get the opinion of the Chair is whether it is competent for the House of Representatives, acting separately from the Senate, to rescind or annul the action of the two Houses in the adoption of the concurrent resolution on this subject. The SPEAKER. The Chair declines to an swer that question at present. Mr. PILE. I desire to inquire whether it would be in order to send a messenger to see what has become of the Senate ? The SPEAKER. It would scarcely be deemed respectfvl toward that body. The Senate will communicate its action to the House in its own time. Mr. THOMAS. Mr. Speaker, as other gen tlemen seem reluctant as to how they will extract the House from a very unnecessary entanglement, although unaccustomed to take much part in its proceedings, I have deter mined to submit a proposition. I move to re consider the vote given by the House touching the question mooted by the gentleman from Massachusetts. The SPEAKER. Did the gentleman vote with the majority ? Mr. THOMAS. I did. The SPEAKER. The motion is in order. Mr. THOMAS. If the House will allow me I will for a moment assign a few reasons. The SPEAKER. The question is not de batable under the concurrent resolution of the two Houses. Several MEMBERS. Can we not grant unani mous consent? The SPEAKER. No unanimous consent can waive the action of the two Houses. Mr. BINGHAM. I, desire to make a par liamentary inquiry. Mr. THOMAS. I was about to ask the Chair a similar question. The inclination of my own mind is in that way very strong that it is not competent for the House of Represent atives by a vote of this character to super sede the resolution adopted by the Senate and House concurrently. That resolution fixed the mode of action and prescribed the rule of conduct for the Senate and House in joint meeting. I have no reference to the separate action of this body. The SPEAKER. A reply to that question would involve a discussion of questions prop erly transpiring injoint convention of the two Houses over which the Speaker of this House has no power. Mr. THOMAS. I submit the motion to re consider, and each member can act upon his own responsibility. Mr. DICKEY. I move that the motion to reconsider be laid upon the table. Mr. BENJAMIN". The gentleman from Mas sachusetts made the motion to reconsider, and- it was laid upon the table. The SPEAKER. The gentleman from Wis consin [Mr. ELDRIDGE] having demanded the yeas and nays, the motion was withdrawn. Mr. SCHENCK. Has any message been re ceived from the Senate ? The SPEAKER. None as yet. Mr. BUTLER, of Massachusetts. I demand the yeas and nays. TWENTY-FIRST PRESIDENTIAL TEEM. The yeas and nays were ordered. The question was taken ; and it was decided in the affirmative yeas 117, nays 57, not vot ing 48 ; as follows : YEAS Messrs. Allison, Delos E. Ashley, Bald win, Banks, Benjamin, Benton, Elaine, Blair, Boles, Boutwell, Bromwell, Broomall, Buckley, Benjamin F. Butler, Eoderick K. Butler, Cake, Callis, Church ill, Eeader W. Clarke, Sidney Clarke, Clift, Cobb, Coburn, Corley, Covode, Cullom, Dawes, Deweese, Dickey, Dixon, Dodge, Donnelly, Driggs, Eckley, Eggleston, Ela, Thomas D. Eliot, James T. Elliott, Ferriss, Ferry, French, Goss, Gove, Gravely, Halsey, Hamilton, Harding, Haughey, Higby, Hill, Hooper, Hopkins, Hulburd, Hunter, Ingersoll, Alexander H. Jones, Judd, Julian, Kelsey, Kitchen, Lash, Lincoln, Loan, Logan, Loughridgc, Mallory, Maynard, Mc Carthy, McKee, Miller, Moore, Morrell, Mullins, Newcomb, Newsham, Norris, O Neill, Orth, Paine, Perharn, Pettis, Pierce, Pike,Poland, Polsley, Prince, Eaum, Eobertson, Boots, Sawyer, Schenck, Scofield, Selye, Shanks, Starkweather, Stevens, Stewart, Stokes, Stover, Sypher, Taffe, Taylor, Trowbridge, Twichell, Upson, van Aernam, Burt Van Horn, Eobert T. Van Horn, Van Wyck, Ward, Henry D. Washburn, William B. Washburn, Welker, Whitte- more, Thomas Williams, Stephen F. Wilson, and Woodbridge 117. NAYS Messrs. Axtell, Baker, Barnes, Barnum, Beaman, Beatty, Beck, Bingham, Boyden, Boyer, Brooks, Burr, Gary, Chanler, Eldridge , Farnsworth, Getz, Glossbrenner. Golladay, Grover, Haight, Haw kins, Holman, Hotchkiss, Chester D. Hubbard, Hum phrey, Jenckes, Johnson, Thomas L. Jones, Ketch- am, Knott, Koontz, Laflin, George V. Lawrence, Mar shall, Moorbead, Mungen, Niblack, Nicholson, Phelps, Pile, Pruyn, Eandall, Eoss, Sitgreaves, Smith, Stone, Taber, Tift, John Trimble,Van Auken, Van Trump, James F. Wilson, Windom, Wood, Woodward, and Young 57. NOT VOTING Messrs. Adams, Ames, Ander son, Archer, Arnell, James M. Ashley, Bailey, Black burn, Bowen, Buckland, Cook, Cornell, Delano, Dockery. Edwards, Fields, Fox, Garfield, Griswold, Heaton, Asahel W. Hubbard, Eichard, D. Hubbard, Kelly, Kellogg, Kerr, William Lawrence, Lynch, Marvin, McCormick, McCullough, Mercur, Morrissey, Myers, Nunn, Peters, Plants, Pomeroy, Price, Eob- inson, Shellabarger, Spalding, Thomas, Lawrence S. Trimble, Vidal, Cadwalader C. Washburn, Elihu B. Wasliburne, William Williams, and John T. Wilson 48. So the motion to reconsider was laid on the table. During the roll-call a message from the Sen ate was communicated by Mr. GORHAM, its Secretary, informing the House that that body had resolved that, under the special order of the two Houses respecting the electoral vote of the State of Georgia, the objections made to the counting of the electoral votes of that State are not in order. . Mr. WOOD moved that the roll-call be sus pended for the purpose of admitting the body of the Senate. The SPEAKER. The House has ordered the roll to be called. Upon the entrance of the Senate the Speaker would be obliged to vacate the chair, but even that cannot inter rupt the roll-call ; nothing can interrupt it but the close of a session of Congress. The roll-call having been completed, and the result announced as above, At half-past four o clock the Senate in a body reentered the Hall ; and The PRESIDENT having resumed the chair, said: The objections of the gentleman from Massachusetts are overruled by the Senate, and the result of the vote will be stated as it would stand were the vote of the State of Georgia counted, and as it would stand if the vote of that State were not counted, under the concurrent resolution of the two Houses. Mr. BUTLER, of Massachusetts. I desire to state that the House sustained the objection of " the gentleman from Massachusetts." [Laughter.] I now submit the following reso lution. I do not understand that we are to be overruled by the Senate in that way. [Laugh ter.] Mr. WOOD. I rise to a question of order. The PRESIDENT. The Chair declines to receive the resolution. The tellers will make out the statement of the vote as directed. Mr. BUTLER, of Massachusetts. I appeal from the decision of the Chair to the conven tion. Mr. WOOD. Order ! Mr. BUTLER, of Massachusetts. Let us see whether we have any rights in the House or not. The PRESIDENT. The tellers will make out the statement under the concurrent reso lution as directed. Mr. BUTLER, of Massachusetts. Does the Chair entertain mv resolution ? The PRESIDENT. I do not. Mr. BUTLER, of Massachusetts. Does the Chair entertain the appeal ? Mr. PRESIDENT. No, sir; he does not entertain the appeal. [Laughter.] Mr. BUTLER, of Massachusetts. Does the Chair hold as a matter of order that the Sen ate can overrule this House ? Many MEMBERS. " Order !" " Order !" Mr. BUTLER, of Massachusetts. I do not understand that the representatives of the peo ple who have elected a President can be over ruled. Many MEMBERS. " Order !" " Order !" Mr. BUTLER, of Massachusetts. The ques tion is whether the Senate can overrule an order or a resolution of this House. I know I speak the sentiment of the House. Do I not? Many MEMBERS. " Yes ! " "Yes ! " Mr. BUTLER, of Massachusetts. Now, then, shall we have this unseemly scene Calls to order. The PRESIDENT. No debate is admis sible. Mr. BUTLER, of Massachusetts. I am not debating ; and neither calls to order nor arbi trary proceedings can override the privileges of this House. The PRESIDENT. If the gentleman is not debating he will resume his seat. [Laughter.] Mr. BUTLER, of Massachusetts. I appeal from the decision of the Chair. ULYSSES S. GRANT, PRESIDENT. 293 The PRESIDENT. The Chair will not en tertain the appeal. Mr. BUTLER, of Massachusetts. I appeal from that decision. The PRESIDENT. Nothing is in order but the statement of the vote. Mr. WOOD. Have we a Sergeant-at-Arms attached to this body ? Mr. SHANKS. Will it be in order to ask for the reading of the rule governing this body? The PRESIDENT. It would not be in or der. Mr. ING-ERSOLL. I object to any further proceeding on the part of this body until that appeal is entertained and action is had upon it by this body. [Loud shouts of " Order ! " " Order! " and great confusion.] Mr. OALLIS. Mr. President, I rise to a point of order. I cannot believe that members on this floor are in earnest when they indulge in such undignified Cries of " Order! " "Order! " Mr. ALLIS. If it be in order, I move that this convention now adjourn. The PRESIDENT. That motion is not in order. Mr. FARNSWORTH. I rise to a point of order. Mr. INGERSOLL. I call my colleague to order. Mr. FARNSWORTH. I make the point of order that an appeal cannot be taken from the decision of the President of this body. [Re newed shouts of " Order ! "J The PRESIDENT. There is no appeal en tertained. The gentleman from Massachusetts [Mr. BUTLER] will resume his seat. Mr. BUTLER, of Massachusetts [amid great dproar]. I am in order. I desire the reading of the joint rule upon the subject of counting the votes, which expressly states that a vote cannot be counted unless both Houses concur. I do not know of any power which the Presi dent has to override the rules. [Loud cries of " Order. 1 ] The PRESIDENT. The tellers will perform their duty under the concurrent resolution as directed. Mr. INGERSOLL. I object. The PRESIDENT. The Chair understands that. [Laughter.] Mr. INGERSOLL. Now the Senate can retire and consider that objection. [Laughter and cries of " Order ! "] The PRESIDENT. Order! order! Mr. ELDRIDGE. Would it be in order to have peace ? [Great laughter.] Mr. VAN HORN, of Missouri. I rise to a point of order. Mr. BUTLER, of Massachusetts. I again insist on my appeal from the order of the Chair. The PRESIDENT. The Chair has decided that an appeal cannot be entertained in the joint convention. Mr. BUTLER, of Massachusetts. From that decision I have the honor to appeal. The PRESIDENT. We decide that in the same way. [Laughter.] Mr. VAN HORN, of Missouri. I rise to a point of order, and I wish to state it. The point of order that I make is this, that since the retiring of the Senate upon the objection of the gentleman from Massachusetts [Mr. BCT- LEB] there has been no report made of the action of both Houses upon that subject, and we cannot proceed until a full report is made. The PRESIDENT. The votes have all been counted, and the statement of the result will be made under the concurrent resolution of both Houses. [Loud cries of " No ! " " No ! " and other cries of " Announce the vote ! "] Mr. DRIGGS. I move that the joint con vention adjourn. Mr. BUTLER, of Massachusetts. Let us have the House to ourselves. [Laughter and shouts of " Order ! "] I respectfully move that the Senate have leave to retire. [Renewed laughter and applause in the galleries.] Senator DOOLITTLE. I rise to a point of order. It is that everything except the execu tion of the joint order of both Houses is out of order, and I demand that that order shall now be executed. [Loud shouts of " Order ! " " Order ! " " Announce the vote ! "] Mr. VAN HORN, of Missouri. I demand a decision on the point of order I have made before any other point can be entertained. Mr. DICKEY. I desire to make an inquiry of the Chair, whether it is competent for the Senate to decide points of order for this joint convention ? Mr. INGERSOLL (amid cries of " Order ! " and the greatest confusion). There must be some misunderstanding with regard to the po sition of the question at this time. It is not understood by the House generally. Senator DOOLITTLE. I rise to a point of order. Mr. BENTON. I object. Mr. INGERSOLL. It is not understood. The PRESIDENT. The gentleman is out of order. Senator DOOLITTLE. I ask the Chair to call on the tellers to proceed. [Loud cries of " Order ! " and " The vote ! "] I demand that the tellers shall proceed. [Renewed cries of "Order!" "Order!" and "Announce the vote ! "] Mr. BROMWELL. I rise to ask a question about the order of this proceeding, and I think the Chair will hold it to be a pertinent question. I wish to know, and there are a hundred men here who wish to know, by what authority the Chair makes the ruling denying the right of appeal in this convention from the decision of the Chair? The PRESIDENT. We are proceeding un der a concurrent resolution of both bodies, which has declared how the counting and an- 294 TWENTY-FIRST PRESIDENTIAL TERM. nouncement of the votes shall be proceeded with. Mr. BROMWELL. But does the concurrent resolution of both bodies prescribe who shall determine when that order is executed in or der ? [Cries of " Order ! "] Mr. BANKS. I ask leave of the conven tion to make a suggestion which I think will relieve us from the difficulty in which we are placed. [Shouts of "Hear him!" "No!" " No ! " "Announce the vote I "J Mr. ELDKIpGE. We want a fair fight. If anybody is going to pitch in let us all hav-e a chance. [Laughter.] I object. The PRESIDENT. Objection being made, no debate is in order and the vote will be an nounced. The tellers will proceed with the count. [Cries of "Object!" "The vote!" "The vote!" and great uproar.] Mr. BANKS. I ask leave of the convention to say a word. [Continued uproar.] Mr. WOOD. I hope the Chair will do his duty. I demand a count of the votes. Mr. BUTLER, of Massachusetts. I move that this convention now be dissolved, and that the Senate have leave to retire. [Con tinued cries of " Order !" " Order !"] And on that motion I demand a vote. [Cries of " Or der!" "Order!" from various parts of the Hall.] We certainly have the right to clear the hall of interlopers. The PRESIDENT. The tellers will now de clare the result. Senator CONKLING (one of the tellers) then proceeded to declare the result, amid great noise and disorder, the President en deavoring to maintain order by repeated raps of the gavel. The uproar continuing, The SPEAKER said: The Speaker of the House appeals to members of the House to preserve order. The Sergeant-at-Arms of the House will arrest any member refusing to obey the order of the President of this convention. The PRESIDENT. The tellers report that the whole number of votes cast for President and Vice-President of the United States, in cluding the votes of the State of Georgia, is 94, of which the majority is 148 ; excluding the votes of the State of Georgia it is 285, of which the majority is 143. The result of the vote, as reported by the tellers, for President of the United States, including the State of Georgia, is for Ulysses S. Grant, of Illinois, 214 votes; for Horatio Seymour, of New York, 80 votes. Excluding the State of Georgia, the result of the vote is for Ulysses S. Grant, of Illinois, 214 votes; for Horatio Seymour, of New York, Yi votes. The result of the vote, as reported by the tellers, for Vice-President of the United States, including the State of Georgia, is for Schuyler Col- fax, of Indiana, 214 votes; and for Francis P. Blair, of Missouri, 80 votes. Excluding the State of Georgia, the result of the vote is for Schuyler Coif ax, of Indiana, 214 votes ; and for Francis P. Blair, of Missouri, VI votes. Wherefore, in either case, whether the votes of the State of Georgia be included or ex cluded, I do declare that Ulysses S. Grant, of the State of Illinois, having received a majori ty of the whole number of electoral votes, is duly elected President of the United States for four years, commencing on the 4th day of March, 1869; and that Schuyler Colfax, of the State of Indiana, having received a ma jority of the whole number of electoral votes for Vice-President of the United States, is duly elected Vice-President of the United States for four years, commencing on the 4th day of March, 1869. The object for which the House and Senate have assembled in joint convention having transpired, the Senate will retire to its Chamber. The result of the vote, as announced by the tellers, was as follows : List of Votes for President and Vice- President of the United States, for the Constitutional Term to commence on the 4th of March. 1869. STATES. Number of electoral votes. PBE8IDENT. VICE- PKESIDENT. Ulysses S. Grant, of Illinois. li OD |fc g S 1. SI ll Francis P. Blair, Jr., of Missouri, Maine 7 5 5 12 4 6 83 7 26 3 7 5 5 12 4 6 7 New Hampshire Vermont. 5 5 Massachusetts 12 4 Rhode Island Connecticut New York 6 33 83 7 ""i" 7 ""9" 7 Pennsylvania 26 3 26 7 9 6 9 7 North Carolina 9 6 ""9" 9 6 South Carolina Georgia 8 7 21 11 8 "si" 8 Louisiana 7 ii "2i" 7 "ii" Ohio Tennessee 10 13 16 11 5 8 3 8 8 5 4 3 3 5 3 2 10 13 16 n 5 8 8 8 8 5 4 "s" 5 3 3 10 13 16 11 5 8 Illinois Arkansas Michigan Florida 8 Iowa 8 Wisconsin 8 California ""3" 5 4 "3" ""s" Minnesota Oregon Kansas . West Virginia 5 3 Nebraska 3 Including Georgia Excluding Georgia 294 285 214 214 80 71 214 214 30 71 The Senate accordingly retired from the Hall of the House of Representatives. TJLYSSES S. GRANT, PRESIDENT. 295 The Speaker then resumed the chair and called the House to order. Mr. BUTLER, of Massachusetts, said : I rise to a question of privilege, and offer the follow ing resolution : Resolved, That the House protest that the counting of the vote of Georgia by the order of the Vice-Presi- invasion of the rights and privileges of the House. Mr. HOLMAN". I ohject to the introduc tion of that resolution. The SPEAKER. The gentleman from Mas sachusetts [Mr. BUTLER] claims this to he a question of privilege, and the Chair decides that it is. Mr. RANDALL. I rise to a question of order. The SPEAKER. The gentleman will state his point of order. Mr. RANDALL. My point of order is that this House has no right to make reflections upon the other House. The SPEAKER. The House has the right to adopt such resolutions as it may consider proper when it deems that its rights and privi leges have been infringed upon. The Chair asks permission to make a statement in relation to what occurred in the joint convention, and has created so much feeling. There was no objection. The SPEAKER. The Chair desires to sub mit the history of the joint rules, the apparent conflict in which has produced the excitement in the joint convention of the two Houses. By the Constitution of the United States the President of the Senate presides in joint con vention when the electoral votes are counted. The Constitution proceeds no further; it sim ply provides that "The President of the Senate shall, in the pres ence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted; the person having the greatest number of votes for President shall be President " And " the person having the greatest number of votes as Vice-President shall be the Vice-President, if such number be a majority of the whole number of elec tors appointed." On the 6th day of February, 1865, the two Houses of Congress adopted the twenty-sec ond joint rule, in order, as far as possible, to prevent scenes like those which have occurred in the joint convention just adjourned. The second paragraph of that joint rule reads as follows : " If upon the reading of such certificate by the tellers" This is the certificate of the vote of any State " any question shall arise in regard to counting the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision; and the Speaker of the House of Representatives shall in like manner sub mit said question to the House of Representatives for its decision. And no question shall be decided affirmatively, and no vote objected to shall be count ed except by the concurrent votes of the two Houses ; which being obtained, the two Houses shall immedi ately reassemble, and the presiding officer shall then announce the decision of the question submitted ; and upon any such question there shall be no de bate in either House." If this rule stood alone it would follow ne cessarily that if any objection were made to the counting of any vote from any State of the Union, whether that vote was uncontested or contested, the two Houses must meet in their respective Chambers and without debate decide the question. A few days since, how ever, the same legislative power that enacted this joint rule saw fit to enact another in the form of a concurrent resolution covering part of the precise ground covered by the twenty- second joint rule. This was adopted in both branches upon the yeas and nays with direct reference to the joint meeting which has just been held. The Chair, though not a lawyer, supposes it to be one of the fundamental prin ciples of legal interpretation that when there are two statutes bearing upon any question, and it is impossible to reconcile them, the later statute must have the prevailing force. If they can be reconciled, they must both stand. The same bodies which enacted the twenty- second joint rule adopted, on votes by yeas and nays in both branches, a concurrent reso lution, the preamble to which has been over looked amid the feeling which has grown up in the joint convention. The twenty-second joint rule provided that " if upon the reading of any such certificate," that is the certificate from any State, " any question shall arise in regard to counting the votes therein certified, 1 a certain procedure shall then follow. The concurrent resolution, however, adopted with in the last few days lays down a different rule in regard to one State, and in the opinion of the Speaker of the House takes that State out of the operation of the twenty-second rule. The Chair thinks it was intended to be taken out, that intelligent gentlemen in voting for it intended to withdraw the State of Georgia from the operation of the twenty-second joint rule; otherwise, as the Chair will show, it would in the concluding part be an absurdity. The preamble to this concurrent resolution reads as follows : " Whereas the question whether the State of Geor gia has become and is entitled to representation in the two Houses of Congress is now pending and undetermined " That apparently being a fact within the knowledge of members of both branches of Congress " and whereas by the joint resolution of Congress passed July 20, 1868, entitled A resolution exclud ing from the electoral college votes of States lately in rebellion, which shall not nave been reorganized, it was provided that no electoral votes from any of the States lately in rebellion should be received or counted for President or Vice-President of the United States until, among other things, such State 296 TWENTY-FIRST PRESIDENTIAL TERM. should have become entitled to representation in Congress, pursuant to the acts of Congress in that behalf: Therefore, Resolved by the Senate {the House of Representa tives concurring), That on the assembling of the two Houses on the second Wednesday of February, 1869, for the counting of the electoral votes for President and Vice-President, as provided by law and the joint rules, if the counting or omitting to count the elec- oral votes, if any, which may be presented, as of the State of Georgia, shall not essentially change the result, in that case they shall be reported by the President of the Senate in the following manner: This is the language which the resolution commands shall be uttered by the mouth of the President of the Senate : " Were the votes presented, as of the State of Geor gia, to be counted, the result would be, for for President of the United State, votes : if not counted, for for President of the United States, votes ; but in either case is elected Presi dent of the United States: and in the same manner for Vice-President." This concurrent resolution, adopted by the same legal authority which adopted the joint rule, declares in its preamble that it is a fact apparent to Congress that it is a grave ques tion whether the State of Georgia is entitled to representation ; that that question is unde termined ; and that therefore, when the two Houses shall assemble, " as provided by law and by the joint rules" then if the counting, or the omitting to count, the electoral votes of Georgia shall not affect the result, the result shall be announced by the President of the Senate in a form of language which he is im peratively required to adopt. The President of the Senate has complied with the law which the two Houses laid down for him. In the opinion of the Chair, he would have been subject to the censure of the two Houses if he had not complied with the law which these bodies laid down for the performance of his duties in joint convention. The Chair en tertained the objection of the gentleman from Massachusetts [Mr. BUTLER] when the Senate retired, because the Senate retired upon the ruling of their own President. But the Chair thinks that in the subsequent proceedings of the joint convention the President of the Sen ate complied exactly with his oath and his duty under the joint rules and the concurrent resolution, the latter being the later, and, so far as it differs from the other, qualifying and repealing it. Mr. BUTLER, of Massachusetts. Mr. Speaker, I desire now to address the House for a few moments on my resolution. The SPEAKER. The question is debatable. Mr. SPALDING. I hope the gentleman from Massachusetts will yield for a motion to adjourn. Mr. BUTLER, of Massachusetts. No, sir. There is no time like the present to settle a great question like this. Mr. SPALDING. I move that the House do now adjourn. Mr. BUTLER, of Massachusetts. No, sir ; I do not yield for that motion. Mr. DRIGGS. I hope the resolution which the gentleman from Massachusetts has offered will be again read, so that we may see what is before the House. The resolution was again read. Mr. FARNSWORTH. I rise to a question of order. I desire to know whether it is not in the power of the House to decide whether that shall be entertained as a question of privi lege or not. The SPEAKER. It was, if the Chair hud submitted it to the House ; but it has already been decided to be a question of privilege. Mr. ELDRIDGE. I appeal from that deci sion of the Chair. The SPEAKER. The Chair declines to en tertain the appeal on the well-^nown ground that when a point of order is once decided it cannot be again renewed. When a point of or der is once decided it cannot be again renewed, although additional reasons may be assigned for it. Mr. FARNSWORTH. I withdrew the point of order because the Chair wished to make a statement. The SPEAKER. It is too late now : and the Chair, after making his own statements, would not like to see the gentleman from Mas sachusetts deprived of the privilege of replying to him. Mr. BUTLER, of Massachusetts. I ask the privilege of the House, Mr. Speaker, that dur ing the remarks which I propose to submit I shall not be interrupted, and for this reason : the point which is now before the House is as grave a one as ever came to be settled by any legislative body. Whatever our feelings may be, under what we deem to be a gross invasion of our privileges of natural and ordinary heat arising from such oppression, I trust that the few moments elapsing after the deed has been done are sufficient to allow us to bring our minds calmly, coolly, and dispassionately to see the exact merits of the question. Allow me to premise, sir, that I think this resolution stands outside of all the remarks of the Speaker of this House. Even if the Vice-President were right in doing what he did, yet, for the manner in which he did it, we are without re dress, and if he were wrong it was the great est outrage upon the rights and privileges of this House. Now, Mr. Speaker, let us see exactly where we stand. The Constitution of the United States says that the President of the Senate shall open in convention all of the votes of all of the States, and they shall therein be count ed, and it is as impossible for this House or the Senate, either jointly or separately, in con currence or otherwise, to stop the operation of that constitutional enactment as it is to turn back the sun in its course ; for, as you will see, sir, we stand in this position : if the House and the Senate, by joint action before had, can determine what votes shall be counted and what votes shall not be counted, then the ULYSSES S. GRANT, PRESIDENT. 297 House and the Senate can determine who is and who is not to be the President of the United States, and who is and who is not to be the Vice-President of the United States. The SPEAKER. The gentleman will yield to receive a message from the Senate of the United States. Mr. BUTLER, of Massachusetts. I do not know whether I should or not. A message was received from the Senate, by Mr. McDoxALD, its Chief Clerk, notifying the House that the Senate had passed a resolution for the appointment of a committee of one on its part to join such committee as may be ap pointed on the part of the House to wait upon U. S. Grant, President-elect of the United States, and also upon Schuyler Colfax, Vice- President-elect of the United States, and in form them of their election, and have appoint ed Mr. MOETOX, of Indiana, as such committee on its part. Mr. BUTLER, of Massachusetts. You will see in a moment, Mr. Speaker, that whether the vote of Georgia is counted or not at this time makes no difference ; but if this House and the Senate can say that such a State shall be counted, and such a State shall not be counted, it is within the power of the House and the Senate to say who shall be President and who shall not be President. Nay, more ; if it is in the power of the House of Representa tives to make a rule that no vote of a State shall be counted unless both the House and the Senate agree together, then it puts it in the power of either House to determine who shall be President of the United States, and from jthis day henceforth there can be no election : whenever the House and Senate are opposed ito each other. Think of it a moment, gentle- imen. Suppose a case of a presidential elec- ition when the House is one way and the Sen- jate another. Under that joint rule, which is constitutional and operating, the House will say, " We will not have the Republican | votes counted," and the Senate will say, " We jwill not have the Democratic votes counted," :and there is an end to the proceeding of the (election. Now, then, what did the Constitution jmean ? It meant that a convention should come {together of the two Houses. What is meant jby that convention? It is claimed on the part of the Senate that they sit in the conven tion as an independent body, and in deference bo their claim of privilege because they are a ?mall body, and by practice their votes would pe overthrown we have permitted heretofore }y the rule that all questions should be con sidered in the separate bodies. ! The SPEAKER pro tempore (Mr. DAWES in ;he Chair). The House will preserve order. I Mr. BUTLER, of Massachusetts. I am sorry io speak when gentlemen have so little dispo- ition to hear ; but still I must do my duty, vhatever it is. Mr. JONES, of Kentucky. Is it in order to aise a question of order ? T/ie SPEAKER, pro tempore. It is. Mr. JONES, of Kentucky. I protest that this is not a question of privilege. Every mem ber in this House will have a right to discuss the matter the gentleman is discussing. The SPEAKER pro tempore. The Speaker has already decided this to be a question of privilege, and it has been already entertained as such by the House. Mr. JONES, of Kentucky. I insist, then, that the gentleman is not arguing a question of privilege which he has raised, but is dis cussing the question whether the electoral vote of Georgia ought to be counted or not. The SPEAKER pro tempore, The gentle man from Massachusetts will proceed. Mr. SPALDING. Mr. Speaker, is it in or der to move to go to business on the Speaker s table ? If so I make that motion. The SPEAKER pro tempore. The gentle man from Massachusetts is entitled to the floor, and declines to yield to any one. Mr. SPALDING. I supposed as he took me off the floor the other day by that motion that I could do the same with him. Mr. BUTLER, of Massachusetts. It is not after the morning hour. The SPEAKER pro tempore. It is only after the morning hour that that rule prevails. Mr. FARNSWORTH. I want to get the permission of the House that there shall be no further business transacted to-night. The SPEAKER pro tempore. Does the gen tleman from Massachusetts yield for that mo tion? Mr. BUTLER, of Massachusetts. I have asked that I may not be interrupted. Mr. FARNSWORTH. Then the gentleman can speak without interruption. The SPEAKER pro tempore. Does the gen tleman decline to yield to take the sense of the House whether there shall be any further busi ness transacted to-night ? Mr. BUTLER, of Massachusetts. I have over and over again said I decline to yield. My friend may go if he does not want to hear me. Mr. FARNSWORTH. I do not understand what the gentleman Calls to order. Mr. BUTLER, of Massachusetts. I was about saying when I was interrupted that this therefore becomes a question of great gravity, because while the Speaker has thought that the action of the President of the Senate was right, admitting that for a moment, what could have happened if he had been wrong, as I be lieve him to have been ? What redress had we suppose he had declared, standing in his place, Horatio Seymour President of the United States against our protest ? He might have done that just as well as what he did do, and we should have been as powerless under the Constitution as we are now, with nothing left to us but the great right of revolution. The, same arbitrary proceeding ; the same crowding 298 TWENTY-FIRST PRESIDENTIAL TERM. down of the Representatives of the people ; the same I do not want to use an unparliamen tary word the same exercise of arbitrary, des potic, monarchical power which he put upon the Representatives of the people could just as well have declared Horatio Seymour President of the United States, and there would have been no redress under the Constitution and within the rule. Now, suppose that the Senate had gone to their Chamber after the votes of New York and New Jersey, which gave a majority for Seymour, had been counted, and had decided that the votes of no more States should be counted, and having so decided had ordered their President to take the stand there with the gavel in his hand and pound down every body else until he had declared that, by all the votes counted, Horatio Seymour was elect ed President of the United States; and when ever you get a Senate opposed to the House and opposed to the action of the people, when there can be any pretext whatever for doing it, from that moment, under this precedent, unless the House asserts its privileges, our lib erties and the liberties of this country are gone, and we are in the hands of the executive body known as the Senate of the United States. Now, then, let us see where we are. Let us take a point of departure ; and I call atten tion to it because I saw an act on the part of the Speaker which, while well intended, and which I have no doubt proceeded from his convictions of duty, and which, therefore, I do not personally criticise, yet suppose when the President of the Senate hereafter, of whom I have been speaking, shall make the declaration that a Vice-President is elected who is not really elected, and that Vice-President shall happen to be the Speaker of the House, he then orders the Sergeant-at-Arms to stifle the voice of the people s Representatives in order to secure his own election! Mr. COLFAX (the Speaker). Does the gen tleman desire a reply ? Mr. BUTLER, of Massachusetts. No, sir. Mr. COLFAX. He does not. Mr. BUTLER, of Massachusetts. I am only putting a question, not in any manner criti cising, and the reason why I do not desire a reply is that I do not want to be misunder stood by admitting that my words need a per sonal reply. I said at the beginning that the Speaker did exactly what he believed to be his duty, and I do not think that he was influ enced one hair, because he could not doubt that he was the choice of the people, and that under no circumstances would the people per mit that choice of theirs to be overridden ; and, therefore, he had not a single personal thought in the matter. And the reason why I do not allow him to reply was that I would not, by allowing a reply, be thought for a mo ment to be attacking his position. But I put it to his own good sense and I would as lief argue to that as to any other judge on earth suppose we had had a man who was doubt ful whether he was elected by the voice of the people for it may be that next time our then Speaker is the man who is to be President and he can by the gens d armerie of the House, by the constabulary of the House, check the voice of the people through their Representa tives, and allow the President of the Senate to declare a man elected who was not elected ! I am speaking of a supposed case only, and one which I wish, in every form that words can state it, to divorce the Speaker from, be cause he did, I have no doubt, what he thought was right to be done. And I call his attention to the fact that the moment he made that de cision which was a decision within his power to make and within the proprieties of his position to make I call upon him to notice that from that moment I took my seat and did not interfere with the proceedings, because I yielded to his authority as I always have done and always have been happy to do. But I am only showing the danger and showing the necessity that there is that this House should assert its privileges for the safety of the nation and for the liberties of the people. Now, then, let us come directly to what was done. The House and Senate passed a joint rule, the twenty-second; and having passed that joint rule, there was thought to be neces sary on the part of the Senate a resolution that the vote of Georgia should not be counted because of its want of capacity as a State, that being put in a preamble. It was agreed to for that reason and provided that the State of Georgia should not be counted except in a given way. I say I think it wholly unparlia mentary and wholly unconstitutional. 1 think that concurrent resolution had not any more force and effect than the blank paper it was written on. I cannot but remember that it was put through the Senate with very little debate, that it was put through this House at night without a single word of debate, under a suspension of the rules and without anybody knowing what it was. Mr. ELDRIDGE. And a large portion of the House absent. Mr. BUTLER, of Massachusetts. Nearly one-half of the House were absent ; one hun dred and seven members. Now, under these circumstances, what happened ? We came into this joint convention, and in the first place an objection was made to counting the vote of Georgia for reasons that were wholly outside of that stated in the concurrent resolution. The first and last grounds of the reasons which I assigned for that objection are wholly outside of that concurrent resolution. That objection having been made, the President of the convention ruled that it was well taken, and he took the Senate with him over to their Chamber to consider upon what ? What the joint rule styles " an objection stated in the convention." And they had no right under the rule to consider any other question. After ULYSSES S. GRANT, PRESIDENT. 299 the Senate had retired the Speaker took the chair, and very properly put before the House the objection which had been made in joint convention. Why did not the Speaker then say to us, " Gentlemen, you cannot vote upon this objection. You have tied your hands in regard to it; you cannot consider it for a moment. You must count the electoral vote of Georgia, although the chairman of her electoral college had his hands dripping with the blood of our soldiers. We are bound to receive the vote of an unreconstructed State, with her electors still unregenerated and un- purged of every crime known to the Deca logue." That is, in fact, what this concurrent resolution says. It says that we have no power to prevent the vote of Georgia being counted. Why? Because it may make no difference in the result. And that brings me to another proposition to which I wish to call the attention of the House. Heretofore, from the time the first electoral vote was counted down to to-day, the States have been called in one or the other of two regular orders; either in alphabetical order or after the original thirteen in the order of their admission into the Union. But to-day the States were called for the first time in all sorts of order, if order can be said to be where order there was none. The State of New Hampshire was called before Maine, Maine before Minnesota, and so on in every possible way. And the State of Georgia was called last, so that it might be known whether ! the counting of the vote would make any dif- ference in the result. No man could know I officially and legally the fact we were here j officially and legally to ascertain had Georgia | been called in her regular place ; no man could tell whether on opening the rest of the envelopes that we should not find the majority of the votes to be the other way. So, Georgia was cut loose from the rest and put off till the last. Very well ; when the objection to counting the vote of the State of Georgia came to be submitted to the House, every loyal member of this House on the Republican side, and some I grant of the loyal men on the other side, at least I hope so, voted that under the circumstances the vote of Georgia ought not to be counted. And had^her vote been for Grant and Golfax I would not have counted it j as soon as when it was given for the other j side. We therefore voted that her vote was ; not to be counted. We had a joint rule which it is said is wrong. If it was wrong, then this | concurrent resolution was wrong. If this con- ! current resolution is right, then the joint rule i is right ; which says that the vote of no State ; can be counted if it is objected to by either House. The Speaker has told us that the ; President of the convention was right in ! counting the vote of Georgia, although the House protested against it, because the concur rent resolution of the two Houses directed him so to do. Now, what is the force of a concur rent resolution? It is a declaration that the two Houses, at the time of its passage, con curred in a certain act or declaration. Now, after we have concurred in a resolution cannot we non-concur and rescind it, at least so far a3 we are concerned? And did we not non-con- cur and rescind that concurrent resolution when we voted that the vote of the State or Georgia should not be counted? I put that as a question of parliamentary law to the Speaker. We first concurred with the .Senate that the vote of Georgia should be counted in a certain way. After a time, while acting as part of the convention, we changed our opinion, and told the Senate that we had non-concurred in that resolution, and had voted, three to one, to re verse our former action. If we have no power to do that, then I ask gentlemen here where are we? Then the House has lost its share of control over the Government ; it never can rescind this concur rent resolution ; it never can rescind this joint rule, I mean. I do not mean the concurrent resolution about the State of Georgia, but the joint rule in regard to the vote of any State to the counting of which either House shall ob ject, without leave of the Senate. Now, I have here a resolution that that joint rule, so far as this House is concerned, shall be re scinded ; but if the ruling is correct then we never can rescind it. As a part of the conven tion we rescinded the concurrent resolution when we said that the vote of Georgia ought not to be counted under any circumstances. Mr. FARNSWORTH. Will the gentleman allow me to ask him a question ? Mr. BUTLER, of Massachusetts. No, sir. I cannot permit myself to be interrupted just now. Mr. FARNSWORTH. I advise the gentle man not to do so. Mr. BUTLER, of Massachusetts. I take the gentleman s advice for what it is worth noth ing more. Mr. FARNSWORTH. My question might expose the fallacy of the gentleman s argu ment. Mr. BUTLER, of Massachusetts. The gen tleman shall have ample time to do that. Mr. Speaker, as I was saying, if we cannot rescind that resolution, there it stands. If the Senate can always control, as they did to-day, by instructing their President what to do, where are we then? They instruct him before he comes in here; and when he comes here he takes the gavel and stands there, and we can not appeal from his decision. We cannot even clear out our House so as to proceed with our deliberations by ourselves. He must remain there shouting " Order! " until they shut us up. The Senate, having got into our Hall, hold themselves here, and a motion is not even en tertained to dissolve the convention. In other words, the convention can be dissolved only by the order of the Senate, and not by the or- 300 TWENTY-FIRST PRESIDENTIAL TERM. der of the House, because the convention hap pens to be held in the Hall of the House. The Senate can retire whenever they please, but we cannot get them out till they want to go. Am I not right in this ? Is there any escape from this conclusion ? When the President of the Senate refused to entertain my motion that the Senate have per mission to leave, I asked and I saw that it grated on the feelings of some gentlemen whether we had not the right to clear our Hall. All I meant was that we had the right to inform the Senate that we wanted our Hall ourselves ; that they have no greater right here than we have, and I think it was the duty of the presiding officer to put the motion. The Senate had no business here any longer when we of the House desired the use of our Hall for the purpose of consultation. If the Presi dent of the Senate will not put the motion for the Senate to leave; if they will not leave on so broad a hint as I gave them ; if the Speak er will not turn them out, how are we ever to get rid of them ? And there is no appeal ! there is nothing to be said ! Thus there has been brought about this shameful spectacle that when we have a President and Vice - President elected with more unanimity than almost any of their pred ecessors, instead of the result being announced amid the pa3ans and shouts of an applauding people, the Presiding Officer of the Senate, in conjunction with that body, commits a gross violation of the rights of this House, and the declaration is made amid confusion and per sonal conflict. The only thing that ought to have been done under such circumstances is, it seems to me, illustrated in the history of the British Parliament in olden times. When they had a Speaker who, at the command of the court, insisted that he would adjourn by leaving the chair, how did they prevent it? They placed their strong men there to hold him down, so that he should not get out. We in this case had only to reverse the process. We had our strong men ; and why should we not have followed that old precedent of parliamen tary history ? Who is responsible for all this ? I will tell you. It was the Presiding Officer of the Senate, and the Senate sustaining him, who were trampling upon our rights. And when the rights of the people are trampled upon in my person, I give ample notice that there will be at least a noise. [Laughter.] If I cannot speak in an orderly and proper man ner, I will speak in a disorderly and improper manner. I will speak somehow ; I will not be silenced. And I ask that this House shall now express its sense of this breach of its priv ileges. Mr. Speaker, I trust I have not given even a strained version of this affair. Now, what is our remedy ? I have not offered this reso lution with the expectation of passing it to- niirht; because I do not want anything done under heat ; I do not want anything done without great care. I have no doubt that this House would now vote almost nem. con. that this was a gross outrage on the privileges of the House. But what do I propose by this resolution and by another which I hold in my hand, providing that the joint rule be abro gated ? I propose that the subject shall be re ferred to a select committee of five or seven, as the House may please, that they may at once proceed to examine and to report by bill or otherwise what action the House shall take for the purpose of preserving its rights and privileges and giving a proper construction of the Constitution, in order that this unseemly and disgraceful scene (whoever may be respon sible for it) may never be repeated in this joint convention of the two Houses. Mr. Speaker, I wish to modify my resolution by adding the following additional resolutions: , Resolved, That the twenty-second joint rule of the House and Senate be, and hereby is, rescinded on the part of the House. Resolved, That the resolutions now pending be, and are hereby, referred to a select committee of five, with leave to report at any time. I now yield the remainder of my time to the gentlemen from Ohio, who, I understand, wishes to be heard on this question. Mr. COLFAX (Speaker of the House). I ask the gentlemen from Ohio to yield to me for a short time? Mr. SHELLABARGER. Certainly, with pleasure. Mr. COLFAX. I acknowledge, Mr. Speaker, my surprise when directly referred to by the gentlemen from Massachusetts in the case which he propounded as a hypothetical case, and when 1 asked of him the poor courtesy of replying at the moment, he declined to yield me the floor. Mr. BUTLER, of Massachusetts. And he gave the reasons for so declining. Mr. COLFAX. Now, sir, there are various ways of attacking a person. It may sometimes be by the charge direct, and sometimes by charging what might be done by him in the future. The gentleman from Massachusetts is master of both methods, and if in the remarks which the members of this House will read in the Globe in the morning he did not allude hypothetically to ^what might occur, when, as Vice-President of $he United States, I may be called upon, sitting in that chair, presiding over the joint convention of the two Houses, to count the votes for President and Vice-President of the United States, after the next presidential election, then I did not understand the language which fell from his lips. Mr. BUTLER, of Massachusetts. Just the contrary. Mr. COLFAX. I yield to the gentleman, although he declined to yield to me. Mr. BUTLER, of Massachusetts. I told the gentleman I did not refer to him LypQtheti- cally. I had not the gentleman in my mind at all, as I now assure him upon my honor. ULYSSES S. GRANT, PRESIDENT. 301 Mr. GOLF AX. I accept the explanation of the gentleman from Massachusetts, and I am glad to find that I was mistaken, although I listened attentively to his language and his similes. A word in reference to the question which has arisen between the two Houses. It will not be long before I rnusS leave this Hall, and the earnest warning which I would now ad dress to my fellow-members is to avoid as far as possible any conflict between the two branches of Congress, in whose hands has been confided by the Constitution and the peo ple the legislative power of this Government. If it be apparent that duties have been per formed in conformity to the law standing on the statute-book, then I pray you beware how this House, or any member of the House, goes down to the coming generations of the future as voting in favor of an unjust resolution of condemnation. Now. sir, this case is all in a nut-shell. The Constitution of the United States declares that the President of the Senate, in presence of the Senate and House of Representatives, shall count the votes and declare the result. If there had been no other rule that power would have been absolute in the hands of the Vice- President. We saw that in 1856, when the question arose as to whether the electoral vote of the State of Wisconsin should be counted or thrown out. In that case the electors were prevented from meeting on the day fixed by law by a severe snow-storm, but they met on the succeeding day and cast their votes. I re- I member the scene well which took place in the old hall, but I will not take up the time of the House by describing it. Subsequently, in 1865, i in consequence of the troublous condition of j the country and the disorganized condition of many of the States, and in order that there might be no difficulty in reference to counting the votes, it was decided to adopt this joint rule, which declares that whenever the vote of any State is objected to by any person the two branches should retire each to its own Chamber, there to decide upon the question. That rule gave Congress the power which it has this day exercised. I believe it to be con stitutional and wise. Subsequently to this, within two or three days of the time we are sitting here in this brilliantly lit hall, Congress i thought the case of Georgia was an exception | to the cases covered by the twenty-second rule, I and it deliberately declared that Georgia was i on a different footing, and passed a concur- j rent resolution for which I believe the gen tleman himself voted by which the President of the Senate is commanded to do certain things, and the very words which are to be i used are placed in his mouth. And it declares ; in that concurrent resolution which was adopted i with the vote of the gentleman himself in favor ! of it, if I am not mistaken Mr. BUTLER, of Massachusetts. I voted only for the suspension of the rules. Mr. WOODWARD. If the gentleman from Massachusetts was not here when that vote was taken, he ought to have been so as to have made the argument he has made to-day. [Laughter.] Mr. COL-FAX. The two Houses adopted that resolution declaring that when they came together in this Hall in conformity to the laws and to the joint rule of Congress, then if the vote of the State of Georgia did not affect the result the President of the Senate should . say exactly what he did say. Now, it seems to me there is nothing clearer than the language of that rule, and I was surprised when I heard the supplemental argument of the gentleman from Massachusetts, in which he said that by the action of this House sending over its message to the Senate that it did not wish the vote of Georgia to be counted, abrogated the joint rule. I have never heard before that one House could abrogate a joint rule mafde by both Houses. Mr. WOODWARD. I beg leave, with the permission of the gentleman, to correct a mis take into which I have fallen. The yeas and nays do show that the vote of the gentleman from Massachusetts was given on the question referred to. Mr. GOLF AX. The gentlemen says he did vote. That is immaterial. Mr. BROMWELL. I would like to ask a question. Mr. COLFAX. The gentleman will permit me to finish what I have to say ; I wish to add only one further remark. It is impossible in a joint convention that there should be an appeal from the ruling of the Chair, because it could not be entertained by the presiding officer. There never has been an appeal in any joint convention of Congress. It might have been provided for in the rules, but has been omitted. Under the twenty-second joint rule, when the vote of any State is objected to the Senate must retire and each House must vote upon the question. But the two Houses, with the full knowledge of that rule, by a de liberate vote took the case of Georgia outside of that joint rule and laid down a specific rule for that case ; and the vote of that State was accordingly withheld until the last, so that the concurrent resolution, which was a command to the President of the Senate, should be car ried out. There can be no appeal on a point of order in a joint convention of the two Houses, for the reason that, the Senate repre senting the States, and the House of Repre sentatives representing the people of the Unit ed States, the convention is made up of differ ent persons, each body representing the same number of people, but by different numbers and in different ways. Mr. BUTLER, of Massachusetts. Will the gentleman allow a question ? Mr. COLFAX. Certainly. Mr. BUTLER, of Massachusetts. In a case of an election of a Senator of the United States, where it is provided that it shall be done in 302 TWENTY-FIRST PRESIDENTIAL TERM. joint convention of the House of Assembly and of the Senate, where they go on and vote day by day until a Senator is elected, is there no appeal provided ? Mr. COLFAX. The case is not analogous ; therefore I do not answer it. I only have to say, in conclusion, that I regret to have occu- Eied the time of the House. It is probably the ist time I shall have occasion to do so until I shall, on leaving the Chair, make my brief valedictory remarks. The electoral vote has been counted in accordance with the require ment of your own concurrent resolution. The President of the Senate uttered the very words you by your votes commanded him to utter. The vote of Georgia did not affect the result. The President rose and declared ex actly what both branches of Congress ordered him to declare. I appeal to you, Representa tives, on no sudden excitement as this, to put upon your Journal a record that will not stand the test and scrutiny of the people, nor of your own private judgment in the cooler period that will come to you hereafter. Mr. SHELLABARGER resumed the floor. Mr. WOOD. Will the gentleman yield to me to move that the House adjourn ? Mr. SHELLABARGER. I decline to yield. Mr. ALLISON. I appeal to the gentleman to yield for that motion. Several MEMBERS. Oh, no. Mr. SHELLABARGER. I will yield for the purpose of ascertaining the pleasure of the House in regard to the matter of adjourn ment, provided I do not lose my opportunity to have the floor. The SPEAKER pro tempore. The gentle man does not lose his right to the floor. Mr. ALLISON. I move that the House do now adjourn. The question being put ; there were ayes, 83, noes, 62. Mr. FARNSWORTH. I demand the yeas and nays. The yeas and nays were ordered. Several MEMBERS. Withdraw the motion. Mr. ALLISON. I do not propose to with draw the motion to adjourn unless there is some arrangement made by which we may understand how long the debate is to last and who is to have an opportunity of discussing this question. It cannot be disposed of to night, and I do not withdraw the motion. Mr. JONES, of Kentucky. I rise to a ques tion of order. It is this : the gentleman from Massachusetts [Mr. BUTLER] took the floor upon a question of privilege, and the gentle man from Ohio [Mr. SHELLABARGER] has no right to the floor unless he takes it, as the gen tleman from Massachusetts did, on a question of privilege. The SPEAKER pro tempore. The Chair overrules the point of order. The question was taken on Mr. ALLISON S motion; and it was decided in the affirmative yeas 104, nays 42, not voting, 76 ; as fol lows: YEAS Messrs. Allison, Ames, Delos R. Ashley, James M. Ashley, Baker, Barnes, Barnum, Beatty, Bingham, Blair, Boles, Boutwell, Boyer, Bromwell, Brooks, Broomall, Buckland, Buckley, Roderick R. Butler, Chanler, Churchill, Sidney Clarke, Cobb, Coburn, Cullom, Dawes, Dixon, Dockery, Dodge, Eckley, Edwards, Eldridge, Thomas I). Eliot, Fer- riss, Garfield, Gollnday, Gove, Haight, Haughey, Hawkins, Higby, Hill, Hopkins, Hotchkiss, Jenckes, Johnson, Thomas L. Jones, Kelley, Kerr, Ketcham, Koontz, Laflin, Lash, George V. Lawrence, William Lawrence, Loan, Mallory, Maynard, McCarthy, Mor- rell, Mungen, Niblack, Nicholson, Norris, O Neill, Orth, Pettis, Phelps; Pike, Pile, Poland, Polsley, Pruyn, Randall, Raum, Ross, Schenck, Scofield, Selye, Shellabarger, Smith, Stewart, Stokes, Stone, Stover, Taber, Taylor, Thomas, Tift, Trowbridge, Twichell, Upson, Van Trump, Henry D. Washburn, William B. Washburn, Welker, Whfttemore, Thom as Williams, Stephen F. Wilson, Windom, Wood, Woodbridge, Woodward, and Young 104. NAYS Messrs. Banks, Beaman, Benton, Blaine, Burr, Cake, Clift, Covode, Deweese, Dickey, Don nelly, Driggs, Ela, Farnsworth, Ferry, Fields, French, Getz, Gravely, Halsey, Hamilton, Heaton, Holman, Humphrey, Hunter, Ingersoll, Alexander H. Jones, Julian, Miller, Mullins, Perham, Peters, Robertson, Roots, Sawyer, Shanks, Starkweather. Stevens, Taffe, Van Auken, Burt Van Horn, ana Robert T. Van Horn 42. NOT VOTING Messrs. Adams, Anderson, Arch er, Arnell, Axtell, Bailey, .Baldwin, Beck, Benjamin, Blackburn, Bowen, Boyden, Benjamin F. Butler, Callis, Cary, Reader W. Clarke, Cook, Corley, Cor nell, Delano, Eggleston, James T. Elliott, Fox, Glossbrenner, Goss, Griswold, Grover, Harding, Hooper, Asahel W. Hubbard, Chester D, Hubbard, Richard D. Hubbard, Hurlburd, Judd, Kellogg, Kel- sey, Kitchen, Knott, Lincoln, Logan, Loughridge, Lynch, Marshall, Marvin, McCormick, McCullough, McKee, Mercur, Moore, Moorhead, Morrissey, Myers, Newcomb, Newsham, Nunn, Paine ? Pierce, Plants, Pomeroy, Price, Prince, Robiuson, Sitgreaves, Spald- ing, Sypher, John Trimble, Lawrence S. Trimble, Van Aernam, Van Wyck.Vidal, Ward, Cadwalader C. Washburn, Elihu B. Washburne, William Wil liams, James F. Wilson, and John T. Wilson 76. So the motion was agreed to ; and thereupon (at five o clock and fifty minutes p. M.) the House adjourned. IN HOUSE OF REPRESENTATIVES. Thursday, February 11, 1869. ("Congressional Globe," 40th Cong., 3d Session, pp. 1094-1108.) The SPEAKER. The House resumes the consideration of the question of privilege pend ing at the adjournment yesterday, being the following resolutions offered hy the gentleman from Massachusetts [Mr. BITTLEE] : Resolved, That the House protest that the counting of the vote of Georgia by the order of the Vice- President j?ro tempore was a gross act of oppression, and an invasion of the rights and privileges of the House. Resolved, That the twenty-second joint rule of the House and Senate be, and hereby is, rescinded on the part of the House. Resolved further, That the resolutions now pend ing be, and are hereby, referred to a select com mittee of five, with leave to report at any time. ULYSSES S. GRANT, PRESIDENT. The gentleman from Ohio [Mr. SHELLABAE GEE] is entitled to the floor for fifty minutes of his hour. Mr. ELIOT, of Massachusetts. Is it in order to move that the consideration of this subject be postponed until after the morning hour? The SPEAKER. The Chair will state that if it were postponed the next question would be on the demand for the previous question made by the gentleman from New York [Mr, MCCARTHY] on the passage of the Washington and New York air-line railroad bill, so called. Mr. ELIOT, of Massachusetts. And after that the morning hour ? The SPEAKER. After that the morning hour. Mr. HOLMAN. I call for the regular order of business. Mr. ELIOT, of Massachusetts. I ask the gentleman from Ohio [Mr. SHELLABABGEE] to yield to me to move to postpone the consider ation of this subject until after the morning hour. Mr. FARNSWORTH. I hope the House will dispose of this question and have an end of it. Mr. ELIOT, of Massachusetts. Very well, sir. The SPEAKER. Before the gentleman from Ohio [Mr. SHELLABABGEB] proceeds, the Chair desires to state that he has asked the gentle man from Massachusetts [Mr. DAWES] to pre side while the question of privilege now before the House is under consideration. The Chair has decided that the resolution of the gentle man from Massachusetts [Mr. BUTLEB] involves a question of privilege, because it asserts that the privileges and rights of the House have been infringed. But the presiding officer of this House, as a member upon the floor, has expressed his opinion that no privilege of the House was invaded, and that the President of the joint convention did only what he had been commanded to do by the concurrent resolution of both Houses. Before he leaves the Chair, the Speaker will ask the House to grant authority to the Speaker pro tempore to appoint the members on the part of the House of the joint com mittee to inform the President and Vice-Presi dent-elect of the result of the counting of the electoral votes by the two Houses assembled yesterday in joint convention. If there is no objection, the Speaker pro tempore will appoint that committee. Mr. PRUYN. I move that the Speaker pro \ tempore have the authority asked by the j Speaker. No objection was made ; and it was ordered accordingly. Mr. SCHENCK. Before the Speaker leaves the chair I wish to call attention to the fact ; that if this debate goes on now we will prob ably have no morning hour to-day. On that account I think it might well be delayed un til after the morning hour. I insist Mr. HOLMAN. order. The SPEAKER. The regular order is called for by the gentleman from Indiana [Mr. HOL MAN]. The Chair will state that if the pending question was postponed there might still be no morning hour to-day for this reason : the first question after the postponement is the motion of the gentleman from New York [Mr. MC CARTHY] for the previous question upon the passage of the Washington and New York air line railroad bill. After that bill shall have been disposed of the Chair is informed by the Committee on Reconstruction, through the gentleman from Wisconsin [Mr. PAINE], that that committee, which is authorized to report at any time, will report a bill for the removal of political disabilities. And the gentleman has further informed the Chair that the bill will probably give rise to some debate. After that bill shall have been disposed of the morn ing hour of to-day will commence, if there be any time remaining. Mr. BUTLER, of Massachusetts. Will the gentleman from Ohio [Mr. SHELLABAEGER] yield to me for a suggestion ? Mr. PAINE. I rise to a question of order. The SPEAKER. The gentleman will state his question of order. Mr. PAINE. As I understand it, a motion to refer the resolution now before the House was made by the gentleman from Massachu setts [Mr. BUTLER]. The SPEAKER. It was. Mr. INGERSOLL. And that motion is de batable. The SPEAKER. It is ; and the gentleman from Ohio [Mr. SHELLABAEGEE] is entitled to the floor for the purpose of debating it and the several resolutions pending. Mr. BUTLER, of Massachusetts. I ask the gentleman from Ohio to yield to me for a sug gestion. Mr. FARNSWORTH. I rise to a question of order. The SPEAKER. The gentleman will state his point of order. Mr. FARNSWORTH. My point of order is that the resolution, as modified, does not now involve a question of privilege. The SPEAKER. The gentleman from Mas sachusetts [Mr. BUTLER] modified his resolu tion by adding to it other resolutions, not by changing the one first offered, which involves a question of privilege. Mr. BUTLER, of Massachusetts. I desire to make a suggestion. Upon examining this question it must be seen that there is great necessity for legislation upon the subject in volved in the matter now before the House. It is evident, also, that that question must be discussed at length, and time is pressing us. I therefore suggest to the House that, after the remarks of the gentleman from Ohio [Mr. SHELLABARGER], who I understand opposes the resolution, we shall then appoint a committee, 304 TWENTY-FIRST PRESIDENTIAL TERM. if the House shall so desire, upon the report of which committee a full discussion can be had. Mr. SHELLABARGER. I desire now to proceed with my remarks. The SPEAKER. The gentleman from Mas sachusetts [Mr. DAWES] will please take the chair. Mr. DAWES then took the chair as Speak er pro tempore, and said : The gentleman from Ohio is entitled to the floor. Mr. PRUYN. Before the gentleman pro ceeds, I ask him Mr. SHELLABARGER. I think I will have to decline to yield. Mr. PRUYN". I do not ask the gentleman to yield any of his time. Mr. SHELLABARGER. If it does not come out of my time, I will yield. The SPEAKER pro tempore. It will come out of the gentleman s time, except by unani mous consent. Objection was made by several members. Mr. PRUYN. I desire to make an an nouncement to the House on a matter of pub lic importance. The SPEAKER pro tempore. Objection is made to the gentleman from Ohio yielding, and he will proceed with his remarks. Mr. SHELLABARGER. The reason why I decline to yield the floor now is that I have promised to yield what time I may have to spare to the immediate representative [Mr. GARFIELD] of the gentleman to whom the reso lution now before the House more particularly points. And I trust that I shall be excused from yielding during the making of my re marks. Mr. SHELLABARGER said: Mr. SPEAKER : I desire to state that in all that I shall say I shall accord most sincerely and fully to every gentleman upon the floor all that integrity of purpose and desire fairly and properly to dispose of the important mat ter now before the House, which I claim for myself. It is not wonderful, sir, that we have fallen into doubt and trouble about this matter, so new, so undefined, and one in which we are to so great an extent unaided by precedent fur nishing to ns a guide. I shall aim at making my utterances to-day practical and as intelli gible as my feeble abilities will enable me to. The resolution the gentleman from Massachu setts has submitted for our approval reads as follows : " The House protests that the counting of the vote of Georgia by the order of the Vice-President pro tempore was a gross act of oppression, and an inva sion of the privileges of the House." Profoundly as I regret that occurrence, and deeply as I feel the wrong which the resolution does, I shall consider, calmly if I can, the jus tice of it. I shall do that by first assuming what I understand to be the position of the distinguished gentleman from Massachusetts [Mr. BUTLER], who introduces the resolution, that both the twenty-second joint rule of the date of February 6, 1865, and also the concur rent resolution of the two Houses of the date of February 6, 1869, are alike unconstitutional, alike without legal significance and force, and, to adopt his words, equivalent to waste-paper. From this standpoint of the gentleman from Massachusetts I proceed to consider the reso lution which he has seen fit to introduce. Mr. BUTLER, of Massachusetts. The gen tleman will permit me to say that in the lan guage to which he refers I was not character izing the joint rule, but the concurrent resolu tion recently adopted. Mr. SHELLABARGER. Mr. Speaker, I understood the gentleman to characterize the joint rule of 1865 as unconstitutional also. In the morning Chronicle he is reported as using these words : " Think of it a moment, gentlemen ! Suppose at the next election the House of Representatives is one way and the Senate is another. Under that joint rule, if it is constitutional and operative, the House can say, We will not have the Republican votes counted ; and the Senate can say, We will not have the Democratic votes counted, and there is an end to presidential elections." Let me now bring together some very famil iar things, but things which dispose of this resolution. Let it first be remarked and kept in mind that the Constitution provides that the Legislatures of the several States shall fix the manner of choosing the electors. In the next place Congress is authorized by the Con stitution to fix the time of casting the vote of the presidential electors. The language is " Congress may determine the time of choosing the electors, and the day on which they shall give their votes, which day shall be the same throughout the United States." Next I beg that the purposes and impor tance of this provision of the Constitution shall be kept in mind. It requires that the day of voting in the several States shall be the same. With reference to the importance of this con stitutional provision Justice Story, in his Com mentaries, uses this language : " The propriety of this power would seem to be almost self-evident. Every reason of public policy and convenience seems in favor of fixing a time of giving the electoral votes, and that it should be the same throughont the Union. Such a measure is cal culated to repress political intrigues and specula tions by rendering a combination among the electo ral colleges as to their votes, if not utterly imprac ticable, at least very difficult, and thus secures the people against those ready expedients which corrup tion never fails to employ to accomplish its designs." Next I invite the attention of the House to the legislation of Congress, carrying into effect and providing for the things covered by these provisions of the Constitution. The act of Congress of 1792 fixes the time, in accordance with the constitutional requirement, upon the same day throughout the Union. The fifth section of that act provides, in substance, the ULYSSES S. GRANT, PRESIDENT. 305 same thing that it provided in the terms of the twelfth amendment itself, and I shall present ly read it. It will be seen that this act of 1792 furnishes no additional guide for the counting of the electoral votes beyond what the Constitution furnishes. I shall now proceed to consider the resolu tion before the House as if there was no twen ty-second joint rule nor any concurrent resolu tion of this Congress upon the subject; and I am inquiring whether the resolution ought to be passed, assuming that we have no other guide than the guides furnished us by the statute and the Constitution. That article of the Consti tution, Mr. Speaker, in so far as it relates to the matter now before the House, provides for that matter in these words: "The President of the Senate shall, in the pres ence of the Senate and the House of Representa tives, open all the certificates ; and the votes shall then be counted." That is the light the Constitution gives us on the subject as to how the count shall be made, and by whom it shall be made. The thing, it will be observed, to be done in ex press terms by the President of the Senate, is to open .the certificates. The count is to be made then, but by whom is not expressly stated. ISTow, Mr. Speaker, I go to the difficulty that exists in the Constitution itself, which has brought upon the Government again and again, at least three times over, the same experience which we encountered here yesterday, an ex perience regretted at its first occurrence with the most intense feeling of anxiety and alarm by all the country, and pointed to as an indi cation of weakness and of danger in the very framework and structure of your Government. To that danger Mr. Story points in exceeding ly suggestive words, to which I will now call the attention of the House. He says : " In the orginal plan as well as in the amendment no provision is made for the discussion or the de cision of any questions which may arise as to the regularity and authenticity of the returns of the electoral votes" The very difficulty we on yesterd.ay, under circumstances so painful, were brought again to encounter. He proceeds : " Or the right of the persons who gave the votes or the manner of circumstances in which they ought to be counted. It seems to have been taken for granted that no question could ever arise upon tiie subject, and that nothing more was necessary than to open the certificates which were produced io the presence of both Houses, and to count the names and numbers returned. Yet it is easily to be conceived that very delicate and interesting inquiries may oc cur, fit to be debated and decided by some delibera tive body. In fact a question did occur upon the counting of the votes for the presidency in 1821 upon the reelection of Mr. Monroe, whether the vote of the State of Missouri should be counted; but as the count would make no difference in the choice, and the declaration was made of his reelection, the Senate immediately withdrew, and the jurisdiction, as well as the course of proceeding in a case of real 20 controversy, was left in a most embarrassing situa tion." Then follow these words : " Another de fect in the Constitution is," etc. ; indicating that the learned commentator regarded this as one of the defects of the Constitution. I call attention to this uncertainty and de fect in the Constitution for the two pur poses : first, of reminding gentlemen of the high and commanding duty which the ex istence of this uncertainty and infirmity in the Constitution imposes upon us, and that in dealing with this matter of the electoral vote the utmost forbearance, wisdom, and modera tion in our conduct are required, and that violence, excitement, and precipitate or er roneous action here may overthrow the Gov ernment itself; second, I allude to this uncer tainty in the Constitution to show that the ac tion of the President of the Senate denounced by this resolution was, in a matter where it does not become us nor the gentleman from Massachusetts to be over-confident of his be ing right, and where language or resolutions of denunciation are exceedingly inopportune, unworthy, and dangerous. Mr. Speaker, this brings me now to the first and elementary proposition in the poor argu ment I am about to submit ; and it is this, that whatever infirmity there may be in the Consti tution in this regard, that infirmity does not go to the extent of leaving everything uncertain, but that there are at least two things made cer tain, mandatory, and conclusive upon Congress in the terms which the Constitution employs. One of these is that the President of the Sen ate and nobody else can be authorized either by an act of Congress or by concurrent resolution or otherwise to open the votes. That must be done by the President of the Senate. So in words says the Constitution. The other thing made absolutely certain is that when that thing- is done, called in the Constitution be "count ed " occurs, then and there there must be pres ent together in one presence, along with the President of the Senate, the two Houses of Congress, and that nothing which in the sense of the Constitution amounts to a counting can occur except in that presence. This is a pres ence made up of three constituent elements, namely, a President of the Senate, a Senate, and a House of Representatives. So that noth ing that amounts to a " counting " can occur, whoever it is that may be permitted to make it, no refusal to count, no agreement to count, nothing that, comes to a count can, by any rules or contrivance, be made to occur except in that presence and body or convention made up of the three elements I have named, to wit, a President of the Senate, a Senate, and a House of Representatives. Thus far, Mr. Speaker, there is no room for doubt or debate. N^ow, sir, what conclusion does that bring us to ? To this : first, that there can be no authority given by law or otherwise, resolu tion or otherwise, that a count shall be made 306 TWENTY-FIRST PRESIDENTIAL TERM. up by the separate constituencies, acting as distinct or separate bodies, that make up the convention in whose presence a count is to be made. It follows from this inevitably that no concurrent or joint resolution, no act of Con gress can be law which shall resolve these ele ments making up the convention that makes the . constitutional count, and which sends them to make the count in their separate Chambers as separate bodies. It is therefore exactly impossible that this provision of the Constitution can be made by the aid of any concurrent resolution or rule, or even act of Congress, to permit either the Senate or the House or the President of the Senate to separate and go to themselves and by them selves adopt any form of order or decision which shall render it impossible for the joint convention when reassembled to count any one of the States. Next, Mr. Speaker, I come to the question who it is in the convention that makes the count; and I here venture to state this as a proposition which I stand upon, with an un affected deference to the opinions of other gentlemen, and yet I state it with very great confidence that that count, in the absence of legislation upon the subject, is to be made by the President of the Senate. Why? First, Mr. Speaker, because that seems to be the natural sense of the Constitution. It provides that the opening shall be by the President himself. It provides simply that it shall be done in a particular presence, not giving any office or duties to that presence of the Senate and House of Representatives, except that they shall be present. It does assign a particular duty to the President of the Senate in open ing the votes, and there it stops, it is true ; but taken in connection it seems natural to me that it should be supposed that he is to do the counting. I know the difficulty that we will encounter from this position, that it gives very great power to the President of the Senate ; but it will be seen that there are difficulties which ever way we turn difficulties pointed out by Justice Story in the language which I have read to the House. The danger of giving the power to reject the votes to either or both Houses, in at least some views, is even greater than in giving it to the President of the Sen ate, because by rejecting the votes the Senate and House can throw, by their own act, the election of the President into the House and of the Vice-President into the Senate. Another reason why I think it probable that under the present state of the legislation upon this subject, and in the absence of the twenty- second joint rule, or if it be invalid, the Presi dent of the Senate is to make the count in the presence of the Senate and House of Represen tatives, is that the act of Congress of 1792 so indicates. This act is older than the twelfth amendment itself for that twelfth amendment was brought into existence by reason of the difficulty that occurred at the election by the House of Representatives of Mr. Jefferson in 1801, as is stated in Story s Commentaries, section fourteen hundred and sixty-six. The fifth section of that act of 1792 provides " 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 ascer tained and declared agreeably to the Constitution." The use that I make of this section is sim ply that it will be seen here that the statute declares that certain things shall be done. One is that the votes shall be opened ; another is that they shall be counted. The Constitution says who shall do the opening, and therefore we are not in doubt about that. But that statute connects the opening and counting to gether, seemingly making it the act of one and the same instrumentality. But, as we know that one of these acts the opening must, by the Constitution, be the act of the President of the Senate, and as the statute seems to re quire the person who does that to do the count ing also, it thereby seems to indicate that the President of the Senate counts the votes. This is, of course, an argument not conclusive ; it is only persuasive. But now I turn to another authority, which is more than persuasive in the absence of a higher law. I turn to that man who is recognized by us all as one of the mas ters, not only of our American law, our con stitutional law, but of the civilized world s commom and international law : I allude to Chancellor Kent. In his Commentaries on this part of the Constitution, he uses this language: " The President of the Senate on the second Wednesday in February succeeding every meeting of the electors, in the presence of both Houses of Con gress, opens all the certificates, and the votes are then to be counted. The Constitution does not ex pressly declare by whom the votes are to be counted and the result declared. In the case of questionable votes and a closely contested election, this power may be all-important ; and, I presume, in the ab sence of all legislative provisions on the subject, that the President of the Senate counts the votes and determines the result, and that the two Houses are present only as spectators to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors." There, sir, for the purposes of my argument to-day I leave this proposition. It is a propo sition that commends itself to rny own judg ment as a sound one, one vindicated by the most illustrious private opinions that are ob tainable in this country. The use I shall make of that proposition will appear more fully as I proceed. It is sufficient for me to say here that if Chancellor Kent be indeed not mistak en, and if the President of the Senate " in the absence of all legislative provision on the sub ject " and I am now assuming that the twen ty-second rule is invalid, because it deprives, as would seem, everybody of all power to count any State if either the Senate or House ULYSSES S. GRANT, PRESIDENT. 307 should by its separate vote refuse to count it then, instead of the President of the Senate having been guilty of " an act of oppression and an invasion "of the privileges of this House," it was an invasion of the powers and solemn duties of that officer for this House by its separate vote to attempt to compel him not to set down the vote of Georgia in the way he did set it down, provided that way was not evidently "unfair" or dishonest. Let us go now to consider the consequences which will logically be absolutely inevitable from holding that a separate vote of this House shall be permitted to estop both the President of the Senate and the Senate, and the joint convention of President of Senate, the Senate, and the House, each, all, and either, from ever setting aside the decision of this House that Georgia should not be counted. For, mark you, that if the President of the Senate has grossly oppressed and invaded the privileges of this House, it has been done by denying this House the privilege of refusing by its separate vote to reject the vote of a State for President. Suppose that each House separate ly may proceed to ascertain and decide upon the counting or not counting of the vote of any State, what consequences will follow from jt ? They have been in part stated already by the gentleman from Massachusetts [Mr. BUT LER] in what I have already quoted in vindica tion of the position that he takes, that it will enable the Senate or the House, either and each, to defeat the election absolutely and in every case of any President, and this for par tisan or for worse than partisan purposes. That is so evident that to state it is to prove it. Indeed, the gentleman from Massachu setts, who proposes this most severe and ex traordinary censure, has exclaimed himself more than I can exclaim against the frightful consequences which would come from permit ting one or either House of Congress to get by itself and there, in separate session, by the per capita vote of its individual members, without debate, vote out the decision of the people of any and every State in selecting the Chief Magistrate of the Republic. This, then, Mr. Speaker, brings us to again direct attention to the logical and startling consequences of our here declaring that the President of the Senate has been guilty of an act of usurpation and outrage. Outrage in refusing to do what? In refusing to permit the House of Representatives by its own sep arate vote to defeat (if the case had been, as it might be, of that sort) the election of a Presi dent at all ; and that is an exceedingly possible case, and one that could have readily occurred at the time of the count of Mr. Clay s last vote for the presidency. And when the privileges of the House are declared by this resolution to have been invaded, it is material for us to know what those privileges so invaded are. The priv ilege invaded is the very one the supposed ex istence of which the gentleman from Massa chusetts himself denounced as one of the most fearful suppositions that could be conceived. The power of the House which has been in vaded is that power which would enable this House to elect every President, or else to de feat the election of every one. This is the only power that the House has sought to ex ercise. The act of oppression is in refusing not to obey the separate order of this House, by counting Georgia s vote in the way it was. Mr. H1GBY. Will the gentleman yield to me for a question ? Mr. SHELLABARGER. Not now; after I have concluded my remarks I will yield to the gentleman for a question if I have time. Now, I agree, therefore, with what I under stood was most earnestly said by the gentleman from Massachusetts himself, that the House has not the power to determine by itself whether the vote of any State shall or shall not be counted ; and therefore no power of this House, or privilege of this House, has been invaded, for no such power did in fact exist. I do .not allude, in all I have or shall say, to what was done by the President of the Senate in the matter of not entertaining the gentleman s ap peal, because the resolution does not allude to or complain of that, but of counting Georgia in the way it was counted. The mistake of the President was in not ruling the gentleman s objection to counting Georgia to be out of order when it was made. It was clearly his duty, under the concurrent resolution of the 6th of this month, to have done that at the time the objection was made, because then it was known that the vote of Georgia did not change the result, and it was therefore known that that resolution required Georgia to be set down in the specific manner pointed out by the concur rent resolution. But the fact that he did not rule it out of order then and did order the Senate to retire, and the fact that the Senate sustained what the President had declared in convention, when the gentleman made the ob jection, that he was inclined to hold the Houses to their own rule as to what should be done about Georgia, and the fact that the Senate went out, and the fact that it voted the objec tion to be out of order, and the fact that the President, on the return of the Senate, said that the Senate had voted the objection to be not in order I say these facts all put together, or taken separately, did not add or take from the power and duty of the President of the Senate to decide, at any and all times, that as Georgia s vote did not change the result, it should be entered according to the command of our concurrent resolution. The error of the President was one committed on the in vitation of the gentleman from Massachusetts in permitting the Senate to withdraw ; but that took away no power given by the concurrent resolution. But this is aside from the question. I con sider that the counting of Georgia was an in vasion of the privileges of the House. There 308 TWENTY-FIRST PRESIDENTIAL TERM. is another consideration which makes the dan ger of holding that the separate vote of this House can defeat the power of the President and the joint convention of the two Houses to count any one of the States, so clear that it will strike us as does the sunlight at noonday. It is this : this House, if it have the power, by rejecting the vote of a State may throw the election of the President into its own body, for it goes into the House of .Representatives whenever no candidate shall have received the votes of a majority of all the electors appoint ed. It will enable the House to take away from a candidate really having a majority of the electoral votes, the votes of a single State, or of several States, -thus reducing his vote be low a majority ; and in that way you give to the House the power to turn into its own body in every case the election of the Chief Magis trate. It is only necessary to call attention to such a consequence and its resulting danger to make it absolutely appalling, and drive us with one. common instinct and consent from it. The idea that it could have been the intention of the framers of the Constitution to so frame it, that this House alone should have the power, in every case, not only to defeat the choice of the entire nation in the election of the highest and most powerful magistrate of the nation, and that they should be invited to do so by a bribe put into the Constitution rewarding the House for this defeat of the people s will, by giving to it the selection of that magistrate, is so preposterous and shocking as that it is in capable of argument. And yet if any privilege of this House has been invaded, as the gentle man s resolution says, then it is this privilege of the House to do that identical and mon strous thing! Mr. BUTLER, of Massachusetts. The House itself, according to the gentleman s own au thority, may defeat the election by withdraw ing from the convention and not returning. Mr. SHELLABARGER. It may be well enough for me to say right here, in reply to the suggestion of the gentleman from Massa chusetts, what I meant to say in another place. He is shrewd and learned, and knows how to put things. But, while he is all that, he also knows right well how useless and impotent, when we are discussing with intelligent men, is the supposition of extreme and unsupposable cases. The case that the gentleman supposes, that the House has the right to retire and break up the joint convention, is simply to suppose the case of blank, unmitigated revolution; is to suppose an act done in defiance of the plain, express provision of the Constitution, for it commands that the House shall meet with the Senate and its President, and that then, in this presence, the vote shall be counted. To sup pose that the House would leave, break up the convention, and defeat the election, is to sup pose that the representatives of all the people have decided to overthrow their Government. It would be shorter and equally sensible to suppose that the people had refused entirely to vote, or that no electoral college had been created, or any other thing that would bring the Government to an end. The gentleman, of course, sees how different the case he sup poses is from the case his position in the argu ment supposes, namely, that the framers of the Constitution deliberately put it into the Con stitution that the House of Representatives alone should have power to defeat the people s election of their President and then elect one themselves ! If the true interpretation of the twenty- second joint rule is that no vote shall be count ed until both Houses, by separate votes, concur in deciding that it shall be, then it is plainly void as in conflict with that provision of the Constitution which requires in so many words that every act that enters into and makes a counting of the votes shall be in the presence of the two Houses " the votes shall then be counted." What I have now said results in this, that if the gentleman be right in declaring our own concurrent resolution of the 6th of February, 1869, unconstitutional, and not a justification of what the President of the Senate did, then his resolution is not aided by its abrogation, because it is impossible to hold that this House had the privilege by its separate vote, in its separate Hall and out of the presence of the Senate and its President, to count or to refuse to count Georgia. The House having no such privilege to be violated, the President of the Senate did not violate it. And yet this is the only privilege of this House which the gentle man s resolution says the President of the Seu- ate violated. I surely cannot be mistaken in this, sir. If I am not, the President is enti tled to his country s gratitude and mark it, sir, he will receive it for delivering his country from the peril into which we had fallen. Now, that brings me to an inquiry in regard to what occurred yesterday. We did take a separate vote here in the House upon the question of receiving the vote of the State of Georgia. Against receiving that vote the great body of this House, including myself, voted. How came we to do that, it may be asked, if this was not, as I have argued, a constitutional method of the exercise of this House s power (granting it has some) of counting the vote of Georgia ? The answer to that is to be found in two considerations. In the first place there was no other privilege left to the members of this House to vote at all except the privilege of voting in the separate meetings of the two bodies. Whether it would have been wiser for a member of this House who did not re gard as constitutional that provision of the twenty-second joint rule which separated the two Houses and compelled the members, if they voted at all, to vote alone in separate bodies to have remained silent, or whether it was better for each to vote according to his ULYSSES S. GRANT, PRESIDENT. 309 convictions of what lie ought to do if in a con vention of the two Houses, is a question upon which I do not propose now to enter. It is sufficient for the purpose of this case to say that the votes which were cast in the House were such votes as we ought to cast in conven tion, if we had been permitted to vote there at all, a privilege which we did not have. Whether we erred in casting the vote or not, I need not debate. To have been silent would have, as things were compelled to be con ducted if the twenty-second rule were enforced, resulted in forever preventing the count or re jection in any way of Georgia, and thus it would have defeated the determination and official announcement of the election of the President of the United States. I wish now to inquire for a moment whether the vote of Georgia is one which ought to have been counted by anybody under any cir cumstances. Sir, I maintain that if it be not the law, as Kent says it is, in the absence of legislation, that the President of the joint con vention shall do the counting ; and if, on the other hand, it b3 true that the joint body in convention counts the vote, then the vote of yesterday was a proper vote, had it been cast in convention. And this is the true defense of the vote cast by the House yesterday. Why do I say that it was the vote that we ought to have cast ? I will put a single case to show that it is impossible that there should not be the power to do, in some way, what we at tempted yesterday to do touching Georgia, to wit: to exclude the vote for one of the rea sons assigned in the objections of the gentle man from Massachusetts. I have already read the provision of the Constitution that authorizes the State Legisla tures to prescribe the manner of choosing electors. Now, the State of Ohio has pre scribed, under this provision of the Constitu tion, that the choosing of the presidential electors shall be by a popular vote. Suppose that there had been sent up to us from Ohio a certificate showing upon its face that the elec tors were chosen by the Legislature of Ohio, now in session, and that we had been askod to Grant that vote. Is there a gentleman on either side of the House who will say that, in this matter of counting, we could not, or that somebody could not (whoever may have the power to count) reject such a vote sent from Ohio? Everybody will say it is impossible that we should be required to count such a vote, which on its face is shown to be one that in law has no significance. The power must exist somewhere to reject such a vote. And here, sir, I affirm, once for all, that the thing into which the power that can count this vote is permitted to look in deciding whether a vote shall be counted is the same into which, under similar law, all canvassing officers can look, namely, whether the papers which they inspect, being genuine and legally certified and executed, show that such an elec tion was held or vote given as is authorized by law, and duly show its result. "Now, how was the case we voted on yester day ? I have already shown from Justice Story the reason why the Constitution has wisely required that the vote in each State should be cast " on the same day throughout the Union." By the same authority I show that this is a matter of substance, and not merely directory ; that it goes to the very question whether there has been an election of electors. It shows it to be of identically the same substance that these electors should vote on the day prescribed for the holding of their election as it is .that the people of the State should vote for these electors on the day the law says they shall cast their votes. This act of the electors is not a miEisterial act. Their minds are open and free to make the choice they want to make on the day fixed by law for that choice, and they have a right when they meet in the capitals of our respective States to cast their votes for whom they please as President, if the person voted for has the constitutional qualifications, and if they do not take both the president and < the Vice-President from the State in which the electors reside. The act of the electors in casting their votes is therefore an election ; and if the vote be cast on the wrong day, it is just as mischievous, just as fatal with regard to the validity of their action as if the people had met on the wrong day to exercise their choice. I think we all agree about that. Hence I hold that I and my fellow-Republicans voted rightly yesterday so far as regards the merits of the question; for I maintain that we did not have the privilege of voting if we had the right to vote at all, if the whole right with regard to counting the vote be not in the Presi dent of the joint convention we did not have the privilege of voting, under the operation of the twenty-second joint rule, in the way we ought to have had that privilege. Hence there can be no question but that our votes in the House were right so far as the merits of the question upon which we cast them are con cerned. Whether it would have been better for us to have remained silent I have already alluded to as fully as I care to do. There, sir, I leave that. Now, what is the application of this whole question, assuming that these rules are invalid ? It is (and I commend this to the attention of the gentleman who introduces this resolution) that if the President of the Senate had the power to count the votes then clearly we were invading his rights and privileges in attempt ing in any way to control that count except to see that it wa-s "fair," to here adopt the word of Chancellor Kent. Mr. BUTLER, of Massachusetts. How are we going to do that ? Mr. SHELLABARGER. Well, the gentle man may go for the answer to his question to Justice Story. The gentleman cannot defeat the argumant by showing that there may be 310 TWENTY-FIRST PRESIDENTIAL TERM, defects in the Constitution as to how we are to ascertain that, or a casus omissus, as was said yesterday by the Speaker. I answer further that we can prescribe rules by which shall be secured an honest and legal exercise of what ever powers and discretions we possess in making this count by whomsoever that power may be possessed and exercised ; and it is be cause we have this power that I affirm as the next proposition in my argument that the con current resolution which we passed on the 6th of February is not unconstitutional, but was binding on the President of the Senate. It. is unlike the concurrent resolution of 1865, because that breaks the convention into two bodies and separates them for the purpose of doing that separately which can only be done in a joint convention. And it does not permit them to review or decide in joint con vention what it requires to be voted on and decided in separate votes of the two Houses. This one of 1869 does none of these things. It does not dissolve the convention. It does not require any separate vote of the two Houses, t Jt does not permit the rejection of the vote of any State. It simply provides that if the vote of Georgia does not change the result then that vote shall be set down in a particular way. What does the gentleman find unconstitutional in that, pray? Does the Constitution prescribe how the vote of a State shall be set do\vn (either after it is rejected or counted) upon the offi cial records of that count or on the Journals? Has the Constitution prescribed how we shall make up formally the record of the count? Why, the gentleman with his great learning will still u fail to come to time " on a question like that. The Constitution has left the power in Congress to prescribe the rules under which that count shall be made and how it shall be set down. The resolution that we passed the other day does not really provide for the re ceiving or rejecting of the vote of Georgia in the substantial sense of the words of the Con stitution, " shall be counted." It simply says it shall be entered according to a certain form of statement; and that is what the gentleman says is unconstitutional. It would be clearly unconstitutional if it undertook to count the vote of Georgia in or out. It assumes to do no such thing, but it only says that if it shall be immaterial to the result of the election whether the vote of that State be " counted " or not, then, for a prescribed reason, it need not be decided by the convention whether the vote is a legal one or not a legal one, and that it shall without any decision of that question be entered of record in a prescribed form. This resolution is not therefore amenable to the criticism that it undertakes to count the vote of a State before that vote is opened or known. J^Tow, notice just what that resolution is, what brings it into operation, and what it accom plishes when brought into operation. Mr. Speaker, it is the failure to be thorough, discriminating, and accurate as to this last thing that produces the confusion of debate and of conclusions and of our conduct in the fearful and sadly painful emergency we have just passed through. Let us carefully consider these. First and all the time it must be kept in mind that this resolution was by its express terms to have no effect whatever, was not to be at all in force, nor to be a law to anybody as to the count of Georgia nor any State except in a certain specified contingency. That con tingency must be found to have happened before the concurrent resolution became in any sense a law for the guidance of any one. That contingency was, that the same persons would be elected by the votes of the other States whether the vote of Georgia were valid or invalid, counted or not counted. In other words, the resolution only went into force when and after it had, by the count of the other States, been ascertained and decided that the "count" of the vote of Georgia a deci sion of the validity or invalidity of her vote was absolutely immaterial and unnecessary to the ascertainment of the result. When that conclusion was reached that the vote of Geor gia was immaterial to the result, and that its validity was not necessary to be decided in order to know with the same certainty who was elected as would be attained after it was decided, then, and only then, the concurrent resolution went into force and play. Thus far there is plainly no possible room for doubt or dispute. After this point had been reached which brought the resolution into play I implore members to tell me what practical good could come out of deciding whether the vote of Georgia was legal or illegal ? If there be no such practical good to come from that deci sion, then, I ask, does the Constitution or the law compel us to do a vain thing when the doing of it may result in infinite mischief? Surely not! The law never requires a vain thing as a condition-precedent to the attain ment of great and substantial ends which the same law provides for and secures. If it did, the whole law would be vain, vicious, and absurd. Now, Mr. Speaker, when this immateriality of Georgia s vote had been so ascertained and determined, and our concurrent resolution was thereby brought into force and play, what was its force, what did it do ? First, it authorized the President of the Senate to decide and pro nounce those to be elected President and Vice- President whom the other States had elected and who were elected whether Georgia s vote were valid or invalid, counted or uncounted. Now, sir, suppose this official decision and announcement of who is elected cannot be announced unless and until after it has been officially decided by the convention how Geor gia voted, and suppose the returns of Georgia s vote were lost or destroyed so that the conven tion could neither know nor count her vote and, sir, this is far from an extreme or impos- ULYSSES S. GRANT, PRESIDENT. 311 sible supposition then, sir, would it be un constitutional or illegal to decide or proclaim who is elected ? Must we, then, march into revolution and the Government s overthrow just because that vain and impossible thing, the count of Georgia, has not been done ? Who will venture to affirm such a thing ? Who will not exclaim that the result of a great people s choice can be legally ascertained and pro claimed though Georgia is not counted? If so, I pray you to tell me whether a concurrent resolution directing that this decision and an nouncement of the result, without the count of the Jost vote of Georgia, would be either unconstitutional or render the ascertainment and announcement of the result illegal ? It would not ; and therefore that requirement of this resolution, that the President of the Sen ate should decide and declare who was elected without regard to Georgia s vote, is valid and binding on that President. But this resolu tion, in the event that brought it into play, re quired another thing, namely, that the record should state how the vote would stand with Georgia counted and also uncounted. Is that way of making up the record unconstitutional? Why, Mr. Speaker, as I have already said, the proposition is so absolutely and self -evidently absurd that I can make the absurdity no plainer by my poor powers of argument, and I will leave that to those having powers adequate to the task. Sir, the concurrent resolution was valid, and became a law to the convention and its presi dent as to what they should do, provided the objection made by the gentleman from Massa chusetts was not one which took Georgia s vote out of its operation, and compelled the convention to pass upon it as not being that specific objection to her vote which is named in the resolution s preamble, and the only one which the resolution authorized the convention to omit to decide. This is claimed to be the case, and that because the gentleman assigned other fatal objections to Georgia s vote besides that one in the preamble, as to whether she was such a State as could vote, therefore the resolution did not excuse the convention from deciding this additional objection, and there fore these must be decided as required by the twenty-second joint rule. And we are" told that if this be not so then every objection to Georgia s vote, however evidently fatal to its validity, would be by this concurrent resolu tion shielded from the convention s investiga tion, and the vote be permitted to go unchal lenged, though on its very face shown to be absolutely worthless and void. Why, Mr. Speaker, this position may be ingenious, but it is far more vicious than ingenious. Look at it. First it admits that it could legally, and did in fact, order the vote to be set down in a particular way and its validity not to be passed upon, and that the result of the election should be decided by the "counting" body, because one fatal objection to its validity probably ex isted to Georgia s vote, but it denies that the resolution ought to, did, or could order the same thing to be done, though two fatal objec tions should be found to the vote ! Surely this cannot be. The resolution does not require the convention to admit or count the vote of Georgia if, on its inspection, the convention found it fatally defective. No such thing. But it does require that because there is probably one fatal objection known to exist at the pas sage of the resolution and before the vote is opened, which objection the convention and Congress cannot well pass upon before or ID the convention, therefore the validity of that vote shall for this reason not be passed upon at all, however many other fatal objections to it may be found, unless its validity be found material to the determination of the result of the election. The known difficulty of deciding the validity of Georgia s vote, which is named in the pre amble, brought the resolution into existence, and the difficulty and impropriety of deciding that, if the decision was immaterial to the re sult, was reason why in express terms the res olution ordered the President to do precisely what he did do, and did in the very words of the resolution ; and it, for this reason, required this of him, however many other objections there might be to the vote of Georgia. It made no exceptions. It made no exceptions in its terms by saying that if there were found other objections to Georgia s vote than that named by its preamble, then the President should not obey its orders. On the contrary, it did state one case in which he should not deem it in force or obey it, namely, if it did change the result. Then he was not to regard it, and by its express and unmistakable terms that was the only event in which he was not to regard it. Now, gentlemen say that there were other cases in which he was not to regard it, namely, if somebody should suggest some other objec tion to it. And for not disregarding this ex press letter of the rule we ourselve made for him, and for which the gentleman himself voted, he is to be by us, the author of the rule, denounced as our oppressor and the invader of our rights. He obeyed us not in spirit merely, but to the very letter word for word, syllable by syllable, and letter by letter, he followed out and obeyed our law saved the Eepublic from an appalling danger, and for that we are called upon to brand and blast him with our denunciations! Mr. Speaker, the power of the President of the Senate to do what he did do was complete. [Here the hammer fell.] Mr. WOODWARD obtained the floor. Mr. SCOFIELD. I ask unanimous consent that the gentleman from Ohio may have fur ther time. The SPEAKER pro t&mpore. Is there ob jection? Mr. BUTLER, of Massachusetts. As I gave the gentleman all of his time,, I ask that I 312 TWENTY-FIRST PRESIDENTIAL TERM. may have the same amount of time to reply to him. Mr. BENJAMIN. I object. Mr. SCOFIELD. I rise to a question of order. The gentleman from Ohio was not speaking in the time of the gentleman from Massachusetts. The floor was assigned to him independently. I ask if he has had his hour ? The SPEAKER pro tempore. The gentle man from Ohio was speaking in his own time ; but he had ten minutes last night, which he gave to the Speaker, and has had fifty minutes this morning. Mr. SHELLABARGER. All I wish is to conclude my remarks by saying that in the election of Mr. Monroe, in 1821, the same con current resolution passed by us on the 8th of February was introduced by Mr. Clay, from a joint committee of the two Houses, into the House of Representatives, and was adopted for the guidance of the two Houses. These were its words : "Resolved, That if any objection be made to the State of Missouri and the counting or omitting to count, which shall not essentially change the result of the election, in that case they shall be reported by the President of the Senate in the following manner : Were the votes of Missouri to be counted the result would be for A B for President of the United States, votes ; if not counted for A B as President of the United States, votes ; but in either event A B is elected President of the United States ; and in the same manner for Vice-President." This was adopted yeas 90, nays 67. After its adoption the two Houses came together, the President of the Senate passed to the tellers the opened votes of the States. When Mis souri s was reached, Mr. Liverrnore, of New Hampshire, objected to its count. A motion by a Senator was made, which prevailed, that the Senate retire to its Chamber, which it did. The House was called to order, and Mr. Floyd moved that Missouri s vote be counted. A long debate arose on that in the House, in which Mr. Clay used these words: "The two Houses ought not to have separated until they had con summated what had been stipulated for." Mr. Floyd s resolution was laid on the table, on Mr. Clay s motion, by a vote of 103 yeas. A message was sent to the Senate that the House is now ready to receive the Senate for the pur pose of continuing the enumeration of the votes. The Senate appeared. The President of the Senate, in the presence of both Houses, opened and handed the tellers the vote of Mis souri, which was read and registered, and then the tellers made and banded to the President the compared lists of the votes of all the States, and the President, "in pursuance of the reso lution " of Mr. Clay, " adopted by the two Houses," proceeded to announce the vote, and had got so far as to declare that Monroe, of Virginia, had a majority of the votes for President, and Tompkins, of New York, for Vice-President, but had not declared who was elected, when Floyd addressed the Chair, de manding to know if Missouri had been count ed ; and thereupon great disorder arose. Ran dolph also addressed the Chair. The President decided everything out of order ; the only busi ness being at that present time that prescribed by the rule of the morning. There was mur mur at this decision, but the President pro ceeded to announce who was elected ; and then, on motion of a Senator, the Senate re tired while Mr. Randolph was addressing the joint convention. I refer to it for the purpose of saving that we have the authority of the distinguished names connected with the introduction and passage of that resolution, for saying Jhat the concurrent resolution of the 8th of February is constitutional, and the action of the Presi dent yesterday is sanctioned by precedent. Mr. WOODWARD. The" gentleman says that everything that occurred yesterday oc curred in 1821. Did such a vote of the House as occurred yesterday occur then? Mr. SHELLABARGER. Not such- a vote as that of yesterday, but just such a setting down of the vote of Missouri in an hypothetical way in the way in which Georgia was to be set down, and in which it was set down yes terday did occur in the election of Mr. Mon roe, and every other step in the case. Mr. WOODWARD. But the House did not in that instance refuse to count the vote, as they did in this instance. Mr. SHELLABARGER. There was then no such concurrent resolution as is now con tained in the twenty-second rule. The whole thing was conducted under such a concurrent resolution as we passed on the 6th of this month. The SPEAKER pro tempore, under the order of the House, appointed, as the committee on the part of the House to join the committee appointed on the part of the Senate to notify the President and Vice-President-elect of their election, Mr. WILSON, of Iowa, and Mr. PEUTX. Mr. WOODWARD. I now yield to tbe gen tleman from Maryland [Mr. THOMAS]. Mr. THOMAS. The gentleman from Penn sylvania [Mr. WOODWAED] has been kind enough to yield to me for a few moments. It was my fortune, some thirty-two years ago yesterday, to be named, in conjunction with a gentleman from the State of New York and Mr. Grundy, a Senator from the State of Ten nessee, to assist in counting the votes for Presi dent and Vice-President of the United States. At that time there was a difficulty in our path very similar to the difficulty that stood in our path prior to the assemblage of the joint con vention on yesterday. The people of Michigan, without, perhaps, any law authorizing it, had organized a State government in all its branches, elected mem bers of the House of Representatives ; had elected Senators, and proceeded to vote in due time for electors for President and Vice-Presi dent. In one of the articles of the constitu tion of Michigan that State undertook to pre- ULYSSES S. GRANT, PRESIDENT. 313 scribe the boundaries of the State, and set forth a boundary which included a portion of terri tory then claimed in part by Ohio and in part by Indiana. At its session commencing in 1836 Congress had under consideration the question of that boundary, and were disposed to decide that question before the admission of Michigan into the Union, and while Michi gan could be treated as one of the Territories of the United States; and that question was I decided prior to the meeting of the joint con- - vention. But Congress had not, in the judg- i meut of some of its members, made provision I for the election of electors of President and \ Vice-President in that State. The vote of Michigan was very unimportant I as affecting the result. Mr. Van Buren had a ; majority of the votes cast, whether the vote of Michigan were to be counted or not. It then became a question how far it was prudent, politic, and wise for Congress to encounter any difficulty in the joint convention of the two Houses in a contest over the right of Michigan to vote or not to vote. The matter was looked into, and the precedent mentioned by the gen tleman from Ohio [Mr. SHELLABAEGEE] was found spread upon the records of Congress. We found that a similar difficulty had previous ly presented itself in the case of Missouri while Congress was deliberating upon that very agi- tating subject which the admission of Missouri gave rise to ; and we found that in that case : Mr. Clay, with that far-seeing judgment which always distinguished him in a deliberative body, devised that very plan which was followed I yesterday. I hold in my hand the resolutions reported to the Senate by Mr. Grundy, copied from the resolution of Mr. Clay in the case of Missouri, and intended to guard against diffi culty in the case of Michigan. I will read but one of them, as that one alone is material to the elucidation of the point I wish to enforce. That resolution was in these words : "Resolved, That in relation to the votes of Michi gan, if the counting or omitting to count them shall not essentially change the result of the election, they shall be reported by the President of the Senate in the following manner : Were the votes of Michigan to be counted, the result would be for A B for Presi dent of the United States, votes ; if not counted, for A B for President of the United States, votes ; but in either event, A B is elected President of the United States: and in the same manner for Vice- President." And in this connection it is perhaps proper that I should read from the very pregnant re marks made by Mr. Grundy on that occasion, as a reason why such precaution should be taken on the part of the two Houses of Con gress before they met in joint session, that it may not be in the power of a few insubordi nate men, perhaps, to bring about a collision in the Government. I read now from the record of the debates on that occasion : " Mr. Grundy observed that the committee were unanimous for reporting the second resolution ob jected to by the gentleman from Michigan. The same course had been pursued with regard to the State of Missouri, and under the like circumstances. And when Senators recollected that this was the very place where the rock lies which may destroy the Govern ment they would perceive that the committee had good reasons for recommending the resolution ob jected to. Suppose (said Mr. Grundy) the two Houses should differ and separate, and suppose the House should refuse to send for the Senate again" God forbid that there was any such purpose here yesterday! "where will be your President and Vice-President? Though he had. been one of the most anxious for the admission of Michigan, yet he thought it better under the circumstances that her vote should not be count ed, except in the way provided for by the second res olution." I will not say one word further as to the power of the Congress of the United States to pass such a concurrent resolution, in the casus omissus in the Constitution, where no rules are laid down by which those having charge of the counting were to be guided. Unwilling to trespass longer on the time of the gentleman from Pennsylvania, I will refer only to the names of the Senators voting for that resolution. I have not before me the yeas and nays taken in the House of Representatives on the same question ; but gentlemen who may refer to them will find among those voting in the affirmative the names of gentlemen highly en titled to the confidence of this body. Those voting in favor of the resolution in the Senate were Messrs. Bayard, Benton, Black, Brown, Buchanan, Clay, Clayton, Crittenden, Cuthbert, Dana, Davis, Ewing of Illinois, Ewing of Ohio, Grundy, Hendricks, Hubbard, Kent, King of Alabama, King of Georgia, Knight, Linn, Moore, Nicholas, Page, Prentiss.Rives, Bobbins, Robinson, Sevier, Southard, Swift, Tipton, Tomlinson, and Wright 34. There were but nine Senators voting in the negative, headed by Mr. Calhoun, the mischief- maker of that day : Messrs. Calhoun, Fulton, Lyon, Morris, Mies, Nor- vell, Preston, Walker, and Wall 9. Having referred to this precedent to overbal ance the authority of the distinguished jurists whose opinions have been quoted against the concurrent resolution adopted by the Senate and House as a rule for the guidance of the Presiding Officer in the joint convention of yesterday, I yield the floor to the gentleman who has kindly offered to me this opportunity. The gentleman from Ohio [Mr. SIIELLABAR- GEK] takes, I may be permitted to say, posi tions which are somewhat incompatible. If the President of the Senate, and he alone, is authorized to count these votes without any agency or participation on the part of the House, then it results that the President of the Senate alone should prescribe the rules under which the power conferred upon him by the Constitution should be exercised. That can not be so. It cannot be that the Representa tives of the people in this Hall and the repre sentatives of the States in the Senate should sit by here and permit the President of the Senate to make a false count if he chose to do so ; thus, perhaps, throwing the country into 314 TWENTY-FIRST PRESIDENTIAL TERM. confusion and giving himself the right to hold the presidential office for four years, though he had not been selected by the people for the position. At the time when this question was under consideration before, it was agreed on all hands, so far as my knowledge extends, that Congress had the power, by law or by joint resolution, not only to prescribe the manner in which the vote should be counted, but to inquire into the validity, the sufficiency, the actuality of the votes that might be presented to the Vice-President to be counted. If the seal of a State were to be conclusive as to the votes cast for the candidates for the Presiden cy, that seal might be fraudulently applied to a document, and the House must sit here quiet spectators to the counting of the votes thus fraudulently returned, though with a perfect knowledge that a proper investigation would show the fraud, and give the election to an other candidate. Thanking the gentleman from Pennsylvania [Mr. WOODWARD] for his courtesy, I will not trespass further on his time. Mr. WOODWARD. Mr. Speaker, I very much regret that my learned friend from Mary land [Mr. THOMAS], my learned friend from Ohio [Mr. SHELLABAEGEB], and my learned friend from Massachusetts [Mr. BTJTLEE], were not here the other day to deliver the argu ments against the passage of that concurrent resolution which they have made to-day. When I listened to the gentleman from Massa chusetts last evening, when I listened to the gentleman from Ohio and the gentleman from Maryland to-day, I felt that this House had reason to deplore the absence of these learned men in that emergency. As I know something of the history of that concurrent resolution, so far as regards the action of this House, permit me to state it. The resolution having passed the Senate, the gentleman from Iowa [Mr. WILSON] had charge of it in this House. And I will say that he treated the subject very differently, and much more satisfactorily, from a certain other sub ject to which his mind will instantly recur, and which I will not further characterize unless he desires me to do so. [Laughter.] Instead of springing this concurrent resolution upon a sleeping House, he took the trouble to come over to this side and advertise us as to what he was about to do. Ho came to me in person and called rny attention to the resolution as it had passed the Senate. I went to the Clerk s desk and informed myself of its character. I then told him that we on this side of the House would probably oppose the resolution; and we did oppose it as well as we were permitted to do. We were not allowed to enter into any argument against it. We were screwed down by the previous question to that little speech " nay ;" that was all that we were permitted to record against the resolution. But I ac knowledged that in the fairest manner the gentleman from Iowa brought the matter to our attention. Now, sir, if these "learned Thebans " had been here on last Monday night to make their arguments against the resolution as we have heard those arguments to-day, the House would not have been involved in the difficulty in which it is involved ; that scene, so discreditable to the nation, which occurred here yesterday would not have occurred, and the grave constitutional questions which are now supposed to be involved in this discus sion would have been all avoided. But, sir, these gentlemen were not here to make the argument, and we on this side of the House could have stated it as forcibly as they have done even, if we had been permitted to say anything. Thus the resolution was thrust upon us and carried by a party majority, and became the law of the convention which was charged by the Constitution with the duty of counting the electoral votes. Sir, that convention con sists of two members, the Senate and the House. They are the constituent elements of the convention, and this concurrent resolution became a law to that body. Mr. SHELLABARGER. I ask to make a correction. The gentleman has said I was not here. I was here and voted for the concurrent resolution, and in my remarks I sought to show that it was constitutional and proper. Mr. WOODWARD. I accept the correc tion. Mr. THOMAS. If I may be permitted, I will say that I invited the attention of mem bers of the Judiciary Committee to the reso lution adopted in 1837 in the case of Michigan, > and voted for the resolution, which was adopt ed, to guard against difficulty respecting the electoral vote of Georgia, and I have this mo ment said in the presence of the House that, in my opinion, the joint resolution which has given rise to this debate is clearly constitu tional. Mr. WOODWARD. Mr. Speaker, I do not complain that the gentlemen did not vote for the resolution. 1 complain that they did not bring to the view of the House the constitu tional arguments they have now made upon the resolution of the gentleman from Massa chusetts, which arguments, had they been made at that time, I think, would have pre vented the concurrence of this House in the concurrent resolution. But if I am mistaken in that, if they would not have had that effect, they at least would have extricated the House from the difficulty into which it fell by voting not to count Georgia yesterday after it had voted to concur in the resolution of the Sen ate. Mr. THOMAS. It is a very unpleasant thing. This argumentum ad hominem is one I never engage in myself. Allow me simply to say, in that connection, that I was just as ready to have voted yea as nay on that question, for I did not want" an unmeaning, unprofitable en tanglement. Apprehending the Senate might take the ground th House took, I was per- ULYSSES S. GRANT, PRESIDENT. 315 fectly willing there should be coincidence of opinion between the two bodies. The House will bear me witness that as soon as I had rea son to suspect the contrary, I asked consent to ; make a motion which would have relieved us from the embarrassment in which we were placed. Mr. WOODWARD. I was wholly opposed [ to the concurrent resolution. The analogy I which the gentleman has this morning stated has no resemblance to the case before us. Nor does the instance to which the gentleman from Ohio [Mr. SHELLABARQER] has alluded touch this case, for it is a case of an organized, rec ognized State in this Union. Mr. ELDRIDG-E. And represented on this I floor- Mr. WOODWARD. And represented on this floor. It 13 not a case of an unborn Ter ritory, where the question is as to future ad mission as a State, or whether the people of that Territory are fully qualified to vote at a presidential election. It is a case of a State in the Union from the time of the Declaration of Independence down to the present moment, and represented on this floor by members sent ^ here whom we have admitted. Now, I would thatik gentlemen to show in the history of this country an analogy for that case. There are analogies which do not suit this case, yet such is the case we have got to deal with. Mr. UPSON". If the gentleman will permit me, at the time spoken of by the gentleman from Maryland [Mr. THOMAS] Senators had been admitted from the State of Michigan, while members had not been admitted in the i House. At this time members have been ad mitted in the House from Georgia, but Sen ators have been, refused admission in the Senate. Mr. WOODWARD. Still the cases are not analogous ; because this is an organized, orig inal State, in the Union before the gentleman was born, and never was out of it, in my judg ment. Now, Mr. Speaker, when this House passed that concurrent resolution they made it a law to the body that is charged by the Constitution with the duty of counting the electoral votes. For what is a concurrent resolution? I under stand from the Digest that we have three kinds of resolutions. First, the simple resolution, which expresses the opinion of the House adopting it; we have the joint resolution, which is in the nature of a law and which re quires the concurrence of the executive de partment ; and we have the concurrent reso lution, which is the recorded opinion of the two Houses concurring, running together; and this resolution is of that nature. It came here from the Senate, and it was adopted by a party [majority or nearly a party majority on the floor of this House. It became thus the law of that body subsequently constituted by the Senate and House the convention. And when the gentleman who presided yesterday came here and declared that he would hold the Senate and the House to that resolution, he appre hended his duty precisely, in my judgment; he did precisely that which, he was here to do : he was to hold these bodies to the rule they had prescribed for their own government, whether it were good, bad, or indifferent. It was the law of that body. They could not de part from it. No gentleman in the Senate or in the House, so far as we know, has ever pro posed to repeal it or to modify it. I submit, then, that the President of the con vention was bound to administer it. He did no more than it was his duty to do, and when the gentleman from Massachusetts proposes to censure him, I am opposed to his resolution. I would rather vote for a resolution to applaud the conduct of the President of the conven tion for holding the two Houses to the resolu tion, although I believe the resolution is one which never ought to have been passed. But then what did this House do? This House, having concurred with the Senate in solemnly agreeing that the vote of Georgia should be counted sub modo, turned round and declared it should not be counted at all ! My friend from Maryland [Mr. THOMAS] appreciated the difficulty in which the House had placed itself, and proposed to reconsider the vote, but promptly there came a motion to lay his motion upon the table, and it was laid on the table by a large majority, and thus the House adhered to its resolution riot to count the vote of Georgia -at all. Now, the gentle man proposes to censure the Senate and the President of the convention for not recogniz ing that resolution of this House. Why, Mr. Speaker, if the adoption of the concurrent res olution was wrong under the circumstances of the case the vote yesterday was utterly in defensible. When this House had solemnly declared that the vote of Georgia should be counted sub modo, what right had this House to declare that the vote of Georgia should not be counted at all ; and when they had so de clared, what right had they to expect the pre siding officer to regard such a vote ? He treated it with the contempt it deserved. He would not be governed by it. He was governed by the concurrent resolution. For that, I say, he ought not to be censured, but ought rather to be praised. Mr. BALDWIN. Will the gentleman allow me a question ? Mr. WOODWARD. No, sir ; I have prom ised to yield to several other gentlemen, and I cannot yield to the gentleman. I did not intend to enter into the general discussion of this subject. I say that the ar guments which have been made here with re gard to the constitutional powers and duties of the two Houses in the matter of counting the electoral votes are quite outside of this question and -beyond it. This question bot toms itself upon that concurrent resolution. So long as that concurrent resolution remained 316 TWENTY-FIRST PRESIDENTIAL TERM. unrepealed it was a law to the convention. The President of the convention did no more and no less than his duty in administering it, and the Senate decided very properly, I think, that the objection of the gentleman from Mas sachusetts [Mr. BUTLEE] was not in order. It was clearly disorderly, for both Houses had ordered that Georgia should be counted in a certain manner. In making that decision they had concluded all antecedent questions. But now, Mr. Speaker, I beg to inquire why the vote of Georgia should not have been counted ; why it should have been counted with a qualification? That qualification was admirably stated by the President of the con vention when he said that the effect of the concurrent resolution was to count the vote of Georgia if it meant nothing, and not to count the vote if it meant anything. When he said that he stated the legal effect and con sequence of that resolution precisely. Now, I ask, why should a sovereign State of this Union be treated in that manner ? Listen to it ! The nation will listen to the words of Mr. "Wade, uttered from that seat yesterday, that the two Houses had decided that if the vote of Georgia would effect nothing it should be counted, and if it would effect any thing it should not be count ed. If you treat Georgia in that manner this year, what State may you not treat in the same manner next year or on some future occasion? What is that but a dissolution of the Union ? Will you say that Georgia is not in the Union ? Here are her members sitting on this floor. What right have they to be here if Georgia is not in the Union ? Georgia has been in the Union from the beginning ; she has never been out of the Union unless you allege what I deny, that her attempted secession took her out of the Union. But you say that her act of seces sion was null and void, and she herself has so declared and repealed the act, and you have reconstructed her. She is not only the original Georgia, but a Georgia reconstructed by this Republican Congress. Then, I ask, why should not her electoral vote be counted like the vote of any other State ? Gentlemen will not find in the Constitution or laws of the United States, or in the com mentaries of Chancellor Kent, or in the writ ings of Justice Story, or in any other author ity of that kind, the true reason for the course that has been pursued in regard to Georgia. I will give them the reason. The Senate had refused to admit the Senators from Georgia. It was the Senate that originated this concur rent resolution, and in an evil hour we con curred in it. And the President of the Senate came here and held us to our action, and Ke did well. But it was the Senate that invented this mode of excluding Georgia. Not because Georgia did not vote on the right day. That was not the reason ; but the reason is con tained in the preamble to the concurrent reso lution, which sets forth that it is doubtful whether Georgia is within the Union, and that that question is now pending before Congress. That is the reason assigned by the Senate for excluding Georgia. The Senate is deliberating about admitting Senators from Georgia, and therefore does not want the vote of that State counted. I say, therefore, that this whole difficulty arises out of your reconstruction laws. If you would treat Georgia as Georgia ought to be treated, as a State in this Union, and admit her Senators into the Senate of the United States, as her members have been ad mitted on this floor, there is no more reason why the vote of Georgia should be counted with a slur, or not counted at all, than there is why the vote of Pennsylvania should be treat ed in like manner. That is the origin of this difficulty, and it is not to be removed by the adoption of the resolution submitted by the gentleman from Massachusetts [Mr. BUTLER]. We are not to repair the wrong into which we have fallen by committing another wrong, in censuring the President of the joint conven tion for holding the convention to the law which they had made for themselves. I am, therefore, opposed to the resolution of the gen tleman from Massachusetts. If his proposition had been to repeal the concurrent resolution which was the cause of all this difficulty, no man on this floor would have voted for it more cordially and heartily than I would have done. As I have already said, I do not intend to enter at large into this discussion. I have agreed to divide my time with friends around me. First I will yield five minutes to the gen tleman from New York [Mr. W^OOD], after which I will yield the floor to the gentleman from Ohio [Mr. BINGHAM]. Mr. WOOD. Being unable to discuss this question properly in the time allowed me by the kindness of my friend from Pennsylvania [Mr. WOODWAED], I will, with his permission, yield to the gentleman from Wisconsin [Mr. ELDEIDGE]. Mr. WOODWARD. Certainly ; I have no objection. Mr. ELDEIDGE. Mr. Speaker, I had not expected to have an opportunity of saying a word upon this question until a moment ago, when the gentleman from New York [Mr. WOOD] informed me that he was allowed two or three minutes, but felt too unwell to address the House at this time, and that I might have his time. I thank him for his courtesy, and avail myself of it to state, as well as 1 can, my position upon the question before the House. I concur with gentlemen who have spoken upon it as to the great importance of the sub ject, the magnitude of the question involved. I thought I saw on yesterday, in advance of the difficulty and entanglement into which the House precipitated itself, that that result must follow. And I will declare, for I cannot argue in the short time allowed me, the view I take of this matter. I believe that the concurrent resolution and the twenty-second joint rule of the two Houses are both of them in contraven- ULYSSES S. GRANT, PRESIDENT. 317 Georgia or the people of Georgia, but it is Massachusetts or Wisconsin that may not be allowed to utter its voice on the question. Now, I assert further, and as an additional reason, that the concurrent resolution is in raj judgment an utter nullity, because it is in di rect contravention of the statute of 1792, which provides substantially what the Constitution itself provides. No one, I trust, will have the hardihood to contend that the Senate and House of Representatives can by a concurrent resolution repeal an act of Congress, that a concurrent resolution can be valid when it conflicts with an act passed with all the legis lative requirements to make it a law. The Senate, the House of Representatives, and the President of the United States concurred in the passage of the act of 1792, and no act of either branch can annul that law. It must stand till repealed by the concurrence of the same authorities. The section of that act tD which I refer contains the following require ment : " Congress shall be in session on the second Wednesday of February, 1793, and on the second Wednesday in February succeeding every meeting or the electors ; and the said certificates or so many of them as shall have been received shall be opened, the votes counted, and the persons who shall nil the offices of President and Vice-President ascertained and declared agreeably to the Constitution." This is a law of Congress upon your statute- book, unrepealed, in full force, unless it be ab rogated by this concurrent resolution. There is no doubt, it seems to me, that they are in direct conflict. The House and the Senate un dertook by this concurrent resolution to de clare that the vote of Georgia should not be counted if v it had any effect upon the result. The statute aud the Constitution say it shall be counted to ascertain the result. And yet gentlemen contend that that resolution became the law of the convention; that the convention was bound to carry it out ; that the presiding officer did his duty in obeying it ; that it was our duty to record the vote precisely as that resolution directed. I hold that this cannot be so for the reason I have stated, that it is in conflict with the statute and the Constitution. Again, sir, if it be so, the vote of Georgia was virtually counted, or the counting of it certainly determined upon, before the day fixed by law for counting the votes had ar rived. If the convention must have followed or obeyed this resolution, the vote was counted by the resolution, or the act of the Senate and House of Representatives in the adoption of the resolution. There is no view that can be taken of it that does not clearly show the resolution to be null and void. The disgrace ful scene which was exhibited here, and ths difficulties growing out of the action of the Senate and House, are the result of the disre gard of the Constitution. Its requirements are plain and simple, and obedience to its provision never brings upon the country troubles, disas ters, or dishonor. It is only when some pur- 318 TWENTY-FIRST PRESIDENTIAL TERM. pose outside of its authority for some selfish or partisan end is sought to be accomplished that the Congress and country is dishonored by the exhibitions of yesterday. This concurrent resolution is not the only piece of unconstitu tional legislation that will torment its inven tors. You will find it in your way and crossing your path at all times and in thousands of ways in a proper administration of the Government. There is but one course to pursue, and that is to reconsider what you have done amiss, come back to the Constitution, and follow and obey its requirements. [Here the hammer fell.] Mr. WOODWARD. I now yield to the gentleman from Ohio [Mr. BIXGHAM]. Mr. BINGHAM. Mr. Speaker, I thank the gentleman from Pennsylvania [Mr. WOOD- WAED] for his courtesy in allowing me a few moments in which to express my views touch ing the question which is now pressed upon the consideration of the House. I agree with the gentleman from Massachusetts [Mr. BUT LER], \vho has opened this unfortunate con troversy, that this is a very important ques tion. I hope, sir, that in the very short time allowed me I may be able to demonstrate to the satisfaction of the House that the proposi tion presented by the gentleman from Massa chusetts and I refer more particularly to his first resolution is a proposition that this House shall, by vote, solemnly declare them selves under their oaths violators of the law. On that point I take issue with the gentleman to-day ; and not simply for to-day, but for all time. It is with me, Mr. Speaker, as a Representa tive of the people, a controlling principle, that, whether we be satisfied with the law or not, we are bound to obey it. It was as obligatory upon this House as it was upon the presiding officer of the Senate to have respect to the concurrent resolution of the two Houses. And I tell the gentleman from Massachusetts to-day, with all due respect for his acknowledged ability and learning, that it is too late to come in with ad captandum speeches to arraign the Constitution of the country and its interpretation by its makers and its builders from the day of the organization of the Government to this hour. The gentleman proceeds upon the hypothesis that the two Houses by concurrent resolution cannot bind themselves. I tell the gentleman that the concurrent resolutions of the two Houses have bound the action of the repre sentative branch of the legislative department of this Government from the first year of its existence to this hour, and until the gentleman challenged the power yesterday I undertake to say it never was challenged by a Representative of the people. In what I have just said I refer to the concurrent resolution of the two Houses, known as the joint rule touching bills or reso lutions, passed in 1790. That rule binds the House to-day. -Who has ever questioned its validity ? Why does not the gentleman rise in his place and introduce a similar resolution to this House and say of the joint resolution of June 10, 1790, it is an invasion of the rights of the House, of Representatives ? He might just as well do this as do what he proposes. You have a concurrent resolution here touch ing the counting of the vote of Georgia, which was followed in the letter and in the spirit by the Presiding Officer of the Senate, by which you not simply clothe Mm with the author ity to do what he did do, but you imposed the duty upon him to obey it, and it was our duty to bow with respect before the requirement of that law. Yet the gentleman comes with this resolution and asks the House to pass it or to refer it; for I see he has an amendment to refer it. I shall ask a division of the question, because, as a Representative of the people, I cannot consent that a proposition of this sort shall even by intendment receive my approval. It is this- Resolved, That the House protest that the counting of tbe vote of Georgia by the order of the Vice-Presi- derat pro tempore was a gross act of oppression and an invasion of the rights and privileges of the House. Now, sir, the Vice-President pro tempore of the Senate followed this concurrent resolution of the two Houses : Resolved by the Senate (the House of Eepresent- atives concurring), That on the assembling of the two Houses on the second Wednesday of February, 1869, for the counting of the electoral votes for Pres ident and Vice-President, as provided by law and the joint rules, if the counting or omitting to count the electoral votes, if any, which may be presented as of the State of Georgia shall not essentially change the result, in that case they shall be reported by the President of the Senate in the following manner: were the votes presented as of the State of Georgia to be counted, the result would be, for for Presi dent of the United States, votes ; if not count ed, for for President of the United States, votes ; but in either case is elected President of the United States ; and in the same manner for Vice- President. Mr. Speaker, that is precisely what was done on yesterday, and the gentleman in his resolu tion assumes that that fact is not as it is re corded. I tell the gentleman in all candor that it was unworthy of him, who is of the capacity to understand as well as any other gentleman on this floor the action of this body, to embody in his resolution that as a fact which is contradicted by your written record. I say, sir, that his resolution is con tradicted by the written record of the two Houses. That record as made is in accordance with the very letter and spirit of this concur rent resolution. And now comes the gentle man asking the House to stultify itself and say to the country, to use his own words, In vio lating our own law we have recourse to the sacred right of revolution. Sir, the right of revolution is never sacred save when exercised in vindication of a right and in the redress of a wrong. It is invoked here neither for the vin dication of a right nor the redress of a wrong. On the contrary, the sacred right of revolution ULYSSES S. GRANT, PRESIDENT. 319 is invoked here for the purpose of violating your own law. Mr. BUTLER, of Massachusetts. Will the gentleman allow me Mr. BINGHAM. No, sir ; I am limited to twenty minutes. Mr. BUTLER, of Massachusetts. I only want to say that you are not quoting my words in that connection. Mr. BINGHAM. Unfortunately the gentle man s remarks do not appear in the Daily Globe. I am guided only by the report given to us by the reporter of the Associated Press. I am glad if the gentleman takes back his words. Mr. BUTLER, of Massachusetts. I take back nothing. Mr. BIXGHAM. Very well ; then, if you take back nothing you have said, I ask the House to compel you to take back your revo lutionary resolution, for whether the gentle man can retreat from what he said, in the absence of an official report of his words, or not, he cannot retreat from his revolutionary resolution ; and I denounce it here to-day be fore this House and the country as unwarranted as any act of secession. Sir, does the gentleman ask me for authority in the Constitution for this power which has been exercised by concurrent resolution from the first year of our national existence to this hour ? I point him to the words that ought to be familiar to every schoolboy in the land, that by the Constitution it is provided that each House shall make rules for the govern ment of its own proceedings ; I point him to the other words that the Congress of the United States, being composed of a Senate and House of Representatives, shall have power to pass all laws that is to say, all rules, for a rule is a > law to carry into effect all powers vested by jthis Constitution in the Government of the United States, or any department or in any officer thereof. Is not the President of the Senate an officer of the United States, and does not your Constitution say that he shall open the certificates of the electoral votes in the presence of the two Houses" and the same shall then be counted? Does not your con- i icurrent resolution, which is a rule, a law for Ithe government of the two Houses, say what shall be done with it when it is opened ? Have I not read it in the hearing of the House ? It never received my sanction as a Repre sentative of the people. If I had been in my : place and not confined by sickness to my bed, r ;I might have asked that in some respects it ; might be changed ; but it is enough for me to know that it received the sanction of the two Houses of Congress under the Constitution of tj rny country. I insist that it was, therefore, as t ; binding upon us when in convention assembled [I under the twelfth article of the Constitution to :: receive the certificates of the electoral votes ;i 3f the States which the President of the Senate m 9 directed by the Constitution to open in the presence of the two Houses as any law upon your statute-book. I have risen here under this limitation of time to denounce, as a Representative of the people, this attempt to inaugurate revolution on the floor of this House. I shall insist on, and by the help of my fellow-Representatives I shall obtain a division of this vote, and see whether this first resolution is to be concurred in even by a reference to a committee. Why, sir, by referring it you in some sort make yourselves consent seemingly to challenge the obligations of your own laws. How would it look for us to refer another resolution sug gested by the speech of tl;e gentleman from Massachusetts, and that is, that your Judiciary Committee, or whatever other committee it may be that you refer it to, in the elegant words of the gentleman, shall authorize this House, if the Senate will not retire at its re quest from the joint convention, to " kick them out," and that the gentleman from Massachu setts shall be the captain in the kicking opera tion ? [Laughter.] Mr. Speaker, the gentleman s speech in that behalf which I think he cannot gainsay which brought down the galleries and "split the ears of the groundlings," illustrates the animus of this resolution. I denounce it here as a resolution of revolution ; I denounce it here as a resolution of anarchy. The idea of the House of Representatives kicking the Sen ate of the United States from its presence ! About the time that is accomplished you will have kicked the law-making power of the peo ple out of existence; about the time that is accomplished you will have proved yourselves greater architects of your country s ruin than the million of men who for four years waged war upon your Constitution and your laws, drenching your land in blood arid ridging it all over with graves. Now, Mr. Speaker, in order to enforce somewhat the remarks that I have made, I ask the attention of the House to the words of the twenty-second joint rule. If I under stand aright, the gentleman from Massachu setts [Mr. BUTLER] in his remarks yesterday and I would not intentionally do him in justice it was to the effect that the twenty- second joint rule was unconstitutional and ought to be repealed. And to show that I am not mistaken I will fortify my remark by a reference to the second of the series of reso lutions offered by the gentleman from Massa chusetts, a copy of which has been kindly fur nished me by the Clerk. That resolution is in these words : ^Resolved further, That the twenty-second joint rule of the House and Senate be, and is hereby, re scinded on the part of the House. Mr. Speaker, who before ever heard of a resolution for the repeal of a joint rule in that form ? A concurrent resolution or a joint rule of the Senate and House of Representatives to be rescinded on the part of the House." 320 TWENTY-FIRST PRESIDENTIAL TERM. You might just as well introduce a resolution liere to-day that the act of 1792, covering this same question, referred to by the honorable gentleman from Wisconsin [Mr. ELDEIDGE], u be, and the same is hereby, rescinded on the part of the House." What business has the House, acting separately, to repeal a concur rent resolution or a joint rule of the two Houses, or an act of Congress ? Wherein does that differ from the act of secession of South Carolina, wherein they said that the Constitution and laws of the United States, though declared to be the supreme law of the land, "are hereby repealed on the part of South Carolina ?," The Grand Army of the Republic, under the lead of the honorable gen tleman himself and of thfc honorable gentle man from Illinois [Mr. FAEXSWOKTH], who sits on my left and is now giving me his attention, and of other gentlemen, notified the State of South Carolina and other States that had fol lowed her lead that the laws of this country were not to be repealed by any body of men whatever without the concurrence of the Sen ate and- House of Representatives, and the Constitution of the United States was not to be repealed or altered without the concurrence of the Legislatures or the conventions of three- fourths of the States. The gentleman from Massachusetts now tells you that this joint rule is unconstitutional. What is it, and how does it stand with his argument, and where does it leave us if we follow his logic? That rule provides, among other things " If, upou the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein specified, the same hav ing been stated by the presiding officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision, and the Speaker of the House of Representatives shall in like manner submit said question to the House of Repre sentatives for its decision ; and no question shall be decided afiirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses ; which being obtained, the two Houses shall immediately reassemble, and the presiding offi cer shall then announce the decision of the question submitted, and upon any such question there shall be no debate in either House." The gentleman says that is unconstitutional. Nothing, then, would seem to suit him. This twenty-second rule, if it had not been reformed or changed by the subsequent joint action of the House and Senate, expressly required that if the two Houses did not concur in receiving the vote of a State to which objection had been made in joint convention that vote should not be counted. But the two Houses did, by concurrent reso lution, agree that if the vote of Georgia did not change the result the record should be made precisely as it was made. Then why all this noise?. The vote of Georgia was not counted so as to affect the result," and nobody knows that better than the gentleman from Massa chusetts. It was counted simply as the con current resolution of the two Houses of the Fortieth Congress directed it to be counted* It was the sworn duty of the President of the Senate, presiding over the joint convention, to obey that law, wli ether he approved it or not ; as it is our sworn duty to obey it whether we approve it or not. For doing his duty this House is called upon to censure the President of the joint convention and to charge him with oppression of the House and an invasion of its rights. Sir, it will be a sad day for America when it goes out to the people that the House of Representatives has denounced a commissioned officer of the people, acting under the obliga tion of his oath, for obeying the law even in the presence of a mob spirit that would dis grace any assemblage of men that ever con vened on the face of God s footstool. Sir, I honor the grand old Roman for standing in his place unawed, and saying, " Come what will, I will abide by the law." Notwithstanding the clamor and uproar he stood unmoved, without anger, without passion, bowing before the majesty of the law, demanding that the tellers appointed under the rules of the con vention should announce the result according to the express letter of your law. Sir, if BENJAMIN WADE had never done any other act in his life than this, it should entitle him to the respect of his countrymen. If he had fallen amid the clamor and tumult which the gentleman from Massachusetts raised here in his place, it might have been written over his grave, " Go, tell those who survive me that I lie here in obedience to your law, and in de fiance of the clamor of a mob." Sir, I de nounce the gentleman s proposition as a prop osition of anarchy; that anarchy which has no head and cannot think, that anarchy whicli has no heart and cannot feel; which in its fury and its madness tramples down law and with it order ; tramples down childhood and youth, defenseless womanhood, vigorous manhood, and venerable age; which hushes the sweet voices of home, shatters its altars, and scatters darkness over its hearthstone. I ask the Rep resentatives of the people to put their seal of condemnation oh this resolution, and to lay it on the table, there to rot. Mr. SCHENCK was recognized by the Speaker pro tempore. Mr. FARNSWORTH. Mr. Speaker, the gentleman from Ohio [Mr. BINGHAM] yielded to me. The SPEAKER pro tempore. The Chair did not understand the gentleman from Ohio as yielding to the gentleman from Illinois [Mr. FARNSWOKTH]. Mr. FARNSWORTH. That being the fact, however, I suppose I am entitled to the balance of his time. The SPEAKER pro tempore. The Chair was not made acquainted with the fact. Mr. BINGHAM. I did not know my col league [Mr. SCHENCK] was on the floor. My remark to the gentleman from Illinois was not ULYSSES S. GRANT, PRESIDENT. 321 heard bj the Chair or by my colleague either, I presume. The SPEAKER pro tempore. The Chair had accorded the floor to the gentleman from Ohio [Mr. SCHENCK] before he became aware of the fact that his colleague [Mr. BINGHAM] desired to yield to the gentleman from Illinois [Mr. FARNSWORTH]. Mr. FARNSWORTH. That was under a misapprehension, the gentleman from Ohio [Mr. BINGHAM] having yielded to me. The gentleman before taking his seat said he yielded to me. Mr. SOHENOK. I rise to a question of or der. My point of order is this : that after my colleague had concluded his remarks and sat down, it was not possible for him to add a postscript or addendum to his speech by re membering that he had a few minutes left and rising to give those few minutes to any body els 3. The SPEAKER pro tempore. If the gentle man from Ohio [Mr. BINGHAM] on the right of the Chair will state that before he sat down he yielded the floor to the gentleman from Illinois [Mr. FARNSWORTH], the Chair will feel bound to carry out the arrangement. Mr. BINGHAM. The gentleman from Illi nois had, before I began, requested me to yield him a few minutes when I should have con cluded ; and as I was taking my seat just now he said to me, " Do you yield to me?" and I said, " I do." These gentlemen around me heard what took place. I did not know that my colleague [Mr. SCHENOK] was on the floor. Mr. GARFIELD. I rise to a question of order, whether the hour of the gentleman from Pennsylvania [Mr. WOODWARD] has not expired ? The SPEAKER pro tempore. It has not. If the gentleman from Ohio [Mr. BINGHAM] says that he yielded to the gentleman from Illi nois [Mr. FARNSWORTH] before taking his seat the Chair will accord the floor to the latter gentleman. Mr. FARNSWORTH. He has so stated. The SPEAKER pro tempore. The Chair understands the gentleman from Ohio to make that statement. Mr. SCHEN"CK. I desire to ask a question here before I insist on my right, for I was recognized. I understand it is the purpose of the gentleman from Illinois [Mr. FARNSWORTH] to move to lay the resolution on the table. Mr. FARNSWORTH. That is my purpose. Mr. SOHENX5K. Then, sir, I claim my right to the floor under the rules of the House. I was recognized and in possession of the floor before the gentleman from Illinois claimed it. The SPEAKER pro tempore. The Chair recognizes the gentleman from Ohio [Mr. SOHENCK] under what appears by the state ment of the other gentleman from Ohio [Mr. BINGHAM] to have been a misunderstanding of the fact. The gentleman from Ohio [Mr. BINGHAM] had a right to yield the remainder 21 of his time to the gentleman from Illinois, and, as the Chair understands, he states that he did so. Upon that statement, and that alone, the Chair accords the floor to the gentleman from Illinois. Mr. SCHENCK. Now I make another point, that the time was ribt the time of my col league [Mr. BINGHAM]. The rules give to a member obtaining the floor an hour. It has been interpreted I think improperly that he may yield to another to speak on the same sub ject ; but the latter may not yield to another. The gentleman from Pennsylvania [Mr. WOOD WARD] was entitled to the hour, and might have given it, perhaps, to the gentleman from Illi nois under the construction of the rule to which I have referred ; but he did not do so. My col league [Mr. BINGHAM] had no right to dispose of the time which belonged to the gentleman from Pennsylvania. The SPEAKER pro tempore. The Chair inquires of the gentleman from Ohio [Mr. BINGHAM] again whether he states that he in formed the Chair publicly before he took his seat that he yielded the floor to the gentleman from Illinois [Mr. FARNSWORTH] ? Mr. BINGHAM. I attempted to do it ; but I do not presume the Chair heard me at all, because I felt weak and exhausted, having been unwell for a week. But I state now simply what I said before, and what is known to gen tlemen around me, that this gentleman had appealed to me to yield him a portion of my time before I began speaking, and just as I was concluding, having forgotten what I had prom ised, as I was taking my seat he said, " Do you yield to me ? " and I said " I do." The SPEAKER pro tempore. The Chair is under the necessity of putting the question once more. Did the gentleman state to the Chair before he took his seat that he yielded the balance of his time ? Mr. BINGHAM. I do not undertake to say that at all, for I was getting into my chair. The SPEAKER pro tempore. The Chair is then under the necessity of according the floor to the gentleman s colleague [Mr. SOHENOK]. Mr. SCHENCK. Mr. Speaker- Mr. FARNSWORTH. I was about to say to the gentleman from Ohio [Mr. SCHENOK] that if the floor had been accorded to me I would have waived my right to make the mo tion I indicated until he should have concluded what he desired to say. I only desired to come to an end with this debate. Mr. SCHENCK. Mr. Speaker, I do not wish to be considered as having manifested any undue warmth in this matter, but a prac tice has grown up here of stifling all debate. [Laughter.] Gentlemen may think it amus ing, but I think there is plenty of talk in this Hall, and perhaps I take my share in it, though I think I may truly say that I seldom talk about anything except that which comes from rny own committee, but not much of TWEXTY-FIRST PRESIDENTIAL TERM. what is properly called debate. I took the precaution yesterday to inscribe my name on the roll of members who desired to speak, as is the custom here the first time I think I ever did it, though it has been done for me once or twice before and I found great diffi culty this morning in getting the benefit of that inscription. Therefore I feel a desire, if I am permitted to take part in this debate at all, to do it when it is fresh before the House and before it should be considered all on one side and then laid on the table without an oppor tunity to reply to the argument already made. So far as the grave question before the House is concerned nothing is further from my inten tion than to indulge in any warmth or undue or excited feeling about it. Nobody can re gret more than I the very painful scene which took place in this Hall yesterday upon the oc casion of counting the votes for President and Vice-President. This disorder it may be said was principally on this side of the House, con fined to members of the House of Represent atives, and those, too, of the dominant party of the country. From that I draw this lesson and this inference. Here the Republicans sat witnessing with satisfaction the result of our labor in the late campaign, knowing that those whom we had chosen to be President and Vice-President were to be declared elected as such. Therefore it cannot be supposed that those who manifested any excitement on this side of the House were actuated by a disposi tion to interfere with a declaration of that re sult for which we had so much longed, and which we were s6 gratified in seeing accom plished. How, then, do you account for it that the very friends of those who were to be de clared President and Vice-President should have been those who made objection to the course of procedure here unless you give them credit for some feeling of indignation or sense of impropriety in the character of that pro ceeding? Now, sir, I share in that feeling with others, and sharing in that feeling, and believing that all that then transpired occurred in such aVay as to raise a very grave and important ques tion with regard to the relative rights of the House and Senate before the people of the country, I am not disposed to be seduced, either by the rhetoric of my colleague [Mr. BINGHAM] or by any general denunciation from any source, from asserting what I believe in regard to the manner in which the Senate and the presiding officer of the Senate transcended the limits which ought to have shut in the ac tion of that body in connection with the House yesterday. My colleague who first addressed the House this morning [Mr. SHELLABAEGEE] gave us, in his very forcible, logical manner, his views of this case as it involves questions of constitu tional law and of legislation. I think, how ever, that I will attempt to show that my col league was not as happy as usual in connecting his premises and conclusions in that argument of his. Let us look at his argument, beginning where he did with the Constitution of the United States and its provisions bearing upon this subject as the starting-point for all the consideration that is to be given to the ques tion involved. It is provided in the Constitu tion that the President of the Senate shall open the certificates from the different States and the votes shall then be counted. It is, as my colleague says, not prescribed by the Consti tution who shall be the counter of the votes. He infers that if we rested upon the Constitu tion alone, and there were no legal provisions of any kind upon the subject, it would follow that this counting was to be done by the Pres ident of the Senate, I will make no issue with him upon that point. He quotes Kent as an eminent jurist for the opinion that the Consti tution being silent the counting would be done by the President of the Senate unless some legislative provisions were enacted determin ing how that counting should be done. I will make no issue with him upon that. My col league proceeds a step further and argues that for want of legislation upon this subject, as I understand him, having only a joint rule made between the House and the Senate upon the subject, the power remains with the President of the Senate. That I understood to be his argument. I understood him to take the ground that these joint rules which we had adopted were unconstitutional. Mr. SHELLABARGER. Oh, no. Mr. SCHENCK. Then I beg my colleague to explain what he did argue, because that was the impression he made upon others be side myself. Mr. SHELLABARGER. I thank my col league for the privilege of explaining. I state first, that in the absence of all legislation my opinion agrees with that expressed by Chan cellor Kent, that, subject to such rules as may be prescribed for the purpose, the President of the Senate would do the counting, guided by any rules that might be provided, if any be provided, as there ought to be. Then I state further that if there be no constitutional rule provided, in the absence of such rule the count must be made in a convention composed of the President of the Senate and of the two Houses, and that any attempt to count in the separate bodies would be in contravention of that provision of the Constitution which re quires that it shall be done in the presence of the three constituent elements ; and that, therefore, the provision of the twenty-second rule which dissolves the convention by sepa rating the parties to it and provides for a count in a different way is, in my judgment, in con travention of the Constitution, and that we are left to the operation of a rule that we made ourselves. Mr. SCHENCK. I do not yet understand whether my colleague denies that joint rules on the subject are constitutional. ULYSSES S. GRANT, PRESIDENT. 323 Mr. SHELLABARGER. I stated distinctly fchat I regard the twenty-second rule as uncon stitutional, for the reason that it requires or authorizes the counting in separate bodies, and I say that the concurrent resolution, which does not require that, is constitutional, and that it justified what was done by the Presi dent of the Senate yesterday. Mr. SOHENXJK. I think I apprehend the gentleman s point now; and my answer shall be made just here without waiting to come to that point in the line of my argument, and it is this: that when the two branches of the legislative department meet in convention, hold joint meetings, and a question arises and they separate, the Senate retiring to its Chamber, the House remaining as it is, each to pass its opinion upon the subject, and then to compare to sea whether they concur or not, they are yet not sitting as a Senate and a House, prop erly considered, but each is acting as a part of the joint meeting, just as is done under the law in cases where the election of a United States Senator takes place in a State Legisla ture. I hold, therefore, that there is nothing in the joint rule that amounts to anything more than legislation to carry out the provisions of the Constitution in the only way in which that legislation could reasonably be expected to be made. It is true that, instead of agreeing upon a joint rule between the Senate and the House, there might have been an act passed embody ing the same matter, to be approved and signed by the President of the United States. But this I hold would have given it no greater cer tainty. The President of the United States is in no sense whatever a party to the counting of the votes for President and Vice-President. My colleague [Mr. SHELLABARGER] well re marked that there are three parties to that transaction : the President of the Senate, the Senate, and the House of Representatives, coining together in joint meeting, over which the President of the Senate is to preside. Therefore, inasmuch as it related to that which the House and the Senate were to do jointly and concurrently, there was no necessity for legislation by act of Congress, to be approved by the President, to sattle the mode of pro ceeding ; but that might be done by a joint rule or concurrent resolution. J, then, hold that the joint rule under which we act is not only a constitutional provision, in regard to its details as to the manner of counting, but I also hold that it is just such a legislative act, in one sense, as alone was ne cessary ; because it was one of those acts which, relating simply to the concurrent action of the two Houses, did not need the sanction or ap proval of the President of the United States, as in the case of an ordinary enactment. Mr. SHELLABARGER. Will the gentleman yield to me for a moment ? Mr. SCHENCK. Well, I have but little time to spare ; but I will yield. Mr. SHELLABARGER. I wish to ask the gentleman this question : the two Houses dif fered yesterday about the vote of Georgia. The one House came to one conclusion and the other House to another. Now, suppose that it was competent under the twenty-sec ond rule to refuse to count a State unless both Houses concur in so doing, and thqgfwo Houses come to opposite conclusions on the subject, how could the vote of the State ever be counted, the two Houses not agreeing that it should be counted, as the rule requires that they shall do before it can be counted ? Mr. SCHENCK. That goes to the whole question of the power of legislation to carry out that provision of the Constitution. I have no trouble at all in my own mind about that constitutional question, because I do not see the same difficulty that my colleague does in the joint rule upon the subject. I hold that it is a casus omissus in the Constitution ; that the Constitution requires not that the President of the Senate shall count the votes at all ; there is no such declaration in the Constitution. But it declares that he shall open the certificates and that the votes shall be counted. That provision of the Constitution, not nec essarily executing itself, is to be aided by such provisions in reference to its execution as may be needed in the form of legislation, in order that the provision of the Constitution may be carried out like any other provision in the Constitution which needs auxiliary legislation. And I hold, as I said before, that legislation in the shape of a concurrent resolution of the two Houses, or of a joint rule, a concurrent resolution put upon your journal, as was the one passed last Monday, is sufficient for that purpose, because it is a matter where there is no duty devolving upon the President of the United States, but it only concerns the Senate and the House. Now, if I am right in assuming that the joint rule of the Senate and of the House is consti tutional in all its parts and I do not know that .my colleague [Mr. SHELLABARGER] denies that fact what next ? Last Monday, in view of the peculiar condition of affairs in Georgia, we passed a concurrent resolution, which, to all intents and purposes, was a joint rule look ing to a special case and to some particular question which might arise in that case. It was no more and no less than that. Look at it. The concurrent resolution explains its very object in the recital of the preamble, which is as follows : " Whereas the question whether the State of Geor gia lias become and is entitled to representation in the two Houses of Congress is now pending and un determined; and whereas, by the joint resolution of Congress, passed July 20, 186S, entitled A resolution excluding from the Electoral College votes of States lately in rebellion which shall not have been reor ganized, it was provided that no electoral votes from any of the States lately in rebellion should be received or counted for President or Vice-President of the United States until, among other things, such State should have become entitled to representation in 324 TWENTY-FIRST PRESIDENTIAL TERM. Congress pursuant to acts of Congress in that behalf: Therefore, Resolved," etc. Eesolved what? That when the State of Georgia came to have her vote presented as contained in the sealed certificate which might be brought here, and that certificate was opened, it should be the duty of the President of the Senate, when all else that the Consti tution and fhe joint rule required had been done, to declare that if that vote were recorded such and such would be the result, and that if it were not counted there would be another result, and that there his duty was to end. The mistake which I think some gentlemen make is in supposing that this concurrent reso lution repeals or in any respect whatever con flicts with the joint rules of the House and the Senate. This concurrent resolution confines itself to the question whether Georgia is enti tled to be represented or not. It does not touch the question of the certificate nor what the certificate contains. It does not touch the question of examining the contents of the cer tificate with a view to counting the vote. Now, let me put a case. Suppose coming here with your concurrent resolution, which does not reach beyond the mere question of the title of Georgia to be represented, you find upon the table of the President of the Senate, or in his hand, the seals being broken by him, a certificate from Georgia which, when opened, proves to be a paper without seal and without signature. Can any objection be made? Ac cording to the theory which I am now com bating no objection can be entertained. Un der this concurrent resolution, as gentlemen here construe it, the President of the Senate, as a mere automaton, is to rise in his place and say, "If this vote be counted the result will be so ; if it be not counted, it will be thus." Suppose you open the envelope sup posed to contain the return and find no return at all but an old newspaper, the President of the Senate is still to go through the mum mery and farce of rising and saying that if it be counted the result will be so ; and if it be not counted the result will be otherwise ! Suppose you open the return and find that the electors of the State of Georgia have met in the capital of the State of South Carolina, you cannot take notice of that fact, because your concurrent resolution says that the Presi dent of the Senate, as a mere puppet, must rise in his place and say, " If this be counted the result is so ; if it be not counted the result is thus." Suppose on opening that return you find that the State of Geogia, instead of cast ing the number of electoral votes to which she is entitled, has cast twenty votes ; the Presi dent of the Senate, still acting in his mere automatic capacity, must get up and say, " If you count those twenty votes the result will be so ; and if you do not count them the re sult will be thus." What does all this prove ? It proves that your concurrent resolution does not touch the question in regard to what shall be done when the certificates are opened. It does not reach the question of counting. It deals with none of these grave forms which are to be observed in order to ascertain whether the votes certi fied in any particular return are to be counted. It stops at the threshold, upon a preliminary question, avoiding the other and graver ques tion that lies behind. It provides what shall be done that there may be no committal on that question ; but it leaves all that relates to the count, all that relates to the form of the certificate and its sufficiency, entirely open, to be disposed of under the joint rules of the two Houses. That is the proposition I make in re gard to this matter; and I say that gentlemen all along have begged the question, and none more so than my colleague [Mr. BINGHAM], when he denounced the views of those who differ from him and maintain Mr. BINGHAM. The gentleman will allow me to correct him. I did not denounce the views of those who differ from me. I de nounced the resolution of the gentleman from Massachusetts, as 1 had a perfect right to do. Mr. SCHENCK. I beg my colleague s par don if I am mistaken, but I thought he char acterized all this proceeding as "revolutio nary " and Mr. BINGHAM. I characterized the pend ing resolution as "revolutionary." Mr. SCHENCK. And we heard a great deal about "anarchy," in which the gentleman soared so high that I could not follow him, although I would have been glad to do so, be cause I always admire his rhetoric. At least I am justified in saying, in regard to the posi tion of my colleague and he knows that I like him too well to use toward him any lan guage in an offensive sense that he with other gentlemen has assumed that the two acts of the Senate and the House, the concurrent resolution and the twenty-second joint rule, are in conflict with each other, so that, in the language of the Speaker, that last passed re peals the other. I hold no such doctrine. I say that there stands the joint rule cover ing all the questions that may arise after the certificate is opened in regard to what is in the certificate, and that the concurrent reso lution stops short of all that, and merely deals with ths> preliminary question whether we will commit ourselves in anything we do upon the question whether Georgia is or is not entitled to representation or to have its electors for President and Yice-President counted. What is our twenty-second joint rule ? " If upon the reading of any such certificate by the tellers any question shall arise" In regard to what ? "In regard to counting the votes therein certified, the same having been stated by the Presiding Of ficer, the Senate shall thereupon withdraw." If any question shall arise after the opening of the certificates with regard to the counting of the votes therein certified. Did your con- ULYSSES S. GRANT, PRESIDENT. 325 current resolution relate to that ? Did it refer to what was in the sealed package in the hands of the President of the Senate? That was im possible. When the House and Senate on Mon day last tried by their concurrent resolution to take some safe ground by which they should not be led to commit themselves upon the ques tion whether Georgia was or was not entitled to have electors, they never reached forward into, they never pried under the seal, nor tried to divine the contents of the certificate, which was to them a sealed book ; but they waited until a question should arise in regard to the counting of the votes therein certified. Now, if ray colleague maintains that our joint resolution upon this subject is unconstitutional I am afraid his argument will go too far. What right have we to make rules at all ? The Con stitution of the United States says that each House shall make rules for its own proceedings, but it is silent about joint rules. Inferentially, because each House may make rules in regard to its own proceedings, it has been held from the origin of the Government that the House and Senate may agree together in regard to a joint rule which relates to that in which they have a mutual interest, or where mutual and reciprocal duties are to be discharged. If my colleague succeeds in satisfying the House that this joint rule is unconstitutional I very much fear his argument will go to the extent under the Constitution of making all joint rules un constitutional ; for all joint rules are made un der the inferential power that, as each House can make rules for its own proceeding, they may also regulate what may take place between themselves or where they are jointly concerned. I repeat, then, my proposition. We have a general rule upon this subject, and then, to say the least of it, we have a concurrent rule passed at the beginning of this week amendatory of the joint rule in reference to a special case, and a particular question or class of questions that may arise in that case, and the two, so far from being irreconcilable, can each be sustained without one being regarded as conflicting with or operating as a repeal of the other. Now, sir, I come to a matter more delicate than this. This I lay down as the law under which we are to act. What did we do ? We met. A question arose first in regard to the vote of the State of Louisiana, as to whether it should be counted or not. The Senate re- t tired. The House remained. They passed resolutions. Those resolutions we find, upon comparison and mutual communication, to be concurrent. So it will appear, I presume, upon the record, if any be kept, of the joint meet ing ; and what has happened I presume is what ought to be recorded. And so the vote of Louisiana was counted. When we came to the State of Georgia a question was raised there again. Now, it might have been possible if the ground which gentlemen take here now and which the Senate is understood afterward to have taken be correct, that the concurrent resolution overruled and blotted out all on the subject of Georgia which might otherwise be applicable to the case of that State under the joint rule of the House and Senate, that they would at once have put down the objection, refusing to entertain it upon the ground that it was not in order, and so have gone on with the count under the concurrent resolution, that being held to be the only thing which provided for any question that might relate to Georgia. But, sir, the common sense of the House and the Senate prevailed over any such construction. We were in a good deal of a muddle from various causes, but it was ap parent to every one that here had come up a question which the concurrent resolution did not provide for. The first objection made by the gentleman from Massachusetts [Mr. BUT LER] to the counting of the vote of the State of Georgia was one which my colleague him self admits to have been a vital objection, to wit, that the electors had not met when alone the law authorized them to meet on the 2d of the month but had met on the 9th. Now, go back to your concurrent resolution and read it, read it with all the lights that have been thrown upon it by the arguments of gen tlemen here. Here is the resolution, that whereas questions have arisen as to whether Georgia is entitled to have electors or not, or has been reconstructed or not, under the laws passed ror that purpose, and so forth ; and when you have done with the reading of your concurrent resolution you are just where you were before. You find in it no law, no rule of action to regulate what you shall do when you find upon the opening of the certificate that the electors have voted at a different time from that which the law appoints. The com mon sense, therefore, of the Senate and of the House, disregarding any such strained con struction as has since been attempted to be put upon this concurrent resolution, led them to separate, the Senate going to its room to con sider this question. After they had separated what took place? The House had submitted to them, properly as I think, and therefore I voted against reconsideration, the question whether they would or would not sustain the objection made by the gentleman from Massa chusetts, and they decided that the objections were well taken. The Senate went to their room. We are not permitted by parliamentary courtesy to know what took place there any further than it was developed after their return to this Chamber. And when they returned, what did we hear ? I quote from the official report : The President having resumed the chair, said : The objections of the gentleman from Massachusetts are overruled by the _ Senate, and the result of the vote will be stated as it would stand were the vote of the State of Georgia counted, and as it would stand if the vote of that State were not counted, under the con current resolution of the two Houses. That is, we ace to infer that the Senate went 326 TWENTY-FIRST PRESIDENTIAL TERM. off upon that question, which to my mind is an absurd conclusion. Other gentlemen differ from me, and therefore I say, to make due allowance for that difference, we are to infer that they went off upon the idea that the con current resolution overrode and repealed the joint rule upon all subjects in regard to find ing out what was in the certificates when they came to be opened, and came back and grave ly told us through their organ that the Sen ate had overruled the objections made by a member of this House in his place, while acting with the House in joint meeting with the Senate. What further? If you look at the official record you will find it was communi cated to the House as a part of the record history of the joint convention what the Sen ate did ; but you have no record whatever, nor was any allowed as to what the House had done. You have a record in the House of Representatives, and you have a record of their decision as it was communicated to the Senate! These are records in the House as a House, and in the Senate as a Senate ; but the joint meeting, the joint convention, never was per mitted to know in any official way so as to make it a part of its record history what the House of Representatives did, although they had courteously separated for the purpose of each one passing its opinion in regard to whether an objection was well taken or not. Now, then, gentlemen wonder that any of us should conclude that in any form of language whatever it is proper to consider whether this is not an invasion of the rights of the House. If it be not, then we are the merest ornamental appendage of the Senate in this proceeding of counting the votes that ever any one body was made while dancing attendance upon another. How came they to be separated ? In obedience to the rule. For what ? To consider the ques tion. "What question ? A question which had arisen in regard to the contents of a cer tificate when it came to be opened. And the two parts of this joint convention, thus sepa rated under the rule to consider and report to each other what each separate part of the con vention had determined upon, were up to this point acting regularly, and only under the joint rule, without which all their proceedings would have no force ; for there was nothing else that provided for their separation. And now we are told that that joint rule was all repealed in relation to Georgia. Yet what are the facts? The Senate said it was not repealed, by going to their Chamber to decide, under the twenty- second rule, the question raised in regard to Georgia. The House said it was not repealed by remaining here in their seats and acting upon that question. And the Speaker said it was not repealed by putting the question to the House ; and when the two Houses came together again in joint convention, it was in obedience to the joint rule of the House and of the Senate, which required the two Houses to come together and make record of what had been done by each part of the joint meeting. Now there is nothing in that record of the joint convention to show what the separate action of the Hou^e was in that case. We can only learn that the Senate acted in opposition to what the House had done by happening to know what the House did ; and what the Senate overruled was not the action of the House directly, but the objection made by the gentle man from Massachusetts, the objection of the gentleman from Massachusetts, however, being made upon the construction of the House of its duty under the joint rule, and made upon the action of the House by which it gave its con struction and interpretation of that joint rule ; and when the Senate overruled it, it was not merely a squelching, or the attempt to squelch, a single member, but it was an attempt to abro gate and crush out the rights, powers, privi leges, and immunities of the House of Repre sentatives, as a part of this solemn procedure to assist at the opening of the votes for Presi dent and Vice-President. We have often heard from our worthy Speaker about the propriety of standing up for the rights of the Commons, the represent atives of the people. And I thank him for many a good doctrine taught us upon that sub ject ; they all have my hearty concurrence, and I am for them now. But I will say that it is idle, and worse than idle, for the House of Representatives, under your Constitution, under your joint rule, to come here under any circumstances to assist at the opening of these votes, if the Senate, through its presiding offi cer, can coolly come in here, after the two bodies have separated for the purpose of de ciding any question, and say that. upon second thought the Senate has agreed to overrule what was proposed on the part of the House, or of any member of the House, from which announcement there is no appeal, and about which there is to be no question, and in regard to which there is no record made. I do not want to attend any such meeting under such circumstances as a Representative of the peo ple. I will not sanction by my presence, of as little consequence as that may be to any one, any such doctrine as that which takes away the privilege, not even the privilege, but the bare right and duty of taking part in a sol emn ceremony, according to the form of the Constitution and as provided by law. Now, sir, let me illustrate in another way ; and the gentleman to whom I shall refer will know that I do it with the utmost respect and kindest regard for him. Let me illustrate by reference to the course pursued yesterday by the Speaker. The reporter for the Chronicle or for the Associated Press, who sometimes interpolates in his reports an expression of personal opinion, says that the Speaker made "a timely interruption" in threatening with arrest members of the House for disorder, when they expressed some what too excitedly, perhaps their feelings of indignation, honest- ULYSSES S. GRANT, PRESIDENT. 327 ly felt by them at this seeming disposition to trample them down and thrust them out of the way. How came the Speaker to make that order ? I thought we were in joint meet ing of the two Houses, with tho President of the Senate as the presiding officer; and with due deference to the Speaker and his authority, I hold that the gavel was not properly in his hand. I hold that, unless under some general claim as a peace officer his jurisdiction extend ing over us solely, he ought not to have threatened us with arrest ; and I can only ac count for his doing so by supposing that, like many of the rest of us, he was excited by the unusual conclusion and warm feeling of the occasion. Mr. COLFAX (the Speaker). Will the gen tleman yield to me ? Mr. SCHEN CK. With pleasure. Mr. OOLFAX. Having stated nay views to the House last evening, I had intended not to participate further in this discussion unless my official conduct should be arraigned, as it is now being arraigned by the gentleman from Ohio [Mr. SCHENOK]. The Speaker of this House feels that it is the right of every Rep resentative to arraign him if he transgresses in the performance of his duties. In this case he performed his duty. He would have been derelict if he had not performed it. He would have been subject to the future censure of the House if he had not interposed when he did interpose to check the excitement that was then transpiring. The twenty-second rule of the House provides that "It shall be the duty of the Sergeant-at-Arms to attend the House during its sittings, to aid in the enforcement of order under the direction of the Speaker." The gentleman from Ohio has for half an hour insisted that " the House of Representa tives," under the Constitution, was "sitting" in this Hall during joint session yesterday. It was a House of Representatives. , There was a Speaker. The twenty-second joint rule re quires that in joint convention he shall sit by the side of the presiding officer of the conven tion. But he is no less the Speaker of the House at that time. He is charged with the maintenance of order. When the House is "sitting," this rule undoubtedly applies. It had met as a "House of Representatives " at noon, and had not adjourned for a moment. If. during the joint session, there was"no House of Representatives here, then the Speaker ex ceeded his authority. If there was " a House " here, if the Constitution required "the House" to be here, then he performed his duty in en deavoring to command order, which had been transgressed by the repeated refusals to obey the order of him who was then presiding in joint convention. The Constitution provides distinctly, in the twelfth article of the amendment, that " The President of the Senate shall, in the pres ence of the Senate and House of Representatives, open all the certificates." Hence there must be in the joint session " a House of Representatives." There was " a House of Representatives " there yesterday. There was " a Speaker " there ; there was u a Sergeant-at-Arms " there ; and the rule pro vided where these officers should sit. They were not ciphers. They had some duties to perform. Let me ask one question. When disorder existed in the joint convention, who was to perform the duty of restoring order? If the President of the Senate, amid the excitement then prevailing, had ordered the Sergeant-at- Arms of the Senate to enforce the rules of order upon members of the House of Repre sentatives, the excitement would have been redoubled. It would have been said that the President of the Senate had not the power to order the Sergeant-at-Arms to enforce order upon members of " the House of Representa tives " in their representative Hall. But, un der the twenty-second House rule, there was an officer endowed with the authority neces sary in the emergency, and he shrank not from the performance of his duty. If he exceeded his authority he is subject, as he is for all other official acts, to the condemnation of the House. Mr. SCHEN CK. I think he was excited very much, as the rest of us were, and he for got himself. Mr. COLFAX. No ; he did not. Mr. SCHEN CK. It is only a difference of opinion, and I am fortified in that opinion Mr. WOODWARD rose. Mr. SCHEN CK. I cannot yield, when I am answering one interruption, to another. Now, sir, I thought I might be acquitted of any feeling to arraign or impeach the motives of the Speaker, and he ought to know that I have no such feeling and no such purpose. I have too much respect and too much kindly regard for him to do so. Mr. JONES, of Kentucky. I raise the point of order that there is too much disorder in the Hall. The SPEAKER pro tempore. The Chair sustains the point of order. Mr. SCHEN CK, I will proceed. If there is any issue between the Speaker and myself, it is of his seeking, and not mine. I make none. I simply, as a question of law, say that when the House of Representatives is here in joint convention joint meeting, I think the rule calls it with the Senate, it is prescribed that the President of the Senate shall preside over that joint meeting; and it is, therefore, not the Senate that sits here, not the House of Representatives, but a body composed jointly of those two branches ; and when the Speak er, out of proper respect, is assigned a place alongside of the President, and these same Senators are assigned places on the right, and the tellers are told by the joint rule where they ought to take their seats, it is to give dignity and character to the occasion. It is a regula tion in regard to the surroundings ; but as re gards the legal right of the Speaker to preside 328 TWENTY-FIRST PRESIDENTIAL TERM. and keep order, let me say that it is not double-headed monster, but one body with one head, that head for the time being the President of the Senate. Now, I wish to quote an authority on that subject. It is from the proceedings of yes terday : m "Mr. THOMAS. I was about to ask the Chair a similar question. The inclination of my own mind is in that way very strong that it is not competent for the House of Representatives by a vote of this character to supersede the resolution adopted by the Senate and House concurrently. That resolution fixed the mode of action and prescribed the rule of conduct for the Senate and House in joint meeting. I have no reference to the separate action of this body. u The SPEAKER. A reply to that question would involve a discussion of questions properly transpir ing in joint convention of the two Houses, over which the Speaker of this House has no power." That is the latest interpretation I have of the law on that subject, which was given to us by the Speaker yesterday in explaining his course of action. He said that he did not interfere because he had no power ; that the Presiding Officer was the one to do it. I allude to this not for the purpose of arraigning the Speaker, but for the purpose of showing the general conclusion which here prevailed. And while we were in joint meeting of the House and Senate, more than once the House probably seemed to forget for the time being we were not in the more excitable House of Commons, and the Speaker shared in the excitement. I have referred to this for the purpose of show ing that when .we were thus united together under the joint rule the law was that joint rule, as far as related to everything that we were called to do in joint meeting, and that the Senate and the House and the President of the Senate and the Speaker of the House took that view of it yesterday. Now, sir, I do not wish to follow up the argument which I have submitted. Mr. BUTLER, of Massachusetts. I will send another authority to the gentleman from Ohio. Mr. SCHENCK. It states that the Speak er s chair was vacated and it was taken by the President of the Senate. Mr. COLFAX. As the gentleman has re ceived a suggestion from the gentleman from Massachusetts, I hope he will yield to me for a moment. Mr. SCHENCK. Certainly, sir. Mr. COLFAX. The Speaker ruled in the House of Representatives that he could not revise the ruling of the President of the Sen ate when presiding over the joint meeting of the Senate and House. The Speaker adheres to that ruling to-day. There is, however, some difference apparently between the gentleman from Ohio and myself as to the construction of language. There is an order in the twenty- second House rule, and I will again repeat it, in reference to the attendance of the Sergeant- at- Arms. The law commands that the Senate and " House of Representatives " shall be in session on the second Wednesday of February. The twenty-second House rule then requires "the Sergeant-at-Arms to attend the House during its sittings, to aid in the enforcement of order under the direction of the Speaker," etc. He could not do it under the direction of the President of the Senate. The rule would not allow him. He would forfeit his office if he obeyed the order of the President of the Sen ate. The rule says that the Sergeant-at-Arms shall attend their sitting to aid in the enforce ment of order under the direction of the Speak er. I would therefore ask the gentleman from Ohio whether he would have asked the Presi dent of the Senate to command the Sergeant- at-Arms of the Senate to arrest a Representa tive for disorderly conduct a member of a body with which he had no official connection whatever? If that had been attempted it would have increased the excitement already existing. Could he have required the Ser geant-at-Arms of the House to have arrested a member of the House ? He had no power so to do under the rule. The House of Representatives were here and the Speaker was here, and the joint rule commanded that he should be here attended by the Sergeant-at-Arms. Why, sir, if the Sergeant-at-Arms of either House had at tempted to arrest a member of the other House we might have had repeated here the scenes of the French revolution, when the ex citement of the galleries mingled with the ex citement below. In the maintenance of order the President of the Senate had the control of the Sergeant-at-Arms of the Senate, and no one else. If he had sent the Sergeant-at- Arms of the Senate to arrest any Representa tive the member could have refused to obey, as he had no right to obey the order of any one but the Speaker. The Speaker was or dered to be here, and he supposed his duty re quired him to do that which he did in the maintenance of order and decorum. Order had to be preserved. The House ha-d met as a House at noon and had not adjourned. It was a House of Representatives, and was sit ting as the Constitution required its presence as a House. The Sergeant-at-Arms of the House was here, as required by the rule. It is his duty to aid in the enforcement of order under the direction of the Speaker, and no one else ; and he received that direction from him. Mr. SCHENCK. This does not at all take away from the force of my argument. My argument was as to the legislative condition in which we were, what we were doing, and where we were doing it. The joint rule pro vides that when the two Houses have thus met in joint meeting the President of the Sen ate shall be their presiding officer; and I find n the last clause of that rule the following: " At such joint meeting of the two Houses seats shall oe provided as follows: for the President of ULYSSES S. GRANT, PRESIDENT. 329 the Senate, the Speaker s chair; for the Speaker, a chair immediately upon his left ; for Senators, in the body of the Hall upon the right of the presiding officer; for the Representatives, in the body of the Hall not occupied by the Senators ; for the tellers, Secretary of the Senate, and Clerk of the House of Representatives, at the Clerk s desk ; for the other officers of the two Houses, in front of the Clerk s desk and upon either side of the Speaker s plat form." I do not know anj difference of opinion in regard to the true construction of this joint rale or law, for it is a law. I do differ from the Speaker in this : I hold it is not a body with two heads. I hold it is not two bodies. I hold it is one body, composed of the Senate and House acting together in joint meeting, having one head to preside and to keep order as its presiding officer, and that presiding officer is the President of the Senate ; and to aid the presiding officer to keep order it was intended, as well as for other purposes, to give character to the occasion, that the of ficers of both Houses should be present here with the two Houses. If I am right in this, the presiding officer for the time being might have ordered the Sergeant-at-Arms of the Senate or the Sergeant-at-Arms of the House. In giving instructions it was as much his right to speak to the tellers on the part of the House, and to direct them in receiving certificates, as to speak to the teller of the Senate. It was as much his business, to give instructions to the Clerk of the House as to the Secretary of the Senate. He was the presiding officer of the whole body thus met, and not only pre sided over that body, but could direct the steps of the officers met together for that purpose. I am sorry, in thus illustrating the condition in which we found ourselves here, it has led to this passage between the Speaker and myself. I do not think he has intended to say anything in an offensive sense toward me, and most cer tainly I intended nothing personally offensive to him. Mr. OOLFAX. As the Speaker never re ferred to the subject until it was broached by the gentleman from Massachusetts he of course had a perfect right to vindicate himself. Mr. SCHENXJK. I merely refer to the mat ter as an illustration of my general argument, to which I will now go back. I say here is the Constitution of the United States, which provides that the President of the Senate shall open these certificates; that it further pro vides where the votes thus certified shall be counted ; that to carry out the clause of the Constitution the two Houses by a joint rule have declared how that shall be done ; that in adopting that they refer to all questions with regard to the contents which shall be found in the certificates when they come to be opened that when they passed the concurrent resolu tion amending pro tanto this joint resolution they did not touch those questions relating to what is contained in the certificates, but sim ply attempted to avoid the question which might arise as to whether the State of Georgia was in the Union or not. They left all else under the joint rule, and under that joint rule this question was made by the gentleman from Massachusetts, and the two Houses retired to consider it. [Here the hammer fell.] Mr. GARFIELD. Mr. Speaker, I would not trespass a single moment on the time of the House were it not that, as the immediate Rep resentative of the officer referred to in the res olution now pending, I feel it my duty to speak. We have wandered so far in this debate, Mr. Speaker, from the original question raised and the real question at issue that I desire to call the House back to the point of departure. Two questions are now involved in this discus sion. The second one is an after thought, and was not a part of the original proposition. It was invented as a lighter to carry the ship launched yesterday by the gentlemen from Massachusetts over the bar in order to get it out to the open sea. I desire, sir, that we shall separate that lighter from the ship, and let the gentleman s craft, whether it sink or float, meet such fate as it deserves. As I have said, the subject debated most this morning is not the question we are now called upon to decide. The chief matter of discussion for the last two hours has been the constitutional prerogative and duties of the President of the Senate when he comes to open the electoral votes for President and Vice- President of the United States, and connected with that the constitutionality of the joint rule under which that officer acts. Our ears have been stunned and our fears alarmed at the danger we incur by leaving this joint rule unre- pealed. We are now told that all his tempest and turbulence have for their moving cause the desire to settle a great constitutional ques tion for the future safety of the Republic. We are called upon in these last days of the session to lay aside all other business in order to provide for counting the electoral votes four years hence. I admit the importance of this subject, and at the proper time shall be glad to consider it ; but, as now urged, it is a mere evasion, an attempt to escape from the real point now at issue. Now, sir, I fully agree with many gentle men who have spoken, that we ought to have full discussion and careful legislation in refer ence to this business of counting the electoral votes for President and Vice-President ; and in order to show that it is not a new question with me, Mr. Speaker, I call attention to the fact that there is a resolution now in possession of the Committee on the Judiciary of this House, sent to it by the House on my" motion, as far back as the 24th of March, 1868, and it is in these words : Resolve!, That the Committee on the Judiciary be directed to inquire into the expediency of pro viding by law for the settlement of contested elec tions for electors of the President and Vice-Presi dent of the United States, and that they report by bill or otherwise." J 330 TWENTY-FIRST PRESIDENTIAL TERM. A standing committee of this House has this very subject under consideration and can re port. We want no additional resolution or reference in order to bring it before the House. I dismiss that part of the gentleman s scheme, which is a manifest after-thought, a trans parent attempt to evade the violent and inde fensible measure which he proposed in these words : Resolved, That the House protest that the count ing of the vote of Georgia by the order of the Vice- President pro tempore, was a gross act of oppression and an invasion of the rights and privileges of the House. That is the question, Mr. Speaker, and so far as I am able to prevent it he shall not escape the responsibility of his attempt. What, then, is the essence of the charge preferred against the Yice-President ? Whether the counting of the vote of Georgia was " a gross act of oppression and an invasion of the rights and privileges of the House " depends solely upon one thing, and that is this : did the Vice- President, in the discharge of his duty of open ing the votes and declaring the result of the count yesterday, act in accordance with the law which the two Houses had placed in his hands, or did he wantonly neglect or refuse to do something which the law required him to do ? The decision of that question decides the merits of the gentleman s resolution. Now, it will not do for the gentleman to allege that the rule was unconstitutional, and therefore the Vice-President did wrong to obey it. Was that officer to be the judge of the constitutionality of the rule enacted by both Houses of Congress ? The injunctions of that rule were peremptory and left him no discre tion. If he had gravely doubted both the con stitutionality and propriety of the rule, who will say that he would have had the right, at that moment, to set it aside or violate its pro visions in the smallest particulars as against the declared will of the two Houses ? Assuming, then, that neither the constitu tionality nor the wisdom of the rules under which he was acting was a matter to be deter mined by him, we must look to the rules them selves to find what rights were conferred upon him, and what duties were required of him. If the twenty-second joint rule had been his only guide, it is perfectly clear that an objection to counting the vote of Georgia would not only have been in order, but the vote of the House that it should not be counted would have made it his duty to omit from the count altogether the vote of that State. This reduces the discussion to still narrower limits. If the Vice-President s course is jus tified, that justification must be found in the ioint rule which passed this House in the form of a concurrent resolution on Monday evening last. Omitting the preamble, which is only a matter of inducement, and cannot restrict the plain terms of the rule, the resolution is as follows : Resolved by the Senate (the House of Representa tives concurring), That on the assembling of the two Houses on the second Wednesday of February , 1869, for the counting of the electoral votes for President and VioPresident, as provided by law and the joint rules, if the counting or omitting to count the electoral votes, if any, which may be pre sented as of the State of Georgia shall not essentially change the result, in that case they shall be reported by the President of the Senate in the following manner: Were the votes presented as of the State of Georgia to be counted, the result wonld Le, for for President of the United States, votes if not counted for for President of the United States, votes ; but in either case is elected President of the United States ; and in the same manner for Vice-President. In this rule is the whole issue now in debate. My colleague [Mr. SCHEXCK], who has just taken his seat, and who has made the strong est argument in favor of the opposite view which I have yet heard, virtually acknowl edges that this is the whole issue when he declares that this joint resolution neither repeals the twenty-second rule nor does it come in conflict with it. Now, the applica tion of this new rule depended upon one con tingency, namely, whether the counting of the vote of Georgia would or would not change the result. If it would not, the new rule should apply; if it would change the result this rule should not apply, but the Vice- President would be thrown back upon the provisions of the twenty-second rule, in which latter case it would be in order to object to counting the vote, and the sustaining of the objection by either House would make it the duty of the Vice-President to reject the vote from the count. The guide of his conduct in relation to Georgia required the settlement of one preliminary question, namely, will the vote of that State change the result ? This he must ascertain before he can know under which rule he is to act. It may be that the new rule is no rule ; for if he finds that the vote of Geor gia will change the result, then this new rule is a nullity, an absolute nullity, because the conditions on which alone it was to have any force do not exist. But if, on the contrary, it be found that the vote of Georgia will not change the result, then the rule applies in full force, and, as I maintain, to the exclusion of all other rules. Therefore, before the Vice- President could determine whether this rule should apply to Georgia, he must have the electoral votes of the other States counted. That explains his conduct, which the gentle man from Massachusetts so severely com mented upon yesterday, in regard to putting off the vote of Georgia to the last. Having ascertained by the official count of the votes of all the other States that the vote of Georgia could not change the result, he had reached a situation to which the new rule applied. The case had then arisen of which the new rule says expressly, " In that case they (the elec toral votes of Georgia) shall be reported by the President of the Senate." It left him no dis cretion. It was made to cover one contin- ULYSSES S. GRANT, PRESIDENT. 331 gency, and no other. That contingency had arisen, and the Vice -President, in accordance with the rule, armed with it as his only law to apply to the State of Georgia, proceeded, or was about to proceed, to declare the vote of Georgia, when the gentleman from Massa chusetts rose in his place and objected. The President of the Senate made this answer : The Chair is very much disposed to hold the Sen ate and House of Representatives to their own con current resolution. The purport of the resolution, as we understand it, is, that if the votes of the State of Georgia do not change the result of the election, they may be counted, but if they did alter the result, they should not be counted. He had already found that the vote of Geor gia did not change the result, and knew, there fore, that the new rule rested upon him in full force. He had no discretion. The rule was imperative, but the gentleman from Massachu setts, though out of order, pressed his objec tion with vehemence. The Vice-President re peated his decision, and a second time declared that he felt bound to obey the concurrent reso lution of the two Houses ; but the gentleman from Massachusetts, with his accustomed per sistence, still objecting, and the President of the Senate, manifestly desiring out of abun dant caution to do no injustice to any member of the Senate or House, stated that the Senate would retire. He did not at that time say that ;he entertained the objection of the gentleman from Massachusetts ; he did not say that he ruled on the objection of the gentleman from Massachusetts ; but he declared that the Senate would retire, and on that declaration the Senate did retire. A manifest difference of understand- 1 ing arose between the two Houses on this point. The House did not clearly understand on what ground the Senate had retired. The record shows that the gentleman from Wisconsin [Mr. ELDEIDGE] claimed they had retired on a ques- ition raised by the gentleman from Kentucky [Mr. JONES]. Mr. INGERSOLL. I ask the gentleman to yield to me. Mr. GARFIELD. For a moment. Mr. INGERSOLL. I wish to correct him, so that this debate may be based upon the facts. ;The gentleman states that the President of the i Senate, the Presiding Officer here, did not state ;upon what ground the Senate retired. Now, let us see how that matter stands, and I will read from the report of the Globe : " The PRESIDENT. Objection being made, the Sen ate will retire to their Chamber to deliberate, under the rules. " Mr. WASHBURNE, of Illinois. On what? " The PRESIDENT. On the objection that has been [raised by the gentleman from Massachusetts." There was the language of the President himself. i Mr. GARFIELD. I agree with the gentle- :man, but what was the objection? The gentle- iman from Massachusetts had not only filed an jobjection in writing against counting the vote iof Georgia, but he had objected to the ruling of the Chair that ruled his objection not in or der. Under these circumstances the President of the Senate ordered that body to retire. Why did it retire ? Let me trace the history of their transactions, as exhibited in their mes sage to the House. After reaching their Chamber the Senate decided that they had no right to vote on the question of counting the vote of Georgia. Why? Because the joint rule had settled it that the vote of Georgia should be counted, and counted in a particular way. Therefore the Senate, as it had a perfect right to do, declared that it had no right to do otherwise than to count the vote of Georgia in the prescribed manner. The action of the Sen ate is seen in the following : " Resolved, That under the special order of the two Houses, respecting the electoral vote from the State of Georgia, the objections made to counting the vote of the electors of the State of Georgia are not in order." In the mean time the House, supposing that the two bodies had separated, not for the pur pose of settling a point of order, but the objec tion to counting the vote of Georgia, proceeded to vote on that question, and voted that it should not be counted. The Senate came back, and its President announced the result of their deliberations. I agree with my colleague [Mr. SCHEXOK] that the words employed were not a strictly correct announcement of what the Senate had done, for the Senate did not in form, nor could it in fact, overrule the objection of a member of the House. But I call atten tion to the fact, that when the President of the Senate came back he did what he had aa undoubted right to do : he reasserted his first decision, that the objection of the gentleman from Massachusetts to counting the vote of Georgia was not in order. It is true that he used the language which my colleague has repeated ; but I trust that no member of this House will think it worth while to dispute about the mere form of words. The treat ment of the House by the Senate must be ex hibited in the official messages received from the Senate. Mr. Speaker, I insist that under the new rule it was both the right and the duty of the Vice-President to rule out the objection of the gentleman from Massachusetts as not in order. Mr. BUTLER, of Massachusetts. The gen tleman must not state what I did not do. I did not ask him to rule it out. I appealed to the House, supposing the Speaker was in the chair. Mr. GARFIELD. The gentleman does not understand me. I am talking of wliat occurred before the Senate went out the second time. I affirm again, that before the Senate went out the second time it was perfectly competent for the President of the Senate to refuse to enter tain the objection of the gentleman from Mas sachusetts. He did twice refuse it, and I only regret that he did not persist in his refusal. It was only because of the persistence of inem- 332 TWENTY-FIRST PRESIDENTIAL TERM. bers of this House that he waived his own opinion until he had time to consider. When he came back, having concluded that he was right in the first place and that he ought to have persisted in his refusal to entertain the motion of the gentleman from Massachusetts, he announced that conclusion, and persisted accordingly. It is true that the vote of the House not to count the vote of Georgia placed us in an awkward and embarrassing position, but could not repeal the new joint rule. Now, Mr. Speaker, my colleague [Mr. SCHENCK] is fertile in suppositions. He asks, if the President of the Senate had opened the supposed returns of Georgia and found only a newspaper in the envelope, would he be bound to count it ? or suppose they were sent from South Carolina? It is easy to suppose extreme and impossible cases. If any absurd result should follow from such supposition the fault must be traced to the rule that makes such a result possible. But the votes were presented as of the State of Georgia, and the concur rent resolution provided that the President of the Senate must count them, and he did count them. Mr. PAINE. I ask the gentleman from Ohio to yield to me. Mr. GAEFIELD. Certainly. Mr. PAINE. I thank my friend for allow ing me to ask him this question. Did the Presi dent of the joint convention order the vote of Georgia to be counted ? Was that vote count ed? Did the concurrent resolution of the two Houses ever order that vote to be counted ? Mr. GAEFIELD. The new rule provides a definite formula to be used by the Vice-Presi- dent as precise as the ritual of the Church. He is to declare that if the vote of Georgia be counted the result for President will stand thus and thus, and if the vote of Georgia is not counted the result will stand thus and thus ; but in either case the same persons are elected President and Vice-President. Mr. PAINE. The resolution which is now pending before the House charges the Presi dent of the Senate, presiding over the joint con vention of the two Houses, with having counted, or caused to be counted, the vote of the State of Georgia. I ask the gentleman whether as a matter of fact the President of the Senate did any such thing ? Mr. GARFIELD. I presume it may be said that, in the strict meaning of the word " count," the vote of Georgia was not counted. We know it was not counted in the same man ner as the votes of other States were counted ; but it is apparent on the face of the transac tion that they were counted hypothetically. I quite agree with my friend, that in so far as the votes of Georgia were counted at all they were counted by the resolution, and not by the President of the Senate. Mr. PAINE. I wish to ask whether this resolution does not expressly provide that the President of a joint convention should declare, if they are counted, the result is so and so, and if they are not counted it is so and so, with out requiring him to count them at all ? Mr. GARFIELD. That is correct. The gentleman from Massachusetts [Mr. BUTLER] asks whether the Constitution does not order otherwise. I answer that the President of the Senate was not to question the constitutional ity, but was to carry out and obey the rule adopted for his guidance by both branches of Congress. Mr. SCHENCK. I merely wish to call the gentleman s attention, as he is quoting the action and declaration of the President pro tempore of the Senate and the Presiding Officer of the joint convention, to what took place in the Senate. I am permitted to refer to it, as I have it in the Globe. After they returned to the Senate, in answer to a question of Mr. EDMUNDS as to what had taken place and what had been decided, the President pro tempore said : " The Chair will state that the gentleman from Massachusetts took exception to the counting 1 of the vote for a different reason from any covered by the concurrent resolution. It was because the vote was not cast upon the day required by law, which goes behind the concurrent resolution, as it seemed to the Chair, for which reason it was thought best to retire and deliberate upon that. It Was a different ques tion, not involved in the concurrent resolution, per haps lying back of that, based on the ground that the vote was informal and not to be counted at all." I am glad that the President of the Senate was entirely of my opinion. Mr. GARFIELD. What occurred between the President and members of the Senate in their own Chamber is no part of this record. We have to do with the record properly au thenticated and sent to us by the Senate, and that record declares that objections to count ing the vote of Georgia are not in order. And even if my colleague s account of the trans action be admitted, it only shows that the Senate confirmed the ruling of the Vice-Presi dent, and not that they overruled the House. And now, Mr. Speaker, I have come to the last point I desire to make in this discussion. We have heard it said that there was great ex citement here, great turbulence, an unseemly performance, a shameful scene. I admit it, and deplore the fact more than any words of mine can express. But I appeal to the mem ory and conscience of every man in this House to say who inaugurated the unseemly perform ance, who began the excitement? What tran spired here yesterday in the nature of turbu lence ? Was it not the theatrical attitude, the ferocity of manner, and the disorderly utter ances of those in this House who thought they might, by clamor, uproar, and disorder, prevent the execution of the law by the President of the Senate ? Did not the shameful scene ori ginate with members who, disregarding the orders of the presiding officer, made use of ex pressions like these : " Mr. BUTXEB, of Massachusetts. I move that this ULYSSES S. GRANT, PRESIDENT. 333 convention now be dissolved, and that the Senate have leave to retire. [Continued oriea of Order 1 Order! ] And on that motion I demand a vote. [Cries or Order ! Order ! from various parts of the Hall.] We certainly have the right to clear the Hall of interlopers." It was language like this ; it was a manner and bearing of unparalleled insolence ; it was the fell spirit of disorder that spirit that pre fers to " reign in hell rather serve in heav en," that would bring chaos into this sacred Hall, where order and calm deliberation should forever dwell. That, Mr. Speaker, was the spirit which disturbed the harmony and dig nity of the proceedings of yesterday s assem bly, and I believe that not only the members of this House, but the whole country, will rec ognize the debt of obligation they owe to the Speaker of this House, who threatened to use the constabulary force at his command to pre serve order in this Hall. Mr. MAYNARD. I rise to a point of order. Much that the gentleman has said trenches so nearly upon the line of unparliamentary lan guage, if it not transcends it, that I feel I ought to interpose as against my personal friend to save him from the result of the enforcement of the rule. The SPEAKER pro tempore. Will the gen tleman point out the language ? Mr. MAYNARD. I rose rather for the pur pose of interposing my objection to the style of remark the gentleman is indulging in. I withdraw the point of order. Mr. GARFIELD. As an exhortation to pru dence of speech in this presence the remarks of my friend will always be welcome. But 1 after six years service on this floor, during which time a point of order for the use of un parliamentary language was not only never sustained, but never made against me, I trust I shall not disturb my friend with the I fear that I may forget the decorum which be comes this place. Mr. MAYNARD. It is to save my friend from interruption that I made the suggestion. Mr. GARFIELD. I did not feel myself in danger before, and certainly after the kind suggestion of my friend I am doubly armed. Indeed, more ; for " Thrice is he armed who hath his quarrel just." I was only saying that if there was disorder in this House, if there was an unseemly ex hibition here, I think the House cannot be 1 slow to discover its source. Mr. Speaker, I did not rise to make a personal defense of the President of the Senate, but only to say, as I now say in conclusion, that had he acted otherwise than he did, had he been prevented from the performance of his high duty by any course of intimidation, coercion, or unseemly clamor, and had we in consequence found our selves in chaos after the 4th of March next, with no President-elect, I do not think, sir, that the people of this country would find it difficult to point out the origin of that meas ureless disaster. And now, Mr. Speaker, speaking in behalf of all who oppose this violent and unjustifia ble measure, I move that the pending resolu tion be laid on the table. Mr. SPALDFNG. That is right. Mr. BUTLER, of Massachusetts. That is the meanest act I ever knew any mortal man to do. Mr. INGERSOLL. We will vote it down. Mr. GARFIELD. The motion I have made has but indicated my own wishes in the mat ter. As many of my friends desire further discussion, I withdraw the motion. Mr. LOGAN obtained the floor. Mr. SHANKS. I wish to say that Ohio took the floor one at a time, and I hope Illi nois will do the same. That is all I wish to say. Mr. IISTGERSOLL. I rise to a point of order. I call the attention of the Speaker to that rule under which the floor is assigned to members in the order in which their names are entered upon the Speaker s list. [Laugh ter.] Mr. LOGAN". There is no such rule. Mr. INGERSOLL. Let us inquire with regard to that. I am making a point 01 order. The SPEAKER pro tempore. The Chair overrules the point of order. The Chair has awarded the floor to the gentleman from Illi nois [Mr. LOGAN.] Mr. LOGAN. I have the floor, and I will not yield for any interruption. I yield a por tion of my time to the gentleman from Massa chusetts [Mr. BUTLER]. The SPEAKER pro tempore. How much time? Mr. LOGAN". I yield to him for the present for fifteen minutes. Mr. INGERSOLL. It is generally under stood that members are assigned the floor for the purpose of addressing the House according to a list that is made out and kept by the Speaker. Now, I desire to inquire, if that is the rule or order of our proceedings, how my colleage [Mr. LOGAN] obtained the floor to the exclusion of myself and my colleage [Mr. BROMWELL], who are on the list? I would like to know. That is all. Mr. LOGAN. If the Chair will allow me a moment The SPEAKER pro tempore. The Chair does not entertain that as a point of order. Mr. LOGAN. I wanted to save the Chair from having to answer such questions. I got the floor for the reason that I caught the Speaker s eye first, as the rules of the House require. Mr. INGERSOLL. Then let us not have any list at all. [Cries of u Agreed."] It is a farce. Mr. BROMWELL. I would like to know, as a matter of information interesting to my self, whether the Chair goes by the list or not? Mr. LOGAN. I do not yield to the gentle- 334 TWENTY-FIRST PRESIDENTIAL TERM. man. I yield to the gentleman from Massa- chn setts. Mr. BUTLER, of Massachusetts. I trust, Mr. Speaker, this very grave matter of consti tutional law and the privileges of this House, which, though it can have no present effect upon the order of business and the action of the Government, excites such unwonted sen sibility in the House, we shall proceed to con sider with that care, that calmness, and that candor which its importance demands. The question before the House is one compounded of fact and of law. To the facts I shall not speak. They are known to and in the memory of every member. To the law I propose to address myself in such degree as I may. And now let me ask the House to pardon me if I do not re ply to these unprovoked personal assaults upon me in the course of this debate. The House knows I have never begun a personal attack upon any member, but if I am pressed too far I will reply, and in a way that I have done on one occasion, and which I had hoped would have forever relieved me from such assaults. 1 was once told upon this floor that I had voted fifty-seven times for Jeff. Davis, in order to lessen my standing with the members of the House and to provoke me to controversy. I returned that assault in such a manner that I thought the same man would never make an other upon me ; and I make it a rule in life never, unprovoked, to begin personal contro versy. In answer to the declamation in this case let me say the gentleman from Ohio [Mr. BIXGHAM] has again made that splendid rhe torical display about "anarchy," which has neither heart to feel nor a soul to be saved ; that starry declamation about the " gathered wisdom of a thousand years " [laughter] ; the " land drenched in the blood of millions of your sons " and " dotted all over with their graves." [Laughter.] I only reply that I always did like that speech. [Much laughter.] And if everybody else likes it as much as I do and we are to have it upon all proper occasions, per haps I ought to say no more about it. [Laugh ter.] To my friend from Ohio [Mr. GAEFIELD], who, smarting a little under the failure of his defense of the regular Army, has chosen to arraign my motives and send me to the coun try branded in parliamentary language as be ing actuated with the " spirit of hell," I have only to say, " out of the abundance of the heart the mouth speaketh." [Great laughter.] Waiving all that is personal and does not elucidate the question, let me draw attention to the law which governs the momentous power of counting and declaring the election of a Chief Magistrate of the first power on earth. It is this: the Constitution of the United States, by an original article, the sec ond, if I mistake not, provides that upon an occasion like that of yesterday " the President of the Senate shall, in the presence of the Sen ate and the House of Representatives, open all the certificates, and the votes shall then be counted." The twelfth article of amendment has precisely the same provision, in precisely the same words, and no more ; so that the gentleman from Ohio [Mr. SHELLABAEGEE] was not as usual correct this morning in say ing that this provision was changed because of the trouble in the election between Jeffer son, Burr, and Adams. Mr. SHELLABARGER. That is what was stated by Justice Story. Mr. BUTLER, of Massachusetts. I do not care what Justice Story states ; the Constitu tion shows what the fact is. Mr. SHELLABARGER. It is a matter of history. Mr. BUTLER, of Massachusetts. I am never inclined to pin my faith upon the opinion or actions of any one man. God gave me my own reason to guide me, and my own eyes to inform me. And because a man who is dead has as serted a given proposition, that alone does not compel me to believe it. The living may be as able to judge for themselves as are the dead to judge for them. The law is that the President of the Senate shall open all the certificates, and then the votes shall be counted in the presence of the two Houses. Now, I apprehend there is no better and no more just rule of construction of constitutional or other law than that where power is expressly given by law to an officer to do a certain thing only, that power is lim ited, and a further power to do another thing not expressly conferred upon him cannot be given by intendment, and the very conferring of the power with a limit excludes such in tendment. Now, the Constitution gives the power to the President of the Senate to open the certifi cates of the votes, because, being required to be transmitted to him, he lias them in his cus tody. There it stops, so far as the President of the Senate is concerned. The Constitution then goes on to say that the " votes shall then be counted," and all this is to be done in the presence of the two Houses. Why ? My friend from Ohio [Mr. SHELLABAEGEE] says that it is in order that the two Houses may be witnesses that it is done rightly. Exactly so. I agree with him. But if it is done wrongly, what is the remedy ? If the President of the Senate may do in this matter as he pleases, as is now claimed to be the law, and we cannot help our selves, whether it be as the great constitutional duty, wrongly or rightly, why, then, should the Constitution compel us to stay here as wit nesses to a wrong with the committing of which we have neither the power nor right to inter fere? Are we thus compelled to sit here poor, inanimate witnesses, voiceless witnesses, powerless witnesses, incapable for good or ill? Although our position is claimed to be so poor, so degrading, yet the Speaker tells us that we were here as a House, in full vigor, with power even to order, through our presiding officer, ULYSSES S. GRANT, PRESIDENT. 335 the arrest of its members the highest exer cise of the power of the House. And the Sen ate was here likewise, by the provisions of the Constitution, as a Senate, with its Sergeant-at- Arms, to carry out its high behests, and arrest, it may be, its own members. Why does the Constitution bring the two great legislative bodies of the nation together, in their legislative capacity, upon so solemn and great an occasion as the final choice of the Chief Magistrate, if it leaves them so impotent for good and so powerless to prevent evil, and so great an evil that the Senate and House must sit palsied by while the " foundations of the great deep " of our Government may be broken up and the land deluged in anarchy, with all its fearful and bloody consequences, because of the mistakes, perversity, or corrup tion of a single man, who may himself aspire to the place from which, by his own wrong, he ejects the choice of the people ? Now, it is said, though if it were true in view of such a constitutional dilemma it would not alter my opinion upon the subject, that Chancellor Kent has given an opinion that the President of the Senate only is to count the votes. But what are his words? He only says I presume it may be so considered in commenting upon this part of the Constitution. "Well, he gives neither a judicial opinion nor any opinion at all. Justice Story says : " It is a casus omissus ; the Constitution does not state who shall count the vote." So I bring Chan cellor Kent and Justice Story in direct oppo sition, and thus dismiss them upon this point. Now, where does the Constitution place us? We are placed here in joint convention to count the votes, or, what is the same thing, to see that they are justly and correctly counted. It is a power given by the Con stitution, operating ex proprio mgore, to do an act of government. Therefore, all the power necessary to execute the power is also con ferred. It is familiar law that when any power is given by law to any officer or body all the powers incident to and necessary to carry out the power granted are also granted. Among those powers in the present case is a power in the two Houses sitting in convention to preserve order; to establish rules for its own government, and to guide its delibera tion ; for being an aggregate body, or in any view composed of aggregate bodies, to deter mine questions for itself by deliberation. A part of that power is exercised by the House and a part by the Senate, whether in an aggre gate body or separated opinion is divided. One theory is, and that theory seems to be generally entertained, that the Senate, being a smaller body than the House, ought not to be ; compelled to come into the convention to be overslaughed by the larger body in a per capita, or aggregate vote. But that proposi tion is by no means a settled or ascertained one. But, however that may be, whether we ex ercise that power separately or conjointly, apart from each other or in conjunction with each other, the power is given to the conven tion to preserve order, determine questions for itself, and to settle all other questions neces sary to execute its work as a constitutional body. That, beyond all doubt, in my judg ment, is the power given us by the Constitu tion as incident to the performance of the duty enjoined upon us, and that in its execu tion the Republic shall receive no detriment. If we can neither preserve order, nor deliber ate, nor examine, nor determine any question, how are we to find out what are the votes we are to count or to see counted ? Suppose that upon the reading of a certificate I rise and ob ject, saying, " Why, sir, that certificate is forged, and I have the evidence here." "But," says the President, "I cannot hear that. Don t you know the concurrent reso lution will not permit us to examine this question, or I alone can judge of that, and I am without power to summon a witness?" I ask this House what are we to do in such a case? How are we to hear evidence, if necessary, if we have no power? I say, "I know that certificate is forged." Another gentleman says, "I know it is genuine;" and there is a conflict. Are we to count the votes certified by such a certificate without determining anything about the genuineness of such a certificate ? Again, sir, a question may arise : by whom is the certificate given ? To be valid it must be the certificate of the electors. How are we to know that they were electors ? To be legally electors they must be elected under certain constitutional forms and on a certain day. Must we not have all power necessary to ascertain such facts without the knowledge of which no action ought or can be had? Now, we have adopted a joint rule, the twen ty-second joint rule a rule which, whoever drew it, is in my judgment very badly worded and wanting in very many particulars for the conduct of business of the convention. But that twenty-second joint rule is not uncon stitutional. So far as it relates to the con duct of business I have never said it was ; for that rule determines what we have a right to determine, the mode of doing business in con vention, the manner in which we shall exer cise our power. We have a right under the Constitution to exercise our power in any manner we choose, either together or sepa rately, provided it be not done in contraven tion of the Constitution. The rule carefully provides that when an objection is made the two bodies shall separate and deliberate upon that objection. Either the Senate or the House may retire ; for we might meet with the Senate in the Senate Chamber if it were thought best. The object of the rule is that the two bodies should sepa rate and each deliberate separately. But their determination is to be reported to whom? To 336 TWENTY-FIRST PRESIDENTIAL TERM. the joint convention, to the President of the Senate sitting in the joint convention, and when they take form of conjoint deliberations they determine the question. The determina tion of the House alone amounts to nothing ; the determination of the Senate alone amounts to nothing until they are brought in and be come the action of the joint convention. When they are brought in and ruled, then we act in convention. The two bodies having deliber ated separately, the result is reported to the joint convention, and we act thereupon as a convention. There is another point to be considered. I said, and I repeat it although I have been denounced as u revolutionary " that I do not think that concurrent resolution worth the paper it was written on. Why ? For two reasons. In the first place, it undertakes to alter the Constitution. The Constitution pro vides that the votes of all States shall be counted ; and we have no right in any way to abridge, alter, or amend that provision. Some of my friends ask just here, " Why, then, did you vote that the vote of the State of Georgia should not be counted ? " Because I held that it was no vote ; that it was not the expression of the will of the people of any State ; that Georgia was not a State within the meaning of the Constitution, and had not voted accord ing to the constitutional requirements. For I agree with the gentleman from Ohio [Mr. SHELLABAEGEE] that by all fair iritendment of law it is as necessary for the electoral colleges to assemble and vote on the same day appoint ed by law as it is that the people who elect them should vote on the day fixed by the Con stitution. As great evils would follow the omission of the one requirement as the other. We cannot by concurrent resolution of the two Houses alter the day on which the electors shall meet, that being fixed by law as well as the intendment of the Constitution. Certainly we cannot by such resolution alter the Consti tution. We ought not if we could, and we could not if we would. Again, we cannot, by concurrent resolution, say before the meeting of the joint conven tion which votes shall and which shall not be counted, because in so doing we arrogate to ourselves a duty and a right which the Con stitution has given to the two Houses acting together, and which cannot be exercised ex cept when sitting as component parts of a joint convention. [Here the hammer fell.] Mr. BUTLER, of Massachusetts. I hope the gentleman from Illinois [Mr. LOGAN] will give me a little more time. Mr. LOGAN. I give the gentleman ten minutes longer. Mr. BUTLER, of Massachusetts. It is pretty hard, Mr. Speaker, to argue a great question of constitutional law w*ith one foot in the stirrup, but I will go on as well as I may. Mr. LOGAN. I will give the gentleman fifteen minutes. That will make half an hour altogether. Mr. BUTLER, of Massachusetts. I do not mean to question the courtesy of my friend ; I am very grateful for it. I am only stating how I am embarrassed by the limitation of time in the discussion of a great question like this. Now, that being the state of the law if I am right in the argument we stand here. When we come together we must have some means of conducting our business. How are we to get out of convention when we have once as sembled? The first question is whether we have the means. Suppose the Senate do not choose to leave, may we not adjourn? If we cannot they may keep us here always. Do they have any more right, if we give them the use of our seats, than if they gave us the use of their seats? If we get in there, can we stick, and can they not get rid of us if they de sire to deliberate. Can they come in here and stick if we act here as two bodies and both desire to adjourn at one time? Shall we have the yeas and nays called in both Houses here together at one time ? Certainly not. Yet we must have equal rights. We are coequal no, I deny that fact in the broadest sense ; for there is no power the equal to that of the Rep resentatives of the people when assembled in legislative capacity. That is higher than all. Is it possible that the Senate have the right to go into the Senate Chamber and determine an objection taken or a motion made and deter mined in the course of a joint business by a coequal branch of this Government and co equal branch of the convention is out of order and shall not be entertained, and then can come here and force that upon us ? Can that be the wisdom of our fathers as expressed in the Constitution, or, as the gentleman from Ohio [Mr. BINGHAM] more eloquently might have said, " the gathered wisdom of a thou sand years ? " Can it be that the Constitution provides no better than that for the transac tion of so grave business ? When we have the power we have the right. Mr. LOGAN. I understand that a rule of the House was made that at half-past four we should adjourn to meet at half-past seven this evening. I was not aware of that fact, and inasmuch as the time of the gentleman from Massachusetts will bring us down to that time, I move that we shall dispense with the rule for a session this evening. Objection was made. Mr. SHELLABARGER. I ask the gentle man to yield to me for a question ? Mr. BUTLER, of Massachusetts. I yield to the gentleman, as he always puts his questions as a scholar and a gentleman seeking for the truth. I wish I could say as much of every body putting questions. Mr. SHELLABARGER. I thank the gen tleman for his kindness, and my only object is to get at the interpretation of the law, and in ULYSSES S. GRANT, PRESIDENT. 337 that respect I desire to have the benefit of the gentleman s learning. What I stated about this joint rule was that, if the construction I put upon it was the correct one, then, in my judgment, it was unconstitutional. As I un derstood the construction put upon the rule, and which, if it be the true construction, I maintain the rule is unconstitutional, is that every vote of a State could be objected to, and on that question the rule required that each House should act separately, and not try it in any other way. Then it provided that unless they agreed separately to the same thing, the vote of the State objected to should not be counted. If that were a correct interpreta tion, it would be in the power of either House to throw out the vote of any State, and to de cide that that vote could not be counted. Mr. BUTLER, of Massachusetts. I will an swer the question of the gentleman, which he has so clearly and properly put. This is it : the two Houses may determine, each for itself, separately, but they must come into joint con vention, and make that determination of the convention, just precisely as a jury may retire from court and deliberate on their verdict and make it up, but it has no validity until after it has been declared in the court. The rule says that the deliberation must be done separately, but the Constitution compels joint action in counting the votes, so that the final action must be when the Houses are together, how ever they may have settled what that action shall be. The deliberation is to be done sepa rately, and the decision is to be made jointly. Now, let me examine the concurrent resolution a little further. Suppose the power is given to the two Houses by the Constitution to count the votes in convention and I wish to call the attention of the House to it, for it is vital can that power be regulated and put in execu tion through the means of a concurrent resolu tion ? I now mean a concurrent resolution not approved by the President, and therefore I answer the whole argument of the gentleman from Ohio [Mr. BISTGHAM], if that argument can be called where argument is not, when he declares in such brilliant sentences that propo sition is revolutionary because it contravenes the law, and this resolution is the law. There is no law made by the Congress of the United States except made by the Senate and by the House and approved by the Presi- i dent, or passed over his veto. The Constitu- | tion vested in Congress the power by law to carry out all the powers vested in any branch of the Government necessary to carry out the [provisions of that Constitution, and not by concurrent resolutions, not by joint resolutions of the two Houses only, but by an act in which both Houses concur and which receives the approval of the President, or which, not re- i ceiving his approval, is passed over his veto by ! two-thirds of both branches. Therefore that concurrent resolution had not any power here. (But it has been supposed that this resolution has something personal to the Presiding Officer of the Senate. Now, let me here say and I say it in all directness and sincerity there is no man in this nation who has a higher appreciation, or greater love, or more faith and confidence in the President of the Senate, a gentleman who is known all over the country by the endearing name of honest old Ben Wade, than I have. That man, standing there yesterday, of him self and from himself would never take away the rights of this House nor those of a single human being. But it was because he was acting under a pernicious resolution deciding for us a point of order, which was passed, how and by whom parliamentary courtesy will not allow me to say, and as the mouth piece of those who passed and who are en croaching upon the rights and privileges of this House day by day. Members of the House of Representatives, do you know that to-day the Senate of the United States have entertained a resolution to censure a majority of your members for what was done in this House yesterday? I think this would be a good time to pass it, that we might be aroused to the danger that the country is in of being governed by an oligarchy. The Senate have entertained such a resolution, as I am in formed. Mr. FARNSWORTII. Does the gentleman think that to be any worse than for the House yesterday to entertain a resolution of censure of the Senate ? Mr. BUTLER, of Massachusetts. I am by >no means proposing to censure the Senate. I am maintaining the rights and privileges of this House, of the representatives of the peo ple, which were invaded here by the action done yesterday. I mean to say I do not believe Mr. WADE did it for and of himself. He was the mouthpiece of somebody, and parliamen tary courtesy forbids me saying what, and I do not say it. Now, then, having determined what our rights are, I want to come directly to the reso lutions which I have modified so that I hardly think they can be objected to by anybody, and yet gives up no right. I send them to the Chair, and ask the Clerk to read them. The Clerk read the modified resolutions, as follows : Resolved, That the House protests against the man ner of procedure and the oi der of the President of the Senate pro tetnpore, in presence of the two Houses, in counting the vote of Georgia, in obe dience to the order of the Senate only, and against* his acts dissolving the convention and the two Houses at his own will as an invasion of the rights and privileges of this House. j&80fr<,Tbat the above resolution be, and hereby is, referred to a select committee of five, with leave to report at any time, and report by bill or other wise. Mr. BUTLER, of Massachusetts. Now, Mr. Speaker, what exactly is the proposition before the House ? It is a resolution declaring that in our judgment our privileges were so much 338 TWENTY-FIRST PRESIDENTIAL TERM. interfered with by what was done in the con vention yesterday that we protest against such action, and ought to examine into it, and that we will refer it to a committee for that pur pose. That is all there is of the proposition. Now, what is there in it to complain of that gentlemen should have attacked me so vehe mently? My friend from Ohio [Mr. SHELLA BAEGEE] says this House has no privilege of any kind in that convention save to sit by as witnesses. If that is so, then the resolution is wrong and useless. I agree we must stand on that or stand nowhere, because the Senate, by the act of the Presiding Officer, has treated us exactly as though we had no privileges. Therefore it is a logical conclusion, a fair and just conclusion of the gentleman from Offio [Mr. SHELLABAEGEE] that we had no privilege here. He must come to that to sustain the ac tion of the Senate and its officer yesterday. Now, I insist that we have high privileges as a portion of that convention, and they were given us for a great and useful purpose, and therefore I insist on this motion in order that hereafter, with a divided country, a divided vote for President, we may not have anarchy and civil war. I insist that we have rights and privileges here of the highest import, and that we should send this matter to a committee to ascertain and declare them and propose some legislation on the subject which may in the future avert danger from the country. And in that I am sustained by the gentleman from Ohio [Mr. GAEFIELD], who says he thought it of so much importance that he sent out last year to the Committee on the Judiciary, and it is sent there now because they have not had time to consider it, and perhaps no one has brought it to their attention. But now that this matter is before the House and before the country, in dependent of all feeling, laying aside all the hard words that have been used about it, and doing everything, as I always try to do as far ;as I can, for the good of the country, I conjure the House of Representatives to send this question to a committee that can report at any time, as the Judiciary may not, in order that we anay have legislation to define our rights :and:the rights of the Senate, so that this thing wliica happened yesterday may never happen .again. Whether I am responsible for the scene here yesterftay or not, if its results are that we have legislation to sustain and fortify this part, which every man upon this floor knows to be, as Judge Story and Judge Kent both say, is the weak spot in our Constitution ; if the result of the- scene of yesterday shall be that now when .there is no presidential election pending, and when there can be no possible motive for us to do wrong, but every motive to do right and to do the best for the country; if by that scene or by anything that has occurred we have so attracted "the attention of the country, so at tracted the. attention of the House, and so at tracted the attention of the Senate to this great defect in our Constitution, which the Speaker has characterized as casus omissiis, can be remedied ; if this committee, of which I hope the gentleman from Ohio [Mr. SHELLABAEGEE] will be one, can devise legislation which shall save the country from revolution in its hour of future peril, then I shall have deserved well in what I have done and all I have done in this behalf in my own conscience and in my own heart, whatever of either praise or blame may be accorded me by others, for I shall have aided to throw around the Constitution safe guards and buttresses to render it stronger for ever, and there will have arisen a great good out of the " spirit of hell," in whatever heart it may have been found. Mr. LOGAN. I now yield five minutes to the gentleman from New Hampshire [Mr. BEN- TON]. The SPEAKER pro tempore. The Chair will state that in three minutes from now the House will take a recess. Mr. LOGAN. Well,. I yield the gentleman that time. Mr. BENTON. I have no time in three minutes to make any argument in this case, but it seems to me, although there is a disa greement between skilled and able gentlemen here, that there ought to be but little disagree ment in this House as to the propositions ad vanced by the gentleman from Massachusetts. How was it, Mr. Speaker, yesterday, when the House was called upon to vote ? When the question was submitted to the House a vote of 150 was recorded that that concurrent resolution was not binding upon the House. It was true that after the return of the Sen ate the Presiding Officer notified the joint con vention that the Senate had overruled the ob jection taken by the gentleman from Massachu setts, and upon that proceeded to direct the votes to be counted and declared. Now here was not a question of order, but a question of substance as to the extent and effect of that oncurrent resolution, and upon that question the Senate were upon one side and the House upon the other. Was it for the Senate to de clare that they were right and that the House was wrong ? That was the effect of what they did. And was not the declaration of the Pre- iding Officer, declaring that that objection was not well taken and was overruled by the Sen ate, a proceeding calculated to alarm and star tle and excite the members of this House ; and if there was excitement here on that occasion, was there any great cause of complaint or cen sure from any quarter ? Was it not an exer cise of authority on the part of the Senate over the House? I know there are many members of the House who, when they find their opinions are disagreed to by the Senate, become very weak and docile and ready to be instructed and directed by the Senate. [Here the hammer fell.] ULYSSES S. GRANT, PRESIDENT. 339 IN HOTJSK OF REPRESENTATIVES. Friday, February 12, 1869. (" Congressional Globe," 40th Cong., 3d Session, pp. 1144-1148.) The SPEAKER. The House resumes the consideration of the question of privilege pend ing at the close of the morning session yester day, being the resolutions offered by the gentle man from Massachusetts [Mr. BUTLEK]. The gentleman from Illinois [Mr. LOGAN] is entitled to the floor. Mr. LOGAN. I yield a few minutes to the gentleman from New Hampshire. Mr. BENTON. The questions which arise in this discussion are not personal or partisan, but such as involve the rights, powers, and duties of both the Senate and the House. We should therefore divest our minds of all mere personal considerations. We are not to con sider whether we shall vote one man up or another down, but ever and under all circum stances we should so vote and act as to uphold principle and vindicate the right. I quote the only provisions of the Constitution affording us any light upon the subject : " Each State shall appoint in such manner as the Legislature thereof may direct a number of electors equal to the whole number of Senators and Kepre- sentatives to which the State may be entitled in Congress. " The Congress may determine the time of choos ing the electors, and the day on which they shall give their votes, which day shall be the same throughout the United States. u The President of the Senate shall, in the pres ence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." Who is to count the votes, and who has au thority to decide whether the votes were cast, according to requirements of the Constitution, and therefore whether or not they should be counted ? It is now claimed by those who can see nothing objectionable in the course of the President of the Senate that by the fair inter pretation of the Constitution the President of the Senate alone has that power, and that in the exercise of it he is in no manner subject to i the control of the Senate and the House. Now, that position is manifestly an after thought, and one directly in conflict with the action of both the Senate and the House in providing how the vote of Georgia should be counted or disposed of. The concurrent reso- lution provides how the vote of Georgia shall be counted or not counted, which the President of the Senate claimed he was bound to execute or adopt as his rule of action. Now, it was claimed on the part of the House that there was a constitutional object in which was not known at the time of the adop tion of the joint resolution, that did not admit of the vote of Georgia being counted, inasmuch as the requirements of the Constitution as to the time when the vote should have been cast were not complied with, the delegates voting as was proper according to the Confederate and not Federal Constitution, as is said. The gentleman from Ohio [Mr. SHELLABAR- GER] interprets the provision of the Constitu tion as to the time when the electors should meet and vote on the same day throughout the United States as not directory, but express and imperative, which there can be little question is the true construction ; therefore the vote or Georgia could not be counted without disre garding the Constitution. If, then, the con current resolution in regard to counting ths vote of Georgia was in conflict with the Con stitution, which was to be regarded or obeyed, that or the Constitution ? But it is claimed that the House were estopped from objecting to the vote of Georgia, being counted by the express terms of the res olution adopted by the House as well as the Senate as to how the vote of that State should be treated. The House, however, did not so interpret the force and extent of this resolu tion, for when the ground of objection dis closed by the papers was taken, the House voted against the vote being counted at all (in cluding both Mr. BINGIIAM and Mr. SHELL ABAR- GER). Then here was a plain case of conflict of opinion between the Senate and the House ; and without reference to the question which was in the right, was it not an assumption of power which a coordinate branch could not exercise for the Senate to attempt to decide that the House was bound to assent to the counting of the vote under any and all cir cumstances ; and was it not a high-minded proceeding on the part of the President of the Senate to cut the Gordian knot by forcing the count through in utter disregard of the objec tions, remonstrances, and protests of the House ? I ought to say, perhaps, in justice to Mr. BINGHAM, that he voted to reconsider the vote declaring that Georgia should not be counted. To avoid the difficulty and danger of a con flict between the Senate and the House, or an erroneous decision if acting together as a joint convention, does not the gentleman from Ohio [Mr. SHELL ABARGER] go to the more dangerous extreme when he contends that the Constitu tion vests the power to determine what votes shall be counted and what rejected in the President of the Senate alone? Was the pre siding officer of any other body ever before claimed to be anything more than the organ or executive of the body over which he was called to preside, and his chief duty to execute and not defeat its will ? And is it not a bold assumption to claim that the framers of the Constitution ever intended to lodge the vast power in the hands of any one man to pass upon the validity of an election so vital to the very existence of the Government, so that by interpretation or construction he could make and unmake Presidents ? I so declare it, as I am justified in doing, by the action of both branches of Congress, as well as the recorded votes of one hundred and fifty members of this House, the immediate representatives of the people. 340 TWENTY-FIRST PRESIDENTIAL TERM. Mr. LOGAN. I yield a few minutes to the gentleman from Vermont [Mr. WOODBEIDGE]. Mr. WOODBRIDGE. It seems to me, Mr. Speaker, that this entire question lies within a very narrow compass. Section one, article two, of the Constitution, and the twelfth amend ment, in respect to counting the electoral vote, are identical in language, and each provides that the President of the Senate shall, in the presence of the Senate and House of Repre sentatives, open all the certificates, and the votes shall then be counted. Not that the Presi dent of the Senate shall count the votes, but that he shall open the certificates in the pres ence of the two Houses. Having done this, his power in the premises under the Constitu tion is expended. Here is a grant of power, an imposition of a duty, and the question is, how is this power to be exercised ? How is this duty to be performed? It is a well-recognized principle that with a grant goes as a necessary incident to it the power to do that which may be necessary to put in execution and carry out the duty imposed by the grant. The twenty- second rule is merely the machinery whereby the constitutional provision or duty is executed. The rule may be wise or unwise, cumbrous or facile. It is nevertheless, having been adopted by the action of both Houses of Congress, bind ing and valid until repealed, and is not, in my judgment, obnoxious to the criticism of the learned gentleman from Ohio [Mr. SHELLABAE- GEE], as being repugnant to the Constitution. Now, sir, why does the Constitution provide that the President of the Senate shall open the certificates and that the votes shall be counted in the presence of the Senate and House of Representatives? Is it merely for a pageant? Is it merely for the purpose of giving dignity to the procedure ? I think not, sir. Some higher and more practical purpose must have actuated the men who framed our Constitu tion. What was it? In my judgment, sir, it was that the legislative body of the nation might see to it that the votes were properly and fairly counted. Wer&the legislative body spectators only, then, sir, the President of the Senate might pass upon the formality or in formality, the legality or illegality of the cer tificates, and for aught I can see his judg ment would be supreme, and to him would be left the election of President and Vice-Pres ident. The illustration, sir, may be extreme, but I cannot see that it is untrue or illogical. Then, sir, the two Houses being present in joint convention for some purpose, they must have some power, and the question arises, what is that power ? Under the Constitution, which is silent upon the subject, it must neces sarily be limited, extending only to the estab lishment of such rules of procedure as will give full, fair, free, and lawful play to the exe cution of the duty which the Constitution im poses. Hence, the rule was established that upon the reading of a certificate a member may object to its reception, and upon a state ment of the objection the two Houses shall by themselves proceed to consider it. Now, sir, while I consider the mode in which the objection must be considered, as prescribed by Rule 22, unwise and cumbersome, and per haps, I may say, by a possibility disastrous in its consequences, I cannot see that it is in con flict with the Constitution. It is, to say the most of it, only the exercise of what I conceive to be a necessary power in an unfortunate manner. But, sir, passing from the rule, I will for a moment consider the joint resolu tion. I deem that resolution unnecessary and unwise, and had I been in my seat on the even ing when it passed the House I should have voted against it. The joint resolution in its preamble recites that which, respecting the condition of the Slate of Georgia, would render the certificate of her electors void. The gentleman from Massachusetts admits this, but, as I under stand him, claims that there were objections not included in the preamble, and hence that his point was well taken, and should have been entertained by the presiding officer, and that the action of the Senate and of the President thereof upon the return of the Senate to this Hall was a violation of the high privilege of the House, and an infringement upon its pre rogatives. Sir, there was one error and one misfortune in the acts of the presiding officer. The error was, that he entertained at all the objection of the member from Massachusetts, and requested the Senate to retire. The mis fortune was that when he resumed the chair he did not, in the exercise of that graceful suavity which adorns our Speaker, announce that his decision was erroneous, retract it, and proceed with the count. But, sir, I judge that " suaviter in modo" is not equal to "fortitcr in re " in the character of the brave old states man. No one, I think, will deny that Congress had the constitutional power to pass the joint reso lution. It received the sanction of the vote of the gentleman from Massachusetts. The statement in. the preamble was sufficient, in his estimation, to reject the electoral vote of Georgia. In spite of that fatality he voted to receive the vote under certain circumstances prescribed in the body of the resolution. But he claims to have discovered another fatal de fect ; and while with one perfectly fatal defect he was willing to receive the certificate and count the vote, he was unwilling to do so with two fatal defects, and hence all this unfortu nate and, I may say, disgraceful collision be tween the two branches of Congress. But, sir, there is another point. The language of a bill or resolution which is so explicit that it will bear but one construction is not to be governed by the language of the preamble. The joint resolution asserts in direct and posi tive terms that "On the assembling of the two Houses on the second Wednesday of February, 1869, for the count- ULYSSES S. GRANT, PRESIDENT. 341 ing of the electoral votes for President and Vice- Presklent, as provided by law and the joint rules" Thereby recognizing the validity of the joint rule providing for the reception and counting of the electoral vote " if the counting or omitting to count the electoral votes, if any, which may be presented as of the State of Georgia shall not essentially change the result, in that case they shall be reported by the President of the Senate in the following manner: Were the votes presented as of the State of Georgia to bs counted, the result would be, for for President of the United States, votes ; if not counted, for for President of the United States, votes; but in either case is elected President of the United States ; and in the same manner for Vice-President. " The only question that could arise, the only objection that could by any possibility be en tertained, was that the counting of the vote of Georgia changed the result. No one was fool ish enough to raise such an objection. The vote of the Senate, when they had retired, that the objection raised by a member of the House was not in order, was a matter of taste. It may not be proper for me to criticise it; I will only say "non disputandum est." That the decision of the Presiding Officer was correct in ordering the tellers to proceed with the count I have no doubt. That the decision might have boon rendered in a manner more congenial to the nervous nature and delicate sensibilities of my friend before me, and parhaps other gentlemen, I am willing to admit. I do not believe, however, that the Presiding Officer intended to insult the House or encroach upon its prerogatives. And while I think that the action of the Sen ate in tone and bearing might have been more considerate and respectful, and while I appre hend that often men are somewhat puffed up by the enjoyment of a little brief authority, politeness, and indeed truthfulness, compel me to say that on the whole they are entitled to the respect of the gentleman from Massa chusetts, who loves a storm, and sometimes impresses me with the idea that he is a revolu tionist by instinct, and also that of my excit able friend from Illinois, who apparently could only be restrained by the gentle imposition of the potent hand of the Sergeant-at-Arms. Sir, I hope such scenes may never be re- enacted upon the floor of this House. To us, who believe that they will end as a farce al ways ends, they may be of no consequence. To the country and to the world it is far oth erwise. The interests committed to the hands of the American Congress are too sacred and too vast to be trifled with. Anarchy, and not consolidation, lias caused the downfall of all the republics which have preceded ours. We have tested our strength in the rebellion through which we have just passed. The peo ple are as loyal to liberty as is the needle to the pole. They love the dear old flag as they love the memory of their mothers. Let us beware lest by our example we may teach them that lib erty is not always and necessarily linked to law. Mr. LOGAN. Mr. Speaker, in the few mo ments I have left I shall not attempt to discuss all the various questions that have been dis cussed by the gentlemen who have preceded me. I take a somewhat different view of the question from that which has been presented by any of the gentlemen who have spoken. So far as any change that might be made, or that would be proper to be made, in the twen ty-second joint rule of the House, I think it would be well to do it, so that a similar scene to the one here enacted may not again occur. I would favor a law that would regulate the counting of the votes for President and Vice- President. I would even go further and say we might do well to provide for the contest ing, by either of the parties, the election as in other cases. But in this case I do not pro pose to discuss that question, nor do I propose to discuss the constitutionality of the rule, or its effect in any particular whatever on the joint convention. The particular question that strikes me is this: does the resolntion that has been offered tend directly or indirectly to pronounce judg ment against the Presiding Officer of the joint convention in the way of a censure upon the conduct of said officer ? I think it does. I do not mean that such is the intention of the mover; but the resolution bears beneath its verbiage a sting that will have that effect. Now, I have understood this to be a principle of law, and it certainly should be applicable to rules governing this House as well when wrongs are claimed to have been done as where violations of law are claimed to have been perpetrated. It is a rule that where there is no intent or motive discovered to do wrong that there is no crime. So when there is no intentional violation of a rule, and no act on the part of the party that sho\vs any intention to trample upon the privileges of this joint convention or deliberative body, or upon any of its rules, there is nothing in the conduct of the party that can in any degree justify any thing that would smack even of a censure. Now, sir, as to whether the Presiding Officer of the joint convention did right in receiving the objection made by the gentleman from Massachusetts or not, is not a question that I shall discuss. But I think that I would bo justified in agreeing with the gentleman from Vermont [Mr. WOODBRIDGE] that the accepting or recognizing the gentleman s motion was the error, if any there was, that was committed by the Presiding Officer. Under the joint rule of the two Houses he, perhaps, had no right to allow that motion, but inasinuch as it was al lowed by him, having committed that error, if error it was, then the question is whether or not afterward a wrong was perpetrated upon the rights of this House, and such a wrong as would justify us in passing a resolution carry ing, in the remotest degree, the sthig of a cen sure, which would be felt as such by that noble and venerable patriot, BEXJAMEN" F. WADE. 342 TWENTY-FIRST PRESIDENTIAL TERM. Now, sir, I have not time, nor, as I said, do I intend to discuss all the questions involved in this case. At the conclusion of my remarks I wish to move to lay the whole subject on the table. But inasmuch as there is some little feeling on the subject of my obtaining the floor, I may not do justice, perhaps, to others in do ing so. I will say that if these resolutions shall be withdrawn, then I will not feel called upon to make that motion. If not, I shall make it, and insist upon it. Now, sir, why should we pass a resolution of the character of the one first introduced by the gentleman from Massachusetts [Mr. BUTLER] ? What rea son is there for it ? It has no application what ever to a remedy for the wrong complained of. It does not, nor will it, remedy anything that occurred the other day, so that a similar thing shall not occur in future in this Hall. No good can come from it, and much harm may be done by its passage. It does in itself and no man can read it but that will say that it does carry the censure of this House upon the Presiding Officer of the joint convention. If it is passed we say to the world, to the country, and to our constituents, that the Presiding Officer of the joint convention did what? That he did not by accident, for that is excusable ; not by mistake, for that is excusable in law as well as morals, but by design that which was in tended for the purpose of abridging or tram pling upon the rights of the members of this House. Mr. ALLISON. There are some gentlemen about me who insist that the gentleman from Massachusetts [Mr. BUTLER] has modified his resolutions since they were originally offered. I have heard of no such modification. Mr. LOGAN. I do not yield for any pur pose of that kind. Mr. ALLISON. No ; but I want to know. I rise to a question of order. Mr. LOGAN. It is not a question of order. The SPEAKER pro tempore. The Chair does not entertain it as a question of order. Whenever the House is called upon to vote on the resolutions they will be reported at the Clerk s desk. Mr. LOGAN. Mr. Speaker, when I was in terrupted I was discussing the question whether there was anything in the conduct of the Pre siding Officer of the joint convention that would justify the action that is asked here of this House. So far as the conduct on the part of members that has been characterized as "disgraceful" is concerned, I have naught to say. I was sorry to witness the scene that I did witness, but I have naught to say about it. It was an exciting time. There was some ex cuse or palliation for the conduct that we wit nessed, perhaps. I did not participate in it, nor did I sympathize with it on either side, nor do I yet. But, sir, you are asked to do what to censur e whom ? To censure a man in the sixty-ninth year of his age, a man who is the Presiding Officer of the United States Senate, a man who was the Presiding Officer of the joint convention that counted the votes, and who declared that General Grant was elected President and Schuyler Colfax Vice-President. You are asked to censure a man who has been thirty years in harness, a man who has done duty in the vanguard of liberty and freedom for that time the old captain of the legions of universal freedom, upon whose head Heaven has showered its bouquets of sunshine, and who stands to-day a great living monument of the advance of this great age. You are asked to stretch forth the blighting hand of censure and wither the flowers that wreath his manly brow, and to place a thorn in the peace of his future existence by passing this resolution, be cause he unintentionally did what some con ceive to be an unintentional wrong. I ask the members of this House if they are ready to do this? I ask the members of this House if they are ready to assign to ignominy that man who was born a patriot, has lived a patriot, and will die a patriot? I ask the members of the House, before they vote on the resolutions, to cast their eyes on the record of this venerable patriot. What in all his life has he done that was intentionally wrong, or that deserves the censure of this House ? He has done naught. He stood firm as the ada mantine hills; when many trembled for our future, he was one of the great pillars that stood for four years in the United States Sen ate, beneath the rocking and reeling fabric of a mangled and assaulted Constitution. He is one of the men who reached out their strong arms and seized the dagger of the assassin as it was about to be plunged into the vitals of the Republic of the United States. Yet with all these facts before us we are asked to do what, sir? To vote that that man trampled upon the rights and privileges of this House, not by accident, not by mistake, not through ignorance, but, you must presume, by intention and design. Now, sir, however much respect I may have for the opinions of men here, however much respect I may have for my friend, the learned gentleman from Massachusetts [Mr. BUTLER], however much respect I may have for the opinions entertained by this House as a part of that joint convention, still I say to them that "when they ask me to record my vote where it shall stand for all time, throwing a dark shade over the sunlight of that old pa triot s life, I answer, no, sir; never, never! W T hat ! Censure this old patriot, who was one of the planters of the great tree of re publicanism, whose branches spread out far and wide, and embrace within their ample shade every living being within the confines of this country? He nourished that tree until it is large, until it is broad, until it is tall. And the very moment this tree comes out of the terrible storm through which it has passed, strong and upright, you ask what? That the leaves thereof shall thicken and cast their ULYSSES S. GRANT, PRESIDENT. 343 shade over the bright sunlight of his former record and obscure it forever. I say that no such announcement must be made from these halls ; no such thing shall ever be heard to re sound or echo from here, that BENJAMIN F. WADE, one of the living patriots of the age, a man loved and admired on account of his hon esty, on account of his iron will, on account of his integrity that he shall have a blight cast upon the fair fame and record he has made from his childhood until the present day. Mr. KELSEY. Will the gentleman yield to me for a moment ? Mr. LOGAN. For what purpose ? Mr. KELSEY. In the hope that we may have peace. I ask the gentleman from Massa chusetts [Mr. BUTLER] to withdraw the resolu tions that he has submitted, and to accept in lieu thereof what I send to the Clerk s desk and ask to have read. Mr. FARNSWORTH. I object to the read ing. Mr. PRUYN. I have a resolution here which I would like to have read. Mr. LOG-AST. I have no objection to its being read. Mr. FARNSWORTH. I object to its being read. The SPEAKER pro tempore. It can be read as a part of the gentleman s remarks. Mr. LOGAN". I do not want it read as a part of my remarks. Mr. FARNSWORTH. I object to its being read unless as a part of the gentleman s re marks. Mr. KELSEY. If the gentleman will yield to me, it can be read as a part of my remarks. Mr. FARNSWORTH. I object. No mem ber holding the floor can yield to another ex cept for the purpose of explaining the matter under consideration. Mr. LOGAN. I do not yield for any ex planation. The SPEAKER pro tempore. The gentle man from New York [Mr. KELSEY] can ex plain the matter under consideration in any way that seems to him pertinent and is not contrary to the rules. Mr. KELSEY. Very well ; I ask that the substitute may be read as a part of my remarks. Mr. LOGAN. I have no objection to that. The proposed substitute was read as follows : Resolved, That the subject of an amendment of the joint rules governing the convention of the two Houses of Congress for the purpose of counting the electoral vote for President and Vice-President of the United States be referred to a select committee of five, with power to report by bill or otherwise at any time. Mr. PRUYN. Will the gentleman from Illi nois [Mr. LOGAN] extend the same courtesy to me, and permit the Clerk to read a resolution I have prepared ? Mr. MULLINS. And I will ask to have mine read. Mr. LOGAN. Does the gentleman from Massachusetts [Mr. BTTTLER] withdraw his prop osition ? That is what I want to know. Mr. BUTLER, of Massachusetts. I answer, that in order that we may get at the question involved in my resolution, I have no pride of opinion at all in this case. And having had the question of the rights and privileges of -this House amply discussed, I am ready to accept the substitute in order that we may be able to go on with the business of the House. Mr. FARNSWORTH. I rise to a point of order, that the resolution offered as a substi tute is not privileged, and that the gentleman cannot get in under cover of a privileged ques tion what is not privileged. I submit that the resolution offered by the gentleman from New York [Mr. KELSEY] as a substitute is not privi leged. The SPEAKER pro tempore. The Chair is of the opinion that the original proposition being a question of privilege any substitute therefor which may be germane to the subject will be proper as an amendment thereto. Mr. FARNSWORTH. I make the point of order that the substitute is not germane not sufficiently germane to be a matter of privi lege. The SPEAKER pro tempore. The Chair will rule upon that point whenever the propo sition of the gentleman from New York is of fered as a substitute for the resolutions of the gentleman from Massachusetts. Mr. PRUYN. Will the gentleman from Illi nois [Mr. LOGAN] allow me to have a propo sition read ? Mr. LOGAN. I cannot give away all my time. I certainly have been fully as generous in that respect as gentlemen usually are. I cannot yield any further. Mr. GARFIELD. I rise to a point of order. My point is that the resolution as now pro posed is not a question of privilege, and I ob ject to its being entertained. The SPEAKER pro tempore. The resolu tion of the gentleman from New York is not yet before the House. Whenever it shall be offered as a substitute for the resolutions of the gentleman from Massachusetts, the Chair will rule upon it. Mr. GARFIELD. I understood the gen tleman from Massachusetts to declare just now that he modified his resolutions by ac cepting the proposition of the gentleman from New York. The SPEAKER pro tempore. The gentle man from Massachusetts was not entitled to the floor for that purpose ; he simply expressed his willingness to do so. The gentleman from Illinois [Mr. LOGAN] is entitled to the floor, and declines to be interrupted. Mr. LOGAN. Now, Mr. Speaker, I yielded for the purpose of allowing the gentleman from New York to have his proposition read, that the gentleman from Massachusetts might have an opportunity to withdraw his resolutions. Nothing would give me more satisfaction at this time than to see those resolutions with drawn. Why? Because then the whole sting would be taken out of this proceeding. A 344 TWENTY-FIRST PRESIDENTIAL TERM. vote of the House would not then be required. But if a vote of this House is to be taken, I do not believe there is a man here who can put his hand upon his heart and say that he is ready to censure Mr. WADE as having acted from any improper motives. I prefer, as I have just said, to see the resolutions with drawn. Mr. BUTLER, of Massachusetts. Will the gentleman yield to me for a moment? Mr. LOGAN. Yes, sir. Mr. BUTLER, of Massachusetts. Mr. Speak er, the gentleman yields to me a moment of his time. Mr. LOGAN. For the purpose of with drawing the resolution. Mr. BUTLER, of Massachusetts. In order that there may be no misunderstanding, I de sire to say, as I said yesterday, that I never have believed, I do not now believe that Ben Wade ever meant to do, or ever did do inten tionally, a wrong act. But I do believe that the privileges of this House have been invaded. That question has been discussed. What is necessary is to have legislation, so that the same thing may never happen again. Waiv ing all pride of opinion, announcing distinctly that I never have censured Ben Wade, and never meant to censure him for any inten tional act of his, maintaining only that his action, whether under the prompting of the Senate or of whomsoever else it may have been, was an invasion of the privileges of this House, still I will, in order to have this grave question settled for the future by legislation, agree to withdraw my resolutions, and accept that of the gentleman from New York [Mr. KELSEY] as a substitute, if such be the judg ment of the House. Mr. FARNSWORTH. I now raise the same question of order that I raised before, that the resolution now presented as a substitute is not a question of privilege. The SPEAKER pro tempore. The Chair does not understand the resolutions of the gentleman from Massachusetts as being modi fied at the present time. Mr. FARNSWORTH. I wish to under stand whether the resolutions have been modi fied in the manner proposed. The SPEAKER pro tempore. Is the Chair to understand that the gentleman from Mas sachusetts has modified his resolutions as indi cated by the gentleman from New York ? Mr. BUTLER, of Massachusetts. If it can be accepted as a modification by the House, yes, sir. Mr. BROOMALL. I make the point of order that it is not germane. Mr. GARFIELD. I object under the rules of the House. Mr. BUTLER, of Massachusetts. Is that "the spirit of hell?" The SPEAKER pro tempore. Does the gentleman propose to modify his resolutions or to allow the gentleman from New York to offer his proposition as a substitute ? Mr. BUTLER, of Massachusetts. To offer his as a substitute any way to get out of the matter. The SPEAKER pro tempore. The Chair rules that the offer of the resolution of the gentleman from New York as a substitute for the resolutions of the gentleman from Massa chusetts is in order. The resolutions of the gentleman from Massachusetts are before the House as a question of privilege, and the House can put them in such shape as it may see fit. If the gentleman modifies his resolutions by adopting the words of the resolution of the gentleman from New York, that reduces it to a resolution, not to one of privilege. But the substitute can be moved as an amendment. Mr. FARNSWORTH. I do not make the point that the original resolutions are not be fore the House and are not privileged ; but I make the point that the gentleman cannot offer a substitute for the resolutions which will not be privileged. The SPEAKER pro tempore. The Chair rules that any matter germane to the matter of privilege in the resolution can be adopted by the House, as the House still retains it in its possession. Mr. FARNSWORTH. The resolution of the gentleman from New York is proposed to be offered as a substitute for the resolutions of the gentleman from Massachusetts, as they were modified by him last evening. The reso lutions, as they have been modified by the gentleman from Massachusetts, read as fol lows: Resolved, That the House protests against the man ner of procedure and the order of the President of the Senate pro tempore, in presence of the two Houses, in counting the vote of Georgia in obedience to the or der of the Senate only, and against his acts dissolving the convention and the two Houses at his own will as an invasion of the rights and privileges of this House. Resolved, That the above resolution be, and here by is, referred to a select committee of five, with leave to report at any time, and report by bill or otherwise. Now, the substitute provides that all the rules in reference to this subject shall be re ferred to a committee. I make the point that the substitute is not germane. The SPEAKER pro tempore. The Chair overrules the point of order, being of the opinion that the proceedings in joint con vention were proceedings under the rule, and the whole subject-matter under the rule has therefore been brought before the House, and it is in order to refer it to a special committee. Mr. FARNSWORTH. I appeal from that decision of the Chair. The SPEAKER pro tempore. The gentleman from Illinois appeals from the decision of the Chair. The Chair rules that the resolution of the gentleman from New York offered as a substitute for the pending resolutions is in order. The question now is, "Shall the deci sion of the Chair stand as the judgment of the House ? " Mr. Kelsey. I move that the appeal be laid on the table. ULYSSES S. GRANT, PRESIDENT. 345 Mr. WILSON, of Iowa. I demand the yeas and nays on tli3 motion to lay the appeal on the table. Mr. LOG- AN". I desire to know how I have been taken off the floor. The SPEAKER pro tempore. The gentle man yielded to the gentleman from New York, who offered, by consent of the gentleman from Massachusetts, a substitute for the pending resolutions which was reported by the Clerk. The resolution having been offered, the gentle man from Illinois, upon the right of the Chair, rose to a point of order. On that point of order the Chair has ruled, and the gentleman having taken an appeal, the motion now is on laying that appeal upon the table, on which the yeas and nays have been demanded. Mr. SOHENCK. I rise to a question of order. I wish to know whether we are to be compelled to vote on the appeal and on the motion to lay upon the table before we have before us the resolutions to which the other is said not to be germane ? I ask that it be read. The substitute has been read, but the other resolutions have not. The SPEAKER pro tempore. They will be read. Mr. LOG- AN". I ask the gentleman to with draw his appeal and point of order until I have finished my remarks. Mr. FARNS WORTH. I will withdraw them if the substitute is withdrawn until after the gentleman has concluded his remarks. I must make the point of order when it is presented. Mr. LOG-AN". It is not very generous of my colleague to refuse : that is all I have to say. The resolutions of Mr. BUTLES, of Massa chusetts, as modified yesterday, were again read. Mr. ALLISON. I desire to have the original resolutions offered by the gentleman from Massachusetts read. I do not understand that those just read are before the House. The SPEAKER pro tempore. It is in the power of the gentleman from Massachusetts to modify his resolutions at anytime before action has been taken upon them. The Chair under stands him to have modified them to the form in which they have now been read. Mr. G-ARFIELD. He modified them as part of his remarks. The SPEAKER pro tempore. The resolu tions, as modified, were read yesterday. Mr. ALLISON. The Globe, I believe, does not say so. Mr. BINGHAM. The Globe does say so. The yeas and nays were ordered on the mo tion to lay the appeal on the table. The question was taken ; and it was decided in the affirmative yeas 131, nays 41, not vot ing 51 ; as follows : YEAS Messrs. Delos R. Ashley, James M. Ash ley, Axtel! : Baldwin, Banks, Benjamin, Benton, Blame, Blair, Boles, Bout\vell, Bowen, Bromwell, Buckley, Benjamin F. Butler, Roderick R. Butler, Cake, Churchill, Reader W. Clarke, Sidney Clarke, Clift, Cobb, Cornell, Covode, Cullom, Deweese, Dickey, Dixon, Dockery, Donnelly, Driggs, Eck- ley, Ela, Thomas D. Eliot, James T. Elliott, Fer- riss, Ferry, Fields, French, Goss, Gove, Griswold, Halsey, Hamilton, Harding, Haughey, Hawkins, Heaton, Higby, Holman, Hooper, Hopkins, Chester D. Hubbard, Hulburd, Hunter, Inger.soll, Jenckes, Alexander H. Jones, Judd, Kelley, Kellogg, Kel- sey, Ketcham, Kitchen, Laflin, Lash, William Law rence, Lincoln, Loughridge, Lynch, Maynard, McCarthy, McCormick, McKee, Miller, Moore, Mor- rell, Mullins, Newsham, Norris, Nunn, O Neill, Orth, Paine, Perham, Peters, Pettis, Pike, Poland, Pomeroy, Prica, Prince, Pruyn, Randall, Raum, Robertson, Roots, Ross, Sawyer, Schenck, Sconeld, Shanks, Shellabarger, Smith, Spalding, Stark weather, Stevens, Stewart, Stokes, Stover, Sypher, Taffj, John Trimble, Trowbridge, Tvvichell, Upson, Van Aernain, Burt Van Horn, Robert T. Van. Horn, Van Wyck, Ward, Cadwalader C. Washburn, Henry D. Washburn, William B. Washburn, Welker, Whittemore, John T. Wilson, Stephen F. Wilson, Windom, Woodbridge, and the Speaker 131. NAYS Messrs. Archer, Baker, Barnes, Barnum, Beaman, Bsatty, Beck, Bingham, Boyden, Boyer, Broomall, Buckland, Gary, Chanler, Egglestou, Farnsworth, Gurfiald, Getz, Golladay, Grover, Hotchkiss, Johnson, Thomas L. Jones, Kerr, Knott, Koontz, George V. Lawrence, Mallory, Moorhead, Mungen, Niblack, Nicholson, Phelps,Pile, Plants, Stone, Van Trump, Thomas Williams, James F. Wil son, Wood, and Woodward 41. NOT VOTING -Messrs. Adams, Allison, Ames, Anderson, Arnell, Bailey, Blackburn, Brooks, Burr, Callis, Coburn, Cook, Corley, Dawes, Delano, Dodge, Edwards, Eldridge, Fox, Glossbrenner, Gravely, Haight, Hill, Asaliel W. Hubbard, Richard D. Hubbard, Humphrey, Julian, Loan, Logan, Marshall, Marvin, McCullough, Mercur, Morrissey, Myers, Newcomb, Pierce, Polsley, Robinson, Selye, Sitgrreaves, Taber, Taylor, Thomas, Tift, Lawrence S. ^Trimble, Van Auken, Vidal, Elihu B. Wash- burne, William Williams, and Young 51. So the appeal was laid on the table. Mr. FARN3WORTH. I now move to lay the resolutions on the table. The SPEAKER pro tempore. The gentle man s colleague [Mr. LOG-AN] is entitled to tha floor for five minutes. Mr. LOGAN". I am very much obliged for the generosity of my colleague. [Laughter.] I do not wish to dispute the Speaker, but when I quit speaking he stated that I was entitled to nine minutes. [Laughter.] The SPEAKER pro tempore. The Chair stands corrected. The gentleman is entitled to nine minutes. Mr. LOGAN". Now, sir, I have no com plaint to make of the course of the House, nor of the gentlemen who have so kindly taken me off my feet in the midst of my remarks; but the persistency with which they insisted on sticking to the point of not allowing me to go on has somewhat affected my opinions in ref erence to what I shall do in this case. Mr. FARNSWORTH. Will the gentle man Mr. LOGAN. I decline to yield any farther. I have never before known an act of generosity turned into an act, I will not say of unkind - ness, toward the individual who at first was disposed to be generous. I have tried to be generous to everybody. I do not know that I have received much generosity in return, nor 346 TWENTY-FIRST PRESIDENTIAL TERM. that I am entitled to any, nor indeed do I care about that. The position of the question is such now that it certainly does give evidence to everybody in this House, to every cool and calculating mind, that the longer the question is discussed the more disturbing an element it becomes in this House. Hence I have con cluded that excitement should cease ; I have concluded that discussion should cease; and I believe that the best way and the only proper way to accomplish that end, as there seems to be a difficulty about the various propositions and amendments, is to lay the whole question on the table, and then let some gentleman offer a resolution that is disconnected entirely with this resolution, and let it be passed at some time, if the House sees proper, or let the mat ter be referred to a committee. I have come to that conclusion from what I have seen of the disposition of members here. There is excitement on both sides unnecessa rily, I think ; but it is the case, and it is un avoidable, and there is no other remedy for it. The first resolution being a resolution of cen sure whether so intended or not the subse quent propositions, the substitutes and amend ments, would carry the record with them. The resolution of censure would stand upon the record without having been voted down or disposed of, and the substitute would carry the same sting with it. Now, I know, as the gentleman from Mas sachusetts [Mr. BUTLER] says, that he is a friend of Mr. Wade ; he has no reason to cen sure him. He has no disposition to censure him. Hence I say to him, and to everybody else in this House who has no disposition of that kind, let the whole matter be laid on the table, and then let us take up the subject in a proper way, unconnected with a resolution of censure, and then you will get out of the diffi culty without charging any one with having intentionally done wrong. I said that I would not argue the constitu tional and legal question. I am only reason ing in reference to our duty under the circum stances. Now, what right have we to censure Mr. WADE? I mean, what justice would there be in it? What wrong was intended to be perpetrated on this House or on the privileges of this House either by the President of the Senate or by the Speaker of this House ? Mr. WARD. Will the gentleman answer me a question ? Mr. LOGAN. I decline to yield. Mr. WARD. I desire to ask the gentleman whether a motion to lay this subject upon the table without further debate would not be a violation of his own deliberate agreement not to make that motion ? Mr. LOGAN. Now, that is the kind of treatment I have received from gentlemen while I have been speaking. I will say to the gentleman from New York, that yesterday I gave thirty minutes of my time to other gen tlemen, and to-day I was asked if I would not give more of my time, and I did so. Then I was asked if I would move to lay the whole subject on the table, and I said I would not, because I wished to give the gentleman from New York [Mr. WAED] and my colleague from Illinois [Mr. BROMWELL] a chance to speak, in asmuch as the Speaker was disposed to give them the floor. But inasmuch as gentlemen have taken me off my feet, and have not given me the same privileges on the floor that I have given to other gentlemen, I am disposed to take my own course in the matter without ref erence to the dictation of anybody. Now I yield no further. Mr. INGERSOLL. I hope the lex talionis will not prevail here. Mr. WARD. I rise to a point of order. I wish to know whether it is ever in order for a man from the State of New York to speak, or is it always in order for the floor to be monop olized by others. [Laughter.] The SPEAKER pro tempore. The Chair does not entertain that as a point of order. Mr. LOGAN. Now, if I can be permitted to finish my remarks, I will be very much obliged. I will say to the gentleman from New York [Mr. WARD] that it is certainly out of or der for New York to be heard when it is not in order for New York to speak, as he himself evidenced here a. moment since. Now, I desire to say that I have no right to give a warning to the House, or to dictate to the House. But as a member of the House I have a right to appeal to the members of this House, and I do ask them to reflect, as cool, honorable, just men, who would not know ingly wrong anybody. And I now ask them, as Representatives of the people, to lay this whole subject on the table. And I now make that motion. The question was upon the motion to lay on the table. Mr. PILE. On that motion I call for the yeas and nays. Mr. BROMWELL. I would like to ask my colleague [Mr. LOGAX] a question. Mr. BINGHAM. I object ; it is too late. Mr. WILSON, of Iowa. I call for the regu lar order of business. The SPEAKER pro tempore. The pending motion to lay on the table is not debatable. The question was taken upon ordering the yeas and nays; and they were ordered. Mr. HIGBY. I ask that the original reso lutions, together with the proposed substitute, be read. The resolutions submitted by Mr. BUTLER, of Massachusetts, as modified by him on yes terday, were read as follows : Resolved, That the House protests against the manner cf procedure and the order of the President of the Senate pro tempore, in presence^ of the two Houses, in counting the vote of Georgia in obedience to the order of the Senate only, and against his acts dissolving the convention and the two Houses at his own will, as an invasion of the rights and privileges of this House. ULYSSES S. GRANT, PRESIDENT. 347 Resolved, That the above resolution be, and hereby is, referred to a select committee of five, with leave to report at any time, and report by bill or other wise. The substitute proposed by Mr. Kelsey was read, as follows : Resolved, That the subject of an amendment of the joint rules governing the convention of the two Houses of Congress for the purpose of counting the electoral votes for President and Vice-President of the United States be referred to a select committee of five, with power to report by bill or otherwise at anytime. The question was then taken upon the mo tion to lay on the table ; and it was decided in the affirmative yeas 130, nays 55, not voting 38 ; as follows : YEAS Messrs. Allison, Ames, James M. Ashley, Baker, Barnes, Barnum, Beaman, Beatty, Beck, Ben jamin, Bingham, Blaine, Bowen, Boyden, Boyer, Broomall, Buckland, Buckley, Burr, Koderick E. Butler, Cake, Callis, Cary,Chanler, Churchill, Reader W. Clarke, Cobb, Coburn, Cornell, Dawes, Deweese, Dixon, Dockery, Dodge, Eckley, Eggleston, James T. Elliott, Farusworth, Ferriss, Ferry, Garfield, Getz, Glossbrenner, Griswold, Halsey, Haughey. Hawkins, Heaton, Holman, Hooper, Hopkins, Hotchkiss, Ches ter D. Hubbard, llulburd, Hunter, Jenckes, Johnson, Alexander H. Jones, Judd, Kelley, Kellogg, Kerr, Ketcham, Kitchen, Knott, Koontz, Laflin, Lash, George V. Lawrence, William Lawrence, Lincoln, Logan, Loughridge, Mallory, Marvin, McCarthy, Mc- Cormick, Miller, Moore, Moorhead, Morrell, New- comb, Newsham, Niblack, Nicholson, Norris, Nunn, O Neill, Orth, Paine, Per ham, Peters, Pettis, Phelps, Pile, Plants, Poland, Polsley, Pomeroy,Price, Pruyn, Randall, Raum, Robertson, Sawyer, Scofield, Shella- barger, Smith, Spalding, Starkweather, Stewart, Stokes, Stone, Taylor, Thomas, Twichell, Upson, Van Aernam, Van Auken, Burt Van Horn, Van Trump, CadwaladerC. Washburn, William B. Wash- burn, Welker, James F. Wilson, John T. Wilson, Wood, Woodbridge, Woodward, and the Speaker 130. NAYS Messrs. Archer, Delos R. Ashley, Axtell, Eliot, Fields, Golladay, Goss, Gove, Grover, Haight, Hamilton, Higby, Ingersoll,Thomas L. Jones, Julian, Kelsey, Lyncn, Marshall, Maynard, McKee, Mul- lins, Mungen, Pierce, Pike, Prince, Roots, Ross, Sehenck, Shanks, Stevens, Stover, Sypher, Taffe, John Trimble, Trowbridge, Robert T. Van Horn, Van Wyck, Ward, Henry D. Washburn, and Whitte- more 55. NOT VOTING Messrs. Adams, Anderson, Ar- nell, Bailey, Blackburn, Blair, Boles, Brooks, Cook, Covode, Delano, Edwards, Fox, French, Gravely, Harding, Hill, Asahel W. Hubbard, Richard D. Hub- bard, Humphrey, Loan, McCullough, Mercur, Mor- rissey, Meyers, Robinson, Selye, Sitgreaves, Taber, Tift, Lawrence S. Trimble, Vidal, Elihu B. Wash- burne, Thoilias Williams, William Williams Ste phen F. Wilson, Windom, and Young 38. So the motion to lay the resolutions and proposed substitute on the table was agreed to. Daring the call of the roll, Mr. HALSEY said: My colleague [Mr. HILL] has been called home on account of the death of a friend. If he were here he would doubtless vote " ay." Mr. FARNSWORTH moved to reconsider the vote just taken ; and also moved that the motion to reconsider be laid on the table. Mr. ELDRIDGE. On that motion I call for the yeas and nays. The question was taken upon ordering the yeas and nays; and there were seventeen in the affirmative. Before the noes were counted, Mr. ELDRIDGE called for tellers on order ing the yeas and nays. The question was taken upon ordering tell ers; and there were twenty -five in the affirm ative. So (the affirmative being more than one fifth of a quorum) tellers were ordered; and Mr. ELDSIDGE and -Mr. FARXSWORTH were appoint ed. The House again divided; and the tellers reported that there were yeas 32, nays not counted. So the yeas and nays were ordered. The question was taken ; and it was decided in the affirmative yeas 129, nays 41, not vot ing 53 ; as follows : YEAS Messrs. Allison, Ames, Delos R. Ashley, James M. Ashley, Baker, Barnes, Barnum, Beamah, Beatty, Beck, Benjamin, Bingham, Blaine, Boles, Boutwell, Boyden, Boyer, Broomall, Buckland, Buckley, Burr, Roderick R. Butler, Cake, Callis, Gary, Chanler, Churchill, Cobb, Cornell, Cullom, Dawes, Deweese, Dixon, Dockery, Dodge, Eckley, Thomas B. Eliot, James T. Elliott, Farnsworth, Ferriss, Ferry, Fields, Garfield, Getz, Glossbrenner, Griswold, Haughey, Hawkins, Heaton, Holman, Hooper, Hopkins, Hotchkiss, Chester D. Hubbard, Hurlburd, Hunter, Jenckes, Johnson, Alexander II. Jones, Judd, Kelley, Kerr, Ketcham, Kitchen, Knott, Koontz, Laflin, Lash, George V. Lawrence, William Lawrence, Logan, Loughridge, Mallory, Marvin, McCarthy, McCormick, McKee, Miller, Moore, Moorhead, Morrell, Niblack, Nicholson, Norris, Nuun, O Neill, Orth, Paine, Perham, Pet tis, Phelps, Pile, Plants, Poland, Polsley, Pomeroy, Price, Pruyn, Randall, Raum, Robertson, Sawyer, Scofield, Shellabarger, Smith, Spalding, Stark weather, Stewart, Stokes, Stone, Taylor, Thomas, Twichell, Upson, Van Aernam, Van Auken. Burt Van Horn, Van Trump. Vidal, Cadwalader C. Wash- burn, William B. Washburn, Welker, Thomas Wil liams. James F. Wilson, John T. Wilson, Wood, Woodbridge, Woodward, and the Speaker 129. NAYS Messrs. Archer, Axtell, Baldwin, Benton, Blair, Bromwell, Benjamin F. Butler, Sidney Clarke, Corley, Dickey, Donnelly, Driggs, Eldridge, Golla day, Goss, Gove, Grover, Haight, Hamilton, Hig by, Ingersoll, Thomas L. Jones, Julian, Kelsey, Mullins, Mungen, Newcomb, Newsham, Pike, Roots, Ross, Sehenck, Shanks, Stevens, Stover, Sypher, John Trimble, Trowbridge, Robert T. Van Horn, Van Wyck, and Whittemore 41. NOT VOTING Messrs. Adams, Anderson, Ar- nell, Bailey, Banks, Blackburn, Bowen, Brooks, Reader W. Clarke, Clift, Coburn, Cook, Covode, Delano, Edwards, Eggleston, Ela, Fox, French, Gravely, Halsey, Harding, Hill, Asahel W. Hubbard, Richard D. Hubbard, Humphrey, Kellogg, Lincoln, Loan, Lynch, Marshall, Maynard, McCullough, Mercur, Morrissey, Myers, Peters, Pierce, Prince, Robinson, Selye, Sitgreaves, Taber, Taffe, Tift, Lawrence S. Trimble, Ward, Elihu B. Washburne, Henry D. Washburn, Will^m Williams, Stephen F. Wilson, Windom, and Young 53. So the motion to reconsider was laid on the table. 348 TWENTY-FIRST PRESIDENTIAL TERM. Ix HOUSE OF REPRESENTATIVES. Saturday, February 13, 1869. (" Congressional Globe," 40th Congress, 3d S sion, pp. 1189-1192, 1196, 1197.) Mr. BOUT WELL. Mr. Chairman, the events of the present week have revived some old questions connected with the powers of the Senate and the House of Representatives in counting the electoral votes for President and Vice-President of the United States, and they have also suggested at least one new question. Two of these questions are of such importance that I have not felt willing to allow the occa sion to go by without expressing the views which I entertain. I may say, however, that the importance of the events through which we have just passed is, in my mind, not due to the manifestations that took place on the floor of this House. The excitement here, disagreeable as it was, is of no considerable importance with reference to the public welfare. It is true, however, at least it seems true to me, that what took place here and was complained of by us as occurring through the instrumentality of the Senate, was due chiefly, if not wholly, to errors and mistakes which did not involve any purpose upon the part of anybody to invade the rights or to impair the privileges of this House. The difiiculty, I think, was largely due to the circumstance that, when objection was made to the counting of the vote of Georgia, and when the Senate had retired to its own Cham ber, this House did not comprehend the pur pose for which the Senate had retired ; at least this is to be inferred from the fact that the Senate passed upon one question and this House upon another. The resolution adopted by the Senate during its absence from this Hall was in these words : " Resolved, That under the special order of the two Houses respecting the electoral vote from the State of Georgia, the objections made to the counting of the vote or the electors for the State of Georgia are not in order." This was the result reached by the Senate, and it appears to have been the chief subject- matter of its deliberations. But in this House we voted upon the question whether the elec toral vote of Georgia should be counted. The declaration of the Speaker after the vote was taken here was in these words : " Upon the question, Shall the vote of Georgia be counted, notwithstanding the objections of the gen tleman from Massachusetts? the yeas are 41, the nays are 150." As a matter of fact, there was a difference of understanding between the two Houses as to the particular course that should be pursued upon the question raised by my colleague ; and if there had not beeg that difference of under standing, which did not imply any improper purpose on the part of anybody, I have no idea that any considerable excitement would have occurred. I do not, however, discuss this matter now for the purpose of considering the events of the past week in this particular. My honora ble friend from the seventh district of Ohio [Mr. SHELLABARGER], in the very able speech that he made in the recent debate, took and maintained with great force a position from which I wholly dissent, although I am bound to say that he did not, as I understand him, irrevocably commit himself in opinion to that position ; but the peculiarities of his statement and the course of his argument, as I understood it, will make upon those who may come after us, and in similar circumstances may be called upon to examine what was done upon this oc casion, an impression that he was of the opin ion upon the whole that the duty of counting the votes of the electors for President and Vice-President is committed exclusively to the President of the Senate. Mr. SHELLABARGER. In the absence of legislation. Mr. BOUTWELL. -Well, I differ from my friend on that point ; and it is chiefly on ac count of this difference of opinion that I seek this opportunity to state the views I entertain, that they may stand for whatever they may be worth. I am greatly impressed with the neces sity of making some sort of protest, however weak or inefficient, against that proposition. I cannot concede that we have a Constitution that has confided to one man the custody of the fortunes of this country when it is passing through the most critical moments of its exist ence when it is taking upon itself for a period of four years a new life, which, under our institutions, is to be continually reproduced through all the successive stages of our na tional existence. I cannot concede that at such a time it is in the power of any one man to destroy or impede, or even to interfere with this renewed existence at the very moment of its birth. Now, sir, I remember (for I was then on this floor) that eight years ago, on the second Wednesday of February, 1861, John 0. Breck- inridge, then Vice-President of the United States and President of the Senate, sat in that hair. His heart was then already filled with the pernicious influences of treason ; and there is cause to believe that it was contemplated by a large portion of those with whom he was associated to seize the capital of the country and arrest various members of the Government on the night preceding the day on which the electoral votes were to be counted. I remember the circumstances under which members of Congress and others came here, anticipating possibly a declaration on his part inconsistent with the perpetuity of this Government. When I reflect that this country has passed through such a trial I cannot conceive of any doctrine more dangerous in its inculcation than the doc trine that to the President of the Senate is con fided the duty and the power of counting the electoral votes. Therefore, on this view of the circumstances of the case, I hold it to be ULYSSES S. GRANT, PRESIDENT. 349 just, to be necessary, to give to the Constitu tion such an interpretation as will place this great power in safer hands. If, under the Constitution, this great power is confided to the President of the Senate, then we must seek an alteration of the Constitution as the only remedy. Mr. SHELLABARGER. I ask the gentle man to yield to me. Mr. BOUT WELL. Certainly, for correc tion. Mr. SHELLABARGER. I ask that my statement shall not be taken out of the time of the gentleman from Massachusetts. There was no objection ; and it was ordered accordingly. Mr. SHELLABARGER. My friend from Massachusetts has done me the kindness to allude to the position I occupied on this ques tion, and that is the only reason why I wish to make a statement now. I did not know this matter was to come up to-night, and am here to-night by accident. I wish to restate what I meant to say, and the result of what I meant to say, as to who should do the counting in the absence of legislation. I meant to state, with caution and hesitation, that my convic tions were that Chancellor Kent had rightly concluded that, in the absence of legislation on that subject-matter, the Constitution meant to leave the doing of the counting to the Presi dent of the Senate in the presence of the two Houses, those two bodies being entitled to see that the counting was fair to adopt the exact words of the authority. The only statement I desire to make in addition to that is this : my expression of opinion was to go to this extent, that there was a casus omissus in the Consti tution; that it did not in terms provide the method of making the count, or by whom it should be done, and that from that fact legis lation is needed. As in every case of that character where there is a cams omissus it is competent for legislation to supply the omis sion, and in this case to provide the very in strumentalities that shall do the counting, and the regulations by which the result and legal ity of the election shall be determined. The next thing I desire to state is this : this is in fact a recognized infirmity or oversight in the Constitution itself; that it ought not to have left the thing as it seems to have left it to be done, as a mere ministerial act of the counting officer. That is the defect of the Constitution ; and it is because that defect exists my friend very properly says that we ought to have legislation. In the* absence of that legislation, therefore, it would seem, I say, the Constitution did look upon this as a mere ministerial act ; one to be exercised by the President of the Senate fairly in the pres ence of the two Houses. That is all I desire to say. Mr. THOMAS. I ask my friend from Mas sachusetts to yield to me, with the understand ing that it shall not be taken out of his time. There was no objection; and it was ordered accordingly. Mr. THOMAS. Mr. Chairman, I was about to say that I had heard the subject once elab orately discussed, not in open session of Con gress and not in a mode that has left any rec ord behind it ; and it may aid in reaching a right conclusion as to what is needed in the future to state the prevailing opinion in both branches of Congress at the time I alluded to yesterday. The opinion then entertained is utterly incompatible with the idea that the President of the Senate alone should be author ized to count the votes in the presence of tho Congress of the United States. The belief was that the declaration of the Constitution that the votes for President and Vice-President were to be counted carried with it the idea necessarily that the character of the votes must first be inquired into, the validity of the votes must first be inquired into, the legality of the votes must first be inquired into. The sources whence they came must first be in quired into before you can count them as votes. By what process could the President of the Senate reach the elucidation of that difficulty ? Where is he clothed with the ne cessary power ? The law-making power, and the law-making power alone, can prescribe tho mode and manner in which the inquiries are to be made which lie necessarily in your path before you can count the vote. Could the Vice-Pres- ident go behind and inquire into the character of the laws of the several States where the electors are chosen ? Has he the right to in quire whether the electors have voted in con formity to the Constitution of the United States as to the time the returns were sent here ? All these difficulties standing in the way led to the conclusion at that day that necessarily when we spoke of counting the votes it was the duty of the law-making power, under the Constitu tion, to establish rules for the guidance of the Senate and House in joint meeting. And it would be the duty of the presiding officer of the joint meeting to see that those rules were obeyed and followed. It was on this account that I threw out the idea to the gentleman from Ohio that I did not think he could sustain so strong a position as that he advanced. I will take occasion to say that the House and the country are indebted to the gentleman from Massachusetts to come on so calm an occasion to reopen this question. It was understood at the time to which I have referred that it was the duty of Congress to take the matter in hand and prescribe by joint resolution the manner of proceeding in counting the votes in joint meeting. The two Houses are composed of different elements. The Senate is composed of two Senators from each State, and the House is composed of mem bers elected by the people, and it is no easy task to prescribe the precise powers of two bodies thus constituted when in joint session ; and if the gentleman from Massachusetts will 350 TWENTY-FIRST PRESIDENTIAL TERM. in the next Congress follow up this subject, and by law deliberately guard against a recur rence of such scenes as we recently passed through, he will render a great service to the whole country. Mr. BOUTWELL. I wish to have the opin ions expressed by the gentleman from Ohio [Mr. SHELLABAEGER] precisely as he presents them, for my object is not to engage in, much less to provoke any discussion with him or any body else upon this point, but to do something, if I may, to enable the country to arrive at what seem to me to be safe conclusions upon this great question. I will, however, make a passing remark upon the danger I think that not too strong a word to use of relying for a practical inter pretation of a great power in the Constitution exclusively upon men who have been students of constitutional law solely, or who have been students in a much larger degree than they have had opportunity to participate in the practical development of its provisions and powers. I do not hesitate to say that in my opinion Judge Story and Chancellor Kent would have been able to discuss with much greater clearness and power, with reference to the practical workings of the Government, the various provisions of the Constitution if they had had a larger opportunity to deal with the practical business of the Government in its political branches. But, sir, to approach more nearly the great question which we have been called to con sider, namely, the constitutional power of the Senate and House of Representatives to count the electoral votes of the several States. The provision of the Constitution is very simple. It says merely that the President of the Senate in the presence of the Senate and House of Representatives shall open the certificates and they shall be then counted. There is a specific declaration of the power which the President of the Senate has. It is made the duty of the electors to return their certificates to him ; it is then made his duty in the presence of the Senate and House of Representatives to open the certificates, and the votes shall then be counted. Can there be any doubt that when he has exercised the power which is specifi cally conferred upon him his power is ex hausted ; that he has nothing further to do except to announce the vote ? A MEMBER. How could he announce it without counting ? Mr. BOUTWELL. I will show how he could. " The votes shall then be counted." First, what is counting the vote ? Is it merely looking at the certificate of the electors and ascertaining, what is written upon those certifi cates and for whom the votes of the electors have been given ? Sir, I do not put such an interpretation upon the words. For if that be the case, it would be in the power of various parties the messenger that might convey the returns to the President of the Senate, or the custodian of an unknown key of a safe in which these certificates might be deposited to change the written certificate or to substi tute a forged one for it. Sir, I take it that this power wherever vested is, with reference to the subject-matter, an omnipotent power ; that is to say, a power sufficient to enable the party authorized by the Constitution to count these votes, to explore the history of the whole transaction, from the people who have declared their voice through their suffrages, and to ascertain whether all the procedings have been right, or whether by some fraud or mis conduct or error the certificate has been vitiated. If there be not this power some where, then, of course, this court is at the mercy of whoever may choose to be guilty of a fraud or who may inadvertently commit an error. If, then, this be the nature of the duty im posed in the matter of counting tho votes, the next inquiry is, upon whom is this duty im posed? I say, first, by the language of the Constitution it is not imposed upon the Presi dent of the Senate ; I say, in the next place, that there is given to the President of the Sen ate by the Constitution no power by which he could institute the necessary inquiries and the proper scrutiny by which he could ascertain whether everything was fair and proper from the beginning to the end of this transaction. Then, if it be not in the President of the Sen ate, where by the necessity of the case must it be? It must be in the two Houses of Con gress. This work of opening the certificates is to be in the presence of the Senate and the House, and the vote is then to be counted. For what purpose are the Senate and the House here? Do gentlemen say that it is to see whether the work is properly done ? Is that enough ? What work properly done ? To see whether the President of the Senate reports to the Senate and the House of Representatives correctly what is written upon the papers called certificates which he opens in their presence? Is that enough to secure the peo ple of this country against fraud, wrong, acci dent, or mistake? I think not. The counting of the votes unquestionably is to be " in the presence of the two Houses." Have the two Houses power to do what by the CoDstitution is unavoidably made the duty of somebody to do to see that the votes which are counted are real votes ? By that I mean whether what is written upon the paper ex presses the opinion which the people have given. Not only have the Senate and House of Representatives the power, but there is no other department of the Government that is clothed with that power. The President is not clothed with the power by any possible con struction of the Constitution. The Supreme Court is not clothed with the "power. There is no governmental instrumentality that can be named that has this power except the Sen ate and the House of Representatives. We all ULYSSES S. GRANT, PRESIDENT. 351 agree that under some circumstances this pow er ought to be exercised. We all agree that the Constitution contemplates purity, justice, not fraud or wrong. Next, what has been the practice of the Government from the beginning? What was the course of proceeding on Wednesday last ? Why, that a Senator selected by the Senate and two members of this House appointed, to be sure, by the Speaker but the Speaker of the House does nothing as Speaker which the House might not without the agency of the Speaker do for itself actually counted those votes. So it has always been. The tellers represent the two Houses. The President of the Senate did nothing but hand down to the tellers the certificates which he had received after having opened them in the presence of the Senate and House, and the tellers, who represented, not the President of the Senate, but who represented the Senate and the House of Representatives, actually counted the votes. It has been the uniform practice, as I under stand, from the beginning of the Government, that the Senate and the House of Representa tives have actually counted the votes. Now, then, what has been the course of the two branches of the Government in another particular which bears distinctly upon the powers and duties of the two Houses in refer ence to this business? In 1821, on the occa sion alluded to by the venerable and honorable gentleman from Maryland [Mr. THOMAS], un der the lead of Mr. Clay a resolution was passed in reference to the State of Missouri in terms precisely like that which we passed in reference to the State of Georgia. If you will analyze the resolutions you will see that they contain an assertion of power to investi gate the circumstances attending the elections in Georgia and in Missouri, for both of those resolutions declare that the return certificates of those States should not be counted in the manner in which the certificates returned from other States were to be counted. The asser tion of that power is an assertion of all the power for which I contend ; which is, that the Senate and House of Representatives in exer cising the power and performing the duty do- rived from the Constitution, and sanctioned by the uniform practice from the beginning of the Government till now, of counting the electoral votes through officers appointed by the Senate and the House, may institute an inquiry into every proceeding that has taken place from the deposit of the ballots by the people through all intermediate proceedings to the opening of the certificates by the President of the Senate in the presence of the Senate and House of Representatives for the purpose of ascertain ing whether the proceedings have been right, or whether they have been vitiated by error or fraud. It may be said that this is a great power. It is a great power to institute an inquiry into proceedings touching so vital a matter as the exercise of the right of the people to be heard in the election of a President and Vice -Presi dent of the United States. But it is a power which must be lodged somewhere. It would be a dangerous doctrine to maintain that any paper coming here through the customary or authorized channels bet ween the State and the national Government is to be received without any inquiry. That would be a most dangerous doctrine. I cannot conceive of any place where this power could be so safely deposited as in the Senate and in the House of Representa tives. Hence I cannot agree with the gentle man from Ohio [Mr. SHELLABARGER] that there is a casus omissus in the Constitution. It being established, as I think it is established, that the Senate and the House of Representatives are authorized and required to count the electoral votes, it follows, from the nature of the case, that the Houses are clothed with power to make such rules as are needed to enable them to perform the duty in a proper manner. But if this be not so, then the eighth section of the first article of the Constitution clothes Con gress with ample power. The provision gives to Congress 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 Gov ernment of the United States, or in any de partment or officer thereof." This power is ample for every exigency. Further, the wis dom of the convention which framed the Con stitution is shown in the omission to prescribe the details of duty or to set forth specifically the means by which powers granted are to be executed. It was assumed that there would be wisdom and patriotism in those who would be called to execute the powers granted, and that successive Congresses would prescribe such modes of proceeding as experience should sug gest or require. And this brings me to the consideration of a circumstance which occurred on the floor of this flouse, and which when it occurred dis turbed me more than any other circumstance in my political experience. Upon objection to the vote of Georgia being made by my col league [Mr. BUTLER], the Speaker, acting un der the twenty-second rule, put this question to the House, " Shall the vote of Georgia be counted ? " By that rule, as it stands in the Manual, the vote of Georgia was not to be counted if either House declared that it should not be counted. When the resolutions submitted by my col league [Mr. BUTLER] were under consideration, containing or implying a censure upon an of ficer of another branch of the Government, I reached the conclusion that I could not vote for them. But when he modified them by ac cepting a resolution authorizing a committee to inquire whether any amendment to the joint rules was needed, I was anxious that the resolutions should pass, for the purpose of bringing before such a committee the danger 352 TWENTY-FIRST PRESIDENTIAL TERM. in which we stand to-day and the evils that may in some future time be brought about by and under the twenty-second joint rule of the two Houses of Congress. In my opinion, when the counting of the vote of a State is objected to, the question to be put to the Senate and to the House should be, not "Shall the vote of the State of be counted? " but "Shall the vote of the State of be rejected? In my judgment, this dif ference in the form of the question is all the difference between peace, harmony, and quiet in some future difficulty like that through which we have just passed, on the one side, and disorder, anarchy, and revolution on the other. If in a great political excitement the vote of a State should be rejected by the action of one House of Congress, the other House not concurring in that action, no man can foretell the results that would flow from the proceed ing. The trouble would not arise necessarily because the rejecting vote had been a wrong vote. All these evils might happen if the re jection of the vote of the State was right. In this country it is especially necessary that there should be unity of opinion and of action in those departments of the Govern ment that under our system are expected to cooperate in the execution of a great power. If the people find the Senate and the House agreeing in the rejection of the vote of a State, that harmony of opinion between the two Houses carries great weight with the country. And even if that decision were wrong I know not if it would not be better for the country that it should be made erroneously by the two branches of Congress than that the vote of a State should rightfully be rejected by the power of one branch exercised against the judgment of the other. Mr. SHELLABARGER. I would ask my friend if I understood him correctly to contend that this counting of the electoral votes can be done by the separate action of the two Houses of Congress ? If so, or even if not so, then I wish to ask his attention to this consideration : the gentleman says that that thing called "counting," investigation, exploration of the legality, etc., of this proceeding from the people up, is a thing about which the mind of the two Houses can be and must be exercised in com ing to a conclusion. Now, I understand the gentleman to say that the only question to be put to the separate Houses is whether the vote of the State objected to shall be rejected. Mr. BOUT WELL. I say that, as antagoniz ing the question which was put here,, the question ought to be I do not say it is the only question, but I say that the question which should be put as the alternative of the question put the other day is, " Shall the vote of be rejected?" Mr. SHELLABARGER. I now, perhaps, understand the gentleman better. That par ticular form of putting the vote is an important matter, arising, as I understand the gentleman, out of the twenty-second joint rule and the practice under it. But the Constitution does not drive us to such a method of voting nor confine us to that way of finding out whether the vote of a State ought to be counted in the constitutional sense. The suggestion I was going to make was that if it be true that under the Constitution the only question that can be taken is whether the vote of a State shall be rejected, then the position of my friend would result in this : that nobody, neither the Presi dent of the Senate nor the House of Represent atives, nor the Senate, would have the power to act affirmatively and say that the vote of a State should be counted. The only question would be whether the vote should be rejected. Mr. BOUTWELL. Mr. Chairman, I do not find in the Constitution any declaration as to the questions that are to be proposed to the two Houses, much less any declaration as to what shall be the form of questions ; but I find in the Constitution a declaration that the votes shall be counted. I find that the Constitution provides for the two Houses meeting together. I find that it is necessary for the safety of the Republic that the power of the two Houses shall be exercised, and that from the begin ning of the Government it has been exercised in regard to the matter of counting the votes, and that as early as 1821 Mr. Clay, who was the author of the resolution from which our concurrent resolution with reference to Geor gia was copied, led in the assertion of a prin ciple which is sufficient to include all that I claim ; that is, that the two Houses have power under the Constitution to institute a scrutiny to ascertain whether the will of the people as expressed at the ballot-box is honestly ex pressed by the certificates upon the table of the President of the Senate. Upon this basis I maintain that it is the duty of the two Houses, under the Constitution, to proceed in such a manner as honestly to ex f e- cute the duty which is imposed upon them by the Constitution. I say further that the duty imposed upon them by the Constitution can not be executed safely under this twenty-sec ond rule if the question is to be put- as it was put by the Speaker of the House on Wednes day, and, as I think, fairly put under the rule. Hence it is, in my judgment, necessary, if we would leave a proper precedent for our suc cessors, that this rule should be modified so that the vote of a State objected to shall not be excluded except by the voice of the two Houses. This brings me to the consideration of the question how shall the voice of the two Houses be expressed. I say at once that they are not to act together as a joint body. The reason for separate action is to be found in the nature of the case. If there should be a failure to elect a President, the power to elect devolves upon the House of Representatives. Now, if the House of Representatives, for example, were constituted with as large a majority in ULYSSES S. GRANT, PRESIDENT. 353 favor of one political party as is found in this House to-day, and if the Senate at the ^same time were constituted with as large a majority in favor of the opposite party as is the political majority in the Senate to-day should the two Houses act together the majority in the House would be able to control the antagonistic majority in the Senate, and thus decide the matter for itself. Hence in such a case the question might as well be left to the House alone as to be left to the two Houses. Then again wo have to consider that in no other par ticular is there any ground to assume that the two Houses are to act as one body. In addi tion to that, no one can fail to see that there is greater security for the public peace, for the safety of the -nation, if the concurrent action of the two Houses be required than there would be if the question were left to the two Houses acting jointly. It is said in the Con stitution that " the votes shall then be count ed," meaning undoubtedly that they shall be counted in the presence of the two Houses. But the judgment of the Houses as to whether a particular vote shall be counted may be made up when those Houses are separated. If the Senate retires and decides that the vote of Georgia shall be counted, the vote is not then counted when merely the Senate has so de cided. But when the President of the Senate comes in and says the judgment of the Senate is that the vote of Georgia shall be counted, and also that the judgment of the House of Representatives is that the vote of Georgia shall be counted, the vote of Georgia is then to be counted in the presence of the two Houses. When the certificate of the electoral votes of a State is laid upon the table of the President of the Senate, that so many votes were cast for a certain person for President and so many for a certain other person for Vice-President, the prima facie case, as we say, is that the transaction was an honest transaction, and the certificate is a faithful re port of the result reached. It is for those who deny it to overthrow the prima facie case made out by the presentation of the certificate under the Constitution, and that can only be overthrown by the opinion of the Senate ex pressed independently that there is fraud or error so as to vitiate the certificate, and the opinion of the House of Representatives, ex pressed independently, that there is fraud or error which vitiates the certificate . If either House says the vote of the State objected to shall be counted, or shall not be rejected, it must be counted. I think there is no safety in any other rule. Mr. SHELLABARGER. The result is this : Although it might be known that the vote was fraudulent, still the fact could not be decided in that way if the House of Representatives refuses to decide it. Mr. BOUTWELL. How do we know whether the vote is fraudulent ? Only by the decision of those who are to judge of it. The 23 right of judgment is in the Senate and in the House, and their concurrent action is required to overthrow the prima facie case made out by^the presentation of the certificate. The two bodies are like any other tribunal. We may pass a bill in the House and may think it an important measure ; but if the Senate does not concur, although the people may suffer from want of it, it is not the law. So if we object to the vote of a State and think we have sufficient reasons for so doing, and the Senate refuses to concur, the vote must be counted. Nothing can be done without the concurrence of the two branches of Congress. Under the Constitution and for the safety of the country the vote of every State must be counted unless the Senate and House by a concurrent vote declare that it should be re jected. Mr. BROOMALL. Mr. Chairman, I agree with the gentleman from Massachusetts who has just addressed the committee [Mr. BOUT- WELL], that the questions which the resolution of his colleague [Mr. BUTLER] of Wednesday last indirectly brought before the House and into the discussion can hardly be over-esti mated in their importance to our national fu ture. The substitution of one Executive for another, which our system of government re quires to be done so frequently, must always be a dangerous operation unless the mass of the community believe it to be done fairly and in conformity with preexisting laws. Hence the necessity of foreseeing every possible ques tion that may arise upon which there may be honest difference of opinion, and providing for its settlement beforehand by legislative enact ment or by constitutional provision. If the right of a State to have its electoral votes counted at any election should be a ques tion upon which the thinking men of the coun try are nearly equally divided, if the counting of those votes should elect one candidate and throwing them out another, then to leave that question unsettled until the counting of the votes is to invite more than that, it is to pro duce civil war. This case has not happened within the three-quarters of a century of our national existence. It may never happen. But we incur the risk of it once in four years, and prudence requires us properly to appreciate the danger and to guard against it if possible. I have purposely limited my view of the dan ger to the case of an honest difference of opinion. I have no fear that the dominant party in the Government will ever, without at least a show of reason, throw out the electoral votes of sufficient States to elect a favorite can didate. Such a proceeding would be treated as a nullity by the people, and so few would be found to uphold it that even a resort to force would be unnecessary. Civil wars are always upon debatable questions. Whatever selfish motives the leaders may have, the masses of the people upon each side honestly believe their cause just. Our recent civil war was not 354 TWENTY-FIRST PRESIDENTIAL TERM. an exception to this. If the States are sov ereign and the Union a mere agency for the performance of certain limited functions, the South had a right to secede at any time ; a,nd this doctrine was the teaching of the dominant party of the country for more than half a cen tury. I shall, therefore, limit myself to such questions as may fairly divide the community in opinion, and shall inquire what they are and what means the Constitution has placed in our hands for providing a mode of settling them before the time of counting the vot^p, and in a manner to be acquiesced in by the people. The questions naturally divide themselves into two classes : first, those which touch the right of the alleged State to cast an electoral vote at all ; and, second, those which affect the legality of the proceeding which furnishes the certificate of the alleged electoral votes. The provisions of the Constitution are : "Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Repre sentatives to which the State may be entitled in Congress. The electors shall meet in their respec tive States and vote by ballot for President and Vice-President, one of whom at least shall not be an inhabitant of the same State with themselves. They shall name in their ballots the person voted for as President and in distinct ballots the person voted for as Vice-President; and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each ; which lists they shall sign and certify and transmit sealed to the seat of Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." It is apparent that there is much left here for legislation. In the first place, what is or is not a State is not determined by the Constitu tion either in the clause quoted or anywhere else. Every State is entitled to its electors, and the question what is a State meets us at the very threshold of our inquiries, with the question who shall decide it. The case of Luther vs. Borden (7 Howard, 1) furnishes an answer to both these questions. It is there held that the former question is a political and not a judicial one. It is a question which pertains to the enacting of laws, not to the expounding of them ; that is to say, the status of a State is fixed by legislation. That, there fore, is a State which Congress admits and recognizes as such by law, and it would seem to follow logically that a State once recognized by law must retain its status until the law is changed. In the recent case we refused to decide whether Georgia is or is not a State, but by concurrent resolution declared in effect that inasmuch as her vote could not change the result it should neither be counted nor reject ed, but simply stated. In doing so we followed the precedent set in 1821, and repeated in 1833. It is much to be regretted that such precedent was ever established. It would have been bet ter to meet the question in the case of Mis souri in 1821 boldly, and give it a legislative decision. Such questions are liable to be pre sented at every presidential election, and we do not know how soon the settlement of one of them may turn the scale in favor of a par ticular candidate. When such a question will not affect the result it is much more likely to be determined justly, without party prejudice or partiality than when it is vital. Every such settlement affords a precedent for future sim ilar cases, and many such will familiarize the people with the principles upon which they are determined ; and when a case shall arise in which the decision shall affect the result, it will be much more readily acquiesced in by the losing party if it follows a line of former precedents. Secondly, granting the existence of the State, the electors are to be appointed in the manner directed by its Legislature. They may be named directly by the Legislature, or they may be elected by the people under State laws. The latter plan is now almost universal. Here an important question arises. By whom and in what manner are contested elections of electors to be determined ? By Congress ? I have failed to see any warrant in the Consti tution for such a conclusion. The electors are distinct bodies, charged with particular func tions, totally independent of Congress. Their business is not legislation. Their powers are not derived from law, but Constitution. Laws prescribe the time and manner of performing them, but nothing more. Congress may de cide, as I have said, whether or not the State exists, because that is legislation. But grant ing the State, it would seem to be just as ra tional to say that the electors may decide who are members of Congress as that Congress may decide who are electors. By analogy, and in the absence of legisla tion, it would seem that the electors in each State shall decide who are members of their own body. But this mode of settlement, though good in theory, is utterly worthless in practice. The electors in each State are elected by a gen eral ticket. Each party has its set of candi dates, and all of either party will be elected or all defeated. In cases of contest, therefore, there will be two bodies meeting in the State and performing their functions separately, each claiming to be the true electors. And when the time of counting shall arrive the President of the Senate will open two papers from the State, and two sets of votes for differ ent candidates will present themselves, each claiming to be the one to be counted. Here is the true casw omusus, but it seems to me to be rather in law than in Constitution. It is only the votes of the electors that are to be counted ; the Constitution could go no / further than this. It might as well prescribe the manner of ascertaining who are elected members of Congress as to prescribe the man- ULYSSES S. GRANT, PRESIDENT. 355 ner of ascertaining who are elected electors. Both these are properly left for legislation. But who shall legislate, the United States or the States ? The electors are to be appointed in the manner directed by the Legislatures of the States. If Congress had been clothed with the power of directing in what manner the electors should be appointed, nobody would hesitate to affirm that Congress should pre scribe the means of ascertaining whether that duty had been properly performed, and hence of settling contested elections of electors. As the case stands the argument is just as strong that this is left to the State Legislatures. I am, therefore, clearly of the opinion that the Constitution has left the whole matter of de vising means to determine who are and who are not electors to the States themselves. If I am right in this it is to be regretted that no State, as far as I know, has as yet performed this duty, since no man can tell how soon a contest in a single State may be sufficient to change the apparent result of an election and possibly plunge the country into civil war. The Constitution contemplates but a single certificate from each State. If two should present themselves, each perfect upon its face and showing different results, in the absence of State legislation devising means to settle the question, I am not prepared to say that Con gress might not determine which is the true one. Neither will I say that that power is not granted to the President of the Senate alone. I see as much warrant in the Constitution for one opinion as the other. This ambiguity only exhibits more strongly the necessity of proper State legislation that the contingency may be avoided. Thirdly, the certificates are to be opened by the President of the Senate, in the presence of the Senate and House of Representatives, " and the votes shall then be counted." By whom and in what manner the Constitution does not provide. This, therefore, is left to legislation, and as the States are intrusted with no duties and clothed with no powers in the premises after the casting of the electoral votes and forwarding the certificates, there is no difficulty in determining that this legisla tion must emanate from Congress. Congress might empower the judges of the Supreme Court to do this, or it might appoint members of its own body, or any other persons. But it should be done by previously enacted law. The act of 1792, the only one upon the sub ject, does not prescribe by whom or in what manner the votes shall be counted, and the twenty-second joint rule attempts to supply the defect. This, I think, is irregular. The two Houses may adopt rules for their own government, but the counting of the electoral votes in no way pertains to the government of the two Houses. The same objection lies to the concurrent resolution passed a few days ago with respect to the State of Georgia, that it is not law, but merely in effect a joint vote adopted for the particular occasion. This, however, is not material in the present in stance. The votes being properly counted as far as they affect the result, nobody is in a position to take advantage of the defect. A single question only remains: What is the position, what are the powers and duties of the two Houses of Congress assembled at the opening of the certificates and the counting of the votes ? Much confusion has been caused in the debate upon the resolutions of the gen tleman from Massachusetts, by what I conceive to be a misnomer ; most of the gentlemen who addressed the House spoke of the persons assembled at the counting of the electoral votes as a joint convention. This is a great mistake. The votes are not to be counted in the presence of the Senators and Representa tives, otherwise there might be some warrant for calling the assemblage a joint convention; but "in the presence of the Senate and the House of Representatives." This necessarily requires thorough, complete, and separate or ganization of each body, each having its own Presiding Officer, its own Sergeant-at-Arms, its own Secretary or Clerk. I am aware that the opposite opinion may derive some support from the twenty-second joint rule, which says, after providing for the meeting of the two Houses, " the President of the Senate shall be their Presiding Officer." But a joint rule cannot change the Constitu tion; it cannot make one body of what the Constitution makes two distinct ones. As far as the rule attempts to do this it is simply void. I see no difficulty, however, in the two Houses agreeing upon a single person to preserve order within the Hall. In this sense, and in this only, they may be said to have a single Presid ing Officer. But his powers in this respect are limited to the performance of that duty. He can put no question to the two Houses. As President of the Senate he can govern his own body according to its rules. As the ministerial officer appointed by the Constitution to open the certificates he can perform that duty and such others pertaining thereto as may be put upon him by previously enacted laws. How absurd, then, was it for the gentleman from Massachusetts [Mr. BUTLER] to appeal from what he called the decision of the Chair 1 How could such an appeal be decided? Not surely by the joint body, for there was no joint body there. Not by the two Houses separate ly, for the President of the Senate could put no question to the House. Besides, the House could only entertain an appeal from the deci sion of its own Presiding Officer, the Speaker. I repeat, how absurd was the idea of such an appeal, and what downright folly was it for the same gentleman to propose in the House after ward to censure the President of the Senate for not entertaining the appeal ! The House very properly laid the whole subject upon the table by a large vote, though the proposition had been greatly modified and purged of much 356 TWENTY-FIRST PRESIDENTIAL TERM. that was objectionable. "We were not willing that even necessary legislation should grow out of so anomalous a proceeding. What, then, is the position of the Senate and House assembled at the counting of the votes? I answer, simply that of witnesses. They are to see that the business is done according to the Constitution and laws. If occasion requires, they are to separate and take such action as may be necessary. But it is said, are the two Houses then assembled powerless to prevent a wrong ? Are we at the mercy of a single in dividual ? Suppose the President of the Sen ate should refuse to open the certificates, or should withhold enough votes from the tellers to change the result of the election ? This is hardly a case for conjecture. It did not hap pen when Mr. Breckinridge was at the same time President of the Senate and conspirator in a projected rebellion. But suppose anybody else should violate the law, let the law punish him and redress the wrong. If the malefactor is Yice-President, impeach and remove him at once ; if simply President of the Senate, let the Senate depose him and appoint another. In conclusion I would submit the following : 1. Let the provisions of the joint rule for ap pointing persons to count the electoral votes be enacted into a law. 2. Let no question as to whether an alleged State is a State, and therefore entitled to cast electoral votes, re main unsettled until the day of counting, even though the settlement may not affect the re sult. Let the status of every State be unmis takably fixed by previous legislation founded upon principles that may give rise to a series of precedents acquiesced in and approved by the community; and 3. Let the Legislatures of the several States provide the means for set tling cases of contested elections of electors. This could be much more readily done if the electors were elected in separate districts. It is objected, howeyer, that the ruling party in a State may so district the State as to give it an undue advantage. This evil, however, is of limited scope, and experience shows that the attempt to get this advantage very fre quently produces exactly the opposite result. Besides, the antagonistic party in other States may do the same thing. Hence it may be fairly supposed that by the balancing of oppo site wrongs a general resultant of right may be obtained. Mr. BROMWELL said : Mr. CHAIKMAN : The matter upon which I rise to speak to-night is that which recently created so much disturbance in this Hall. I wish, before speaking of the more important questions involved, to call attention to the par ticular matter which occasioned the disorder, a matter which has not been spoken of to any extent before the House. The disturbance which has been spoken of in such animated terms by the press and by Representatives on the floor, and stigmatized by two gentlemen from Ohio as the violence of a mob, or an ex hibition of the spirit of hell, arose upon an ap peal taken by the gentleman from Massachu setts [Mr. BUTLEK] from the decision of the Chair. Concerning that appeal I will say that when the convention met we saw a President in the Chair and three tellers. Plow came they there ? Those who speak so much about the Consti tution should take notice that the Constitution puts no man in the chair and makes no man a teller. By legislation of Congress, and that alone, was there any presiding officer over that convention. Every one has recognized the right of the Congress, from the beginning of the Government up to the present time, to fix the time at which the President of the Senate shall open the votes according to the Consti tution, and the time and manner of counting the same. The Constitution has not devolved that duty upon any particular person, but the Congress, seeing the necessity that some pro vision should be made, has heretofore passed rules on that subject. During the discussion that has sprung up on this occasion three different views of the nature of the convention have been put forth. Some have insisted that it was a joint conven tion ; others simply that both Houses of Con gress were present ; others that members of the House and of the Senate were here as mere spectators, while the Yice-President or Presi dent of the Senate was performing his func tions. Now, sir, I wish to say concering the matter of that appeal and concerning the whole of that question that it is manifest to my mind that if any body of men be assembled together in the name of law, and charged with any functions whatever, they have certain inherent and necessary powers in order that they may first ascertain and know that they are the parties intended ; and, secondly, there being an object for which they are convened, whether or not they are doing anything tending to accomplish the same, and whether or not they are doing it in the mode ordained. If they have not these powers they are the merest spectators, entirely supernumerary, and are in no sense a legisla tive, judicial, or executive body, an assembly wholly destitute of legal functions, and only useful as witnesses to the impotency of the law on an occasion so vital to the interests and existence of the Republic. By the voice of the Constitution alone, ac cording to the interpretation of some gentle men here, the Vice-President might have noti fied both Houses of Congress of the time and place when and where it would suit him that they should come and be present and see him count the votes. Under the interpretation of the gentleman from Pennsylvania [Mr. BEOOM- ALL], the President of the Senate might assemble both Houses to witness his perform ance of counting the votes ; and then if he should choose to lay aside the vote of Pennsyl vania, for instance, and say that in his opinion ULYSSES S. GRANT, PRESIDENT. 357 it was informal, that would be an end of it. Manifestly the Constitution contemplated no such result, but intended that there should be a count by a party responsible at once to the representatives of the people, who should be present, competent to oversee and direct in the name and by the authority of the people. Who, then, are to count that vote under the Constitution aside from your laws ? The two Houses by themselves or officers appointed to count for them. For what else are they to be present ? Why be assembled ? For, if the President of the Senate choose to do his work correctly and fairly, he can as well notify the public when he has finished it to his own satis faction without any witnesses whomsoever, and if he should choose to play the despot and usurper he could do it clothed with the form of law as well in the presence of the power less Houses of this Congress as by himself, and the whole provision of the Constitution would be utterly a nugatory. But manifestly when the Constitution says that a count shall be made, having first assem bled the Houses of Congress, it is intended that the Houses of Congress shall count, and they have shown this to be clearly the understanding of Congress by ordering tellers to do in their presence that which would be too inconvenient to be done by the whole body, and further by making the President of the Senate President of the assembly. The Constitution having made him the custodian of the budget of certificates, he is to bring forward those papers and do what? Open them in the presence of both Houses. And then when he has done that he has done all that the Constitution requires him to do, and from that moment the whole pro ceeding falls into the hands of the representa tives of the people and of the States. His func tion under the Constitution is at an end when he breaks the seal ; and the Congress has recog nized this to be the law by the rule I have men tioned providing tellers. Who counts when a body of men are commanded to be present at a counting and nothing is said as to who shall count ? Manifestly it means the body, and Con gress has so recognized it by providing laws, and particularly by this twenty-second rule, which prescribes haw and in what manner the count shall go forward. By fixing a definite time for the transaction of this business Congress has assumed jurisdiction to legislate on that sub ject, for Congress thereby takes from the Pres ident of the Senate the determination of the time when he would open the certificates, which power was by the Constitution left in the hands of the President of the Senate as much as the power to count. When Congress passed a law or a joint rule which provided that in a certain event the vote of a State should not be counted, they were then legislating on the subject and assuming control of it, and the Senate and the House on the occasion of this count this very week recognized this doctrine, for they trans acted business in reference to Louisiana under that rule, and finally they transacted it in refer ence to Georgia itself under that rule. Take notice, sir, that the Senate left the Hall under that rule. In fact, the Senate went out under one stat ute and came back under another. They left the Hall because the President said that ob jection being made to counting the vote of Georgia under the rule the Senate would retire to deliberate upon it. It seems that after they went out they deliberated on the question whether the objection was in order or not; they deliberated on this because of the former joint resolution, till they decided that said resolu tion did not bind them to deliberate at all ; and having decided said resolution not in force concerning Georgia, they came back into this House and announced to the House that the cause for which they went out did not exist, for the reason that a subsequent resolution con trolled the case of Georgia; but still acting under the rule they held not to control the case, they then and there by their President announced to this House and to the Senate that the Senate had decided that the objection of the gentleman from Massachusetts was out of order, and therefore he, the President of the Senate, for the reason that the Senate had so decided, held it out of order. Upon that state ment by him that the Senate alone determined this question the gentleman from Massachu setts appealed from the Chair. To whom did he appeal ? Of course he must have appealed to the body present, for clearly there could be no appeal from the chairman of a joint con vention or any other assembly to either of the Houses. And yet the Constitution never could have meant that the Yice-President should be an autocrat on that occasion. The Constitu tion never intended that John C. Breckinridge, then about to become a major-general in the rebel army, might have sat in that seat and declared Abraham Lincoln not elected, l>y withholding the votes of New York and Penn sylvania and other States on motion of his own, and therefore absolutely overthrowing the Government without a struggle with arms. The men who framed the Constitution never contemplated that ; and whatever casus omis- sus there may be in the provisions of that in strument touching this matter, it is manifest that they intended that the body assembled to count should know when it met whether it was the body intended, and whether it was proceed ing in order to execute the order of the Consti tution. I know it is said, and perhaps it may be true, that the founders of the Constitution founded a double : headed, a hydra-headed assembly, which, being completely organized as both Senate and House of Representatives, sits at the same time and in the same place for the transaction of business. Manifestly such a body as that cannot do business in any manner. However plausible it may sound that two com plete and separate organizations can sit down in 358 TWENTY-FIRST PRESIDENTIAL TERM. the same Hall, everybody knows that as a mat ter of fact two organizations cannot transact business in the same Hall at the same time in any manner that would not reflect utter con tempt and disgrace upon the entire proceeding. Would one body be passing upon the objection raised by the gentleman from Massachusetts [Mr. BUTLER] while the other body was con sidering and determining a question of order arising out of that objection? Would one Presiding Officer be recognizing the Senators composing the body to which he belongs, and would the other Presiding Officer at the same time be recognizing the Representatives com posing the other body to which he belongs ? Why, sir, a confusion of Babel would be inau gurated by the overweening power of the Con stitution. There can be no doubt that the Constitution intended that the two Houses of Congress sep arately should regulate, by concurrent action, the law touching the mode and manner of counting the electoral votes ; and that when assembled together they are so much of a joint convention that they can take notice whether they are there or not ; that they can ascertain whether each House is there by roll-call or otherwise ; that if the man presiding under the statute sees fit to grasp the whole power and take proprietorship of every rule of order, they can, by a right inherent in every assembly that ever sat, judge whether its own mouth piece is speaking truly its own voice. How came the President of the Senate to be Presi dent of this joint convention ? Does the Con stitution say that he shall preside ? Nay, the Constitution does not say that any man shall preside. Yet the manifest propriety of the officer who takes rank in other respects, taking the chair and presiding in the joint convention, has caused the law to prescribe that course. And the Senators are by courtesy provided with seats by themselves, when otherwise the mem bers of the two bodies might be mingled (to gether promiscuously. Did the Constitution contemplate that the members of the Senate should leave the Hall of the joint convention and formally proceed to their own place of business every time any member of the joint convention should choose to raise a question of order ? Plainly, if that were the case, they might never be able to count a single electoral vote, for as soon as they might return from deciding one question any member could raise another, and out would go the Senate, or perhaps the House be com pelled to go, to decide it. Did the framers of the Constitution ever con template the organization of a legal assembly so absurd and preposterous as this joint con vention would ibe should that be the course they must pursire ? Sir, such was not their in tention. Their intention must have been that, under laws which Congress might frame in their separate bodies for the regulation of this matter, the inherent rights of a body assembled together for the transaction of public business should pertain to them when assembled for the purpose of counting the electoral votes, at least to an extent sufficient to enable those who are the counters on behalf of the people to know that they are counting. There can be no doubt that the Vice-Presi- dent or Presiding Officer of the Senate presided over both bodies when assembled in joint con vention by the consent and acknowledgment of every member of both Houses. They all rec ognize his duty to act as the Presiding Officer of the joint convention. The Speaker of the House himself commanded the members of the House in so many words to obey the orders of the President of the convention under penalty of arrest by the Sergeant-at-Arms of the House. Then, if the President of the Senate has such authority while sitting in the chair presiding over the joint convention that members of the House on this floor are to be arrested for not obeying his orders, it must be derived from some law. Not being provided for in the Con stitution, it must come from some law of Con gress. And, clearly, if the laws of Congress can place the President of the Senate over the joint convention with powers of that descrip tion, the laws of Congress can go further and clothe the joint convention itself with all the functions that are necessary, and with out which all assemblies are but mockeries. That is, if it would be at all necessary to go further than to give a presidency with such powers to a convention in order to show that the body so presided over was a convention having all the inherent powers of such bodies in general. And now I wish to say a few words in regard to the concurrent resolution which was passed on Monday last in relation to the electoral vote of the State of Georgia, and which controlled, in effect, the counting of her vote. Generally a member feels that an apology is due for his conduct if he is not present when important legislation takes place in the body to which he belongs. But upon this occasion I do think that I may esteem it rather creditable than otherwise that I was not present when such a resolution as that passed this body. It is a kind of draw-bridge resolution that if Georgia be going up-stream she may go through, but if she be going down-stream she shall not go through. It is a fast-and-loose alternative, unworthy of the Representatives of a free peo ple, or of any people that can maintain their freedom. The resolution said in fact to the world that we were afraid to throw out the vote of Georgia, and afraid to count it, but that we would append it in this most prepos terous manner to the tail-end of the count. This was not simply an act of oppression in case the resolution were wrong; but an act which, whether right or wrong, is, let Georgia be what it may, an act of insult and contumely to the people of that Commonwealth, and this whether she be entitled to vote or not. To ULYSSES S. GRANT, PRESIDENT. 359 throw out the vote of a State contrary to law is an act of oppression ; but to tie a State on in that manner to a count with an alternative that if she does not count she shall count, but if she counts she shall not count, is making sport not only of the people of such a State, but of the highest functions of Government. Hence I aui very happy to state I was not present when this resolution was adopted by this House. In the confusion that prevailed in the joint convention for I think it is generally admitted that whatever thing was done that particular thing was not in order provided you could get at anything else that was in order the Senate under the joint rule adopted in 1865 retired from the House to deliberate, and upon delib erating found that the joint resolution did not affect the case, and came back, and under that very resolution decided, and the President of the" convention announced the decision, that the gentleman from Massachusetts was out of order. The decision rendered upon the return of the Senate was a decision under the twenty- second joint rule, and not under the concur rent resolution recently passed in reference to Georgia, and which the Senate said governed the case of Georgia. So that the Senate retired under one rule and decided under another, and then came back, and the decision of the Chair was announced under the former. It is not to be wondered at that the gen tleman from Massachusetts [Mr. BUTLER], in such a state of affairs, thought it would not be unreasonable to ask an appeal, for if all these things were in order I do not see why any kind of an appeal or other motion would not be in order also. Yet because, when the mem bers of this House were told that the Senate had decided this matter for the joint conven tion, including the House, and for the country, there was excitement at the announcement, the House has been designated as a "mob," and we have been told about the " fell spirit" in which this thing was conducted. I, among others, had the honor to call upon the Presi dent on that occasion to state by what author ity the appeal was not entertained, and thus, I presume, I became one of the "mob" and one of the " fell spirits " that at that time were hor rifying the imagination of the gentlemen from Ohio [Mr. BINGHAM and Mr. GARFIELD]. All that was meant by the demonstration made at that time, as far as I understand, was that gen tlemen of this House did not want this new doctrine that had come to light in so much confusion thrust down their throats by the gavel of the President of the Senate without at least some explanation on the subject. They were willing to submit to the common judg ment, and under the very arguments that have been used against them all around the board, if that very question puzzled the President of the joint convention so that the two Houses had to separate and decide it separately accord ing to the theory of those who are in favor of separate action, and that, too, according to this very same rule under which the Senate went out to deliberate, there was then no need that the appeal made by the gentleman from Massa chusetts should have caused an uproar in the House, or a conflict between the House and the Senate, or the arrest of members on this floor. According to the theory of gentlemen who take opposite ground from mine, the two Houses still retain the power to settle that question by their separate action. Looking at the state of the law and the rules, it is not to be wondered at that on the day the Houses recently met to count and declare the vote for President there should have been con siderable excitement and disorder. The only matter of wonder is that there was so little. But if there is under the present rules reason to apprehend disturbance in case of a counting, when the vote of a State put in question can not in any way change the result, what must we expect in a case in which the vote of a sin gle State would determine the result ? And this very case might have happened on this occasion. A few thousand votes in Pennsyl vania and a few other States changed in favor of Seymour and Blair would have made the vote of Georgia decisive. In such a case as that what would have been the scene here ; and what would have been the action of our Democratic friends here who now sustain the acts of the President of the Senate ? Could the supporters of either candidate for the Pres idency have been controlled when they would have seen the result of the great canvass which cost so much time and money and roused every energy and passion of both parties finally dis posed of in a summary manner, and in a way which the unsuccessful party would be sure to look upon as clear usurpation ? It is idle to argue the danger of such an oc casion. Everybody can see that a terrible con vulsion must be the result, not because the beaten party would complain of oppression, but because they would see in the mode by which their deifeat had been accomplished nothing but absolute usurpation; and although it is possible to hold the American people in some order under great oppression within the forms of law, yet the least attempt at usurpa tion sets the whole community in a flame. In all cases in which powers are doubtful, as in this, any exercise of them against the interests of any portion of the community is held by them as clear usurpation. Clearly, then, no presidential election can be peacefully settled under such provisions of law as we now have in case such a contest as I have supposed should arise concerning the vote of a State that would change the result. Nothing can be gained in this matter^y a quarrel be tween the two Houses. Should they censure each other in the most ample manner it could do nothing toward avoiding future danger. It could do nothing toward providing proper se curity fur coining elections. 360 TWENTY-FIRST PRESIDENTIAL TERM. In my opinion the constitutional provision is too uncertain ; it is wholly defective, and the laws we have in aid of it make the matter worse, as was pointed out by the gentlemen from Massachusetts [Mr. BOUTWELL and Mr. BUTLER] ; for where the Constitution left it un certain what might be done, the joint rule comes in and provides that something shall be done wrong. This is manifestly the case in that provision which allows either House alone to forbid the counting of the vote of a State, instead of providing that it should require both Houses to prevent it. In view of this state of things I have oifered in this House an amendment to the Constitu tion providing that Congress may make laws covering the whole subject, and furnish proper officers to count, and also a proper tribunal to determine in all questions of dispute touching the legality of any vote. And I think that it is proper here, as was said by the gentleman from Massachusetts [Mr. BUTLEE] to call the at tention of Congress and the country to this great defect in the framework of our Govern ment. In fact, the Government is compelled every four years to pass through dangers, such as can only be compared to those of a ship passing, through a narrow channel in which are sunken rocks, and no man knows, until she reaches them, how many there are or where they lie or how near to the surface of the wa ters. No man can tell what States may send up informal certificates, nor when, nor in what way they may be defective, nor what might be the effect of their rejection on the result of an election. For this reason many members voted against laying on the table the resolution of the gen tleman from Massachusetts [Mr. BUTLEE] and the substitute of the gentleman from New York [Mr. KELSEY], as the substitute pro vided for future legislation on this very subject. Even if no collision should ever arise under the existing law, yet the law itself is clearly wrong, and holds out temptation to any domi nant party in either House to defeat willfully, for partisan purposes, the clear will of the peo ple. In case at any time a decision under this rule should change the result of an election it could not fail to happen that the law would be challenged at once as wholly unconstitutional ; and the best answer that could be made in its defense would be that it probably is and proba bly is not in either case it is wholly wrong and dangerous. I wish, sir, to defend the action of members of this House against the aspersions thrown upon them, from several quarters, and espe cially by those members of this House who saw proper to be very active in getting the whole subject out of the way. "What could gentlemen expect to happen in such a case? The cause of disturbance came suddenly upon the House. In order that the whole House should submit quietly and with due subordina^ tion to whatever the Senate or its President or those who assume leadership in the House might think proper it would have been neces sary to train the members of the House and instruct them until they could understand ju?t what was to be required of them. They should have been informed precisely what would suit the proprietors of the public business, and thus put upon their good behavior, and after that if they proved refractory there would be great propriety in all those who might be offended administering a severe castigation. But I insist that no pains were taken to put the House in a proper frame of mind, and hence the natural impulses of human nature under such circumstances impelled several members to act in a manner considered very " fell " and hellish, to wit, in a dissatisfied and insubordinate manner. In saying these things I do not wish to censure the Senate. I would not vote for any resolu tion to that effect. First, because the House cannot censure the Senate. To censure is to punish, and presupposes some visitorial, inquisi torial, or supervisory power in the party cen suring, and the House has not such power in the least. Secondly, the Senate did no wrong. What they saw proper to do in their own Hall is no business of ours, and in fact they only did just what we did ; that is, to vote whether the vote of Georgia should be counted ; and in this Hall they did nothing but take their seats in a quiet and decorous manner and remain in good order till they departed in good order. The truth is the House can do nothing but grumble ; first, at the President of the Senate for not allowing an appeal, and secondly at the Speaker for compelling obedience to his orders. But such a complaint would in fact only be a complaint against the uncertain and improper condition of the law, and the House can do far better by busying itself with plans to put the law in better condition. I have nothing further to add but to express the hope that the House will not let this occa sion pass without setting on foot some meas ures for the safety of the country in the future. ULYSSES S. GRANT, PRESIDENT. TWENTY-SECOND PRESIDENTIAL TERM. 1873-1877. ULYSSES S. GRANT, President ; HENBY WILSON, Vice- President. 3G1 IN SENATE. Tuesday, January 7, 1873. ( u Congressional Globe," pp. 364-368.) The VICE-PRESIDENT. The first business during the remainder of the morning hour, if there be no further morning business, will be the consideration of the Calendar, under what is known as the Anthony rule. Mr. SHERMAN. I will move to take up the resolution I introduced yesterday. The VICE-PRESIDENT. That will be in order. The Calendar will come up under the rule unless some other business is taken up by a vote of the Senate. Mr. SHERMAN. The Senator from Louis iana [Mr. WEST] I understand has read the resolution and has withdrawn his objection to it. Mr. ANTHONY. I do not wish to inter pose in favor of the Calendar against any busi ness necessary to be transacted. Mr. SHERMAN. This resolution will take but a moment. Mr. ANTHONY. Let the Calendar then be laid aside informally. Mr. SHERMAN. I have no objection to that. Mr. ANTHONY. I think we should take two more days for the consideration of the Calendar. I hope at some time during this isession we shall go through the unobjected (cases on the Calendar. We shall thus reach the whole of them, and generally afford a great deal of relief to the people entitled to it ; and even if the bills reported favorably are reject ed, that will be much better than to have them resting on the Calendar and getting out of date and memory, except by those poor fellows who are claiming the relief. The VICE-PRESIDENT. The Calendar is before the Senate until one o clock, when the Indian appropriation bill comes up, pending ..which the Senator from Ohio moves to take up the resolution offered by him yesterday, which was objected to by the Senator from Louisiana, but which objection is now with drawn. The Secretary will report the resolu tion. The Chief Clerk read the resolution, as follows : Resolved, That the Committee on Privileges and Elections is directed to inquire and report to the Senate whether the recent election of electors for President and Vice-President has been conducted in ;he States of Louisiana and Arkansas in accordance irith the Constitution and laws of the United States, and what contests, if any, have arisen as to who were elected as electors in either of said States, and what measures are necessary to provide for the de-> termination of such contests, and to guard against and determine like contests in the future election ot electors for President and Vice-President. That for the purpose of speedily executing this resolution the said committee shall have power to send for per sons and papers, to take testimony, and at their discretion to send a sub-committee of their own number to either of said States with authority to take testimony ; and, if the exigency of this service demands, the said committee may appoint and em ploy suitable disinterested and unprejudiced persons not resident in either of such States, with authority to take such testimony as may be material in deter mining any pending contest growing out of the elec tion of electors in either of said States. Mr. THURMAN. Mr. President, it is my purpose to vote for this resolution, but before doing so I wish to make some observations, very brief indeed, in regard to it, lest I might seem to be committed to implications that I do not intend to approve. This resolution provides : That the Committee on Privileges and Elections is directed to inquire and report to the Senate whether the recent election of electors for President and Vice-President has been conducted in the States of Louisiana and Arkansas in accordance with the Constitution and laws of the United States, and what contests, if any, have arisen as to who were elected as electors in either of said States, and. what measures are necessary to provide for the determi nation of such contests, and to guard against and determine like contests in the future election of electors for President and Vice-President. It then provides the machinery by which the committee may make this investigation. I say I shall vote for this resolution, because there is an urgent necessity for action, and for speedy action, and I do not know that any mode has been suggested that is preferable to that provided for by this resolution ; that is, any mode that is likely to receive the sanction of Congress in time to be of any service. But this resolution seems to imply that there is a broader jurisdiction in Congress over the subject of the election of President than I have been accustomed to suppose is vested in Congress. It requires the committee to in quire whether these electors have been elected pursuant to the Constitution and laws of the United States. I know of no power in Con gress to pass any law on this subject except a law fixing the time when the electors shall be chosen. The only power vested expressly by the Constitution in Congress is the power to fix that time. The provision is not as it is in regard to the election of Senators and Repre sentatives, that the Congress may by law pre scribe the time and manner of election, but it 362 TWENTY-SECOND PRESIDENTIAL TERM. is simply that Congress may fix the time in re spect to the election of electors themselves. The constitutional provision is : " Each State shall appoint, in such manner as the Legislature thereof may direct, a numher of electors equal to the whole numher of Senators and Repre sentatives to which the State may be entitled in the Congress." Each State is to do that, and to do it in such manner as the Legislature thereof may direct, and the power of Congress in the premises seems to be limited to this. The third para graph of the first section of the second article of the Constitution says : " The Congress may determine the time of choos ing the electors and the day on which they shall give their votes, which day shall he the same throughout the United States. " Now, if there is to be a contest of the right of persons to hold the office of elector, it seems to have been the contemplation of the framers of the Constitution that that was a matter to be provided for by the States themselves ; that each State must determine for itself the elec tion of electors, and determine in such mode as it shall provide any question that may arise between different persons claiming to be elected to that office. No jurisdiction over the subject seems to have been given to Congress; at least none sueh was in the mind, I should think, of the framers of the Constitution, look ing at the provisions of that instrument. And when we come to the provision in regard to the question of votes we find it is in this lan guage : " The electors shall meet in their respective States and vote by ballot for two persons " I am reading now from what was the origi nal Constitution * of whom one 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 numher of votes for each, which list they " That is, the electors " shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate." The Senate will observe it is to be a sealed return. That means simply that the return is to be sealed up in an envelope, and does not refer to any official seal verifying or authen ticating the return : " The President of the Senate shall, in the pres ence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." That is superseded to a certain extent by the twelfth article of the Constitution, which is as follows : "The electors shall meet in their respective States and vote by ballot for President and Vice- President, one of whom, at least, shall not be an in habitant of the same State with themselves ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President and all persons voted for as Vice-President, and of the num ber of votes for each, which lists they shall sign and certify and transmit sealed to the seat of the Govern ment of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and the House of Repre sentatives, open all the certificates and the votes shall be counted. The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed ; and if no person Tiave such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately by ballot the President." There is certainly some ambiguity about this provision in the Constitution : " The President of the Senate shall, in the pres ence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. 5 What function the Senate and House of Rep resentatives, in whose presence these certifi cates are to be opened and the votes counted, are to perform, is not distinctly stated. Indeed it is not distinctly stated by whom the votes shall be counted, whether by the President of the Senate or in some mode provided for by law, or by the action of the two Houses who are there as witnesses to the counting, or whether indeed they are anything more than witnesses, and the whole duty is not devolved upon the President of the Senate. It does not seem that the difficulty that has arisen was foreseen, that of two returns being made from the same State, as I understand to be the case in the States of Louisiana and Arkansas. I understand at least in the State of Arkansas, if not in Louisiana, there have been two bodies who have cast their votes. Mr. SHERMAN. In both. Mr. THURMAN. In both States, each claiming to be the electoral body, one cast ing its vote for one candidate, another for another candidate, and the returns or certifi cates of both have been sent here to the Presi dent of the Senate. If the Constitution had provided that these returns should be authen ticated under the great seal of the State, then it might be that Congress would have nothing to do but look at those returns which are thus authenticated; but the Constitution contains no such provision. These returns come here unattested by any seal whatsoever. They come here attested simply by a certificate signed by certain gentlemen who call them selves electors of President and Yice-President of the United States, and having no authen tication ; that is, there is none provided by the Constitution, and if any has been given to them otherwise, it is superfluous, and can have no validity, perhaps. They come here in this way, simple certificates, bearing the signature of certain persons claiming to be electors. Mr. MORTON. I call the Senator s atten tion to the act of Congress. Mr. THURMAN. I am aware of that. What act does the Senator refer to? ULYSSES S. GRANT, PRESIDENT. 363 Mr. MORTON. The act of March 1, 1792, referring to the third section of the act. Mr. THURMAN. What page ? Mr. MORTON. On page 308 of the Manual. Mr. THURMAN. "That the executive au thorities of each State shall cause three lists of the names of the electors of such State to be made and certified, to be delivered to the electors on or before the said first Wednesday in December, and the said electors shall an nex one of the said lists to each of the lists of their votes." That is all very true. I was not ignorant of that provision ; but here what are you to do with cases in which there are two persons each claiming to be Governor, and each of whom may comply with that provision of the act of Congress ? I mention this to show the extreme difficulty there is about the subject, and the necessity for speedy action upon it, and to show that our power in this matter is extremely restricted. I do not mean, however, to say that we have no power at all. I do not mean to say that such a case as this can come before us without requiring some decision at our hands. How far our power goes I am not now prepared to say ; it is a matter that requires the gravest consideration ; but I do not wish to be under stood as committing myself to any implication that we have power to go into the question of a contest of the seat of these electors. We rnay be compelled possibly from necessity, to determine which of these two sets of electors has the official evidence that entitles their cer tificates to be received, and votes given by them ! to be counted ; bat it is a subject full of diffi culty, and I do not wish to be committed to any view of it one way or the other, but I do wish that the evidence may be taken, and that i we may have it before us, and have it before 1 us in time. I purposely refrain from saying anything about the very exciting question involved in the elections of Louisiana and Arkansas. I refrain from it because I do not wish to pro voke a debate that will delay the passage of the resolution offered by my colleague. I have very firm convictions on that subject, and have very firm convictions that a very grave error lias been committed, a very grave wrong has been perpetrated; but I will not speak upon ithat subject now lest it should provoke a de- ::bate here that will consume time that ought ;not now to be consumed. Mr. FRELINGHUYSEN. There is no doubt that this is a subject of much impor tance. If the election of the President for the coming term depended on the votes of Louisi ana and Arkansas we should now hav* much excitement in the country. This is the oppor tune occasion for Congress to apply a remedy which will prevent future difficulty. There is hardly an official in the United States whose title to his office cannot be judicially ques tioned except that of an elector. Probably that can be in State courts, but that does not afford the secure relief we need. In all the States, under a quo warranto, you may try the right of every incumbent to his office, from Governor to coroner. The qualifications of a Senator or Representative are determined by the Senate or by the House, but there seems to be no way provided by Congress, and no way, I believe, that Congress, as the Consti tution stands, can provide to try the title of an elector to his office. The tribunal which ought to adjudge and determine this question is, in my opinion, the Supreme Court of the United States, because that tribunal is further removed from political influences than any other, and because its decision would give greater satisfaction to the people. But, sir, I do not think you can confer jurisdiction over this subject to the Supreme Court of the United States. The original jurisdiction of that court is by the Constitution restricted to three subjects, to wit, cases affecting embas- sadors, other public ministers, and consuls, and those in which a State is a party. The ap pellate jurisdiction of the court, as that court has construed its power, extends only to the cases that Congress has given it jurisdiction over. Whether this be the true construction of the Constitution as to the jurisdiction of that court, I much question. Congress should have been held to possess the power to invest the court by statute with a jurisdiction as exten sive as the judicial power reposed by the Con stitution in the General Government. Con gress would not have abused the power, and such seems the true construction of the Con stitution. But the Supreme Court has re stricted its jurisdiction by so many adjudica tions, that they cannot now be expected to enlarge it. The title of one claiming the office of elector cannot, then, be investigated before the Supreme Court. The Constitution does provide that Congress may create inferior tribunals, and under that power, if there were no other difficulty, we might create a jurisdiction to try these ques tions, but the difficulty is deeper than that. The difficulty is that an elector is an officer of the State. There was much discussion in the Convention that framed the Constitution as to how electors should be appointed, whether by the national Legislature, by the vote of the people, or by the State Legislature, and the result was as stated in article two of the Con stitution : "Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Repre sentatives to which the State may be entitled." The matter is left with the States, and I suppose every State has a statute regulating the manner in which the electors shall dis charge their duty. In New Jersey there is a statute which authorizes the electors on the 364 TWENTY-SECOND PRESIDENTIAL TERM. day of their meeting in electoral college, should any of their number not appear by three o clock in the afternoon, to fill the va cancy. Therefore I do not see that it is for the General Government, as the Constitution now stands, to determine as to the qualifica tion of electors. I take it that the entire con trol over the manner of appointing electors is one of the reserved rights of the States ; that they never surrendered the right of determin ing who should be these electors. The States possess the right of determining who shall be elected and who has been elected an elector, as entirely as the United States Government possesses the right to decide who shall repre sent the country in England or be an embassa- dor at Geneva. That is the view I have of the subject, and therefore I think that a simple amendment to the Constitution to the effect that disputes in reference to electors for Presi dent and Vice-President shall be determined by the Supreme Court of the United States, with a provision that Congress shall have power to carry the amendment into effect, would best meet the case. Such an amend ment would give the General Government jurisdiction over the qualifications of electors, and would make the Supreme Court the tri bunal to adjudicate. Congress would then have the right by proper legislation to provide for summary proceedings to determine all dis putes relative to the qualifications of electors, as they should have. Mr. SHERMAN. I wished in introducing this resolution to avoid any premature debate, nor will I allow myself to be drawn into any discussion of the constitutional questions ne cessarily raised by this resolution. It is suf ficient to know that it is impossible for any Senator to approach the consideration of the subject without fuller and more mature in formation than we have at present. The suggestion made by my colleague I would be very willing to meet, as he thought it a serious one, by inserting after the words " laws of the United States " the words " and with the laws of said States," so that this com mittee may examine whether the constitutional provisions have been complied with under the laws of the United States passed to secure the purity of elections, and also the laws of the States providing for the election of electors, because it is true that the laws of each State must prescribe the mode in which the State shall elect electors. If it will relieve my col league s mind from any embarrassment or doubt I should be willing to accept such an amendment, but it seems to me entirely pre mature to enter into the discussion of any constitutional question now. This is merely an inquiry. It is broad, general, and it is as ur gent as it is possible to make it. The VICE-PRESIDENT. Does the Sena tor make the modification ? Mr. SHERMAN. I only suggest it if my colleague desires it. Mr. THURMAN. It would be better. Mr. SHERMAN. Then I move to insert after the words " Constitution and laws of the United States " the words "and with the laws of said States." The VICE-PRESIDENT. The Senator so modifies the resolution. Mr. SHERMAN. I hope without further discussion we may have a vote on the question, and that the committee may enter at once on the investigation. Mr. STEWART. I do not wish to occupy time, but I desire to make a suggestion to my friend from New Jersey as to the duty that is imposed upon the President of the Senate that he shall " in the presence of the Senate and the House of Representatives open all the votes, and the votes shall then be counted in the presence of the two Houses." The tribunal which counts them, it seems, should have an implied power to determine which are the votes. They must do that in the first instance. There would be a great deal of difficulty in fixing the machinery of presidential elections whereby you could have the case ultimately tried before the time when the President will have to be inaugurated. You will find it exceed ingly difficult to have anything more than a prima facie case made out, such as the per sons counting the votes must make. They must decide it at that time under almost any arrangement you can make by amending the Constitution or in any other mode. It will devolve on some administrative tribunal to decide it in the first instance. That is so in a State in the case of an election for Governor, and the person who gets the certificate is first inaugurated. It seems to me that legislation whereby there could be a preliminary investigation for the benefit of those who count the votes and upon which they could act in the first instance might be of advantage for their information; but I think the counting of the vote must be done without a prior judicial investigation. It is so in all the States. It is impossible to have a judicial investigation until the vote is counted and the officer is declared elected. Under the provision of the Constitution as it now stands it seems to me Congress might enact some law whereby all the information might be accumu lated in a contested case to enable those who count the votes to declare a direct result. They must declare some result, and perhaps legisla tion might be had that would do away with the necessity for an amendment to the Con stitution. I can hardly conceive of an amend ment of the Constitution which will relieve those who count the vote from the responsi bility of declaring the result on the best in- formatfcm they can then get. It is hardly practical to provide for a judicial investigation prior to the counting of the votes and the declaration of the result. Mr. TRUMBULL. Mr. President, I am gratified that a resolution has been introduced ULYSSES S. GRANT, PRESIDENT. 365 on this subject, because I think it one of the gravest importance. I quite agree in that re spect with what was said by the Senator from New Jersey. I do not, however, as at present advised, agree that this is an insurmountable difficulty under the Constitution as it exists. It seems to me that the criticism of the Sen ator from Ohio [Mr. THUEMAN] upon the lan guage of this resolution and the implication that it might carry is quite correct ; that these electors are not appointed and were not in tended to be appointed by the General Gov ernment ; that it was left entirely to the States to appoint electors in such manner as they thought proper. The language of the Con stitution is not that the electors are -to be elected by the people, but it reads : " Each State shall appoint, in such manner as the Legislature thereof may direct, a number of elec tors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress." They need not be chosen by the people. They have in the history of the Government sometimes been appointed by the State Legis lature ; at other times they have been elected in separate districts in the several States, or in some of the States under an act of the Legis lature of the State. Now they are I believe in all the States, by provision of State law, elected by a vote of the people of the State at large. It would doubt less be competent for the Legislature of any State to direct its Governor to appoint the electors. I question very much whether the Government of the United States has any right to go behind the appointment of the electors, and the amendment which the Senator from Ohio has introduced in his resolution does not help it in my judgment. I doubt our right to inquire how these persons are elected in the States. It seems to me, although I do not wish to express a positive opinion upon the question at this time, that the intention was to leave this appointment of electors exclusively to the States, and that the only jurisdiction which the Federal Government had was to designate the time when these electors should be ap pointed ; but the manner of their appointment and everything else connected with their se lection is to be left to the State, and that the jurisdiction of the United States, of Congress, of the Presiding Officer of the Senate, who opens the vote, extends no further than to in quire whether these are the electors appointed by that State. Mr. MORTON. Will the Senator allow me to call his attention to the twenty-second joint rule? Mr. TRUMBULL. Yes, sir ; I was going to advert to it. This is no new question. It is a question that was discussed in the first Congress that ever met, and as long ago as 1800 a bill passed the Senate and a bill passed the House of Representatives upon this very subject. The bill failed by reason of a dis agreement between the two Houses of Con- The language of the Constitution, as the Senator from Ohio remarked, is perhaps not very specific. It is that the votes are to be opened by the Presiding Officer of the Senate, and they shall then be counted. By whom ? The Constitution does not say ; but we have a construction of the Constitution from the foundation of the Government. The very first time that a President was elected, when many of the men who had framed the Constitution of the United States held seats in Congress, they appointed tellers; they virtually took charge of this counting ; and from that day till now the vote has been counted, under the di rection of the two Houses of Congress. Mr. MORTON, From what time? Mr. TRUMBULL. From the beginning of the Government the two branches of Congress have passed resolutions in regard to this count ing of the vote. Mr. MORTON. I should like to ask the Senator whether the vote has ever been counted under the direction of the two Houses of Con gress in which they have, either or both Houses, assumed the right to reject a vote until after the passage of the twenty-second joint rule in 1865 ? The cases of Missouri, in 1821, of In diana, in 181T, and of Georgia, in 1869, are not cases in point, because in each one of those cases the question was whether they were States in the Union and entitled to vote ; but so far as the determination of any question of irregularity or of the right of an elector to vote is concerned, I think the Senator is mistaken in saying that Congress ever assumed any jurisdiction over that question until the adop tion of the twentv : second joint rule, in 1865. Mr. TRUMBULL. Mr. President, I do not say that there had ever been occasion for Con gress to do that, that it had ever excluded a vote, or decided as to whether a vote should be counted or not counted; but they have taken jurisdiction over the subject. That is what I meant to say, and what I believe I did say. It was not supposed when the Constitu tion was formed that such a question could ever arise, and, fortunately for the history of the country, it is true that such questions have never arisen until quite recently, and I regret exceedingly that any question should arise now. It was supposed that there would be no controversy, that the men selected by the State would be persons about whose selec tion there would be no question, and the only jurisdiction that Congress would have would be to ascertain whether they were the persons selected by the State. Now, whether we can go behind that, as the amendment of the Senator from Ohio would seem to indicate, and inquire whether these persons have been elected in the manner pro vided by the laws of the State, is to me a very doubtful question. We can inquire, when a 366 TWENTY-SECOND PRESIDENTIAL TERM. person presents himself here as a Senator, whether he has been elected by the Legisla ture of his State; but I very much doubt whether we can enter that Legislature and inquire whether those persons were properly chosen members of the Legislature. We may inquire if a Legislature exists Mr. THURMAN". Did I understand the Sen ator to say that I suggested that amendment ? Mr. TRUMBULL. I spoke of the amend ment which was suggested by the Senator s colleague. Mr. THURMAN". I concur with the Sena tor about the practice, but I am willing to vote for the resolution nevertheless, in order to get the facts, and without committing my self to any implication of law on the subject. Mr. SHERMAN". If my friend from Illinois will allow me, I made the suggestion of amend ment to meet the argument of my colleague, and, as I supposed, to gratify him. If that is in the way I shall be very glad to withdraw it, because I certainly desired to conciliate my colleague. Mr. TRUMBULL. It is not my intention to vote against the resolution. I am not op posing it. I recognize its importance, and I am gratified that the Senator from Ohio has moved on this subject. I thought it was one that required attention, and would myself have introduced a resolution at an earlier day in the session if I had been clear as to the jurisdic tion of the Senate to interfere in the matter, and how we could interfere ; so that I am not opposing the resolution. I do not wish, how ever, to be committed to the implication that might be drawn from the peculiar wording of the resolution authorizing this committee to inquire whether the laws of the States had been complied with. I do not wish to commit myself to the principle that we have a right to enter a State and canvass the vote for electors, to see whether they were chosen by the proper persons, as provided by the laws of that State, further than to ascertain that they were the authorized electors of the State, and I was comparing that to the election of a Senator to illustrate what I meant. I have always doubted the authority of the Senate of the United States to inquire into the proper election of a member of a State Legis lature or of its constitution. If the Legislature exists and is the recognized Legislature of the State, I question whether Congress has any authority to go behind that and inquire into the constituent members composing that legis lative body to determine whether they are rightly there or not. That is for the Legisla ture of each State to determine for itself ; and although it may be true that there may be one or half a dozen members that ought not to have been in that Legislature in our opinion, if the State Legislature under its State organi zation has organized and it is the recognized Legislature of the State, if we find that to be the case, and it has then made the election in pursuance of the Constitution of the United States, I question if we are not bound by the election. If there are two Legislatures, then we must determine which is the proper one. Unquestionably that will present the question. Some years ago I do not remember the date, but I understand the Senator from Indi ana to say it was in 1865 ; I do not find the date given in the book before me the two Houses of Congress agreed upon a rule in re gard to canvassing the votes for President and Vice-President. I will read a sentence or two from it. It provides for the appointment of tellers of the two Houses, and then provides " If, upon the reading of any such certificate by the tellers" That is, the certificate of the vote of the elec tors in any State "any question shall arise in regard to counting the votes therein certified, the same having been stated by the Presiding Officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision ; and the Speaker of the House of Representatives shall, in like manner, sub mit said question to the House of Representatives for its decision ; and no question shall be decided affirm atively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses ; which being obtained, the two Houses shall imme diately reassemble, and the Presiding Officer shall then announce the decision of the question submit ted, and upon any such question there shall be no debate in either House ; and any other question per tinent to the object for which the two Houses are assembled may be submitted and determined in like manner. At such joint meeting of the two Houses, seats shall be provided as follows," etc. The VICE-PRESIDENT. The Senator from Illinois will suspend. The morning hour has expired, and the Indian appropriation bill is before the Senate. Mr. SHERMAN". I hope we shall have this matter disposed of now. The VICE-PRESIDENT. If there be no objection the Indian appropriation bill will be informally passed over, subject to a demand for the regular order. Mr. WINDOM. I have no objection. Mr. TRUMBULL. I will state to the Sen ator having charge of the appropriation bill that my intention is to occupy only a moment more. Mr. WINDOM. I do not wish to interfere with the Senator s remarks at all. Mr. TRUMBULL. The rule proceeds : " Such joint meeting shall not be dissolved until the electoral votes are all counted and the result declared ; and no recess shall be taken unless a question shall have arisen in regard to counting any of sucli votes, in which case it shall be com petent for either House, acting separately, in the manner hereinbefore provided, to direct a recess, not beyond the next day at the hour of one o clock P. M." I read this to show wh.at has been the con struction of this clause of the Constitution as to the counting of the electoral votes, and this construction, adopted in a joint rule in 1865, as I understand the date of it to have been, is in conformity with the action of Congress from ULYSSES S. GRANT, PRESIDENT the beginning of the Government. Although there might be some question, and undoubtedly there is some ambiguity in the language of the Constitution, inasmuch as it is left in that un certain state, and says that the vote shall then be counted without saying by whom it shall be counted, and inasmuch as Congress has under taken to supervise this counting by appointing tellers,* and finally agreeing upon a rule of the mode of proceeding, I think there has been a settled construction of the Constitution which we may rest upon, and may proceed to count the vote at the recent election as it has been done heretofore. If there are two sets of electors from a State, that involves the necessity of determining which of those electors are the electors ap pointed by the Legislature of the State, and I question if that will not be the limit of our inquiry, whether we can go beyond that to de termine which is the proper set of electors, and then to see that the certificate is in due form and that the votes were cast at the proper time. I shall vote for the resolution, Mr. President, with great cheerfulness, because it is a subject, I think, requiring immediate and earnest and candid and fair consideration. Mr. EDMUNDS. This resolution and this debate has opened the whole question involved in the resolution of the Senator from Indiana ^Mr. MORTON] which he proposes to discuss on next Monday, and it is quite evident from what has been said by the Senator from Ohio, the Senator from New Jersey, and the Senator from Illinois, that even they are not prepared to take any definite attitude in respect to the use which could be made of this information to be obtained under this resolution when it is got. I am not prepared to vote for this reso lution, nor any other, until I can see with some reasonable clearness that it would be within our power to make use of the information, when we have obtained it, touching this ques tion of election of electors. It is undoubted ly a very difficult and troublesome question, and we ought not to act upon it or to enter into a complete debate upon it, until we have had time to reflect upon it ; and certainly, so far as I am concerned, until I have had an op portunity to hear the Senator from Indiana, who, I understand, has been investigating the matter for a considerable period of time, and whose investigations and views on the subject will be of great interest to us all. I hope, therefore, that this resolution will go over until Monday, when we shall have had an opportu nity to reflect upon the subject, have the reso lution in print before us, and hear the Senator from Indiana. The VICE-PRESIDENT. The Senator from Vermont can demand the regular order, which will bring up the Indian appropriation bill. Mr. SHERMAN. I intend to submit a mo tion to postpone the appropriation bill, for the purpo33 of disposing of this resolution. I trust UNIVERSITY xv ^< the Senator from tho position lie has taken. As a matter of course, we expect to hear the subject dis cussed in many ways. The Senator from In diana has already the floor for Monday next, to discuss the question of the necessary modifi cations of the Constitution of the United States to guard against the evils of disputed presi dential elections. But Jiere is a matter of fact, of inquiry. It is a question as to who are the electors from two of the States, and that can only be proven by testimony, and it requires time to take testimony. Louisiana and Arkansas are distant States. It will require at least a week to send proper persons there a sub-committee of the Committee on Privileges and Elections, or others to take this testimony. The consumption of one week, the delay of one week, may prevent the taking of the requisite testimony to enable us to decide the question that will be presented to the joint convention when we meet to count the vote of the electors. Now, sir, the passage of this resolution will not interfere in the least with the full consid eration of this question. Indeed, the passage of this resolution will give the Committee on Privileges and Elections jurisdiction of the subject. The resolution already pending, in troduced by the Senator from Indiana, will enable him to make his remarks, to give vis his views on the subject and the benefit of his experience. We cannot comply with the joint rule- of the two Houses without the very in formation sought to be obtained by this reso lution. It is impossible for either the Senate or the House to act in pursuance of the twen ty-second joint rule without this information. If we therefore delay the taking of testimony, as a matter of course we will postpone and probably defeat the opportunity of deciding the question according to that rule with delib eration and propriety. I regretted, therefore, when this resolution was introduced, that my colleague discussed any constitutional question, because it is not necessary to discuss the constitutional ques tion on a resolution simply directing the making of an inquiry. As a matter of course, a subject so delicate as this will enable the Senate, composed as it is of able lawyers, to discuss the question at great length ; and if you were to postpone the taking of this testi mony until the question involved in a disputed presidential election could be fully decided by the Senate of the United States, you would never have the testimony at the time fixed by the Constitution and laws for the opening of the electoral votes. I trust, therefore, that, postponing ordinary business, we will dispose of this resolution and let the Committee on Privileges and Elections take charge of the whole subject, and certainly in due time we shall have a report from them giving us information to act upon, and it will not in the slightest degree abate the interest 368 TWENTY-SECOND PRESIDENTIAL TERM. with which we shall hear from the Senator from Indiana. I will state further that I did not introduce this resolution without consulting the Senator from Indiana, showing him the resolution and talking with him about it beforehand, and re ceiving his opinion that it was important to have the information sought for by it in order to enable the committee to decide and act on the very important question presented in this disputed election of electors. I trust that the resolution will be acted upon now, and I will move that the Indian bill be postponed with a view to continue the consid eration of this resolution in the hope that we may have a vote upon it. The VICE-PRESIDENT. The Indian ap propriation bill being before the Senate as the regular order, the Senator from Ohio moves to postpone its consideration for the purpose of continuing the consideration of the resolu tion offered by him. Mr. WINDOM. "Why cannot the appropria tion bill be informally passed over? Mr. SHERMAN". I have no objection to that. I do not wish to say a word further on the subject. Mr. WINDOM. I do not wish to interfere with the discussion of the resolution, and am content to let the Indian appropriation bill be passed over informally until this resolution is disposed of. The VICE-PRESIDENT. The appropri ation bill has been informally passed over, but it is subject, under the rule, to a demand for the regular order by any Senator. It may still remain in that condition, as the Senator from Minnesota prefers it should, by general con sent. Does the Senator from Ohio withdraw his motion ? Mr. SHERMAN. Yes, sir. Mr. EDMUNDS. It might be a good way in this body altogether to have all debates take place after we have passed on propositions which we were afterward to debate, because then, if we convinced ourselves that we had made a mistake, we should not be obliged to apologize to our constituents for having made it intelligently upon discussion. There is no denying the fact that the passage or rejection of this resolution involves a de termination of a certain right in the Senate and in the House of Representatives over this subject of the election of President a jurisdic tion, as the Senator from Illinois has styled it. Now, what is that jurisdiction? Where are you to go ? Both the Senator from Ohio and the Senator from Illinois, and I believe the Senator from New Jersey I was called out while he was speaking maintain that we have no right to go behind the election of the elec tor, behind his certificate. If that is true, then there is no use of sending down to Louis iana to ascertain what is the certificate of these gentlemen. Those certificates on both sides are in your possession. They are subject to investigation and inquiry here on the spot, and when you have yourselves looked at the State seal and verified the signature of the Governor it is a question of law, according to the idea of these gentlemen, which certificate represents the sovereign and conclusive evidence that the State sends you as to what she has done. The Senator from Illinois does not admit by any means that we can go behind the record evi dence of who are electors, and inquire whether the people have been certified, who got the majority of votes, and there is the difficulty. Hence it seems to me desirable although I do not make any opposition in this matter by any means that we should take a little time to re flect on this subject, and to know precisely what is the scope of what this committee is to do, what its power under the Constitution is, as has been suggested, and what use can be made of information it obtains when you get it. The Senator from Indiana maintains, as I believe, that this twenty-second joint rule is one that does not comport with the Constitu tion, and that it infringes upon the rights of the States and the rights of the people through the States in the election of President and Vice-President, as provided by the Constitu tion. I do not think we should undertake to get this information instantly and in haste go into an inquiry as to how many people voted for one set of electors and how many for the other, instead of confining ourselves to the validity of the document which has been sent to the Vice-President on the one side and the other, as to which bears the great seal of the State, who was the proper repository of the great seal, whether the signatures be genuine, if there be any dispute about it. I suppose there is none of that kind, but merely a ques tion that arises on the general political situa tion. But as I say, I did not rise to discuss this question I only rose to say that it ap pears to me to be wise to treat this resolution just as we do others of great importance, and get all the light we honestly can before we act upon it. Mr. TRUMBULL. The Senator from Ver mont did not quite understand me if he under stood me to say that we could not go behind the certificate. I think where there are two bodies claiming to be electors from a State we must necessarily have the right to inquire which is the proper electoral college of that State ; but I question whether we could go so . far as to go behind the election. We might inquire as to whether the organized electoral college which sends the vote here is the one organized under the authority of the Legisla ture of the State, and there being here two sets of electors, as I understand, we must necessarily inquire into the organization of those electoral colleges. Mr. EDMUNDS. What do you mean by "organization?" To find out which has got the most votes ? ULYSSES S. GRANT, PRESIDENT. 369 Mr. TRUMBULL. "Which has gdt the most votes, not by inquiring into the right of parties to vote, and, perhaps, not as to the number of. votes. I am not prepared to say how far we can go ; but certainly we can go far enough. Some inquiry is necessary to determine which of those is the electoral college of the State according to the forms adopted in that State to express its choice for President and Vice- President of the United States. We can go that far. Mr. COCKLING. As we are to vote now it seems on this resolution, I venture to say a word about it, only, perhaps, to show my want of appreciation of the gravity and scope (of the questions it involves. I always dissent with diffidence from any sug gestion made by the Senator from Vermont, yet it seems to me we leap before we come to the stile when we discuss at this time all the ulti mate powers of the Senate or of Congress touching the recognition of presidential elec tors, as if those powers were in some definite sense involved in the passage of this resolu tion. It seems to me the resolution as intro duced by the Senator from Ohio, not improved, I think, by the amendment he has proposed, may be adopted and voted for by every Sena tor who has expressed his views on the subject without his vote shedding any light upon his impressions or convictions of these questions of ultimate power, and without forecasting in any way how they should be decided. Let me see whether I am right. The Con stitution ordains that " Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Repre sentatives to which the State may be entitled in the Congress, but no Senator or Representative, or per son holding an office of trust or profit under the United States, shall be appointed an elector." And again : " The Congress may determine the time of choos ing the electors, and the day oa which they shall give their votes; which day shall be the same throughout the United States." These provisions show that the two Houses may exercise jurisdiction over the matter of choosing electors in some regards ; but I will presently dismiss these particular delegations of power to Congress for the purpose of what I am going to say. Did the Constitution stand with the naked provision that the States may appoint electors in such manner as they estab lish, I could hardly discover impropriety in this resolution. What does it propose? To inquir e whether in certain States the Constitu tion has, in this respect, been executed, and whether it has been executed according to its own requirements and the requirements of the laws of the United States; that is all. Keeping before us for the moment the express delegations of authority to Congress, may we not inquire whether the electors appointed are persons holding offices of trust or profit under the United States ? May we not inquire whether 24 they were elected on the day specified ? May we not inquire whether they were chosen at the place required ? Undoubtedly we may. These, to be sure, are exceptions named by the Consti tution. But if we dismiss these particular ex ceptions there are still broader exceptions yet in the Constitution, giving to Congress topics of inquiry and ground for action. The States are undoubtedly to appoint electors, and to appoint in such manner as the Legislature may direct. This is clear. Unquestionably South Carolina had a right, and exercised it for years, to appoint electors through her Legislature. It has been said that the Governor might be commissioned to appoint them in a State. Very likely. It so happens, however, that in the States in ques tion the direction is that the electors be chosen at a popular election, and in no other way, and that they be chosen by the same voters who at that same election are entitled to vote for other officers. Who are, or rather, in the two States in question, who were these voters? The Constitution of the United States says that no State shall exclude from the right to par ticipate in this very choice (because it becomes this choice when the State has said that elec tors shall be chosen by force of that election) any man by reason of his race or color. Sup pose we are informed that in some State where one race of men predominate they have all been excluded from this choice, the State hav ing previously said that electors in that State are to be chosen only by this popular election. Can we not inquire and I adopt the most nar row limit of inquiry defined in the phraseology of any Senator who has participated in this debate whether these men are in law and in truth electors or not ? Suppose it turns out that in the State of Louisiana one hundred and fifty thousand qualified citizens voted for certain electors, and that all their votes were excluded from the count, and that twenty thousand only voted for other electors, can we not inquire whether in truth these men who had a constituency of but twenty thousand behind them are the elec tors claiming to have been appointed by Louisi ana in the way she has "directed " and pre scribed ? If we can, then I submit the ques tion degenerates into the verbal mode of stat ing it. One Senator says we have aright to inquire whether the claimants are. the electors appointed by Louisiana. Take it so; how are we going to find out? Suppose it turns out that there has been no election at all ; suppose the whole election went down, trodden out under the hoof of brute violence ; suppose military power or a mob rode over the elec tion, and there were no ballots or ballot-boxes at all, and certificates come here, may we not inquire whether those certified were in truth appointed by Louisiana ? After we have in quired what use or how many uses we may make ultimately of the information it seems to me permature now to consider ; the infor- 370 TWENTY-SECOND PRESIDENTIAL TERM. mation may be of little value, if you please, yet surely we can suppose plenty of uses to be made of it within the admitted scope of the Constitution. These uses would warrant the inquiry ; but, if no uses would render it worth while to in quire, still even the worthlessness of the re sult would not prove that we usurp power, or violate the Constitution, or prey upon the States by obtaining the information. But I go further than to maintain the naked power of Congress to inquire. I insist that we can utilize the result of the inquiry, and employ the facts in our action upon counting or refusing to count electoral votes for Presi dent or Vice-President. I see no reason to doubt that any State hav ing provided a popular election as the mode and the only mode of appointing electors, and it being alleged that no such election had been held, or that the election was a mere mockery or mob, violative not only of the laws of Louisiana, but in violation of the supreme law of the United States, we are within the scope of our power in sending a committee to find whether the allegations be fiction or fact. In both views I feel at liberty to vote for this resolution, not only without committing my 7 self upon all the ultimate questions to be raised, but without seeing the pertinency of these questions in respect of our power to adopt this resolution as it stands. To ascertain and make record of the facts, I will vote for the resolution. This alone will be wholesome ; and I will vote for it also for the use we may make of the facts in counting electoral votes and in determining any other proceeding which may come within our prov ince. Mr. President, I wish to say one word more. The honorable Senator from Ohio farthest from me [Mr. THUEMAN] deprecated a debate on the merits of the Louisiana doings, and said he should abstain from all allusion to them ; and straightway he proceeded to declare that he believed that a " great wrong " we all ob served the emphasis with which he pronounced the words had been done in Louisiana. I venture to say to the honorable Senator that even if he and I agreed, as perhaps we might in relation to some recent occurrences in Lou isiana, we should probably differ widely in re gard to the responsibility and blame to be at tached to the " wrong" which has been there committed. I have no right to ascribe to him any view of the subject, but I have the right to know that in some of the journals of the country the doings in Louisiana have been dis cussed as if a great wrong is imputable to per sons and officials who, in my humble judgment, are as innocent as the Senator from Ohio or myself. However, like that Senator, I do not wish to bring on a discussion of the part played by the national or State authorities now. Let us have the facts, and then we may go sure footed into -the conflict of opinion which pre vails, and then I will not shrink from saying whatever the truth may demand. The VICE-PRESIDENT. The question is on the adoption of the resolution. The resolution was adopted. IN SENATE. Monday, February 10, 1873. (" Congressional Globe," pp, 1216, 1217.) Mr. SHERMAN submitted the foil owing res olution ; which was considered by unanimous consent, and agreed to : Resolved, That the Vice-President be authorized to appoint the teller on the part of the Senate, pro vided for in the twenty--second joint rule of the two Houses, to receive and count the votes for President and Vice-President. The Vice-President appointed Mr. Sherman the teller on the part of the Senate. Mr. MORTON. I am instructed by the Committee on Privileges and Elections to make a report in regard to the electoral vote of Louisiana. It is accompanied by a short ad dendum by the Senator from Illinois [Mr. TEUMBULL], and another by myself. I ask to have it laid on the table and printed. The VICE-PRESIDENT. Does the report conclude with any resolution ? Mr. MORTON. No, sir. The report was ordered to lie on the table and be printed. It is as follows : On the 7th of January, 1873, the Senate adopted the following resolution : " Resolved, That the Committee on Privileges and Elections is directed to inquire and report to the Senate whether the recent election for electors for President and Vice-President has been conducted in the States of Louisiana and Arkansas in accordance with the Constitution and laws of the United States, and the laws of said States, and what contests, if any, have arisen as to who was elected as electors in either of said States, and what measures are necessary to provide for the determination of such contests, and to guard against and determine like contests in the future election of electors for President and Vice- President. " That for the purpose of speedily executing this resolution, the said committee shall have power to send for persons and papers, to take testimony, and, at their discretion, to send a sub-committee of their own number to either of said States, with authority to take testimony ; and, if the exigency of this ser vice demands, the said committee may appoint and employ suitable disinterested and unprejudiced per sons, not residents in either of such States, with authority to take such testimony as may be material in determining any pending contest growing out oi the election of electors in either of said States." In obedience to > the instruction contained in the foregoing resolution, the Committee on Privileges and Elections have bad under consideration so much of the resolution as relates to the election of electors in the State of Louisiana, and beg leave to submit the following preliminary report : The act of the Legislature of Louisiana of March, 1870, for the regulation of elections in that State. provides, among other things, that the Governor shall have the power to appoint officers known as supervisors of registration in each parish in the State, and that these supervisors of registration shall have authority to appoint commissioners of election (who in other States are called inspectors and judges), ULYSSES S. GRANT, PRESIDENT. 371 under whose direction and authority the voting shall actually take place ; that the supervisors of registra tion shall also control and direct the registration _of the voters in each parish, fixing the places for regis tering and the places for voting ; that, after the elec tion has taken place, the commissioners of election shall bring the boxes containing the votes to a cer tain point in the parish, where, under the supervision and direction of the supervisor of registration, the votes shall be counted ; and, when that is accom plished, the supervisor of registration shall make out a statement of the result of the election at the vari ous voting-places in the parishj of which triplicate copies shall be made, and also triplicate copies of the tally -sheets, and a statement of the vote at each poll in the parish, to be signed by the commissioner of election ; and that the supervisor of registration shall seal up one copy of all these papers, and inclose it to the Governor of the State by mail ; then seal up another copy, and send it to the Governor by the next most speedy mode of conveyance; and shall himself retain the third copy. The law then pro vides that the Governor, Lieutenant-Governor, Sec retary of State, and John Lynch, and T. C. Ander son, by name, shall constitute the returning or can vassing board ; that the Governor of the State shall, within ten days after the election, open the sealed packages from the various parishes, sent to him by the supervisors of registration, in the presence of the othe-r members of the board, and the vote shall then be counted by the board for presidential elec tors, State officers, and members of the Legislature, and the result ascertained ; that one copy of the re sult or finding of the board shall be filed in the office of the Secretary of State, and another shall be pub lished in the official journal of the State. Governor Warmoth, Lieutenant-Governor Pinch- back, and F. J. Herron, acting Secretary of State, were members of this returning board, ex offitio ; and a majority of the members convened, within ten days, in the city of New Orleans, to enter upon the duty of counting the votes. Pinchback and An derson having been candidates for Congress were, by another provision of the law, made ineligible, and were declared, by resolution, to be no longer members of tha board, and controversy arose in re gard to filling their places. It is not necessary to enter into the details of this controversy further than to state that Governor Warmoth attempted to con trol the vacancies thus created on this board, by re moving F. J. Herron, actingSecretary of State, and placing in his stead Jack Wharton ; and after he had done so, claimed that he and Wharton, by their votes, had elected F. H. Hatch and Durant Da Ponte to fill the vacancies of Pinchback and Anderson ; while, on the other hand, ifc was claimed that Lynch and Herron, while yet actingSecretary of State, had elected James Longstreet and Jacob Hawkins to fill these vacancies. In a proceeding commenced in the circuit court of the United States for the district of Louisiana, on the^lSth of November, Judge Durell granted a pre liminary injunction restraining the Wharton board from opening the official returns and counting the votes, from acting as a returning board, making any retufns, or proclamation of any finding, until fur ther order of the court, which continued in force until the decision of the case on the 6th of Decem ber. Tha election for presidential electors, members of Congress, State officers, and members of the Legis lature, was held in Louisiana on the 4th of Decem ber, and the returns of the election in the various parishes were sent to the Governor by the supervis ors of registration, as required by law. The Gov ernor refused to act with the board, known as the " Lynch board," or to open and lay before that board the returns of the election from the various parishes ; but opened them and prepared to make tha count before what is known as the " Wharton board," which was then enjoined from further pro ceedings by Judge Durell. The official returns, which had been sent to the Governor, were by him withheld from the Lynch returning board, and nev er at anytime came into possession or under the ex amination of that board. The Legislature of Louisi ana, at its session in the winter of 1872, passed an act abolishing the returning or canvassing board, as created by the act of 1870, and authorizing the State Senate to elect a returning board, to have the same powers as the former, and making other changes in the mode of conducting the elections ; and, on the 20th of November, 1872, the Governor, who had not signed this act, but kept it in his possession during the pendency of these proceedings in the circuit court of the United States, and also proceedings of a like character commenced in the eighth district court of the State, signed the bill and published it as a law. On the 21st day of November, 1872, Governor Warmoth, assuming that the Lynch board had been abolished by the act which he had signed on the 20th of November, and claiming the authority to appoint a returning board under the clause of the constitution which gave him power to fill vacancies, proceeded to appoint De Fenet and others as a re turning board, and placed in their hands the official returns of the election, to be by them counted, to ascertain and declare who were elected State officers and members of the Legislature. Before the official returns were thus placed in the hands of that board they had been opened by the Governor and exam ined by a deputy Secretary of State, named Wood ward, acting under Jack Wharton, who at that time assumed to be Secretary of State under the appoint ment by Governor Warmoth when he removed F. J. Herron, as before stated, and by O. A. Bragdon, the Governor s private secretary, who had been elected assistant secretary of the Wharton board. Messrs. Woodward and Bragdon, according to the testimony, looked over the returns to ascertain who had been elected electors for President and Vice-President, and made a statement to the Governor of the result of their examination ; and the Governor, on the morning of the 4th of December, the day fixed by the act of Congress when the electors in the several States shall meet an d cast their votes, issued a paper, in which he declared that T. C. Manning, G. A. Weed, A. F. Herron, H. J. Campbell, L. Bush, A. Thomas, A. H. Leonard, and L. V. Reeves had been elected electors, and placed a copy of the said paper in the possession of each of said persons ; and, after ward, on the same day, they assembled in the city of New Orleans, and, as electors, voted for President and Vice-President. It clearly appears from the testimony that the official returns of the State were never examined and counted for presidential electors by any person except Messrs. Woodward and Brag don, and up to this time never have been examined and counted by the Lynch board or any person hav ing authority whatever to make such examination and count. While we have no doubt that the re turns sent to Governor Warraoth from various par ishes by the supervisors of registration will upon their face show that the aforesaid persons named as electors, and whom we shall designate as the " Gree- ley electors," received a majority of the votes, that fact has never been ascertained by any competent authority, and the action of Governor Warmoth depended entirely upon the unauthorized statements of Messrs. Woodward and Bragdon, who, at the time, had no right to look into the returns at all. In this matter there is no pretense that the law was complied with, and the Lynch board were never at any time permitted to see them. The third section of the act of Congress of 1792 declares what shall be the official evidence of the election of electors, and provides that " the execu tive authority of each State shall cause three lists of the names of the electors of such State to be 372 TWENTY-SECOND PRESIDENTIAL TERM. made and certified, to be delivered to the electors on or before the first Wednesday in December, and the said electors shall annex one of tlie said lists to each of their votes." The certificate of the Secre tary of State is not required, and the certificate of the Governor, as provided for in this section, seems to be the only evidence contemplated by the law of the election of electors and their right to cast the electoral vote of the State. If Congress chooses to go behind the Governor s certificate, and inquire who has been chosen as electors, it is not violating any principle of the right of the Stales to prescribe what shall be the evidence of the election of elec tors, but it is simply going behind the evidence as prescribed by an act of Congress ; and, thus going behind the certificate of the Governor, we find that the official returns of the election of electors, from the various parishes of Louisiana, had never been counted by anybody having authority to count them. Some two or three days preceding the 4th of De cember the Lynch board officially declared, that M. F. Bonzano, J. Lanabere, C. II. Hulstead, L. C. Croudanez, A. R. Johnson, Milton Morris, J. Tay lor, and John Ray, whom we shall designate as the " Grant electors," had received a majority of all the votes in the State for electors of President and Vice- President ; and the Secretary of State, de jure, Mr. Bovee, not then in possession of the office of Secre tary of State or the State seal, but who had been decided by the Supreme Court of the State a few days before to be the lawful secretary, made a certificate of election to the persons so declared chosen as elec tors, and on the 4th of December they met and cast their votes for President and Vice-President, accord ing to the requirements of the act of Congress. They did not on that day, however, seal up their vote, but kept it open for several days, until Mr. Bo vee, the Secretary of State, got possession of the State seal so as to attach it to their certificates of election. The Secretary of State had no right, un der the law, to make any certificate upon the sub ject, unless for the information of the Governor, and his certificate constitutes no legal evidence of the election of the persons therein named. The Lynch board, in making the count and declaration as to the election of electors, did so without having before them any of the official returns of the election as made out by the officers of the election, under the laws of the State, and had no legal evidence before them at all upon which they could count the votes, but their count was made upon documents, affida vits, and statements, exparte in their character, hav ing no legal validity, and which could not, in the na ture of things, form the basis of an accurate and reli able declaration of the result of the election. On the 15th day of November, after the Lynch board had been organized by the election of Long- street and Hawkins to fill the vacancies of Pinch- back and Anderson, Longstreet, on behalf of said board, and designating himself as u deputy super visor," demanded of Governor Warmoth that he should bring the official returns of the election be fore said board to be counted. This demand Gov ernor Warmoth declined to comply with, in the fol lowing letter: STATE OF LOUISIANA, EXECUTIVE DEPARTMENT, NEW ORLEANS, November 15, 1872. SIR : In reply to your letter, just received, inform ing me that you have instructions to see that all election statements of the election of November 4 in this State are properly and promptly placed in the possession of said board, and asking that I place the same in the possession of Special Deputy Marshal "W. F. Loan, in order that he may deliver the same to Mr. John Lynch, president of the board, I have to say that I do not recognize your authority as dep uty supervisor to make such demand, nor have I any knowledge of the existence of any such body as that presided over by Mr. John Lynch. The election returns received by me as president of the State board of canvassers are, and will remain, in the pos session of myself as president of the State board of canvassers, in accordance with the law of the State, and I alone am authorized to hold and open them. Very respectfully, your obedient servant, H. C. WARMOTH, Governor of Louisiana. General JAMES LONGSTREET, Deputy United States Supervisor. It is claimed on behalf of this board that, by the demand upon Governor Warmoth that he should produce before them the official returns of the elec tions, and his refusal to do so, a foundation was laid for the introduction of secondary evidence to prove the contents and character of said official returns, upon which secondary evidence the count might be made. Without entering into the dis cussion of the legal question whether a sufficient foundation had thus been laid for the introduction of secondary evidence as to the character of the returns, it is suf ficient to say that if such foundation had been laid it could only justify tbe introduction of secondary evidence to prove the actual character and contents of the returns, and the testimony before the com mittee shows that the evidence which the Lynch returning board had before them went to contradict the face of the returns, to show fraud, and what the vote should have been, and that in making their count the board did not rely so much upon evidence as to what the official returns showed, but upon evi dence which in many cases contradicted and denied their correctness. Among other evidences, the Lynch board counted some five thousand affidavits as votes for presidential electors, State officers, and members of the Legislature. These affidavits pur ported to have been made by persons, mostly per sons of color, who had been denied the right of reg istration, and whose votes had been refused at the polls. In many of them it was stated that these rights had been denied them because of race, color, or previous condition of servitude, and many of them contain no such statements. It is urged that these affidavits might be counted as votes under the provisions of the act of Congress of 1870^ to enforce the fifteenth amendment to the Constitution. A brief examination of that act will show that this claim is unfounded. By the third section of that act it is provided that, where a person has offered to register or to perform any act required by law preliminary to voting, from the performance of which he has been wrongfully hindered by any offi cer or. person in authority, the offer to register or to perform the preliminary act shall be taken as a performance, and, upon p_roof thereof, such person shall have a right to vote just as if such preliminary act had been performed. But there is no provision in the law that if any person has been refused the right to vote and has performed such preliminary act, or offered to perform the same, as provided in the third section, his offer to vote shall be taken and counted as a vote. In the twenty-third section of the act it is provided that if any person has beep de feated in obtaining an office by reason of such denial to any person or persons of the right to vote, on ac count of race, color, or previous condition of servi tude, such person may bring a suit in the courts of the United States to recover the office ; but the sec tion expressly provides that its benefits shall not extend to candidates for the State Legislature, for Congress, or for electors for President and Vice- president. The section clearly contemplates a suit in court, to which the person who, it is claimed, has been fraudulently elected, shall be made a party, and- that upon legal proof that the plaintiff has been deprived of his election by the exclusion of persons from voting on account of race, color, or previous ULYSSES S. GRANT, PRESIDENT. 373 condition of servitude, he shall be entitled to recover the office. The statute of Louisiana authorizes the supervisors of registration in the parishes, or the commissioners of election, to make affidavit ia regard to any vio lence, tumult, fraud, or bribery, by which a fair elec tion has been prevented, which shall be forwarded to the returning board, along with the returns, and upon which the returning board may reject the vote of a poll in making the count; and if the evidence of the officers of the election is not sufficient to satis fy the minds of the returning board in regard to the matters charged, they are authorized to send for persons and papers, and take further testimony upon the matter ; but they have no authority to make such investigation unless the foundation is first laid by the sworn statements of the officers of the election, as before mentioned. The Lynch board, in making their count without having the sworn statements of the officers of the election to give them jurisdiction to investigate, received affidavits, the statements of supervisors of election appointed under the act of Congress, letters and verbal statements upon which they assumed the authority, in some cases, to reject the entire vote of parishes, and in many instances to throw out the vote of particular polls and wards, and in others to estimate and fix the vote at about what they supposed it ought to be from their knowledge of the political status of the parish or locality. The evidence submitted to the ooard, and which has been described to the committee, undoubtedly pro duced the conviction in their minds that the election had been an organized fraud. Governor Wartnoth, under the act of 1870, had the whole machinery of the election in his own hands. He had the appoint ment of the supervisors of registration in the dif ferent parishes, and they the appointment of com missioners of election, and those officers, with but few exc3ptions, were appointed from the ranks of those who were opposed to the Republican party, and, we think, from the informal evidence before the returning board, and from what this committee has learned in the course of this investigation, there is little doubt that those advantages were used to the utmost, and every means resorted to in order to secure the triumph of the party with which Gov ernor Warmoth was acting. Great difficulties were thrown in the way of registration; Republicans in many parishes were put to great inconvenience to find the registrar, and in many instances were unable to do so ; places of registering and of vot ing in many parishes were fixed at points remote from the centres of population, often without notice of the place being given ; false registration-papers, double voting:, stuffing ballot-boxes, and other frauds and irregularities, were charged in a majority of the parishes, and there is not much room to doubt that the Lynch returning board were of the opinion that, upon a fair election, the Republican party would have carried the State, and had been cheated and hindered in every way possible by the power that controlled the machinery of the election. But, not withstanding all this, the Lynch returning board, with the sort of evidence which was before them, had no power under the law of the State to investi gate these charges of fraud and injury, or to act upoi\ their convictions of wrongs that had been suffered. The election of the Greeley electors was certified to by the Governor of the State, but the official re turns of the election have not been counted by the returning board created by the laws of Louisiana for that purpose ; and the persons who, in fact, made the examination and count, had no legal authority to do so. The election of the Grant electors is certified by the Lynch returning board, but that board did not have the official returns before them, arid their election is not certified by the Governor of the State as required by the acj, of Congress. The committee are of the opinion that neither the Senate of the United States nor both Houses jointly have the power under the Constitution to canvass the returns of an election and count the votes to determine who have been elected presidential electors, but that the mode and manner of choosing electors are left ex clusively to the States. And if by the law of the State they are to be elected by the people, the meth od of counting the vote and ascertaining the result can only be regulated by the law of the State. Whether it is competent for the two Houses, under the twenty-second joint rule (in regard to the con stitutionality of which the committee here give no opinion), to go behind the certificate of the Governor of the State to inquire whether the votes for elec tors have ever been counted by the legal returning board created by the law of the State, or whether, in making such count, the board had before them the official returns, the committee offer no sugges tions, but present only a statement of the facts as they understand them. As to the other questions upon which the com mittee are instructed to report, touching the exist ence of a legal State government in Louisiana, and the admission of a Senator from that State, they are not now prepared to report. Addendum by Mr. Morton. A majority of the committee were of opinion that no reference should be made in the report to the decision of the Supreme Court of Louisiana as to which was the legal returning board, upon the ground that the decision was made subsequent to the 4th of December, when the electors were to cast their votes for President and Vice-President ; but it seems to me that the history of the whole matter would not be complete, and the Senate would not be placed in possession of all the material facts, without a statement of the character of that decision, and that the fact that it was made after the casting of the vote by the electors would furnish no suffi cient reason why it should not be referred to in the report. Decisions of courts of last resort are made at the end of causes and not at the beginning, and are held to relate back and establish the rights of the parties throughout the whole controversy. On the 14th day of November, 1872, a proceeding was commenced in the eighth district court of Lou isiana by the Attorney-General, on the information of the returning officers of elections, to enjoin what was called the Wharton board from canvassing the official returns and" making any finding thereon, and requiring the returns to be placed in the hands of the Lynch board. And to this suit Governor War- moth, Hatch, Da Ponte, and Wharton, were made parties. This case was appealed to the Supreme Court of the State, and by that court decided on the day of January, 1873. The court held that the board consisting of Lynch, Longstreet, and Haw kins, together with Governor Warmoth and Mr. Bo- vee, who was the Secretary of State who had been suspended by Governor Warmoth when he first appointed Herron, and who had been restored by a decision of the Supreme Court, constituted the legal returning board, and that Da Ponte, Wharton, and Hatch had no authority whatever. 0. P. MORTON. Addendum ly Mr. Trumbull. My understanding of the evidence is, that Gov ernor Warmoth, some months before the election, had removed Bovee from the office of Secretary of State, and appointed Herron in his place; that on the morning of November 14th he removed Herron as a defaulter, and in his place appointed Wharton, who qualified and took possession of the office of Secretary of State prior to noon, the hour to which the returning board stood adjourned from a preliminary meeting held the day previous ; that after the meeting of the board on the 14th, and the 374 TWENTY-SECOND PRESIDENTIAL TERM. vacancies in it hud been filled by Warmoth and Wharton, by the appointment of Hatch and DaPonte, Bragdon was appointed assistant secretary of the board. Governor Wannoth opened the official re turns in their presence, and the assistant secretary commenced their tabulation, but before completing it t lie Wharton board was enjoined from further pro ceeding by the United States District Judge, Durell. Bragdon, who was private secretary of the Gov ernor, as well as assistant secretary of the Wharton board, and in whose possession the returns re mained, assisted by Woodward, who was then as sistant Secretary of State under Wharton, as he had previously been under Herron, continued the tabu lation of the returns for electors until it was com pleted, when Governor Warmoth gave a statement of the result to the electors who were elected accord ing to the official returns. I also dissent from the following passages in the foregoing report, to wit : " The evidence submitted to the [Lynch] board, and which has been described to the committee, un doubtedly produced the conviction in their minds that the election had been an organized fraud." " There is not much room to doubt that the Lynch returning board were of the opinion that, upon a fair election, the Republican party would have car ried the State, and haft been cheated and hindered in every way possible by the power that controlled the machinery of the election." The fact that the Lynch board undertook to count in the Republican candidates as elected without the semblance of an official return before them, and in some instances upon spurious, forged, and false affi davits, as the evidence before the committee shows, affords no evidence to my mind that they supposed a fair election had not be en held. LYMAN TRUMBULL. Ix HOUSE OF REPRESEXTATIVES. Monday, February 10, 1873. (" Congressional Globe," p. 1236.) A message from the Senate, by Mr. Symp- son, one of its clerks, announced that the Senate had appointed Mr. Sherman as teller on the part of the Senate to receive and count the electoral votes for President and Vice- President. The SPEAKER. The Senate has sent to the House a notification of its appointment of a teller on the part of the Senate to count the electoral votes. It is the duty of the Speaker to nominate two Representatives to perform the same duty on the part of the House. The Chair nominates Mr. Henry L. Dawes, a Rep resentative from the State of Massachusetts, and Mr. James B. Beck, a Representative from the State of Kentucky. Ix SEXATE. Tuesday, February 11, 1873 ("Congressional Globe," p. 1239.) A message from the House of Representa tives, by Mr. McPherson, its Clerk, announced that the Speaker of the House, in pursuance of the twenty-second joint rule of the two Houses, had appointed Mr. Henry L. Dawes, of Massachusetts, and Mr. James B. Beck, of Kentucky, tellers on the part of the House of Representatives to receive and count the votes for President and Vice-President of the United States. Ix SENATE. Wednesday, February 12, 1873. (" Congressional Globe," pp. 1284-1288.) Mr. McPiiEKSOx, the Clerk of the House of Representatives, appeared at the bar of the Senate, and delivered the following message: Mr. President, I am directed to inform the Senate that the House of Representatives is now ready to re ceive the Senate, for the purpose of proceeding to open and count the votes of the electors of the several States for President and Vice-President of the United States. The VICE-PRESIDENT. A message has just come from the House of Representatives, announcing that they are in readiness for the entrance of the Senate, to count the electoral votes. Mr. SHERMAN. The hour fixed by the joint rule is one o clock, and according to the precedent four years ago, when a similar mes sage was received at about the same time, the Senate waited until the hour of one o clock, which is the hour fixed by the joint rule. The VICE-PRESIDENT. If there be no objection, the Chair will submit the message of the House at about five minutes before one o clock, so as to enable the Senate to arrive in the Hall of the House of Representatives at one o clock. The Senator from Indiana will resume. Mr. Pratt resumed and concluded the re marks printed above. The VICE-PRESIDENT. The Chair sub mits a message received from the House of Representatives, which will be reported by the Secretary. The Chief Clerk read as follows : IN THE HOUSE OF REPRESENTATIVES, February 12, 1873. Resolved, That the Clerk inform the Senate that this House is now ready to receive that body, for the purpose of proceeding to open and count the votes of electors of the several States for President and Vice-President of the United States. Mr. SHERMAN. I move that the Senate proceed to the Hall of the House of Repre sentatives. The motion was agreed to. The VICE-PRESIDENT. The Senate, pre ceded by the Sergeant-at-Arms, will now re pair to the Hall of the House of Representa tives. The Senate thereupon proceeded to the Hall of the House of Representatives. The Senate returned to its Chamber at eight minutes past two o clock p. M. The VICE-PRESIDENT. Upon the count ing of the votes for President and Vice-Presi dent, in the presence of the two Houses, three questions arose and were stated by the pre siding officer, and the Senate has returned to its Chamber under the twenty-second joint rule, for the purpose of deciding them. The ULYSSES S. GRANT, PRESIDENT. 375 Secretary will report the first objection. The twenty-second joint rule will be found on page 178 of McDonald s Digest. The Secretary read as follows : Mr. HOAR objects that, the votes reported by the tellers as having been cast by the electors of the State of Georgia for Horace Greeley, of New York, cannot lawfully be counted because said Horace Greeley, for whom they appear to have been cast, was dead at the time said electors assembled to cast their votes, and was not "a person" within the meaning of the Constitution, this being an historic fact of which the two Houses may properly take notice. The VICE-PRESIDENT. The Secretary will report from the certificate of the electors of the State of Georgia the substantial part bearing upon this question. The Secretary read as follows : That the said electors, being assembled as above mentioned, and all present, proceeded to vote by ballot for a President of the United States for the term of four years from the 4th day of March, 1873. When all the ballots were cast and the votes counted, it appeared that Benjamin Gratz Brown, of the State of Missouri, had received 6 votes ; Horace Greeley, of the State of New York, 3 votes, and Charles J. Jenkins t of the State of Georgia, 2 votes; 11 votes in all being given by the electoral college. The VICE-PRESIDENT. This question is now submitted to the Senate for its decision, which, under the twenty-second joint rule, must be without debate. The Secretary will report the part of the twenty-second joint rule bearing on this question. The Secretary read as follows : " If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision ; and the Speaker of the House of Representatives shall, in like manner, submit said question to the House of Representatives for its decision ; and no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses ; which being obtained, the two Houses shall immediately reassemble, and the pre siding officer shall then announce the decision of the question submitted, and upon any such question there shall be no debate in either House ; and any other question pertinent to the object for which the two Houses^are assembled may be submitted and determined in like manner," Mr. ALCORN. I ask leave to offer a reso lution, which I will submit in writing. The VICE-PRESIDENT. This question is submitted to the Senate for its decision. The usage has been that it should be in writing, as the precise terms of the decision must be com municated to the other House. Mr. EDMUNDS. I understood the Senator from Mississippi was to offer a resolution. I was about to offer one. Mr. ^ALCORN. I beg pardon, Mr. Presi dent; is the objection of the member from Massachusetts now up ? The VICE-PRESIDENT. The first ques tion submitted is that in regard to the votes cast by the electors of the State of Georgia for Mr. Greeley. Mr. EDMUNDS. On that subject I offer the following resolution: Resolved, That the electoral votes of Georgia cast for Horace Greeley be not counted. The VICE-PRESIDENT. Is the Senate ready for the question ? Mr. THURMAN. I have an amendment to offer to that resolution. Mr. BOREMAN. I wish to make an inquiry : whether this resolution is subject to debate ? The VICE-PRESIDENT. It is not, under the twenty-second joint rule. Mr. STEWART. Is it in order to call for the reading of that section of the Constitution under which the votes are counted ? The VICE-PRESIDENT. The Chair thinks it is. Mr. STEWART. I should like to hear that read. The VICE-PRESIDENT. The Secretary will report the first part of the twelfth arti cle of amendment to the Constitution of the United States. The Secretary read as follows : " The electors shall meet in their respective States, and vote by ballot for President and Vice-President^ one of whom, at least, shall not be an inhabitant ot the same State with themselves ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice- President, and of the number of votes for each, which lists they shall sign and certify and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. The Presi dent of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted ; the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed ; and if no person have such majority, then from the persona having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately by bal lot the President." Mr. THURMAN. I ask that the resolution be read again. The VICE-PRESIDENT. The resolution proposed by the Senator from Vermont will be reported. The Chief Clerk read the resolution, as fol lows : Resolved, That the electoral votes of Georgia cast for Horace Greeley be not counted. Mr. THURMAN. I move to amend the resolution by striking out the word " not." Mr. EDMUNDS. On that amendment I ask for the yeas and nays, only because it is a mat ter of importance. Mr. SCOTT. Is it in order to offer an amendment to the amendment ? The VICE-PRESIDENT. It is ; but .the question must first be taken upon ordering the yeas and nays. The yeas and nays were ordered. 376 TWENTY-SECOND PRESIDENTIAL TERM. Mr. SCOTT. I have drawn what I propose as an amendment to the amendment : That the votes for Horace Greeley are entitled to be counted, postponing the question of the legal effect of votes cast for a man who shall appear to have been dead when they were cast, until tbe whole vote shall come to be counted. The VICE-PRESIDENT. That would be a substitute Mr. EDMUNDS. I make the point of order that that does not comply with the joint rule, which requires us to decide whether the vote shall be counted or not. The VICE-PRESIDENT. The Chair was about to state that in the form presented by the Senator from Pennsylvania his proposition would be a substitute for the resolution ; and therefore the first question according to par liamentary law would be on the amendment of the Senator from Ohio to perfect the res olution. But the Chair sustains the point made by the Senator from Vermont that this is not a decision of the question. "When the two branches meet in their respective Cham bers, they must, in the language of the rule, decide the question submitted. The question now is on the amendment of the Senator from Ohio to strike out the word " not," upon which the yeas and nays have been ordered. Mr. CONKLING. I should like to ask a question of the Chair. Suppose the amend ment be lost, or otherwise, I presume it will be in order, of course, afterward to amend the resolution by adding something to it ? The VICE-PRESIDENT. Certainly. The Secretary will call the roll on the amendment of the Senator from Ohio striking out the word "not." The question being taken by yeas and nays, resulted yeas 47, nays 18 ; as follows : YEAS Messrs. Alcorn, Anthony, Bayard, Blair, Carpenter, Casserly, Clayton, Cole,* Conkling, Coop er, Corbett, Cragin, Davis, Fenton, Ferry .of Michi- Maine, Norwood, Patterson, Pool, Ransom, Rice, Saulsbury, Sawyer, Schurz, Scott, Sherman, Sprague, Stevenson, Stewart, Stockton, Thurman, Tipton, Trumbull, Vickers, and Wright 47. NAYS Messrs. Ames, Boreman, Buckingham, Caldwell, Chandler, Edmunds, Ferry of Connecticut, Hamilton of Texas, Humlin, Hill, ilowe, Morrill of Vermont, Morton, Nye, Pratt, Robertson, West, and Windom 18. ABSENT Messrs. Brownlow, Cameron. Osborn, Pomeroy, Ramsey, Spencer, Sumner, and Wilson 8. The VICE-PRESIDENT. The amendment is agreed to, and the word "not" is stricken out. The question now is on the resolution as amended. Mr. CONKLING. I move to amend the resolution by adding a few words. I will read the resolution as it is, and as it would be if my amendment were adopted. Resolved, That the electoral votes of Georgia cast for Horace Greeley be counted. So the resolution stands now. I propose to add the words The function of the joint convention being minis terial merely, and this question being independent of the question of the effect of the votes or of the count. I offer these additional words as an amend ment. The VICE-PRESIDENT. The Senator from New York moves to amend by adding to the resolution words which will be read. The CHIEF CLERK. The proposed amend ment is to add to the resolution the following : The function of the joint convention being minis terial merely, and this question being independent of the question of the effect of the votes or of the count. Mr. SHERMAN. I hope the Senator from New York will withdraw that. It requires us to vote on a question of great difficulty with out debate. The precise function of the joint convention is one of the most delicate and dif ficult questions in our system. Mr. CONKLING. I think, if my friend will attend to the resolution, he will not ask me to withdraw the amendment on that ground. I have no right to debate it; but I ask him to attend to the resolution so far as to see that the design of the words and if they are not well chosen I hope he will improve them is to restrict and restrain the decision of this body to that single point, so as not to have the vague ness of the resolution imply that we intend to say anything as to the effect of the count after it is made. Mr. ANTHONY. Is there any joint con vention ? Is there any such body as a joint convention? Has it any functions at all ? The VICE-PRESIDENT. The Chair thinks that is in the nature of debate. Mr. ANTHONY. I do not know but that it is. The VICE-PRESIDENT. If it was a par liamentary question for the Chair, it would not be debate ; but it is a constitutional ques tion that the Senator from Rhode Island is presenting, and such an inquiry is in the na ture of debate. Mr. STEWART. I would suggest an amendment Mr. CONKLING. If my friend will allow me, in consequence of the remark of the Sen ator from Ohio, I will modify my amendment as I will now read it : The function of the joint convention in counting votes being ministerial merely, and this question being independent of the question of the effect of the votes or of the count. I think that will relieve it of the objection made by the Senator from Ohio. Mr. MORTON. I suggest to the. Senator from New York to strike out the words "joint convention" and insert "the two Houses." Mr. CONKLING. I accept the amendment. The VICE-PRESIDENT. The amendment ULYSSES S. GRANT, PRESIDENT. 377 is modified so as to say " two Houses " instead of "joint convention." Mr. STEWART. I move a substitute, to come in after the other words, to this effect: Be counted for the purpose of ascertaining the whole number of electors appointed. The VICE PRESIDENT. Will the Senator from Nevada state whether he offers an amend ment to the resolution, or an amendment to the amendment of the Senator from New York ? Mr. MORTON. The votes may as well be counted for Greeley as counted blank, so far as the whole number is concerned. Mr. STEWART. I withdraw the proposi tion for the present. The VICE-PRESIDENT. The question is on the amendment of the Senator from New York. Mr. CARPENTER. Let it be read. The VICE-PRESIDENT. The amendment will be read as modified. The amendment was read, as follows : The function of the two Houses in counting the votes being ministerial merely, and this question being independent of the question of the effect of the votes or of the count. Mr. BAYARD. I raise a point of order on that amendment. The proposition does not affect in any way or change the substance of the resolution, and constitutes a mere recital of a legal proposition, and therefore is not an amendment. It does not change or affect in any way the substance of the resolution. The VICE-PRESIDENT. The Senator from Delaware submits the point of order which he has stated, and the Chair submits it to the Sen ate for its decision. Mr. HAMLIN. It is a matter of taste, not of order. The VICE-PRESIDENT. The Senator from Delaware objecting to the reception of this amendment, the question is, Will the Senate receive it as an amendment under the twenty- second joint rule ? The question being put, a division was called for ; and there were yeas 25, nays 32. Mr. CONKLING. I ask for the yeas and nays. The yeas and nays were ordered. Mr. CONKLING-. Now will the Chair be kind enough to state the question to the Senate? The VICE-PRESIDENT. The Senator from Ne\v York having moved an amendment to add to the resolution what has been re ported, the Senator from Delaware makes the point of order that it is not in order under the twenty-second joint rule as an amendment, it being matter of argument rather than a decision of the question. The Chair submits that question to the Senate, and the yeas and nays have been ordered upon it, whether the Senate will receive it as an amendment under the twenty-second joint rule. Mr. CARPENTER. After which the ques tion will bo upon agreeing to the amendment? The VICE-PRESIDENT. The first ques tion will be on receiving the amendment. Mr. CARPENTER. But afterward? We do not vote on the amendment now. The VICE-PRESIDENT. T^Q first ques tion is, whether the amendment can be re ceived under the twenty-second joint rule ? Mr. FERRY, of Michigan. I ask that :the resolution be read as it will stand if amended. The Chief Clerk read as follows : Resolved, That the electoral votes of Georgia cast for Horace Greeley be counted, the function of the two Houses in counting the votes being ministerial merely, and this question being independent of the question of the effect of the votes or of the count. Mr. BAYARD. Is it in order for me to restate the grounds of my point of order ? The VICE-PRESIDENT. The Chair thinks not, unless the Senator says that the Chair has stated it incorrectly. The Senator stated it himself and the Chair repeated it. Mr. BAYARD. Will the Chair be kind enough to state what he supposes to be the grounds of my point of order ? The VICE-PRESIDENT. The stenogra pher who took down the Senator s words has gone out of the Chamber. If there be no objec tion, the Senator from Delaware will state his point of order specifically. Mr. HAMLIN. Will the Chair permit an other Senator to state the reasons why this amendment is in order ? The VICE-PRESIDENT. The Chair thinks that would not be in order. Mr. HAMLIN. Then I object. The VICE-PRESIDENT. The Senator from Maine objects. The point of order has been stated. The Secretary will call the roll. The question being taken by yeas and nays, resulted yeas 30, nays 32 ; as follows : YEAS Messrs. Alcorn, Boreman, Caldwell, Car penter, Chandler, Clayton, Conkling, Corbett, Cra- g .n, Ferry of Michigan, Flanagan, Frelinghuysen. ilbert, Hamlin, Hitchcock, Howe, Lewis, MorrilJ of Maine, Morrill of Vermont, Morton, Patterson, Pratt, Kamsey, Sawyer, Scott, Sherman, Stewart, West, Windom, and Wright 30. NAYS Messrs. Ames, Anthony, Bayard, Blair, Casserly, Cole, Cooper, Davis, Edmunds, Fenton, Ferry of Connecticut, Golthwaite, Hamilton of Marylnnd, Hamilton of Texas, Harlan, Hill, John ston, Kelly, Logan, Machen, Norwood, Pool, Rice, Robertson, Saulsbury, Schurz, Sprague, Stevenson, Stockton, Tipton, Trumbull, and Vickers 32. ABSENT Messrs. Brownlow, Buckingham, Cam eron, Nye, Osborn, Pomeroy, Ransom, Spencer, Sumner, Thurman, and Wilson 11. The VICE-PRESIDENT. Upon the ques tion submitted by the Senator from Delaware, whether the Senate shall receive this amend ment under the twenty-second joint rule, the yeas are 30 and the nays are 32. So the Sen ate declines to receive the amendment under the twenty-second joint rule. Mr. CONKLING. As that amendment has been lost on a question of order, I will offer the same idea in another form, not wishing of course to antagonize the view of the Senate. 378 TWENTY-SECOND PRESIDENTIAL TERM. Therefore I move to amend the resolution by inserting after the words " resolved, that " the words " the function of the two Houses in re spect of the count of votes being ministerial and independent of the question of the effect of the vote; " and I will remark, if I am in order, that I have changed the phraseology about counting the votes. As some Senator suggested to me that the amendment which I offered applied to the two Houses counting rather than to witness the count of votes, I now adopt the phraseology " the function of the two Houses in respect of the count of votes being ministerial and independent of the question of the effect of the votes. 1 The VICE-PRESIDENT. The Senator from New York moves an amendment, which he has stated from his seat. Mr. BAYARD. I ask that that amendment be reported by the Clerk. The VICE-PRESIDENT. It will be read. The CHIEF CLEKK. The amendment is to insert after the word " that " in the first line of the resolution, these words : u the function of the two Houses in respect of the count of the votes being ministerial merely, and this question being independent of the question of the effect of the votes." The VICE-PRESIDENT. The question is on agreeing to this amendment. Mr. BAYARD. I raise the point of order that we have just voted upon this amend ment, and therefore it is not in order to offer it again. The VICE-PRESIDENT. The Senator from Delaware makes the point of order that the Senate has just voted upon this amendment. Is that the point ? Mr. BAYARD. I wish it understood also that I raise the same point of order in respect to the present amendment that I did upon the one the Senate has just voted on. The VICE-PRESIDENT. And the Senator from Delaware makes the same point of order against this amendment that he made against the previous amendment. The Chair will sub mit the question to the Senate. The Chair states that in doing this he does it as he be lieves it to be his duty, because it is well known that there has been a wide difference of opinion as to the clause of the Constitution in regard to the counting of the votes. Its language is: "the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted ;" and the question in dispute has been whether they shall be counted by the two Houses, or whether they shall be counted by the presiding officer. The twenty-second joint rule remitted this question distinctly to the two Houses of Con gress, and they thereby expressed their -opin ion that the President of the Senate has simply one duty to perform, to open the certificates. Therefore, these questions arising incidentally, the Chair prefers to submit them to the Senate, and he submits this question also as he did the previous one. The question is, Will the Senate agree to receive the last amendment offered by the Senator from New York ? Mr. CONKLING. As it will take but a moment, I ask that the resolution as it will stand if amended may be read, in order that the Senate may see the difference between the amendment I offered before and the one I now offer. The VICE-PRESIDENT. The resolution will be read as it will stand if the amendment shall be agreed to, the question still being on receiving the amendment under the twenty- second joint rule. The Chief Clerk read as follows : Resolved, That the function of the two Houses in respect of the count of votes being ministerial, and independent of the question of the effect of the vote, the electoral votes of Georgia cast for Horace Gree- ley be counted. The VICE-PRESIDENT. The amendment is that part which comes in before the words * the electoral votes of Georgia cast for Horace Greeley be counted." The question is, Will the Senate receive this as an amendment to the pending resolution, under the twenty-second joint rule ? The VICE-PRESIDENT put the question, and declared that it appeared to be decided in the negative. Mr. CONKLING. I think we had better have the yeas and nays. The yeas and nays were ordered ; and being taken, resulted yeas 28, nays 32 ; as follows : YEAS Messrs. Boreman, Caldwell, Carpenter, Chandler, Clayton, Conkling, Corbett, Cragin, Ferry of Michigan, Flanagan, Frelinghuysen, Gilbert, Hamlin, Hitchcock, Howe, Lewis, Morrill of Maine, Morton, Nye, Patterson, Pratt, Kamsey, Sawyer, Sherman, Stewart, West, Windom, and Wright 28. NAYS Messrs. Alcorn, Anthony, Bayard, Blair, Buckingham, Casserly, Cole, Copper, Davis, Ed munds, Fenton, Ferry of Connecticut, Hamilton of Maryland, Hamilton of Texas, Harlan, Hill, John ston, Kelly, Machen, Norwood, Pool, Eansom, Bice, Robertson, Saulsbury, Schurz, Sprague, Stevenson, Stockton, Tipton, Trumbull, and Vickers v32. ABSENT Messrs. Ames. Brownlow, Cameron, Goldthwaite, Logan, Morrill of Vermont, Osborn, Pomeroy, Scott, Spencer, Sumner, Thurman, and Wilson 13. The VICE-PRESIDENT. On the question will the Senate receive this amendment under the twenty-second joint rule, the yeas are 28 and the nays are 32. The nays have it. The amendment is not received. The question recurs on the resolution as amended, which will be again reported. The Chief Clerk read the resolution, as fol- ows : Resolved, That tlie electoral vote of Georgia cast or Horace Greeley be counted. Mr. CONKLING and Mr. MORTON called for the yeas and nays on the adoption of the resolution. The yeas and nays were ordered ; and being taken, resulted yeas 44, nays 19 ; as follows : ULYSSES S. GRANT, PRESIDENT. 379 YEAS Messrs. Alcorn, Anthony, Bayard, Blair, Carpenter, Casserly, Clayton, Cole, Cooper, Corbett, Cragin, Davis, Fenton, Ferry of Michigan, Flanagan, Frelinghuysen, Goldthwaite, Hamilton of Maryland, Harlan, Hitchcock, Johnston, Kelly, Lewis, Logan, Machen, Morrill of Maine, Norwood, Patterson, Pool, Ransom, Rice, Saulsbury, Schurz, Scott, Sherman, Sprague, Stevenson, Stewart, Stockton, Thurnian, Tipton, Trumbull, Vickers, and Wright 44. NAYS Messrs. Ames, Boreman, Buckingham, Caldwell, Chandler, Conkling, Edmunds, Ferry of Connecticut, Gilbert, Hamilton of Texas, Hamlin, Hill, Howe, Morrill of Vermont, Morton, Nye, Pratt, Ramsey, and West 19. ABSENT Messrs. Brownlow, Cameron, Osborn, Poineroy, Robertson, Sawyer, Spencer, Sumner, Wilson, and Windom 10. The VICE-PRESIDENT. The resolution as amended is agreed to. Mr. TRUMBULL. May I inquire whether that was a concurrent resolution? The VICE-PRESIDENT. There has to be concurrent action of the two Houses. It has been ruled previously that it does not require to be in terras a concurrent resolution ; but it requires the concurrent action of the two Houses affirmatively to count votes which are objected to. Mr. TRUMBULL. Would not that be the proper form ? The VICE-PRESIDENT. The point was discussed, as far as it could be under the rule prohibiting debate, four years ago, and it was decided that such a resolution should not be a concurrent resolution, because the two Houses might differ, and the twenty-second joint rule provided for that difference effecting a certain result. The action of the Senate, however, will be communicated to the House of Repre sentatives. The Secretary will now report the objection made by the Senator from Illinois in the presence of the two Houses. The Secretary read as follows: Mr. TRUMBULL objects to counting the votes cast for President and Vice-President by the electors in the State of Mississippi, for the reason that it does not appear from the certificate of said electors that they voted by ballot. Mr. TRUMBULL. I submit a resolution which The VICE-PRESIDENT. The Chair will first submit the paper that bears on this par ticular question. The Secretary read the following certifi cate : " On this Wednesday, the 4th day of December, at the city of Jackson, in the State of Mississippi, the electors therefor assembled for the purpose of voting for President and Vice-Preaident of the United States, and they accordingly voted, with the following result," etc. Mr. TRUMBULL. I offer a resolution The VICE-PRESIDENT. Now the Sena tor from Illinois moves a resolution, which will be read. The Secretary read the resolution as fol lows: Besolved^ That the electoral vote of the State of Mississippi be counted. Mr. MORTON. I should like to have the objection reported. The VICE-PRESIDENT. The objection will now be reported. Mr. TRUMBULL. It was reported. The SECRETAKT. "Mr. TBUMBULL objects to counting the votes cast for President and Vice- President by the electors in the State of Mis sissippi, for the reason that it does not appear from the certificate of said electors that they voted by ballot." Mr. TRUMBULL. Upon reflection, I think we must count the vote. The VICE-PRESIDENT. The question is on the resolution of the Senator from Illinois. Mr. THURMAN. There were two points reserved as to Mississippi; one made by a member of the House of Representatives. The VICE-PRESIDENT. That is the third objection, which will be considered after this one shall be decided. Mr. THURMAN. Then this resolution ought to be that the vote of Mississippi shall be counted, notwithstanding it does not appear that it was given by ballot, so as to show what point is decided. Mr. MORTON". The other objection I think ought to come first. Mr. CONKLING. I must make a point of order on the Senator from Ohio making such a suggestion. The VICE-PRESIDENT. Will the Senator from Ohio submit his proposition in writing? Mr. THURMAN. The resolution embraces the whole vote of Mississippi. Mr. EDMUNDS. We cannot have debate. The VICE-PRESIDENT. This seems to be in the nature of debate. > Mr. MORTON. I suggest that the resolu tion is out of order, inasmuch as it covers both objections. The objections should be taken separately. Mr. THURMAN". I am perfectly content to vote for the resolution as it is. Mr. HAMLIN. Will the Secretary report the resolution again ? The Secretary read Mr. TEUMBULL S resolu-" tion? Mr. HAMLIN. I move to amend that reso lution by adding at the end thereof the words " in full," which will meet both cases. Mr. EDMUNDS. Say "all the electoral votes." Mr. HAMLIN". I will amend it, at the sug gestion of the Senator from Vermont, so as to read as the decision of the Senate that all the electoral votes of the State of Mississippi be counted. Mr. EDMUNDS. I ask that the law of Mississippi be read by the Secretary on the second point, which will show the Senate how the law seems to be. The VICE-PRESIDENT. If there be no objection, this law will be reported. The Secretary read as follows : " SEC. 382. The electors chosen shall meet at the 380 TWENTY-SECOND PRESIDENTIAL TERM. seat of government of the State on the first Wednes day in December after such election, and shall there give their votes for President and Vice-President of the United States, and make return thereof, agree ably to the laws of the United States ; and should it happen that any elector, so chosen, shall fail to at tend and give his vote, the other electors attending shall appoint some person or persons to fill such vacancy or vacancies, who shall attend and vote as electors ; and such appointments shall be forthwith reported to the Secretary of State." Revised Code of Mississippi, 1871, page 98. Mr. EDMUNDS. We have the Secretary of State s certificate. Mr. TEUMBULL. I accept the amendment to insert the word " all." The VICE-PRESIDENT. The question is on the resolution as modified. Mr. BAYARD. Let it be reported. The Chief Clerk read the resolution as modi fied, as follows : Resolved^ That all the electoral votes of the State of Mississippi he counted. The VICE-PRESIDENT. The Chair will state that he has not submitted to the Senate the third objection made in presence of the two Houses by a Representative from New York [Mr. POTTEE], affecting one of these per sons and his election as a substitute ; but the Chair does not think it will be in the nature of debate to state that in the presence of the two Houses there was a third objection. Mr. TRUMBULL. It seems to me, then, it would be better to have this separate. The Senator from Maine who moved this amend ment has left the Chamber, I believe. The VICE-PRESIDENT. If the Senator from Illinois withdraws his consent to the ac ceptance of the amendment, the Chair will submit it. Mr. TRUMBULL. For the sake of our action going to the House in proper form, I think the questions had better be decided sep arately. I withdraw my acceptance of the amendment. The VICE -PRESIDENT. The question, then, is on the amendment of the Senator from Maine to the resolution of the Senator from Illinois. Mr. ANTHONY. I suggest that the order be reversed, and we take the question first upon the objection raised by the Represent ative from New York [Mr. POTTER], and then take the question upon the objection raised by the Senator from Illinois. Mr. MORTON, and others. That is right. Mr. HAMLIN. I withdraw my amend ment. The VICE-PRESIDENT. The Senator from Maine withdraws his amendment. Does the Senator from Rhode Island persist in his suggestion ? Mr. ANTHONY. I renew my suggestion. The VICE-PRESIDENT. If there be no objection, the Chair reserving the second ob jection made by the Senator from Illinois, will submit the third objection made by a Repre sentative from New York, touching one of these electors. Mr. MORTON. I call for the reading of the objection and the reading of the certifi cate. The VICE-PRESIDENT. The second ob jection will be held in reserve by the unani mous consent of the Senate, and the Secretary will now report the third objection made in the presence of the two Houses by the Repre sentative from New York [Mr. POTTEE], and the paper upon which it bears. The Secretary read as follows : Mr. POTTER objects to the counting of one vote of the State of Mississippi, because the certificate de clares that Spellman was appointed an elector in the stead of A. F. Morgan, absent, by the electoral col lege of thatJState, in accordance with the laws of that State, is not signed by the Governor of the State; and further, that the certificate of the Secre tary of State read does not certify anything of his own knowledge, but only states that he has been so notified, as he certifies. The VICE-PRESIDENT. The Secretary will now read the certificate of the Secretary of State of Mississippi. The Secretary read as follows : STATE OF MISSISSIPPI, EXECUTIVE DEPARTMENT, JACKSON, MISSISSIPPI, December 4, 1872. This is to certify that on the 4th day of December, A. D. 1872, I was notified by the college of electors of the State of Mississippi that, at a meeting there being held by them for the purpose of giving their votes for President and Vice-President of the United States, A. F. Morgan, one of the electors, not being present, they duly appointed J. J. Spellman to fill the said vacancy, the said appointment being made in accordance with section three hundred and eighty- two Eevised Code 1871 of the State of Mississippi. JAMES LYNCH, [L. s.] Secretary of State. Mr. MORTON. I inquire if there is any certificate by the electors themselves of the election of this man to fill the vacancy ? ["No! " "No! "] Mr. HAMLIN. I submit a resolution in these words: Resolved, That all the votes of the electoral college of Mississippi be counted. The VICE-PRESIDENT. The question has been submitted, by unanimous consent of the Senate, in regard to this one elector. Mr. HAMLIN. When we resolve that all be counted, that includes the one elector. The VICE-PRESIDENT. The question being now submitted to the Senate in regard to the appointment of one elector, the Senator from Maine moves a resolution of the Senate to decide that question, that the votes of all the electors shall be counted. The Chair will submit that resolution to the Senate. Mr. HAMLIN. I will change my motion so as to read " resolved, that the vote cast by the elector Spellman," if that is his name, "be counted." The VICE-PRESIDENT. The Senator from Maine moves that the vote cast by this elector shall be counted. Does the Senator ULYSSES S. GRANT, PRESIDENT. 381 desire the statute of the United States to be read? ["No!" "No!"] Mr. EDMUNDS. We are all agreed about that. Mr. TIIURMAN. What became of the resolution offered by the Senator from Illinois [Mr. TRUMBULL] ? The VICE-PRESIDENT. With his consent and the unanimous consent of the Senate, it was reserved until the case of this one elector was disposed of by the decision of the Senate. Mr. TIIURMAN. What motion is now made? The VICE - PRESIDENT. A motion is made by the Senator trom Maine that the vote of this elector shall be counted. Mr. TIIURMAN. I shall vote for it on ac count of the statute. The VICE-PRESIDENT. The question is on the motion of the Senator from Maine. Does any Senator desire it to be specifically reduced to writing? ["Yes."] It will be re ported. The Chief Clerk read the resolution, as follows : Resolved, That the vote cast by James J. Spell- man, one of the electors for the State of Mississippi, be counted. Mr. CARPENTER. I want to make a sug gestion to the Senator from Maine as to the form of that resolution. It seems to me that it would be very singular to say that the vote cast by that man shall be counted. Suppose the votes should have been cast for ten differ ent men, how can we tell who that man voted for? Mr. SHERMAN. They all voted the same way. The VICE-PRESIDENT. The question is on agreeing to the resolution of the Senator from Maine, that the vote of James J. Spell- man shall be counted. The resolution was agreed to. The VICE-PRESIDENT. The question now recurs on the resolution of the Senator from Illinois [Mr. TRUMBULL], that t;he votes of the electors from Mississippi shall be counted. The resolution was agreed to. Mr. SHERMAN. I move that a message be sent to the House of Representatives that the Senate are^ ready to proceed with the count. The motion was agreed to. IN SENATE. Wednesday, February 12, 1873. (" Congressional Globe," pp. 1289-1294.) Mr. SHERMAN. I move that the Senate now proceed to the Hall of the House of Rep resentatives. The motion was agreed to, and (at three o clock and thirty minutes p. M.) the Senate again proceeded to the Hall of the House of Representatives. The Senate returned to its Chamber at four o clock and twenty-four minutes p. M. [L.8.] The VICE-PRESIDENT. The Chair will state to the Senate that the two objections made in the Representative Hall to the count ing of the electoral votes of Texas are now being reduced to writing, and will be sent here in a moment. They will be reported in full when they shall be received. One was in re gard to the absence of the Gqvernor s signa ture, and the other in regard to the right of four electors to elect four others. In the mean time the Secretary will report the sub stantial points, so that they shall be before the Senate. The Secretary will first report the certificate of election of these electors. The Secretary read as follows : DEPARTMENT OF STATE, AUSTIN, December 4, 1872. The following-named persons "having received the highest number of votes cast for electors of Presi dent and Vice-President of the United States, are hereby declared duly elected as such: R. B. Hub- bard, A. T. Rainey, B. II. Epperson, J. J. Good, Thomas Harrison, John Ireland, S. H. Darden, J. M. Maxey. Witness my hand and official seal at office in the FT a i cit 7 ^f Austin, this 4th day of December, LI " s -l A. D. 1872. J. E. OLDRIGHT, Acting Secretary of State. AUSTIN, TEXAS, December 4, 1872. This being the first Wednesday in December, 1872, and the time appointed by law for the meeting of the electors of the various States for the election of President and Vice-Presideut of the United States, We, B. H. Epperson, Thomas Harrison, John J. Good, and S. H. Darden, electors chosen by the State of Texas, have assembled at the Capitol at Aus tin aforesaid for the purpose of casting the vote of the State of Texas. And it appearing now, at two o clock p. M., that the following persons, also chosen by the said State of Texas, are absent, namely : A. T. Eainey, J. M. Maxey, John Ireland, and R. B. Hubbard : Therefore, acting under the authority of the law of Texas, we hereby appoint the following persons as electors of the State of Texas to cast the vote thereof for President and Vice-President of the United States in the place and stead of said absen tees, namely: David Sheeks in place of A. T. Kainey, John A. Green in place of J. M. Maxey, F. W. Moore in place of John Ireland, and C. S. West in place of R. B. Hubbard. To all of which we certify. B. H. EPPERSON, THOMAS HARRISON, JOHN J. GOOD, STEPHEN H. DARDEN. The VICE-PRESIDENT. The first objec tion is against counting the votes in conse quence of the absence of the signature of the Governor. The question before the Senate for its decision is whether the votes shall be counted. Mr. MORTON. I ask for the reading of the third section of the act of Congress of 1792. The VICE-PRESIDENT. If there be no objection, the Secretary will report the third section of the act of 1792, to be found on page 306 of McDonald s Digest. The Chief Clerk read as follows : " SEC. 3. And be it further enacted, That the ex ecutive authority of each State shall cause three lists of the names of the electors of such State to bo 382 TWENTY-SECOND PRESIDENTIAL TERM. made and certified, to be delivered to the electors on or before the said first Wednesday in December, and the said electors shall annex one of the said lists to each of the lists of their votes." Mr. CONKLING. I move that the objection which has just been read be overruled by the Senate, which I believe to be a proper form of resolution. The VICE-PRESIDENT. The Senator from New York moves that the first objection to the counting of the votes of Texas made in the presence of the two Houses be overruled. Mr. TH URMAN. What is that ? The VICE-PRESIDENT. It is the absence of the signature of the Governor ; that the certificate of the election of electors is by the acting Secretary of State with the seal of the State, but does not have to it the signature of the Governor. The objections are being copied in the House, but they have not yet been sent to the Secretary s desk, it appears. Mr. THURMAN. Has the act of Congress been read ? Mr. CONKLING. The third section has been read, which is that in relation to the ex ecutive authority. The VICE-PRESIDENT. The Senator from New York moves that the first objec tion be overruled by the Senate. Mr. TRUMBULL. Is that in writing ? The VICE-PRESIDENT. It is not. Mr. TRUMBULL. I wish to offer an amend ment to it. Mr. CONKLING. The Secretary, I believe, has reduced it to writing. Mr. TRUMBULL. Let it be reported. Mr. CONKLING. It is : Resolved, That the foregoing objection be over ruled. The VICE-PRESIDENT. The Secretary has written it in another form, but he will re duce it to writing in the language of the Sen ator. Mr. MORRILL, of Maine. I suggest to the Senator whether it is not a more correct and proper form to say : Resolved, That the vote be counted, the foregoing objection to the contrary notwithstanding. Mr. CONKLING. I have no objection to that. The Senator from Maine suggests that my resolution read : Resolved, That the vote of the State in question be counted, the foregoing objection to the contrary notwithstanding. I have no objection to that, although my impression is that the simpler way is to sus tain or overrule the objection. The VICE-PRESIDENT. The Chair will state that there is another objection as to the right of four electors to appoint four others, which has not yet been submitted. Mr. CONKLING. I do not include that, because the Chair suggested, when we were here before, the convenience, if not the pro priety, of acting separately on these questions. I humbly conceive that there is nothing what ever in the other objection, and I would em brace it in this resolution if it were convenient to do so ; but for the present I move that the objection be overruled which asserts that be cause the Secretary of State has done this the executive authority of the State has not done it. The VICE-PRESIDENT. The Chair will state this first objection when the two Houses assemble, and the Senator moves that the first objection, as understood now to be read, be overruled. The Secretary has the resolution in writing. Mr. TRUMBULL. Let it be reported. The Chief Clerk read as follows : Resolved, That the electoral vote of the State of Texas be counted, notwithstanding the foregoing objection. Mr. TRUMBULL. I move to strike out all of the resolution after the word " resolved " and insert what I send to the Chair. The VICE-PRESIDENT. The Senator from Illinois offers a substitute for the resolu tion. Mr. TRUMBULL. The question is whether we can overrule a direct act of Congress. If so, you can prove by parol how States vote. Mr. CONKLING. As that is in the nature of debate, I will say that the purpose of my resolution is to assert that the act of Congress has been precisely complied with. Therefore I do not understand that there is any such question here at all. The VICE-PRESIDENT. As Senators have now spoken on both sides, the Chair must en force the rule. He was listening for the mo ment to the Secretary, who has brought him the first objection, the objection made by the Senator from Illinois [Mr. TEUMBULL], which will now be read : The Chief Clerk read as follows : Mr. TKUMBULL objects to the vote of the State of Texas because there is no certificate by the execu tive authority of that State that the persons who voted for President and Vice-President were ap pointed as electors of that State as required by the act of Congress. The VICE-PRESIDENT. The Senator from New York now offers the following resolu tion: Resolved, That the electoral vote of the State of Texas be counted, notwithstanding the foregoing objection. The Senator from Illinois moves to strike out all of the resolution after the word "re solved " and insert a substitute which will be reported. The Chief Clerk read as follows: That no list of the names of the persons assuming to cast the vote of the State of Texas for President and Vice-President having been made, certified, and delivered to said persons, not attached to the list of the votes cast, the vote of said State cannot be received. Mr. THURMAN. I rise merely to suggest that the same course be taken in this case as was in the other case. If the resolution of ULYSSES S. GRANT, PRESIDENT. 383 the Senator from New York be adopted, it in cludes both questions. Let us have the other question acted on first. I think it is due to the Representative from Pennsylvania who made the other objection that we shall take that up first before going into a part and de ciding upon that. The VICE-PRESIDENT. Is there objec tion to submitting the second question first; that is to say, as to the authority of the four electors to appoint the other four ? Mr. CONKLING. I have no objection to it, for one, if the Senator prefers it. Mr. THURMAN. I prefer that. Mr. CONKLING. I have no objection. The VICE-PRESIDENT. Does the Sena tor from Illinois object to the proposition of the Senator from Ohio ? He desires to have the second question taken first. Mr. TRUMBULL. I have no objection. Mr. MORTON. I submit the statute of Texas on the subject and ask to have it read. The VICE-PRESIDENT. The Chair will state what he understands to be the decision of the Senate : that the second objection shall first be considered. The Secretary will report the objection of the Representative from Penn sylvania [Mr. DICKEY]. The Chief Clerk read as follows : Mr. DICKEY objects to the counting of the elec toral vote of the State of Texas, because four elec tors, less than a majority of those elected, under took to fill the places of other four electors who had been elected and were absent. The VICE-PRESIDENT. The Senator from Indiana now desires to have the law of Texas reported without debating it. If there be no objection the Secretary will report it. Mr. CONKLING. Does the Senator want the law reported on this point or on the other ? Mr. MORTON. In reference to this point, I ask the Secretary to read article thirty-six hundred and fifty. The VICE-PRESIDENT. If there be no objection, the law will be reported without debate. The Chief Clerk read as follows : " SEO. 3650. If any person so chosen as elector shall by death or other disabling cause fail to attend by the hour of two o clock in the afternoon of the day pointed out in this act, and vote as hereby required, a majority of the electors present, after having con vened in accordance with the provisions of this act, may appoint some other person to act in the place of the absentee, and shall immediately report their action to the Secretary of State aforesaid." Mr. CONKLING. I suppose nobody will contend, in the face of that statute, that these four had not a right to appoint. Therefore I submit a motion about that also. The VICE-PRESIDENT. The Senator from New York moves that this objection of the Representative from Pennsylvania to the count ing of the electoral votes of Texas, for the reason stated, be overruled, on behalf of the Senate. The motion was agreed to. The VICE-PRESIDENT. The question now recurs on the substitute offered by the Senator from Illinois for the resolution of the Senator from New York. Mr. TRUMBULL. I have modified it slight ly. My amendment now is to strike out all after the word "resolved" in the resolution pending, and insert : That no list of the names of the persons assuming to cast the vote of the State of Texas for President and Vice-President having been made, certified, and delivered to said persons by the executive authority of said State, nor attached to the lists of the votes cast, the vote of said State cannot be received. I ask to have the clause in the Constitution of Texas read, which I believe the Senator from Indiana has, stating what the executive authority of that State is. "Will the Senator from Indiana be good enough to send up to the desk the constitution of Texas, that the clause may be read ? Mr. MORTON. It has just been sent back to the Library ; but it will be here in a mo ment. Mr. TRUMBULL. Is the executive au thority vested in the Governor ? That is the question. The VICE-PRESIDENT. The Secretary will report the resolution of the Senator from New York, and the proposed substitute of the Senator from Illinois as modified. The Chief Clerk proceeded to read the reso lution. A message was received from the House of Representatives, by Mr. McPherson, its Clerk, announcing that the House had passed the fol lowing resolutions : Resolved, That in the judgment of this House the vote of Texas should be counted as reported by the tellers. Resolved, That a quorum is an arbitrary number which each State has a right to establish for itself ; and as it does not appear that the choice of the elec tors is in conflict with the laws of Texas as to a quo rum for the transaction of business, the votes of the electors for President and Vice-President should be counted. Mr. CONKLING. Now, I wish to raise a question of order, not to abridge the privileges of any Senator, but that we may act on a uni form understanding. I raise the point of order that the amendment of the Senator from Il linois, in so far as it argues stating the objec tion made by one Senator, or in so far as it assigns reasons, in the language of the point of order submitted by the Senator from Ver mont, is out of order, the purpose here being simply to determine whether the votes shall or shall not be counted. Of course I refer to that part of the amendment which recites certain alleged facts or arguments. I insist they are foreign to the purpose and out of order. The VICE-PRESIDENT. The proposed sub stitute of the Senator from Illinois was about being reported when the Clerk of the House of Representatives appeared. It will be re ported, and the Chair will entertain the point 384 TWENTY-SECOND PRESIDENTIAL TERM. of order made by the Senator from New York after it shall have been read. The Senator from Illinois moves to strike out the resolu tion after the resolving clause and insert what will be read. The CHIEF CLEKK. The words proposed to be inserted are : That no list of the names of the persons assum ing to cast the vote of the State of Texas for Presi dent and Vice-President having been made, certified, and delivered to said persons by the executive au thority of said State, nor attached to the lists of the votes cast, the vote of said State cannot be counted. The VICE-PRESIDENT. The Senate have twice decided on questions kindred to this Mr. TRUMBULL. I think very different. The VICE-PRESIDENT. The Senator re- girds this as a different question, and the hair will submit it to the Senate, whether they will receive the amendment proposed by the Senator from Illinois as against the point of order raised by the Senator from New York. The question being put on receiving the amendment, Mr. TRUMBULL. I ask for the yeas and nays. The yeas and nays were ordered. The VICE-PRESIDENT. The question is, ""Will the Senate receive this amendment of the Senator from Illinois to the proposition of the Senator from New York as being in order under the twenty-second joint rule?" Mr. CONKLING. Although I have not a right to do it myself, I think it would be con venient if the Chair would be good enough to state to the Senate the foundation of the point of order, as I see that Senators did not attend to it. The VICE-PRESIDENT. The Chair is sometimes so unfortunate as not to be able to quote exactly the language ; but as he under stands it the point of order made by the Sen ator from New York is, that the amendment of the Seriator from Illinois partakes of the nature of argument in stating facts instead of deciding the question. Is that the point? Mr. CONKLING. That is sufficient. The VICE-PRESIDENT. The question is, "Will the Senate receive this amendment? The question being taken by yeas and nays, resulted yeas 31, nays 15 ; as follows: YEAS Messrs. Bayard, Boreman, Carpenter, Clayton, Cooper, Davis, Fenton, Ferry of Michi gan, Flanagan, Frelinghuysen, Goldthwaite, Ham- lin, Hill, Kelly, Machen, Morton, Norwood, Pool, Pratt, Ransom, Rice, Robertson, Schurz, Scott, Stewart, Stockton, Thurman, Tipton, Trumbull, "Windom, and Wright 31. NAYS Messrs. Ames, Anthony, Caldwell, Cas- serly, Cole, Conkling, Edmunds, Ferry of Connect icut, Gilbert, Hamilton of Maryland, Johnston, Nye, Sprasrue, Stevenson, and Vickers 15. ABSENT Messrs. Alcorn, Blair, Brownlow, Buckingham, Cameron, Chandler, Corbett, Cra- gin, Hamilton of Texas, Harlan, Hitchcock, Howe, Lewis, Logan, Morrill of Maine, Morrill of Ver mont, Osborn, Patterson, Pomeroy, Ramsey, Sauls- bury, Sawyer, Sherman, Spencer, Sumner, West, and Wilson 27. The VICE-PRESIDENT. The amendment is received. The question is on agreeing to it as a substitute for the resolution of the Sen ator from New York. Mr. CONKLING called for the yeas and nays ; and they were ordered. Mr. CASSERLY. I should like to have the resolution read. The CHIEF CLEEK. The resolution submit ted by the Senator from New York [Mr. CONK- LING] is as follows : Resolved, That the electoral vote of the State of Texas be counted, notwithstanding the foregoing objection. The amendment of the Senator from Illinois [Mr. TRUMBULL] is to strike out all after the word "resolved" and to insert the following: That no list of the names of persons assuming to cast the vote of the State of Texas for President and Vice-President having been made, certified, and de livered to said persons by the executive authority of said State, nor attached to the lists of the votes cast, the vote of said State cannot be counted. Mr. THURMAN. I think it is proper that the Senate should hear the provisions of the constitution of Texas in regard to the execu tive authority and the seal of the State. The first section of article four reads as follows : " The executive department of the State shall consist of a chief magistrate, who shall be styled the Governor, a Lieutenant-Gpvernor, Secretary of State, comptroller of the public accounts, treasurer, commissioner of the general land-office, attorney- general, and superintendent of public instruction." The eighteenth section of the same article provides as follows : " There shall be a seal of the State, which shall be kept by the Governor and used by him officially. The seal shall be a star of five points, encircled by an olive and live-oak branches, and the words, The State of Texas. " Mr. CONKLING. Now I want to inquire as a matter of fact, either with or without the reading of the certificate, does the seal appear here and also the signature of the Secretary of State ? The VICE-PRESIDENT. The seal does appear here with the signature of the Secre tary of State of Texas with the heading "De partment of State, Austin." Mr. BAYARD. I desire to know, and ask the Secretary to report, whether the great seal of the State of Texas is appended to the cer tificate ? The VICE-PRESIDENT. It is. The Sec retary can answer if the Senator from Dela ware prefers. Mr. SHERMAN. It is not certain that this seal is the great seal of the State. It is the seal of the Department of State, apparently. Mr. BAYARD. What department ? Mr. SHERMAN. The Department of State of the State of Texas. It has a lone star and the words "Department of State." ULYSSES S. GRANT, PRESIDENT. 385 Mr. JOHNSTON. I ask for the reading of the seal by the Secretary. The VICE-PRESIDENT. The Secretary will report as far as possible, so as to convey to the Senate the superscription on the seal Perhaps the Secretary had better read the whole certificate. The CHIEF CLERK. The certificate reads : ,- -, DEPARTMENT OF STATE, AUSTIN, December 4, 1872. The following-named persons having received the highest number of votes cast for electors for Presi dent and Vice-President of the United States, are hereby declared duly elected as such. Then follow the names of the electors. Witness my hand and official seal at office in the r -i city of Austin this 4th day of December, A. D. l 1 " 9 - 1 1872. J. E. 6LDSIGHT, Acting Secretary of State. To this paper is attached, at the left-hand corner on the top of the page, what purports to be the seal of the State of Texas. Mr. CONKLING. I ask the Secretary to state whether the seal contains the coat of arms of the State, namely, the lone star, and " Texas " printed upon that star. The CHIEF CLERK. It does. Mr. THURMAN. That is a msre print. Mr. CONKLING. It is the great seal of the State, however, as the Senator from that State will say. The VICE-PRESIDENT. The Secretary has now communicated to the Senate the con tents of the seal on top of the page, which is a printed seal. The seal at the bottom of the page is a seal impressed. The Secretary will read the printed seal as far as he can. Mr. FLANAGAN. I have no doubt about that being the seal of the State of Texas. The VICE-PRESIDENT. The Secretary will describe the printed seal at the head of the page. The CHIEF CLERK. The seal consists of a lone star surrounded by concentric circles, and a wreath in the inner one, with the words " The State of Texas 1836, 1845, 1870," printed within the two outer circles. The VICE-PRESIDENT. The Secretary will now describe the seal below, which is im pressed by a press. The CHIEF CLERK. The seal which is stamped appears to be the seal of the office of the Department of State, the certificate being signed by J 4 J. E. Oldright, acting secretary." This seal is a lone star with two concentric circles, and between those circles on the out side is printed " Department of State." The VICE-PRESIDENT. The question now is on the amendment of the Senator from Illi nois as a substitute for the resolution of the Senator from New York, upon which the yeas and nays have been ordered. The question being taken by yeas and nays, resulted yeas 24, nays 34; as follows: YEAS Messrs. Boreman, Carpenter, Clayton Cooper, Corbett, Davis, Edmunds, Fenton, Gold- thwaiw. Hamlin, Harlan, Hill, Kelly, Morton, Nye, Ramsey, Robertson, Sawyer, Schurz, Scott, Thur- man, Trumbull, West, and VVindom 2-1-. NAYS Messrs. Alcorn, Ames, Bayard, Bucking ham, Caldwell, Casserly, Chandler, Cole, Conkling, Cragin, Ferry of Connecticut, Ferry of Michigan, Flanagan, Frelinghuysen, Gilbert, Hamilton of Maryland, Johnston, Logan, Machen, Morrill of Vermont, Norwood, Patterson, Pratt, Ransom, Rice, Saulsbury, Sherman, Sprague, Stevenson, Stewart, Stockton, Tipton, Vickers, and Wright 34. ABSENT Messrs. Anthony, Blair, Brownlow, Cameron, Hamilton of Texas, Hitchcock, Howe, Lewis, Morrill of Maine, Osborn, Pomeroy, Pool, Spencer, Sumner, and Wilson 15. So the amendment was rejected. The VICE-PRESIDENT. The question re curs on the resolution of the Senator from New York. The resolution was agreed to yeas 29, nays not counted. Mr. SHERMAN. I move that a message be sent to the House stating that the Senate are ready to return. The VICE-PRESIDENT. The Chair was informed informally by the Clerk that they were waiting. Mr. SHERMAN. Then I move that we re turn at once. The motion was agreed to ; and (at five o clock and five minutes p. M.) the Senate again proceeded to the Hall of the House of Representatives. The Senate returned to its Chamber at six o clock and twenty minutes p. M. The VICE-PRESIDENT. In the meeting of the two Houses objections were made to the reception of the votes from Arkansas, and also numerous objections to receiving the votes of Louisiana, there being two sets of returns, objections lying to each one of these returns, and also to any returns being counted. The objections have not yet been copied, as they are somewhat voluminous. The twenty-second joint rule states as follows : "Such joint meeting shall not be dissolved until the electoral votes are all counted and the result declared ; and no recess shall be taken unless a question shall have arisen in regard to counting any of such votes, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess, not ba- yond the next day at the hour of one o clock p. M." The first question is the objection to the reception of the electoral votes from Arkan sas, made by the Senator from Arkansas [Mr. RICE]. Mr. THURMAN. I move that the Senate take a recess until half-past ten o clock to-mor row morning. Mr. EDMUNDS, and others. Oh, no; let: us finish this matter. The VICE-PRESIDENT. Under this rule it is "competent for either House, acting sep arately, in the manner hereinbefore provided, :o direct a recess, not beyond the next day at the hour of one o clock p. M." The question s on the motion of the Senator from Ohio. ^ The question being put, there were, on a division yeas 23, nays 20. 386 TWENTY-SECOND PRESIDENTIAL TERM. Mr. EDMUNDS. I ask for the yeas and nays. The yeas and nays were ordered ; and being taken, resulted yeas 23, nays 31 ; as follows : YEAS Messrs. Ames, Bayard, Casserly, Cooper, Fenton, Gilbert, Hamilton of Maryland, Hill, John ston, Kelly, Machen, Norwood, Ransom, Rice, Sauls- bury, Schurz, Sprague, Stevenson, Stockton, Thur- man, Tipton, Trumbull, and Vickers 23. NAYS Messrs. Anthony, Boreman, Buckingham, Caldwell, Carpenter, Chandler, Clayton, Cole, Conk- ling, Corbett, Cragin, Edmunds, Ferry of Connecti cut, Ferry of Michigan, Flanagan, Frelinghuysen, Hamlin, Harlan, Howe, Logan, Morrill of Maine, M on-ill of Vermont, Morton, Nye, Pool, Ramsey, Robertson, Scott, Shermaa, Stewart, and West 31. ABSENT Messrs. Alcorn, Blair, Brownlow, Cam eron., Davis, Qoldthwaite, Hamilton of Texas, Hitch cock, Lewis, Osborn, Patterson, Pomeroy, Pratt, Sawyer, Spencer, Sumner, Wilson, Wiudom, and Wright 19. So the motion was not agreed to. The VICE-PRESIDENT. The Chair was ahout to submit the objection of the Senator from Arkansas [Mr. RICE]. It is being copied in the Representative Hall, but the Senator from Arkansas has sent up the rough draft from which he made the objection, which he states is the same, with perhaps some mere verbal differences, but substantially all the points are embraced in it. It will be read by the Secretary. The Secretary read as follows : Mr. RICE objects to the counting of the votes of the State of Arkansas. First, because the official returns of the election in said State, made according to the laws of said State, show that the persons certified by the Secretary of State as elected were not elected as electors for President and Vice-President at the election held on the 5th day of November, 1872. Second, because the returns read by the tellers are not certified according to law. Mr. MORTON. I offer the following reso lution : Resolved, That the electoral vote of Arkansas should be counted. Mr. EDMUNDS. I ask to have the papers upon which the question arises read. Mr. MORTON. The papers do not show anything about it. Mr. EDMUNDS. I want to see whether they do or not. Mr. RICE. Is a resolution in order ? The VICE-PRESIDENT. A resolution will be in order as an amendment to the resolution of the Senator from Indiana. Mr. RICE. I offer the amendment which I send to the desk. The VICE-PRESIDENT. The Senator from Arkansas moves an amendment, which will be read, and then the Senator from Vermont de sires to have the papers read. The CHIEF CLEEK. The amendment is to strike out all of the resolution after the word " resolved," and to insert : That the Senate bring before it the officers and Eersons having in their possession the returns of the ite election in the State of Arkansas relating to the election of electors of President and Vice-President far that State, together with all such returns. Mr. CONKLING-. Is that a resolution ? The VICE-PRESIDENT. The Senator from Arkansas proposes this as a substitute for the resolution of the Senator from Indiana. Mr. CONKLING-. I raise the point of order upon it that was made in other cases. The VICE-PRESIDENT. The Senator from New York raises the question of order that the duty of the Senate is to decide the question as to whether the votes shall or shall not be counted. If the Senator from Arkansas insists on his amendment, the Chair will submit the question to the Senate. Mr. RICE. I do insist upon it. The VICE-PRESIDENT. The Senator from Arkansas insists upon it, and the question is, whether the Senate will receive it, under the twenty-second joint rule, as an amendment to the resolution of the Senator from Indiana. The question being taken, it was decided in the negative. The VICE-PRESIDENT. The question re curs on the resolution of the Senator from Indiana, and the Secretary will now report the papers, as the Senator from Vermont has desired. The Chief Clerk read as follows : STATE OF ARKANSAS, LITTLE ROCK, ARKANSAS, December 4, 1872. We, the undersigned, electors elected, as shown by the accompanying certificate, at the general election held in the State of Arkansas, November 5, 1872, for a President and Vice-President of the United States for the term commencing March 4, 1873, met in the city of Little Rock, State aforesaid, on Wednesday, the 4th day of December, 1872, and proceeded to vote bv ballot, with the following result : D. S. Griffin, W. H. Granger, Thomas H. Barnes, W. H. Howes, Arthur Hemingway, and L. G. Wheeler, each cast one vote for Ulysses S. Grant for President of the United States for the term aforesaid : and D. S. Grif fin, W. H. Granger, Thomas H. Barnes, W. H. Howes, Arthur Hemingway, and L. G. Wheeler, each cast one vote for Henry Wilson for Vice-President of the United States for the term aforesaid, making six votes cast by said electors for each of the respective candi dates above named. D. S. GRIFFIN, W. H. GRANGER, THOMAS H. BARNES, ARTHUR HEMINGWAY. W. H. HOWES, L. G. WHEELER. STATE OF ARKANSAS, STATE DEPARTMENT, LITTLE ROCK, ARKANSAS, December 4, 1872. I, J. M. Johnson, Secretary of State of Arkansas, certify that the following is the true and correct list of electors in and for the State of Arkansas, to vote for President and Vice-President of the United States for the term commencing March 4, 1873, who were elected at the general election held in pursuance of the law. in this State, Novembers, 1872, namely: D. S. Grifiin, W. H. Granger, Thomas Barnes, W. H. Howes, Arthur Hemingway, and L. G. Wheeler. [L. s.] J. M. JOHNSON, Secretary of State. Mr. MORTON. I ask if there is no certifi cate therefrom the Governor? ULYSSES S. GRANT, PRESIDENT. 387 Several SENATORS. No. Mr. MORTON". I then ask leave to with draw ray resolution. Mr. EDMUNDS. I should like to have the seal read. It does not purport to be the seal of the State, but the seal of the secretary. The VICE-PRESIDENT. The Senator from Indiana withdraws his resolution. Mr. SHERMAN. I renew it. Mr. EDMUNDS. Let it be read, and then I will move to amend it. Mr. SHERMAN. The resolution? Mr. EDMUNDS. Yes, sir. The Chief Clerk read as follows : Resolved,, That the electoral vote of Arkansas should be counted. Mr. EDMUNDS. I move to amend that by inserting after the word "should" the word " not." I ask now that the Secretary may report to the Senate the seal which attests this action of the Secretary of State of Arkansas. The VICE-PRESIDENT. The Secretary will, as far as possible, communicate to the Senate what is the impression of this seal. The CHIEF CLEKK. The seal is composed of a field, the figures of which I cannot very well describe, with two concentric circles, between which are the words "Seal of the Secretary of State, Arkansas." Mr. EDMUNDS. It is not the State seal at all. The VICE-PRESIDENT. The Chair will state that he has received from the House of Representatives a copy of the protest made by the Senator from Arkansas [Mr. RICE], which is exactly like the rough copy which he sent us, and will therefore be substituted on the Journal for it. The question is on the amendment of the Senator from Vermont, to insert the word " not " in the resolution of the Senator from Ohio. Mr. RICE. I ask to have the constitution of the State of Arkansas in regard to the seal of the State read, and also in regard to the cer tificate required to the electoral vote. Mr. ANTHONY. I submit whether that is not debate. The VICE-PRESIDENT. The Senator from Rhode Island objects. The Chair has stated heretofore that laws, etc., could be read only by unanimous consent. The rule is imperative against debate. No protest has heretofore been made against reading laws. When the point is made by the Senator from Rhode Isl and, the Chair must rule that it is not in ac cordance with the twenty-second joint rule. [" Question ! " " Question ! "] The question is on the amendment of the Senator from Ver mont, to insert the word " not ; " so as to make the resolution read that the vote of Ar kansas shall not be counted. Mr. EDMUNDS. I will ask again that the full inscription of the seal, or what purports to be the seal, should be read. I believe the Secretary by accident did not read all the words. I believe it appears distinctly to be the seal of the secretary, and not the seal of the State. The VICE-PRESIDENT. The Secretary will report it. The CHIEF CLERK. The words of "Seal of the Secretary of State, Arkansas." Mr. EDMUNDS. That is it. Mr. CONKLINGK May I inquire whether the coat of arms of Arkansas is not there, after the impress of the seal ? Mr. EDMUNDS. Who can answer that question ? Mr. CONKLING. Certainly the Senators from the State know whether it is or not. Mr. HAMILTON, of Maryland. I ask the Senator from Arkansas Mr. TRUMBULL. I object to this debate. If the statute cannot be read, certainly Sen ators should not be allowed to indulge in debate. The VICE-PRESIDENT. The Senator from Illinois insists on the enforcement of the rule. The Chair has ruled that this is in the nature of debate. The Secretary has read the official paper from Arkansas, and attempted to describe the seal Mr. CONKLING-. I beg pardon of the Chair if I interrupt him. The VICE-PRESIDENT. Not at all. Mr. CONKLING. My purpose is to ask unanimous consent that we may hear the statute read, if there be a statute bearing on the subject The VICE-PRESIDENT. The Senator from Rhode Island objected. Mr. ANTHONY. I withdraw the objec tion; but I ask the Chair if the Senate, by unanimous consent, can dispense with a joint rule of the two Houses of Congress ? I make no objection, however. The VICE-PRESIDENT. The Senate by unanimous consent cannot dispense with a joint rule; and if there is no protest against a statute being read, that not being language spoken by any Senator, the Chair himself would not check the reading of that statute ; but he would if any Senator commented on it, which would be in the nature of debate. The Chair does not know where the statute is; but if no Senator objects the statute will be reported. [A pause.] It does not appear to be in the Chamber. Mr. RICE. I have sent for the statute. Mr. CLAYTON. Will it be in order to have this seal compared with the seal of the State named, on file in the archives of the Senate ? The VICE-PRESIDENT. The Chair thinks not. Mr. STEWART. It could be compared with the credentials of Senators. The VICE-PRESIDENT. The Chair thinks the presentation of documents in the Depart ment of State, or in the Secretary s office of the Senate, would be in the nature of debate. Mr. HOWE. By the unanimous consent of 388 TWENTY-SECOND PRESIDENTIAL TERM. the Senate I suppose that comparison might he made. The VICE-PRESIDENT. The Chair has stated, in regard to official documents, that he would not himself arrest them as in the nature of debate. Mr. HOWE. So that if there he no objec tion this comparison may be made. Mr. BOREMAN. I should like to have the paper read. The VICE-PRESIDENT. The Chair does not know where the paper is that is sought to be compared with the seal on this certificate. Mr. CLAYTON. It can be compared with the seal on the credentials of the Senator-elect lately presented. The VICE-PRESIDENT. The question re curs on the amendment of the Senator from Vermont, to insert the word "not." Mr. CLAYTON. I only want to say that that is the seal of the State. The VICE-PRESIDENT. That is debate. The question is on the amendment of the Sen ator from Vermont, to insert the word " not." Mr. RICE. I ask for the yeas and nays. The yeas and nays were ordered. Mr. RAMSEY. May I presume to ask the Senator from Arkansas whether this is the great seal- Mr. TRUMBULL and others. I object. The VICE-PRESIDENT. The question is in the nature of debate, and is objected to by several Senators. The question being taken on the amendment of Mr. EDMUNDS by yeas and nays, resulted yeas 28, nays 25 ; as follows : YEAS Messrs. Bayard, Boreman, Carpenter, Cas- serly, Cooper, Edmunds, Fenton, Ferry of Michi gan, Hamilton of Maryland, Hamlin, "Hill, John ston, Kelly, Machen, Morrill of Maine, Norwood, Ransom, Rice, Robertson, Saulsbury, Sehurz, Scott, Stevenson, Stockton, Thurman, Tipton, Trumbull, and Vickers 28. NAYS Messrs. Ames, Anthony, Caldwell, Chandler, Clayton, Cole, Conklin<r, Corbett, Cragin, Ferry of Connecticut, Flanagan, Frelinghuysen, Gil bert, Harlan, Hitchcock, Howe, Logan, Morrill of Vermont, Nye. Pool, Ramsey, Sherman, Sprague, Stewart, and West 25. ABSENT Messrs. Alcorn, Blair, Brownlow, Buckingham, Cameron, Davis, Goldthwaite, Hamil ton of Texas, Lewis, Morton, Osborn, Patterson, Pomeroy, Pratt, Sawyer, Spencer, Sumner, Wilson, Windom, and Wright 20. So the amendment was agreed to. The VICE-PRESIDENT. The question re curs upon agreeing to the resolution as amended, that the vote of Arkansas shall not be counted. Mr. STEWART called for the yeas and nays, and they were ordered ; and being taken, re sulted yeas 28, nays 24 ; as follows : YEAS Messrs. Bayard, Boreman, Carpenter, Casserly, Cooper, Edmunds, Fenton, Ferry of Michi gan. Hamilton of Maryland, Hamlin, Hill, Johnston, Kelly, Machen, Morrill of Maine, Norwood, Ransom, Rice, Robertson, Saulsbury, Schurz, Scott, Steven son, Stockton, Thurman, Tipton, Trumbull, and Vickers-28. NAYS Messrs. Ames, Caldwell, Chandler, Clay ton, Cole, Conkling, Coroett, Cragin, Ferry of Con necticut, Flanagan, Frelinghuysen, Gilbert, Harlan, Hitchcock, Howe, Logan, Morrill of Vermont, Nye, Pool, Ramsey, Sherman, Sprague, Stewart, and West 24. ABSENT Messrs. Alcorn, Anthony, Blair, Brownlow, Buckingham, Cameron, Davis, Gold thwaite, Hamilton of Texas, Lewis, Morton, Osborn, Patterson, Pomeroy, Pratt, Sawyer, Spencer, Sum ner, Wilson, Windom, and Wright 21. So the resolution was agreed to. The VICE-PRESIDENT. There were seven objections submitted in the Representative Hall by Senators and Representatives against count ing the votes from Louisiana. The Chair thinks he has them in the order in which the object ors were recognized by the Chair: first, the Senator from Louisiana [Mr. WEST]; second, the Representative from Louisiana [Mr. SHEL DON] ; third, the Senator from Wisconsin [Mr. CARPENTER] ; fourth, the Representative from New York [Mr. POTTER] ; fifth, the Represent ative from Ohio [Mr. STEVENSON]; sixth, the Senator from Illinois [Mr. TRUMBULL] ; and seventh, the Senator from West Virginia [Mr. BOREMAN]. Mr. CARPENTER. I ask leave to offer the following resolution : Resolved, That the electoral vote of the State of Louisiana be not counted. Mr. FRELINGHUYSEN. Mr. President, they The VICE-PRESIDENT. The Senator from New Jersey. The Chair must first submit these papers. Mr. FRELINGHUYSEN. They have all been read. The VICE-PRESIDENT. They will be con sidered as read, if there be no objection. Mr. FRELINGHUYSEN. I offer a substi tute, which the Senator from Wisconsin will probably accept. The VICE-PRESIDENT. The Senator from Wisconsin moves the resolution just reported, and the Senator from New Jersey moves to amend it. The amendment will be read. The Chief Clerk read as follows : Resolved, That all the objections presented having been considered, no electoral vote purporting to be that of the State of Louisiana be counted. Mr. CARPENTER. I accept that amend ment. The VICE-PRESIDENT. The Senator from Wisconsin accepts the amendment ; and the question is on agreeing to the resolution as modified. Mr. TRUMBULL. I offer a substitute, which I send to the desk. The Chief Clerk read as follows : Whereas the Constitution of the United States de clares that u each State shall appoint, in such man ner as the Legislature thereof may direct," the num ber of electors of President and Vice-President to which such State may be entitled ; and whereas an election for electors was held in the State of Louisi ana on the 4th day of November, 1872, in pursuance of the Constitution nnd laws of the United States and of the State of Louisiana; and whereas the ULYSSES S. GRANT, PRESIDENT. 389 official returns of said election were transmitted to the Governor of the State as required by the laws thereof, and by him opened and laid before a re turning board, of which the Governor was ex offido a member, to be convassed by said board in pursu ance of the laws of said State ; and whereas before the canvass of said returns was completed said re turning board was enjoined and restrained from further proceeding by an order of E. H, Durell, United States judge for the district of Louisiana; and whereas the official returns so received and opened by the Governor were tabulated by the assist ant secretary of said returning board, and are now in the possession of the Senate, from which it ap pears that T. C. Manning, 0. A. Weed, Andrew S. Ilerron, Hugh J. Campbell, Louis Bush, Allen Thomas, L. V. and J. C. Moncure received a ma jority of votes cast for electors at said election ; and whereas said Governor caused lists of the names of said electors to be made, certified and delivered as required by the act of Congress of March 1, 1792 Mr. WEST. I raise the point of order on .the reading of that preamble, that it is in the nature of argument. Mr. TRUMBULL. Let it all be read first, Mr. COCKLING. It need not be read, necessarily. Mr. WEST. The same point of order was taken against the Senator from New York. The VICE-PRESIDENT. The proposition has not been read. Mr. WEST. Enough of it has been read for ray satisfaction. The VICE-PRESIDENT. That may be; but the Chair thinks it is the right of a Sena tor to submit a paper Mr. CONKLING. I beg leave to ask a question of the Chair. Where a paper has been so far read as to show that it is out of order, is it the right of any Senator to have the whole of it read ? The point of the Sena tor from Louisiana is that this is out of order by reason of what has been read. If he is in the right about that, I submit there is no reason why it should be read through. Mr. CARPENTER. If that be not so, the rule can be evaded by presenting an argument in the form of a proposition, and then with drawing it after it has been fully read. Mr. TRUMBULL. I object to these speeches. The VICE-PRESIDENT. The Senator from Illinois objects to debate. The paper offered by the Senator from Illinois as an amendment having been read as far as the Secretary had progressed with it, the Senator from Louisiana makes the point of order that sufficient has been read to disclose the fact that it is not in order under the twenty-second joint rule. The Chair submits that question to the Senate. Mr. TRUMBULL. Cannot the Senate hear it read before deciding upon it ? It is nearly through. Me. SHERMAN. You might as well send up the Congressional Globe. The VICE-PRESIDENT; it is a question to be decided by the Senate, as the Chair has stated. Is the Senate ready for the question ? Mr. TRUMBULL. What is the question? Whether my Vnendment shall be read ? The VICE-PRESIDENT. The question is, whether the Senate will receive this as an amendment. Mr. TRUMBULL. Without having it read ? The VICE-PRESIDENT. As far as it has been read, it having been sufficiently disclosed by the reading that it is not in order under the twenty-second joint rule. That is the point made. Mr. TRUMBULL. The Chair will bear wit ness thet the amendment of the Senator from New York was read once or twice before we voted on it. Mr. CONKLING. Not after the point of order ? Mr. STEVENSON. Is it not the right of a Senator to have a paper read? How can we vote knowingly without having it read? The VICE-PRESIDENT. Each Senator votes on the part which has been read. The Senator from Louisiana makes the point of order that that discloses the fact that this proposition is not in order under the twenty- second joint rule ; and if there is any doubt about it Senators will vote in the negative so that it shall be read through. Mr. STEVENSON. I submit to the Presid ing Officer of the Senate whether a Senator has not the privilege of having every paper read for information that he is called upon to vote on. The VICE-PRESIDENT. Not always. If a motion to adjourn was made, a Senator would not have a right to have a paper read pending that motion. Mr. STEVENSON. Can the Clerk be in terrupted in the middle of the reading of a paper? The VICE-PRESIDENT. The Chair thinks he can. For instance, if pending the resolution of the Senator from New Jersey, now before the body, some Senator should move an appro priation bill as an amendment to it, the Chair would think its reading could be interrupted, as not being in order. But the Chair desired the paper to be read ; his preference was that it should be read, but the Senator from Louisi ana made the point. Mr. WEST. And I now renew it. The VICE-PRESIDENT. That point of order is before the Senate, and they are about to decide it. Mr. CONKLING (to Mr. WEST). Let us vote ; that is all you want. The VICE-PRESIDENT. Senators, you who are in favor of considering the amendment, as far as read, In order, under the twenty-sec ond joint rule, will say ay; those opposed will say no. Mr. STEVENSON. I ask for the yeas and nays. This is an important question; it ap plies not to-day alone, but all time. The yeas and nays were ordered; and being taken, resulted yeas 21, nays 20 ; as follows : YEAS Messrs. Bayard, Carpenter, Casserly. Cooper, Fenton, Hamilton of Maryland, Hamlin. 390 TWEXTY-SECOND PRESIDENTIAL TERM. Hill, Johnson, Kelly, Machen, Norwood, Ransom, Rice, Saulsbury, Stevenson, Stockton, Thurman, Tipton, Trumbull, and Vickers 21. NAKS Messrs. Ames, Anthony, Boreman, Cald- well, Chandler, Clayton, Cole, Conkling, Corbett, Cragin, Edmunds, Ferry of Connecticut, Ferry of Michigan, Flanagan, Frelinghuysen, Gilbert, Har- lan, Howe, Logan, Morrill of Maine, Morrill of Ver mont, Nye, Pool, Ramsey, Sawyer, Sherman, Sprague, Stewart, and West 29. ABSENT Messrs. Alcorn, Blair, Brownlow, Buckingham, Cameron, Davis, Goldthwaithe, Ham ilton of Texas, Hitchcock, Lewis, Morton, Osborn, Patterson, Pomeroy. Pratt, Robertson, Schurz. Scott, Spencer, Sumner, Wilson, Windom, and Wright 23. The VICE-PRESIDENT. The Senate re fuses to receive the amendment, so far as read, as in order. Mr. TRUMBULL. I offer the rest of the paper which I sent up to the Chair as an amendment to the resolution pending. [Laugh ter.] The VICE-PRESIDENT. The Senator from Illinois offers the remaining part of the paper. The Secretary will report it. The Chief Clerk read as follows : Resolved, That the votes of the electors declared to have been elected as aforesaid by the Governor of the State of Louisiana are entitled to be counted. Mr. TRUMBULL. I inquire if the Secre tary had read all but that ? The VICE-PRESIDENT. He had. Mr. TRUMBULL. All hut that? [Laugh ter.] The VICE-PRESIDENT. He had. The question is on the amendment of the Senator from Illinois. Mr. EDMUNDS. I should like to hear the original resolution reported. The VICE-PRESIDENT. The original reso lution will be read. The Chief Clerk read as follows : Resolved, That all the objections having been con sidered, no electoral vote purporting to be that of the State of Louisiana be counted. The Chief Clerk also read the amendment of Mr. TKUMBTJLL. Mr. FLANAGAN. I rise to a point of order, sir. The point is this : there was only one resolution in that paper, and we have voted upon that. The VICE-PRESIDENT. The Senator is mistaken. The reading of the preamble, which was quite lengthy, had just been completed, and the Secretary had reached the resolution but had not read it, when the Senator from Louisiana made a point on what had been read, and the Senate ruled that out; but the resolution itself was not rulecl out; and the question now is on agreeing to the amendment of the Senator from Illinois to the resolution of the Senator from "Wisconsin. Mr. TRUMBULL. I ask for the yeas and nays. It is an important question whether a return in all respects in conformity with law shall be received. Mr. EDMUNDS. That is debate. The yeas and nays were ordered ; and being taken, resulted yeas 20, nays 35 ; as follows : YEAS Messrs. Bayard, Casserly, Cooper, Fen- ton, Ferry of Connecticut, Hamilton of Maryland, Johnston, Kelly, Machen, Ransom, Rice, Saulsbury, Schurz, Sprague, Stevenson, Stockton, Thurman, Tipton, Trumbull, and Vickers 20. NAYS Messrs. Ames, Anthony, Boreman Cald- well, Carpenter, Chandler, Clayton, Cole, Conkling, Corbett, Cragin, Edmunds, Ferry of Michigan, Flanagan, Frelinghuysen, Gilbert, Hamlin, Harlan, Hill, Hitchcock, Howe, Logan, Morrill of Maine, Morrill of Vermont, Morton, Norwood, Nye, Pool, Ramsey, Robertson, Sawyer, Scott, Sherman, Stewart, and West 35. ABSENT Messrs. Alcorn, Blair, Brownlow, Buckingham, Cameron, Davis, Goldthwaite, Ham ilton of Texas, Lewis, Osborn, Patterson, Pomeroy, Pratt, Spencer, Sumner, Wilson, Windom, and Wright 18. So the amendment was rejected. The VICE-PRESIDENT. The question recurs on the resolution of the Senator from Wisconsin [Mr. CAEPENTEB]. Mr. THURMAN. I call for the yeas and nays on that. The yeas and nays were ordered ; and being taken, resulted yeas S3, nays 16; as fol lows: YEAS Messrs. Ames, Anthony, Boreman, Cald- well, Carpenter, Chandler, Cole, Conkling, Corbett, Edmunds, Ferry of Michigan, Flanagan, Freling huysen, Gilbert, Hamlin, Harlan, Hill, Hitchcock, Howe, Logan, Morrill of Maine, Morrill of Vermont, Morton, Norwood, Nye, Pool, Ramsey, Robertson, Sawyer, Scott, Sherman, Stewart, and West 33. NAYS Messrs. Bayard, Casserly, Cooper, Ferry of Connecticut, Hamilton of Maryland, Johnston, Kelly, Machen, Ransom, Saulsbury, Sprague, Ste venson, Stockton, Thurman, Tipton, and Vickers ABSENT Messrs. Alcorn, Blair, Brownlow, Buckingham, Cameron, Clayton, Cragin, Davis, Fenton, Goldthwaite, Hamilton of Texas, Lewis, Osborn, Patterson, Pomeroy, Pratt, Rice, Schurz, Spencer, Sumner, Trumbull, Wilson, Windom, and Wright 24. The VICE-PRESIDENT. The resolution is agreed to ; and the Secretary will^t once com municate to the House of Representatives this action of the Senate. Mr. MORTON. Now that the vote is tak en, would it be in order to make a remark ? [" No."] The VICE-PRESIDENT. The Chair thinks that until the point of order raised by the Senator from Vermont [Mr. EDMUNDS] is de cided, which has been submitted to the Sen ate, it would not be in order to take up any proposition or indulge in debate. The Sen ator from Vermont has made the point of order that until the joint convention dissolves no business except that relative to the count ing of the electoral votes can be entertained under the twenty-second joint rule and tho Constitution. That was about to be submitted to the Senate, but at that time the Senate went to the House of Representatives. Mr. MORTON. I simply desire to call the attention of the Senate to the fact that the Senate has voted to exclude the " lectoral vote rLYSSES S. GRANT, PRESIDENT. 391 of Arkansas because of the want of the cer tificate- Mr. EDMUNDS. I object to debate. If there is to be speech-making here, I wish to make a speech myself. The VICE-PRESIDENT. Until the point of order is decided by the Senate whether any other proposition can be taken up, nothing can be debated or proposed even. Mr. MORTON. I was not proposing to make a spe-ech or to debate anything. The VICE-PRESIDENT. But the joint con vention is still in session. Mr. MORTON. I was disposed to make a remark in lieu of making a question of order. The VICE-PRESIDENT. If it is a question of order the Chair will hear the Senator. Mr. MORTON. I shall have to make the remark to state the question. [Laughter.] The VICE-PRESIDENT. A point of order is not debate, because the Senator from Indi ana can take any Senator off his feet with a legitimate point of order. That he has the right to do at any time. Mr. CLAYTON. I want to make a personal explanation in relation to what transpired rela tive to the vote of Arkansas. Mr. EDMUNDS. I object to that, Mr. Presi dent. The VICE-PRESIDENT. The Senator from Vermont objects. Mr. CLAYTON. I should like to make a personal explanation. Mr. EDMUNDS. I object, Mr. President, The VICE-PRESIDENT. The Senator from Vermont objects. Mr. CLAYTON. I will do so on some other occasion, then. The VICE-PRESIDENT. If it is the pleas ure of the Senate to have the question raised by the Senator from Vermont submitted, the Chair will now submit it to the Senate ; and that is that until the final declaration of the votes for President and Vice-President in the presence of both Houses, no other business is in order. That question is to be submitted to the Senate. The question being put, it was decided in the affirmative. Mr. EDMUNDS. I withdraw the objection I made to the Senator from Arkansas making a personal explanation. The VICE-PRESIDENT. The Senator from Arkansas nomv asks consent to make a personal explanation. Mr. CLAYTON. It will take but a minute. The VICE-PRESIDENT. Is there objec tion? Mr. SPRAGUE. I object. Mr. CLAYTON. I want to correct a mis- statement. The VICE-PRESIDENT. The Senator from Rhode Island objects. Mr. FRELINGHUYSEN. The Senator from Arkansas wishes to correct a misstatement of his own. I hope nobody will object The VICE-PRESIDENT. Does the Sen ator from Rhode Island withdraw his objec tion to the Senator from Arkansas correcting a misstatement of his own ? Mr. SPRAGUE. I withdraw the objec tion. Mr. CLAYTON. While the question was up as to the seal which was upon the certifi cate from Arkansas I gave it as my opinion that that was the seal of the State. I have since examined the seal on the credentials of Mr. Dorsey, and I find that I was mistaken ; that this is the seal of the Secretary of State, and not the seal of the State. Mr. SCOTT. I move that tha House be in formed that the Senate have decided the ques tion. The VICE-PRESIDENT. As soon as the Chair announced the last vote, the Secretary left the door of the Senate to go to the House to communicate the action of the Senate. A message was received from the House ol Representatives, by Mr. McPiiERSON, its Clerk, announcing that the House had passed the fol lowing resolution : Resolved, That the electoral vote of the State of Arkansas as reported by the tellers be counted. Mr. EDMUNDS. I move, if it be in order, that the Senate take a recess for five minutes. The VICE-PRESIDENT. The rule pro vides " Such joint meeting shall not be dissolved until the electoral votes are all counted, and the result de clared; and no recess shall be taken unless a ques tion shull have arisen in regard to counting any 01 such votes, in which case it shall be competent for either House, acting separately, in the manner here inbefore provided, to direct a recess not beyond the next day at the hour of one o clock p. M." The Senator from Vermont moves that the Senate takes a recess for five minutes. Mr. CONKLING. Is it not by concurrent resolution that that must be done? The VICE-PRESIDENT. The rule is spe cifically the other way. The chair will again read it : " In which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess not beyond the next day at the hour of one o clock p. M." The question is on the motion of the Senator from Vermont, that the Senate now take a re cess for five minutes. The motion was agreed to ; and at the expi ration of the recess the Senate resumed its ses sion, when the following message was received from the House of Representatives by Mr. MoPnERsox, its Clerk: Mr. President, the House of Representatives have passed the following resolution : Resolved, That in the judgment of the House, none of the returns reported by the tellers as electoral votes of the State of Louisiana should.be counted. Mr. SHERMAN. I move that the Senate now return to the Hall of the House of Repre sentatives. The motion was agreed to ; and the Senate 392 TWENTY-SECOND PRESIDENTIAL TERM. (at seven o clock and forty-six minutes p. M.) again proceeded to the Hall of the House of Representatives. The Senate returned to its Chamber at eight o clock and five minutes p. M. Mr. SHERMAN. I desire to offer a formal resolution : Resolved, That a committee of one member of the Senate be appointed by this body to join a committee of two members of the House of Representatives, to be appointed by that House to wait on Ulysses S. Grant, of Illinois, and to notify him that he has been duly elected President of the United States for four years, commencing 011 the fourth day of March, 1873, and also to notify Henry Wilson, of Massachusetts, that he has been duly elected Vice-President of the United States for four years, commencing on the fourth day of March, 1873. The resolution was considered by unanimous consent, and agreed to. The VICE-PRESIDENT. How shall the committee be appointed? Mr. EDMUNDS. By the Chair. The VICE-PRESIDENT. If there be no objection, that will be regarded as the sense of the Senate, and the Chair appoints the Sen ator from Ohio [Mr. SHEBMAN]. IN HOUSE or REPRESENTATIVES. Wednesday, February 12, 1873. ( " Congressional Globe," p. 1294.) Mr. DAWES. I offer the following resolu tion : Resolved, That the Clerk inform the Senate that this House is now ready to receive that body for the purpose of proceeding to open and count the votes of the electors of the several States for President and Vice-President of the United States. Mr. BINGHAM. Is not the hour fixed by the rule at one o clock ? Mr. DAWES. The hour at which the pro ceedings should commence is fixed by the rule, but it will take a little time to make the pre liminary arrangements. The resolution was adopted. Mr. DAWES moved to reconsider the vote by which the resolution was adopted, and also moved that the motion to reconsider be laid on the table. The latter motion was agreed to. At one o clock p. M. the Doorkeeper an nounced the Senate of the United States. The Senate entered the Hall, preceded by its Sergeant-at-Arms and headed by the Vice- President and the Secretary of the Senate, the members and officers of the House rising to receive them. The Senators took the seats set apart for them in the eastern section of the Hall. The Vice-President took his seat as presid ing officer of the joint convention of the two Houses, the Speaker occupying a chair on the left of the Vice-President. Senator SHEEMAN, of Ohio, the teller ap pointed on the part of the Senate, and Messrs. DAWES, of Massachusetts, and BECK, of Ken tucky, the two tellers appointed on the part of the House, took their seats at the Clerk s desk, at which the Secretary of the Senate and Clerk of the House also occupied seats. The VICE-PRESIDENT. The Senate and House of Representatives having met under the provisions of the Constitution for the pur pose of opening, determining, and declaring the votes cast for President and Vice-President of the United States for the term of four years, commencing on the 4th of March next, and it being my duty, in the presence of both Houses thus convened, to open the votes, I now proceed to discharge that duty. The VICE-PEESIDENT then proceeded to open and hand to the tellers the votes of the several States for President and Vice-President of the United States, commencing with the State of Maine. Senator SHEEMAN (one of the tellers) read in full the certificate of the vote of the State of Maine, giving seven votes for Ulysses S. Grant, of Illinois, for President of the United States, and seven votes for Henry "Wilson, of Massachusetts, for Vice-President of the Unit ed States. Senator TRUMBULL. I think the Gov ernor s certificate should be read as the evi dence of the election of the electors. The VICE-PRESIDENT. The tellers will report the certificate. Senator SHEEMAX (as one of the tellers) read the certificate of the Governor of Maine. Senator TRUMBULL. I would inquire if that certificate bears the signature of the Ex ecutive of the State of Maine? Senator SHERMAN. The signature of Syd ney Perham, as Governor, is in the centre of the paper, under the great seal of the State. Senator TRUMBULL. It is not material where it is, if the signature of the Executive is there. The VICE-PRESIDENT. The Chair will state that upon several occasions of the count ing of the electoral vote, after the first certifi cate had been read in full, the reading in full of the subsequent certificates has been dis pensed with by general consent, unless some Senator or Representative in a particular case called for the reading of the entire certificate. If no person objects, therefore, the tellers will report the material part of the subsequent cer tificates, subject, however, to the demand of any Senator or Representative tliat the docu ment shall be read in full. Senator TRUMBULL. I desire that the cer tificate of the Executive to the election of the electors should be once read in each case. I wish to take up no unnecessary time, but I think it important, as some question may pos sibly arise on that subject, that the certificate of the Executive should be read. The VICE-PRESIDENT. That point will be regarded as made, and the tellers will take notice of it accordingly. Mr. DAWES (one of the tellers) read the ULYSSES S. GRANT, PRESIDENT. 393 certificate of the Governor of New Hampshire as to the election of electors of President and Vice-President of the United States, and an nounced the electoral votes of the State for those two officers. Senator HAMLIN. I beg to suggest to the Senator from Illinois [Mr. TEUMBULL] whether it will not answer his purpose entirely if the tellers should announce the fact that the cer tificates of election of electors are signed by the Governor and countersigned by the sec retary of State. That method of proceeding will be an economy of time, and at the same time it will reach the result which the Senator wishes to accomplish. Senator TEUMBULL. Mr. President, it will be entirely satisfactory to me if the tellers will examine the papers in each case and see whether the proper certificate of the Executive of the State accompanies the list of votes, and will announce that fact with reference to each certificate. Where there is any variation they will, of course, bring it to the notice of the joint convention. It should be understood, of courss, that the reading of the certificate in full may bs demanded in any case. The VICE-PRESIDENT. If there be no objection, the tellers will merely state the fact in regard to the attestation of the Governor, subject to a demand by any Senator or Repre sentative for the reading of the certificate in full. The tellers proceeded to announce the electoral votes of the several States, it being mentioned in each case that the certificate of the election of the electors was signed by the Governor and countersigned by the Secretary of State. When the State of Georgia was reached, Mr. BECK, of Kentucky (one of the tell ers), announced the electoral vote for Presi dent as follows : B. Gratz Brown, of Missouri, six votes ; Horace Qreeley, of New York, three votes; Charles J. Jen kins, of Georgia, two votes. The vote for Vice-President was announced, as follows : B. Gratz Brown, of Missouri, five votes ; Alfred H. Colquitt, of Georgia, five votes ; Nathaniel P. Banks, of Massachusetts, one vote. [Laughter.] Mr. HOAR. I desire to make the point that the three votes reported by the tellers as having been cast for Horace Greeley, of New York, cannot be counted, because the person for whom they purport to have been cast was dead at ^ the time of the assembling of the electors in that State. The VICE-PRESIDENT. The gentleman from Massachusetts [Mr. HOAR] having made the point which has been stated by him, the Chair will read from the twenty-second joint rule of the two Houses: " If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision; and the Speaker of the House of Ecpresentatives shall in like manner submit said question to the House of Representatives for its decision ; and no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses, which being obtained, the two Houses shall immediately reassemble, and the pre siding officer shall then announce the decision of the question submitted ; and upon any such question there shall be no debate in either House. And any other question pertinent to the object for which the two Houses are assembled may be submitted arid determined in like manner." On previous occasions, since this rule has been in operation, it has been required that an objection to the counting of any vote should be in writing, so that it might be submitted to both Houses for their decision in their separate Chambers. . The gentleman from Massachusetts will submit his point in writing ; and the Chair will have it stated from the Clerk s desk. Senator CONKLING. While the gentle man from Massachusetts is reducing his point to writing, I suggest to the Chair that either by the point being withheld for the present (this particular return being laid aside), or otherwise, we can avoid the necessity of sep arating at this moment. Gentlemen know that a separation, to deliberate upon another point or two, is quite likely to occur ; and I suggest that if this question can be passed over in one form or another for the moment, we can complete the reading of all the returns upon which there is no question ; and then upon the two or three questions which may remain for decision, one single separation of the joint convention and one corning together will suffice. The VICE-PRESIDENT. If there is no objection, the gentleman from Massachusetts will be understood as reserving the point which he has made, to be presented at the close of the counting, or whenever the two Houses may be required under the rule to meet in their respective Chambers. Will that suit the gentleman from Massachusetts? Mr. HOAR. I have no objection. The VICE-PRESIDENT. It will be under stood as so reserved. The tellers resumed the reading of the cer tificates. When the vote of the State of Mis sissippi was announced, Mr. Senator SHERMAN (one of the tellers), said : As the form in this case is somewhat different from the others, I will read the cer tificate of the Governor : On this Wednesday, the 4th day of December, 1872. at the city of Jackson, in the State of Missis sippi, the electors thereof assembled for the purpose of voting for President and Vice-President of the United States ; and they accordingly voted with the following result, to wit : For President of the United States, Ulysses S. Grant, of Illinois, eight votes. For Vice-President of the United States, Henry Wilson, of Massachusetts, eight votes." 394 TWENTY-SECOND PRESIDENTIAL TERM The tellers call attention to the fact that the electors do not certify that they voted by ballot. Senator TRUMBULL. I observed that. I think this is a question of sufficient impor tance to receive the consideration of the two Houses. I object to the vote of Mississippi being counted, for the reason that it does not appear that the electors voted by ballot. I will reduce the objection to writing and let it lie until the two Houses separate upon other questions, if it be agreeable to the convention. The VICE-PRESIDENT. The Senator from Illinois [Mr. TRUMBULL] objects to counting the vote of the electors of the State of Missis sippi, on the ground that there is no certifi cate they voted by ballot, but for the present he reserves that point. Senator TRUMBULL. At the suggestion of a Senator who thinks it would be a bad pre cedent when an objection is raised to pass it over and go through with the vote in a mat ter of such grave importance as this, I will pre sent the question now. Senator SHERMAN" (one of the tellers). The tellers direct me to read another paper from the State of Mississippi. Senator TRUMBULL. If there are any other papers I should like to hear them all read. Senator SHERMAN (one of the tellers) then read a certificate stating that the electors of the State of Mississippi had assembled for the purpose of giving their votes for President and Vice-President of theUnited States, and that A. T. Morgan, one of the electors, not being present, they had duly appointed J. J. Spell- man to fill said vacancy under the revised code of the State of Mississippi of 1871, to which was appended the great seal of the State of Mississippi, and the signature of James Lynch, Secretary of State of Mississippi. The VICE-PRESIDENT. If the gentleman from Massachusetts has reduced to writing the point which he made it will be now pre sented to the convention. Mr. HOAR. I have reduced it to writing, and will send it up to the Clerk s desk. The VICE-PRESIDENT. Under the twen ty-second joint rule the presiding officer now submits to the Senate and House of Represen tatives in joint convention the objection of the gentleman from Massachusetts [Mr. HOAR]. It will be reported. The Secretary of the Senate read as fol lows: ->j } Mr. HOAR objects, the votes reported by the tellers as having been cast by the electors of the State of Georgia for Horace Greeley, of New York, cannot legally be counted, because said Horace Greeley, 1 or whom they appear to have been cast, was dead at the time said electors assembled to cast their votes and was not a person within the meaning of the Consti tution ; this being a historical fact of which the two Houses may take notice. The VICE-PRESIDENT. Two copies will be made of this objection, one for the Senate, and one for the House of Representatives, to be submitted to each House after the Senate repairs to its Chamber. The Senator from Illinois [Mr. TRUMBULL] makes the following point, which the presiding officer now submits to the two bodies in joint convention. The Secretary of the Senate read as fol lows: Mr. TRUMBULL 6bjects to counting the votes cast for President and^ice-President by the electors in the State of Mississippi, for the reason it does not appear from the certificate of said electors that they voted by ballot. Senator TRUMBULL. I should like to have read again the certificate of the Governor of Mississippi, both the original and supplemental papers. The VICE-PRESIDENT. That will be done. Senator TRUMBULL. It is suggested by my colleague it would be well, as these papers cannot be before both Houses when we sep arate, that for the information of both Houses the papers be read in full at this time. The VICE-PRESIDENT. The Chair will state in this case as in all other cases there are two copies in possession of the presiding offi cer, one sent by mail, and one brought by messenger. In this case they appear to be the same. The papers were again read. The VICE-PRESIDENT. The Presiding Officer will state that in the duplicate copies sent by messenger the Governor s certificate does not appear to have been included ; but the substantial point made by the Senator from Illinois [Mr. TEUMBULL] lies against both papers, that they do not state the elec tors voted by ballot. Mr. POTTER. Mr. President, I desire to inquire, because we could not understand here as reported by the tellers, whether the supple mental certificate, as I may call it, from the State of Mississippi in respect of the elector elected to supply and take the place of the elector who is absent, is signed by the Gov ernor or not ? The VICE-PRESIDENT. It is signed by the Secretary of State only. Mr. POTTER. Then, Mr. President, I de sire to object to one vote of the State of Mis sissippi, because the certificate declaring that J. J. Spellman was appointed an elector in the stead of A. T. Morgan, absent, by the electoral college of that State, in accordance with the laws of that State, is not signed by the Gov ernor of that State. The VICE-PRESIDENT. It has been sug gested that perhaps it may not be exactly cor rect, under the Constitution, for the President of the Senate to leave in possession of the House any official document in his possession pertaining to the electoral vote. But as the tellers have reported in every instance that besides the document which was delivered to the Vice-President by messenger a duplicate ULYSSES S. GRANT, PRESIDENT. 395 came by mail, unless there is objection the Chair will leave in the possession of the House of Representatives, for reference and consulta tion by its members, the document which was transmitted to him by mail, retaining in his official possession the document which was transmitted by messenger. The gentleman from New York [Mr. POTTER] desires to modify his objection. Mr. POTTER. At the suggestion of a mem ber of the House who has seen the certificate of the State of Mississippi to which I have re ferred, I ask leave to make an addition to the objection I have offered. The VICE-PRESIDENT. The objection of the gentleman from New York [Mr. POTTER] will be read as modified : The Clerk read as follows : Mr. POTTER objects to one vote of the State of Mis sissippi, because the certificate declaring that J. J. Spellmanwas appointed an elector in the stead of A. T. Morgan, absent, by the electoral college of that State, in accordance with the laws of that State, is not signed by the Governor of that State. And further that the certificate of the Secretary of State read does not certify anything of his own knowledge, but only states he has been so notified aa he certifies. The VICE-PRESIDENT. Three questions having arisen in regard to the counting of the votes for President and Vice-President, the Senate will now withdraw to their Chamber. The Senate accordingly retired. The SPEAKER having called the House to order, said : In the joint convention for count ing the electoral votes an objection was made by the gentleman from Massachusetts [Mr. HOAR] against counting the return from the State of Georgia. The Clerk will read the ob jection. The Clerk read as follows : Mr. HOAR objects that the votes reported by the tellers as having been cast by the electors of the State of Georgia for Horace Greeley, of New York, cannot lawfully be counted, because said Horace Greeley, for whom they appear to have been cast, was dead at the time said electors assembled and cast their votes, and so not a person within the meaning of the Constitution ; this being a historic fact of which the two Houses may properly take notice. Mr. HOAR. I offer the following resolu tion : The Clerk read as follows : Revived, That the votes reported by the tellers as having been cast by the electors of the State of Geor gia for Horace Greeley for President of the United States ought not to be counted. Mr. HOAR. I desire to make an inquiry of the Chair. Is it in order, under the joint rule, to ask that there may be read an extract from the Constitution of the United States ? Mr. BANKS. C-artainly it is. The SPEAKER, The Chair doubts whether it would be. All debate is absolutely prohib ited ; and whether that would be in the nature of debate would be a grave point. Mr. BANKS. Under what rule ? The SPEAKER. The Chair will direct the reading of the rule. Mr. FARNS WORTH. It appears to me that the Chair can direct the reading of any portion of the Constitution as well as he can the reading of a rule. The SPEAKER. The Chair will not objest, if the point is not raised. The Chair directs the paragraph of the twenty-second joint rule which bears upon this question to be read. The Clerk read as follows: " If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same having been stated by the Presiding Officer, the Senate shall there upon withdraw, and said question shall be submitted to that body for its decision ; and the Speaker of the House of Kepresentatives shall, in like manner, sub mit said question to the House of Representatives for its decision. And no question shall be decided affirm- atively, and no vote objected to shall be counted, ex cept by the concurrent votes of the two Houses, which being obtained, the two Houses shall immediately re assemble, and the Presiding Officer shall then an nounce the decision of the question submitted ; and upon any such question there shall be no debate in either House. And any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner." Mr. COGHLAN. Should not this be a con current resolution? Several MEMBERS. No ! Mr. NIBLACK, of Indiana. I hope the gentleman from Massachusetts [Mr. HOAR] will yield to a suggestion for an amendment. I would suggest the insertion after "ought not" of the words " in the opinion of this House." I think we cannot act finally, and, if we simply express our opinion, perhaps it would be more decorous to the Senate. Mr. HOAR. I have no objection to that modification. Mr. FARNSWORTH. I desire to offer an amendment to the resolution. Mr. HOAR. I was about myself to suggest a further modification by adding after the name of " Horace Greeley " the words " he having deceased before the vote was cast." The SPEAKER. The Chair thinks that mod ification is necessary, because the resolution should state on its face the reason why the vote should not be counted. The resolution will be returned to the gentleman so that he may modify it exactly in accordance with his suggestion. Mr. LOWE. I desire to make a parliament ary inquiry, and it is whether the question to be submitted to the House is not simply on the point of order made in the joint convention? The SPEAKER. It is no point of order in the sense of a point on which the Chair can rule. Mr. LOWE. Do we not act directly on the matter presented to the joint convention ? The SPEAKER. The Chair thinks that this is the proper mode of disposing of the case. The Clerk then read the resolution as modi fied by Mr. HOAR, as follows : 396 TWENTY-SECOXD PRESIDENTIAL TERM. Resolved, That in the judgment of the House of Representatives the votes reported by the tellers as having been cast by the electors of the State of Geor gia for Horace Greeley, of New York, for President of the United States, ought not to be counted, the said Horace Greeley having died before the said votes were cast. Mr. MACINTYRE. I desire to move to amend the resolution by striking out the word. " not" before the words " to be counted." The SPEAKER. The gentleman attains the same object by voting against the resolution. Mr. BANKS. I rise to a point of order ; and it is that we have no power to decide on the eligibility of any man voted for for Presi dent. Mr. BINGHAM. Is debate in order ? The SPEAKER. It is not. That is a reason for not voting for the resolution. But the joint rule forbidding debate on these ques tions is one of the highest political necessities, for if debate was allowed on such questions it might be in the power of one branch of Con gress to postpone indefinitely the counting of the electoral votes. Mr. BANKS. I insist on the point of order that the House has no power to decide ques tions of the eligibility of candidates voted for for the Presidency. The SPEAKER. The gentleman does not submit that as a .question for the Chair to de cide ? Mr. BANKS. I submit it to the House. The SPEAKER. Is is a question for the House to determine in voting upon the resolu tion. It is not a question which is within the purview of the Chair to determine. Mr. WILLARD. I ask for the yeas and nays on the resolution. The yeas and nays were ordered. The question was taken ; and it was decided in the affirmative yeas 101, nays 99, not vot ing 40 ; as follows : YEAS Messrs. Ames, Averill, Barber, Barry, Beatty, Biggs, Bingkam, Bird, James G. Blair, Brax- ton, Bright, Buckley, Bufllnton, Boimell, Burchard, Burdett, Roderick R. Butler, Clarke, Coburn, Cogh- lan, Comingo, Critcher, Davis, Dawes, Dickey, DuBose, Dunnell. Eames, Elliott, Esty, Wilder D. Foster, Garfield, Hale, Harmer, Harper, George E. Harris, John B. Hawley, Joseph R. Hawley, Hay, Hays, Gerry \V. Hazelton, John W. Hazelton, Herndon, Hoar, Hooper, Houghton, Kelley, Kerr, Ketcham, Killinger, Lamport, Lansing, Leach, Perce, Peters, Porter, Rainey, Randall, Ritchie, Ellis H. Roberts, Robinson, Rusk, Sargent, Sessions, Sherwood, Shoemaker, H. Boardman Smith, Sprague, Starkweather, Sypher, Taffe, Washing ton Townsend, Turner, Twichell, Tyner, Upson, Voorhees, Waddell, Wakeman, "Waldron, Wallace, Wheeler, Williams of Indiana, Jeremiah M. Wilson, and John T. Wilson 101. NAYS Messrs. Acker, Adams, Ambler, Archer, Arthur, Banks, Barnum, James B. Beck, Bell, Boles, Cal dwell, Carroll, Cobb, Conger, Conner, Cotton, Crebs, Crocker, Crossland, Donnari, Dox, Duke. Eldredge, Fly, Finkelnburg, Charles Foster, Henry D. Foster, Garrett, Getz, Giddings, Golladay, Grif fith, Haldeman, Hancock, Handley, Hanks, John T. Harris, Hereford, Hibbard, Holman, Kellogg, Kendall, Kinsella, Lamison, Lowe, Lynch, Mac- Intire, Hanson, Marshall, Maynard, McClelland, McCormick, McJunkin, McKinney, Mitchell, Mor gan, Morphis, Silas L. ^iblack, William E. Nib- lack, Hosea W. Parker, Pendleton, Perry, Poland, Potter, Price, Prindle, Read, Edward Y. Rice, Wil liam R. Roberts, Sion II. Rogers, Roosevelt, Saw yer, Scofield, Sheldon, Shellabarger, Shober, Slater, Slocum, John A. Smith, Speer, Stevens, Stevenson, Storms, Stoughton, Stowell, St. John, Sutherland, Terry, Thomas, Van Trump, Vaughan, Warren, Wells, Whiteley, Willard, Williams of New York, Winchester, Wood, and Young 99. NOT VOTING Messrs. Erasmus W. Beck, Big- by, Austin Blair, Boarman, Brooks, Benjamin P. Butler, Campbell, Cox, Creeley, Darrall, Dodds, John M. Rice, John Rogers, Seeley, Shanks, SJoss, Worthington C. Smith, Snapp, Snyder, Swann, Dwight Townsend, Tuthill, Walden, and Whit- thorne 40. So the resolution .was agreed to. Mr. HOAE moved to reconsider the vote by which the resolution was adopted ; and also moved that the motion to reconsider be laid on the table. The latter motion was agreed to. Mr. KERR. I offer the following resolu tion: Resolved, That in the opinion of this House the votes cast for Horace Greeley, of New York, for President of the United States by the electors should be counted by the tellers as blank votes. The SPEAKER. The Chair thinks the House, by its resolution just adopted, has dis posed of the question raised in the joint con vention. Mr. KERR. Would it not be in order for the House to vote on the resolution I have presented? The SPEAKER. The Chair does not see how it would be. There was no notice given in joint convention of the point contained in the resolution of the gentleman. The point of order raised in convention has been read to the House, and the House has taken resolution thereon. Mr. KERR. I desire to make a parliament ary inquiry. Does the Chair rule ray resolu tion out of order by reason of anything con tained in the joint rule of the two Houses, or is it by reason of something in the rules of the House? The SPEAKER. For this reason : the point of order that comes from the joint convention was read to the House, and the House, by a vote of 101 to 99, has disposed of that point. There is, therefore, nothing before the House upon which the gentleman can base his resolu tion. Mr. KERR. I beg to submit one other con sideration. I agree that the House has dis posed of the question of the duty of the tellers to the extent of forbidding them to count those votes for Horace Greeley. But has the House gone so far as my resolution now proposes to go, to declare that it shall be the affirmative ULYSSES S. GRANT, PRESIDENT. 397 duty of the tellers to inform the joint conven tion how many blank votes have been cast, and to reckon the votes cast for Horace Gree- ley as such blank votes? The SPEAKER. If the House is to pass upon that as a separate question, it must come to the House from the joint convention of the two branches. Mr. ELDREDGE. The House has already declared by resolution that the votes cast for Horace Greeley were void votes. The gentle man from Indiana [Mr. KERR] now asks the House to pass a resolution declaring that the votes cast for Horace Greeley were not only void votes, but that they were cast for Mr. Blank; which is an absurdity. The SPEAKER. There is no question bo- fore the House. Mr. KERR. Allow me to say The SPEAKER. The Chair does not intend unnecessarily to deprive the gentleman from Indiana [Mr. KERR] of the right of discussing a point of order. But the rule of the two Houses is very absolute, and in the general judgment very necessary, that no debate shall be allowed under the circumstances. This is in the na ture of debate. And if the debate can exist lawfully under the rules for ten minutes, it may extend for ten hours, and for ten weeks. There fore, it is the duty of the Chair, a duty more incumbent upon him because it is prescribed by the joint rule than if prescribed by a rule of the House, to adhere absolutely to the spirit and letter of the rule. The SPEAKER. The Clerk will now read the point certified to the House from the joint convention, and which was raised by Mr. TRUMBULL, a Senator from the State of Illinois. The. Clerk read as follows : Mr. TRUMBULL objects to counting the votes cast for President and Vice-President by the electors in the State of Mississippi, for the reason that it does not appear from the certificate of said electors that they voted by ballot. Mr. DA WES. I submit the folio vv ing reso lution : Resolved, That in the judgment of this House the eight votes reported by the tellers as cast by electors in and for the State of Mississippi ought to be counted as reported by them. Mr. AMBLER. Does not the question now presented involve also the point raised in ioint convention by the gentleman from New York [Mr. POTTER]. The SPEAKER. No matter whether it does or not; the Chair cannot take note of that. Mr. AMBLER. I move to amend the reso lution by striking out "eight" and inserting u seven." The SPEAKER. The Chair did not sup pose a division would be called or an amend ment offered on this resolution. The gentle man from Massachusetts [Mr. DAWES] is en titled to be recognized to try the sense of the House upon ordering the previous question. The gentleman will state whether he yields or an amendment. Mr. AMBLER. I think the question pre sented by my amendment should be submitted to the House. Mr. POTTER. The Constitution provides that these votes of the electors shall be cast by ballot. Mr. GARFIELD, of Ohio. It does not say that they shall so certify. Mr. DAWES. I call the previous question on my resolution. The previous question was seconded and the main question ordered. The question being taken on agreeing to the resolution, there were ayes 101, noes 33. Mr. W. R. ROBERTS. I call for the yeas and nays. Mr. RANDALL. Let us have the yeas and nays. This is a very important question. The yeas and nays were not ordered. So the resolution of Mr. DAWES was adopted. The SPEAKER. The Clerk will read the objection made in the joint convention by Mr. POTTER, a Representative from the State of New York. The Clerk read as follows : Mr. POTTEE objects to the counting of one vote of the State of Mississippi, because the certificate de claring that J. J. Spellman was appointed an elector in the stead of A. T. Morgan, absent, by the elect oral college of that State, in accordance with the laws of that State, is not signed by the Governor of the State ; and further, that the certificate of the Secretary of State read does not certify anything of his own knowledge, but only states he has been so notified as he certifies. Mr. BANKS. I offer a resolution upon that point. The SPEAKER. The Chair will be com pelled to recognize the gentleman [Mr. POT TER] who raised the point in the joint conven tion. Mr. ELDRIDGE. I raise a point of order. My point is that the House has just passed a resolution that the eight votes of Mississippi are to be counted ; and that this proposition is incompatible with the resolution just adopted. The SPEAKER. That is not a point of order. It is a matter for the House, not the Chair to decide. Mr. POTTER submitted the following reso lution. Resolved, That, as one of the eight votes certified by the electoral college of the State of Mississippi as cast for Ulysses S. Grant as President, appears not to have_been cast by A. T. Morgan, who appears by the certificate of the Executive of that State to have been an elector of that State, but by James J. Spell- man | and there being no certificate from the execu tive authority of that State certifying the appoint ment of said James J. Spellman as an elector of such State, that one of the electoral votes be rejected, and seven electoral votes only be counted for that State. Mr. BANKS. I offer the following resolu tion as a substitute for the resolution just read: Resolved, That the electors of the State of Missis sippi having been appointed in the manner directed 398 TWENTY-SECOND PRESIDENTIAL TERM. by the Legislature of that State, were legally elected, and the vote of the State as cast by them should be counted, and that the certificate of the Governor of that State of the electoral vote cast and the certifi cate of the Secretary of State of that State in regard to the choice of electors is in compliance with the Constitution and laws of the United States. Mr. POTTER. In this connection I ask to have read an extract from the statute of 1792. Mr. BANKS. I object to the reading of the statute. Mr. K AND ALL. Is it not in order to ask for the reading of the certificate of the electoral college of Mississippi, together with the Gov ernor s certificate relating thereto ? The ^SPEAKER. The Chair thinks that the point embraced in the resolution of the gentleman from Massachusetts [Mr. BANKS] was disposed of under the point raised by the Senator from Illinois [Mr. TKUMBTJLL], and the resolution of his colleague [Mr. DA WES], just adopted by the House. The House has passed a resolution declaring that the electoral vote of Mississippi should be counted. Mr. BINGHAM. The eight votes. The SPEAKER. The eight votes- Mr. BANKS. If the Chair will allow me, I wish to say the House has already decided that those votes should be counted so far as concerns the objection that the certificate does not specify the votes of the electors to have been cast by ballot. Now the gentleman from New York [Mr. POTTEE] raises another point, that one of these votes should not be counted because it was not in compliance with the laws of the State. My resolution proposes that they shall all be counted because the elec tors were chosen in compliance with the laws of the State. Mr. RANDALL. I want to get at a history of the facts. Mr. DICKEY. I object to this House em barking on any question of history. [Laughter.] Mr. ELDREDGE. I would like to make a parliamentary inquiry. If the House should now decide that this one electoral vote ought not to be counted, what would be the effect of such action, standing by the side of the reso lution the House has already adopted that the whole eight votes shall be counted ? The SPEAKER. The Chair is not placed here to tell the effect of what the House may do. Mr. ELDREDGE. I submit, then, as a point of order to be decided by the Chair, that the House has already determined to count the eight votes of Mississippi. The SPEAKER. The Chair cannot enter tain that as a point of order. As the reading of the papers, which has been called for, is not in the nature of debate, the Chair directs the Clerk to read the certificate of the electors of the State of Mississippi. The Clerk read as follows : STATE OF MISSISSIPPI. EXECUTIVE DEPARTMENT, JACKSON, MISSISSIPPI, December 4, 1872. At the election held in the State of Mississippi, on the first Tuesday in November, A. D. 1872, the following persons were elected by a majority of the legal voters of the said State as electors for Presi dent and Vice-President of the United States : H. C. Carter, W. H. Gibbs, W. F. Simonton, James Hill, A. K. Davis, A. F. Morgan, W. H. Harnev S J. Ireland. In testimony whereof I have hereunto set my hand and caused the great seal of the State of [L. 8.] Mississippi to be affixed at the city of Jack son, this 4th day of December, A. D. 1872. E. C. POWERS, Governor. By the Governor : JAMES LYNCH, Secretary. STATE OF MISSISSIPPI, EXECUTIVE DEPARTMENT, JACKSON, MISSISSIPPI, December 4, 1872. This is to certify that on this 4th day of Decem ber, A.D. 1872, I was notified by the college of elec tors of the State of Mississippi that at a meeting then being held by them for the purpose of giving their votes for President and Vice-President of the United. States, A. F. Morgan, one of the electors, not being present, they duly appointed J. J. Spell- man to fill the said vacancy, the said appointment being made in accordance with section three hun dred and eighty-two, Eevised Code, 1871, of the State of Mississippi. In testimony whereof, I have hereunto set my r -, hand and fixed the great seal of the State, LL S>J this 4th day of December, 1872. JAMES LYNCH, Secretary. On this Wednesday, the 4th day of December, A. D. 1872, at the city of Jackson, in the State of Mis sissippi, the electors therefor assembled for the pur pose of voting for President and Vice-President of the United States, and they accordingly voted, with the following result, to wit : For President of the United States, Ulysses S. Grant, of Illinois, eight votes. For Vice-President of the United States, Henry Wilson, eight votes. HANNIBAL C. CAETEE, W. H. GIBBS, W. F. SIMONTON, JAMES HILL, A. K. DAVIS. JAMES J. SPELLMAN, WM. H. HAENEY, SAMUEL J. IEELAND. Mr. CONGER. I ask that the point of or der raised in joint convention by the gentle man from New York [Mr. POTTEE] be again read. The Clerk then raised the objection made by Mr. POTTEE, of New York, in the joint convention, the resolution offered by him in the House, and also the substitute moved by Mr. Banks, of Massachusetts. Mr. ELDREDGE. The House has already determined to count the eight votes of Missis- sippi^and I make the point this resolution is incompatible with the action of the House. Mr. DICKEY. I object to debate. Mr. BANKS. I will modify my substitute for the resolution of the gentleman from New York by inserting the words " as provided by the Constitution of the United States." Mr. DICKEY. I object to debate on either side of the House. Mr. BANKS. I demand the previous ques tion. Mr. DUKE. If it be in order, I ask to ULYSSES S. GRANT, PRESIDENT. 399 have read the law of Mississippi referred to in the certificate read by the Clerk. Mr. DICKEY. The law of Mississippi is in the nature of debate, and I object to de bate. The SPEAKER. The confusion in the House is so great that the Chair will be obliged to call gentlemen by name. The previous question was seconded, and the main question ordered. The question first recurred on the substitute of Mr. BANKS for the resolution of Mr. POT TER. The House divided; and there were ayes 109, noes 33. So the substitute was agreed to. The resolution as amended was then adopt ed. Mr. BANKS moved to reconsider the vote by which the substitute was adopted; and also moved that the motion to reconsider be laid on the table. The latter motion was agreed to. Mr. GARFIELD, of Ohio. Mr. Speaker, I submit the following resolution. The Clerk read as follows : Resolved, That the Clerk of the House be directed to inform the Senate that the House of Representa tives has acted on the questions submitted this day by the joint convention of the two Houses in refer ence to counting the votes for President and Vice- President of the United States. Mr. BANKS. I move to amend by insert ing copies of the resolutions adopted by the House. Mr. GARFIELD, of Ohio. Should not that be done in joint meeting ? Mr. BINGHAM. Let them have an op portunity to concur under the twenty-second rule. The SPEAKER. The Chair has directed the Clerk to communicate to the Senate copies of the resolutions adopted by the House. Mr. GARFIELD, of Ohio. I have no objec tion to amending my resolution in that re spect. Mr. HOAR. Should not the resolution read in pursuance of the joint rule 2 Mr. GARFIELD, of Ohio. I have no ob jection to that. The SPEAKER. The Clerk will communi cate to the Senate copies of the resolutions adopted by the House. The resolution as modified was adopted. Mr. GARFIELD, of Ohio, moved to recon sider the vote by which the resolution as modi fied was adopted; and also moved that the motion to reconsider be laid on the table. The latter motion was agreed to. And then, on motion, of Mr. RANDALL (at three o clock and ten minutes p. M.), the House took a recess for fifteen minutes. The recess having expired, the House reas sembled at tkree o clock and twenty -five min utes P. M. A message from the Senate, by Mr. SYMP- SON, one of its Clerks, informed the House that the Senate had passed the following resolu- ions : Resolved, That the electoral votes of Georgia cast for Horace Greeley be counted. Resolved, That the vote cast by James J. Spell- man, one of the electors for the State of Mississippi, be counted. Resolved, That the electoral vote of the State of Mississippi be counted. The message further announced that the Senate is ready again to meet the House, that the counting of the electoral votes maybe pro ceeded with. Mr. DA WES. I offer the following resolu tion: Resolved, That a message be sent to the Senate, to inform that body that the House is ready to receive the Senate, to proceed again with the counting of the electoral votes. The resolution was agreed to. Mr. DAWES moved to reconsider the vote by which the resolution was adopted ; and also moved that the motion to reconsider be laid on the table. The latter motion was agreed to. At three o clock and thirty-five minutes p. M. the Senate in a body reentered the Hall. The VICE-PRESIDENT (having resumed the chair). The Chair will read a part of the twenty-second rule : " And no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses ; which being obtained, the two Houses shall immediately reassemble, and the Presiding Officer shall then an nounce the decision of the question submitted. * Upon the first point raised by the Represent ative from Massachusetts [Mr. HOAE] the Sen ate decided as follows: - Resolved, That the electoral votes of Georgia, cast for Horace Greeley, be counted. The House of Representatives decided as follows : Resolved, That the votes reported by the tellers na having been cast by the electors of the State of Georgia for Horace Greeley, of New York, as Presi dent of the United States ought not to be counted, the said Horace Greeley having died before said votes were cast. Upon this question there is a non-concur rence of the two Houses. On the question submitted by the Senator from Illinois [Mr. TEUMBULL] in regard to the votes of the State of Mississippi, the Senate adopted the following resolution : Resolved, That the electoral vote of the State of Mississippi be counted. And the House of Representatives adopted the following resolution : Resolved, That in the judgment of this House the eight votes reported by the tellers as cast by the electors in and for the State of Mississippi ought to be counted as reported by them. On this question the votes of the two Houses are concurrent. On the third point raised by the Represent ative from New York [Mr. POTTEE] which was 400 TWENTY-SECOND PRESIDENTIAL TERM. in regard to the election of one elector from Mississippi, the Senate adopted the following resolution, which is covered also by its action on the full vote of the State : Resolved, That the vote cast by James J. Spell- man, one of the electors for the State of Missis sippi, be counted. The House of Representatives adopted the following resolution : Resolved, That the electors of the State of Missis sippi having been appointed in the manner directed bv the Legislature of that State, and in accordance with the provisions of the Constitution of the United States, were legally elected, and that the vote of the State as cast them should be counted, and that the certificate of the Governor of that State of the electoral vote cast, and the certificate of the Secre tary of State of that State in regard to the choice of electors, is in compliance with the Constitution and laws of the United States. Therefore, by the twenty-second joint rule, there being a non-concurrence between the two Houses upon the three votes cast in the State of Georgia for Horace Greeley for Presi dent of the United States, they cannot be counted. And in accordance with the same joint rule, the votes of the State of Mississippi will be counted. The tellers resumed the counting of the votes, and announced the same, until the State of Missouri was reached, when Senator MORTON said: I desire to call at tention to the fact that in the State of Georgia the certificate shows that two votes were cast for Mr. Jenkins, a citizen of the State of Georgia, for President, and five votes for Mr. Colquitt, a citizen of the State of Georgia, for Vice-President, which is in contravention of the twelfth article of amendment to the Con stitution, which reads as follows : " The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves." The VICE-PRESIDENT. The twenty- second joint rule provides that " If, upon the reading of any sucli certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same hav ing been stated by the Presiding Officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision ; and the Speaker of the House of Representatives shall in like manner submit said question to the House of Eepresentatives for its decision." This objection not having been made when the tellers read the electoral vote of the State of Georgia, in the opinion of the Chair it comes too late. Senator MORTON". I desire to make the point whether the objection is not in time if it is made before the result is finally announced after the counting of all the votes. Senator CARPENTER. Is it in order to take an appeal from the decision of the Chair ? The VICE-PRESIDENT. The Senator him self will see that there could not be an appeal taken in a joint meeting of the two Houses; but if any point can be made on which the two Houses can be required to divide, the Chair will entertain it. The language of the joint rule is so emphatic that the Senator from Wisconsin will see that when a thing is directed to be done at a particular time, it must be done at that time. Senator TRUMBULL. Was the last return read from Missouri ? The VICE-PRESIDENT. It was. Senator TRUMBULL. If the case of Mis souri has not passed from the consideration of this meeting, I ask if the same question does not arise in the case of Missouri, and if there were not votes cast there for citizens of the State for the two offices ? Senator CARPENTER. I withdraw my point. The VICE-PRESIDENT. The Chair thinks that as the credentials of no other State had been read, the objection will come in time, and the papers in the case of Missouri will be again read. Senator CONKLING. I beg to ask that at the same time the tellers report whether the same electors voted for citizens residing in the same State for the two offices ; whether there is anything on the face of the papers to show that certain electors may not have voted for candidates for President and Vice-President residing in different States, and that certain other electors voted for other candidates who resided in the State ? The VICE-PRESIDENT. The Chair will have all the papers read again. Senator SHERMAN- (one of the tellers) again read the certificates from the State of Missouri. Senator TRUMBULL. I thought the Sen ator from Indiana [Mr. MORTON] made the point that the vote could not be counted. Senator MORTON. I simply desired to call the attention of the two Houses to the facts. Senator CARPENTER. I object to the counting of the vote of Missouri so far as votes were given for President and Vice-Presi dent of the United States from the same State, and will reduce my objection to writing. Senator CONKLING. Meanwhile may wo not have read the concluding statement of that certificate ? The VICE-PRESIDENT. The Secretary of the Senate will read it. (> The Secretary of the Senate read as fol lows : "And it is hereby further certified that none of said electors who voted for B. Gratz Brown for Presi dent voted for him for Vice-President." Several MEMBERS. That ends the matter. Senator CARPENTER. Upon examination, I withdraw the point. Mr. POTTER. In relation to the vote of Texas, I desire to inquire whether I correctly understood the tellers, that there is no cer tificate from the executive authorities of the ULYSSES S. GRANT, PRESIDENT. 401 State of Texas as to the persons appointed electors ? The VICE-PRESIDENT. The Secretary of the State certifies to their election under the seal of the State. Mr. POTTER. But there is no certificate from the Governor of the State ? The VICE-PRESIDENT. There is no cer tificate from the Governor of the State. Senator TRUMBULL. I desire, then, to ob ject to the reception of the vote of Texas. This case differs from that of Mississippi. There the Executive certified to the election of the electors ; but in this case I understand there is no certificate from the executive au thorities of the State of Texas to the election of the original electors ; no certificate from the Governor at all. The VICE-PRESIDENT. The tellers de sire the Chair to state that four of the electors met, and appointed four others, in place of four persons who were absent, and certified the facts themselves. Mr*. POTTER. But as to the original elec tors there is no certificate from the Governor of the State? The VICE-PRESIDENT. There appears to be only the certificate of the Secretary of the State, under the seal of the State. Mr. POTTER. This case differs, then, from the Mississippi case. In that case the original electors held certificates from the Governor, while the substitute for one of them did not. Senator TRUMBULL. I object to the re ception of the vote of Texas because there is no certificate of the executive authorities of that State to show that the persons who voted for President and Vice-President were ap pointed as electors of that State, as required by act of Congress. The VICE-PRESIDENT. The Secretary of the Senate will again read the last certifi cate. Tne Secretary of the Senate read as follows : DEPARTMENT OF STATE, AUSTIN, TEXAS, December 4, 1872. The following persons having received the highest number of votes cast for electors of President and Vice-President of the United States, are hereby declared duly elected as such : B. B. Hubbard, A. 1. Kainey, B. A. Epperman, J. J. Good, Thomas Har rison, John Ireland, S. A. Darden, J. M. Maxey. Witness my hand and official seal, at office, in the city of Austin, this 4th day of December, A. D. 1872. J. E. OLDRIGHT, Acting Secretary of State. Mr. GARFIELD, of Ohio. I would inquire if the certificate of the Secretary of the State of Texas is made in terms " by authority of the Governor," although the signature of the Governor is not there ? The VICE-PRESIDENT. The certificate of the acting Secretary of State will again be read. Mr. DA WES (one of the tellers) read the certificate, as follows : 26 DEPARTMENT OF STATE, AUSTIN, December 4, 1872. The following named persons having received the highest number of votes cast for electors of Presi dent and Vice-President of the United States, are hereby declared duly elected as such. [Here the names are given.] Witness my hand and official seal, at office, in the city of Austin, this 4th day of December, A. D. 1872. J. E. OLDRIGHT, Acting Secretary of State. The VICE-PRESIDENT. .The certificate has upon it the seal of the State of Texas. The Secretary will now read the objection of the Senator from Illinois. The Secretary of the Senate read as follows : Mr. TRUMBULL objects to the vote of Texas because there is no certificate by the executive authority of that State that the persons who voted for President and Vice-President were appointed as electors of that State as required by the act of Congress. The VICE-PRESIDENT. The Chair would suggest that any other objection to the -count ing of the vote of Texas be now submitted to the joint convention. Mr. DICKEY. I object to the counting of the electoral vote of the State of Texas because four of the electors, less than a majority of those elected, undertook to fill the places of other four electors who had been elected and were absent. The VICE-PRESIDENT. These two objec tions to counting the vote of Texas having been made, the Senate will now withdraw to their Chamber. The Senate accordingly retired from the Hall of the House. The SPEAKER resumed the chair, and called the House to order. The Clerk read the following, from the joint convention of the two Houses : Mr. TRUMBULL objected to the vote of Texas be cause there is no certificate by the executive author ity of that State that the persons who voted for President and Vice-President were appointed as electors of that State as required by the act of Con gress. Mr. DAWES submitted the following resolu tion : Resolved, That in the judgment of this House the vote of Texas should be counted as reported by the tellers. Mr. BECK, of Kentucky. Would it be in order to have again read to the House the certificate of the acting Secretary of State of Texas? The SPEAKER. It would. The certificate was again read. Mr. DAWES. I would like to have the statute of Texas on this subject read to the House. The SPEAKER. The Chair will not per mit anything to be read in the nature of de bate. Mr. DAWES. Not a statute ? The SPEAKER. Not even, that. Mr. SPEER. Is it in order to have read the 402 TWENTY-SECOND PRESIDENTIAL TERM. act of Congress referred to in the objection made by the Senator from Illinois? Mr. BINGHAM. I object. The SPEAKER. The Chair thinks it can not be done. Mr. WOOD. Is it in order to move a sub stitute for the resolution of the gentleman from Massachusetts [Mr. DAWES] ? The SPEAKER. It would be if the gentle man yields the floor without calling the pre vious question on his resolution. Mr. .DAWES. I think the statute of the State of Texas should be read, as it all depends on that. The SPEAKER. The gentleman from Mas sachusetts [Mr. DAWES] will perceive that read ing the statute of the State of Texas would be in the nature of debate on this point. The rule is as absolute as language can make it, that all points on which the joint convention may differ must be determened without debate. Mr. DICKEY. I ask unanimous consent of the House that the statute of the State of Texas be read, with reference to the next point coming from the joint convention. Mr. STEVENSON. It is a joint rule that prescribes there shall be no debate. The SPEAKER. A rule which the House cannot vary. Mr. DA WES. % Is it in order to take a recess for ten minutes ? The SPEAKER. It would not be. Noth ing is in order at this point except the pending resolution. Mr. FARNSWORTH. Is it not as much in order that the Chair should direct the reading of a statute of the United States as that he should direct the reading of a joint rule of the two Houses. The SPEAKER. It is not, because the joint rule is a rule of action for the two Houses. Mr. FARNSWORTH. So is the statute of the United States. The SPEAKER. But the joint rule pre cludes debate upon such a question as this ; and the reading of a statute is certainly in the nature of debate. There might be a statute the reading of which would occupy three hours. Mr. PETERS. We might have all the stat utes read. The question being taken on the resolution of Mr. Dawes, it was agreed to ; there being ayes 107, noes 22. Mr. DAWES moved to reconsider the vote by which the resolution was adopted ; and also moved that the motion to reconsider be Md <$iY. the table. oiiTlaf latter motion was agreed to. The SPEAKER. The Clerk will now report fch^in4sto%gerctian which comes from the joint e@fovtenCTO.rii-.ri siij m The Clerk read as follows : Mr. DICKEY oW^V^^fitife counting of the elec toral vote of he r tftafreo>f )f exas -because four elec- C0M,Mttlt6l*a ^jidLtyjofilibjjfi! elected, undertook to fill the places of other four electors, who liad been elected and were absent. Mr. DICKEY. I offer the following reso lution : Resolved, That in the judgment of this House the electoral vote of the State ^of Texas for President and Vice-President ought not to be counted, for the reason that four electors, less than a majority of those elected, undertook to fill the places of other four electors who had been elected and were absent. Mr. DAWES. I move to amend the resolu tion by substituting the following after the word resolved:" That the vote of Texas ought to be counted. Mr. RANDALL. Let us vote down the res olution. Mr. DAWES. Very well; I withdraw my substitute. Mr. BANKS. I move to amend the resolu tion by striking out all after the word " re solved" and inserting the following : That a quorum is an arbitrary number, which each State has a right to establish for itself; and as it does not appear that the choice of electors was in conflict with the law of that State as to a quorum for the transaction of business, tlie vote of the electors for President and Vice-President should be counted. Mr. DICKEY. If this House will allow the statute of Texas to be read Mr. ELDREDGE. I raise a point of order that the pending amendment of the gentleman from Massachusetts [Mr. BANKS] is simply an argument upon the question. Mr. PETERS. A very good argument. The SPEAKER. The Chair overrules the point of order. Mr. BANKS. I call for the previous ques tion. The previous question was seconded and the main question ordered ; and under the opera tion thereof the amendment of Mr. BANKS was agreed to, and the resolution as amended adopted. Mr. BANKS moved to reconsider the vote by which the resolution was adopted; and also moved that the motion to reconsider be laid on the table. The latter motion was agreed to. Mr. DAWES. I move that copies of the resolutions adopted by the House be communi cated forthwith to the Senate. Mr. GARFIELD, of Ohio. And that the Senate be notified that the House is ready to receive them. The SPEAKER. The Clerk intimates that there is no necessity for the order suggested by the gentleman from Ohio. The Clerk makes that notification as a matter of course. Mr. GARFIELD, of Ohio. I simply pro posed that the Senate should be notified we are ready to receive them. The SPEAKER. If the House lias acted on all the business coming from the joint conven tion, the presumption is that the House is ready to receive the Senate. ULYSSES S. GRANT, PRESIDENT. 403 Mr. BAKK3. I move that the House take a recess for five minutes. The motion was agreed to. The recess having expired, the Speaker again called the House to order. Mr. KERR (after a pause). Mr. Speaker, would it be in order now to make a report from the Committee of Ways and Means for immediate action? The SPEAKER. The Chair thinks nothing is in order except what relates to the counting of the electoral votes. Mr. WOOD. "Would it be in order to move to take a recess ? The SPEAKER. It would ; but the Chair is advissd that the Senate may be expected to return every moment. Mr. WOOD. I give notice that if the Sen ate does not return within ten minutes, I shall move a recess till to-morrow. The SPEAKER. That, of course, will be in order. At five o clock and five minutes p. M. the Senate in a body reentered the Hall. The VICE-PRESIDENT (having resumed the chair). Two objections having been made to the counting of the votes of the electors of the State of Texas, the Senate upon the first objection, made by the Senator from Illinois [Mr. TECMBULL], resolved as folloAVs; Resolved, That the electoral vote of the State of Texas be counted, notwithstanding the objection raised by Mr. Trumbull. And the House of Rapresentatives resolved as follows: Risolvid, That in the judgment of this House the vote of Texas should be counted as reported by the tellers. On the second objection, by Mr. Dickey, the Senate resolved as follows : Resolvel, That the objection raised by Mr. Dickey to counting the electoral vote of the State of Texas be and the same is overruled. And tho House of Representatives resolved as follows : Resolw.l, That a quorum is an arbitrary number, which eaoh State has the right to establish for itself, and as it does not appear tiiat the choice of electors was in conflict with the law of Texas as to a quorum for the transaction of business, the vote of the elect ors for President and Vice-President be counted. So (the two Houses having concurred) the electoral vote of Texas, under the twenty-sec ond joint rule, will be counted. The presiding officer now presents to the tellers the electoral vote of the State of Iowa. Mr. SPEER. Is it in order for this joint convention to take a recess until to-morro w at half-past twelve o clock ? The VICE-PRESIDENT. It is not ; it must be done, if at all, by each House separately. The VICE-PRESIDENT presented the elec toral votes of the States of Iowa, Wisconsin, California, Minnesota, Oregon, Kansas, West Virginia, Nevada, and Nebraska to the tellers; and they were counted without objection. The VICE-PRESIDENT. The Chair in pre senting the electoral vote of the State of Flor ida will state that the copy directed to be sent by law to the President of the Senate by mail was received on the llth of December, 1872, and the copy by messenger was received at the Department of State, and in the absence of the Vice-President by the President pro tempore of the Senate on the 2d of January, 1873. Mr. BECK, of Kentucky (one of the tellers), read the electoral vote and the accompanying certificates, and the vote of the State of Flor ida was counted without objection The VICE-PRESIDENT. The Chair in pre senting the electoral vote of the State of Ar kansas states it was received by him by mail on the llth of December, 1872, and by messen ger at the Department of State, and in the ab sence of the Vice-President by the President * pro tempore of the Senate on the 28th of De cember, 1872. On the 4th or 5th day of Feb ruary, during the present month, a person claming to be the messenger commissioned to bring the electoral vote of the State of Arkan sas presented himself at the Vice-President s room with a paper, not in the form of law, but addressed to him as President of the Senate, and stated to him what he alleged to be its con tents, representing himself to be commissioned as messenger to bring the vote. The Vice- President said he would open the paper, as it \vas addressed to him, but he would not receive it even informally. After reading its contents he found that it did not in any respect comply with the requirements of the law on the sub ject. The papers presented on the llth of De cember and the 28th of December are now submitted to the tellers. Mr. RICE. I ask the tellers to read in full the returns from Arkansas, Mr. SHERMAN (one of the tellers) accord ingly read the papers in the case of Arkansas, as follows : STATE OF ATCKAXSAS, LITTLE EOCK, December 4, 1872. We, the undersigned electors, elected, as shown by the accompanying certificate, at the general elec tion held in the State of Arkansas, November 5, 1872, for a President and Vice-President of the Unit ed States for the term commencing March 4, 1873, met in the city of Little Kock, State aforesaid, on Wednesday, the 4th day of December, 1872, and proceeded to vote by ballot, with the following re- suit: D. S. Griffin, W. W. Grander, Thomas II. Barnes, W. H. Howes, Arthur Hemingway, and L. G. Wheel er each cast one vote for Ulysses s. Grant for Presi dent of the United States for the term aforesaid, and D. S. Griffin, W. W.- Granger, Thomas H. Barnes, W. II. Howes, Arthur Hemingway, and L. G. Wheel er each cast one vote for Henry Wilson for Vicer President of the United States for the term afore said, making six votes cast by said electors for each of the respective candidates above named. D. S. GRIFFIN, W. W. GRANGER, THOMAS H. BARNES. W. H. HOWES, ARTHUR HEMINGWAY. L. G. WHEELEE. 404 TWENTY-SECOND PRESIDENTIAL TERM. STATE OF ARKANSAS, STATE DEPARTMENT, LITTLE EOCK, December 4, 1872. I, J. M. Johnson, Secretary of State of Arkansas, certify that the following is the true and correct list of electors in and for the State of Arkansas to vote for a President and Vice-President of the United States for the term commencing March 4, 1873, who were elected at the general election held in pursu ance of law in this State, November 5, 1872, name ly, D. S. Griffin, W. W. Granger, and Thomas H. Barnes, from the State at large ; W. H. Barnes, from first congressional district; Arthur Heming way, from second congressional district; L. G. Wheeler, from third congressional district. In testimony whereof, I have hereunto set my r 1 hand and seal of office at Little Bock, this >J 4th day of December, A. D. 1872. J. M. JOHNSON, Secretary of State. Senator CONKLING. When was that pa per received? Senator SHERMAN (one of the tellers). December 11, 1872. The VICE-PRESIDENT. That was by mail, and on the 28th of December by messenger. Senator RICE. I object to counting the vote of Arkansas, and will reduce my objec tions to writing. I have to change them a little on account of hearing the returns which have been read. Senator HAMLTN. While the Senator from Arkansas is reducing his objections to writing, I propose we proceed to the electoral vote of the State of Louisiana, on which we all know there will be a separation, so that there may be but one separation in reference to the elec toral votes of the State of Arkansas and of the State of Louisiana. . The VICE-PRESIDENT. Is there objec tion, as there remains only one electoral vote, that of the State of Louisiana, to be read? Senator THURMAN. I did not distinctly hear from the Chair whether there were two returns from Arkansas, or whether the one was a duplicate of the other. The VICE-PRESIDENT. There is only one return made in conformity to law from Arkan sas; one being received by messenger and the duplicate by mail. On the 4th of February others were received, which were entirely in formal. Senator THURMAN. Are they duplicates of each other ? The VICE-PRESIDENT. These are dupli cates. Senator THURMAN. How is it with the others ? The VICE-PRESIDENT. The informal re turns were signed by three out of the six elec tors, and they stated that they could not ob tain the certificate of the Governor, and that they therefore inclosed certain correspondence of the Governor, which was not, however, in closed. They were not sealed or indorsed on the back. The Chair opened them on the dis tinct understanding that they were informal, because they were directed to him as any other letter might be. From Louisiana there have been received two returns sent by mail and two by messen ger, each of the last having been received by the Secretary of State, in the absence of the Vice-President and the President of the Sen ate pro tempore from the seat of Government. The first return, made by L. C. Roudanez, was received on the 31st of December, within the time required by the Constitution. The second return was received on the 2d of January, be ing one day within the time required by the Constitution. What appeared to be the dupli cates were received by mail "on the 10th and 14th of December. The Chair will first sub mit those returns which reached the office of the Secretary of State, in accordance with law, on 31st of December. One of the tellers on the part of the House will report the one first received at the Department of State. The duplicate received by mail is in the hands of the teller on the part of the Senate. Mr. DAWES (one of the tellers) read the fol lowing papers : OFFICE OF SECRETARY OF STATE, PARISH OF ORLEANS, STATE OF LOUISIANA, December 3, A. D. 1872. I, George E. Bovee, Secretary of State for the State of Louisiana, do hereby certify that the re turning officers of the election held in said State on the 4th day of November, A. D. 1872, have returned to me as Secretary of State according to law the fol lowing persons as duly elected electors of President and Vice-President of the United States for the State of Louisiana at such election, to wit: for the State at large : M. F. Bonzano, Jules Lanabere, Charles E. Halstead. For the districts: first dis trict, L. C. Eoudanez ; second district, A. K. John son ; third district, Milton Morris ; fourth district, Joseph K. Taylor ; fifth district, John Kay. In testimony whereof 1 have hereunto signed my name and caused the seal of the State to be I -| attached, this 3d day of December, A. D. S -J 1872, and of the independence of the United States the ninety-seventh. GEOEGE E. BOVEE, Secretary of State. UNITED STATES OF AMERICA, STATE OF LOUISIANA, NEW ORLEANS, December 4, 1872. We, the electors of President and Vice-President of the United States for the State of Louisiana, do hereby certify, that on proceeding to vote by ballot for President of the United States, on the date above, that Ulysses S. Grant, of the State of Illi nois, received eight votes for President of the United States, and there were no votes cast for any other person. And on proceeding to vote by ballot for Vice- President of the United States, that Henry Wilson, of the State of Massachusetts, received eight votes for Vice-President of the United States, and there were no votes cast for any other person. In testimony whereof, we, said electors, have hereunto signed our names, the date above men tioned. E. P. DUEAND, JAMES B. LOTT, JOHN EAY, M. F. BONZANO, J. J. LANABERE, CHAELES E. HAXSTEAD, L. C. ROUDANEZ, A. K. JOHNSON. ULYSSES S. GRANT, PRESIDENT. 405 [Copy.] The following persons, elected electors of Presi dent and Vice-Presiclent of the United States accord ing to the certificate of the Secretary of State of the State of Louisiana, namely : for the State at large, M. F. Bonzano, Jules Lanabere, and Charles E. Halstead. For the districts : first district, L. C. Roudanez ; second district, A. K. Johnson ; fifth district, John Kay, met at Mechanics Institute, in the Lieutenant-Governor s parlor, the building leased and occupied by the State for the use of the Senate and House of Representatives and State offi cers, at three o clock p. M., on the first Wednesday of December, being the 4th day of aaid month, Milton Morris, of the third district, and Joseph K. Taylor, of the fourth district, being absent, when, on mo tion of John Ray, Dr. M. F. Bonzano was selected to preside : and on motion of A. K. Johnson, Charles E. Halstead was appointed secretary. The meeting having taken a recess until four o clock P. M., met again at that hour; when, upon roll-call, it appeared that Milton Morris and Joseph K. Taylor were not present, having failed to attend. Qn motion of John Ray, the electors present pro ceeded to supply such vacancies by ballot. A. K. Johnson and L. C. Roudanez were appointed tell ers; when, after balloting, it was found that E. R. Durand received four votes and W. B. Phillips two, and E. R. Durand was declared elected to fill the vacancy of Milton Morris ; and Joseph B. Lott re ceiving four and R. Blunt three votes, Mr. Lott was declared elected to fill the vacancy of Joseph K. Taylor ; both the parties so elected residing in the congressional districts represented by the respec- tive absentees. The persons so elected, being present, took their seats as electors. The said electors then proceeded to vote by ballot for President and Vice-President of the United States ; when A. K. Johnson and L. C. Roudanez were appointed tellers ; and upon count ing the ballots for President of the United States, it was found that Ulysses S. Grant, of the State of Illi nois, had received eight votes for President of the United States ; and upon counting the votes for Vice- President of the United States^ it was found that Henry Wilson, of the State of Massachusetts, had received eight votes for Vice-President of the Uni ted States, the vote being unanimous for each, no other person having received any votes for either office; and said electors have issued three certifi cates in the form following, to wit : UNITED STATES OF AMERICA, STATE OF LOUISIANA, NEW ORLEANS, December 4, 1872. We, the electors of President and Vice-President of the United States for the State of Louisiana, do hereby certify that on proceeding to vote by ballot for President and Vice-President of the United States, on the date above, Ulysses S. Grant, of the State of Illinois, received eight votes for Presi dent of the United States, and there were no votes east for any otlxer person. And on proceeding to vote by ballot for Vice- President of the United States, that Henry Wilson, of the State of Massachusetts, received eight votes for Vice-President of the United States, and there were no votes cast for any other person. In testimony whereof, we, said electors, have hereto signed our names, the date above mentioned. Which certificates were placed separately in en velopes and sealed up carefully, and on each enve lope was indorsed, that the within contains a list of the votes of the State of Louisiana for President and Vice-President of the United States, one of which was given to the person appointed to convey the vote to the President of the Senate, and was direct ed to the President of the Senate, and another in dorsed in the same way was put in the post-office, and the other deposited with the judge of the dis trict court of the United States for the district of Louisiana. On motion of John Ray, the electors proceeded to appoint a person to take charge of and deliver to the President of the Senate at the seat of Govern ment, before the first Wednesday in January next ensuing, one of said certificates ; when L. C. Rou danez was appointed to the above service, and said electors made and signed a certificate of such ap pointment in the following form: UNITED STATES OF AMERICA, STATE OF LOUISIANA, PARISH OF ORLEANS, Wednesday, December 4, 1872. We, the undersigned, electors of President and Vice-President of the United States for the State of Louisiana, do hereby appoint L. C. Roudanez to take charge of and deliver to the President of the Senate of the United States at the seat of Govern ment, before the first Wednesday in January next, one of the certificates of the votes cast by the un dersigned for President and Vice-President of tiie United States on the date above. In testimony whereof, we have Lereto signed our names the date above. On motion, the meeting adjourned until to-mor row at two o clock P. M. NEW ORLEANS, LOUISIANA, December 5, 1872. The electors met pursuant to adjournment, the following electors present : M. F. Bonzano, Jules Lanabere, C. E. Halstead, L. C. Roudanez, A. K. Johnson, P. E, Durand, James B. Lott, John Ray. The minutes of the previous meeting were read and approved. On motion, the meeting adjourned until to-mor row at two o clock p. M. NEW ORLEANS, LOUISIANA, December 6, 1872. The electors met pursuant to adjournment, the following members present : M. F. Bonzano, Jules Lanabere, C. E, Halstead, L. C. Roudanez, A. K. Johnson, P. E. Durand, J. B. Lott, John Ray. The minutes of the previous meeting were read and approved. On motion, the meeting adjourned until Monday, December 9, 1872, at two o clock p. M. NEW ORLEANS, LOUISIANA, December 9, 1872. The electors met pursuant to adjournment, the following members present : M. F. Bonzano, Jules Lanabere, C. E. Halstead, L. C. Roudanez, P. E. Durand, J. B. Lott, John Ray ; absent, A. K. John son. The minutes of .the previous meeting were read and adopted. On motion*, the board adjourned sine die. M. F. BONZANO, President. CHARLES E. HALSTEAD, Secretary. The VICE-PRESIDENT. On the 10th of December last the Chair received an envelope by mail, certifying on the outside that it con tained the vote for President and Vice-Presi dent of the State of Louisiana, signed by eight other persons. On the 2d day of January, being the first Thursday after the first Wednes day in January, a messenger arrived with a sealed envelope signed by the same persons, which was received by the Department of State in the absence from the city of the Vice- President and the President pro tempore of 406 TWENTY-SECOND PRESIDENTIAL TERM. the Senate, which was represented to contain the same vote of the State of Louisiana. The Chair now delivers the papers so received to the tellers. Mr. DAWES (one of the tellers on the part of the House) read the following papers : United States of America, the State of Louisiana, city of j\ 7 ew Orleans : Be it known that on this the 4th day of the month of December. A. D. 1872, and of the American inde pendence the ninety-seventh year, at the seat of gov ernment, to wit, at the city of New Orleans, at the capitol of said State, at twelve M., met Messrs. T. C. Manning, C. A. Weed, and Andrew S. Herron, and Hugh J. Campbell, Louis Bush, Allen Thomas, and L. V. Reeves, who appear to be electors for the State of Louisiana by the annexed certificate of the Ex ecutive of said State attached hereto as part of these presents, when the said electoral college, having ascertained that A. II. Leonard, Esq., elector for the fourth district was absent, according to the require ments of the statutes of the State of Louisiana (Re vised Statutes, art. 2830), a respite was taken until four p. M. In conformity to the aforesaid respite, at four p. M. of the 4th day of December of the year aforesaid, the above-named electors met at the same place, when the said A. H. Leonard, still appearing to be absent, the college proceeded by ballot as required by the statutes of the State of Louisiana to supply the vacancy. After the ballots had been duly cast, they were duly canvassed by the chairman of the college, Hon. T. C. Manning, when it appeared that Hon. J. C. Moncure, of the parish of Caddo, a resi dent of the fourth congressional district, was duly elected to fill the vacancy occasioned by the absence of A. H. Leonard. Thus organized, the college then formally select ed Hon. T. C. Manning as chairman of the college. Whereupon the chairman submitted to the college the annexed certificate of the Executive of the State of Louisiana, and the proceedings of the college selecting Hon. J. C. Moncure, in lieu of A. H. Leon ard, Esq., as their credentials. Under the authority and by virtue of the Constitu tion and laws of the United States and of the State of Louisiana, the college then proceeded to vote for President of the United States, when it was ascer tained that the eight electors present voted each separately in blank, designating no person as the choice of the college for President of the United States. Acting under the same authority and by virtue of the government and law aforesaid, the college then proceeded to vote for Vice-President of the United States, when it was ascertained that T. C. Manning, Andrew S. Herron, and C. H. Weed, electors at large, and Hugh J. Campbell, Louis Bush, Allen Thomas, J. C. Moncure, and L. V. Reeves, district electors, each separately voted for B. Gratz Brown, of the State of Missouri, for Vice- President of the United States. In faith whereof, we hereunto fix our respective signatures at the city of New Orleans, seat of gov ernment of the State of Louisiana, on the day, month, and vear aforesaid. T. C. MANNING, ANDREW S. HERRON, C. H. WEED, HUGH J. CAMPBELL, LOUIS BUSH, ALLEN THOMAS, J. C. MONCURE, L. V. REEVES. Mr. DAWES (one of the tellers). Then fol lows a certificate of the official count of the votes polled at the election held on the 4th of November. Then there is the following paper: United States of America, State of Louisiana, C tty of JXew Orleans : I, H. C. Warmoth, Governor of the State of Lou isiana, do hereby certify that the foregoing signature of P. B. Blanchard, State registrar of voters for the State of Louisiana, is genuine; and i do further cer tify that Messrs. T. C. Manning, A. S. Herron, and C. H. Weed, for the State at "large, and Hugh J. Campbell, for first district ; Louis Bush, second dis trict ; Allen Thomas, third district ; A. H. Leonard, fourth district, and L. V. Reeves, fifth district, were duly and legally elected presidential electors for the State of Louisiana, at an election held in said State on the 4th day of November, A. D._1872, pursuant to .ited States and State of Louisiana on the subject. the statutes of the Congress of theUni ^ In faith whereof I have hereunto affixed my official signature and caused the great seal of the State to be hereto attached, at the city of New Orleans, Capitol of the State, this 4th day of December, A. D. 1872, and of the independence of the United States the ninety-seventh. H. C. WARMOTH. By the Governor: Y. A. WOOD WARD, [L. s.] Assistant Secretary of State. Senator WEST. I object to the reception by the Senate and House of Representatives of the electoral vote of Louisiana as certified to by the Governor of that State, upon the ground that said certificate was not made in pursuance of law. Mr. SHELDON. I also ohject to the count ing of the votes cast by T. 0. Manning, 0. II. Weed, A. S. Herron, Hugh J. Campbell, L. Bush, A. Thomas, J. C. Moncure, and L. V. Reeves, of Louisiana, for B. Gratz Brown of Missouri, for Vice-President, for the reason that the certificate of the Governor showing them to have been chosen electors is not signed hy the person who was at that time assistant Secretary of State for the State of Louisiana, and for the further reason that at the time said certificate was executed there had not been made any count, canvass, or return of the votes cast by the people of Louisiana for electors hy any lawful authority, and the said certificate was made by the Governor without any authentic knowledge of the result of the election hy the people of said State, which facts are fully established hy the testimony taken hy the Senate Committee on Privileges and Elections, and are stated in their report to the Senate. Senator CARPENTER. I object to the counting of the votes given for TJ. S. Grant for President, and Henry Wilson, Yice-President, by the electors of Louisiana, because there is no proper return of votes cast by the electors of the State of Louisiana, and because there is no State government in said State which is republican in form, and because no canvass or counting of the votes cast for electors in the State of Louisiana at the election held in November last had been made prior to the meeting of the electors. Mr. POTTER. I object to counting the electoral votes from the State of Louisiana as cast for yiysses S. Grant for President and ULYSSES S. GRANT, PRESIDENT. 407 Henry Wilson for Vice-President, for the rea son that there is no certificate from the execu tive authority of that State as required by the act of Congress of 1792, certifying that the persons who cast such votes were appointed electors of said State, but that on the contrary it appears by the certificate of the Governor of said State that the persons appointed electors were not the persons who cast such votes for U. S. Grant and Henry Wilson, but were per sons who cast their votes not for said Grant and Wilson, but for no person as President, and for B. Gratz Brown as Yice-President. Mr. STEVENSON. I object to counting the votes from the State of Louisiana, because it does not sufficiently appear that the electors were elected according to law. Senator BOREMAN. I object to counting any votes from the State of Louisiana, for rea sons set forth in the report of the Committee on Privileges and Elections submitted to the Senate on the 10th instant, and printed as Report No. 417 of Forty-Second Congress, third session. Senator TRUMBULL. I object to the count ing of the votes cast by the. persons in the first certificate read, for the reason that their election is not certified to by the proper offi cers ; that Bovee, who signed the certificate of their election, was not Secretary of State at the time of making said certificate, nor in possession of the office of Secretary of State nor of the seal of said State ; and for the further reason that the certificate of said Bovee is untrue in fact, as appears by the ad missions of said Boveo before the committee of the Senate. The VICE-PRESIDENT. There have been seven objections made in regard to receiving the votes of Louisiana, some of them against receiving any vote from that State. The Chair would suggest that in taking up these objec tions the two Houses might act first upon those which lie to the counting of the vote of Louisiana at all. Objection was made. The VICE-PRESIDENT. Objection being made, each House will proceed to consider the objections made in such order as they may happen to be presented to that House. If no further objections be made to the vote of Louisiana, the seven that have been made will be filed, and copies furnished to the two branches of Congress. No further objections were made. Senator RICE. I object to the counting of the votes of the State of Arkansas, because the official returns in said State, made according to the laws of said State, show that the per^ sons certified to by the Secretary of State as elected were not elected as electors for Pres ident and Vice-President at the election held November 5, 1872 ; and secondly, because the returns read by the tellers are not certified ac cording to law. The Senate retired from the Hall. The House was again called to order. Mr. WOOD. I now move that the House take a recess until to-morrow at twelve o clock M. Mr. GARFIELD, of Ohio, and others. Oh, no ! The SPEAKER. The question is not debat able. Mr. BINGHAM. I raise the point of order that the two Houses being practically in joint convention, an adjournment cannot take place without the concurrence of both. The SPEAKER. It is competent for the House to take a recess. The Clerk will read that portion of the rule relating to this subject. The Clerk read as follows: " Such joint meeting shall not ba dissolved until the electoral votes are all counted and tho result de clared; and no recess shall be taken unless a ques tion shall have arisen in regard to counting any of such votes, in which case it shall be competent for either House, acting separately in the manner here inbefore provided, to direct a recess not beyond the next day, at the hour of one P. M, Mr. SPEER. I move to amSnd the motion of the gentleman from New York [Mr. WOOD] by striking out " twelve o clock M." and insert ing u ten o clock A. M." Mr. PLATT. I move to amend so as to fix half-past seven this evening as the hour for the reassembling of the House. The amendment of Mr. PLATT was not agreed to. The amendment of Mr. SPEER was not agreed to, there being yeas 33, nays not counted. Mr. LYNCH. I move to amend the motion of the gentleman from New York [Mr. WOOD] by inserting " eleven o clock A. M." instead of "twelve o clock M." The amendment of Mr. LTXCII was not agreed to. The question recurring on the motion of Mr. WOOD, to take a recess until twelve o clock M. to-morrow, the question was taken, and there were yeas 65, nays 55. Mr. GARFIELD, of Ohio, called for tellers. Mr. HOAR. I call for the yeas and nays. The yeas and nays were ordered. The question was taken ; and it was decided in the negative yeas 81, nays 101, not voting 58 ; as follows : YEAS Messrs. Acker, Adams, Archer, Arthur, Banks, Barnum, James B. Beck, Bigby, Biggs, Bird, Austin Blair, Boles, Braxton, Bright, Burchard. Cobb, Comingo, Oossland, Davis, Dodds, Dox,Du- Bose, Eldredge, Henry I). Foster, Getz, Giddings, Golladay, Griffith, Haldeman, Hancock, Handley, Hanks, Gerry W. Hazelton, Hereford, Herndon, Hibbard, Hoi man, Iloughton, Kerr, Lamison.Laaoh, Maclntyre, Manson, Marshall, Maynard, McClel land, McCormick, McIIenry, McKinney, Merrick, Morgan, Morphis, Silas L.-Ni black, William E Nib- lack, Hosea W. Parker, Perry, Potter, Randall, Read, William R. Roberts, Robinson, John Rogers, Shanks, Sherwood, Slater, Slocum, John A. Smith, Speer, Stevens, Storm, Sutherland, Terry, Van Trump, Voorhees, Waddell, Warren, Wells, Williams of New York, Winchester, Wood, and Young 81. NAYS Messrs. Ambler, Averill, Barber, Barry, Beatty, Bell, Bingham, James G-. Blair, Buckley. 408 TWENTY-SECOND PRESIDENTIAL TERM. Buffinton, Bunnell, Burdett, Eoderick E. Butler, Carrol], Coburn, Coghlan, Conger, Cotton, Darrall, Dawes, Donnan, Duke, Dunnell, Earnes, Elliott, Esty, Farnsworth, Farwell, Finkelnburg, Charles Foster, Wilder D. Foster, Frye, Garfleld, Hale, Hal- sey, Harmer, Harper, George E. Harris, John B. Hawley, Joseph R. Hawley, Hay, Hays, Hill, Hoar, Hooper, Kellogg, Ketchain, Killinger, Lamport, Lowe, Lynch, MeGrew, McJunkin, McKee, Merriam, Monroe, Moore, Morey, Leonard Myers, Negley, Orr, Palmer, Isaac C. Parker, Peck, Pendleton, Perce, Peters, Platt, Poland, Porter, Eaincy, Ellis H. Eob- erts, Sion H. Eogers, Busk, Sargent, Sawyer, Sco- field, Sessions, Shellabarger, Shoemaker, H. Board- man Smith, Snyder, Sprague, Starkweather, Steven son, Stoughton, Stowell, St. John, Sypher, Tatfe, Thomas, Washington Townsend, Turner, Twichel.l, Upson, Wakeman, Waldron, Wallace, Williams of Indiana, and Jeremiah M. Wilson 101. NOT VOTING Messrs. Ames, Erasmus W. Beck, Boarman, Brooks, Benjamin F. Butler, Caldwell, Campbell, Clarke, Conner, Cox, Crebs, Creely, Critcher, Crocker, Dickey, Duell, Ely, Forker, Gar- rett, Goodrich, Hambleton, John T. Harris, Havens, John W. Hazleton, Kelley, Kendall, King, Kinsella, Lansing, Lewis, McCrary, McNeely, Benjamin F. Meyers, Mitchell, Packard, Packer, Price, Prindle, Edward Y. Eice, John M. Eice, Eitchie, Eoosevelt, Seeley, Sheldon, Shober, Sloss, Worthino-ton C. Smith, Snapp, Swann, Dwight, Townsend, Tuthill, Tyner, Vaughan, Walden, Wheeler, Whiteley, Whit- tliorne, Willard, and John T. Wilson 58. So the motion to take a recess was not agreed to. The SPEAKER. The Clerk will now read the objection made in joint convention by the Senator from Arkansas [Mr. RICE] to the counting of the vote from that State. The Clerk read as follows: Mr. EICE objects to counting the vote of the State of Arkansas because the official returns of the elec tion in said State, made according to the laws of said State, show that the persons certified to by the Secretary of State as elected were not elected as electors for President and Vice-President at the election held November 5, 1872: second, because the returns read by the tellers are not certified accord ing to law. Mr. SNYDER. I offer the following reso lution : ?, That the presidential electors from the State of Arkansas, whose election on the 5th dav of November, 1872, is attested by the certificate of the Secretary of State, be, and they are hereby, recog nized as the duly chosen electors for said State ; and that the vote cast, certified and returned by them for Ulysses S. Grant for President and Henry Wil son for Vice-President, be counted as the vote of said State for President and Vice-President of the United States. Mr. DAWES. I suggest to the gentleman from Arkansas he offer a resolution simply resolving that the electoral vote of Arkansas be counted as reported by the tellers. Mr. GARFIELD, of Ohio. I hope that will be done. The Senate resolutions are short and crisp. Mr. KELLOGG. I offer the following sub stitute : Resolved, That the electoral vote of Arkansas be counted. Mr. DAWES. It ought to be that in the judgment of the House the electoral vote be counted. e Mr. KELLOGG. I will modify my resolu tion in that way, that in the judgment of this House the electoral vote of the State of Ar kansas, as reported by the tellers, be counted. Mr. DAWES. I demand the previous ques tion. Mr. FARNSWORTH. We are now acting under the joint rule of the two Houses, and I make the point of order there is no such thing as the previous question. The SPEAKER. The point of order is not well taken. Mr. FARNSWORTH. The previous ques tion is moved for the purpose of cutting off debate, and it is specially provided in the twenty-second joint rule that no debate shall be allowed on these questions. The SPEAKER. The previous question is not only to cut off debate but to cut off amend ments. There is nothing in the joint rule to prevent the usage and practice of this House. Mr. KELLOGG. I insist on the demand for the previous question. The previous question was seconded and the main question ordered ; and under the opera tion thereof Mr. KELLOGG S substitute was adopted. The question then recurred on the resolution as amended. The House divided ; and there were yeas 78, nays 45. Mr. FARNSWOKTH demanded tellers. Tellers were not ordered. Mr. FAENSWOKTiidemanded the yeas and nays. The yeas and nays were ordered. The question was taken, and it was decided in the affirmative yeas 103, nays 26, not voting 111 ; as follows: YEAS Messrs. Ambler, Ames, Averill, Banks, Barber, Barry, Bigby, Bingham, Austin Blair, Brax- ton, Buckley, Buffinton, Bunnell, Burchard, Bur dett, Eoderick E. Butler, Coburn, Coghlan, Conger, Cotton, Darrall, Dawes, Dodds, Donnan, Duke, Dun- neil, Eames, Elliott, Esty, Farwell, Finkelnburg, Charles Foster, Wilder D. Foster, Frye, Garfield, Golladay, Hale, Halsey, Harmer, Harper, George E. Harris, "John B. Hawley, Joseph E. Hawley, Hay, Hays, John W. Hazleton, Ilibbard, Hill, Houghton, Keil ogg, Kerr, Lamport, Lowe, Lynch, Maynard, McJunkin, McKee, Merriam, Leonard Myers. Neg ley, Orr, Packard, Palmer, Isaac C. Parker, Peck, Pendleton, Perry, Peters, Platt, Poland, Porter, Eainey, Ellis H. Eoberts, Eusk. Sargent, Sawyer, Scofield, Sessions, Shanks, Sheldon, Shoemaker, II. Boardman Smith, Snyder, Sprague, Starkweather, Stevenson, Stoughton, Stoweil, St. John, Sypher, Washington Townsend, Turner, Twichell, Tyner, Upson, Voorhees. Waddell, Wakeman, Waldron, Wallace, Warren, Willard, and Williams of Indiana 103. _N AYS Messrs. Acker, Archer, ^ Arthur, Bell, Biggs, Boles, Du Bose", Farnsworth, Giddings, Hern- don, Holman, Maclntyre. McClelland, Merrick, Moore, Morphis, Potter, Price, Eead, Shober, Storm, Sutherland, Terry, Wells, Winchester, and Wood 26. NOT VOTING Messrs. Adams, Barnum, Scatty, Erasmus W. Beck, James B. Beck, Bird, James G. Blair, Boarman, Bright, Brooks, Benjamin F. But ler, Caldwell, Campbell. Carroll, Clarke, Cobb, ULYSSES S. GRANT, PRESIDENT. 409 Comingo, Conner, Cox, Crebs, Creely, Critcher, Crocker, Crossland, Davis, Dickey, Dox, Duell, Eld- redgo, Ely, t orker, Henry D. Foster, Garrett, Getz, Goodrich, Griffith, Haldeman, Hambleton. Han cock, H.indley, Hanks, John T. Harris, Havens, Gerry W. Hazleton, Hereford, Hoar, Hooper, Kel- i T-T- T 11 rr . TT TI* .. I/": T7":., ^11 . ney, McNeely, Benjamin F. Myers, Mitchell. Mon roe, Morey, Morgan, Silas L. JSfiblack, William E. Niblack, Packer, llosea W. Parker. Perec, Pdndle, Randall, Edward Y. Rice, John M. Rice, Ritchie, William R Roberts, Robinson, John Rogers, Sion H. Rogers, Roosevelt, Seeley, Shellabarger, Sher wood, Slater, Slocum, Sloss, John A. Smith, Worth- ington C. Smith, Snapp, Speer, Stevens, Swann, Taffe, Thomas, Dwig-ht Townsend, Tuthill, Van Trump, Vaughan, Walden, Wheeler, Whiteley, Whitthorne, Williams of New York, Jeremiah M. Wilson, John T. Wilson, and Young 111. So the resolution as amended by Mr. KEL- LOGO S substitute was adopted. Mr. SXYDER moved to reconsider the vote by which the resolution was adopted ; and also moved that the motion to reconsider be laid on the table. The latter motion was agreed to. Mr. ACKER. If I have the floor, I move that the House take a recess until ten o clock to-morrow morning. Mr. GARFIELD, of Ohio. I offer the fol lowing resolution. The Clerk read as follows : Resolved, That in the judgment of this House none of the returns reported by the tellers as the electoral vote of the State of Louisiana should be counted. Mr. SPEER. I offer the following as a sub stitute : Resolved, That the vote of Louisiana for B. Gratz Brown, of Missouri, for Vice-President, should, in the judgment of this House, be counted. Mr. GARFIELD, of Ohio. I must demand the previous question. Mr. SPEER. I modify my substitute so as to add " but no vote for President should be counted." Mr. STEVEN S ON". I move the following as a substitute : Resolved, That the vote of the State of Louisiana be not counted, because it does not sufficiently ap pear that any electors were chosen according to law. Mr. SHELDOX. I offer the following pre amble and resolution : Whereas it appears that the choosing M. F. Bon zano. Jules Lauabere, Charles F. Halstead, L. C. Roudanez, A. K. Johnson, Milton Morris, Joseph Taylor, and John Ray, as electors of the State of Louisiana for President and Vice-President, is duly certified to* by the actual Secretary of State of the State of Louisiana, and by the returning board decided to be the legal one by the Supreme Court of said State, and following the precedent established in counting the votes cast by the electoral college of the State of. Texas. Be it resolved, That the votes of the electoral col lege of the State of Louisiana be counted for Presi dent and Vice-President, as cast by M. F. Bonzano Jules Lanabere, Charles F. Halstead, L. C. Rou^ danez, A. K. Johnson, E. R. Durand, Joseph B. Lott, and John Ray. The SPEAKER. More resolutions have been offered than can bo entertained under the rule. Mr. POTTER. I rise to a question of order. I ask whether the proper course is not that the objections taken in joint convention should be reported separately to the House, and res olutions submitted in reference to them. The SPEAKER. The Chair thinks that would be the correct course. At the same time, such a resolution as that of the gentle man from Ohio [Mr. GARFIELD] having been put in first, necessarily removed any action upon the separate objections. If desired by the gentleman from New York [Mr. POTTEB], the objections will be read. Mr. SPEER. I desire to modify my amend ment. The SPEAKER. The Clerk will read the several objections which coma to the House from the joint convention. Mr. POTTER. I do not demand the read ing of them. The SPEAKER. The Chair will now cause to be read the various propositions which have been submitted to the House, and will then call the attention of the House to the parlia mentary position of the question. The gentle man from Ohio, the chairman of the Com mittee on Appropriations [Mr. GARFIELD], offers the resolution which will now be read by the Clerk. The Clerk read as follows : Resolved, That in the judgment of this House none of the returns reported by the tellers as elec- .toral votes of the State of Louisiana should be counted. The SPEAKER. The gentleman from Penn sylvania [Mr. SPEER] moves a substitute, which the Clerk will read. The Clerk read as follows : Resolved, That the vote of the electors of the State of Louisiana, certified to by H. C. Warmoth, Gov ernor, should be, in the judgment of this House, counted. The SPEAKER. The gentleman from Ohio in front of the chair [Mr. STEVEXSON] has of fered the following amendment : Resolved, That the vote of the State of Louisiana be not counted, because it does- not sufficiently ap pear that any electors were chosen according to law. The SPEAKER. That is in effect the same as the first resolution. The Clerk will read the amendment offered by the gentleman from Louisiana. The Clerk read as follows : Whereas it appears that the choosing of M. F. Bonzano, Jules Lanabere, Charles F. Halstead, L. C. Roudanez, A. K. Johnson, Milton Morris, Jo seph Taylor, and John Ray, as electors of the State of Louisiana for President and Vice-President is duly certified to by the actual Secretary of State of the State of Louisiana, and by the returning board decided to be the legal one by the supreme court of said State, and following the precedent established in counting the votes cast by the electoral college of the State of Texas : Be it resolved, That the votes of the electoral col lege of the State of Louisiana be counted for Presi dent and Vice-President as cast by M. F. Bonzano, 410 TWENTY-SECOND PRESIDENTIAL TERM. Jules Lanabere, Charles F. Halstead, L. C. Rouda- nez, A. K. Johnson, E. R. Durand, Joseph B. Lott, and John Ray. Mr. POTTER. I desire to offer a substitute. The SPEAKER. That cannot he done un less by unanimous consent. Only three reso lutions can be entertained ; the original resolu tion, an amendment, and an amendment to the amendment. The gentleman from Ohio, the chairman of the Committee on Appropriations [Mr. GAEFIELD], offered the original resolution. The gentleman from Pennsylvania moves an amendment to that. The gentleman from Ohio [Mr. STEVENSON] moves one which is in effect the same as the original resolution. The Chair, therefore, recognizes the amendment of the gentleman from Louisiana as presenting another phase of the question. The original resolution is to the effect that there is no re turn; the resolution of the gentleman from Pennsylvania [Mr. SPEEE] is that that of Gov ernor "Warmotk is the true one ; that of the gentleman from Louisiana is that the return signed by the Secretary of State is the true one. Three distinct phases of the question are thus presented. Mr. POTTER. Before the vote is taken, I desire to have read the objection which was made in joint convention by Senator TEUM- BULL. The Clerk read as follows : Mr. TRDMBULL objects to counting the votes cast by the persons in the first certificate read, for the reason that their election is not certified to by the pi-oper officer ; that Bovee, who signed the certificate of their election, was not the Secretary of State at the time of making the said certificate, nor in pos session of the office of Secretary of State, nor of the seal of said State; and for the further reason that the certificate of the said Bovee is untrue in fact, as appears by the admission of said Bovee before the committee of the Senate. Mr. POTTER. Mr. Speaker, I wish the tellers to report to the House whether the great seal of the State purports to be on the certificate signed by Mr. Bovee as Secretary of State. The SPEAKER. The Chair knows nothing about the work of the tellers. But the gentle man has the right to have the document read. The Clerk will again report the certificate signed by Mr. Bovee. The certificate was again read. Mr. POTTER. Is there a seal attached to the document ? Mr. BINGHAM. I object to all this. Mr. POTTER. I call attention to the fact that the thing attached The SPEAKER. That is in the nature of ar gument, which the Chair will not permit. The gentleman had a right to call for the reading of the paper, and it has been read. Mr. POTTER. I demand of the Speaker whether the seal of the State of Louisiana is attached to that certificate ? The SPEAKER. The Chair does not know. Mr. BINGHAM. It is certified that it is on it, and that is enough. j Mr. AMBLER. I desire to ask a parliamen tary question. The SPEAKER. The Chair will hear it. Mr. AMBLER. Is it not the right of the House, in passing upon the question now pre sented to it, as to which, if either, of these certificates of the electoral votes of Louisiana shall be received, to know whether in point of fact the seal of the State of Louisiana is at tached to one or both of those certificates ? The SPEAKER. As a matter of fact the Chair never in his life saw the seal of the State of Louisiana, and would not know it if he were to see it now. Mr. AMBLER. Would it not at least be proper that the House should be advised whether the seals attached to the two papers are the same ? The SPEAKER. If the gentleman desires it, the Chair will direct the reading of any other matter that relates to the certificates of the electors of the State of Louisiana. But the Chair cannot indulge and will not permit any debate as to what is the true seal of the State of Louisiana. Mr. AMBLER. Under the statement of the Speaker, I will ask that the statement of Mr. Bovee before the Committee on Privileges and Elections of the Senate be read. Mr. BINGHAM. I object to* that. The SPEAKER. That would be in the nature of debate, and is not in order. Mr. STORM. I ask that the inscription on the seal be read. The SPEAKER, That is proper to be done. The Clerk read the inscription, which was " Union, justice, and confidence ; State of Louisiana." Mr. FARNSWORTH. Is there not another paper somewhere, signed by Bovee, in which he states that he did not put the seal of the State to that certificate ? And if so, is it not in order to have it read ? The SPEAKER. It is not. Mr. STEVENSON. Is it not in order to have a comparison of the two seals made, and to have the officers of the House state whether they are of the same character. The SPEAKER. It is in order to examine them so far as to read what is upon them ; and that has already been done. Mr. STEVENSON. ^ Have they been ex amined, so as to determine whether they are of the same size? Mr. PETERS. And of the same color? Mr. STEVENSON. In order that it maybe shown whether they are impressions from the same seal. Mr. BINGHAM. You do not determine such a question as that in that way. The SPEAKER. The question is upon the substitute moved by the gentleman from Lou isiana [Mr. SHELDON] for the amendment moved by the gentleman from Pennsylvania [Mr. ULYSSES S. GRANT, PRESIDENT. 411 The resolution moved by Mr. SHELDON was read, as follows: Resolvel, That tin vote of tb.o electoral college of the State of Louisiana be counted for President and Vice-President as cast by M. F. Bonzauo and others. Tho question was taken, and it was not agreed to. The next question was upon the amendment of Mr. SPEETC to the resolution moved by Mr. GARFIELD, of Ohio. The amendment moved by Mr. SPEZE was read, as follows : Resolved, That tin vote of the electors of the State of Louisiana, certified to by H. G. Wannoth, G-ov- ernor, should be, in the judgment of this House, counted. Mr. SPEER. Upon that question I call for the yeas and nays. The yeas and nays were ordered. During the call of the roll, a message from the Senate, by Mr. SYMPSOX, one of its clerks, informed the House that the Senate had re solved that the electoral vote of Arkansas should not be counted. The message further announced that the Senate had resolved that, all the objections presented having been considered, no electoral vote purporting to be that of the State of Louisiana should be counted. Mr. SPEER. As it is evident, from the action of the Senate just communicated to the House, that the electoral vote of Louisiana cannot be counted, I ask unanimous consent to withdraw my demand for the yeas and nays The SPEAKER. The call of the roll hav ing begun, it must be completed. The call of the roll was completed ; and there were yeas 59, nays 85, not voting 96 ; as follows: YEAS Messrs. Acker, Adam*, Ambler, Archer Arthur, Jamas B. Back, Boles, Braxton, Burcliard! Carroll, Crossland, Dodds, Dox, DuBose Duke Farnsworth, Finkelnburg, Getz, Giddings, Golladay! Ilaldeman, Hancock, Handley, Hanks, Hay, Here ford, Herndon, Hibbard, Holman, Kerr, Ketcham Mclntyre, Hanson, McClelland, McHenrv, McKin- iiey, Merriik, Morgan, Silas L. Niblack, Perry, Pot ter, Price, Randall. Road, Ellis H. Roberts, William B. Roberts, Sion H. Roarers, Shober, Slocum, Speer, Storm, Terry, Voorhess, Waddell, Warren, Wells Wiliard,Williams of New York, and Winchester 59. NAYS Messrs. Averill, Barry, Beatty, Bi^by Bingham, James G.Blair, Buckley, Buftinton, Bun- nell, Burdett, Roderick R. Butler, Goburn, CWhlan Conger, Cotton, Darrall, Dawes, Donnan, Dunnell, Eames, Elliott, Farwell, Charles Foster, Wilder D Foster, Frye, Garfleld, Hale, Halaev, Harmer Har per, George E. Harris, John B. Hawley, Joseph R. Hawley, Hays, John W. Hazleton, Kello X a m- port, Lowe, Maynard, McJunkin, MoKee, Merriam Moore, Morey, Morphia, Leonard Myers, Orr, Pack ard, Palmer, Isaac C. Parker, Peck, Pendleton Perce. Peters, Plats, Poland, Porter, Prindle, Rainey Rusk, bargent, Sawyer, Scofield, Sessions, Sheldon Shoemaker, II. Boardraan Smith, John A. Smith! bpra^ue, Starkweather, Stevenson, Stoughton, Stow- ell, St. John, Sypher, Thomas, Washington Town- send Turner T.vitchell, Tyner, Upson, Wakeman, Waldron, Wallace, and Williams of Indiana 85 NOT VOTING-M^sw. Ames, Banks, Barber, Barnum, Erasmus W. Beck, Bell, Biggs, Bird, Austin Blair, Boarman, Bright, Brooks, Benjamin F. Butler, Caldwell, Campbell, Clarke, Cobb, Coraingo, Con ner, Cox, Crebs, Creely, Critchr, Crocker, Davis, Dickey, Duell, Eldredge, Ely, Esty, Forker, Henry D. Foster, Garrett, Goodrich, Griffith. Hambleton, John T. Harris, Havens, Gerry W. Hazleton. Hill, Hoar, Hooper, Hougliton, Kelley. Kendall, Killin- ger, King, Kinsella, Lamison, Lansing, Leach, Lewis, jLiwjjioj. i io.nci!ii xj. j.1 njiuuiv, j. ciuiver, Jiuyuu vr . j. ui- ker, Edward Y. Rice, John M. Rice, Ritchie, Robin son, John Rogers, Roosevelt, Seely, Shanks, Shel- labarger, Sherwood, Slater, Sloss, Worthi-agton C. Smith, Saapp, Snyder, Stevens, Sutherland. 8 wann. Taffe, Dwight Townsend, Tuthill, Van Trump, Vaughan, Walden, Wheeler, Whitd-y, Whitthorae, Jeremiah M. Wilson, John T. Wilson, Wood, arid Young-96. So the substitute of Mr. SPESU was not agreed. to. Mr. STEVENSON. As the resolution of my colleague [Mr. GARFIELD, of Ohio] conforms to the action reported from the Senate, I ask unanimous consent to withdraw my amend ment. Mr. EANDALL. I object. The SPEAKER. In point of fact, that amendment is not pending. Mr. DAWES. 1 do not see how it is cov ered by the previous question. Mr. STEVENSON". I thought it was re ceived. I thought the Speaker so ruled. The SPEAKER. The question recurs upon the original resolution offered by the gentle man from Ohio [Mr. GABFIELD]. It will be read. The Clerk read as follows : Resolved, That, in the judgment of this House, none of the returns reported by the tellers as elec toral votes of the State of Louisiana should be counted. The resolution was adopted. Mr. GARFIELD, of Ohio, moved to recon sider the vote by which the resolution was adopted ; and also moved that the motion to reconsider be laid on the table. Tho latter motion was agreed to. At seven o clock and forty-five minutes p. M. the Senate in a body reentered the Hall. The VICE-PRESIDENT having resumed the chair, said : The objection made by the Senator from Arkansas to the counting of the electoral vote of that State as declared by the tellers, having been considered by the two Houses, the Senate has resolved as follows : Resolved, That the electoral vote of Arkansas should not be counted. And the House has resolved as follows : Rzsolveil, That the electoral vote of the State of Arkansas, as reported by the tellers, be counted. There being a non-concurrence of the two Houses on this question, the vote of Arkansas, in accordance with the provisions of the twen ty-second joint rule, will not be counted. That rule provides that No question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses." 412 TWEXTY-SECOXD PRESIDENTIAL TERM. The several objections made on various grounds to the counting of the electoral votes from Louisiana having been considered by the two Houses, the Senate has resolved as fol lows- Resolved, That all objections presented having been considered, no electoral vote purporting to be that of the State of Louisiana be counted. And the House has resolved as follows : Resolved, That, in the judgment of this House, none of the returns reported by the tellers us elec toral votes of the State of Louisiana should be counted. On this question there is a concurrence of the Houses ; and the electoral votes of Louis iana will not be counted. The tellers will now announce the result of the vote. Senator SHERMAN (one of the tellers) an nounced the result as follows : List of Votes for President and Vice-President of the United States for the Constitutional Term to commence on the kt~h of March, 1873. STATES. Number of electoral votes. FOR PRESIDENT. TOR VICE-PRESIDENT. Ulysses S. Grant, of Illinois. o ? o a 11 I Thomas A. Hendricks, of Indiana. Charles J. Jenkins, of Georgia. David Davis, of Illinois. Henry Wilson, of Mas sachusetts. B. Gratz P-rown, of Mis souri. Nathaniel P. Banks, of Massachusetts. q s y o Alfred H. Colquitt, of Georgia. John M. Palmer, of Illi nois. Thomas E. Brnmlettc, of Kentucky. Y/iliiam S. Groesbeck, of Ohio. Willis B. Machen, of Ken tucky. Maine 7 5 5 13 4 fi 7 5 5 13 4 fi New Hampshire 5 Vermont 5 Massachusetts 18 Rhode Island 4 Connecticut fi New York 85 85 New Jersev 9 29 3 R 9 29 3 Pennsylvania 29 Delaware . . ft Maryland 8 8 Virginia 11 10 8 11 11 10 7 11 North Carolina. 10 7 South Carolina Georgia* fi 2 5 1 5 Alabama 10 8 22 10 10 Louisiana t ... Ohio . . 22 22 Kentuck v 4 8 R "g* 1 Tennessee 1? I 12 ndiana 15 21 15 15 21 15 1. Illinois .... i 21 fi Missouri 8 6 5 3 1 i Arkansas t fi Mississippi 8 11 4 8 11 4 8 11 Michigan Florida 4 Texas R 8 Q Iowa 11 10 6 5 3 5 5 3 8 11 10 6 5 3 5 6 3 3 11 Wisconsin 10 California fi Minnesota 5 Oregon .... 3 Kansas 5 West Virginia... D Nevada n Nebraska . B Totr.1 366 286 18 42 2 1 2S6 47 1 5 5 8 ! 8 1 1 i * The three votes of Georgia for Horace Greeley, of New York, for President were excluded, t The electoral votes of Louisiana and Arkansas were not counted. The VICE-PRESIDENT. The whole num ber of electors to vote for President and Vice- President of the United States, as reported by the tellers, is 366, of which the majority is 184. Of these votes 349 have been counted for President, and 352 for Vice-President of the United States. The result of the vote for President of the United States, as reported by the tellers, is, for Ulysses S. Grant, of Illi nois, 286 votes ; for B. Gratz Brown, of Mis souri, 18 votes ; for Thomas A. Hendricks, of Indiana, 42 votes ; for Charles J. Jenkins, of Georgia, 2 votes ; and for David Davis, of Il linois, 1 vote. The result of the vote, as re ported by the tellers, for Vice-President of the United States is, for Henry Wilson, of Massachusetts, 286 votes ; for B. Gratz Brown, of Missouri, 47 votes ; for Nathaniel P. Banks, of Massachusetts, 1 vote ; for. George W. Julian, of Indiana, 5 votes; for Alfred H. Colquitt, of Georgia, 5 votes ; for John M. Palmer, of Illinois, 3 votes ; for Thomas E. ULYSSES S. GRANT, PRESIDENT. 413 Bramlette, of Kentucky, 3 votes ; fur William S. Groesbeck, of Ohio, 1 vote ; and for Willis B. Machen, of Kentucky, 1 vote. Wherefore, I do declare that Ulysses S. Grant, of the State of Illinois, having received a majority of the whole number of electoral votes, is duly elected President of the United States for four years, commencing on the 4th day of March, 1873 ; and that Henry Wilson, of the State of Massachusetts, having received a majority of the whole number of electoral votes for Vice-President of the United States, is duly elected Yice-President of the United States for four years, commencing on the 4th day of March, 1873. The object for which the House and Senate have assembled in joint convention having been accomplished, the Senate will retire to its Chamber. The Senate accordingly retired from the Hall of the House of Representatives. The Speaker then resumed the chair and called the House to order. IN HOUSE OF REPEESENTATIVES. Thursday, February 13, 1873. (" Congressional Globe," p. 1322.) Mr. DAWES. I submit the following reso lution : Resolved, That a committee of two, to join a com mittee of the Senate, be appointed to wait on Ulysses S. Grant, of Illinois, to notify him that he has been duly elected President of the United States for four years, commencing on the 4th day of March, 1873 ; and also to notify Henry Wilson, of Massachusetts, that he lias "been duly elected Vice-President of the United States for four years, commencing on the 4th day of March, 1873. The resolution was adopted. The SPEAKER. The Chair, in pursuance of the resolution just adopted, names as the committee the gentlemen who acted as tellers : Mr. Dawes, of Massachusetts, and Mr. Beck, of Kentucky. PROPOSED LEGISLATION AS TO THE MODE OF COUNTING THE ELECTORAL VOTES, 1800. IN SENATE. Thursday, January 23, 1800. (" Annals of Congress," 6th Cong., p. 28.) On motion of Mr. Ross, that it be Resolved, That a committee be appointed to consider whether any, and what, provisions ought to be made by law for deciding dis puted elections of President and Vice-Presi dent of the United States, and for determining the legality or illegality of the votes given for those officers in the different States A motion was made to amend the motion by adding, " and that the committee be au thorized to report by bill or otherwise. 1 Mr. Brown, of Kentucky, was of opinion that this was a subject on which Congress had no right to legislate. When the Constitution undertook to make provisions on a subject, if they were found incomplete or defective, they must be remedied by recommending an amend ment to the Constitution. He wished the gentleman who had made this motion would pay further attention to the subject, and believed he would find that, if anything was to be done, it must be done by proposing an amendment to the Constitution. Mr. Ross said that the Constitution had cer tainly made no provision on this subject ; it only directed that after the votes were re ceived, etc., the President of the Senate should, in the presence of the Senate and the House of Representatives, open the certificates, and the votes should be counted. Suppose, said he, persons should claim to be electors who had never been properly appointed, should their vote be received ? Suppose they should vote for a person to be President who had not the age required by the Constitution, or who had not been long enough a citizen of the United States, or for two persons who were both citi zens of the same State. Such cases might happen and were very likely to happen, and is there no remedy ? What a situation would the country be in if such a case was to happen ! He thought it their duty to make provision for it, and he believed a law was sufficient. Mr. C. Pinckney, of South Carolina, thought it a very dangerous practice to endeavor to amend the Constitution by making laws for the purpose. The Constitution was a sacred deposit, put into their hands ; they ought to take great care not to violate or destroy the essential pro visions made by that instrument. He remem bered very well that in the Federal Convention great -care was used to provide for the elec tions of the President of the United States in dependently of Congress ; to take the business as far as possible out of their hands. The votes are to be given by electors appointed for that express purpose. The electors are to be appointed by each State, and the whole direction as to the manner of their appoint ment is given to the State Legislature. Nothing was more clear to him than that Congress had no right to meddle with it at all ; as the whole was intrusted to the State Legislature, they must make provisions for all questions arising on the occasion. Mr. Dexter, of Massachusetts, did not feel himself at all in doubt as to the right of the Legislature to make such provisions on this subject as appeared to be necessary. It was directed by the Constitution that a President should be appointed, that he should be of not less than thirty-five years of age, that he should have been at least fourteen years a citizen of the United States, etc. The proceedings in the election of a President may be defective in all these particulars, and can it be supposed that there is no way to correct them ? The Constitution is not silent on this head ; among the powers given to Congress in the 5th sec tion is this: "To pass all laws necessary and proper for carrying into execution the forego ing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." The law now proposed appears to be necessary to carry into effect the power of appointing the President ; it is therefore clear ly constitutional. PROPOSED LEGISLATION AS TO THE MODE OF COUNTING THE ELECTORAL VOTES. 415 Mr. Livennore, of New Hampshire, never felt less doubt on any subject than the one now under consideration : the Constitution has given many directions as to the appointment of the President, some of which he read. Is it pos sible (said Mr. Livermore) that gentlemen can suppose all these may be violated and disre garded, and yet that it is nobody s business to interpose and make provisions to prevent it ? He trusted the honorable Senate would agree to the resolution to appoint a committee for that purpose. Mr. Baldwin, of Georgia, expressed his re gret that the mover of this resolution had not thought proper to bring forward a subject so new and important, in the form commonly used in parliamentary assemblies, by a single proposition, viz., " That it is expe dient that farther provision be made respecting disputed votes for President and Vice-President of the United States." It was manifest from the de bate that several different questions had been under consideration at the same time, and dif ferent gentlemen were in fact directing their remarks to different questions. The first question was, the one ho had just mentioned, whether there was so great a de fect in the present provisions, which exist on this subject, as to render further provisions necessary ? The second is, if further provisions are ne cessary, must they be made by amendment to the .Constitution ? or, Thirdly, whether they can be made by law ? lie must say, for himself, that he did not agree that the present provisions on this sub ject were so defective and absurd as had been represented. His general respect for those who had gone before him in this House, and especially for the venerable assembly of the most experienced statesmen of the country by whom the Constitution had been formed, for bade him to entsrtain the belief that this sub ject, which is the strong feature that charac terizes this as an elective Government, could have been till now so entirely out of sight and neglected. Gentlemen appeared to him, from their ob servations, to forget that the Constitution in directing electors to be appointed throughout the United States equal to the whole number of the Senators and Representatives in Con gress, for the express purposo of intrusting this constitutional branch of power to them, had provided for the existence of as respect able a body as Congress, and in whom the Constitution on this business has more confi dence than in Congress. Experience had proved that a more venerable selection of characters could not be made in this country than usually composed that electoral body. And what are the questions which can arise on the subject intrusted to them to which they are incompetent, or to which Congress is so much more competent? The questions which present themselves seem to be : 1. Those which relate to the elections, re turns, and qualifications of their own members. Shall these be taken away from that body, and submitted to the superior decision and control of Congress, without a particle of au thority for it from the Constitution? 2. The legality or constitutionality of the different steps of their own proceedings, as, whether they vote for two persons, both of the same State ; whether they received votes for a person under thirty-five years of age, or one who has not been fourteen years a citizen of the United States, etc. It is true they, as well as any other constitutional branch of this Government acting under that instrument, may be guilty of taking unconstitutional or corrupt steps, but they do it at their peril. Suppose either of the other branches of the Government, the Executive or the Judiciary, or even Congress, should be guilty of taking steps which are unconstitutional, to whom is it submitted, or who has control over it, except by impeachment? The Constitution seems to have equal confidence in all the branches on their own proper ground, and for either to ar rogate superiority, or a claim to greater confi dence, shows them in particular to be un worthy of it, as it is in itself directly unconsti tutional. 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 Govern ment. Their own authentication of their act fin ishes the business intrusted to them. It is true this must be judged of by the per sons who are concerned in carrying it into ex ecution ; as in all laws and official acts under this Government, they to whom they are di rected, 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 ho 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 agree ably to the Constitution, but to judge of the authentication of the act of the electors, and then to proceed and count the vote as directed. If this body of the electors of all the States had been directed by the Constitution to as semble 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 acknowl edged that they were to be settled in that as sembly. It having beon deemed more safe by the Con stitution 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 416 PROPOSED LEGISLATION AS TO THE MODE OF 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 office thereof, could be extended to this case ; that speaks of the use of the powers vested by the Constitu tion this resolution relates to the formation of a competent and essential part of the Gov ernment 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 arti cle of amendment to the Constitution on that subject. His own opinion, however, was what lie 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 Govern ment, 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. IN SENATE. Friday, January 24, 1800. ("Annals of Congress," 6th Cong., p. 33.) 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 decid ing disputed elections of President and Vice- President of the United States, and for de termining the legality or illegality of the votes given for those officers in the different States, and that the committee be authorized to re port by bill or otherwise ; and the motion as amended was adopted ; and Ordered, That Messrs. Koss, Lawrance, Dex ter, Pinckney, and Livermore be the committee. Is SENATE. Friday, February 14, 1800. ("Annals of Congress," 6th Cong., p. 47.) Mr. Boss, from the committee appointed the 28th of January last, reported a bill pre scribing the mode of deciding disputed elec tions of President and Vice-President of the United States, which was read and ordered to the second reading. IN SENATE. Thursday, February 20, 1800. (" Annals of Congress," 6th Cong., p. 49.) The Senate resumed the consideration of the bill prescribing the mode of deciding dis puted elections of President and Vice-Presi dent of the United States. On motion to strike out of the first section of the bill the following words Together with the Chief Justice of the United States, or, if he be absent from the seat of Govern ment or unable to attend, then with the next senior Judge of the Supreme Court of the United States who may be present and able to attend It passed in the negative yeas 11, nays 19 ; as follows : YEAS Messrs. Anderson, Baldwin, Bloodworth, Brown. Cocke, Franklin, Langdon, Marshall, Mason, Nicholas, and Pinckney. NAYS Messrs. Biugham, Chipman, Dayton, Dexter, Foster, Greene, Gunn, Hillhouse, Howard, Latimer, Lawrance, Livermore, Paine, Bead, Koss, Schureman, Tracy, Watson, and Wells.- On motion to strike out these words from the 1st section, " to choose by ballot in each House six members," and in lieu thereof to in sert, " to draw by lot in each House members " It was determined in the negative yeas 9, nays 18 ; as follows : YEAS Messrs. .Anderson, Baldwin, Bloodworth, Brown, Cocke, Langdon, Marshall, Mason, and Nicholas. NAYS Messrs. Chipman, Dayton, Dexter, Fos ter, Franklin, Goodhue, Greene, Gunn, Hillhouse, Latimer, Lawrance, Livermore, Paine, Kead, Koss, Schureman, Tracy, and Wells. Ordered, That the further consideration of the bill be postponed. IN SENATE. Monday, February 24, 1800. (" Annals of Congress," 6th Cong., p. 51.) The Senate resumed the second reading of the bill prescribing the mode of deciding dis- COUNTING THE ELECTORAL VOTES. 41? puted elections of President and Vice-Presi- dent of the United States. On motion to amend the bill, section 5th, line 7th, so as to provide that the proceedings of the committee be held in public, by striking out the words "with closed doors," and in serting, "in the Chamber of the House of f Representatives, with open doors," in lieu thereof It passed in the negative yeas 8, nays 16 ; as follows : YEAS Messrs. Anderson, Baldwin, Bloodworth, Cocke, Franklin, Langdon, Mason, and Nicholas. NAYS Messrs. Bingham, Chipman, Foster, Goodhue, Greene, Hillhouse, Howard, Latimer, Lawrance, Livermore, Marshall, Paine, Read, Ross, Tracy, and Wells. And, after progress, the further considera tion of the bill was postponed. IN SENATE. Thursday, February 27, 1800. ("Annals of Congress," 6th Cong., p. 64.) The Senate resumed the second reading of the bill prescribing the mode of deciding dis puted elections of President and Vice-Presi dent of the United States ; and, after progress, adjourned. t IN SENATE. Friday, February 28, 1800. (" Annals of Congress," 6th Cong., p. 64.) The Senate resumed the second reading of the bill prescribing the mode of deciding dis puted elections of President and Vice-Presi dent of the United States ; and, after debate, the further consideration thereof was post poned. IN SENATE. Monday, March 3, 1800. ("Annals of Congress," 6th Cong., p. 65.) The Senate resumed the consideration of the amendment proposed to the first section of the bill prescribing the mode of deciding disputed elections of President and Vice-President of the United States. On motion to amend the amendment which stood " draw by lot in each House, and in the following manner, eighteen members thereof," by expunging the word "eighteen," and in serting the word " twenty-four," it passed in the affirmative yeas 16, nays 13 ; as follows: YEAS Messrs. Anderson, Chipman, Dayton, Foster, Goodhue, Hillhouse, l!oward,Latiraer, Law rance, Livermore, Paine, Read, Ross, Schureman, Tracy, and Watson. NAYS Messrs. Baldwin, Binghara, Bloodworth, Brown, Cocke, Franklin, Greene, Langdon, Lloyd, Marshall, Mason, Nicholas, and Pinckney. 27 On motion to amend the second section pro posed as an amendment to the bill, by expung ing these words, " reduce by lot, in the man ner before prescribed, the committee above se lected, to the number of six," and to insert, "choose by ballot six out of the committee above selected," it passed in the affirmative yeas 15, nays 13 ; as follows : YEAS Messrs. Bingham, Chipman, Dayton, Fos ter, Goodhue, Greene, Hillhouse, Latimer, Lawrance, Livermore, Faine, Read, Ross, Tracy, end Watson. NAYS-*-Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Howard, Langdon, Lloyd, Mason, Nicholas, Pinckney, and Schureman. On motion to agree to the amendment amended, as follows : Section 1, lines 6, 7, and 8, strike out these words, "choose by ballot in each House six members thereof, and the twelve persons thus chosen," and insert the following: " draw by lot in each House, and in the following manner, twenty-four members thereof, viz. : that the Secretary of the Senate shall write the names of all the Senators present, on distinct pieces of paper, of nearly equal size, and shall roll them up and place them in a box, which shall be then shaken and intermixed together ; after which, the Secretary of the Senate shall draw out of the said box the said pieces of paper with the names written on them, until twenty- four names of the Senators then present shall be so drawn. He shall deliver the same to the President of the Senate, who shall open and read them aloud, and the Secretary of the Sen ate shall write down the names so called. The Clerk of the House of Representatives shall, on the same day, write the names of all the members of the said House present, on distinct pieces of paper, of nearly equal size, and shall roll them up and place them in a box, which shall be then shaken and intermixed together ; after which, the Clerk of the House shall draw out of the said box the said pieces of paper with the names written on them, until twenty- four names of the members then present shall be drawn. He shall deliver the same to the Speaker of the House, who shall open and read them aloud, and the Clerk shall write down the names so called. " And be it further enacted, That, previous to the day preceding the second Wednesday in February of any year, the Senate and House of Representatives shall then, respectively, proceed to choose, by ballot, six out of the committee above selected " It passed hi the negative yeas 4, nays 24; as follows : YEAS Messrs. Anderson, Bloodworthj^Langdon, and Mason. NAYS Messrs. Baldwin, Bingham, Brown, Chip man, Cocke, Foster, Franklin, Goodhue, Greene, Hillhouse, Howard, Latimer, Lawrance, Livermore, Lloyd, Mai-shall, Nicholas, Paine, Pinckney, Read, Ross, Schureman, Tracy, and Watson. On motion, to insert in the 10th section, line 9th, after the word "committee," these words : "such rejection shall be founded on a 418 PROPOSED LEGISLATION AS TO THE MODE OF concurrence of two-thirds of the committee," it passed in the negative yeas 10, nays 19 ; as follows : YEAS Messrs. Anderson, Baldwin, Blood-worth, Brown, Cocke, Franklin, Langdon, Mason, Nich olas, and Pinckney. NAYS Messrs. Bingham, Chipman, Dayton, Foster, Goodhue, Greene, Gunn, Hillhouse, Howard, Latimer, Lawrance, Livermore, Lloyd, Marshall, Paine, Bead, Eoss, Schureman, and Tracy. And. after debate, the Senate adjourned. IN SENATE. Tuesday, March 4, 1800. ("Annals of Congress," 6th Cong., p. 67.) The Senate resumed tHe second reading of the bill prescribing the mode of deciding dis puted elections of President and Vice-Presi- dent of the United States. On motion to amend the 8th section, line 4th, by striking out these words : " upon the constitutional qualifications of the electors ap pointed by the different States, and whether their appointment was authorized by the State Legislature or not," and to insert, in lieu thereof, these words : u whether the appoint ment of electors for any State was authorized by the State Legislature or not," it passed in the negative yeas 14, nays 15 ; as follows : YEAS Messrs. Anderson, Baldwin, Bingham, Bloodworth, Brown, Cocke, Franklin, Greene, Gunn, Langdon, Marshall, Mason, Nicholas, and Pinckney. NAYS Messrs. Chipman, Dayton, Foster, Good- hue, Hillhouse, Howard, Latimer, Lawrance, Liver- more, Lloyd, Paine, Kead, Boss, Schureman, and Tracy. And, after debate, the Senate adjourned. IN SENATE. Monday, March 10, 1800. ("Annals of Congress," 6th Cong., p. 106.) The Senate resumed the second reading of the bill prescribing the mode of deciding dis puted elections of President and Vice-Presi dent of the United States ; and, after debate, Ordered, That it be recommitted to the orig inal committee, further to consider and report thereon to the Senate ; and that Mr. Nicholas be added to the committee. IN SENATE. * Monday, March 17, 1800. ("Annals of Congress," 6th Cong., p. 110.) Mr. Ross, from the committee to whom was recommitted the bill prescribing the mode of deciding disputed elections of President and Vice-President of the United States, reported amendments which were read. Ordered, That they lie on the table. IN SENATE. Tuesday, March 25, 1800. ("Annals of Congress," 6th Cong., p. 119.) The bill prescribing the mode of deciding dis puted elections of President and Vice-Presi- dfint of the United States was read the third time. On motion to strike out the first ten sec tions, and insert Whereas, on an election of President and Vice- Presideut of the United States questions may arise whether an elector has been appointed in a mode authorized by the Legislature of his State or not ; whether the time at which he was chosen, and the day he gave his vote, were those determined by Con gress ; whether he were not at the time a Senator or Representative of the United States, or held an office of trust or profit under the United States ; whether one, at least, of the persons he has voted for is an inhabitant of a State other than his own; whether the electors voted by ballot, and have signed, certi fied, and transmitted to the President of the Senate a list of all the persons voted for, and the number of votes for each ; whether the persons voted for are natural born citizens, or were citizens of the United States at the time of the adoption of the Constitu tion, were thirty-five y^ears old, and had been four teen years resident within the United States ; and the Constitution of the United States having directed that " the President of the Senate shall, in the pres ence of the Senate and House of Bepresentatives. open all the certificates, and that the votes shall then be counted;" from which the reasonable in ference and practice has been that they are to be counted by the members composing the said Houses, and brought there for that office, no other being as signed them ; and inferred the more reasonably, as thereby the constitutional weight of each State in the election of those high officers is exactly pre served in the tribunal which is to judge of its valid ity, the number of Senators and Eepresentatives from each State, composing the said tribunal, being exactly that of the electors of the same State : SECTION 1. Be it enacted by the Senate and House of Eepresentatives of the United States of America, in Congress assembled, That whensoever the members of the Senate and House of Eepresentatives shall be assembled for the purpose of having the certificates of the electors of the several States opened and counted, the names of the several States shall be written on different and similar tickets of paper and put into a ballot-box, out of which one snail be drawn at a time, and so soon as one is drawn, the packet containing the certificates of that State shall be opened by the President of the Senate, and shall then be read, and then shall be read also the peti tions, depositions, and other papers and documents, concerning the same; and if no exception is taken thereto, the votes contained in such certificates shall be counted ; but if the votes, or any of them, shall be objected to, the members present shall, on the question propounded by the President of the Senate, decide without debate, by yea or nay, whether such vote or votes are constitutional or not ; and the votes of one State being thus counted, another ticket shall be drawn from the ballot-box, and the certificate, and the votes of the electors of the State drawn, shall be proceeded on as before directed ; and so on, one after another, until the whole of the votes shall be counted ; and if the counting cannot be completed in one day, the members of the said two Houses may adjourn from day to day until it be completed A division of the question was called for, and that it first be taken on striking out. A motion was made to strike out, section COUNTING THE ELECTORAL VOTES. 419 1st, lines 10 and 11, these words, " and finally to decide," and to insert "into and report upon ;" and a division of the motion was called for, and that the question be first taken on striking out, which passed in the negative yeas 11, nays 18 ; as follows: YEAS Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Marshall, Ma son, Nicholas, and Pinckney. NAYS Messrs. Bingham, Chipman, Dayton, Dex ter, Foster, Goodhue, Greene, Hillhouse, Latimer, Lawrance, Livermore, Lloyd, Paine, Read, Boss, Schureman, Tracy, and Wells. A motion was made to strike out the 7th section ; and, after debate, Ordered, That the farther consideration of the bill at this time be postponed. Ix SENATE. Thursday, March 27, 1800. ("Annals of Congress," 6th Cong., p. 124.) The Senate resumed the third reading of the bill prescribing the mode of deciding disputed elections of President and Yice-President of the United States. On motion to strike out the 7th section, as follows : SEC. 7. And be it further enacted, That the grand committee shall have power to inquire, examine, decide, and report upon the constitutional qualifica tions of the persons voted for as President and Vice- President of the United States ; and upon the con stitutional qualifications of the electors appointed by the different States, and whether their appointment was authorized by the State Legislature or not, or made according to the mode prescribed by the Legislature ; upon all petitions and exceptions against corrupt, illegal conduct of the electors, or force, menaces, or improper means used to influence their votes ; or against the truth of their returns, or the time, place, or manner of giving their votes : Provid&l always, That no petition or exception shall be granted or allowed by the Grand Committee, which shall have for its object to draw into question the number of votes on which any elector in any of the States shall have been declared appointed It passed in the affirmative yeas 15, nays 12, as follows: YEAS Messrs. Chipman, Dayton, Dexter, Fos ter,, Goodhue, Greene, Hillhouse, Latimer, Lloyd, Pame.Read, Ross, Schureman, Tracy, and Wells. NAYS Messrs. Anderson, Bingham, Bloodworth, Cocke, [Franklin, Langdon, Lawrance, Livermore, Marshall, Mason, Nicholas, and Pinckney. On motion to strike out the first ten sections, as stated in the motion of the 25th instant, it passed in the negative yeas 10, nays 15 ; as follows : YEAS Messrs. Anderson, Baldwin, Bloodworth, Cocke, Franklin, Hillhouse, Langdon, Mason, Nich olas, and Pinckney. NAYS Messrs. Bingham, Chipman, Dayton, Dex- iter, Foster, Goodhue, Greene, Latimer, Lloyd, Paine, Read, Ross, Schureman, Tracy, and VVells. And, after debate, the further consideration of this bill was postponed. Tx SENATE. Friday, March 28, 1800. (" Annals of Congress," 6th Cong., p. 126.)] The Senate resumed the consideration of the bill prescribing the mode of deciding disputed elections of President and Vice-President of the United States. Before the question was taken on the pas sage of the bill, Mr. Pinckney addressed the Chair as follows : Mr. President, the question now before the Senate is on the passage of the bill. It having been understood as agreed that we would reserve ourselves on its constitution ality until this period, I have some claim to expect your indulgence, while I review, not only that subject, but the principal features of the bill while I endeavor to show that it is a serious invasion of some of the most impor tant rights solemnly and explicitly reserved by the Constitution to the State Legislatures; that it is a bill more alarming in its conse quences than even the alien or sedition law ; because, however unfriendly I conceive those to have been in their principles and operation to the liberties of the people, yet after March next we are to hope nothing but the mournful reflection will remain that such laws have ever existed; while the act before you is to con tinue as a perpetual one, unlimited in its con sequences and duration, and is to exist as a check or diminution of those important rights which, by the Constitution, are solely and ex clusively vested in the State Legislatures, or, under their direction, with the people, and with which Congress have no power to inter fere except in the manner I shall hereafter de tail. I am indeed more anxious on this sub ject, as on many important points the majori ties in the Senate were small, and as I well know the subject will excite very great public attention. The States and the State Legisla tures will feel themselves particularly con cerned, and I have some reason to suppose that such of those as I represent, and who are of my opinion, will expect from me a de fense of what they consider as their just rights. I will begin my remarks on this subject by asserting that all powers not specifically given to Congress by the Constitution are reserved to the States or the people respectively ; that this is the base and principle of the Govern ment ; that without any express declaration on the subject, or any amendment to the origi nal instrument, this is the construction we are obliged to give it ; but that when we couple with this construction the 12th amendment, which the jealousy of the States insisted upon, there can be now no question that, in the lan guage of that amendment, the powers not dele gated to the United States, nor prohibited by the Constitution to the States, are reserved to the States respectively, or to the people. 420 PROPOSED LEGISLATION AS TO THE MODE OF It is of essential importance in examining this bill to recur to those amendments and the reason of their being adopted. This appears in the caption of the resolution recommending the amendments to the adoption of the States. It is in these words : The conventions of a number of States having, at the time of their adopting the Constitution, ex pressed a desire, in order to prevent misconstruc tion or abuse of its powers, that further declaratory and restrictive clauses should be added; and as ex tending the ground of public confidence in the Gov ernment will best insure the beneficent end of its institution; therefore Congress, according to the constitutional mode recommended to the States to agree to, and their Legislatures did adopt, such of the amendments as are now officially directed to be annexed to the Constitution. By this it appears that jealousies and suspi cions existed in the States; that they were anxious to have some declaration of the prin ciple of the system to be ascertained on the subjects of religion and the press, and the rights of the people, and the State Legislatures. They knew that the parties would arise, and that in all governments unprincipled and de signing men had existed ; they saw no reason to expect that their own would be without them ; they therefore determined that an ex plicit constitutional declaration should be an nexed, expressly stipulating that the powers not specifically delegated were reserved, and that the prohibitions and reservations men tioned in the amendments should be added, in the nature of a bill of rights. When those amendments became a part of the Constitution, it is astonishing how much it reconciled the States to that measure; they considered themselves as secure in those points on which they were the most jealous ; they supposed that they had placed the hand of their own authority on the rights of religion and the press, and the as sacred right of the States in the election of the President ; that they could with safety say to themselves, " On these subjects we are in future secure; we know what they mean and are at present; and such as they now are, such are they to remain, until altered by the authority of the people themselves no inferior power can touch them. In our adorations to our Maker, our right to remark on public men and meas ures, and the exclusive right of the State Legislatures and people to elect the Supreme Executive, Congress have no authority to in terfere. They are not within the ordinary sphere of its legislation." I appeal to any man who dispassionately peruses the Constitution and its amendments, and who recollects the mode and reasons of their adoption, to answer if this was not the construction then understood, and which now ought always to be given to them? It is one I shall ever contend for, and it is on this ground I shall endeavor to show that Con gress have no right to pass the bill before you, or to legislate at all further on the subject than they havo done by the act of 1792. I suppose it will hardly yet be denied that the people are the common fountain of author ity to both the Federal and State Govern ments; that the Constitution reposes exclu sively in the State Legislatures for the forma tion of a part of the Federal Government, and in the people for another part ; and that in the appointment or formation of their part the rights of the State Legislatures and people are exclusive; that the State governments are the pillars upon which the Federal Government must rest, and that without a cordial and active performance of their duty the latter could not proceed or exist; that in the for mation of the Federal Government the people found that their safety consisted in giving cer tain exclusive rights to the State Legislatures, in the election of Senators and of their Presi dent the first to insure to the State govern ments their existence as such, and their equal ity in the second branch, and the other to make their Executive completely independent of the national Legislature. In examining these exclusive rights, we will at once perceive that, in the mode of voting for Senators, no other part of our governments can interfere than our State Legislatures ; if they neglect or refuse to elect, there is no power to compel them. The only authority to interfere is the Senate of the United States, and their power extends only to the determination whether a Senator is constitutionally qualified, or properly com missioned, and in discussing this neither the President nor House of Representatives can interfere. With respect to the House of Representa tives, for important reasons, there is a substan tial difference. A right is in the first instance given to the State Legislatures to establish regulations for their election, and in the same clause a right is given to Congress not to the House of Representatives, but to Congress not only to make regulations on the same sub ject, but to alter such as the State Legislatures have made; giving to Congress, in fact, a paramount authority, whenever they please, to regulate the elections of the House of Rep resentatives in any manner they think proper. Let us for a moment compare this with the directions of the Constitution respecting the electors of a President, and then permit me to call your attention to the remarkable differ ence there is between them, and the reasons for this difference. By the Constitution, electors of a President are to be chosen in the manner directed by the State Legislatures this is all that is said. In case the State Legislatures refuse to make these directions there is no power to compel them ; there is not a single word in the Constitution which can, by the most tortured construction, be extended to give Congress, or any branch or part of our Federal Government, a right to make or alter the State Legislatures directions on this subject. COUNTING THE ELECTORAL VOTES. 421 The right to maKe these directions is com plete and conclusive, subject to no control or revision, and placed entirely with them, for the best and most unanswerable reasons. It was intended to give your President the com mand of your forces, the disposal of all the honors and officers of your Government, the management of your foreign concerns, and the revision of your laws. Invested with these important powers, it was easily to be seen that the honor and interest of your Govern ment required he should execute them with firmness and impartiality ; that, to do this, he must be independent of the Legislature ; that they must have no control over his election ; that the only mode to prevent this was to give the exclusive direction to the State Legislatures in the mode of choosing electors, who should be obliged to vote secretly ; and that the vote should be taken in such manner, and on the same day, as to make it impossible for the dif ferent States to know who the electors are for, or for improper domestic, or, what is of much more consequence, foreign influence and gold to interfere ; that by doing this the Presi dent would really hold his office independent of the Legislature ; that instead of being the creature, he would be the man of the people ; that he would have to look to them, and to the confidence which he felt his own meritori ous actions would inspire, for applause or sub sequent appointments. Instead of this, what is the mode proposed by this bill ? That the Senate and House of Representatives of the United States shall each of them elect six members, who with a Chairman, to be appointed by the latter from a nomination of the former, would form a grand committee, who should, sitting with closed doors, have a right to examine all the votes given by the electors in the several States for President and Vice- President, and all the memorials and petitions respecting them ; and have power finally to decide re specting them, and to declare what votes of different States shall be rejected, and what ad mitted; and in short, that this committee thus chosen, and sitting with closed doors, shall possess complete, uncontrollable, and irrevocable power to decree, without appeal from their decision, who has been returned, and who shall be proclaimed President of the United States. As long and as much as I have been ac customed to examine this bill and consider its contents, I cannot recapitulate its objects and extent without new emotions of surprise. I am astonished that a measure so completely calculated to deprive the State Legislatures of their most important and exclusive rights in the elections of the Chief Magistrate should be at once brought forward, without paving * the way by some milder preparatory measure of the same tendency. It is true the sedition law, by giving to the Federal courts a power to decide on libels, a right which we contend belongs exclusively to the State courts, and of which we think they cannot constitutionally be divested ; and the untenable doctrine, avowed by the Federal judges, that there is a common law, such as is in force in Great Britain, common to the courts of the United States, may be considered as preparative. Had the people quietly acquiesced in these doctrines, and generally expressed no disap probation of them, there might have been some reason to suppose they had determined silently to submit to everything, and even without a murmur put up with this diminu tion of the authority of the State Legislatures. But, when we recollect the unanswerable arguments that have been used throughout every part of the Union against them ; when we see not only individuals but Legislatures of important States using the mild and con stitutional mode of remonstrance and argu ment ; when we have found not only the tables of the State Legislatures, but of Congress it self, covered with memorials against them, lamenting in the most affecting language their adoption and execution, I cannot, under these circumstances, suppose that we are authorized to believe the public mind so much under the influence of implicit confidence as to think that a measure which strikes so forcibly at the reserved rights of the States can be received by them without particular emotions. It is my duty, however, to examine it with free dom, and this I shall do with candor and deference to other gentlemen s opinions who differ from me on the subject. Knowing that it was the intention of the Constitution to make the President completely independent of the Federal Legislature, I well remember it was the object, as it is at present not only the spirit but the letter of that instru ment, to give to Congress no interference in or control over the election of President. It is made their duty to count over the votes in a convention of both Houses, and for the Presi dent of the Senate to declare who has the ma jority of the votes of the electors so trans mitted. It never was intended, nor could it have been safe, in the Constitution, to have given to Congress thus assembled in conven tion the right to object to any vote, or even to question whether they were constitutionally or properly given. This right of determining on the manner in which the electors shall vote, the inquiry into the qualifications, and the guards necessary to prevent disqualified or improper men voting, and to insure the votes being legally given, rests and is exclu sively vested in the State Legislatures. If it is necessary to have guards against improper elections of electors, and to institute tribunals to inquire into their qualifications, with the State Legislatures, and with them alone, rests the power to institute them, and they must exercise it. To give to Congress., even when assembled in convention, a right to reject or ad mit the votes of States, would have been so 422 PROPOSED LEGISLATION AS TO THE MODE OF gross and dangerous an absurdity as the framers of the Constitution never could have been guilty of. How could they expect that, in decid ing on the election of a President, particularly where such election was strongly contested, party spirit would not prevail, and govern every decision ? Did they not know how easy it was to raise objections against the votes of particu lar elections, and that in determining upon these it was more than probable the members would recollect their sides, their favorite can didate, and sometimes their own interests ? Or must they not have supposed that, in putting the ultimate and final decision of the electors in Congress, who were to decide irrevocably and without appeal, they would render the President their creature, and prevent his as suming and exercising that, independence in the performance of his duties upon which the safety and honor of the Government must for ever rest ? But it is said, are Congress bound to receive every vote of an elector, whether it is consti tutionally given or not? Suppose votes are sent for a person not a citizen or fourteen years a resident of the United States ; or under thirty-five years of age; or that the Legis lature of a State have not authorized by their act the votes of the electors, or that double returns are made : who are then to decide? Or has not Congress, under these circumstances, a power to determine which of the votes shall be received or rejected ? These being the avowed reasons for intro ducing this bill, I answer them by observing that, the Constitution having directed that electors shall be appointed in the manner the Legislature of each State shall direct, it is to be taken as granted that the State Legisla tures will perform their duties, and make such directions as that only qualified men shall be returned as electors. The disqualifications against any citizen being an elector are very few indeed : they are two. The first, that no officer of the United States shall be an elector; and the other, that no member of Congress shall. The first, an indis pensable one, because every officer of the United States is nominated by the President, and (except judge) removable at his pleasure. The latter, that no member of Congress shall, is a provision which goes unanswerably to prove the solidity of my objections to this bill, and to show how extremely guarded the Con stitution is in preventing the members of Con gress from having any agency in the election, except merely in counting the votes. They well know that, to give to the mem bers of Congress a right to give votes in this election, or to decide upon them when given, was to destroy independence of the Executive, and make him the creature of the Legislature. This, therefore, they have guarded against, and to insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen, at the adoption of the Constitution, of fourteen years residence, and thirty-five years of aj?e shall be eligible. These are all the provisions in the Constitu tion, and, being specifically defined and clearly marked out, where is the necessity of this bill*? Is not the Constitution the supreme law of the land, and must not the State Legislatures conform their directions in the appointment of electors to the directions of the Constitution ? Have they not always determined that per sons qualified as the Constitution directs shall be chosen as electors ; and, in the three elec tions which have taken place, has there been a single mistake or error in the vote? Was not the last election as much contested as the ensuing, or any one can be, and were not the votes regularly given ? Why this anxiety, why these unnecessary efforts to take from the State Legislatures their exclusive and most valuable right? Why should we be afraid that our citizens should be so forgetful of their safety as to vote for men holding offices under the United States, or members of Congress ; men who are not only disqualified, but who must, from their connections with the Government, be always unsafe depositaries of this trust ? Who, when he reflects on the immense pow er the President possesses, can suppose that any man, honorably selected by his fellow-citi zens as an elector, could for a moment be so lost to a sense of his own and his country s welfare as to vote for a man as the Supreme Executive whose citizenship or residence were doubtful, and who were not of sufficient age? Gentlemen who support the bill have con fessed they thought it improbable, and that it may not happen once in a century ; but still they say it is possible, and ought to be guarded against. I consider both as so extremely im probable, that I am astonished they are men tioned. So far from having any apprehension of this sort, we may be assured that while the office of President is accompanied by so much power and patronage, while it is so honorable to its holder, and influential to his friends, there can be no doubt that only such men will ever be spoken of, or even thought of or nomi nated as candidates, as are the most conspicu ous for talents, and whose experience of our public affairs is generally acknowledged. Nor need we ever be afraid that in this country too .young men will be brought forward as candidates. There is a jealousy against young men, or men not much advanced in years, which will forever forbid their being nomi nated for this office with much hope of suc cess. Men do not like to see their juniors, or even those of the same ages, taking the lead, or being more conspicuous for talents or knowledge than themselves. They errone ously consider it as a reflection on their own deficiencies; they will, therefore, invariably unite in preferring a man much advanced in years, whose honors would occasion them no COUNTING THE ELECTORAL VOTES. 423 invidious sensations, and whose age and long employment in public life have accustomed them to his elevation. Regardless of his errors, or capacity to govern, they will more cordially unite in promoting him than one whose rise they will consider as too rapid, and whose political exertions have given them pain. Be assured, sir, there can never be any fear of too yount; men being promoted to this situation. The danger is entirely on the other side of the question, that none but men too old will be brought forward; men whose minds have lost their energy, and whose age and infirmities render them incapable of sus taining the great and increasing weight of an important and arduous situation. To prevent, therefore, candidates of doubt ful residence or citizenship, or under the re quisite age, being elected as President, can never be sufficient reasons with the House for adopting this bill in the face of the Constitu tion, even if they had the power. I suppose there must be more weight in the other rea sons, or they would not agree to it. These are that, suppose a State Legislature should so far forget its duty as not to pass some legislative act or resolution, directing the manner in which, within the proper time, electors of a President should be elected, and the people should, notwithstanding, assemble and elect under a different authority : would the votes of the electors, under these circum stances, be receivable ? Or, suppose that two different sets of electors should insist tUtt they were constitutionally elected, and that double returns should be transmitted, one cer tified by the Governor of the State, and the other not ; which are to be received, and who is to have the power to decide to which the preference is to be given? On this subject I am to remark, that the Constitution supposes a mutual confidence to exist between the Federal and State Govern ments ; that not only in its formation, but in the strict and honorable performance of their relative duties, there will be the greatest punc tuality and exactness; that neglect, and par ticularly refusal, on the part of either, must endanger the existence of both ; and that un til the case does actually arise it is extremely impolitic in either to suspect it, and particu larly to adopt measures in anticipation, on suspicions unsupported by proofs, to meet sit uations that have never yet occurred, or prob ably never will ; that it ought to be a federal principle and a rule with the Government, never to doubt attachments of the States in the per formance of their constitutional duties ; that as they have hitherto regularly appointed elec tors and Senators, and members of the other branch, that they will continue to do so, and cheerfully contribute to the general expenses ; that in return they will expect from the Gov ernment complete and adequate protection in their public and private rights, and a constitu tional attention to such as are explicitly re served to the people and the State Legislatures ; that they will govern themselves by the Con stitution, and suffer no suspicions, jealousies, or unfounded reports to hurry them into acts invading the State rights. That, as it is so much the interest of the States to exercise their right in the election of a President, it is to be presumed that every State Legislature will seek with avidity each returning opportunity of doing so ; that whatever they may surmise or threaten, that when the time arrives no few men will dare to oppose numerous and important States ex pressing their opinion, or giving their votes on so interesting an election, particularly where the opinion has been so recently and decidedly expressed on questions of the same political tendency ; that there was no doubt of every State fairly and honorably voting, and of every Executive constitutionally discharging the duties of his station; that we had no more right to suppose, from what has hitherto happened, that an Executive or State govern ment would break the Constitution than they had to think that Congress and the President would do so; that if the General Govern ment went into measures to restrain or con trol the States in the exercise of their duties, might it not unnecessarily give rise to a spirit of discord, destructive to the harmony which ought ever to exist between them ? that, in every view in which the subject presents it self, it is certainly most wise to suffer things to remain as they are, and to be content with the regulations of the act of 1792, which go as far as, and perhaps, in one o two particulars of no importance, even farther than, the Con stitution warrants. To show the extreme impropriety of adopt ing this bill I will, for arguments sake, suppose that there might be some irregularities in the votes of electors, or even in the conduct of the Executive of a State on this subject ; and ask, whether, even under these circumstances, it would not be safer and less injurious to the interest of the people, that these few irregu lar votes, if transmitted and certified by an Executive, shall be received and counted, than that a new and unknown power like this should be created, under whose control not a few, but every vote that is given, must be re viewed, and received or rejected as they decree ? If the bill is not passed, we are to depend, as we have hitherto done, on the attachment of the States, and the good sense and integ rity of their Executives. We have, particu larly on the Executive of a State, the strong hold of public opinion. He will recollect that his character is at stake, and that if he suf fers party views or private interests or resent ment to govern his conduct, that he stands alone, and is individually responsible. That so far as respects his agency in the au thentication of the election of the electors, he has no body of men under the cover of whose advice he can shield himself, but that, in case 424 PROPOSED LEGISLATION AS TO THE MODE OF of misbehavior, he must alone meet the public censure ; that to deserve the confidence of his country, he ought never to submit to tempo rary expedients, or court the fleeting breath of popular applause; he must recollect what are his constitutional duties, and to those, and those only, he must conform ; that this has always been the conduct of the Executives of the States, and under that conduct we have been safe; that the Constitution makes this dependence on the States necessary, and as we have never yet been disappointed, we are to hope we never shall. But, surely, its friends never could have considered the extent and danger of giving to this committee, or even to Congress, the right to decide on double re turns, or they must immediately have seen the extreme impropriety of attempting it. It is, in short, nothing less than holding out to the minority in all the States a temptation to dispute every election, and to always bring for ward double returns. In every State where the election is strongly contested, there will of course be a minority. It will be easily known by the measures of Congress, to which can didate the majority of that body incline, and whose friends will compose the committee that are to be thus packed and selected. If a mi nority in a particular State*find that the can didate they have unsuccessfully supported is the favorite one with the majority of Con gress, or their committee, they will easily dis cover the means of raising objections to the validity of the return of the electors, insist that they themselves are elected, proceed to the length of meeting and voting, and trans mit to Congress a double return. It will not be difficult for them to accompany their return with plausible reasons, and per haps with such unfounded assertions, and spe cious although false documents, as to give to the committee some colorable reason for reject ing the return of the electors certified by the Governor, and admitting the other. Knowing the situation of the Union, how differently some States think from others on political questions ; how divided Congress has been for some years on certain great and trying sub jects ; who that is a friend to harmony and the Constitution, and to that easy, tranquil mode of deciding these elections which has hitherto prevailed, can wish to go into a meas ure so calculated to produce unceasing dis putes, and to throw almost every State into scenes which can never arise but from this bill? Can there be any one who would thus hazard the reserved rights of the State Legislatures and the people, and commit them to a body unknown to and unauthorized by the Con stitution ? Why should we suppose that the Congresses which have preceded us did not understand this subject as well as we do, or any that may succeed us ? In 1792, being the first time the exercise of this power was necessary, Congress passed a law, entitled " An act relative to the election of President and Vice-President, " etc., direct ing how the States should appoint electors for the election ; when they should meet and vote ; that they should sign three certificates of all the votes given ; directing how the votes should be disposed of ; detailing the duty of the Ex ecutive of each State in certifying the lists of electors chosen ; of the Secretary of State on the n on -receipt of votes ; that Congress shall always be in session on the second Wednesday in February in every fourth year, for the pur pose of opening and counting the votes, and declaring a President elected agreeably to the Constitution ; ascertaining the duties, allow ances to, and penalties on persons sent with the votes ; and making provision in case of the death of both President and Vice-Presi dent, or their refusal to serve, and fixing the time when their services commence. It is very important, in deciding on the bill before you, to peruse this act with great at tention; to recollect by whom, and when, and under what circumstances, it was made. This law was passed in 1792, when a number of able and well-informed men, who have been since appointed to some of your most respectable situations at home and abroad, and many who have voluntarily retired with deserved and well-earned honor to private life, filled the seats of both Houses of Congress; when the Executive authority was held by General Wash ington, for whom your whole nation at present mourns; by him who had no rival in the public affection, whose honors no man envied, and whose reelection to office as long as he pleased, he well knew, would always have been without contest ; in him was placed the revision of your laws. And here, sir, let me ask whether from a Congress thus ably formed, and from an Executive thus discerning and independent, as much knowledge of the Con stitution, its precise directions, and the agency it intended Congress to have in the counting the votes and declaring the President, were not to have been expected, as from the pres ent? Were not the then Executive, and a number of the members of both Houses, members of the convention which framed the Constitution ; and if it intended to give to Con gress, or authorize them to delegate to a com mittee of their body, powers contemplated by this bill, could the Congress or the President of 1792 have been so extremely uninformed, and indeed ignorant of its meaning and of their duty, as not to have known it? I have heard many motions and measures which have been introduced here, termed as intended reflections on the present President ; but surely no more severe reflections on the mis takes or ignorance of the Congress and Presi dent of that day can be passed than this bill. It will exhibit to the world our decided opin ion that they were both ignorant of the powers of their respective departments, and COUNTING THE ELECTORAL VOTES. 425 both neglected to declare and assert them. An impartial public will, however, feel them selves interested on this very important occa sion to recollect the circumstances under which the act of 1792 was passed, and those under which the present attempt has been made, and upon comparing them to ex amine and decide for themselves. They will find that in that year they possessed as able and independent a Congress as they can ever reasonably expect to see again ; that they were then in perfect peace; no treaty had been made with Britain, or alliance dissolved with France ; no depredations vexed their commerce ; no improper partialities for con tending nations divided their councils ; respect ing and alike respected by the whole family of the civilized world, their country was the residence of peace and industry, and the asy lum of the oppressed of every nation. Their Constitution was universally admired ; it was drawing to them a great share of wealth, the arts and information of Europe; no rival candidates contended for the chair ; it was filled by him who had no opponent and who was in the succeeding year again unanimously summoned to occupy it. Under circumstances so favorable to the impartial exercise of those legislative duties, will not our citizens be in clined to suppose that the act of 1792 was a proper one, and that there was more proba bility of its provisions being in a temperate and unbiased conformity to the Constitution, than any act which could be passed at this time ? a time when no man can say we are at peace, or that our commerce is free from depredations ; or that strong contending par ties do not divide our councils and citizens, as well with respect to foreign politics as to him who is hereafter to fill the Executive de partment ; a time when it is out of the ques tion not to suppose that each party will use every means to secure their favorite object. If, after comparing these circumstances, our citizens should carefully peruse the express directions of the Constitution, they will have but little doubt to which act to give the pref erence, as the proper and constitutional one. By viewing the first section of the 2d article of the Constitution, it is to be seen that on the day fixed by law, which is the second Wednes day in February, the President of the Sen ate shall, in the presence of the Senate and House of Representatives, open all the certifi cates, 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 ap pointed ; 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; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. From this part of the Constitution it is evi dent that no power or authority is given to Congress, even when both Houses are assem bled in convention, further than to open and count the votes and declare who are the Presi dent and Vice-President, if an election has been made; but that in case no election is made by the electors, or -no candidate has a majority, then the House of Representatives are (voting by States) immediately to choose, out of the five highest on the list, the Presi dent, etc. In order that every r man may understand what is here meant by the Constitution, and what are its express directions and letter as to this election, let us examine what is the literal meaning of the word immediately, and why it was introduced here. The best and most gen erally admired expounders of the English lan guage give this explanation of the word im mediately : they say it means "instantly" at the present time without delay. This is the meaning the framers of the Constitution intended to give it, and it admits of no other. The plain, express literal direction of that in strument, therefore, is, that in case of no elec tion, the House of Representatives, voting by States, are immediately that is, instantly, and on the spot, without leaving the House in which they are then assembled, and without adjournment to choose, out of the five high est candidates that have been voted for by the electors, the one who is to be the Executive. The reasons for this immediate election are, in my judgment, unanswerable; they show very clearly the foresight and caution of the convention, and, if not strictly attended to, may be productive of the most serious calami ties to our country. The reasons are these : that from our rapidly-increasing strength and commerce, from the enterprise of our citizens, and our particular maritime situation as it re spects the West Indies, South America, and the powers having possessions in both, it was easily to be seen that in any conflict between these powers, our friendship or hospitality must be of the greatest importance ; that they therefore would never cease to interfere in our politics and endeavor to direct them in the manner most suitable to their own interests ; that from the difficulty of influencing so large a body as Congress, and from the immense power of the President, not only over the laws, but foreign connections of the Union, that their principal effort would be always to have one of their own friends chosen ; and to effect this, no influence would be left untried. To prevent this, therefore, and to make the Executive independent of Congress, the elec tion has been given exclusively to the States, and under the direction of the State Legisla tures. If an election is made by the electors and subject to no future control or revision on the part of Congress, then the end intended by the Constitution, of preventing the inter ference of foreign influence, is completely an- PROPOSED LEGISLATE 7 " AS TO THE MODE OF swered ; for, elected as they are, and voting as the electors must, the interference of foreign gold or influence is impossible. But it was to be supposed that instances would occur where two candidates, having a majority, may be equal in their number of votes, or where no candidate had a majority of the whole of the electors appointed, and an election must take place by the national Legis lature, or a branch of it, the question then arose, how was this election to be guarded to prevent, as far as human prudence could, im proper domestic combinations, or, what is in finitely worse, foreign interference ? It was a difficult thing, and required much deliberation. The Constitution directs that the electors shall vote T)y liallot, and* seal up and transmit their votes to the President of the Senate. It is expected and required by the Constitution that the votes shall be secret and unknown, until opened in the presence of both Houses. To suffer them to be known, as heretofore has been the practice, is unconstitutional and dangerous, and goes to defeat, in some meas ure, the wise provisions of that instrument in declaring that when the House of Represent atives are to elect, that it shall be done im mediately. The electors, therefore, ought never to divulge their votes. The votes being thus unknown, it would be impossible, in most in stances, to say who were elected or who had the five highest numbers on the list. The leaders of domestic intrigue and foreign emis saries would be at a loss how to direct their influence, and the election by the House of Representatives taking place immediately after the votes have been opened and counted, that body would go to the election free and unin fluenced, as they ought. And is not this, sir, safer is it not better than that the smallest delay should take place in determining it? You are to choose out of the five highest can didates on the list of the electors votes. It never can be supposed that men thus de liberately chosen as electors would vote for any but the most distinguished among our citizens, or point the attention of the public, or of the House of Representatives, to obscure or improper characters. The five having the highest number of votes will all be such men as that either of them, if chosen, will be well qualified to fill the office ; and it will be less dangerous to the public interests that even one who may not be the most qualified of the five, should be elected, than that Congress should adjourn to deliberate on it, and thus expose themselves and the best interests of their constituents to the secret and artful at tacks that will be made on their integrity. It is to be remembered that around the seat of Congress will be placed all the open and accredited ministers, as well as secret emis saries of foreign powers. Here, too, will be assembled the concealed leaders of domestic faction; all the arts and intrigues that have been used in elective governments in the Old World will soon find their way among us ; and if the electors do not conceal their votes until the day appointed by law for opening them, and in case of no election by them, an imme diate one by the House of Representatives does not take place, we shall soon have the scenes of Polish Diets and elections reacted here, and in not many years the fate of Poland may be that of United America. Wisely foreseeing this, the Constitution ex pressly orders that the electors shall vote by ballot; and we all know that to vote by bal lot is to vote secretly ; that the votes shall be sealed up, and not opened until the day ap pointed by law, and that if no election has been made by the electors an immediate one shall take place by the House of Represent atives; that, so far from appointing commit tees to receive memorials or petitions respect ing the election, or decide upon it, or so far from having any right to delegate an authority on this subject, Congress shall not them selves, even when in convention, have the smallest power to decide on a single vote ; that they shall not have authority to adjourn for one moment, but shall instantly, and on the spot, in case of no election by the electors, proceed to the choice of a President, and not separate until it is determined. I have intentionally gone into repetitions on this subject, in order to impress on the House the full meaning and intent of the word im mediately ; and to show how utterly uncon stitutional it would be for Congress, either acting in their separate Chambers or in con vention, to attempt to assume to themselves the power to reject a single vote ; and how in admissible must be the idea that they could delegate it to a small, packed committee, chosen by the prevailing majorities in both Houses, and sitting with closed doors, autho rized irrevocably to decree who shall be pro claimed President ; a committee not even ap pointed by lot, as was proposed, in imitation of the election committee of Great Britain a measure which might have had the appearance of giving to the friends of all the candidates some chance of being on it: not limited, as was afterward moved, in imitation of that part of the Constitution which respects the making of treaties, to the number of two-thirds being necessary for every decision, but to a commit tee chosen by the majorities of both Houses, just as their own political opinions and preju dices shall prompt. Extraordinary and unconstitutional as this mode of choosing a committee must appear, and new and unknown as are the powers in tended to be given to it, perhaps no part of the bill strikes us with more astonishment than that the deliberations on all these great and important questions are to be in secret, and that the committee are to sit with closed doors. We have hitherto been taught to be lieve that only executive business, or commu nications deemed by the Executive of either COUNTING THE ELECTORAL VOTES. 427 branch to be of a secret nature, that our citi zens were to be denied the right of being pres ent if they please ; but that on all legislative subjects, most particularly on all questions re specting elections, the deliberations of the body who are to have power finally to decide, must, from the nature of our government, be -open and uncovered. I have heard that at a time when upon all other questions the doors of the Senate were shut; yet that when the right of a Senator to keep his seat was discussed, they were ordered to be thrown open. If, then, on a subject in which the rights of a single State Legislature were investigated, you deemed it proper the de bates and decisions should be in public, how much more important is it that every eye should be entitled to inspect the conduct, and every ear to listen to the decisions of a body on whose decree, without appeal, are to depend the rights of every Legislature in the Union ! Can it be supposed that this extraordinary measure will meet the public approbation? Can we be ignorant of the jealous temper of our citizens, their general information, and their persevering and laudable endeavors to be acquainted with our measures? Do we not suppose that the State Legislatures will feel particularly alive on this subject, and that they who by their perseverance have formerly un barred the doors of the Senate, and opened your legislative deliberations to the public view, will scarcely suppose that an investiga tion so much more important than any legis lative act, should be veiled from a jealous in- spection ? Will they not remember that, in all contested elections of members of either House, the debates are in public, and by concealing these, will it not be a reason with them to be lieve, you doubt your right to act at all? If upon elections in a State Legislature, or in the national one, petitioners have a right to be heard openly and by counsel, ought not the same right to exist in an election where all the Legislatures and all the people are concerned ? It is no answer, or no reason for sitting with closed doors, to say that the testimony is to be entered in writing on the journals of the com mittee, and the members are to enter their reasons and sign them for rejecting a vote. It is not to know the result of their deliberations, or what laws they pass, that creates the neces sity for deliberative bodies in free countries sitting with open doors ; it is that the public eye may be constantly upon them; that all their movements may be seen, and all opinions they give on public questions or in debate care fully attended to. When a single member in the House of Representatives may represent the in terests of above thirty thousand citizens, and in the Senate upward of hundreds of thousands, or where a committee of thirteen are to decide on the election of the officer who is to preside over upward of five millions of people, most surely every opinion and every motion of each member should be strictly scrutinized. If ever there could be good reasons for opening the deliberations on any assembly of men to the public view, they must apply with redoubled force to this; if ever the opinions, or steadi ness, or integrity of a body should be vigilantly attended to, it must be of one who are to pos sess full and irrevocable power to reject or re ceive the votes of the electors as they please, and finally to decide. It is a power too impor tant to be exercised in the dark ; it is contrary to what ought to be the practice of every gov ernment, whose pride it should be to invite the investigation of their constituents, and, instead of retiring from the public eye, to wish u that there was a window in its bosom." It is among the precepts of our religion that we should continually pray not to be led into temptation; to avoid being tempted to do im proper things would be an excellent rule with public bodies, as well as with individuals ; many private crimes would be prevented, and many indiscreet and unconstitutional public acts not even thought of. Self-interest and re venge are sometimes such powerful incentives, that temptations to pursue the one or gratify the other are frequently not to be resisted. To no public body has ever a stronger temptation been held out than this bill offers to the House of Representatives. If the election by the elec tors can be destroyed by any means, the Con stitution gives to that House the election of the President; if, therefore, their favorite candi date has not the majority of votes, but comes so near that the rejecting a few of the rival s votes will prevent an election and bring it to their House, how easy is it for them to elect six members whose opinions they have previously, known, and that Senator out of the three nom inated by the Senate whom they can most de pend upon, as fitted for their purpose, and with these to destroy the election, and assume to themselves the power of deciding who is to be your Supreme Executive ! Considering the in fluence and authority of this office, how much he will have it in his power to reward such tried friends as these, friends who have proved themselves so valuable to him as to have set aside the election of his opponent, who ought to have been the successful candidate, and placed him in the chair ! I ask, if it is not a temptation too great to offer to any single body, like the House of Representatives ? And if the Constitution, by the most sacred con struction, had ever permitted or intended such an event, whether it would have deserved the encomiums it has hitherto received ? Whether, instead of having a really independent Exec utive, chosen under the direction of the State Legislatures, in a manner to prevent the influ ence of foreign gold, or domestic faction, whose election, in order that he may be firm in the exercise of his revisionary power, and honest in the disposition of the public honors, was not to be subject to the control or interference of Congress ; one who could be really called the man of the people, and on whom they could de- 428 PROPOSED LEGISLATION AS TO THE MODE OF pend; whether, instead of having an officer like this, you would not have a fettered, depend ent creature of the Legislature, the production of the little packed committee, a thing with a chain on his pen, and a curb in his mouth, that could neither write, speak, nor even sign his name, but at the will of his creator; and whether this thing, when presented, however he might be called and obeyed, would deserve to be considered such a President of the United States as the Constitution intended? I now come to a part of the bill on which, should it become a law, it appears to me that insuperable difficulties would arise, and this is the section which respects testimony. By the 13th section it is said that persons petitioning against the votes given by any of the electors of President or V ice-President of the United States, and persons desirous of supporting such contested votes, may respectively obtain testi mony in the same manner and under the same rules and regulations which are provided by the act entitled "An act to prescribe the mode of taking evidence in cases of contested elections for members of the House of Repre sentatives of the United States, and to compel the attendance of witnesses. And the rules, regulations, and penalties of the said act, are and shall be extended to cases arising under this act, as fully as if the same were herein fully recited and enacted." By the act to which this alludes, any judge of the courts of the United States or of a State, or, if they cannot be conveniently ob tained, two justices of the peace, are, on appli cation of the parties contesting elections, to issue a w arrant or summons to witnesses to at tend at some convenient time and place; if they are not at their usual place of residence, service of a copy is sufficient ; and for non- attendance the fine is only twenty dollars. The party whose election is opposed is to be served with notice of this intended opposition, and of the time and place when these witnesses are to be examined. If it is said he was not at home, proof of a copy of the notification being left is sufficient, and the judge or justices are to proceed, ex parte, to take testimony. It does not appear by the most attentive perusal of the act, that the officers or persons who are to serve the notice are to depend on the judge or justices, or known public officers, but may be any persons the party opposing the election may choose; they may be some of his own particular friends or dependents, or persons he can direct as he pleases. In examining this act, we must immediately perceive that it is extremely defective, even as it respects the election of members of the House of Representatives ; but that should it ever be relied upon in the decision of the elec tion of a President of the United States, and the choice of this important officer, this in tended man of the people, was to depend upon the testimony which, under the cover of this act, fraud, or force, or bribery, might produce, the evils to this country would be monstrous indeed. By this act we are prevented from the vim wee examination of witnesses before Congress or the committee ; that examination which, on the trial of the meanest culprit and for the smallest offense, your just and equitable laws render indispensable ; that mode which allows you to look a witness steadily in the face, to view in it the calmness of conscious innocence, or the agitation of falsehood and fear of detec tion ; in the presence of an anxious and in quiring public to probe his statements to the bottom, and if they are false to confront him with the truth. How far superior, sir, is this to the regulations of the act, where examina tions are to be taken by commission, in a man ner that must forever open a door for the grossest impositions. If a judge of some su perior or inferior court is not to be conven iently found and in the interior and frontier parts of a number of the States this will fre quently be the case the whole management of this business is to depend upon two justices of the peace, who are to issue the warrant or summons, and examine and reduce the testi mony to writing, and transmit it to the seat of Government. I trust I shall be believed when I say that few men have, indeed no man has, a higher affection for the people of the United States than I have ; that I believe them to be the most immaculate, and easily-gov erned, and, at the same time, the best-inten tioned people in the world. I cannot, there fore, be suspected of the most distant reflec tion in supposing that in some of the States, where objections may be made to the elections or qualifications of electors, and it may by this bill be necessary to take testimony, that some judge, or chancellor, or justice of the peace, may be found, who may not be a man of good character, or a man of sufficient knowledge or technical skill, to be intrusted with the taking of the testimony, or the cross-examination of witnesses, on whose assertions may depend so important an election. Recollecting that there are some thousands of judges, chancellors, and justices of the peace, resident in so extensive and populous a country as the United States, it would be wonderful, indeed, if some of them were not men of letters, or not sufficiently in formed to manage so difficult and delicate an examination as this is, with sufficient acuteness and ability; but if we extend the idea, and suppose that, amid so numerous a body of men, it is possible some of them may be tampered with, and made subservient to the purposes of party, to reduce testimony to writing in a man gled or partial manner, to omit or add, as they may be tempted, the alarming consequences that might flow from their misconduct scarcely need be mentioned ; they must strike the most superficial observer. How easy, too, is it, under this act, for the contesting party to employ dependents of his own, who may so manage the transmission or COUNTING THE ELECTORAL VOTES. delivery of the notices, as that the elector, or person whose qualifications or election is con tested, may not receive them at all, or receive them so late as to make his appearance in time before the justices impossible ! In short, if we view the difficulties that must attend the at tempt to obtain testimony on this subject that can be at all depended upon, the door that it will open to bribery, and perjury, and fraud of every description, it must at once appear that the Constitution could never have con templated giving Congress any authority on the subject. They knew it was impossible, from the great distance of some of the States, that viva voce examinations could take place before that body ; that on this occasion all others were inadmissible; they therefore de termined that the inquiry into the election and qualifications of the electors, and the constitu tionality of their votes, should be given to and rest exclusively with the State Legislatures; and that the certificate of the Executive of a State, of the electors appointed, and the votes of such electors regularly transmitted, must be received and counted. If this was not to be the case, and the bill before you was to become law, as you have now determined that the 7th section should be struck out, and that the com mittee shall have power, finally, to decide without restrictions, I wish to be informed where are the committee to stop their in quiries? In States where the electors are chosen by a general vote, or by districts, and where thousands of voters may ballot for a candidate, are the committee to examine into the return of every elector, and into the qualifications of every vote? Or in others, where the electors are chosen by the Legis lature, are the committee to inquire into the legality of the return of every member of a State Legislature ? Or how is it possible for this committee, or for Congress itself, either to have the time or means to make these in quiries, so as to be able to determine with ex actness or with justice to the parties? But let us suppose that this committee, or even Con gress itself, are determined to exercise this power, and should receive memorials and peti tions, and collect testimony, and should be of opinion that one or more electors of a State have not been duly elected or are not con stitutionally qualified ; how are Congress then to proceed to find how these unduly or dis qualified electors voted, particularly if they should belong to a State having a number of electors? As the Constitution directs they are to vote by ballot, the votes of the election ought to be secret. You have no right to re quire from an elector how he voted, nor will you be able to know for whom he did vote, particularly if in the return from that State different candidates have been voted for. In this dilemma, I ask, what is to be done ? You cannot discover for whom this disqualified or improperly returned elector voted; and you would not certainly, in a State having sixteen or twenty-one votes, reject th or two illegal votes have been supposed to given. From the most attentive consideration of this part of the subject, I believe no satis factory answer can be given to the question I ask ; that the objection I have stated can never be removed; that if there was no other good reason for supposing the Constitution did not intend to give to Congress any control or examination into the election, this of itself is sufficient, and proves the wisdom of that in strument s vesting it exclusively in the State Legislatures. Another serious objection to this bill, or to the exercise of this power, either by Congress or a committee, is, that the Executives of the State and the State Legislatures are equally bound with Congress, by oath, "to support the Constitution ;" it is an oath they all take at the commencement of each new Legislature. If, therefore, a member of the Legislatures of the most important States in the Union should be of opinion, with me, that this is a right exclu sively vested in them by the Constitution, which they have solemnly sworn to preserve, and that consistently with their oaths they cannot quietly acquiesce in a diminution of it, or suffer any invasion by a body having no constitutional authority to interfere, might not such sentiments, firmly expressed and ad hered to, unnecessarily give rise to a conflict of opinions, at least, that had better always be avoided ? We know the force of religious opinions in this country, and how tenaciously oaths are in general adhered to ; and surely nothing but some strong and pressing necessity could ever excuse, if anything can excuse, an interference on so delicate a subject. And where, sir, is this necessity at present ? Have not the States, and their Legislatures and Executives, always punctually and faithfully executed every duty the Constitution required of them? Have you any documents before you to prove some of them mean to misbehave, or any proofs to justify your adopting a measure of this kind? Are the opinions of individuals, or perhaps unfounded anonymous publications, to precipi tate you into differences with the States, at a time when harmony is so essential to our gen eral welfare ? Do you recollect the contests that are now prevailing in the Old World on the subject of government and its principles, and how important it is to us to avoid a clash ing of opinions between Congress and the States on the subject of their reserved rights, at a time when not only this but every con stitutional principle should be touched -with the greatest delicacy ? We should recollect that it is also highly necessary at this time to impress our citizens with the most favorable opinions of the integ rity of the Government, particularly as it re spects the election of their President ; they now know that, chosen by electors elected under the exclusive direction of the State Legislatures, ise one ne 430 PROPOSED LEGISLATION AS TO THE MODE OF within only a short time of the election, and voting on one day throughout the Union, it is impossible for foreign or domestic gold, or fac tions, to influence the election ; as it stands now, corruption must ever keep at a distance ; it can never assail your electors or sully the purity of their choice. Give, however, the power of deciding on their votes, and of re jecting or receiving them, as they please, to thirteen men, all of the same political descrip tion, all wishing the same men, sitting with closed doors, and whose deliberations are re moved from the public eye, and you will find it difficult to avoid just suspicion ; your jeal ous citizens will remember that secrecy always accompanies corruption, and that even if this committee were to act in the most honorable manner, yet still that the friends of the can didate whose votes have been refused, if such refusal cost him his election, will never cease to suspect that all has not been fair, and that some improper reason had influenced the de cision. I could urge a variety of other objec tions against this bill, but I am afraid I have already too long trespassed on your patience. I will, therefore, here conclude my remarks with entreating the House not to destroy the beautiful harmony and safety which the Con stitution at present insures, both to the States and the General Government ; a safety which must depend on a strict adherence to its prin ciples, and to the judicious distribution of its authorities ; that, while the States are wisely prohibited from interfering with those really national powers which can alone be safely ex ercised by the General Government, for the purposes of national defense and protection, Government is in its turn checked from over stepping the boundaries of the Constitution, by the reserved powers to the States and the people, and by their exclusive rights of election, as I have fully stated to you. In stead of injuring, let it be our care to preserve unimpaired this valuable system. I should be sorry that any part of the Government should be chargeable with a wish to violate it ; but feeling as we must always do a particular affec tion for that branch of it to which we belong, I should be extremely sorry indeed that this bill should pass the Senate. Let us remember that the election is in tended by the Constitution, once in every four years, as an appeal to the people for their opinions respecting the preceding Administra tion. If the conduct of the Executive has been wise, disinterested, and impartial, there can be no doubt that the good sense and vir tue of our citizens will continue him in office, or, if he wishes to decline, elect a successor of similar principles. On the contrary, if he has not proved himself able and judicious, and the measures of his Administration do not ac cord with the public sentiment, they will have an opportunity, mildly and gently, through the force of the elective principle, to remove him, and place in his stead some man of dif ferent political conduct and opinions. This appeal, however, can never be fairly and in dependently made to the people, if Congress are to have the smallest control or revision of the election, because the majority of them must always be intimately connected with the measures of administration. The President can never proceed without the support of Congress ; their approbation must sanction all the laws and all the supplies which his views have occasioned ; and the people, in express ing by the election their sentiments of the conduct of the Executive, must at the same time necessarily give an opinion on that of the Legislature. This is another reason for reject ing the bill ; and as it appears, since the 7th section has been struck out, several gentlemen have altered their opinions, I am not without hopes, when the question is taken, we shall find ourselves in a majority, that it will not pass, and that the exclusive rights of the State Legislature will be preserved inviolate. When Mr. Pinckney had concluded, the question was taken on the passage of the bill, and it was determined in the affirmative yeas 16, nays 12 ; as follows : YEAS Messrs. Bingham, Chipman, Dayton, Dex ter, Foster, Goodhue, Greene, Hillhouse, Latimer, Lloyd, Paine, Eead, Eoss, Schureman, Tracy, and Wells. NAYS Messrs. Anderson, Baldwin, Blood- worth, Brown, Cocke, Franklin, Langdon, Liver- more, Marshall, Mason, Nicholas, and Pinckney. So it was Resolved, That this bill pass, that it be engrossed, and that the title thereof be " An act prescribing the mode of deciding dis puted elections of President and Vice-Presi- clent of the United States." IN SENATE. Friday, May 2, 1800. ( u Annals of Congress," 6th Cong., p. 172.) A message from the House of Representa- tives informed the Senate that the House have passed the bill for deciding disputed elections of President and Vice-President of the United States, with amendments ; in which they de sire the concurrence of the Senate. The Sen ate took into consideration the amendments of the House of Eepresentatives to the bill for deciding disputed elections of President and Vice-President of the United States, and they were referred to Messrs. Ross, Dexter, and Livermore, to report thereon. IN SENATE. Thursday, May 8, 1800. ("Annals of Congress," 6th Cong., pp. 175-177.) Mr. Ross, from the committee to whom was referred the amendment of the House of Rep resentatives to the bill prescribing the mode of deciding disputed elections of President and Vice-President of the United States, reported amendments thereto. The Senate considered the amendments reported by the committee to COUNTING THE ELECTORAL VOTES. 431 the amendment of the House of Representa tives on the bill prescribing the mode of de ciding disputed elections of President and Vice- President of the United States. On motion, to agree to the folio wing amend ment reported by the committee : section 8, line 49, strike out the word "rejecting" and insert " admitting," it passed in the affirma tive yeas 15, nays 11 ; as follows : YEAS Messrs. Bingham, Dayton, Dexter, Good- hue, Green, Gunn, Hillhouse, Latimer, Livermore, Morris, Read, Ross, Schureman, Tracy, and Wells. NAYS Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Foster, Franklin, Marshall, Mason, Nicholas, and Pinckney. On motion, to strike out the following words from the 1st section of the amendment of the House of Representatives, viz., "other than such as may merely question the number of votes by which the electors may have been appointed," it passed in the negative yeas 11, nays 16 ; as follows : YEAS Messrs. Dayton, Dexter, Goodhue, Greene, Hillhouse, Latimer, Read, Ross, Schure man, Tracy, and W ells. NAYS Messrs. Anderson, Baldwin, Bingham, Bloodworth, Brown, Cocke, Foster, Gunn, Lawrance, Livermore, Marshall, Mason, Morris, Nicholas, and Pinckney. On motion, to agree to the amendment of the House of Representatives, with the amend ments reported, it passed in the affirmative yeas 16, nays 11 ; as follows : YEAS Messrs. Bingham, Dayton, Dexter, Fos ter, Goodhue, Greene, Gunn, Hillhouse, Latimer, Lawrance, Livermore, Morris, Ross, Schureman, Tracy, and Wells. NAYS Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Marshall, Mason, Nicholas, Pinckney, and Read. IN SENATE. Friday, May 9, 1800. (" Annals of Congress," 6th Cong., p. ITS.) A message from the House of Representa tives informed the Senate that they disagree to the amendments of the Senate to the amend ment of the bill prescribing the mode of de ciding disputed elections of President and Vice- President of the United States. IN SENATE. Saturday, May 10, 1800. ("Annals of Congress," 6th Cong., p. 179.) The Senate resumed the consideration of the resolution of the House of Representatives on the amendments of the Senate to their amend ment to the bill prescribing the mode of de ciding disputed elections of President and Vice- President of the United States ; and, on mo tion to recede from the amendments to the amendment, it passed in the negative yeas 11, nays 16 ; as follows : YEAS Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Foster, Franklin, Marshall, Mason, Nicholas, and Pinckney. NAYS Messrs. Bingham, Dayton, Dexter, Greene, Gunn, Hillhouse, Howard, Latimer, Law rance, Livermore, Morris, Read, Ross, Schureman, Tracy, and Wells. Resolved, That the Senate adhere to their said amendments. A message from the House of Representa tives informed the Senate that they adhere to their disagreement to the amendments of the Senate to their amendment to the bill prescrib ing the mode of deciding disputed elections for President and Vice-President of the United States. IN HOU-SE OF REPRESENTATIVES. Monday, March 81, 1800. ( "Annals of Congress," 6th Cong., p. 649.) A message was received from the Senate notifying the House that they had passed " an act prescribing the mode of deciding disputed elections of President and Vice-President," to which they desired the concurrence of the House. IN HOUSE OF REPRESENTATIVES. Wednesday, April 16, 1800. (" Annals of Congress," 6th Cong., p. 670.) The House went into a committee on the bill from the Senate prescribing the mode of deciding disputed elections for President and Vice-President. The bill having been read, and the first sec tion being under consideration : Mr. Marshall, after speaking of the impor tance of the subject before the committee, and the necessity of some salutary mode being adopted for this object, expressed his doubts of the propriety of two points in the first sec tion of the bill, to wit : First, that the Senate were to name the chairman of the Grand Committee ; and, secondly, that the opinion of this Grand Committee was to be final. He therefore moved to strike out of the section so much as related to those principles, and read what he wished to introduce for a substitute. Some debate was had on this motion, when Mr. Nicholas, expressing a desire to acquire all the information that was necessary to digest the new principles, moved the committee to rise ; which was done accordingly, and it ob tained leave to sit again. IN HOUSE OF REPRESENTATIVES. Thursday, April 17, 1800. (" Annals of Congress," 6th Cong., p. 673.) The House again resolved itself into a Com mittee of the Whole on the bill prescribing the mode of deciding disputed elections of President and Vice-President; and Mr. Mar shall s amendment being under consideration, Mr. Randolph moved to amend the amend- 432 PROPOSED LEGISLATION AS TO THE MODE OF ment by striking out that part which directs the Grand Committee to be chosen by a bal lot, and inserting that they shall be chosen by lot. Mr. Nicholas then rose, and after noticing the amendments which, had been offered, and animadverting at considerable length upon the unconstitutionally of the bill, moved to strike out the first section. He was followed by Mr. Marshall in oppo sition, and Mr. Randolph in support, of the motion. The committee then rose and ob tained leave to sit again. IN HOUSE OF REPKESENTATIVES. Friday, April 18, 1800. ("Annals of Congress," 6th Cong., p. 674.) Mr. Nicholson called for the order of the day on the bill prescribing the mode of de ciding the disputed elections of President and Vice-President of the United States. Mr. Harper moved that it be postponed till Monday. Mr. Nicholson, after expressing his abhor rence of the principles contained in the bill, then moved that it be postponed till the first Monday in December next. Messrs. Harper, Dana, Rutledge, and Mar shall opposed this motion ; and Messrs. S. Smith, Gallatin, Randolph, Nicholson, and Nicholas supported it. The question was taken by yeas and nays, and decided in the negative yeas 48, nays 62 ; as follows : YEAS Willis Alston, Theodoras Bailey, Phanuel Bishop, Eobert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, William Charles Cole Clai- borne, John Condit, Thomas T. Davis, John Daw- son, George Dent, Joseph Eggleston, Lucas Elmen- dorf, John Fowler, Albert Gallatin, Edwin Gray, Andrew Gregg, John A. Hanna, Thomas Hart ley, Joseph Heisler, Archibald Henderson, David Holmes, George Jackson, James Jones, Aaron Kitchell, Michael Leib, Matthew Lyon, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, John Randolph, John Smilie, John Smith, Samuel Smith, Eichard Dobbs Spraight, Eichard Stanford, David Stone, Thomas cuimter. Benjamin Taliaferro, John Thomp son, Abram Trigg, John Trigg, Philip Van Cort- landt, Joseph B. Varnum, and Eobert Williams. NAYS George Baer, Bailey Bartlett, James A. Bayard, John Bird, Jonathan Brace, John Brown, Christopher G. Champlin, William Cooper, Samuel W. Dana, Franklin Davenport, John Davenport, John Dennis, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jona than Freeman, Henry Glen, Chauncey Goodrich, Eiizur Goodrich, William Gordon, Eoger Griswold, William Barry Grove, Eobert Goodloe Harper, William H. Hill, Benjamin Huger, James H. Imlay, Henry Lee, Silas Lee, Samuel Lyman, James Linn, John Marshall, Lewis E. Morris, Abraham Nott, Eobert Page, Josiah Parker, Thomas Pinckney, Jo nas Platt, Leven Powell, John Eeed, John Eut- ledge, Jr., Samuel Sewall, James Sheafe, William Shepard, George Thatcher, John Chew Thomas, Eichard Thomas, Peleg Wadsworth, Eobert Wain, Lemuel Williams, and Henry Woods. Mr. Harper s motion for postponement till Monday was then agreed to yeas 54. IN HOUSE OF REPKESENTATIVES. Monday, April 21, 1800. (" Annals of Congress," 6th Cong., p. 678.) Mr. Harper moved that the Committee of the Whole should be discharged from the fur ther consideration of the bill from the Senate, respecting the election of President and Vice- President, for the purpose of committing it to a select committee. He thought some essential alterations were wanting, which would not be incorporated in the present bill in the House ; he particularly referred to the powers of the committee. Mr. Marshall supported the motion. Messrs. Gallatin and Nicholas opposed the motion, and hoped, first, the principle would be decided whether there should be a commit tee at all or not before its commitment. The motion was carried yeas 54. Seven members were appointed. IN HOUSE OF REPEESENTATIVES. Tuesday, April 29, 1800. ("Annals of Congress," 6th Cong., pp. 691, 692.) The House resolved itself into a committee on the bill prescribing the mode of deciding disputed elections of President and Vice-Presi- dent of the United States. The bill as amended by the select committee provided for the appointment of a joint com mittee with certain defined but no decisive powers. Mr. Nicholas saw no use for this committee, whose only business was to examine testimony which, being next to nothing for them to do, would enable them the better to design mis chief, if they were so inclined ; and the great inconvenience that would attend their being empowered to send for testimony, even from the most distant part of the United States, made him think that all the provisions with which this committee are connected ought to be stricken out ; he therefore moved to strike out the first section of the bill. This was negatived, 43 to 39. Mr. Gallatin afterward moved to amend a section which provided the means of ascertain ing the votes. Mr. Marshall answered. The committee rose, without a decision. IN HOUSE OF REPEESENTATIVES. Wednesday, April 30, 1800. ("Annals of Congress," 6th Cong., p. 692.) The House again resolved itself into a com mittee on the bill prescribing the mode of de ciding disputed elections of President and Vice- President of the United States. A motion of Mr. Gallatin was under consid eration, to insert, instead of the principle that in case of doubt the House should divide to their respective Chambers to consider the qualification or disqualification of a vote or COUNTING THE ELECTORAL VOTES. 433 votes, from their joint meeting, if such ques tions should arise at counting the votes, the following words : " and the question of the ex ception shall immediately, and without debate, be taken by yeas and nays, and decided by a majority of the members of both Houses then present." This motion called forth a long debate, and on the division was negatived, 46 to 44. The committee having gone through the bill, rose and reported. IN HOUSE OP REPRESENTATIVES. Thursday, May 1, 1800. ("Annals of Congress," 6th Cong., p. 694.) The House proceeded to consider the amend ment reported yesterday from the Committee of the Whole House, to whom was committed the report of the committee to whom was re ferred the bill sent from the Senate, entitled "An act prescribing the mode of deciding dis puted elections of President and Vice-Presi dent of the United States ; " and, the same be ing read, A motion was made and seconded to amend the said amendment, by striking out, in the lirst section thereof, the words following: That, on the next following the day when a President and Vice-president shall have been voted for, by electors, it shall be the duty of the Senate and House of Representatives of the United States to choose, by ballot, in each House, four members there of ; and the persons thus chosen shall form a joint committee, and shall have power to examine into all disputes relative to the election of President and Vice-President of the United States, other than such as may relate to the number of votes by which elec tors may have been appointed. And the question being taken thereupon, it was decided in the negative yeas 41, nays 47 ; as follows: YEAS Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Mathew Clay, William C. C. Claiborne, John Condit, Thomas T. Davis, John Dawson, Joseph Eggleston, Lucas Elmendorf, John Fowler, Albert Gallatin, Edwin Gray, Andrew Gregg, John A. Hanna, David Holmes, George Jackson, James Jones, Aaron Kitchell, Michael Leib, Matthew Lyori, James Linn, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, John Randolph, John Smilie, John Smith, Richard Stanford, David SStone, Thomas Sumter, John Tompson, Abram Trigg, John Trigg, Joseph B. Varnum, and Robert Williams. NAYS George Baer, Bailey Bartlett, James A. Bayard, Jonathan Brace, John Brown, Christopher G. Champlin, William Cooper, Samuel W. Dana, Franklin Davenport, John Dennis, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glen, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, Robert Goodloe Harper, William H. Hall, BanjaminHuger, Henry Lee, Silas Lee, Samuel Lyman, John Marshall, Lewis R. Morris, Abraham Nott, Robert Page, Josiah Parker, Thomas Pinck- ney, Jonas Platt, Leven Powell, John Reed, John Rutledsre, Jr., Samuel Sewall, James Sheafe, William Shepard, George Thatcher, John C. Thomas, Rich ard Thomas, Peleg Wadsworth, Robert Wain. Lem uel Williams, and Henry Woods. 28 A motion was then made and seconded to amend the said amendment, by striking out of the eighth section thereof the following : " And sign his name thereto, and if it be founded on any circumstances appearing- in the report of the joint committee, and the exception be seconded by one member from the Senate, and one from the House of Representatives, each <ft whom shall sign the said exception, as having seconded the same, then each House shall immediately retire, without question or debate, to its own apartment, and shall take the question on the exception, without debate, by ayes and noes. So soon as the question shall be taken in either House, a message shall be sent to the other, informing them that the House sending the message is prepared to resume the count ; and when such message shall have been received by both Houses, they shall again assemble in the same apart ment as before, and the count shall be resumed. And if the two Houses have concurred in rejecting the vote or votes objected to, such vote or votes shall not be counted ; but, unless both Houses concur, such vote or votes shall be counted. If the objection taken as aforementioned, shall arise on the face of the papers opened by the President of the Senate, in the presence of both Houses, and shall not have been noticed in the report of the joint committee, such objection may be referred to the joint committee, to be examined and reported on by them, in the same manner, and on the same principles, as their first report was made ; but, if both Houses do not concur in referring the same to the committee, then such objection shall be decided on in the like manner as if it had been founded on any circumstances appear ing in the report of the committee." And insert in lieu thereof the following: " And the question on the exception shall immedi ately, and without debate, be taken by ayes and noes, and decided by a majority of the members of both Houses then present." And the question being taken thereupon, it was decided in the negative yeas 43, nays 46 ; as follows : YE AS Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, Thomas T. Davis," John Dawson, George Dent, Joseph Eggleston, Lucas Elmendorf, John Fowler, Albert Gallatin, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, David Holmes, George Jackson, James Jones, Aaron Kitch ell, Michael Leib, Matthew Lyon, James Linn, Na thaniel Macou, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, John Ran dolph, John Smilie, John Smith, Richard Stanford, David Stone, Thomas Sumter, John Thompson, Abram Trigg, John Trigg, Joseph B. Varnum, and Robert Williams. NAYS George Baer, Bailey Bartlett, James A. Bayard, Jonathan Brace, John Brown, Christopher G. Champlin, William Cooper, Samuel W. Dana, Franklin Davenport, John Dennis, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glen. Chauncey Goodrich, Elizur Goodrich, Rocrer Gris wold, Robert Goodloe Harper, William H. Hill, Ben jamin Huger, Henry Lee, Silas Lee, Samuel Lyrnan, John Marshall, Lewis R. Morris, Abraham Nott, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Reed, John Rut- ledge, Jr., Samuel Sewall, James Sheafe, William Shepard, George Th atelier, John Chew Thomas, Richard Thomas, Peleg Wadsworth, Robert Wain, Lemuel Williams, and Henry Woods. Another motion was then made and seconded to amend the said amendment ; and the ques- 434 PROPOSED LEGISLATION AS TO THE MODE OF COUNTING THE ELECTORAL VOTES. tion being taken thereupon it was resolved in the affirmative. Ordered, That the said amendment, as amend ed, be recommitted to a Committee of the Whole House immediately. The House accordingly resolved itself into the said committee; and, after some time spent therein, Mr. Speaker resumed the Chair, and Mr. Rutledge reported that the committee had had the said amendment under consider ation, and made one amendment thereto, which was twice read, and agreed to by the House. And then the main question being taken, that the House do agree to the said amend ment as amended, it was resolved in the affirm ative. Ordered, That the said bill, with the amend ment, be read the third time to-morrow. IN HOUSE OF REPKESENTATIVES. Friday, May 2, 1800. (" Annals of Congress," 6th Cong., p. 697.) The bill sent from the Senate, entitled " An act prescribing the mode of deciding disputed elections of President and Vice-President of the United States," together with the amend ment agreed to yesterday, was read a third time ; and on the question that the same do pass, it was resolved in the affirmative yeas 52, nays 37 ; as follows : YEAS George Baer, Bailey Bartlett, James A. Bayard, Jonathan Brace, John Brown, Christopher G. Champlin, Samuel W. Dana, John Davenport, Franklin Davenport, Thomas T. Davis, John Dennis, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Fos ter, Jonathan Freeman, Henry Glen, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Harper, William H. Hill, Benjamin Huger, James H. Imlay, Henry Lee, Silas Lee, Samuel Lyman, John Marshall, Lewis R. Morris, Abraham Nott, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Reed. John, Rutledge, Jr., Samuel Sewall, James Sheafe, William Shepard, Samuel Smith, George Thatcher, John Chew Thomas, Richard Thomas, Joseph B. Varnum, Peleg VVadsworth, Robert Wain, Lemuel Williams, and Henry Woods. NAYS Messrs. Willis Alston, Theodoras Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, William C. C. Clai- borne, John Condit, John "Dawson, Joseph Eggles- ton, Lucas Elmendorf, Albert Gallatin, Edwin Gray, Andrew Gregg, John A. Hanna, Thomas Hartley, Joseph Heister, David Holmes, George Jackson, James Jones, Aaron Kitchell, Michael Leib, James Linn, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, John Randolph, John Smilie, John Smith, Richard Stanford, David Stone, John Thompson, Abram Trigg, John Trigg, and Robert Williams. IN HOUSE OF REPRESENTATIVES. Friday, May 9, 1800. (" Annals of Congress," 6th Cong., pp. 709, 710.) An act prescribing the mode of counting the votes in the election of President and Vice- President of the United States. One of the amendments to the bill respect ing the election of President was, instead of the word " rejecting " (in the bill) any vote or votes by a concurrent vote of the two Houses, the word " admitting " was proposed by the Senate. Mr. Harper and Mr. Bayard hoped the House would not concur, as this amend ment very materially changed the principle of the bill, inasmuch as it would put it in the power of one or two members of either House to require the majority of both Houses to ad mit a vote or votes ; in default of which, the whole votes of a State might be totally reject ed. This was contrary to the former will of the House, after a mature deliberation. The yeas and nays were called by Mr. Nicho las, on the question " Shall the amendments of the Senate be concurred in? " and decided in the negative yeas 15, nays 73 ; as follows : YEAS Messrs. John Brown, Samuel W. Dana, Franklin Davenport, Dwight Foster, Chauncey Goodrich, Roger Griswold, James H. Imlay, Samuel Lyman, Jonas Platt, James Sheafe, William Shepard, George Thatcher, Robert Wain, Lemuel Williams, and Henry Woods. NAYS Willis Alston, George Baer, Theodoras Bailey, Bailey Bartlett, James A. Bayard, Phanuel Bishop, Jonathan Brace, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, William Cooper, William Craik, John Davenport, Thomas T. Davis, John Dawson, George Dent, Joseph Dickson, Joseph Eg- gleston, Lucas Elmendorf, Thomas Evans, Abifl Foster, John Fowler .Jonathan Freeman, Albert Gal latin, Henry Glen, Elizur Goodrich, Edwin Gray, Andrew Gregg, John A. Hanna, Robert Goodloe Harper, Thomas Hartley, Joseph Heister, William H. Hill, David Holmes, George Jackson, James Jones, Aaron Kitchell, John WilkesKittera, Michael Leib, Matthew Lyon, James Linn, Edward Living ston, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Abraham Nott, Robert Page, Thomas Pinckney, Leven Powell, John Randolph, John Reed, John Rutledge, Jr., Samuel Sewall, John Smilie, John Smith, Samuel Smith, Richard Dobbs Spraight, Richard Stanford, David Stone, Thomas Sumter, John Chew Thomas, Richard Thomas, John Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Peleg Wadsworth, and Robert Williams. IN HOUSE OF REPRESENTATIVES. Saturday, May 10, 1800. (" Annals of Congress," 6th Cong., p. 718.) A message was received from the Senate in forming the House that the Senate adhere to their disagreement to the amendments to the bill prescribing the mode of deciding disputed elections of President and Vice-President of the United States, made by this House, and subsequently insisted on. Whereupon Mr. Harper moved that this House do also adhere to their disagreement to recede ; which was carried, and the bill consequently is lost. PROPOSED LEGISLATION AS TO THE MODE OF COUNTING THE ELECTORAL VOTES. 1873. IN SENATE. Monday, January 6, 1873. (" Congressional Globe," p. 340.) Mr. MORTON". I offer the following reso lution : Resolved, That the Committee on Privileges and Elections be instructed to examine and report, at the next session of Congress, upon the best and most practicable mode of Delecting the President and Vice-rresident, and providing a tribunal to adjust and decide all contested questions connected there with, with leave to sit during vacation. The* resolution may lie on the table for the present, and I give notice that I shall ask the indulgence of the Senate on next Monday to take it up and submit some remarks upon it. The VICE-PRESIDENT. Does the Sen- atQr desire the resolution to be printed ? Mr. MORTON. Yes, sir. The VICE-PRESIDENT. The resolution will be ordered to be printed, and lie on the table. IN SENATE, Friday., January 17, 1873. (" Congressional Globe," pp. 662-668.) The VICE-PRESIDENT. The Calendar, under the Anthony rule, being under consid eration, the Senator from Indiana has obtained consent of the Senate to speak on the follow ing resolution, which will be reported by the Secretary. The Chief Clerk read the resolution, as fol lows : Resolved, That the Committee on Privileges and Elections be instructed to examine and report, at the next session of CongresSj upon the best and most practicable mode of electing the President and Vice-President, and providing a tribunal to adjust and decide all contested questions connected there with, with leave to sit during vacation. Mr. MORTON". Mr. President, the Consti tution provides that the President and Vice- President shall be chosen by electors to be ap pointed by the State. It declares that " Each State shall appoint, in such manner as the Legislature thereof may direct, a number of elect ors, equal to the whole number of Senators and Rep resentatives to which the State may be entitled in the Congress." The appointment of these electors is thus placed absolutely and wholly with the Legis latures of the several States. They may be chosen by the Legislature, or the Legislature may provide that they shall be elected by the people of the State at large, or in districts as are members of Congress, which was the case formerly in many States ; and it is no doubt competent for the Legislature to authorize the Governor, or the Supreme Court of the State, or any other agent of its will, to appoint these electors. This power is conferred upon the Legisla tures of the States by the Constitution of the United States, and cannot be taken from them or modified by their State constitutions any more than can their power to elect Senators of the United States. Whatever provisions may be made by statute, or by the State con stitution, to choose electors by the people, there is no doubt of the right of the Legislature to resume the power at any time, for it can neither be taken away nor abdicated. In the early presidential elections the electors were chosen in many States by the Legislatures, and as late as 1824, in Delaware, Georgia, South Carolina, Louisiana, N" ew York, and Vermont, they were chosen by the Legislatures, and South Carolina continued this practice up to the war of the rebellion. It will thus be seen that the mode of choos ing the electors is placed entirely beyond the power and jurisdiction of the national Govern ment, and whatever disorders, irregularities, or failures in the appointment of electors may occur in any of the States, they are entirely without remedy or redress upon the part of the Government of the United States. All of the States now by the enactments of their Legislatures provide that the electors shall be chosen at large by the qualified voters of the State ; but in no State, I believe, is there any legal provision made for the settlement of any 436 PROPOSED LEGISLATION AS TO THE MODE OF contest that may arise in regard to such elec tion. Though the election of electors may have been marked by the most monstrous and palpable frauds, entirely subverting the will of the people, or though a large portion of the people may have been prevented from- voting, or controlled in their action by violence and disorder, yet, so far as I know, there is not in any State any provision for settling such a contest and setting aside fraudulent returns. Every State provides by law for contesting the elections for Governor and other State officers and members of the Legislature, but no provi sion is made for contesting the election of electors; and whatever returns shall be made up, although produced in whole or in part by fraud or violence, must stand, and the vote be counted upon them if returned in time. There is imminent danger of revolution to the nation whenever the result of a presiden tial election is to be determined by the vote of a State in which the choice of electors has been irregular, or is alleged to have been car ried by fraud or violence, and where there is no method of having these questions ex amined and settled in advance where the choice of President depends upon the election in a State which has been publicly character ized by fraud or violence, and in which one party is alleged to have triumphed and secured the certificates of election by chicanery or the fraudulent interposition of courts. Such a President would in advance be shorn of his moral power and authority in his office, would be looked upon as a usurper, and the conse quences that would result from such a state of things no man can predict. But it may be compared to what has so often occurred in history, where the successor to the crown in a monarchy was believed by a large part of the nation to be illegitimate, or not to be right fully entitled thereto under the laws or usages of the nation. "We have seen how in all ages there have been numerous bloody and de structive revolutions arising from such causes, and the conviction on the part of the people that the reigning monarch was not entitled lawfully to the crown. It is the part of wis dom in a monarchy to avoid such contingen cies, if possible, by settling definitely the rightful descent of the crown ; and in repub lics there ought to be such machinery of gov ernment provided that it would seem to be impossible that any man should ever reach the presidential chair who was not legitimately chosen thereto. The Constitution provides that Congress may determine the time of choosing the electors and the day on which they shall meet in the sever al States and cast their votes, which day shall be the same throughout the United States. It further provides that "the electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom at least shall not be an inhabitant of the same State with themselves. They shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Yice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the pres ence of the Senate and House of Representa tive, open all the certificates, and the votes shall then be counted. The Constitution provides that the President of the Senate shall be the depositary of the electoral votes of the States, and that he " shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." It has been generally conceded that this means that the two Houses shall be present in their separate characters, and not as a joint convention ; that they cannot act and vote as one body ; that the two bodies cannot deliberate and act as separate bodies in each other s presence; that they are simply brought together to witness the result of the opening and counting of the vote as reported by the President of the Sen ate. The fact that tellers have been generally appointed by the two Houses in nowise affects the question, for they are mere facilities to actually count and make record of such votes as the Vice-President hands to them for that purpose. Such had been the understanding and prac tice, apparently without question, until 1857. "When the electoral votes were counted that year in the presence of the two Houses, an ob jection was made by a member of the Senate to receiving and counting the vote of "Wiscon sin, because the record showed that the elec tors in that State had not met and cast their votes on the day prescribed by law, and upon which the electors in all the other States voted The objection, it would seem, should have been fatal, for the Constitution expressly declares that the electors shall meet and vote upon the same day in all the States, and the history of this clause shows that great importance was attached to it by the framers. But the Presi dent of the Senate, Mr. Mason, declared that the objection was out of order, and that noth ing was in order but to open and count the electoral votes returned, and the vote of "Wis consin was counted, after which he stated the result of the vote, and declared James Bu chanan and John C. Breckinridge elected Presi dent and Vice-President of the United States. Motions were then made to correct the count and exclude the vote of Wisconsin, all of which he decided out of order, and that the business having been accomplished for which the two Houses had assembled, he declared the meeting dissolved, and at the head of the Senate re turned to the Senate Chamber. Upon the retirement of the Senate an elab- COUNTING THE ELECTORAL VOTES. 437 orate debate took place in the House, in which a variety of opinions was expressed, but the better one seemed to be that the two Houses had no jurisdiction over the matter of count ing the electoral votes either jointly or sepa rately, and that the decision of the President of the Senate was final. So the matter was dropped. The Senate, upon reassembling in its Chamber, began the consideration of the subject, and after a long debate, with about the same result, it was dropped. It seemed to be a necessary conclusion from these discussions that it was a casus omissus in the Constitution, and that the power of the President of the Senate to count the vote re sulted, ex necessitate rei, from the failure of the Constitution to give to the two Houses any jurisdiction over it ; but they were to be pres ent at the counting as solemn witnesses of its accuracy and result. In that case the vote of Wisconsin was not important, because Messrs. Buchanan and Breckinridge were elected whether it was received or not ; but if it had so happened that the election depended upon the vote of Wisconsin; that by counting it Fremont and Dayton would have been elected, or by rejecting it Buchanan and Breckinridge would have been elected, the question being left to the decision of the President of the Senate, Mr. Mason, of Virginia, he would have had the result of the election in his own hands. His decision either way might have resulted in civil war or revolution. Had he rejected the vote and elected Mr. Buchanan he would un doubtedly have been supported by his party and sustained by the letter of the Constitution ; while, on the other hand, it would have been insisted that that provision of the Constitution was merely directory ; that the vote of Wis consin was not forfeited because it was cast one day after the time fixed by law, as the failure to vote at the proper time was occa sioned by a snow-storm which prevented the assembling of the electors, and that Mr. Bu chanan was therefore fraudulently elected ; and the danger of a revolution would have been im minent. But suppose that when the objection was made to counting the vote of Wisconsin it had been entertained, and the decision of it re ferred to the concurrent vote of the two Houses taken separately, as now provided by the twenty-second joint rule? The Senate was then strongly Democratic and the House Re publican. The Senate would in all probability have decided that the vote of Wisconsin should be rejected, and the House that it should be received. Their failure to agree would have resulted in the contingency I have supposed, in throwing the election of the President into the House of Representatives, in which Mary land, carried by Mr. Fillmore and which had been carried by the Know-Nothings in the election of members of Congress in 1854, would under the twenty-second joint rule have held the balance of power, and Mr. Fillmore, with but one vote in the House to begin with, would very probably have been elected President. Upon the hypothesis that the President of the Senate has the power to open and count the electoral votes, and that the two Houses are to be present merely as witnesses, and have no jurisdiction over the subject, either jointly or separately, everybody must perceive . that it is a vast and dangerous power to repose in the hands of one man, especially when he may be ardently devoted to the fortunes of a great party, or when he may be personally interested sitting as a judge in his own case; for it has happened six times in the history of our Gov ernment that the President of the Senate has opened and counted the votes for himself, either for President or Vic3-President. In 1797 John Adams, as Vice-President, opened the votes for himself and declared himself elected Presi dent. In 1801 Jefferson, as President of the Senate, opened and counted the votes for him self when he and Burr were the candidates for President. In 1821 Vice-President Tompkins, as President of the Senate, opened and counted the votes for himself, he being a candidate for re election ; and in 1837 Mr. Van Buren, then Vice-President, counted the votes for himself as President, and declared himself elected. In 18 il Richard M. Johnson, then Vice-President, opened and counted the votes for his reelection as against Mr. Tyler, the opposing candidate ; and in 1861 Mr. Breckinridge, then President of the Senate, opened and counted the votes for himself as a candidate for the Presidency. Clearly the framers of the Constitution did not contemplate that the President of the Sen ate, in opening and counting the vote for Presi dent and Vice-President, should exercise any discretionary or judicial powers in determining between the votes of two sets of electors, or upon the sufficiency or validity of the record of the votes of the electors in any State ; but that he should perform a merely ministerial act, of which the two Houses were to be wit nesses and to make record. But the exercise of these high powers may devolve upon him ex necessitate rei, and whatever decision he may make between the two sets of electors, or upon the sufficiency and validity of the record of the votes whether on the evidence of the right of the electors to cast votes, or whether they have been cast in the manner prescribed by the Constitution his decision is final. There are said to be two sets of electoral votes ate this time in the hands of the Vice- President from the State of Arkansas, and two from the State of Louisiana ; and whichever of these sets he decides is the proper electoral vote and brings forward, opens, and causes to be counted, must be so received ; and from his action there is no appeal. The action of the two Houses in 1821 in regard to counting the vote of Missouri is no exception to this view of the power of the President of the Senate, for the question in that case was not as to any irregularity in regard to the electoral 438 PROPOSED LEGISLATION AS TO THE MODE OF vote of Missouri, but whether Missouri was at that time a State in the Union, and entitled to participate in the presidential election at all, which was also the question in the election in 1817 in regard to Indiana, and in 1869 in re gard to Georgia. The President of the Senate may, indeed, be impeached for high crimes and misdemeanors should he grossly violate his duty and thus fraudulently count or reject electoral votes ; but that would not amend the record which had been made, undo the wrong, help the presidential candidate who may have been cheated out of the office, nor protect the nation from disorder and civil war. If it should happen upon the recurrence of any one of the cases I have been considering, that the decision of the President of the Sen ate should determine the result and give the Presidency to the candidate who would other wise have been defeated, or throw the election into the House of Representatives where the candidate who had been rejected by the peo ple should be elected by the vote of the States, all can understand the imminent peril in which the nation would be placed. In 1801, when Mr. Jefferson, as President of the Senate, counted the vote as between himself and Aaron Burr for President, it turned out to be a tie vote, and had there then been a question or contest in regard to a single vote such as exists to-day in regard to several, he might have decided himself elected and the nation would have been without redress. Such a temptation, springing lion-like upon a man of less patriotism and weaker virtue, backed by a great party in a season of high excite ment, might have proved fatal to the peace of the nation. I now come to the consideration of the twenty-second joint rule of the two Houses, adopted in 1865, in regard to the counting of the electoral vote. This rule was undoubtedly the result of a conviction in Congress of the necessity of providing some method for avoid ing the dangers I have been discussing; but it was certainly adopted without much con sideration, and with a view apparently of fur nishing an additional safeguard against receiv ing electoral votes from States that had been in rebellion. But it is general in its character, is applicable to all the States, and will con tinue in operation until it is amended or re pealed. It is, in my judgment, the most dangerous contrivance to the peace of the nation that has ever been invented by Congress a tor pedo planted in the straits with which the ship of state may at some time come into fatal collision. This rule provides, among other things, that when the vote shall be counted in the presence of the two Houses If, upon the reading of any certificate, any ques tion shall arise in regard to counting the votes there- in certified, the same having been stated by the pre siding officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision ; and the Speaker of the House of Bepresentatives shall, in like manner, submit said question to the House of Eepresentatives for its de cision ; and no question shall be decided affirm atively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses ; which being obtained, the two Houses shall imme diately reassemble, and the presiding officer shall then announce the decision of the question sub mitted, and upon any such question there shall be no debate in either House ; and any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like By this rule it is provided that whenever an electoral vote is objected to the Senate shall retire to its Chamber, and each House shall separately consider the objection, and the vote shall not be counted unless the two Houses concur to that effect. If the two Houses dis agree, the vote of the State is lost. This may result in a tie, or in the election of the candi date who would otherwise have been defeated, or in preventing either of the candidates from having a majority of all the votes, and thus throwing the election into the House of Rep resentatives. Each House is to decide the question without debate, in a summary man ner, without investigation and without adjourn ment. Here is a powerful temptation to the House of Representatives, by non-concurrence, to throw the election into its own body, and thus perhaps secure the election of a candi date who may have been overwhelmingly beaten at the polls. The two Houses may be under the control of different parties, as in 1857, led by politicians, ambitious, exasper ated, and thirsting for power, who are thus enabled by a mere non-concurrence to defeat an election by the people and seize the admin istration of the Government into the hands of their party. " Lead us not into temptation " is a part of the Lord s prayer, and here is a mortal temptation spread in the pathway of a defeated party by which they may snatch victory from the jaws of defeat at the very last step in the tedious process of electing a President. The substance of this rule is, that in the eleventh hour, in the last stage of the proceedings for the choice of the Chief Magistrate, a formal objection made to the electoral votes of a State suspends the count and makes the right of the people of that >tate to a voice in the election to depend upon the affirmative con current vote of the two Houses, which, in the exigency of parties, may not be obtained, how ever small the merit of the objection. To me the proposition seems very plain that the Constitution confers upon Congress no power, whether by statute or joint rule, to make the right of the people of a State to partici pate in the presidential election to depend upon such a contingency. If the rule were reversed, and provided that the vote of a State should be counted unless the two Houses con curred in its rejection, it would be far more COUNTING THE ELECTORAL VOTES. 439 reasonable and far less dangerous. It would be much more logical to require the concurrent action of the two Houses to reject the vote of a State in favor of which the presumptions of the law should lie, than to make its admission depend upon the concurrence of the two Houses, as if the presumptions of the law were against its fairness and legality. Logically, it would seem that the objection made to receiving the vote of a State, to be valid, ought to be sus tained by the vote of the two Houses, but un der this rule the objection is assumed to be good unless overcome affirmatively by the vote of the two Houses, thus expressly placing it in the power of one House to reject the vote of a State. The rule is an invitation to partisans to make captious and factious objections. It makes the concurrent action of the two Houses neces sary where it should not be ; and to sum up its perilous absurdity, its u monstrous illogic," its dangerous unconstitutionality, it places it in the power of a defeated party, which may happen to have a majority in either House, to defeat an election by the people, and to take the chances of anarchy, or of a victory, by throwing the election into the House of Kep- resentatives. But it may be said that neither House would take the responsibility of refusing to concur in counting the vote of a State, unless the objection to it were well founded. This is not the history of parties or of parliamentary proceedings. It is not the history of parties that they will voluntarily surrender an advan tage, though tainted with odium and injustice, or that their representatives in the Legislature will ; for it is a law of parties to obtain all the power possible, and to yield no advantage ex cept upon compulsion or for compensation. But this extraordinary provision by which either House is empowered to reject the vote of a State in the election of President is created by a joint rule of the two Houses. The Constitution provides that " each House may determine the rules of its own proceed ings ;" that is, the mode of conducting its business and doing those things which, by the Constitution and laws, it has a right to do. But surely this clause does not give the two Houses the power by a joint rule to enable either House to disfranchise States by rejecting their electoral votes. The provisions of this rule to have any validity must be embraced in a law duly enacted, which has been submitted to the President for his approval ; and, even as a law, it would be the most fearful enact ment on the statute-book, conferring as it does upon either House the power to block the wheels of Government and plunge the nation into anarchy. Jt was the purpose of the framers of the Constitution to make the exec utive and legislative branches so far indepen dent of each other that the existence of the one would not depend upon the consent or action of the other ; but here is a rule, a mere parliamentary rule, which gives to either House a fatal negative upon the election of a President by the people. A power so vast and dangerous certainly cannot be created as a mere rule of proceeding. The proposition that Congress has power to sit as a canvassing board upon the electoral votes of the States, admitting or rejecting them for reasons of its own, subverts the whole theory by which their appointment was con ferred upon the States; makes Congress the judge of the election and qualifications of President and Vice-President, and, by the oper ation of the twenty-second joint rule, gives that power to each House separately as in case of its own members. There is no such ex press power given to Congress in the Consti tution, nor is it necessary to carry out any express power therein given, and its exercise would be in direct conflict with the known purpose of the framers to make the executive and legislative departments as nearly inde pendent of each other as possible. The act of 1792, which is still in force, pro vides that the electors shall meet in each State and cast their votes on the first Wednesday in December, and that they shall be chosen within thirty-four days before that time, leaving no room between the two periods for a contest as to their election before any tribunal, and making it impossible that Congress should in any way pass upon the regularity or rightful- ness of their election. When they had cast their votes on the first Wednesday of Decem ber, they were functus qfficio, and could never meet again either to correct a mistake, or for any purpose whatever. It is obvious that it was not contemplated by the framers of the Constitution that, after the electors had met and cast their votes, and had become functus officio, there was any tribunal that could in quire into the rightf ulness or regularity of their election and set aside their votes. The framers of the Constitution seem not to have antici pated the possibility of two sets of electors, each claiming to cast the vote of a State, or of irregularities, or frauds in the choice of elec tors, which would warrant the rejection of their votes. It was clearly a casm omissus, and one of the imperfections of a new scheme of Government which could not in fact have been perfect unless its framers had been infal lible. It is to be observed that the members of the Convention in 1787 started out with the idea that the President and Vice-President could not be safely chosen by the people of the United States. The theory of democratic gov ernment was then so imperfectly understood that it was not deemed safe to trust the mass of the people with the election of the Chief Magistrate; and when they finally agreed to vest the election in electors chosen for the ex press purpose, it was deemed a great stride toward popular government. It was objected to leaving the election of 440 PROPOSED LEGISLATION AS TO THE MODE OF President to the mass of the people as one community that it would result in consolida tion that the smaller States would be swal lowed up by the larger. It was further ob jected that in such an election the slave States would be shorn of their power, because their slaves could not vote and the masters could not vote for them. The idea of interposing an electoral body between the Chief Magistracy and the people had come down from ancient times, and had its origin in aristocratic forms of government where the nobility elected the sovereign or chief magistrate. The first plan in the Convention of 1787 was that Congress should elect the President, and when the idea of an electoral college was first discussed it was proposed that the electors themselves should be appointed by Congress, but it was afterward determined to leave the choice of electors to the Legislatures of the several States, in order to make the executive independent of the legislative and preserve the power of the States, which was as near as they were willing to bring the presidential election to the people. The theory of the electoral college was that a body of men should be chosen for the ex press purpose of electing a President and Vice- President, who would be distinguished by their eminent ability and wisdom, who would be in dependent of popular passion, who would not be influenced by tumult, cabal, or intrigue, and that in the choice of the President they would be left perfectly free to exercise their judgment in the selection of the proper person. And in order to secure more perfectly the in dependence of the electors the Constitution provides that they shall vote by ballot in the electoral college so that it might not be known to each other or to the country how they voted. In short, the idea was that a small body of se lect men could be more safely intrusted with the election of President and Vice-President than the whole body of the people. The idea of intermediate electoral bodies was then work ing in the minds of the doctrinaires and revo lutionists of France, and received its full de velopment in the celebrated constitution pro jected by the Abb6 Sieyes, which was adopted and had a short life. Now that democracy is better understood, and popular government has been more thor oughly tested, we have learned that large elec toral bodies can be more safely trusted than small ones ; that while it may be possible to corrupt small bodies, it is impossible to cor rupt large ones, and that the danger of tu mult, which was ever present in the minds of the framers of the Constitution, arises chiefly from the exclusion of the masses from power and conferring it upon a few. That the candidates for electors should be pledged in advance to vote for particular per sons was not only not contemplated by the framers of the Constitution, but was expressly excluded by their theory. They were to be independent, not influenced by previous com mittals or engagements, so that when they came together they could deliberate with per fect freedom for the best interests of the Re public. How completely this theory has been overturned in practice for more than seventy years I need not recite. For more than seven ty years the electors have been pledged in ad vance to vote for particular persons for Presi dent and Vice-President. They themselves have been nominated as candidates for electors upon express pledges or understandings, which, although not binding in law, have been effect ually binding upon them in public opinion, insomuch that an elector who would violate the understanding upon which he was nomi nated and vote for the opposite candidate would be rendered infamous, and visited with every form of indignation that society could invent. So powerful have been these obligations that I believe scarce an instance is known where electors have violated these pledges. The more complicated machinery is, whether in politics or in the arts, the more liable it is to get out of order. In the complex system of electing a President which we now have, contingencies may arise which cannot be fore seen which may lead to civil war and disaster. The simpler the machinery of government the more easily is it understood and the less liable to accident. Not only has the result been that the elec tors are not left free to select a President and Vice-President, they being in all instances pledged in advance, but it has unquestionably been a blessing that this has been so, for ex perience has demonstrated that small bodies of men intrusted with such vast powers as the choice of the Chief Magistrate of the Republic are liable to the arts of corruption, cabal, and intrigue, while the great body of the people cannot be reached in that way. Mr. Benton once declared that "the only effectual mode of preserving our Government from the corruptions which have undermined the liberty of so many nations is to confide the election of our Chief Magistrate to those who are farthest removed from the influence of his patronage, that is, to the whole body of Amer ican citizens." His patronage would be ample to reach every elector in every State, but it cannot reach the whole body of the people. This danger has in effect been avoided by pledging the electors in advance to vote for particular persons ; but this pledge in advance defeats the very purpose for which the elec toral college was created, and converts it into a body of agents who are to execute their pow ers according to strict instructions given before their appointment. The electoral colleges have turned out to be wholly useless. Every reason given for their original establishment has absolutely failed in practice. But while they are powerless for good, they may be potent for evil. In their COUNTING THE ELECTORAL VOTES. 441 election errors may easily be committed, and in very many instances have been. While no body would mistake the name of Arrant or Greeley, changes in the names on the long list of electors may occur from errors in printing or fraud sufficient to reverse the vote of a State. One great objection to the present electoral system is that it absolutely circumscribes the power and the rights of the individual voter. He cannot now vote for the man of his choice for President, but must vote for electors. There may be two sets of electors representing two different parties before the people, but he may not be in favor of either, and would pre fer to cast his vote for a third ; yet he has no power to do it. It would be impossible for him alone in the State in which he lives to put candidates for electors in the field who would vote for the man of his choice. That can only be done by an organized party, which may have no considerable vote in the State in which he lives, though it may be strong in other States. As an illustration : in 1856, thousands of men in the Southern States were absolutely deprived of the right of voting for President and Vice-President, because no electoral tickets for Fremont and Dayton had there been put in the field. In effect, the electoral system absolutely de prives the voter of his power to vote for men of his choice for President and Vice-President jjnjfisg there are enough of his way of thinking in the same State to meet in convention and nominate electors to represent their views. Such a system can scarcely be called free or republican. No system deserves that name which does not enable the individual voter to cast his vote for the men of his choice, whether anybody else in the same State votes for them or not. The electoral system makes the con vention or caucus indispensable in all cases and everywhere, for the individual voter can not give effect to his vote, or give to it moral or political Significance, unless there are others who will act in concert, that is, in convention, with him in the nomination of candidates for electors. The present requirement of the Constitution that electors shall meet on the same day in their respective States and cast their votes is liable to accident and interruption, as in Wis consin in 1857. tx i would prefer that the President should be elected by the people as one community, giv ing the election to the man who received the highest number of votes, without regard to State lines or municipal divisions. Under the present system it is entirely possible that the President may be elected by a comparatively small minority of all the votes of the nation. He may carry enough States to give him a majority of the electoral votes by an aggregate majority not exceeding fifty thousand votes, and his opponent may carry the remaining States by such majorities as to give him per haps half a million majority of the whole vote of the people. The present mode of choosing the President is, though not generally so called, an election by States. It is now gen erally agreed that we are a nation; that, how ever subdivided into States, we are in the largest sense one people. There should be some department of the Government which represents the whole nation. The Senators are chosen by the State Legislatures, and rep resent the States in their municipal character. The Representatives are chosen by the people voting in districts ; so that, while the House collectively represents the people of the United States, yet the members individually represent but a State or a small division of a State. But it may happen, and has happened, that a minority of the people shall elect a majority of the House of Representatives, because the majority of members may be elected by com paratively small majorities in their districts, and the minority elected by large majorities in their districts ; so that, in point of fact, the majority of the House of Representatives may be elected by the minority of the people. In my opinion, the President should be elected by the people of the United States as one com munity, so that the national character should be fully represented in one department of the Government. Mr. Dickerson, of New Jersey, declared in this body, fifty years ago : The President should be elected by a majority and not a minority of the people, and no one should hold that office who has not with him the physical strength of the country. If he have it all is safe, for the power that has created can protect and defend ; if he have it not his holding the office is an outrage upon the principles of our Government, and is un safe both for himself and for the country. A strong majority will not patiently submit to a weak minor ity, who, taking advantage of the faults in our Con stitution, have succeeded in placing their man in the presidential chair. The Chief Magistrate of the Union should be an officer strictly national. He should be preeminently the man of the people. It is true that in electing a President by a vote of the people of the United States as one community we should thereby substantially im pair the power of the people of the small States? The present system had its origin in the idea of preserving as nearly as possible the equality of the States in the election of Presi dent, and this for the protection of the small States. But let us look at the question from a distance of ninety-five years and with a popu lation of over forty millions. Under the pres ent apportionment the electoral votes of ten States out of thirty-seven may elect a Presi dent, and as, under the practical working of our institutions, the vote of each State is cast solidly, it is the same as if the people 6f these ten States had voted unanimously for the same man, a thing which will be likely never to hap pen. In the election of a President by all the people as one community the votes of all the States would be more or less divided ; but es pecially would the votes of the large S tates be 442 PROPOSED LEGISLATION AS TO THE MODE OF divided, and thus the relative power of the small States would be increased, and especially as compared with their present mode of voting by electors. It is true there would be an apparent dimi nution of power in the small States by the loss of the votes of the two electors-at-large, who are added to the electoral ticket of a State to represent its Senators, which could not be preserved in the vote of the nation as one community; but this is more than counter balanced by the division of the power of the large States, whose votes given solidly are now a preponderating power that utterly over whelms the small States in the presidential election in the electoral colleges. The com parative or proportional weight of the small States would be immediately and largely in creased. The dangers of sectionalism are greatly en hanced by the present mode of voting. If a majority of the people in each State in a par ticular section of the Union are in favor of a particular measure or policy which is or seems to be in hostility to the rest of the Union, that majority in each State will cast the vote of that section solid in favor of a presidential candi date who represents that measure or policy ; but if the election of President was by the popular vote, there would then be a minority in each of the New England States voting on the other side, whose votes would be counted in the general result. In whatever way the question may be viewed, the election of a President by the States, cast ing their votes solidly as States, tends to weaken the national idea, to keep alive the notion that the several States are independent sovereign ties, confederated together for particular pur poses ; or, in other words, that we are a con federacy of nations struggling with each other as individuals for the ascendency. Under the present system the States vote and act as in dividuals, and, as among natural persons, each acting for himself, the strong, the wealthy, and the powerful acquire undue influence and power over their weaker neighbors, thus in creasing the natural disparity between them. Accordingly, we have seen for seventy years in the political history of this country how par ties have courted and directed their blandish ments to the people of the large States, com paratively neglecting the small ones. But I submit to the inevitable, and assume that the smaller States will not consent to an amendment by which the President would be elected by the people of the United States as one community. Yet I believe they can have no objection to such a change as will bring the election of the President directly to the peo ple of the several States, each State to be di vided into as many districts as it has Senators and Representatives, each district to have one vote in the election of President and Vice- President, and the vote of that district to be counted in favor of the candidates for Presi dent and Vice-President who receive the largest number of votes in it. This will still give to each State the same number of votes it now has in the election of President and "Vice- President, the votes, however, to be given directly for the candidates by the people with out the intervention of electors. The proposed plan of having the election directly by the people voting in districts, is greatly in favor of giving due weight to the small States ; for under the present system the vote of each State is cast solidly for a sin gle candidate for President, so that it has hap pened, and may happen again, that the solid vote of one of the large States, which may be determined within itself by a small majority of the popular vote, will be decisive of the election, as in the case of New York in 1845, when the small vote of five thousand, drawn off by Mr. Birney, resulted in giving the whole electoral vote of that State to Mr. Polk, and elected him over Mr. Clay; whereas, if the vote of the people had been given by districts, New York would have been divided, perhaps nearly equally, so that it might give but one or two votes to the general majority for the President. In this argument I have said nothing as yet concerning the intrinsic injustice, under the present system, of requiring the vote of a State to be cast solidly. In the great State of New York one party may have a majority over the other of but one thousand, which carries with it the vote of the whole State, the one thousand thus in effect silencing the voice and snrpressing the wishes of more than two mill ion people. This result preserves the power and autonomy of the State as a municipal body, which is unnecessary and pernicious in the election of a President ; but it is destruc tive of the principle of representation, impairs the nationality of the presidential election, and makes it more completely an election by the States. Under the working of the present system the election of President is made more completely an election by States than was even intended by the framers of the Constitu tion. As before stated, they intended that the electoral colleges should be free deliberative bodies, the members of which, after full con sideration, were to cast their votes for whom they pleased ; so that the electoral vote of a State might be divided up between three or four persons. But in practice it has turned out that the electors are pledged in advance to vote for particular persons for President and Vice-President, and the whole set of electors pledged to vote for the same persons are elect ed ; so that the vote of each State is given in solido, and the President is in effect elected by the States. But if the President was elected by the votes of the people in districts, a part of the districts in a State might vote for one person and a part for another, so that the election would have less of a State character and be more national. COUNTING THE ELECTORAL VOTES. 443 The f ramers of the Constitution, intending that the electoral colleges should be deliberative bodies, of course did not expect them to vote solidly for President, but to divide up as delib erative bodies are apt to do ; and therefore, in dividing up the vote of the people of the State by having the President elected by districts, we are but carrying out their notions. It is somewhat curious to note in this con nection that, while the doctrine of State sover eignty has been generally insisted upon as a protection to the smaller States, yet this par ticular feature of it has been preserved and strengthened by the large States at the expense of the small ones. As before stated, the elec tors were at first generally chosen by districts in States that did not choose them by their Legislatures; but this practice was broken up, more particularly by the action of Virginia and Massachusetts, at a time when they were the two leading States, because it tended to divide and destroy their power in the presidential election. When their votes were to be cast solidly, the vote of the whole State being thrown as a unit, it is obvious that they were of greater consideration than under a system which might divide them up between the con tending candidates. We have seen in recent elections with what anxiety the result has been looked for, in New York and Pennsylvania for example, because their votes being cast in solido would be likely to determine the result ; but if the votes of those States might have been divided up by the people voting directly for President in districts, the case would have been quite different. I do not wish it to be understood that the proposition to elect the President by a direct vote of the people in districts is new with me. So far from that, it was proposed and advo cated in this body more than fifty years ago, and has passed the Senate in the form of a proposed amendment to the Constitution not less than four times by the requisite two-thirds vote. It has received the support of many of the ablest men of the nation in generations that have passed away, and every succeeding presidential election has demonstrated its wis dom and utility as compared with the present system. The Constitution further provides that when the vote is counted in the presence of the two Houses " The person having the greatest number of votes for President shall be the President, if such num ber be a majority of the whole number of electors appointed ; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately by ballot the President. But in choos ing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice." That this provision for electing a President is fraught with danger to the nation will scarce ly be denied by any. It is a matter of history that the election of Mr. Jefferson by the House of Eepresentatives in 1801 came near making shipwreck of the Government and involving the nation in civil war. Nothing prevented that result but the patriotism of several members of the House who voted against their principles and their party for Mr. Jefferson to relieve the nation from the great peril in which it was placed. Again, in 1825, when Mr. Adams was elected by the House, the proceedings became odious to the nation, and drew upon all parties con cerned an unpopularity from which they never recovered. The objections to this constitutional provi sion for the election of a President need only to be stated, not argued. First, its manifest injustice. In such an election each State is to have but one vote. Nevada, with its forty-two thousand popula tion, has an equal vote with New York, having one hundred and four times as great a popula tion. It is a mockery to call such an election just, fair, or republican. Again, this plan of election furnishes the grandest opportunities for corruption, cabal, and intrigue. Where the delegation of a State is equally divided, it is in the power of one venal member by the change of his vote to control the vote of the State. Such charges were rife in both the election of Mr. Jefferson and, that of f Mr. Adams, though as I believe without foundation ; but certain it is that the great and patriotic Clay never recovered from the charge that as a member of the House he cast his vote and influence for Mr. Adams, and afterward became his Secretary of State. But I will be asked, what is the remedy ? I answer that I would be glad if some method could be devised by which the nation could escape the danger of having the House of Representatives to elect a President in every case ; but if such is to be the resort in case no candidate for the President gets a majority of all the votes, I would have both Houses of Congress to meet in joint convention, and each Senator and Representative to have one vote. This would be in exact harmony with the prin ciples upon which the election is now to be made by the people of the several States. Under the new system which I propose, that the peo ple of the several States shall vote directly for President, each State is to have as many dis tricts and as many votes as it has Senators and Representatives in Congress; and why the same rule should not be preserved when the election is thrown into Congress it is hard to perceive. If each State is to be allowed as many votes by the people, or the electors, as it has Senators and Representatives in Con gress, why should it not be allowed the same number of votes when the election is thrown into Congress? It would still preserve in Con gress the same apportionment of power among 444 PROPOSED LEGISLATION AS TO THE MODE OF the States that exists when the election takes place by electors. It would avert the mon strous injustice of giving the State of Nevada the same power in the election of the Presi dent as has the State of New York. By this change Nevada would have three votes and New York thirty-seven, which is their present relative strength in the electoral colleges. There would be no more danger to the small States by this apportionment of power between them and the large ones, if the elec tion of President should be thrown into Con gress, than there is by the same apportionment of power now existing in the electoral col- In the election of a President in the House of Representatives under the present appor tionment, each State having one vote, forty- five members out of the two hundred and nine ty-two may make the election, as follows : Dela ware, Nebraska, Nevada, and Oregon have each one member, and four members would cast the votes of those four States ; Rhode Island and Florida have each two, and four members would cast the votes of those States ; Minne sota, New Hampshire, West Virginia, Vermont, and Kansas have each three members, and two votes in each, or ten members in all five would cast the votes of those five States ; Arkansas, California, and Connecticut have four members each, and .three in each, or nine in all, may cast their votes ; Maine and South Carolina have each five members, three of whom in each, or six in both, must cast their two votes ; Maryland, Mississippi, and Texas have each six members, and four in each, or twelve in all, may cast the vote of those three States. This makes nineteen States, or a majority of the States in the Union, afld forty-five mem bers may cast their votes, and elect a President of the United States against the wishes of the other two hundred and forty-seven members of the House of Representatives. Again, these nineteen States have an aggregate population by the census of 1870 of a fraction over eight millions of people, while the remaining eigh teen States have an aggregate population of about thirty millions. So that nineteen States, having scarce more than one-fifth of the entire population of the United States, may elect a President in the House of Representatives against the wishes of the other four-fifths. And this by courtesy has been called republican government! Compared with it the Rotten Borough system was a mild and very small bagatelle. Such a combination and result as above exhibited may not be likely to occur; but they are possible under the present system of electing a President in the House of Repre sentatives by a majority of States ; and no system admitting such possibilities should be tolerated. In 1825 it did happen that Mr. Adams was elected in the House over General Jackson, who had received a larger propor tional majority of the popular vote than has any President elected since that time, and who had also a large plurality of the electoral votes. There is always danger to a country in an injustice in its institutions, and the danger in creases as the injustice is aggravated. It is certainly something of a strain upon our Constitution that the small States have an equal representation with the large States in the Senate ; yet I know of nobody seeking to change it. But when the smallest State is made equal to the largest in the choice of the President of the United States, the gross in equality becomes offensive and must become dangerous to the country whenever the power is exercised. Surely every patriot who looks forward with anxiety to the future peace and perpetuity of the Republic must earnestly pray that it may never again be exposed to the trial of electing a President by the House of Representatives under the present provision of the Constitution ; and most of all should the small States ask to be delivered from the exercise of a power so grossly unequal and offensive. The object I have in view to-day is not so much to advise and propose remedies as it is to point out to the Senate and to the country dangers that lie in the pathway of the nation, contingencies, some of them not remote, but near and probable, which threaten the country with revolution and the Government with de struction, and to urge that the path of duty is the path of safety ; that now, in a time of peace and political calm throughout the nation, we should address ourselves to the removal of these perilous obstructions that were hidden to the eyes of our fathers, but have been brought to our knowledge by observation and experience. And to sum up in recapitulation, I would say that if the system of electoral colleges is to be continued, some means should be devised by which the election of these electors in the States may be contested, so that if it has been controlled by fraud or violence, or if there be two sets of electors, each claiming the right to cast the vote of a State, there may be some machinery or tribunal provided by which fraud ulent returns could be set aside or cprrected, and the contending claims of different sets of electors be settled in advance of the time when the vote is to be finally counted, and by which the President of the Senate may no longer be left to exercise the dangerous powers that seem to be placed in his hands by the Consti tution, nor the two Houses of Congress by the operation of the twenty-second joint rule. Patriotic men of all parties must rejoice that General Grant has been reflected by so large a majority that the electoral votes of Louisiana and Arkansas are unimportant to the result, for without intending here to express any opinion in regard to those votes, I must be permitted to say that they are surrounded by such circumstances and attended with so much COUNTING THE ELECTORAL VOTES. 445 doubt in the public mind that the peace of the nation would be imperiled if the result of the presidental election was to be determined by them. The plan of dispensing with the electoral colleges and electing the President directly by the vote of the people of the whole country, as one community, or by dividing the States up into districts, seems to me to be a remedy for many of the evils and dangers to which I have referred; but even then some tribunal should be appointed to settle contested and doubtful results in districts or at the disputed polls, and this tribunal should be removed as far as possible from the control of excited par ties. This naturally suggests the Supreme Court of the United States, or the circuit and district judges of the courts of the United States, for such tribunal. Whatever tribunal might be created would require much consid eration in regard to details and method of operation, into which it is not important that I should now attempt to enter. The injustice and danger of another election of President by the House of Representatives, voting by States, are so glaring that it seems to me Congress should never rest until it has constitutionally presented to the -several States for their adoption some plan by which it may hereafter be avoided. I have therefore proposed that a committee shall take the whole subject into consideration, with leave to sit during vacation and report to the next session of Congress the result of their deliberations, and to bring forward such meas ures as may be deemed necessary, whether in the form of statutes or amendments to the Constitution of the United States. The VICE-PRESIDENT. The question is upon agreeing to the resolution. Mr. TRUMBULL. Mr. President, I have one suggestion to make in regard to the reso lution offered by the Senator from Indiana. It provides that a committee be appointed to sit during the recess. The Senator from In diana will of course remember that this Con gress expires on the 4th of March, and that a committee appointed now could not be con tinued beyond that time. The members of Congress change and a committee cannot be appointed now to sit during the recess, for it is not a recess after the 4th of March. It strikes me there would be a difficulty in ap pointing a committee in that way. As I am on my feet and as this subject will probably pass from the consideration of the Senate and perhaps may not be brought up for discussion again during the present session, I will say a word or two lest by silence my con sent might seem to be given to some of the positions assumed by the Senator from Indiana in his very able speech, which I am glad that he has made. With much that he has said I entirely concur. In the apprehensions that he has expressed in regard to the dangers that imy arise from an election of President under our present system I entirely concur ; but he has laid down some positions which do not have my acquiescence. In the first place I do not agree with the Senator from Indiana as to the power of the Presiding Officer of the Senate over the elec toral vote. The Constitution of the United States directs that the President of the Senate shall open the votes in the presence of the two Houses, and then says, " and the votes shall then be counted." That is not such language, it seems to me, as the framers of the Consti tution would have used, who were very precise and particular in every phrase in all the instru ment, if they had intended that the President of the Senate should determine as to the va lidity of those votes. The language then would be, not that the President of the Senate shall open the votes, but that he shall open and count the votes in the presence of the two Houses. That is not it; but the language is that he shall open the votes. I have the very words here, and it is important to have the exact language : " The President of the Senate shall, in the pres ence of the Senate and the House of Represent atives, open all the certificates and the votes shall then be counted." Showing that it was not intended, as is claimed, that he should count the votes, but leaving it perhaps somewhat ambiguous as to how the votes should be counted. I think we may learn what was intended by the language used, by the practice which was adopted. The practice at the first presidential election, which has been followed from that day to this, was for the two Houses of Con gress to exercise some control over this count ing of votes. The Senator from Indiana says that the fact that the Houses appointed tellers to count these votes has no significance ; they were mere clerks. But it has significance. If this subject was entirely under the control of the President of the Senate he would have ap pointed the tellers, if tellers as a matter of con venience were necessary. But at the start each House, before it assembled in joint convention for the purpose of counting these votes or for the purpose of seeing them counted, if you please, took action without consulting the President of the Senate and appointed for themselves these tellers with certain duties to perform. This is inconsistent with the idea that the opening and counting of the vote was to be left exclusively in the hands of the Presi dent of the Senate. I was called out of the Chamber during a portion of the argument of the Senator from Indiana, but I understood him to say that the control of this whole subject was in the Presi dent of the Senate. I think there is a conclu sive answer to that in the history of the early legislation of the country. I have already ad verted to the fact that each House took action on the subject. But they went further. In 1800 a bill passed the Senate of the United 446 PROPOSED LEGISLATION AS TO THE MODE OF States, was considered and amended in the House, returned to the Senate, and the Senate concurred in the House amendments with an amendment which was subsequently disagreed to, and the bill failed. But that bill which passed both Houses of Congress by decided majorities, after long debate, participated in by the very men who made the Constitution of the United States, and who were then hold ing seats in Congress, provided the machinery for disposing of a contested question in regard to a presidential election. Somebody must decide this question, and where could this decision better be left than with the two Houses of Congress? The Sena tor from Indiana says that is dangerous; that under a joint rule which has been adopted one House may reject the vote of a State. That is true ; but under the other theory the power is left to the single person who happens to be President of the Senate, who may not be the Vice-President of the United States and often is not, for it is not the Vice-President that is to open the certificates, but it is the President of the Senate, whoever he may happen to be; and since I have had the honor o f holding a seat here, the votes for President and Vice- President have twice been opened by the President of the Senate who was not the Vice- President of the United States. So that the Senate may elect a person who would have this vast power, if it is to be reposed and is reposed by the Constitution of the United States in that officer. The Vice-President need but retire and allow the President of the Senate to be chosen by a partisan major ity, if you please, in this body, and that officer can reject or count the votes of States as he may think proper. That would be a more dangerous power than any that is to be anti cipated by allowing the two Houses of Con gress to control the question. I think it is safer that the vote should be counted under the direction of the two Houses of Congress than to leave it to a single person who may happen at the time to be President of the Sen ate ; and I think that is the fair construction of the Constitution. A word as to the mode of electing the Presi dent. The Senator from Indiana advocates a change of the Constitution of the United States so that the President shall be elected by a pop ular vote of the whole people without regard to State lines, and says that the election now is virtually an election by States. That is true ; and so the framers of the Constitution intended it should be. It is possible that it would be better to change the character of our Government and make it one consolidated Government with all power at the centre ; but, sir, the framers of the Constitution of the United States did not think so. I do not think so. I believe that liberty can only be pre served to any people by a division of the power of the Government. It is by reason of this division of power, first between the national and the State governments, and then a division of the powers of the national Gov ernment into legislative, executive, and judi cial departments, that we are to preserve the Government ; and when you vest all power in the hands of one set of men, you establish a despotism ; and it makes no difference whether you have one body or many. It is only by the division of powers that you can preserve lib erty. Our Government is not and was not intend ed to be a pure democracy. It is a republic and not a democracy. It was not intended that the majority should have all the power in this country, and it will be a change of the Government when it shall be established upon, that principle, and will very soon, I appre hend, run into a despotism. Governments, in fact, are for the protection of the weak, and constitutions are for the protection of minori ties; and our Government is formed with wonderful wisdom by the division of powers among the States, and by dividing those pow ers among the different departments of Gov ernment. I atn not, therefore, Mr. President, pre pared at this time to give my assent to the proposition that it would be better to elect the President of the United States by the whole people as one body, and, although the Senator avers that our manner now of elect ing the President weakens the national idea, I think that was intended. We know that Presi dents have been elected without having a ma jority of the popular vote. Mr. Lincoln was elected in 1860 with a large majority of the popular vote against him, but still he was elected according to the constitutional form, in the mode appointed by the Constitution. The people are represented in the other House of Congress ; the States are represented here ; and the President is elected by a combination of the two the popular vote as represented in the House, and the States as represented in this body. Now, it may be well to dispense with the electoral college. I think possibly it would be an improvement. I see no use of these elec tors under the present practice when the elec tors are committed in advance, before they are chosen, to vote in a particular way; but still it would not relieve us of the difficulty in de termining for whom the people of a State voted. You may have the same trouble in re gard to frauds at an election or as to the result in a State without electors as when the votes are cast for electors. So we do not really get rid of that difficulty. My object is not to enter upon any discus sion of this subject, and I should not have risen at all but to throw out these suggestions, as to the points in which I differ in some re spects from the Senator from Indiana. I have no objection at all to the adoption of this reso lution ; but its practicability in appointing a committee to sit during the recess is a ques- COUNTING THE ELECTORAL VOTES. 447 tion that I think ought to be decided by the body. Mr. SHERMAN. I suggest to the Senator from Indiana that there is some practical diffi culty about the resolution in the view pre sented by the Senator from Illinois. I think the object would be better accomplished by sending the resolution to the Committee on Privileges and Elections. Our committees ex pire with the session as a matter of course, and I do not think Congress has the power to cre ate a joint committee to continue after the term for which the Congress is elected. I sim ply submit it to the Senator from Indiana. Mr. MORTON. One word, Mr. President. The Senate is regarded as a perpetual body, and, although our committees expire with the session, yet it is in the power of the Senate as a matter of common practice to extend the existence of a committee during vacation and authorize it to act. Mr. SHERMAN". Is this a joint commit- Mr. MORTON. No, sir, a committee of the Senate. Mr. SHERMAN". Then there can be no ob jection to it. I thought it was a joint com mittee. Mr. TRUMBULL. Can the Senate Con tinue its committees beyond the Congress ? Mr. SHERMAN. That has been done, I will say to the Senator. Mr. TRUMBULL. I was not aware that it had ever been done. Mr. SHERMAN. It was done in one case, I know. The Committee on Finance was au thorized to examine a bill during a recess and sit during a recess. Mr. TRUMBULL. The difficulty, as it strikes me, is this if the practice has been the other way, perhaps it may have been con sidered heretofore but the Senator will see that if a committe is now appointed, a differ ent presiding officer will preside over this body after the 4th of March; a new set of members will be here; and the persons ap pointed upon a committee now may then be out of Congress. Mr. SHERMAN". But the Committee on Privileges and Elections continues, although the members change. Mr. TRUMBULL. The Committee on Privi leges and Elections does not continue. We know that we are to have such a committee, but the persons composing that committee now cannot be continued, it seems to me. Mr. SHERMAN. But at the called session after the 4th of March the Committee on Privi leges and Elections will as a matter of course be continued, although it may not be composed of the same persons. /The committee will still exist, although the members may be different. Mr. TRUMBULL. Was it ever known, I submit to the Senator from Ohio, that you re ferred measures to a committee before you had any persons upon the committee ? The com- mittee, you may say, are provided for perma nently ; but the Senator from Ohio knows that the practice in this body is, when we meet at the commencement of a session and a bill is in troduced, to lay it on the table until the com mittee is actually formed. We do not refer a bill to the Committee on Finance until we have made a Committee on Finance, although it is provided that there shall be a Committee on Finance. Until it is organized we make no references to it. We continue committees over from one session of Congress to another, but I did not know that we had ever undertaken to continue our committees or the business before committees from one Congress to another. I do not see how it could well be done. How ever, I only make the suggestion. Mr. SHERMAN. I have no desire to dis cuss the question, because I do not know of any similar case except the precedent I spoke of; but it is not material. Let the resolution be referred to the Committee on Privileges and Elections, and then if necessary it can be ar ranged when we meet after the 4th of March. The PRESIDING- OFFICER (Mr. MOR- EILL, of Vermont, in the chair). Does the Sen ator from Ohio make that motion ? Mr. SHERMAN. Yes, sir, with the consent of the Senator from Indiana. The PRESIDING OFFICER. Then the question is on the motion of the Senator from Ohio. Mr. CONKLING. As I understand it, the motion is to refer the resolution itself to the Committee on Privileges and Elections ? Mr. SHERMAN. Yes, sir. The motion was agreed to. IN SENATE. Thursday, February 13, 1873. (" Congressional Globe," p. 1309.) Mr. SHERMAN submitted the following concurrent resolution, which was referred to the Committee on Privileges and Elections : Resolved (the House of Representatives concur ring), That the twenty-second joint rule be re scinded. PROPOSED LEGISLATION AS TO THE MODE OF COUNTING THE ELECTORAL VOTES. 1875. IN SENATE. Tuesday, January 26, 1875. ("Congressional Eecord," p. 729.) Mr. EDMUNDS asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 1191) to provide for and regulate the counting of votes for President and Vice- President; which was read twice by its title, referred to the Committee on Privileges and Elections, and ordered to be printed. IN SENATE. Thursday, February 25, 1875. (" Congressional Eecord," pp. 1759-1786.) The VICE-PRESIDENT. The bill (S. No. 1251) to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon, is before the Senate as in Committee of the "Whole and open to amendment. Mr. THURMAN. Mr. President, in line 8, section 1, I move to strike out the words " one teller" and insert "two tellers." The bill provides for one teller on the part of the Sen ate and two on the part of the House. I see no reason for that. The Senate and the House stand on an equal footing in respect to the count of the votes. This bill goes on the theory that they stand on an equal footing. Although they meet together to witness the counting of the votes, that does not make a joint assembly in which a majority present can control the minority. The Houses do not lose their individuality, but each House is equal to the other in the functions that are to be performed. There is no propriety, there fore, in giving two tellers to the House of Representatives and only one to the Senate. On the contrary, there ought to be a teller of each party, and in order to do that there should be two tellers of the Senate and two of the House. I move that amendment. Mr. MORTON. The bill is as the present rule is, providing one teller for the House and two for the Senate, but I make no objection to the amendment. I think it is well enough. Mr. CONKLING-. ] wish to make an in quiry of the Senator from Ohio before we vote upon this amendment. In constituting com mittees in all parliamentary bodies, an odd number is the rule for the obvious motive of securing action ; in other words to prevent a tie. Without stopping now to consider the length and breadth of the function of these tellers, suppose it occurs that they stand two to two. I ask the Senator from Ohio whether it is wise to so adjust the numbers that an equal division may occur ? Mr. THURMAN. What the Senator from New York says would have significance if these tellers had any ultimate power of decision ; but as the power of decision, and in fact every thing but the mere ministerial duty of reading the returns and footing them up is reserved to the two Houses, there is no necessity whatever for constituting a majority of the tellers of one political party or the other. All questions that arise for decision must be decided by the two Houses. The tellers have certain minis terial functions to perform. They read the certificates ; and if there is no objection then they put down on sheets, which are already ruled and prepared for them, the votes. That being done, when the work is coinpleted, they add up the figures and hand the paper to the presiding officer, who declares the result. Their duties being ministerial only, there is no necessity for having a majority of one opinion or of another opinion ; but in order to pre serve the rights of the Senate, its individuality, and in order to avoid any errors that might creep in by the superior vigilance that might be exercised by two over one, it is but right and proper that there should be two tellers on the part of the Senate. Mr. CONKLING-. The only fault of the ar gument of the Senator from Ohio is that it proves too much. If really these tellers have nothing to do but foot up a column of figures and state it, the Senator will see that there is little substance in contending that there should be two rather than one on the part of the Sen- PROPOSED LEGISLATION AS TO THE MODE OF COUNTING THE ELECTORAL VOTES. 449 ate. I am not going to oppose this amendment ; but I still think that if there be any use for the suggestion made by the Senator from Ohio, it would be a better suggestion if he would so fix a number that it should be an uneven num ber and should insure an opinion from those who are to give an opinion, even though it may be upon a question so ministerial in the function called for as that prescribed by the Senator from Ohio. If he says there is no significance about this one way or the other, then one teller is as good as forty. If any contingency should arise in which numbers might be important, then I submit that it ought to be as in the case of a committee so fixed that there may be a majority. Mr. BAYARD. Does the honorable Sen ator say that as to the function of tellers and the report made by them provided by the joint rule, the votes of two from one House might overrule the vote of the one from the other House ? Mr. CONKLINGL I am inclined to think it would. Mr. BAYARD. I think not. Mr. CONKLING. I only say as a proposi tion at large, assuming that they have any thing to do, the idea should be to constitute the body in such wise that there would be a controlling part by reason of having the whole body an odd number, rather than so adjust it that there might be an equal difference with no product from the process. Mr. BAYARD. In this case the tellers are appointed on behalf of each Housa, act for each House, and not together. Mr. COCKLING. That is true ; and now will the Senator from Delaware tell me what reason occurs to him for having two tellers in stead of one on the part of the Senate ? Mr. BAYARD. I confess I have not thought on the subject. Mr. BOUTWELL. I agree with the propo sition of the Senator from Ohio that there should be two tellers from each House, that each leading opinion in each House may be represented by the tellers. The tellers have no positive ultimate authority. If we desire to do anything different, I think it should be in the direction of having an uneven number of tellers from each House, as three or five, for example, that each House might be advised by a majority of its committee of tellers as to what should be done. But plainly the tellers of the two Houses cannot act together, inas much as the two Houses themselves cannot aot together. Therefore, if any opinion from the tellers were desirable by the respective Houses, it could be ascertained by having one teller or three tellers or five tellers from each House, and in no other way. For one I am content that there shall be two from each House, that the leading opinions of each House rnav be represented. Mr. THURMAN. My object in making this motion was that the Senate might maintain its 29 right to a perfect equality of power in this im portant business, and I have but a few words to say in reply to the suggestions of the Sen ator from New York. Now, what are the duties of these tellers ? The President of the Senate takes up a return, opens the envelope, does not read it himself, but hands it to the tellers. For what purpose is it handed to the tellers? First, that they may read it; and having read it, then if no objection is mado, the vote of that State is put down in the blanks which have been previously prepared. But it is the duty of the tellers, when they read such returns, to announce to the joint assembly any defects that they may find. We had an example at the last count where the tellers reported that the returns were all in due form except that one of the seals did not appear to be the great seal of the State. That was a thing which could not ap pear by mere reading ; it could only appear by inspection, and every member of the Senate and House so assembled to the number of be tween three hundred and four hundred could not make that personal inspection at the mo ment. The consequence was that that was a duty which devolved upon the tellers. Now, if you have four, you are more likely to have a careful inspection of the returns than if you have a less number. Then, in the second place, the return having been accepted or not rejected, and the votes being put down, it will be necessary to be cafeful to see that they are put down in the right column, and when footed up that the footing is correct, and it is more likely to be correct where four perform the duty than where a less number do. Still I do not say that three might not perform it or that two might not perform it; and I would prefer one from each House rather than two from the House of Representatives and one from the Senate. What I insist upon is the absolute equality of the Senate in the functions that are to be then performed. I therefore insist that the motion I have made ought to be adopted. Mr. BAYARD. Mr. President, if some gentleman who was in either House of Con gress in February, 1865, when this rule was adopted, when I presume there was discussion on the subject, can tell us why the precedent was established, we could better see whether we should change it. If there were good rea sons for it then, it might be well to continue it ; and I must say that I cannot see any very im portant results in any way from this change. I thought there were reasons why originally the House of Representatives should have two tellers and the Senate should have one. Those reasons must continue. If they never had an existence, I might as well take the suggestion of my honorable friend from Ohio and insist, for the sake of dignity, or whatever you may please to call it, upon the equal representation of the Senate upon this tally-board with the other House. I confess, however, that if we 450 PROPOSED LEGISLATION AS TO THE MODE OF are mere represented by a teller, his report will be quite as sufficient for the Senate as if there were two or three or any other number. It so strikes me. But there might have been reasons why there was that disproportion be tween the Houses. It might have grown sim ply out of the numerical difference between the two bodies. Something of that kind might have been in the minds of those who drew the rule, and the rule was a joint rule which of course both Houses were consulted about. I can apprehend that it will be no loss to the Senate if it is represented by an additional teller, nor can I see any harm done by increas ing the number. Perhaps it might be some assistance in the arithmetical feat of recording the vote. Mr. CONKLING. Mr. President, without referring to the debates, a considerable portion of which were printed I believe in a pamphlet at the time, which pamphlet is still within reach, I will state to the Senator from Dela ware one consideration, growing rather out of usage than necessity or fundamental reason, why the number of three tellers in all was fixed. The custom has been, speaking now of the two tellers on the part of the House, for the tellers representing the sentiments of. a particular State from which electors came to count the vote. Speaking more plainly and exactly, a State had cast its vote for the demo cratic nominees for President and Vice-Presi- dent. The usage has been for the democratic teller in the House to announce to the House the returns, to read them at large, as has sometimes been done, or to announce the re sult of them. A State having voted other wise, the teller representing the other party read its returns to the House ; and when the announcement in gross of the result came to be made the teller on the part of the Senate usually did that. So the work has been ap portioned, rather as the Senate will see as a matter of comity or courtesy among the tell ers than otherwise ; and the one teller on the part of the Senate has been held sufficient to represent the Senate. How far the numerical difference between the two Houses, to which the Senator has referred, entered into it, I do not know ; but I rather think that the adjust ment fell to that number of tellers because the usage had been to apportion the process, as I have endeavored to state. Mr. BAYARD. I am obliged to the Senator for this statement. He has given me now a suggestion in favor of the amendment of the Senator from Ohio, to which I referred before. I wish that no other feeling than that of most gracious comity may prevail between mem bers of the Senate or House in any perform ance of public duty ; but still there is the fact which was recognized in the reasoning which caused the rule to be adopted, that when the vote of one party was to be read from a State in which that party had been suc cessful with its candidate a gentleman associ ated with that party read it aloud, and when the arithmetical computation of a vote was to be announced on the other side his political opponent rose and read it. That rule was, I think, a wise one. It was satisfactory to all . It was courteous and it was substantially just and protective. Just so, Mr. President, will the same reason ing apply to the reading of the votes on the part of the Senate. I think from the fact that there can be a representation of both political parties in counting the votes in the board of tellers created by the joint rule, who act for that purpose, there is something that will be satisfactory to the country at large as well as to the representatives in the two Houses of Congress. Therefore I wish now that there would be not only no objection to, but, for very palpable reasons, cause for giving the Senate two tellers, so that each party of the Senate should proclaim the vote and make it perfectly satisfactory, so far as that proclama tion is concerned, to both sides. I think there is force in the suggestion of the Senator from Ohio, and I trust his motion may prevail. The PRESIDING OFFICER (Mr. INGALLS in the chair). The question is on the amend ment of the Senator from Ohio [Mr. THUB- MAN]. The amendment was agreed to. Mr. THURMAN. After the word votes" at the end of the eleventh line of the first sec tion, I move to insert "Which certificates shall be opened, presented, and acted upon in the alphabetical order of the names of the States, beginning with the letter A. Mr. President, this bill goes upon the theory, which I believe to be the correct one, that the function of the President of the Senate is sim ply to open the returns; that it is not his func tion to count them ; that they are to be counted in such manner as will be provided either by a joint rule of the two Houses or by law, which ever is the proper mode of providing for their count. His function then being simply to open the returns and to deliver them to the tellers, it ought not to be left in his discretion to se lect the returns that he will first present. They should be presented in some prescribed mode, and I conceive of no one less liable to objection than the alphabetical order of the names of the States. It would be impossible to select any other method that I am aware of, unless you were to call the States in tfae order of their coming into the Union. Mr. BAYARD. Or in the order of their adopting the Federal Constitution. Mr. THURMAN. In the order of their adopting the Federal Constitution, or of the original thirteen and the subsequent admission of the States ; but that is not so convenient a mode as the alphabetical mode. The alpha betical mode requires no research, can give rise to no possible discussion, is perfectly simple, and is perfectly fair. I therefore propose this amendment, which COUNTING THE ELECTORAL VOTES. 1 consider to be correct and to be in perfect harmony with the whole idea of the bill. Man ifestly it ought not to be left in the power of the presiding officer to select at his pleasure what returns he will first present. There ought to be a prescribed mode that should settle that question, if for no other reason, to relieve him from any responsibility on the subject or any suspicion as to improper motives in his Eresentation of the returns. But for much igher reasons than that it is proper that these returns should be presented, opened, and acted upon in some prescribed mode, I hope, there fore, there will be no opposition to this amend ment. The PRESIDING OFFICER. The question is on the amendment of the Senator from Ohio. The amendment was agreed to. Mr. TIIURMAN. I now move to strike out the last sentence of the first section on page 2 of the bill. The PRESIDING OFFICER. The Secre tary will report the words to be stricken out. The SECRETARY On page 2, beginning at line 34, it is proposed to strike out the follow ing words: And any other question pertinent to the object for which the two Houses are assembled may be sub mitted and determined in like manner. Mr. TIIURMAN". The previous part of the section provides that when a question shall arise in regard to " counting the votes therein certified " that is, certified in any certificate which shall have been opened and presented as provided in the section the Senate shall withdraw, and the two Houses shall act upon the objection or question separately; and then, when each House has made its decision, they shall convene again and the decision shall be announced. Then come in at the close of the section these words : And any other question pertinent to the object for which the two Houses are assembled may be sub mitted and determined in like manner. I do not know why these words were put in. I can conceive of no necessity for them. 1 can conceive of a construction put upon these words that would lead to irremediable mischief, I would be glad, if the Senator from Indiana is not willing that the amendment should be adopted, that he would give us his view as to the effect of these words. If he is willing that the amendment shall be adopted, I wil not trouble him. Mr. MORTON. I find that these words are embraced in the original rule, and form a par of the rule to which perhaps no exception was ever taken. The original rule providing for the counting of the votes says: And any other question pertinent to the object fo which the two Houses are assembled may be sub mitted and determined in like manner. .It simply provides for the determination o any question that it may be necessary to deter mine which shall require the concurrence of >oth Houses, to be determined in like manner, subject to the same restrictions. There may >e other questions arising. I could not now mticipate one; I do not know that I could mention one; but other questions may arise, the determination of which may be essential ; and this clause simply provides for their settle ment in the same way. Mr. THURMAN. It seems to me obvious ;hat these words in section 1 the last sentence .n the section should come out. The previ ous part of the section provides all that is ne cessary for the counting of the votes. All that can properly be done by the two Houses is al ready provided for. I was aware that these words were in the twenty-second joint rule, and I can conceive some reasons why they were put in that rule ; but I can conceive no good reason why they should remain. The Senator from Indiana and I think that the twenty-second rule is a bad rule. It is pro posed to abolish it. I do not think it is neces sary to preserve this part of it, which to my mind is in the highest degree objectionable. Let the whole of it go, if any part of it is to go. There were very peculiar circumstances iitlthe first counts of the votes under that rule. The rule was adopted in 1865, I believe. Mr. MORTON. February 6, 1865. Mr. THURMAN". It does not say in my copy when it was adopted. It was adopted in 1865. There were very peculiar circumstances under which that rule was adopted. Several of the Southern States were not reconstruced as it was then said, as some Senators and as the majority of both Houses of Congress thought. I shall not go into the question whether they needed reconstruction at all. They were not reconstructed and the question whether they should vote for President and Vice-President was a mooted question. It was a question whether in point of fact they were States of this Union. That was the question. If they were States of the Union they were entitled to vote, but a majority of Congress refused to consider them as States of the Union. Mr. BAYARD. Not so early as 1865 ? Mr. THURMAN". I am speaking now of 1868, not at the time when this rule was adopted. The war had not closed at the time the rule was adopted in 1865, and what States would be in the Union in 1868 was a question that no one could then absolutely foretell. The war still existed, and no one was able to foretell what would be the result, after the war should close, upon the autonomy of the States that had been engaged in the rebellion. Under those circumstances this rule was adopted, and it was enforced. It was enforced in the count of 1869, and that most extraordinary of all announcements ever made was made by the President of the Senate, that the vote of Geor gia should be received if it would not change j the result ; but if it would change the result 452 PROPOSED LEGISLATION AS TO THE MODE OF it should be rejected ! It was in that state of the country that this provision crept into this rule. No reason of that kind exists any more. There is no longer any question what are the States of this Union. Fortunately for the country, every one of them is a State in the Union. There is no longer any expelled sister. On the contrary, you have taken in a couple more yesterday, although they are very young and very feeble. There is no question, there fore, as to what are the States of the Union, and no necessity for this provision being in this rule. On the contrary, if it is left in the rule it may give rise to claims that are utterly inadmissible. We have no provision for con testing the elections of President and Vice- President. This bill does not propose to pro vide for any such contest, If it did it would be lamentable, nay, wholly, utterly defective. There is no reason, therefore, for opening the door to questions over which we have no juris diction ; and unless we intend to invite ques tions and the exercise of a jurisdiction we do not possess, these words should be stricken out of the section. The PRESIDING OFFICER. The question is on the amendment of the Senator from Ohio [Mr. THURMAN]. The amendment was agreed to. Mr. THURMAN. Now, Mr. President, in order to make the bill consistent with the ac tion just taken hy the Senate, I move to strike out the words in section 3, lines 3 and 4 Or for the decision of any other question pertinent thereto. That follows as a matter of course after striking out the last sentence in section 1. The amendment was agreed to. Mr. MERRIMON. As this seems to be a very important bill, I take it that it is well to have the phraseology used as correct as pos sible. Therefore in line 3 of section 1 I move to amend by striking out the words "the two Houses of Congress " and inserting the words "the Senate and House of Representatives." There is no such phraseology in the Constitu tion as "the two Houses of Congress." The phraseology used in the Constitution is that which I propose to insert, " the Senate and House of Representatives." The PRESIDING OFFICER. The question is on the amendment. The amendment was agreed to. Mr. MERRIMON. I move to amend in line 4, section 1, by inserting after the words " one o clock" the letters "p. M." The amendment was agreed to. Mr. MERRIMON. In line 15 of section 1, after the word " counted," I move to insert the words " by them." Mr. MORTON. What does the Senator say? Mr. MERRIMON. After the word " count ed," in line 15, section 1, I move to add the words "by them." As it now reads it does not indicate who is to count. It will make it more precise to say "the votes having been counted by them ; " that is, the tellers. Mr. FRELINGHUYSEN. Is the Senator from Indiana quite sure that that would be right? Mr. MORTON. I scarcely understood the Senator from North Carolina. I think those words hardly necessary. Mr. FRELINGHUYSEN. I do not object to them if they are merely unnecessary, but the question is whether the votes are counted by tellers. Mr. MERRIMON. Then we ought to set tle it. That is the very thing we ought to settle. I understand the tellers are to count the votes. They are to read the certificates and then cast up the votes ; and having done so, they hand the result to the President and he announces it to the joint meeting. Mr. FRELINGHUYSEN. The tellers cer tainly perform the ministerial duty of counting the votes, but whether that is the counting spoken of in the Constitution I think there is very grave question. Mr. MERRIMON. Then I ask the Senator who is to count ? The statute will not then provide for that. Mr. STEVENSON. I do not think there can be any doubt from the language of the rule that it was intended that the tellers should do the counting. The language is : And said tellers, having read the same in the presence and hearing of the two Houses then as sembled, shall make a list of the votes as they shall appear from the said certificates ; and the votes hav ing been counted, the result of the same shall be delivered, etc. Now it seems to me those words would be useless. If these gentlemen are to make a list of the votes, unless they count them, how can they be ascertained ? Mr. FRELINGHUYSEN. I would recall the language of the Constitution to my friend : The President of the Senate shall, in the presence of the Senate and House of Kepresentatives, open all the certificates. Mr. CONKLING. "And the votes shall then be counted." Mr. FRELINGHUYSEN. " And the votes shall then be counted." I understand that that counting is really done under the super vision and in fact by the two Houses. I think the bill is a good deal better leaving it as the Constitution leaves it, without saying " being counted by the tellers." Mr. MERRIMON. Then it seems to me a wrangle might spring up at once as to whether the tellers should count the votes or somebody else. I do not see how the joint meeting could count them unless through some instrumen tality. Mr. FRELINGHUYSEN. The bill is in the language of the Constitution now. Mr. MERRIMON. I understand the object of this act is to execute the provision of the Constitution. I submit the amendment to the Senate. COUNTING THE ELECTORAL VOTES. 453 Mr. LOGAN". I merely wish to ask the Sen ator if it is not at least sufficient to use the language of the Constitution? This is pre cisely the language of the Constitution. The mere addition of the number of votes, done merely as a clerical duty by these persons, cer tainly is subject to the supervision of the two Houses of Congress, the same as, for instance, in many States where the State constitution refers the counting of the votes for governor to the House of Representatives and the Senate of the State. They are to count the vote; that is the language of several of the State constitutions ; but the vote is never actually counted by the Legislature; it is counted in their presence by the secretary or clerks, as may be. But the meaning of it evidently is that they count the vote. The clerks merely are those persons designated by the bodies to count the vote. Should they make a miscount of the vote there in the presence of the two Houses, the two Houses would have jurisdic tion over it certainly. Hence it certainly means the counting of the vote by the two Houses of Congress, although the mere enumeration of the number is done by persons who are selected for that purpose. I think it is well to leave the language in the bill just as it is. Mr. MERRIMON. The whole statement of the vote is prepared under the supervision of the joint meeting, but who is to cast up the vote ? Is it by the tellers or by the Clerk of the Senate or the Clerk of the House ? Some body must do it. The object of this statute is to execute a provision of the Constitution upon which all legislation is to rest. Of course when the tellers cast up the vote and hand it to the President of the Senate the whole is done un der the supervision of the joint meeting. My object is to make it specific. Mr. MORTON. I submit to the Senate that these words are not necessary. It is possible that something more may be involved in the counting of the votes than the mere addition of the figures. It seems to me it is entirely safe to leave it in the language of the bill. Mr. THURMAN. T wish to say one word on this question. Somebody must do the min isterial function of counting these votes. They must be counted either by the tellers, or by clerks, or each member must take his turn and count them for himself, which is simply im practicable. Nor do we propose to devolve that duty upon clerks. We appoint tellers and take care who they shall be, in order that the count may be accurate. I think the bill as it now stands without the amendment implies that the tellers shall count the votes. They are to make a list of them. "The votes hav ing been counted;" I think the implication is that they are to be counted by the tellers. In order to make this bill exactly conform to the Constitution, the word " then " ought to be in before the word " counted." The Constitution is " and the votes shall then be counted ;" that is, shall be counted right there, in the presence of the two Houses. That is what the Consti tution requires, and it ought to be so, perhaps, here. They are not to be counted elsewhere. They are to be counted then and there. Mr. MORTON". That is implied from the preceding part of the section. Mr. THURMAN. Perhaps it is. I should think it was ; but I suppose the Senator will have no objection to inserting the exact words of the Constitution, the word " then " before the words " be counted." The language of the Constitution is : And the votes shall then be counted. I suppose the word " then V ought to go in ; and perhaps it would relieve all difficulty to insert after the word "counted" the words "in the presence of the two Houses." Mr. MORTON. The previous part of the section presupposes that. Mr. LOGAN. The meaning is just the same although the words are not the same. " The votes having been counted " is just the same precisely as the language in the Constitution. I do not mean that it is verbatim, but the meaning is just the same. Mr. THURMAN. I think the amendment of the Senator from North Carolina ought to be adopted to make it perfectly clear. I think that is exactly what the bill now means, and I think it would relieve all difficulty if those words be put in. Mr. LOGAN. Will the Senator from Ohio allow me to ask him a question ? On reading the rest of that portion of the section it is : And the votes ha\jing been counted, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, and the names of the persons, if any, elected, which announcement shall be deemed a sufficient declaration, etc. Now suppose you put the. language in that the Senator suggests, so as to read, " counted by them," and an error shall occur. They hand the vote to the Vice-President. Have the two Houses then any control of the count ing if you put in the words "counted by them ? " Mr. THURMAN. The bill as it now stands I think implies that the votes must be counted by them. Mr. LOGAN. That is as a matter of course, it seems to me. Mr. THURMAN. If the Senator thinks that such an error is likely to occur, where there are four men to one, then that is a de fect in the bill. Mr. LOGAN. I do not think it is likely to occur, but such things are possible. Mr. THURMAN. It might ; and that only shows that further amendment is necessary. Mr. LOGAN. I do not think so. I think the bill as it is is better. The idea is that the two Houses count the vote. Of course they designate some person to do the mere ministe rial office of counting the vote and making the addition, but it is, in fact, constructively done 454 PROPOSED LEGISLATION AS TO THE MODE OF by the two Houses. Now, if you put in the words "by them," they refer to the men se lected as the persons to make the count, and leaves them the persons to count the votes, in stead of the construction that the Constitution certainly bears, that the Houses count the votes. Mr. THURMAN. There is a good deal of force in what the Senator says. Mr. LOGAN. I think that certainly would be the construction. Therefore I do not think the amendment ought to be made. Mr. CONKLING. The Senator from Illi nois has stated so exactly and so fully the view I have of this matter that I am content to give my vote upon the presentation he has made. But yet I venture to suggest to the Senator from North Carolina that his amendment would confound together two things different in law and in substance. The office to be done by these tellers, as has been said, is purely min isterial. As my friend said a moment ago, they do the work and the two Houses in fact make the count. They are mere machines. If you could invent a machine which would foot up exactly these columns of figures and state them, that machine would do everything that this bill commits to the tellers, and would do it as competently and as well if it did it as ex actly as arithmetic. So you need not neces sarily have members of the two Houses to act as tellers. Two of the pages of the two Houses could foot up these figures and present them to the Houses. But does anybody sup pose that when you use the word "count " in the constitutional sense you can delegate to two pages the count of those votes ? I take it not ; but the mechanical, ministerial function, the mere manual act of presenting a total of a column of figures and handing that to the presiding officer, you may delegate to any body, to the Sergeant-at-Arms for aught I know. When the Senator from North Caro lina comes now to import into the bill words following those which so nearly adopt the lan guage of the Constitution as these, it may be said, I think it will be said, as the Senator be hind me [Mr. LOGAN] has suggested, that the design was to commit to these tellers the whole business, not the mechanical ministerial act of arithmetic alone, but the whole count, with all the attributes of that count as it stands in the Constitution. That is not what we mean. It may well be doubted whether we have power to do any such thing. Congress may do what ever is committed to it as a Congress. Either House or both Houses may do whatever is committed to it or to them ; but Congress can not delegate to anybody else legislative power or any other power which is reposed in Con gress, and located there and nowhere else. So we may make a rule which shall commit to the presiding officers of the two Houses the duty of scribes and chirographers, to set down and count up and state these figures ; but when you come to the last act, to the act accom plished of making the count, in all senses which the Constitution imports, that is the act of the two Houses. " The vote shall then be counted," the two Houses being there. As I had occasion the other day to say, these words are spare, they are scanty. I am not prepared to say that they deny the power to the presiding officer, for example, to make this count, so that it is done in the presence of the two Houses ; but it is wholly unnecessary to anticipate that question here or to put into this bill anything under which it might be said that had an erroneous footing been made by tellers it had passed beyond the reach of the two Houses to correct, although the discovery might be made before the result was delivered by the presiding officer to the constituent body present. It seems to me that as the bill stands it is entirely unexceptionable in that regard. The .word "then," which is suggested by the Senator from Ohio, seems to me not to be necessary, because we are speaking here in the past tense, but I do not think there is any sub stantive objection to it. So of the words " in the presence of the two Houses." I think they would be surplusage, because the section else where requires the presence of the two Houses. It would be abundant caution, but I see no other objection to it. Therefore I would vote, if it be the pleasure of any Senator, that the bill should be so changed as exactly to follow the Constitution, which I see my friend from Kentucky [Mr. STEVENSON] has in his hand. I have it in my hand Shall in the presence of the Senate and House of Representatives open all the certificates, and the votes shall then be counted. There is no objection to putting those words in the bill, although I think it sufficiently ap pears ; but when you come to add to the bill words which imply that the whole power of making the count, not merely in a tabular sense, not merely in a clerical sense, not mere ly that these men are to be authorized as scribes to perform the preliminary process, but that they are to be empowered to consummate and accomplish the whole fact of the count upon which the declaration is to be based, it seems to me that it is an unwise and unneces sary experiment, and may in case of a contest lead to misunderstanding and embarrassment. Therefore I shall not vote for the amendment proposed bv the Senator from North Carolina. Mr. MERRIMON. With the permission of the Senate I will withdraw my amendment and offer another in lieu of it. The PRESIDING OFFICER. The amend ment of the Senator from North Carolina will be withdrawn, if there be no objection. Mr. MERRIMON. I now propose to add after the word " certificates," in the fourteenth line of the first section, these words : And the votes shall then "be counted by the tell ers under the supervision of the two Houses of Con gress. COUNTING THE ELECTORAL VOTES. 455 Mr. ALCORN. I ask the Senator from North Carolina if he did not make a point upon the use of the words " the two Houses of Congress" awhile ago? [Laughter.] merely suggest this to him that he may not involve himself in any contradiction. Mr. MERRIMON. In referring to the joint meeting in a statute I thought it better to use the words of the Constitution. Those are the leading words. Those are the words upon which all the balance of the statute turns. I admit that it is more convenient to say " the two Houses," and it may well be used for "the Senate and House of Representatives" after those words are first used in the first section of the act. Mr. FRELING-HUYSEN. It seems to me this amendment offered by the Senator from North Carolina is subject to the same criticism as the last. His amendment now is that the votes then be counted by the tellers. Mr. MERRIMON. Under the supervision of the two HOIISBS. Mr. FRELING-HUYSEN. Before, it was that they be counted " by them." Mr. Presi dent, we have had a bill before us providing how these votes shall be counted, providing that there shall be the interposition of a court to settle questions, and it is argued that that is constitutional because the Constitution pro vides that Congress shall have a right to pass all laws to carry into effect the various pro visions of the Constitution, and that therefore, inasmuch as the Constitution says that these votes are to be counted, Congress may by law provide a tribunal for their counting, to all of which I a,m entirely opposed. I believe that the tribunal to count the votes is the repre sentatives of the people in Congress assembled, and I am opposed to importing into this bill a provision that that counting, being the only word in the Constitution which regulates the subject, shall be by tellers. I think that the bill is right as it is, "the votes having been counted." We have provided for tellers. "We have provided that the two Houses shall be present, the votes having been counted, of course by the two Houses, the ministerial duty, the work, being performed by their agents, the tellers, and I think that anything introduced then may embarrass us very much. Mr. MORTON. I suggest to my friend from North Carolina that I do not think his amend- msnt strengthens the provision or makes it more clear. In reading the whole provision through, the process is so simple that I think it cannot he misunderstood. Mr. THURMAN. We cannot hear a word the Senator says. Mr. MORTON. I say I do not think the amendment would strengthen the section or make it more clear, or relieve it from any doubt. Reading it as it is here, the whole process is so simple and clear that I think it is hardly liable to misunderstanding. I hope the Senator will not insist on his amendment. ! Mr. MERRIMON. Why was it necessary, then, if the whole process is so simple, to pro vide that there should be tellers ? Why would not that follow as a consequence without pro viding for it in the act ? My purpose is simply to indicate, by a provision in the statute, who shall cast up the vote under the direction of the joint meeting of the two Houses. Mr. MORTON. The tellers are to perform the mechanical, ministerial part of the work. They are to make the actual count ; and I would not be willing to put anything into the bill which would seem to imply that these tellers had any other functions or any other power than simply to make the count of the vote. Mr. MERRIMON. I do not give them any more power than that. I do not invest them with any power. Mr. MORTON. I think that is sufficiently clear from what the bill already contains. Mr. MERRIMON. The bill as it stands now does not indicate who shall count them. It may be the Clerk, or, as the Senator from New York said awhile ago, it may be outside of the joint meeting; it may be the President. My purpose is simply to make it certain, so that no difficulty can arise at any time about whether the Clerk shall cast up the vote, or whether the tellers shall do it. Whoever does it does it under the supervision and control of the joint meeting. It is true that the tellers are simply the agents of both Houses, and when they cast up the-votes they do it, without anything being said to that effect in the stat ute, under the supervision of the joint meet ing; but when it is expressly provided that they do it under the direction of both Houses, there can be no further question about it , it only indicates who shall perform that minis terial act. Mr. MORTON. I think that is sufficiently indicated by the appointment of tellers, and the statement that "having read the same in the presence and hearing of the two Houses then assembled, shall make a list of the votes as they shall appear from the said certificates." It seems to me that involves all the mechanical duties that can be required of the tellers. Mr. LOG- AN. I wish to call the attention of the Senator from North Carolina to the pro vision of the Constitution in comparison with the language that he proposes to amend. Al though this bill comes from a committee of which I am a member, I had nothing to do with framing the bill ; but whoever framed it evidently did so with a view to comply entire ly and completely with the provision of the Constitution in reference to the assembling of the two Houses of Congress and the counting of the electoral votes for President. Passing over it and reading that which relates to the point under consideration, I find this : They shall make distinct lists of all persons voted for as President and of all persons voted for as Vice- President, and of the number of votes for each, 456 PROPOSED LEGISLATION AS TO THE MODE OF which lists they shall sign and certify, and transmil sealed to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Eepresentatives, open all the certificates, and the votes shall then be counted. What is the obvious meaning of that particu lar part of the Constitution? It is that the two Houses of Congress are to count the votes for President and Vice-President the same as the two Houses of Congress pass laws. The business of making laws is in the first instance referred to committees for the purpose of tak ing it out of the hands of the members of Con gress, that the bills may be prepared and put in a condition to be presented for their action. So in this case they may designate persons of their own number or they may possibly desig nate persons not of their number to do what ? Perform no duty at all, except to take the bur den off the House and Senate of making an enumeration of the votes cast for President and Vice-President. Hence they may appoint tellers. These tellers are merely to perform a ministerial office, to make an enumeration of the votes as they are handed to them by the Vice-President and to return to the Vice-Presi dent a statement of the count, that he may an nounce the fact. What fact ? As to who has received the greatest number of votes cast for either or both of these offices. This bill uses this language : One teller shall be appointed on the part of the Senate and two on the part of the House of Kepre- sentatives, to whom shall be handed, as they are opened by the President of the Senate, the certifi cates of the electoral votes ; and said tellers, having read the same in the presence and hearing of the two Houses then assembled, shall make What ? shall make a list of the votes as they shall appear from the said certificates. The certificates in the hands of the Vice- President handed to the tellers in the presence Df the two Houses, or in other words, handed to the two Houses through the tellers whom they have appointed for the purpose of enu merating or counting the votes. "The votes having been counted." How? The Constitution says, "the votes shall then be counted." Taking the language in connec tion the words used here have the same mean ing precisely. " The votes having been count ed" and "the votes shall then be counted" meaning precisely the same. Then what ? The result of the same shall be delivered to the President of the Senate, who shall thereupon an nounce the state of the vote. "Announce the state of the vote" to the two Houses as counted by the tellers, for what purpose ? That the two Houses may be noti fied of the count made by the tellers. Then it leaves it for them to correct it if it is an incorrect count. The whole thing is under their supervision. This being the language of the Constitution, and as the votes have always been counted in this way in the presence of the two Houses, the construction of that language being per fectly well understood, there is no necessity for any amendment ; nor do I believe the lan guage proposed by the Senator from North Carolina corrects anything, but makes the phraseology wore than it is in the bill. Mr. MERRIMON. I adopt the very lan guage of the Constitution. Mr. LOGAN. You adopt the language of the Constitution but you add to it. Mr. MERRIMON. Yes. :* it Mr. LOGAN. Why is there any necessity for adding to the language of the Constitution when that is perfectly understood by every body? Mr. MERRIMON. To designate the per sons who are to do the ministerial act under the direction of the joint body. Mr. LOGAN. This bill designates them in the fore part of the section "that one teller shall be appointed on the part of the Senate, and two on the part of the House of Repre sentatives." They are already designated. Mr. MERRIMON. Not to count. Mr. LOGAN. Yes, to count. Mr. MORTON. That is the meaning. Mr. MERRIMON. It says they shall make a list. Mr. LOGAN. Very well. "One teller shall be appointed on the part of the Senate and two on the part of the House of Repre sentatives, to whom shall be handed, as they are opened by the President of the Senate, the certificates of the electoral votes ; and said tellers, having read the same in the presence and hearing of the two Houses then assem bled, shall make a list of the votes as they shall appear from the said certificates ; and the votes having been counted " Mr. MERRIMON. By whom ? Mr. LOGAN. By whom? By the two Houses of Congress, as the Constitution con- :emplates, through those whom they have des- gnated for that purpose. Mr. MERRIMON. I propose to designate ;he persons who shall do it as agents of the oint meeting. That is all. Mr. LOGAN. Designate the persons who shall do what? Count the votes ? Mr. MERRIMON. Count the votes. Mr. LOGAN. They are already designated. Mr. MERRIMON. I do not so understand t. Mr. LOGAN. I cannot understand the Eng- ish language if it is not so. Mr. STEVENSON. I concur exactly in the view of the Senator from Illinois. If my friend :rom North Carolina will read the whole of ;he joint rule, I think it will be made apparent that the tellers have only a ministerial duty to perform in summing up the tabular statement of the certificates, and that the word " count ed," as used in the Constitution and as used in the joint rule, does not apply to the tellers at all. It appears from the joint rule that the COUNTING THE ELECTORAL VOTES. 457 returns are to be opened by the President of the Senate, and " said tellers having read the same in the presence and hearing of the two Houses then assembled, shall make a list of the votes as they shall appear from the said certifi cates." That is a ministerial duty ; " and the votes having been counted " not by these tellers and when they have made their certifi cates, some gentleman rises and says, " I object to the count of such a State." Then that ques tion is to be decided by the two Houses, and that is proved by this language : If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same leaving been stated by the presiding officer, the Senate shall thereupon withdraw, and said question shall be sub mitted to that body for its decision. There is a clear distinction between the word " count " and the mere summing up of what the certificates show. I concur fully that the bill as it stands now discriminates with suffi cient clearness the duty of the tellers and the fact that the votes as certified are to be counted, when the certificates are made out by the two Houses. If an objection is made to any fact stated by a teller, the President makes known to the two Houses the objection ; he says, " The Senator from Illinois objects to the vote of such a State," and then the question of count ing the vote of that State is to be decided not by the tellers but by the two Houses. Mr. LOGAN. I ask the Senator from Ken tucky while he is up if a provision is adopted by which you make the tellers the counters does it not conflict with the provision that the Houses shall separate for the purpose of deter mining whether a vote shall be counted. Mr. STEVENSON. I think it throws doubt I upon it and renders a conflict of decision more likely to arise than if you leave it stand as it is. Mr. MERRIMON. I ask who is to do this ministerial service ? Mr. STEVENSON", The tellers. Mr. MERRIMON. Why not say so ? Mr. STEVENSON. It does say so. I have shown the Senator the rule does say so now, as he will see by a reference to it. And said tellers, having read the same in the | presence and hearing of the two Houses then as- ; sembled Read what? Read the certificates which ! have been delivered to them by the President of the Senate shall make a list of the votes as they shall appear ! from said certificates. Mr. MERRIMON. To make a list does not imply to count. Mr STEVENSON. They do not make a list by a count ; they make out only a tabu lated list of the certificates and then they report those tabulated lists as made out to the two Houses in joint session. Then comes the count. Then comes the power to be exercised alone by the two Houses from these certificates as reported by the tellers and as counted in one sense if you please by the tellers, and then if there is an objection to the counting of any vote shown and tabulated by tellers, the ques tion of whether it shall be counted or not is to be determined by the two Houses. That is already provided for. Mr. EATON. My friend from Kentucky when reading from the joint rule reads from a rule which we destroy by this bill. You find there that the tellers are the counters, but you do not find it in the bill introduced by the Senator from Indiana. It is entirely plain in the old rule, but it is not equally plain in the bill. I think it means so; I think the lan guage will be so construed ; but yet it is not as plain as it is in the old rule which is to be destroyed by this bill, which never ought to be passed. Mr. LOGAN. I think the Senator from Connecticut will see that he is mistaken, if he reads the language. The bill is in precisely the same language as the old rule in this par ticular. The object of this bill is to destroy the force of one portion of the rule which provides that an objection by one House shall destroy the vote of a State. This bill requires the concurrence of both Houses to destroy the vote of a State ; but so far as the mere minis terial part is concerned they are the same, and I will read them to show. The twenty-second joint rule says : One teller shall be appointed on the part of the Senate, and two on the part of the House of Repre sentatives, to whom snail be handed, as they are opened by the President of the Senate, the certifi cates of the electoral votes, and said tellers, having read the same in the presence and hearing of the two Houses then assembled, shall make a list of the votes as they shall appear from the said certificates ; and the votes having been counted Just the language precisely of this bill the result of tbe same shall be delivered to the Pres ident of the Senate, who shall thereupon announce the state of the vote and the names of the per sons, if any, elected ; which announcement shall be deemed a sufficient declaration. The bill is precisely the same, word for word, as the old rule, except that it changes the proposition which allows one House to deprive a State of its vote. Of course there are changes other than that ; but that is the main point in the bill. So far as this particu lar portion of the bill that we are discussing 13 concerned, it is copied verbatim from the rule. Mr. MERRIMON. I confess, sir, that what has been said by the Senator from Illinois and other Senators has not convinced me that I am in error in offering this amendment. The object of this legislation is to execute a pro vision of the Constitution which directs the counting of the electoral vote for President and Vice-President ; " counting," I say ; sim ply that. I can hardly conceive a necessity to exist for any statutory provision at all. If you are going to provide for the execution of this provision of the Constitution in one re spect, why not do it in all? Why not make 458 PROPOSED LEGISLATION AS TO THE MODE OF your action complete ? If we desire to make it complete, why not designate all the agencies which the joint meeting will use for the pur pose of ascertaining the result? We provide an agency to open the certificates ; we provide an agency to make a list of the certificates, for the convenience of the count and ascer taining the result ; but the bill does not pro vide any agency for casting up the vote. I propose by this amendment to provide that the tellers and I do not care particularly whether it be the tellers or the Secretary of the Senate or the Clerk of the House, but with a view to put the matter to rest I pro- pose to provide in the bill that the tellers shall cast up the vote, count the vote under the su pervision of the joint meeting. That puts it to rest. No question can arise then. The bill will be, if amended as I propose, thus One teller shall be appointed on the part of the Senate, and two on the part of the House of Kepre- sentatives, to whom shall be handed, as they are opened by the President of the Senate, the certifi cates of the electoral votes Now the duty of the teller begins and said tellers, having read the same in the pres ence and hearing of the two Houses then assem bled, shall make a list of the votes as they shall ap pear from the said certificates. A list ; that is a mere matter of convenience ; and then I propose to add And the votes shall then be counted by the tellers under the supervision and direction of the joint meeting. Then it is plain ; then the agency is pro vided and the duty of that agency is pre scribed, so that there can be no question or further trouble about it. As it is, the joint meeting might direct the Secretary of the Senate to cast up the vote ; they might direct the Clerk of the House to do it ; they might direct the presiding officer to do it ; they might direct two of the Senators to do it ; they might direct somebody outside of the joint meeting to do it. My object is simply to put the question of who shall cast up the vote under the direction of the two Houses beyond any sort of doubt, to make it specific and cer tain. Mr. FRELINGHUYSEN. I think that if the Senator would consider the significance of the word " counted" as used in the Constitu tion he would not insist on his amendment. There must be some tribunal to determine whether a State is entitled to a vote or not. There must be a certain tribunal to determine whether the vote is properly authenticated, whether the proper number of electoral votes are sent. Mr. MERRIMON. May I interrupt the Senator ? Mr. FRELINGHUYSEN. Certainly. Mr. MERRIMON. This provision does not interfere with that at all Mr. FRELINGHUYSEN. I understand. Mr. MERPJMON. For I have said that the count shall be made under the direction of the joint meeting. Mr. FRELINGHUYSEN. All those things are to be determined. Where is the tribunal to determine them, and where does it get its authority ? There is but one word in the whole framework of this Government that bestows that jurisdiction and authority, and that word is " counted. " You may look through the Constitution, and the only thing that settles how this important work is to be effected is contained in that word "counted" in the phrase " the votes shall then be counted. " Then somebody is to determine what are votes, who has a right to vote. My friend s amend ment is, "be counted by the tellers. " Mr. MERRIMON. Under the supervision and direction of the two Houses. Mr. FRELINGHUYSEN. But they are not to be counted by the tellers under anybody s supervision ; they are to be counted by the two Houses of Congress, and this bill has gone as far as it can go in defining the duties of these tellers when it has provided that they shall make a list of the votes. That is the ministerial duty they perform, and the count ing must be left to the two Houses. Mr. MORTON. I scarcely ever have had any trouble in understanding my friend from North Carolina during the time he has been here, but I confess he is unable to-day to make me comprehend any point to this amendment. I have certainly tried to do so, because I am willing to take any amendment that I think will perfect the bill, and I would accept it in an instant if I thought it would improve it at all. My friend loses sight Mr. MERRIMON. I am content to take a vote now. I do not want to debate it. Mr. MORTON. In a moment. My friend loses sight of the different stages in the pro ceeding, and I want simply to call his attention to them. The section provides "that two tell ers shall be appointed on the part of the Sen ate and two on the part of the House of Rep resentatives, to whom shall be handed, as they are opened by the President of the Senate, the certificates of the electoral votes." The Presi dent first stands up and opens them, and then passes them over to the desk to the tellers ; "and said tellers, having read the same in the presence and hearing of the two Houses then assembled" having opened the certificates and passed them over, the tellers read them in the presence of the two Houses ; and after the tellers have read them, then the tellers " shall make a list of the votes as they shall appear from the said certificates." They make out a list, and that list shows how many votes one man gets and how many another man gets. The list must do that ; the list implies that. Mr. MERRIMON. Who is to add them up ? Mr. MORTON. Who adds them up ? I sup pose all the members of the House cannot stand up and add them together. The list shows how many votes each candidate gets. And now I COUNTING THE ELECTORAL VOTES. 459 come to another stage of the proceeding, and this evidently refers to what has taken place after all has been gone through, and the Sena tor will see that it refers to the conclusion of the matter ; I want his attention. And the votes having been counted That is, after the whole thing has heen gone through with, and the Houses have separately decided upon any question that may arise And the votes having been counted, the result of the same shall be delivered to the President of the Senate. After you have gone through the whole thing, the two Houses having separated from time to time and voted, a list is made out just as our Secretary makes out a list of the yeas and nays. And the votes having been counted, the result of the same shall be delivered to the President of the Senate Just as the Secretary here delivers the roll to the President of the Senate at the conclu sion of a call of the yeas and nays who shall thereupon announce the state of the vote and the names of the persons, if any, elected That implies that that is the conclusion of the whole ceremony which announcement shall be deemed a sufficient declaration of the persons elected President and Vice-President of the United States, and, together with a list of the votes, shall be entered on the Journals of the two Houses. That is the conclusion of the whole thing ; and in the mean time, before the votes have been finally counted and the announcement made, what may take place ? Objection may be made to the vote of North Carolina, and the two Houses separate and vote upon it ; and under the rule as it now stands, if either House sustains the objection, the vote of North Caro lina goes out, and she is disfranchised has no more a vote than if she was a Territory. That is what we are proposing to correct. But this is the conclusion of the thing : After having gone through all the stages, determined how many votes shall be counted and how many re jected, the list is handed to the President and he announces the result ; that is, the declaration of who is elected, if anybody is elected. I sub mit to my friend that his amendment does not tend to make the section any clearer or to im prove it. If I thought it did, I should accept it in a moment so far as I am concerned. The VICE-PRESIDENT. The question is on the amendment of the Senator from North Carolina. The amendment was rejected. Mr. MERRIMON. Now, I propose to strike out in line 15 of section 1, after the word " of," the words " the same " and insert the words " such count." I confess as the words stand now I do not know what "the same" refer to. I take it they refer to the count, and to make it more precise and logical I think the words " such count " are better. Mr. MORTON. I do not think that makes it any more clear. The words are " result of the same," that is, the result of the counting, and nobody can misunderstand it. I submit that his amendment does not make the thing a bit clearer than it is now or improve the phraseology. Mr. LOGAN. In the old rule which was adopted by Congress after Congress the rule is " the result of the same shall be delivered." It is the language we have followed for years, and it is better than the language the Senator from North Carolina suggests, as far as that is concerned. Mr. MERRIMON. There is only a Differ ence of opinion between us on that subject. Mr. LOGAN. I admit that. Mr. MERRIMON. I move to strike out the same" and insert " such count" to make it logical, to say nothing of beauty of expres sion. The amendment was rejected. Mr. MERRIMON. In line IT of section 1 I move to strike out the word " state " and in sert the word " result ; " so as to read : The result of the same shall be delivered to the President of the Senate, who shall thereupon an nounce the result of the vote. Mr. LOGAN. All I desire to do is merely to read the language of the old rule, "there upon announce the state of the vote," just the same language that is in the bill, and it has been adopted by Congress after Congress. Mr. MERRIMON. That is no reason we should not make it right now. Two wrongs never made a right. Mr. LOGAN. There is no difference in the language. Mr. MERRIMON. It is the difference be tween the " state " of a vote arid the " result " of a vote. Mr. LOGAN. "What is it, tell us ? Mr. MERRIMON. The state of the vote may be such that there will be no result. Mr. LOGAN. Then the result of the vote may be such that there will be no result. IB that it? Mr. MERRIMON. The state of the vote is the condition of the vote, and there may be various circumstances affecting it by which there is no result ; and if the rule is in such condition that there is no result Mr. LOGAN. I will ask the Senator, if there is no result, how can you state a result? Mr. MORTON. I suggest that my friend now involves himself in the only reason I have heard him give. The language is "and an nounce the state of the vote." There may be no result to announce as shown immediately afterward by these words, "and the names of the persons, if any, elected." There may be no election. There may be therefore no re sult. Mr. MERRIMON. How can he announce that anybody is elected unless there is a result ? Mr. MORTON. There may be a state of the vote in which there is no election. The bill contemplates that. But now I submit to my 460 PROPOSED LEGISLATION AS TO THE MODE OF friend in all earnestness and candor that he does not improve, it seems to me, the phrase ology or the rhetoric of the bill in any respect by striking out the word " state " and insert ing " result." I hope the word will remain as it is. The VICE-PRESIDENT. The question is on the amendment of the Senator from North Carolina. The amendment was rejected. [Mr. BAYARD addressed the Senate in op position to the bill. His remarks will appear in the Appendix.] Mr. THURMAN. I concur with the Sen ator from Delaware [Mr. BATAED] in the opin ion that this bill should not be pressed in hot haste, and I have not pressed it. I agree with him that it would be more satisfactory that this subject should be acted upon at the next session of Congress than now, and for the reason that he has suggested. Had the elec tion that took place in this country last year, of members of the House of Representatives in Congress, taken place in England, and re sulted in a victory as great over the adminis tration, the administration there would have been changed just as soon as the result was known. Such a victory has not that effect in the United States. The administration re mains for a constitutional term. Yet such an expression of public opinion is entitled to great consideration by the majority here, and im poses on it, in my humble judgment, a duty not to press upon Congress matters that it is quite certain would be rejected by the Con gress to meet next winter. Whether this is one of those measures or not, of course must depend upon its merits, for in respect to it there has been no expression of public opinion. Therefore, while I admit that this measure is not one of the things that have been decided at the polls, and that it must be acted upon according to its merits, yet I say that where there is a serious difference of opinion in re spect to it, it would be more becoming and more consistent with the idea of our being governed by the public will, that such a meas ure should be deferred, especially as ample time will be afforded for passing it next win ter, if it ought to be passed. But a majority of the Senate have determined otherwise. They have determined to proceed with this measure, and we are therefore brought to its considera tion ; and in its consideration I find the opin ions of the Senator from Delaware, who has just addressed the Senate, and my own, on an important section of the bill very far opposed. Knowing as I do the ability, the industry, the research, and the patriotism of that Senator, I never differ with him without doubting the correctness of my own judgment, and yet, what he has said has not changed my opinion of the second section of this bill. On the contrary, I think that the point upon which he mainly re lies, in opposition to that section, is not well taken, that the difficulty he supposes can never by any possibility exist. Suppose the second section were stricken out of the bill, and the bill were passed with out it, what would be the effect of the bill thus enacted into a law ? And here I crave the at tention of the Senate, and especially of those who have been impressed by the very grave and forcible remarks of the Senator from Dela ware. If that section were stricken out of the bill, then the only provision in the bill for the counting of the votes would be, that a return should be counted unless both Houses con curred in rejecting it. That would be the bill applicable in every case. Mark it, Senators ; in every case a return should be counted unless both Houses concurred in rejecting it. Now, under such a law as that, suppose the President of the Senate to lay the return from a State before the two Houses and an objec tion be made to that return. The Senate re tires to its Chamber and a vote is taken in the two Houses whether that return shall be re ceived. The Senate votes not to receive it ; the House votes that it shall be received. The effect would be, under the first section of the bill, that that return must be counted. Re member that. Here is a return, we will sup pose, just as there was at the last count, from the State of Louisiana. It is presented, opened by the presiding officer, handed to the tellers. An objection is made to its being counted. The two Honses separate in order to decide the question. One of the Houses decides to count it ; the other not to count it. Then under the first section of the bill it would be counted. If there is another return from that same State, the Senator from Delaware seems to think you would have to go through the same process with that second return that you did with the first, and that if the Houses were reversed upon the second return, as there was not a concurrence in rejecting it, both returns would have to be received and Louisiana would be counted at twice the number of votes to which under the Constitution she is entitled. I submit to my friend that by no possibility could such a thing occur, because when once you have counted all the votes to which a State is entitled you can count no more. It is im possible ; the thing is res adjudicata. The moment you have decided, either by the difference of the two Houses as to the count ing of the returns or in any other manner, that that return shall be counted, the vote of that State is given and no other vote from it can be received. Can there be anything clearer than that? Suppose there be two returns from Louisiana, one of them is presented and an objection is made to its count. The Houses separate, and one of the Houses decides that it shall be counted. Would it not be counted then? No one will say no. Then suppose the other return is presented. What is the objection to that? "We have counted Lou isiana once ; we cannot count her again. We COUNTING THE ELECTORAL VOTES. 461 have given her all the votes to which she is en titled; we cannot receive any further return from that State." But now, if by our act we make a difference of opinion between the two Houses equal to a judgment of both Houses in favor of the reception of a return, it is just as plain as that two and two make four that when you have counted one return the matter is res ajudicata, and you cannot count another. Therefore there can be no such thing as my friend from Delaware seems to suppose of heaping up the votes of a single State and giv ing her twice the vote to which under the Con stitution she is entitled, requiring a candidate to receive more votes in order to elect him than the Constitution requires. I beg my friend from Delaware to bear in mind what would be the result. Suppose we are in January, 1877, and this second section is not a part of the law, but the first section alone is the law. Sup pose the State of Alabama, the first on the list, is called, and there are two returns from Ala bama, returns from two bodies claiming to be electors, as there wene from Louisiana and from Arkansas at the last count. Is there any law that says which of those returns shall be first presented by the President of the Senate? No, sir ; and you cannot make any law that will meet that case. It is therefore within his discretion which one he will present first, which he will open first, and hand to the tell ers first; and just as certain as that he has eyes in his head, so certain will he know which one of those two returns is the return of the republican electors and which is the return of the democratic electors, and just as certain as human nature is human nature the return of the republican electors will be opened first and handed to the tellers first. Then if the House may vote to reject it and the Senate to receive it, under this first section of the bill it is received. Then the vote of that State has been counted, and there is no question upon any other return, and cannot be. So that the effect of striking out the second section of the bill is simply this : that where the two Houses are divided in opinion upon a question which shall be the true return, the whole thing is determined by the presiding officer, by the simple fact of which return he opens and presents first. That is the result of it. The whole thing is done in that way. Which ever return the President of the Senate shall first open and first hand to the tellers, where the Houses are divided in opinion, that return under this first section must be received, be cause both Houses do not concur in rejecting it ; and that being received, no other return can be considered at all, for the question, as I said before, is res adjudicata ; the State, has been counted in all the votes to which she is entitled. It does seem to me, then, that to strike out this second section of the bill is to clothe the presiding officer with a power that not one of us, I trust, will be willing to confer upon him to confer upon him the power, where there is a division of opinion between the two Houses, to count the votes on that side which he shall see fit first to present. That is the inevitable result. Again, what must you do where there is more than one return from a State, if you leave the present rule to exist? Why, just precisely what took place at the last count. The vote of three States was thrown out, Louisiana, Arkansas, Texas, and the vote of certain electors from the State of Georgia. Suppose we go on under the present rule, and the vote is counted in January, 1877, and two sets of returns come from a State. The House of Representatives vote for one, the Senate for the other. Both go out, under the existing rule, and the State loses her vote. Is that right ? Is that a performance of our constitutional duty ? We are to determine which of the men who cast those votes were the electors in that State of President and Yice-President. That is the duty that devolves upon us. If there are two returns from two different bodies of men, it is our duty to determine between them which is the true body of men. Can we shirk that duty ? Have we any right to shirk that duty ? Are we not bound to decide it if we can decide it ? Under your present rule, you do not decide it at all. One House decides that one body of men were not the true elec tors, and their certificate is rejected. The other House decides that the other body were not the true electors, and their certificate is reject ed. Thus you eome to no decision. You make no effort at a decision between these two con flicting claims. That is not right. It may be inevitable un der any system. The same thing might happen, I grant, under this very second section, but it provides that you shall consider the votes and determine between them. What, then, is this second section ? I feel bound to say this much about it, because I suggested this point in the first debate that took place at this session on the resolution offered by the Senator from In diana [Mr. MORTON] to rescind the twenty- second joint rule. I suggested the very diffi culty and the remedy, and I supposed that it was in some small respect owing to what I then said that the Senator has incorporated it in his bill. I thought I was right then, and I think so yet. Therefore I have felt bound to make these remarks. I have said that under the first section of the bill there can be no proper adjudication be tween two conflicting returns, for the whole thing would depend upon the action of the presiding officer, upon the mere fact of which return he opened first. Then something must be done for a case where there are two con flicting returns ; and what can you do but to require the two Houses to consider each of those returns, and then determine which of them shall be received ? They can make no deci sion to receive one unless both Houses concur. 462 PROPOSED LEGISLATION AS TO THE MODE OF One House has no superiority over the other. If the two Houses differ, one being in favor of one return and the other in favor of the other, and are inflexible, of course there can be no decision; but when there are two or more re turns from a State, of necessity there must be a concurrence of the two Houses in order to receive one of them. Just as an equally-di vided court can make no decision, in the same way, where there are two returns, it has to decide between them which is the true return, who were the true electors of that State, as appears by the certificates that have been made. Mr. EDMUNDS. May I ask the Senator a question ? Mr. THURMAN. Certainly. Mr. EDMUNDS. How is there any different rule of responsibility or right in deciding where there are two sets of papers and in deciding where there is one? The Senator says if there are two, neither ought to be counted on prin ciple, unless the two Houses shall decide which one is to be taken. Now, if one set of papers be presented, in respect "of which the same question might be made exactly as would be made in respect of one of the two in the case where there were two, why must not both Houses decide in the same way to affirm that that paper is what it purports to be, the evi dence of the vote of the State for President ? That is the point that troubles me. Mr. THURMAN. I understand the scope of the question very well, and I think it can be very easily answered. Mr. EDMUNDS. That I should like to hear. Mr. THURMAN. When there is but one return from a State, sufficient respect ought to be paid to that return that it should not be re jected unless both Houses unite in the opinion that it should be rejected. Mr. EDMUNDS. Yes, but if I do not inter rupt the Senator or trouble him Mr. THURMAN. No. Mr. EDMUNDS. Then I think the same could be said where two papers come from the State ; only one of them can be the return of the State. One is true and the other is false, unless both may be false. If false, it ought not to be counted ; if true, it ought to be. I do not see that the Senator gets out of the difficulty by that suggestion. Mr. THURMAN. Then it is because my thoughts are very muddy or my expressions are very muddy. "When there is more than one return, you are driven to decide between the two returns. If one House says that one return is not the true return and the other says it is, you ought not to count that under the first section in this bill, because upon the very next return the Houses might be reversed and the vote be precisely the same upon it, and therefore you are driven, ex necessitate, where there are two returns, to an affirmative decision of both Houses in favor of one. You cannot apply the rule that you shall take the first return unless both Houses concur in re jecting it, without involving the difficulty which I stated before, and which perhaps the Sen ator did not hear, that that would put it in the power of the presiding officer to definitely set tle what should be the vote of the State accord ing to the mere fact of which return he opened first. Now, Mr. President, if I have made myself understood I have done all that I desired. I I have no desire whatsoever that this measure shall be pressed. I certainly have no desire that a bad measure shall be adopted. I do not know any interest that anybody has that a bad measure should be adopted. It is the interest of us all, if we are instigated by what I hope we all are, a desire for the peace of the coun try and that the Constitution may be obeyed, respected, and executed, to frame such a meas ure as shall secure its execution according to justice and the right. I know of no other mo tive that actuates any one of us and I know of no reason therefore why this measure should not be such a woi;k that every man in the Sen ate can give it his approval. But I do not set up for myself any infallibility of judgment. There may be men who see further than I see in this business, who perceive difficulties that I do not perceive, and to whose judgment I would defer with the greatest pleasure. I repeat, therefore, that I am not only willing, but I would prefer, that the decision of this matter should be remitted to the next Con gress, where one House will be of one politi cal complexion and the other of another, and where a measure may be matured that would be more likely to give universal satisfaction ; for I take it to be almost certain that the twenty-second joint rule cannot stand as the law of Congress. Mr. EDMUNDS. Mr. President, I do not think that the Senator from Ohio has any just right to say or to imply in what he says that this bill has any reference to parties Mr. THURMAN. I have not said so. Mr. EDMUNDS. If he has not said so or implied so, there is no just ground that I know of for saying that this subject should be remitted to the next Congress, wherein one party will have one branch and the other par ty will have the other. If this is a bill which appeals to good men of all parties to settle a troublesome and difficult question for the right and according to justice under the law, and is not a party measure, then there is no reason why it should not be considered and disposed of now. I think I am safe in saying that. The difficulty that meets us under the Con stitution, as it strikes me, is this : The Consti tution requires that the vote of each State shall be opened by the presiding officer, the President of the Senate. When opened the votes are to be counted. The question on w r hich the whole thing turns, to which our legislation is directed, except mere machinery, is what is a vote of a State ? We all agree that every vote of every State ought to be counted. COUNTING THE ELECTORAL VOTES. 463 "We all agree that whatever pretends to be a vote, or looks like a vote but is not a vote, should not be counted. So the thing which we are to .provide for by this legislation is a means of ascertaining fairly and truly, according to the Constitution and the law, what is the vote, the will, of each particular State in the choice of a President. I think no man can question that 1 state the question fairly. That is it. Now, how are we to do it? In almost all cases in ascertaining not only in elections but in a thou sand other affairs what has been done (be cause what has been done is the business which the Constitution requires in some way to be ascertained), a tribunal is provided upon the philosophy of justice and jurisprudence, which is one single tribunal, and whose judgment when pronounced by a quorum of its body be comes one single judgment. The fault of the present rule is that unless both Houses concur in counting a particular paper as a vote the paper is not counted at all. If a State should send a vote which should be perfect in every respect, conform on its face to the Constitu tion and to the law, be certified in the way that the law requires, sealed by the seal of the State, countersigned by the governor and the secretary of state, and all that, it is within the power of either House, as the rule now stands, it is true, to say it shall not be counted at all, and the constitutional right of the State in question is entirely overthrown in the vote for President. But that of course implies that one or the other of the two Houses, in such a case, has failed to perform the duty which the Con stitution and the law and the rule impose upon it. We cannot presume that either House would object to the counting of a particular paper as a vote unless it should have a lawful reason for doing so, unless it appeared in some way that it did not represent the lawful and constitutional vote of the State, or unless it appeared for want of evidence, in defect of ex ecution or certification, or whatever, that we were unable to say what was the vote of the State. Now, when you reverse it and take it as this bill is, which provides leaving out the case of double returns that everything that comes from a State called a vote, no matter if it be from a revolutionary government, no matter if it be from an assemblage of men who have no shadow of constitutional authority but who have got possession of the great seal, or have made another, as in the Louisiana case one of the witnesses swore that the great seals of the State of Louisiana were as plenty as blackber ries and made to order, shall be counted. Here you have a paper which on the face of it ap pears to be proved by the great seal of the State of Louisiana ; I take that merely for illus tration. It is signed by somebody who pur ports to be the Governor of Louisiana. Very well so far. Now, it may be known to every member of both Houses that that particular paper was really gotten up and emanated from an unlawful and revolutionary assemblage of men who, only a week before the time when the electors were to meet, had overturned the lawful and constituted government of that State, had possessed themselves of the public archives and. the public seal, installed a man as governor de facto, as the modern phrase is. There is your certificate. Now this bill says those votes shall be counted. The difficulty is just as great as, if not greater than, under the existing rule. The rule as it exists declares that nothing shall be treated as the true voice of the State unless the representatives of the people and the representatives of the States, acting separately, shall agree that it is the voice of the State ; and when I say that, I do not mean the voice of the State outside of the law and the Constitution, but upon the papers, fol lowing the law as a court do. Now when you turn it over to the other side, without you say, as this bill does leaving aside the double re turns, as I say that whatever does come which appears to be, purports to be, in form, the voice of the people of the State, shall be counted un less both Houses concur in saying that that is not the voice of the State, to my mind the latter alternative is quite as dangerous as, if not more so than, the first. What, in my opinion, the Constitution requires is a law which shall provide, for the time being, a tribunal of some sort, which is a single tribunal, which is bound to decide upon the Constitution and the law whether a particular paper which is opened by the President of the Senate in the presence of the two Houses, and which is then offered to be counted under the Constitution, is the vote which the Constitution speaks of. The Constitution says, " the votes shall then be counted." What is a vote ? The Consti tution does not mean that every paper which a selectman or a justice of the peace may send here shall be counted; but it says the vote shall be counted. What is a vote ? The vote, under the Constitution and the law, is the law ful and authoritative expression of the elec tors of that State, chosen as the Constitution and the laws provide. Nothing else is a vote. That is a question which must be decided. Somebody must decide it. If you are to remit a question of that kind to the decision of two separate bodies, each acting independently of the other, where are you to land ? Of course you are forced in that case to one of two alterna tives. You are forced to say, as the present rule does, that nothing shall be considered a vote that the two Houses do not agree is a vote, or you are to say that everything shall be considered a vote that the two Houses cannot concur in saying is not a vote ; and there you are. You are at loggerheads at once. You might as well institute a court composed of two judges and hold that no evidence shall be received, as the present rule is, except the two judges concur to receive it. That would not be very bad in administering justice, because you would presume that the two judges sworn to 464 PROPOSED LEGISLATION AS TO THE MODE OF administer the law and nothing else would in some case or other agree that a particular piece of evidence offered was lawful. Then you turn that over and say that all evidence offered shall be received unless each of the two judges of your court say it shall not. Well, you can say it is presumable that they will act according to their duty, that in most cases they will concur in rejecting evidence that ought not to be admitted, but still you do not administer justice very well in either way. You must have one single method of deciding the question. You cannot decide it as you do in the composition of these two Houses in the passage of a law, where for public interests the law is not to be changed unless the two Houses concur in changing it. That is a mere check upon the hasty expression of public will, and you are left not in a very bad condi tion if a law does not pass. But here comes the performance of a duty which must be per formed in order that the Government may go on. What are you to do ? You must in some way, under the Constitution and under the law, have a means of deciding, once for all, what the true law of the case is. Now, in almost all the States, I do not know but that in every one, if a man is reported under the Constitution and the laws and declared elected governor, and another man says that he is elected governor and the man so declared is not, the judicial branch of the Government is called into play to decide, under the Constitu tion and the laws, which of these two persons is entitled to the office of governor ; and upon a proper suit brought and a decision made upon it you have reached a decision, be it right or be it wrong. Like every other judi cial decision, it is better for the peace of soci ety that it should stand, even if erroneous, than that the community be thrown into an archy. That is the theory upon which all judicial determinations are based. Very well ; the Constitution has stopped when it says that the vote shall be counted. There are two theories upon that subject. One is that the Constitution of the United States does not allow a judicial determination by contest or by suit of any question as to who shall be President of the United States, differing from the constitution and the laws of almost all the States. Suppose that be so, what then ? Why, the law must provide in some way for a consolidatad opinion, as I think, of the two Houses, through a committee or in some way, so as to get a definite decision by a distinct body of men upon the question. The other theory is that if the two Houses under the present rule declare that A B is elected President of the United States and C D thinks he is, he has a right to appeal to the courts of his country under the judicial power, which the Constitution declares shall extend to all cases and controversies arising under the Constitution and the laws of the United States, to determine the question. I believe, Mr. President, as the law now stands and as the rule now stands, that if at the last election it had been declared in the Chamber of the House of Representatives that Horace Greeley, if he had not died, was Presi dent of the United States, it would have been competent for General Grant to have instituted a suit in the circuit court of the United States having jurisdiction, original jurisdiction of all causes between persons arising under the laws of the United States, to get possession of that office, and I believe that the final decision of the circuit court of the United States, or the final judgment of the Supreme Court upon ap peal, would, under our Constitution and laws, have been a judicial determination constitu tionally made as to the controversy between those two gentlemen respecting the right to this office. Other gentlemen disagree to that idea. They believe, as I said, that the first branch of the proposition is the true one, and that the two Houses, together or separately, or by some consolidated committee are the final judges. Suppose that were to be so, there would still be under the Constitution the right, as broad as the Constitution can make it, in the courts of the United States to decide any cause or con troversy which arose under the Constitution and under the law ; and how in such a case could a court refuse to decide, if one man claiming to be entitled to an office brought a suit against another man claiming to be en titled to that office ? They could not do it. But that, perhaps, is a little apart from the present and precise question we have, which goes upon the theory that for the time being, at any rate of course, it does not preclude an ultimate resort to the courts, for an ultimate resort to the courts is a constitutional right under the judicial power conferred by the Constitution ; and of course no legislation of Congress could abridge it ; but this goes upon the idea, either for the time being or for all time, that the two Houses are to decide. If they are to decide, how is the best way to do it ? It has appeared to me, after considerable study of the subject and I state my opinions with great deference and diffidence as well, in view of the opinions of other gentlemen who differ from me that the only satisfactory so lution of this difficulty, going upon the as sumption that the two Houses in some way are to determine this question for the time be ing, that they must determine it in such a way that you get prima facie at least a consoli dated opinion ; and that it is not safe to take either horn of the dilemmas that are presented in leaving it to the two Houses to decide sepa rately ; either that nothing shall be received that they do r ot agree to or that everything shall be received that they do not concur in rejecting ; that we should provide for what is common in many of the Eastern States, and is the con stant and constitutional practice in the State from which I come ; that is, on each occasion of a presidential election the appointment of COUNTING THE ELECTORAL VOTES. 465 a committee to be named in each House, to be, if you please, equal in number, who should form a single and consolidated committee, the members of which, thus selected and appoint ed, would presumably be among the purest and best and most skillful in law and in poli tics of the members of the two Houses ; that that body of people should be sworn to take the returns when they are opened by the Vice- President of tho United States, and canvass them, canvass them under the sanction of the Constitution and the law ; that they should apply to them the same impartial considera tions that they would be bound to apply to them had the Constitution declared that those eight persons should form a court who should finally determine every question ; and that that body, call it a committee or whatever you like, but one single consolidated body, a joint committee, not acting separately like a con ference committee, each representing one House, but one single body of eight or nine men, should take these papers, with the Con stitution before them and the law, as to the method of voting and the method of making returns, and report to the two Houses thus assembled what the state of the vote is, and who, according to the Constitution and the laws, has received the majority of the votes. That, as I say, is the constant practice in the State of Yermont. Mr. MORTON. What would the two Houses do with the report after it gets there ? Mr. EDMUNDS. I was going on to state : It is one of the misfortunes I labor under that I cannot say everything at once and I do not want to take time. I should propose that when these eight gentlemen, if you please, so acting * and so sworn to act impartially, according to i the law, should have made their report, that . report should be taken as the guide as to who i appeared to be the President of the United States, unless the Houses should concur in ; setting it aside. Instead of saying, as my j friend s bill does, that a vote which has not i undergone that sworn scrutiny shall be taken, I say that a vote having undergone that scru- j tiny and being allowed shall be taken, or be- I ing rejected shall not be rejected unless the j two Houses concur in reversing this sworn ex- ij animation of men who are in an attitude to || make an examination. We all know as a prac tical thing from what we have seen, those of i us who have been here through one or two ij presidential elections, that the difficulty in com- ! ing to a conscientious and right judgment upon a question that is presented is very great on j account of the haste, the want of time, the in- , ability of sixty or seventy Senators taking i this small body being able to see precisely what the question is. Every Senator cannot i look at the papers at the same time, and we are in haste ; we must act without debate under existing rules ; or, if under debate, every Sen ator who is acting conscientiously, as all do, would wish to see precisely what this docu- 30 ment is which is drawn in question. We are acting of course on all these occasions upon the papers and upon the papers alone. Very well. The difficulty, therefore, is one which exists in all large bodies where you are called upon to decide suddenly upon a paper which you have never seen before, where a great number of persons cannot take it in hands and in spect it, and they have not time to refer to authority or precedent, or Constitution, in order to come to a right judgment. Now, if you remit, not by force of the power of either body as a part of the legislative de partment of the Government but by force of the law, this power to a chosen body of the mem bers of the two Houses, who are small enough to act together, and each one of whom may be able to see precisely what the paper is that is drawn in question and who may by them selves have time enough, if it be not more than an hour, to study and examine the ques tion conscientiously, and under the sanction of an oath to decide rightly, is there not a great er probability that you reach the true and law ful result than there is in saying that you leave it at large to three hundred men at the other end of the Capitol and to seventy-four at this end ? I think it is. Mr. MORTON. Suppose the committee dis agree ? Mr. EDMUNDS. I will come to that, if my friend will pardon ma. I have thought even of that. Mr. FRELINGHUYSEN. Do I understand that the proposition of the Senator from Ver mont would change the bill of the Senator from Indiana in this, that after the certificates are opened they are submitted to a committee who are to act instanter and in the presence of the two Houses ? Mr. EDMUNDS. Not precisely that. I will come to that presently, and I will condense just as much as possible because I know how valuable time is. The difference, Mr. President, between what I suggest and what this bill leaving out dou ble votes for the time being is this : In the one case, as the bill now stands, everything is to be counted that purports to be a vote unless the two Houses separately concur in rejecting it. My proposition, or suggestion rather, be cause I have made no motion, is that these papers should be referred to a sworn commit tee of four Senators and four Representatives ; and that they should have time to examine them ; and acting under their oaths should de cide whether the papers presented are votes, and being votes should count them ; not being votes they should reject them. Then they re port. Now what is to be done, my friend asks. I say that nothing ought to be rejected after such a report, unless the two Houses agree to reject it ; that is to say, that the prob ability of conformity to the Constitution and conformity to the law is heightened by having the present and sworn judgment of four Sena- 466 PROPOSED LEGISLATION AS TO THE MODE OF tors and four Representatives who have had time and opportunity to scrutinize the docu ments, is safer than to say that these papers shall be counted, unless the two Houses acting separately in their numerous bodies, say the same thing. The next question is, What is to happen then? My friend says, Suppose they dis agree ? " because what I have already said only shows that this paper is not to be count ed unless botli Houses concur in rejecting it. If it has gone through the scrutiny of eight sworn Senators and Representatives, and they decide upon their oaths that it is not a vote at all, unless both Houses agree in then saying it shall be thrown out, I think that diminishes the chances of fraud, or of passion, or of tumult, a great deal. My friend from Indiana asks, " What are you to do if they are equally divided in opinion, if you have eight?" Then, Mr. President, in order to meet his views, although it would not quite meet my own, I should propose that after a scrutiny by four Senators and four Represent atives, made a committee for that purpose, if the question were so doubtful that they were equally divided in opinion, I would take his theory as it now stands in the bill and let it go, that a paper which came so near, to say the least of it, being what it purported to be, the vote of a State, should not be rejected unless, as he now proposes without that scrutiny, both Houses should agree in rejecting it. Mr. THURMAN. The Senator from Ver mont may have spoken on the word "then" in the Constitution, but owing to the interrup tions around me I may not have heard it ; but if he has not, I wish to ask him what construc tion can be given to the word " then" in this sentence The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. How restricted does the Senator take the word "then" to be* Mr. EDMUNDS. I think I am safe in say ing I have no doubt I give the same meaning to that word that my friend from Ohio does ; that it must mean " on that occasion." " Then " does not mean " at that instant of time," be cause you cannot count a vote in an instant. The instant is gone while you are uttering the word " count." But the word " then," I think, in suits between private individuals, which my friend so well knows about, means " on that occasion." Mr. COCKLING. " Forthwith." Mr. EDMUNDS. "Forthwith," as^ my friend from New York suggests. That is to say, "then and there," "on that occasion," " forthwith," " without the intervention of any other affair ; " and therefore if it took two days, as it may in a hundred years when we have a hundred States, to count these votes, it is "then" all the time. So that in the sugges tion I make I would provide that this commit tee thus sworn to scrutinize and report upon these votes, doing it " then," would fulfill the Constitution if it took them a week to consider it, the two Houses remaining in joint session, by recess or otherwise, awaiting their report, just as if we were to direct the Committee on Privileges and Elections at this moment, by a resolution, to bring in a bill forthwith to pre serve the peace in the District of Columbia, if there were a great tumult here, and that we would do no other business until that were done. "What would we do? That committee would retire and we would take a recess for two hours. The two hours come; the com mittee is not ready to report ; we take a recess for two hours more, or two days, any time, within the Constitution, is it not " then?" I think "then" means "on that occasion," that is to say, it is the business presently to be per formed and the next thing to be done, and therefore covers a space of time broad enough to accomplish the purpose for which the Con stitution requires the two Houses to attend. If I am wrong in that, I hope my friend from Ohio will suggest some more limited and better definition of the word "then." Mr. HOWE. If the Senator is correct in his interpretation of " then," would not his own line of procedure be excluded by it ? If "then" commands the convention to count the vote the next thing, would it not prohibit the conven tion from referring a vote to a mixed commis sion such as he suggests ? Mr. EDMUNDS. No, sir; it would not, any more than it would prohibit the conven tion from opening the package which had been unsealed by the Presiding Officer of the Senate. Mr. HOWE. That is preliminary. That has been done before. Mr. EDMUNDS. No ; all the President of the Senate shall do is to open the package, " and the votes shall then be counted." That requires that the eye of somebody shall run over the certificate to perceive that it is the certificate of the State, that it bears its great seal, that it bears the signature of the governor, that it contains the statements which the law requires that the electors met on the day pre scribed by law and cast their votes in con formity to law. If you are to hold otherwise, then you hold that this Government is not a government of law but a government of some-, thing else. I do not think that there is any difficulty about the word "then." I think it- refers to the occasion and that it means pre cisely the same as if the Constitution had said, " On that occasion and as the business in hand, at that time, there shall be the necessary steps taken under the law to carry out this Constitu tion, such as the law may provide to ascertain what are the votes of States and how, they be ing justly compiled, the result is to be ascer tained." That is what I think it means. So I do not think that a committee, which should be sworn to take these papers as the agents of the law and the Constitution, and to make a COUNTING THE ELECTORAL VOTES. 467 sworn report upon them, on the occasion of this great and august performance, would be a violation of the Constitution, but much the more carrying out its true and perfect spirit and intent. When the proper time comes I shall offer an amendment (I do not know that it will get any votes, but the gravity of the occasion compels mo to do what I think will be my duty) which will cover the views I have expressed. Mr. THURMAtf. Mr. President, there is great force in what the Senator from Vermont says ; and the question I put to him, as to the signification he gave the word "then," was to draw from him an expression of his opinion upon the subject, and not to intimate any opin ion of my own. I might admit that the word "then" means "upon that occasion," as he suggests, or that it means "immediately there after;" that is to say, immediately after the opening of the votes, without the intervention of any other business ; that they should go on until the counting takes place. Of course what time is necessary for the counting and what agencies may be necessary in order to ascertain all that is necessary to a counting of the votes may be resorted to. I do not gain say that, always consistent, however, with the fact that the votes are to be counted forthwith after they are opened, and in the presence of the two Houses, and the result declared. Now whether under this provision of the Constitu tion the word " then " can be extended so as to cover the time which would elapse in a canvass of these votes by a committee, such as has been suggested, is a very grave question, upon which I would want to reflect before forming an opinion. I shall say no more of that, therefore, at present. But there was one branch of the remarks of the Senator from Vermont upon which I wish to say a word, because, with great respect to his opinions, I am unable to concur with him, and that is in regard to the idea expressed by him that the election of a President of the United States maybe made the subject of con test in the courts of the United States. From that view I entirely dissent. Let us see first what the judicial power is. I beg the attention of my friend from Vermont to what I am about to say. I read from the third article of the Constitution, section 1 : The judicial power of tlie United States shall be vested in one ^ Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices, etc. That simply states where the judicial power shall be vested, without any definition of the extent of that power. That is provided in the second section : SEO. 2. The judicial power shall extend to all cases, in law and equity, arising under this Consti tution, the laws of the United States, and treaties made, or which shall be made, under their author ity ; to all cases affecting embassadors, other pub lic ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States ; between a State and citizens of another State ; between citizens of differ ent States ; between citizens of the same State claim ing lands under grants of different States ; and be tween a State, or the citizens thereof, and foreign States, citizens or subjects. I read from the original Constitution. Now, as is well known, it has been decided again and again, in accordance with this language of the Constitution, that there must be a case made before the judicial power can be exer cised. It must be a case, what is known in the technical language of the law, either com mon law or equity or statute law, as a case, before the court can get any jurisdiction of the subject, for the Constitution is plain that "the judicial powers shall extend to all cases in law and equity." Hence you must have a case before the judicial power can be brought into action. That has been frequently decided by the Supreme Court. Then, coming to the grant of original juris diction to the Supreme Court, we find it pro vided for in the next paragraph of the section from which I have just read In all cases affecting embassadors, other public ministers, and consuls, and those in which a State shall be party, the Supreme Court shall have origi nal jurisdiction. Very plainly these words do not include the case of a contest for an office ; and the Su preme Court has decided definitely that you cannot add by legislation to this original juris diction conferred by the Constitution, so that you could not by law provide that there might be a contest by quo warranto, or any other form, originally begun in the Supreme Court of the United States, because no such thing is embraced by the words "cases affecting em bassadors, other public ministers, and consuls, and those in which a State shall be party," and they are the only cases in which the Supreme Court has original j urisdiction : In all the other cases before mentioned the Su preme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make. It follows from this that if an election of President or the right of an individual to the office of President can be contested in a judicial court of the United States, that contest must be begun in one of the courts inferior to the Supreme Court, and can only reach that court by Congress conferring upon it appellate juris diction from the decision of the inferior court. And furthermore, it follows, as the inferior courts have no jurisdiction whatsoever except such as Congress may confer upon them by law, that whether they should have jurisdic tion in such a case or not would depend wholly upon the will of Congress, and there fore it would be just as one Congress might decide, or another Congress might decide, whether there should be this judicial con test at all. Was it intended that the title 468 PROPOSED LEGISLATION AS TO THE MODE OF to the office of President of the United States should depend upon a contest in a court, which contest itself is wholly dependent upon the fluctuating opinions of Congress? One Congress might pass a law clothing the Su preme Court of the United States with power to entertain a quo warranto in such a contest, and just when that contest was at its height, and before any decision had been rendered upon it, the next Congress might repeal the law conferring the jurisdiction. Was any such thing as that ever intended by the framers of the Constitution? It seems to me not. It would be a very extraordinary constitution that would thus leave it to the fluctuating will of Congress whether or not in the first place there should be any judicial cognizance of the question at all, and in the next place that would allow Congress one day to provide for this judicial cognizance and the next day or the next week repeal the law that gave the court jurisdiction. Mr. EDMUNDS. May I ask the Senator a question ? Mr. THURMAN. Certainly. I wish to ar rive at the truth. Mr. EDMUNDS. Would not that same ar gument apply to all the cases of judicial juris diction arising under the Constitution and pro vided for in terms except those "afiecting em- bassadors, other public ministers and consuls, and to those in which a State shall be a party ; " and then would not the argument be just as great that Congress could not have intended that there should not be any trial of issues be tween citizens or anybody else in cases arising under the Constitution, except those over which the Supreme Court had original juris diction ? In addition to that Congress must create a Supreme Court, to begin with, and how could it be supposed the Constitution in tended to allow such suits, inasmuch as it was left for Congress to create the court to do it ? Mr. THUPvMAN. The Senator s question seems plausible, but it is not satisfactory at all. What I say is that, from the very nature of the thing, it never could have been intended that the title to the office of Chief Magistrate of this nation should be subject to any such fluctuation as that. The idea of the framers of the Constitution was that that question should be settled, settled at once and settled forever, and that it was better for the peace of the country that it should even be settled er roneously than that it should remain unsettled. It never was intended that the President should be in the exercise de facto, in virtue of the count made before the two Houses, of the office of President of the United States, and at the same time that his right to that office should be a subject of contest in the courts. And how strangely would it work! Suppose a contest of the office of President ; suppose the case that has been supposed by the Senator from Vermont, that one man is declared, in strict pursuance of the Constitu tion, to be President of the United States ; of course then he is inaugurated ; and then a con test is begun by quo warranto in a circuit court of the United States. I say nothing now about how long it would take to decide that con troversy, because if a quo warranto could be brought in one case and for one reason, it could be brought for any reason that would vitiate an election. I will suppose a quo war ranto to be begun in the circuit court ; that circuit court renders a decree ousting the Pres ident of his office ; an appeal is taken to the Supreme Court, and the Supreme Court affirms the decision. How are you going to enforce it ? It is made the duty of the President to see that the laws are faithfully executed. How are you going to enforce that ? The Supreme Court has no power to do it ; it commands no army ; it has no treasury. How can you en force a judgment of ouster against the man who is de facto President of the United States and has the army at his back? Was it ever intended by our fathers that any such state of case as that should arise ? It seems to me, cer- eainly not. But there is still another reason why the idea is wholly inadmissible. When would such a judicial contest end ? If, as I said be fore, a judicial contest may be commenced for one cause, it may be for another. Suppose that the ground of the contest should be that there was fraud in the election in the great State of New York, that there were fraudulent votes given, that men voted who were not qualified to vote, that men voted under duress, that men were bribed to vote, and the like, and that if such votes were cast out then the vote of that State, which determined the election, would have been given for the unsuccessful candidate. Suppose that is the ground of con test, then the President being defendant in such a proceeding would have the right to re criminate and say, " There may have been votes given for me by persons who were not en titled ; there may have been bribery or cor ruption or intimidation or duress on my side ; but I answer, ct tu quoque ; there was as much or more on your side;" and then the court is to go into a canvass of the election in the State of New York, and find out which set of electors received a majority of the lawful votes of that State. I do not remember at this in stant how many votes New York casts; I think it is about T00,000. Will the Senator from New York please tell me ? Mr. CONEXING. Eight hundred thou sand. Mr. THUPvMAN. Eight hundred thousand. When will you get done canvassing 800,000 votes or the half of 800,000 votes or the fourth of 800,000 votes, and who is to pay the ex pense? Such a contest on such a ground as that, the most material of all grounds, would be simply impossible. Again, suppose the question is whether or not voters were intimidated, thousands of COUNTING THE ELECTORAL VOTES. 469 them at a time, which we hear so much of in regard to Southern States, where in the world would be the end of the testimony ? When would you get it all taken ? But here comes still another reason. This matter is to be submitted to the judge, in the first place, of the circuit court. That judge may be or may not be a judge appointed by the very man whose title to the seat is con tested ; probably he would not be, and yet he might be because you would have to fix some place where the suit should be brought, and at any rate while that suit is pending every vacancy on the bench of the Supreme Court, which is ultimately to decide the case, would be filled by the very man whose title to the office of President was contested. It seems to me that these considerations abundantly show that the idea of contesting the office of Chief Magistrate of the United States in any court whatsoever is not to be entertained for a moment. I do not, there fore, agree with the Senator from Vermont that there can be any such contest. I do not think that the framers of the Constitution in tended that the title of the parsons declared in the joint assembly of the two Houses to be President should remain in doubt for a single moment, but that, on the contrary, from the time he was declared to be elected all men should respect his title, for he was de clared elected pursuant to the Constitution of the country. There might be error in decid ing who was elected; every body of men is liable to commit error ; courts are liable to commit error as well as congresses ; the decision may be in favor of the wrong man ; but the public safety and peace require that that decision, when once made, shall be final and irrevocable. Mr. FRELINGHUYSEN. It seems to me, Mr. President, that there is one idea which the Senator from Ohio has entirely .omitted, which is conclusive upon this subject ; it certainly is to my mind. I think the twelfth article of the amendment to the Constitution settles who has jurisdiction over this question. It does not do so in express terms, but it does do so by neces sary implication. It says that the President of the Senate is to open the certificates and the votes, which are then to be counted in the presence of the two Houses. That by neces sary implication to my mind gives the jurisdic tion over this subject to the two Houses ; and if the Constitution does give it to them, we cannot by law give it to the judiciary of the country. Mr. MORTON. I would suggest to my friend further that the twelfth article of the amendments provides that if no candidate re ceive a majority of all the electors appointed, the House of Representatives shall immediate ly proceed to elect by States, giving no inter val of time. Mr. FRELINGIIUYSEN. Certainly. The whole framework of the Constitution is re pugnant to the idea of its being settled by the judiciary. But while I have not made up my mind it does not seem to me that the amendment suggested by the Senator from Vermont is at all subject to a like criticism. That proposition is to have a committee ap pointed who shall instanter, if the thing is feasible I do not know that it is consider the votes, and if they report favorably on a vote it shall be accepted unless both Houses reject it, and if they report unfavorably it shall only be accepted on both Houses voting for it ; the only effect of that committee being not to take the jurisdiction away from Con gress but to change the rule of evidence, it strikes me that it may be a precautionary measure of some value. I do not know whether the Senator from Indiana has thought of that. Mr. MORTON. The committee had the benefit of having the amendment proposed by the Senator from Vermont before it, and it "was somewhat considered. The proposition of the Senator from Vermont is to intrude a joint committee of the two Houses into the consideration and determination of this ques tion, providing that that committee shall be four of each House, a joint committee of eight ; that it shall not be like a conference com mittee, the members from each branch acting separately, but that it shall compose one com mittee and that the returns of the election of electors shall be referred to that committee, and when that committee makes its report that shall stand as the voice of both Houses unless overruled by both. I think there are a num ber of very grave objections to that. In the first place it is a plan that is unknown to the system of legislation which we have, a joint committee of the two Houses having power of that kind conferred upon it. It cer tainly was not embraced in the idea that the two Houses should be present, although not as a joint convention but present each in its own capacity when those votes are counted. In the next place it involves the dangers of the present rule to a very great extent, and it in volves another danger perhaps equal to that in its character. It places the election of Presi dent and Vice-President the hands of eight men, or rather a majority of eight men, which would be five, unless their action is overruled by the two Houses. You substitute the judg ment of eight men or a majority of eight men for the judgment of the two Houses. Mr. EDMUNDS. No; we substitute that for the naked return which the Senator s bill proposes shall stand unless the two Houses reject it. I say subject the naked return to those eight men unless the two Houses reject their conclusion, which gives you a higher security. Mr. MORTON. No, sir. I think it does not give a higher security, and I think it pre sents the greatest temptation for corruption that could possibly be devised. You place the 470 PROPOSED LEGISLATION AS TO THE MODE OF election of Chief Magistrate in the hands of five men out of eight, and their action is to stand unless overruled by the joint convention of the two Houses, and the two Houses differ ing in politics may not agree jointly to over rule that action if it shall be in favor of that candidate who has a majority in one of the Houses. You have the very difficulty in volved in the present rule. Let me suppose a case. You appoint four Senators and four Representatives to constitute one committee. The House is democratic and the Senate is republican. They get together and the four members of the House and one member of the Senate agree to make a certain report throw ing out the votes of certain States, if you please, or counting improperly the votes of certain States, and then, the conclusion of those five of the eight must stand unless both Houses agree to overrule that conclusion. That is putting a majority of the joint committee of the two Houses in a position that the Constitution has never contemplated. No precedent for a thing of that kind, I venture to say, can be found, and a more dangerous contrivance cannot well be devised. It brings the question back to just where it stands now. The question would then be to get possession of the committee. If both Houses are of the same complexion, and both candidates for President are sub stantially of the same complexion, the ques tion is determined by a majority of that com mittee. If the Houses are of different politi cal complexion, the committee will be divided in precisely the same way; they will either not agree at all, or if they do agree it must be in favor of one party or the other, and that party is sure to have a House against it. It seems to me that there is nothing to be gained by this provision. It complicates the matter. It substitutes the judgment of four or five men for the judgment of the two Houses. The other plan is simpler, and it is safe, in my judgment. A return is made. The Senator from Vermont says it may be a forgery out and out. If so, that is not the return from the State ; that is not what is contemplated ; but here is a return from a State. It is opened in the presence of the two Houses. It> bears the seal of the State ; it has all the insignia of coming from the State of Vermont, if you please. As it stands, without the twenty- second joint rule, the President of the Senate opens that vote, and it must be counted. There is no help for it. There is no provision by which you can avoid counting that vote. Under the twenty-second joint rule if an ob jection is taken to the counting of the vote the two Houses separate, -and if one House refuses to overrule the objection the vote is thrown out ; Vermont is disfranchised just as Arkansas was disfranchised upon a mere tech nicality that turned out not to be founded in fact, disfranchised upon a trifle that turned out to have nothing in it; and that was only two years ago. Mr. President, where the vote of a State comes up and a mere forgery cannot be in truded ; and a mere mock electoral college can not be palmed off; it will be understood that this vote has come from the messenger sent by the State or has come in the regular way that vote ought to be counted ; the State should not be disfranchised unless both Houses agree to do so, and have a good reason for doing it. You cannot pass a simple law, without the con currence of both Houses, even of the most un important character. I ask if you will dis franchise a State or half a dozen States with out the concurrence of both Houses, and what is the advantage of intruding this committee here? You create a small body of men and you clothe them virtually with the power of determining who shall be President of the United States, a majority if you please of eight men, subject to the greatest temptation that ever a majority of eight men was subject to in this world the power to determine who shall be President and Vice-President of the United States. If men are weak, if they can be cor rupted, if temptation may overcome them, you place these men in a position where they are more exposed than they could be in any other way. It is a contrivance unknown, utterly wanting in analogy in anything common to our system of government. This bill provides that if an objection is made to an electoral vote, the two Houses shall separate and consider the question. If it is a forgery out and out, there is no doubt but that it would be objected to. We must con sider that both Houses act with some integrity, although they may be swayed by popular passion or by popular feeling to a great extent. If both Houses concur in rejecting the vote, the State is disfranchised. If they do not, then the vote is to be counted. But there is one case that is provided for in this bill, a case where, for example, there are two rival govern ments in a State or where there are two sets of electors, both certified to in the same form, where there may be an actual controversy, as there has been in some of the States, and two sets of returns are sent here. How will you settle that question ? This bill provides that when that question comes up it shall be referred to the two Houses, and that return which shall be the genuine return according to the votes of both Houses shall be counted. You cannot adopt any other rule than that in my opinion, and for that reason I think the amend ment proposed is without merit. Mr. WRIGHT. Will the Senator from In diana allow me to ask a question on the point he is now discussing ? Mr. MORTON. Certainly. Mr. WRIGHT. I understand that where there is more than one return, as is provided in the second section of this bill, and the two Houses are unable to decide which is the true return, then the implication is that the vote of the State is not to be counted. That, I under- COUNTING THE ELECTORAL VOTES. 471 stand the Senator to say, is left to implication entirely. The section does not state what shall be the effect if the two Houses are unable to agree. It says that the return from such State shall be counted which the. two Houses, acting separately, shall decide to be the true return. But suppose that they are unable to agree upon either, then what is to be the result ? I understand, by implication of course, the vote is to be rejected ; but I submit to the Senator whether that ought not to be put in such language as that it should not be left to implication. Mr. MORTON". I would have no objection to an amendment making that certain, but I think that is the implication. Mr. WRIGHT. I have no doubt that is the implication. ! suggest without using too many words that the Senator use this lan guage : " And that return from such State shall only be counted which the two Houses acting separately shall each decide ; " putting in the word " only " after " shall," and " each " before "decide." Mr. CONKLIJSTG. Why not put it after "return;" so as to read, "and that return only," etc. Mr. MORTON. I have no objection to that amendment. Mr. WRIGHT. I suggest it, then. The PRESIDING OFFICER (Mr. CABPEX- TER in the chair). The amendment will be re ported. The CHIEF CLEEK. It is proposed to amend the bill in line 7, section 2, after the word "return," by inserting the word "only," and after the word " shall" inserting " each ; " so as to read : " And that return only from such State shall be counted which the two Houses, acting separately, shall each decide to be the true and valid return." The amendment was agreed to. Mr. MORTON". At the suggestion of sev eral Senators around me, for the purpose of taking the sense of the Senate, I move that at five o clock the Senate take a recess until half- past seven for the purpose of finishing the bill. Mr. EDMUNDS. Let us finish the bill now. Mr. MORTOX. I will take the sense of the Senate. ^ The PRESIDING OFFICER. The ques tion is on the motion of the Senator from Indiana to take a recess from five to half-past seven o clock. Mr. MORTON". I made the motion at the suggestion of the Senator from Ohio [Mr. SHER MAN] more particularly. I would much prefer to go on now and finish the bill. I think it can last but a little while longer, but I am will ing to take the sense of the Senate. Mr. SHERMAN". My experience has always been that it is better at a reasonable time to take a recess and come back at half-past seven, and then we can sit for a number of hours. Mr. MORTON. I withdraw the motion. Mr. SHERMAN". Very well. The PRESIDING OFFICER. The motion is withdrawn. Mr. THURMAN. I would prefer to sit this bill out if we can come to an understanding that we shall adjourn when we are through with this bill, which I agree with the Senator from Indiana will be shortly, as far as I know, for I do not know of anybody who wishes to speak at length. But if it is meant imme diately after this bill shall be disposed of to take up another measure and proceed with its consideration to-night, then I think the sooner we take a recess the better. And therefore it all depends with me upon the question whether or not another measure is to be taken up and proceeded with to-night after the disposition of this bill. If that is the purpose of the ma jority of the Senate, then I hope the Senator from Indiana will renew the motion for a recess. Mr. EDMUNDS. After this bill is disposed of I propose to move to take up the civil-rights bill. I shall then propose, speaking as I hope with the assent of the gentlemen on this side of the Chamber, that the gentlemen opposed to the bill may have all the time until to-morrow afternoon at five o clock to discuss the bill; that then the general debate shall terminate, and if any amendments are to be offered to the bill that they may be offered and there may be the short debate of five or ten minutes in support of amendments or against them that in such cases is usually allowed, and that then the Senator in charge of the bill, myself or any other Senator who may happen to have charge at the time, shall have half an hour to close the debate, and we then vote. If that is agree able to gentlemen on the other side, all I would wish to do to-night would be to dispose of this bill and take up the other and then adjourn, if gentlemen on the other side would like to do so. Mr. THURMAN". I should not like to make any agreement of that kind, at least to-day. It is too soon to make an agreement as to when debate shall be closed on that bill. I, however, feel some little delicacy about making any sug gestion upon it. I do not expect to speak on the civil-rights bill. I have twice spoken upon it, and spoken very elaborately at different sessions of the Senate, and I do not feel dis posed to take up any time by further remarks, but would rather leave it to others who have not enjoyed the opportunity of giving their opinions. But I think it is too soon for us to come to any conclusions. Besides, I hope that when we are through with this bill, a majority of the Senate will proceed to consider a bill that it seems to me demands the attention of the Sen ate now, that must be taken up now or be lost ; I mean what is commonly called the steamboat bill. If it has been determined elsewhere that the civil-rights bill shall have precedence over everything else when this bill is disposed of, I know very well that any effort on my part to 472 PROPOSED LEGISLATION AS TO THE MODE OF get up the steamboat bill will be futile ; but in the hope that it has not been decided elsewhere that the civil-rights bill overrides everything else, I shall feel it my duty to ask the Senate after this present bill has been concluded to take up the steamboat bill. At this early stage, in fact before the civil-rights bill has been taken up at all, I do not think it will be possible for us to come to any arrangement as to when debate on it shall close. Mr. EDMUNDS. There is nothing for us, then, but to go on and do the buisiness that is before us. The PRESIDING- OFFICER. The bill is before the Senate as in Committee of the Whole. Mr. MERRIMON. Mr. President, two or three considerations have been thrown out in this debate as the real ground why this bill ought to be passed at the present session. "We are told that unless it shall pass or some bill like it shall pass at this session, the coun try will be in great danger of revolution when the time shall come to count the elec toral votes for President at the next elec tion. AVe are told that the danger is immi nent. I have been struck with the fact, how ever, that we are simply so told. No fact, no circumstance has been brought to the attention of the country which goes to show that there is more danger at this time or that there will be more clanger two years hence than there has been in the past. From the beginning of the Government down to February, 1805, there was no rule or statute prescribing how the electoral votes for President and Vice-Presi dent should be counted. During all those years, in times of high party excitement, when party distinctions were as marked as they are now, no danger of this sort ever came on the country, nor was it seriously apprehended at any time that there would be a revolution. In 1865 the twenty-second joint rule was adopt ed. What particular considerations moved Congress to adopt that rule I do not know. The political party then in power and adminis tering the Government was the same that ad ministers the Government to-day. That rule adopted by that party having such majority provided that No question shall be decided affirmatively and no vote objected to shall be counted except by the con current votes of the two Houses. Then no vote was to be counted except by the concurrent action of the two Houses. Now suddenly it is proposed to abolish this rule, to pass a statute that is to govern the manner of counting the electoral votes for President and Vice-President, and to reverse this rule, where by it is to be provided that no vote shall be re jected for President and Vice-President unless it shall be done by the concurrent vote of both Houses. I cannot understand, I have not been told anything that gives me to understand, why there is a necessity, or what that necessity is .if there is any, for this sudden change. Mr. EDMUNDS. The Senator ought to re member that this is not a sudden change. This topic has been under discussion almost every year since I have had the honor to be here, and it is a misfortune that it has been delayed so long in reaching some satisfactory conclusion. Mr. MERRIMON. But we are told now that it is suddenly very important to pass it. Mr. EDMUNDS. Not suddenly. Mr. MERRIMON. No graver question could come before the Senate. It involves constitu tional considerations of the most serious and complicated character. Right at the heel of the session, when there is no time for con sideration or proper deliberation, we are called upon to pass this very delicate bill and touch ing a very delicate power to be exercised by Congress. I think that no good reason has been assigned for this precipitancy, and I can conceive of none except this, that the Govern ment is about to change hands politically. In the next Congress there will be a very large majority of democrats in the lower branch of Congress ; there will be a republican majority in the Senate, and I will not say it is so, but it looks very much as if the purpose was to create a check, a negative upon the democratic House. If such consideration is a moving consideration to pass this bill in this precipitate manner, I maintain that it is insulting to the democratic party, to the country, and to the American people. They are as patriotic as the republi can party. They are no more given to revolu tion and to doing that which is unjust than any other party in the country. No considera tion has been brought forward, I maintain none can be brought forward, which goes to show that the democratic party will be less dutiful to the American people, less dutiful to their obligations to the Constitution, when the time shall come to count the electoral vote for President and Vice-President again, than they have been in the past or than any party has been in the past. I believe that the Forty- fourth Congress will be as honest a Congress as this, and that in the exercise of the duties that will devolve on the Congress at that time in counting the electoral votes, a patriotic spirit will move the Congress as it has done in the past, and there will be no greater danger of revolution then than there has been in the past. At all events no reason has been as signed, no fact has been stated, no considera tion has been brought to the attention of the Senate, going to show that there will be a different state of feeling nt that time from what has prevailed in the past. There is then no necessity for the precipitancy that is mani fested in considering this bill and in passing it right at the close of the session, when other matters are pressing upon us, when appropria tion bills ought to be under consideration to the end that the interests of the Government may be carried on in the ordinary lawful way. Mr. EDMUNDS. There are no appropria tion bills before us. COUNTING THE ELECTORAL VOTES. 473 Mr. MERRIMON. If there are none there ought to be some, and there would be^if it were not for the bringing forward of political measures. Mr. LOGAN. The Senator asked for a sug gestion as to the reason of this. Will ho allow me to show him one ? Mr. MERRIMON. Certainly. Mr. LOGAN. He says this measure grows out of the fact that the next House is demo cratic. He will find by reading the rule under which we now vote for President And no question shall be decided affirmatively and no vote objected to shall be counted except by tbe concurrent votes of the two Houses. Now, if he is putting it on tne ground that we desire political advantage, the old rule is the one we could act under, because, having a majority in the Senate, we could prevent the vote of any State being counted by just saying it shall not be counted. We cannot do that under this law unless by the consent of your democratic House. If we acted on political grounds, we would want the rule as it stands, not this bill. Mr. MERRIMON. It might operate either way. It might operate to reject the vote. Mr. LOGAN. No, sir ; I beg your pardon. If you talk about dishonesty, I do not attribute any dishonesty to any House, or any political trick. Mr. MERRIMON. I did not say anything about that. Mr. LOGAN. There is no political trickery in a bill that is discussed and understood ; but if we desired political advantage, we have it in the present rule; and it is to prevent that that the bill is presented to the Senate requiring that both Houses must concur to reject a vote. That is the very object. The bill is taking an advantage away from ourselves that we now have under the rule. Mr. MERRIMON. So far as that goes, it is about as much one way as the other. Mr. LOGAN. Not by any means ; because the vote is bound to be counted, unless both Houses concur in rejecting it. Hence the other House may get a count of the vote without the assent of ours. Both Houses have to concur under this bill to exclude a vote ; otherwise, under the rule, one House could exclude a vote. Mr. MERRIMON. In order to answer the Senator from Illinois intelligibly, I will read the provision in the bill touching this matter. The bill provides : And no electoral vote or votes from any State to the counting of which objections have been made shall be rejected, except by the affirmative vote of the two Houses. Now, suppose that in the next counting of \ electoral votes such electoral votes shall come up to be counted as came up from the State of Louisiana two years ago. Although, as I con tend, that electoral vote was unlawful and ought not to be counted at all, yet that vote must be counted unless both branches of Con gress shall concur in rejecting it. Am I not correct in that ? Mr. LOGAN. Certainly you are correct that a vote cannot be rejected under this bill except by the concurrence of both Houses. You are going on the presumption that one House or the other is going to be dishonest and will object to a vote anyhow. We go upon the presumption that men will act honestly; and inasmuch as both Houses have to count the vote and assemble together to count the vote, therefore both Houses ought to determine when a vote is not correct. Is not that the rule ia legislation? What do you convene both Houses for? Mr. MERRIMON. If that is correct, why was not that the rule before ? Mr. LOGAN. We want to correct a rule that I consider incorrect. Mr. MERRIMON. Why not alter the rule ? Why adopt this elaborate statute ? Mr. LOGAN. This does alter the rule. Mr. MERRIMON. It is true this alters the rule, but it is done by statute and not by a change of the rule. Mr. LOGAN. There is no difference be tween a statute and a rule, so far as the effect goes. Mr. MERRIMON. There is a very wide difference between a statute and a rule. Mr. LOGAN. Not at all, so far as Con gress is concerned. Mr. MERRIMON. The same reasons which existed at the time the rule was adopted exist to-day ; and the point I was making when the Senator from Illinois interrupted me was that no sufficient reason has been brought forward in this debate to justify the precipitancy with which this measure is being pressed through Congress. The Government has lasted nearly a century without it ; and every one must con cede, all have conceded indeed, that the diffi culty to be solved is one of great importance, that requires the highest and gravest delibera tion. It is a statute that ought to be passed into law with great care, and it ought not to be passed until the whole matter is thoroughly ventilated in both branches of Congress, and every one must concede that there is no op portunity to do that now. We are to pass this bill through the Senate after a debate of three or four hours, when it ought to engage the attention of the Senate, it seems to me, as many days. Mr. LOGAN. It has engaged the Senate for years, and the House too. Mr. MERIMON. Not this Senate. Mr. LOGAN. A proposition of this kind has been before committees for years. It has been before the committee on which I am serving, the Committee on Privileges and Elections, ever since I have been in the Senate some proposition or other of this kind. Mr. MERRIMON. But, Mr. President, to Dass over that, in my judgment Congress has 474 PROPOSED LEGISLATION AS TO THE MODE OF power to pass an act regulating the manner of comparing the electoral vote for President and Vice-President, and that power is derived from two clauses in the Constitution. The first is this Mr. LOGAN. I do not want to disturb the Senator, but there is one point I should like to suggest to him. He says there has been no reason given for what he calls this precipitate action on the part of the Senate. He says we got on for many years without any rule of this kind. That is true. I ask him if he believes had Mr. Greeley been living at the time of the counting of the last vote, and had the votes of Louisiana, of Arkansas, and of Georgia been sufficient to turn the election on either side under this rule does he believe we could have got through without a revolution ? Mr. MERRIMON. Yes, sir; I do. I think the republican party would have decided that General Grant was elected, and I have too much confidence in the patriotism of the demo cratic party and the democratic people of this country to believe of them that they would revolutionize the country and destroy the whole system of government because that de cision had been made by a power authorized to do it. Mr. LOGAN. Now I will ask the Senator suppose it had been decided on the other side, what does he think the result would have been? Mr. MERRIMON. I think the republican people of the Union would have submitted to it. Mr. LOGAN. Whether they thought it was correct or not ? Mr. MERRIMON. Yes, sir. Mr. LOGAN. You say the democrats would have submitted. Suppose these States had voted for Mr. Greeley fairly, and there was no reason why it could be said that the result of their vote was unfair, and those States gave Mr. Greeley the majority, but by throwing all these States out we elected General Grant by one vote ; do you believe then if the republican party had thrown out those States and elected Grant by one vote, while if they had been fair ly counted Mr. Greeley would have been elect ed, the democratic party would in that case have submitted ? Mr. MERRIMON. ^ In the first place I do not think the republican party would do that ; but having the power to do that, being charged by the Constitution of the country with the power to do it, if they had made the decision, I think the American people would have sub mitted to it. Mr. LOGAN. You do? Mr. MERRIMON. I do. Mr. LOGAN. Our past experience does not prove that to me. Mr. MERRIMON. And further than that, I believe it is characteristic of the American people that they submit to a decision properly made by the proper authority however much they may condemn its justice, however erro neous it may be, just as they submit to a deci sion made by a court having competent juris diction of a question to decide it. If the Supreme Court having jurisdiction of a ques tion here before it were to make a decision that was distasteful to four-fifths or nine-tenths of the American people, I believe they would sub mit to that decision because the proper consti tutional tribunal had made the decision ; and just so I believe that if the republican party in 1873 had improperly and erroneously decided that General Grant was elected in comparing the electoral vote, however much they might have condemned it, however erroneous, false, fraud ulent it might have been, Congress having the power to decide that question and having decided it, the American people would have submitted to it; but they would have con demned the act at the ballot-box. When the next election took place the administration would not have received the cordial, support of the American people ; it would have been condemned, the whole party would have gone down in history, condemned, with the seal of condemnation npon it ; but the people would have submitted to it. If I am not correct in this view, if that revolutionary spirit prevails in the American people, that mobocratic spirit which is attributed to them, free government cannot last. If the people are not honest, if they are not willing to submit to their tribu nals, if they are not willing to submit to the Constitution and live under it, then we have no government ; might is right, and despotism is triumphant in this country. I do not be lieve any such doctrine, and when gentlemen make such suggestions with the view to push this bill through Congress in such a hurry they fail to alarm my fears. I believe I have confi dence enough in the republican party of the nation to believe that if, when the next electo ral vote is counted, the Congress shall ascertain that a democratic President shall have been elected, the republicans of this country will sub mit to it. If they do not do it they are not fit to be Americans, and they are less Americans than I believe they are. But, sir, to go on with the point I was on when the Senator interrupted me, I say I be lieve Congress has power to pass a law regu lating the manner of counting the electoral votes for President and Vice-President, and that power is conferred by two provisions con tained in the Constitution. The first is in these words: The electors shall meet in their respective States and vote by ballot for President and Vice-President, one, of whom, at least, shall not be an inhabitant of the same State with themselves ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-Pres ident, and they shall make distinct lists of all per sons voted, for as President, and of all persons voted for as Vice-President, and of the number of votes for each ; which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the President of the Sen- COUNTING THE ELECTORAL VOTES. ate. The President of the Senate shall, in the pres ence of the Senate and House of "Representatives, open all the certificates, and the votes shall then be counted ; the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of elec tors appointed ; and if no person have such major ity, then from the persons having the highest num bers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President, etc. That is as far as it is material to read for my purpose. Now I maintain that if there were no other words in the Constitution con ferring power upon Congress, these are suffi cient. When the Constitution provides that the certificates of election shall be sent to the President of the Senate, through him Congress gets jurisdiction of the electoral vote and in the particular way prescribed in the Constitu tion. What is that? That the Senate and House of Representatives shall come together in joint assemblage ; there the President of the Senate shall open all the certificates, ex vi termini ; the vote must be counted. The vote must be counted by the Congress; the vote must be counted by the Congress in joint as semblage ; it must be the act of this joint as semblage ; and I maintain that, touching the counting of the vote, every question that shall arise must be decided by the Congress, not as two separate bodies, but as the Congress sit ting in joint assembly. Mr. MORTON. If I understand the Sen ator s position, it is this : that when the vote is counted the two Houses come together and act as one body, and that each Senator and each Representative shall have one vote. Mr. MERRIMON. Yes, sir ; that is it ex actly. Mr. MORTON. And that they must settle all questions ? Mr. MERRIMON. They must settle all ques tions. It is done after the manner in which United States Senators are elected by the sev eral State Legislatures. The act of Congress prescribes how the Senators shall be elected. The two Houses of the Legislature vote on the first day, separately. On the second day the two Houses go into joint assemblage, and as a whole, as a joint body, they ballot for a United States Senator, and continue to ballot until one shall be elected. They vote as one body ; the two branches of the Legislature are in joint assemblage; and the assemblage cast their votes as one body for United States Senator. I maintain that by all rules of constitutional construction, of legal construction, the two Houses met for the purpose of comparing the electoral votes for President and Vice-Presi dent act as one body. They act in their joint capacity, and all questions that may arise touch ing the counting of the votes must be decided by that joint body. Why, sir, let me ask this : When a question is raised, as it may be raised under the twenty-second joint rule, and it may be raised under this bill if it shall become a 4r 5 C. law, where is the the two bodies separating, into its Chamber here and deciding a question here in this body ? I respectfully ask Senators who are supporting this bill, to show me any constitutional authority for that. Show me any rule of constitutional construction, or of legal construction which warrants the joint body in separating and going to their respec tive Chambers and deciding a question. Why, sir, in that case the matter is decided by the Senate as a Senate in its own Chamber, sepa rate and apart from the other branch of Con gress. The House decides it as a body sepa rate and apart from the Senate. It cannot be pretended that there is one word in the Con stitution which authorizes the two bodies thus to separate and to make a decision touching that matter. It was contemplated by the Con stitution that the two bodies should go into joint session and for a particular purpose, to exer cise a power that was conferred upon them as a joint body, and to decide all questions touch ing the matter they had jurisdiction of as a joint body, as such joint body. I say again, that I respectfully ask any Sen ator who can do so, to point me to a single word in the Constitution that authorizes the Senate when a question shall be raised under the twenty-second joint rule or under this bill if it shall become a law, to come back into the Senate Chamber, and here, in its capacity as a Senate, separate and apart from the House of Representatives, decide a question and then go back into joint session again. They are not exercising a power conferred by the Constitu tion when they do that, and I maintain, there fore, that Congress has power to pass a law which shall regulate the action and the pro ceedings had by that joint assemblage in com paring the electoral vote for President and Vice- President. This bill, if it shall pass, in so far as it provides that when a question is raised there touching the counting of the vote, the Senate shall come back into its Chamber and decide that question, in my judgment is abso lutely null and void ; it is inoperative, for no such power is conferred by the Constitution. There is another clause that authorizes Con gress to pass this act which I beg to read. I refer to the clause authorizing Congress To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Consti tution in the Government of the United States, or in any department or officer thereof. That clause of the Constitution is in aid of the clause which I have been endeavoring to elucidate. It authorizes Congress to pass all laws necessary to execute every provision con tained in the twelfth article of amendments, but it authorizes Congress to pass all laws necessary to execute the twelfth article consist ently with the power conferred upon Congress in the twelfth article. By the twelfth article the electoral vote for President and Vice-Pres- 476 PROPOSED LEGISLATION AS TO THE MODE OF ident must be counted by what body ? By the Senate ? No. By the House ? No. But it must be counted by the Senate and the House sitting in the Chamber of the House of Repre sentatives as a joint body. Then, if they must count the vote as a joint body, how can it be pretended that the two branches of Congress shall separate to decide questions essential to that count? I maintain that it is not only illogical but manifestly in the face of the Con stitution. But, sir, I want to say to the Senate that for one I have not studied this subject as thorough ly as I should desire to do. It is a grave ques tion, one of great moment, one that ought to be decided after due deliberation and long dis cussion. In my judgment, it ought to be post poned until the next Congress, and then I should be very glad if the Senator from Indiana would bring the question forward early in the session, so that we might have ample time to examine it and debate it thoroughly, and pass a law, without reference to party considera tions, one way or the other, and a law that would become as perpetual as the Constitution itself, and ward off any possible danger. But, sir, I repeat what I said a moment ago, that I do not believe there is danger of revolu tion ; I do not believe that revolution is immi nent. I have too much confidence in the American people of all parties to believe that they are going to destroy their Government because Congress, in the exercise of a power confided to it, shall decide that one man or an other has been elected President. My main object in rising was to call atten tion to the point I have made that Congress must sit as a joint body in counting the electo ral vote and that their decisions made touching the counting of that electoral vote must be made as a joint body and in no other way. Mr. HAMILTON, of Maryland. Mr. Presi dent, this proposition gives trouble in coming to a correct or even a satisfactory conclusion. My trouble is not in regard so much to this bill, or to the present joint rule, or to the amendment offered by the Senator from Ver mont ; but it goes up higher than that ; it goes to the question of our constitutional power to pass any measure at all upon the subject. "We all know, and I fully appreciate the fact, that there is danger, great danger, lurking in the existing joint rule, and no one can doubt but that there is equal danger in the proposition now under consideration ; and therefore my earnest desire was that we might have a con stitutional amendment in order to obviate the difficulties that we necessarily incur in attempt ing to legislate upon the subject at all. As soon as we begin to legislate we get into trouble ; and the difficulty is that the moment we undertake to give a direction to the Consti tution apart from its word and spirit and then enact laws or rules to suit, we hardly know where to begin and where to end. If we once begin to legislate on this subject, we hardly know where to stop. I care not what exigency brought into being the twenty-second joint rule ; it is a most extraordinary rule for any exigency, and the bill now before us is not less extraordinary in its general import. It pro poses to supply alleged defects or omissions in the Constitution, when it cannot cover the whole question nor apply the general and effec tive remedy. The honorable Senator from Vermont has offered an amendment that in some respects is really more reasonable and probably would tend to secure better results than either the twenty-second-joint rule or the bill now before the Senate ; and yet when we come to look at that proposition, it is equally objectionable as a mode of safety from tumult or trouble, when we observe that the Constitution is so emphatic in respect to the power of both Houses when in joint convention, in respect to the power of both Houses when they meet in joint conven tion, as they are directed to do, and when in their presence the certificates shall be opened and then counted. The only provision of the Constitution justi fying any legislation upon this subject is this : The President of the Senate shall, in presence of tht Senate and House of Representatives, open all the cer tificates, and the vote shall then be counted. This is the only ground for legislation of any kind. It is very narrow indeed. I listened to the honorable Senator from Vermont with a great deal of interest. He undertook to expand the word " then " to a very great extent, and so as to cover very con siderable legislation.. I very readily recognized that he could technically, according to his reasoning, expand or extend that word to cov er almost an infinity of time, a whole session of Congress for illustration. But even extend ing it as far as he would, to what results do we come under his proposition? "What can we inquire into during all that extended time? The Constitution is emphatic that the votes shall be counted in the presence of both Cham bers. "What does the amendment of the Sena tor from Vermont propose to do ? To appoint a joint committee, and they are to inquire into something and then report? AVhat is to be the reach of their power ? Are they to inquire simply as to what arises on the face of the cer tificate only? How far is .the inquiry to ex tend, whether it be made by a joint committee, or by the tellers, or by the two Houses sepa rated ? Is it merely and purely to look at the certificates to see whether they are properly executed and have been duly attested? Is that the limit of the power, I ask, or can other questions, as to the appointment of electors, or in the case of the return of two or more votes of electors to ascertain the rightful set, and then considering this to go back and behind all for that purpose ? There is no such authority given. There is nothing provided if t^ should be a contest as to electors. There is not an allusion to a case of the kind. The COUNTING THE ELECTORAL VOTES. 477 duty of the President of the Senate and of the two Houses is as simple as words can make it. And can we upon these words ingraft a whole system for contest and ascertainment ? The framers of the Constitution evidently never contemplated any such things as have transpired within the last eight or ten years. They took it for granted that the States would appoint electors, and in whatever manner it suited each State ; that they would cast their votes, and that that was the end of their func tions and of the action of the State, and that, as they were sovereign bodies in this respect, they would see to it that this important act should not be left in doubt, or in any manner wanting in legal validity, and that, each State so speaking, the only simple duty was to re ceive the certificates, open them, and count the votes as given by the electors. The States were given the power to appoint the electors in any way they pleased, and it was supposed that the power would be so exercised, and so conclusively exercised, that all that in any way could follow would be the simple count in the presence of both Houses. It was contemplated by the Constitution that this most important iaot was final upon the part of the State, and placed by its own action beyond cavil or con troversy. What is contemplated in the inquiry pro- | posed by referring the electoral votes either to ja committee appointed under the amendment of ithe Senator from Vermont or to the tellers to ibe examined in the presence of both Houses or by the Houses separately in case objection is i made what have we to be examined? Can iwe go back and inquire into the manner in : which the electoral votes were cast? Can we jgo back and inquire into the manner in which Ithe electors were appointed ? Can we go back to ascertain whether they were legally ap- ipointed or elected by the people ? Into what inquiry in either aspect of the case are we Sallowed to go? I think it must be conceded that if under this clause of the Constitution when the two Houses are assembled together if or that purpose the votes must then and there jbe counted, it was intended that there should be no inquiry. If, however, we are permitted to inquire, then how is it to be done? In separate Houses or as a joint body? We meet as a joint body. The votes can only be counted Jin our presence. Shall we infer therefore that Iwe have in separate bodies the right to inves tigate, and reject? Is each House to examine jinto the manner in which the electors were ap- jpointed or how they discharged their duty? Is each House to investigate separately as to [whether electors have been appointed or how [appointed, or which are the rightful ones in cases of two or more sets of electors? Can jthis all be done as the Constitution now ex ists? Can it be done under the phrase "the votes shall then be counted?" Can each (House, acting separately, under that phrase enter into an investigation, summon witnesses, and determine controversies about votes ? Can this be done in either a joint or in separate as sembly or before the committee that is to be appointed under the amendment of the Senator from Vermont? No, sir. I think not; the power is not broad enough. In fact we are but the witnesses of an act. We are summoned to see the certificates opened and the votes then to be counted. As to the latter we may be a ministerial body, in the performance of a single duty, the counting of the votes as the certifi cates so opened may disclose. Beyond that our duty and our power cease. "The votes shall then be counted." I do not care how wide, how expanded, and how extended you make the word "then," you can not have a contest in its real sense before you under that word. You are limited to one sim ple inquiry, and that is as to what the certifi cate may show when it is opened ; if there be no votes shown as cast by the certificate that is the end of it, and the vote of the State is lost. We cannot go back ; there can be nothing behind it ; if there be error that error remains, not to be corrected. In those simple words there is no time for nor chance for correction. If there be two sets of returns, one must be right and the other wrong, or both must be wrong both cannot be right, for with that you would have too many electors. But how inquire, how contest, how investigate? If at all, it ought to be done in joint convention or assembly, for the count is a high act and to be done in the presence of a united body. It would be anomalous to count a result in two separate bodies, it being an act that cannot admit of separation. But the prominent fact is that the framers never contemplated that there could be a contest, that there could be duplicate re turns, and accordingly made no provision for it. In the bill now before us you allow either House to except to the count of electoral votes where there be two returns made from a State. What are you to do then ? The two Houses are to separate and to determine the question, and in case they disagree the vote shall not bo counted. Have you that power? I think not. But what are you to do in such a case ? Vote blindly to receive or reject ? If not, -what kind of an examination can you have ? You have two sets of electoral vote, two returns laid before you, each set apparently duly certi fied. Are you then to inquire into the fact which set of electors are entitled to cast the votes ? And this involves the inquiry further, which set was appointed ; and if elected by the people, which did receive a majority of the votes of the people ? Take the case of Louis iana, where two sets of electors were returned at the last election ; how is it to be deter mined ? It was not then, nor can you frame a law under this language of the Constitution that can at all be satisfactory. Can there be a contest ? Is there any provision for it ? When these two sets of electoral votes are before us, 478 PROPOSED LEGISLATION AS TO THE MODE OF can we summon witnesses or have depositions taken for the purpose of showing which set of electors received a majority of the votes cast in the State, or whether they were properly appointed ? That would not be then upon that occasion counting the votes. I do not think the language of the Constitution covers such a contested election, and yet the anomaly is this, that though we have not the right thus to examine into the fact whether certain elec tors were really and in fact elected hy the people or not, we are required by this bill to separate and determine that question and all other questions that may arise as to such votes or certificates. And a difference is to settle the question as to the vote of the State two separate tribunals deciding with equal power upon a fact they are required, if required at all, to see solved in joint meeting. I differ also with the Senator from Vermont in the idea that the district court of the United States can determine upon a quo warranto who is President of the United States. I deny it. True we are limited in the count of elec toral votes ; our power being very narrow, as I have before said ; yet when the votes are counted in the presence of both Houses as directed by the Constitution, it is conclusive upon the fact, and no earthly tribunal can re view this ascertainment. Whenever it is as certained and declared in the presence of both branches of Congress that such and such a person has received a majority of the electoral votes, that ends the subject so far as all judi cial tribunals in this land are concerned. Our action here, though thus limited in our powers, though thus not permitted to go into a contest and to inquire whether the electors have been appointed properly or improperly, whether they have been elected by the people or not, if counted is conclusive upon all other tribunals. It is the decision of a tribunal specially ap pointed to see the count made. The count is all there that is to be made ; but that being made, no tribunal can go behind it. Adopt the principle here contended for, and there is danger that you .will make this an arena for all kinds of election tumults and dis turbances. We cannot attend to any such thing. It is evident from this limited power conferred by the Constitution, that it was never contemplated by the framers of it that there would be any trouble, because with the ap pointment of the electors the duties of the States ended, and ours was only to count their votes. The framers never apprehended the troubles which have been upon us for the past eight or ten years. We never had any before. But, this upon us, would it not be well for us to provide in time by a constitutional amend ment for the troubles that we will in vain at tempt to avert by legislation ? I do not see, then, the necessity for this legis lation. I know that if any are disposed to give trouble now, they can make it under the twenty- second joint rule, and so they can under this bill. If there is a determination to revolu tionize, if there is a determination to over throw and subvert the will of the people by revolutionary or arbitrary action, it can be done under the present joint rule, or under the bill proposed by the fSenator from Indiana. My trouble lies not with the details of the rule or of the bill, but in the fact that neither of them is authorized by the Constitution of the United States, and neither of them provides adequate safety. My hope is that the Senate will recommit this subject, pass it by for the present in the hope that as things begin to look now, the people of the country are not ready for disturbances, and that right measurably would be done at the next presidential elec tion, and that in the mean time we could do by a constitutional amendment what would obviate the difficulties which now surround the subject, and that would so plainly indicate the manner in which the great question of the election of a President of the United States should be determined, so that there could be no future trouble in having it settled in a fixed manner, not to be tampered with by legisla tion and that would be acceptable to the people. That was my desire ; and therefore the more I read of this bill, the more I read the twenty- second joint rule, the more concern it gives me, because I see the utter want of constitutional power to determine the election of President of the United States by any rules or laws that we may make outside of the counting of the certificates as they are handed by the Vice- President to the tellers, and counted in the presence of both Houses of Congress. From the year 1793 down to 1865, the Vice-Presi- dent always discharged that duty unexception- ably. He handed the certificates to the tellers and the seals were broken, and the contents proclaimed in the presence of both Houses and the votes counted. All other questions, save only the count, were preterrnitted. In fact, and in truth, when we come to consider the matter, that was infinitely preferable to thej danger of undertaking to exclude the votes of , States by raising objection probably to some! technical defects that might appear on the face of the papers, and then by separate action ex- ( elude the count. In fact when you look at the twenty-second joint rule and when you look at the bill pro posed by the Senator from Indiana, and also at the amendment proposed by the Senator from Vermont, you see at last that they all are confined to an abstract, dry legal question whether the returns upon their face are right; for there is no machinery provided for any kind of an investigation beyond ; no details in the bill or amendment by which truth as to any fact may be ascertained, but everything is left to the papers, or certificates, and it may be to our own personal knowledge of events either historical or personal. Instead, there fore, of making trouble by indifferent and inefficient legislation, we should direct our COUNTING THE ELECTORAL VOTES. 479 thoughts to an amendment of the Constitution by which ample provision could be made for manifest omissions rather say not omissions, but for the manifest changes of times which have taken place since the adoption of the Constitution and the present. Mr. SAULS BURY. Mr. President, the bill under consideration proposes "to provide for and regulate the mode of counting votes for President and Vice-President, and the decision of questions arising thereon." In my opinion the Constitution of the United States provides the only mode for counting those votes, and I have very grave doubt as to whether any law enacted on that subject can have any force, es pecially if it conflict at all with what has been the practice under the constitutional provision. As between the twenty-second joint rule and the bill now before the Senate, I am not satisfied that the bill under discussion is any better in its effect or will prove of more advan tage than the twenty-second joint rule; but one question with mo is as to the power of Congress to determine anything about this matter. The Constitution has fixed how the votes shall be counted. The two Houses are to meet in joint convention and the President of the Senate, in the presence of the two Houses, is to open, according to the constitu tional requirement, the votes of the several States, which are then to be counted. I con cur in the view expressed by the Senator from Maryland [Mr. HAMILTON-] that it must be done at that time, and that the result then arrived at and then announced determines this whole question. I am not satisfied, in the first place, of the power of Congress to enact any valid law on the subject, and I think the best thing that could now be done would be to repeal the twenty- second joint rule and leave the question just where the framers of the Constitution left it. I do not apprehend that we should have much dif ficulty under the constitutional provision ; we have lived under it up to the present time ; we never did have any difficulty. Even in 1861, when, perhaps, there was as much excitement in the country as there ever had been over the result of any presidential election, with a Vice- President in the chair who was himself a can- date for the Presidency, the vote for Mr. Lin coln was counted and the country acquiesced in the fairness of the result. I apprehend that if we repeal the twenty-second joint rule and leave ^this whole question just where the Con stitution leaves it, we shall never have any difficulty in this country in counting and ascer taining the result of a Presidential election. For this reason I wish I could induce my friend from Indiana to let this bill go over for the present, or to amend the present bill so as simply to repeal the twenty-second joint rule. I would concur in that. At present I see no safety under the present bill or under the joint rule, and therefore I think it better to leave the question where the Constitution left it. Mr. MEKRIMON". Mr. President, I wish to add a few words to what I said a while ago touching the manner in which an election for President and Vice-President of the United States may be contested. For one I do not believe that Congress or any national authority has any right to contest the election of Presi dent and Vice-President. The American peo ple do not elect the President as a mass. They do not elect the President as the American people. They elect the President as the peo ple of the several States and exercising their rights as citizens of the several States. The manner of the election of President is one of those provisions in the Constitution which recognize, and not only recognize but provide for and uphold, the autonomy of the States. The people of the States as citizens of those States, and as making up the people of the States, elect a President. The Constitution provides in these words : Each State shall appoint, in such manner as the Legislature thereof shall direct, a number of electors equal to the whole number of Senators and Repre sentatives to which the State may be entitled in the Congress ; but no Senator or Representative, or per son holding an office of trust or profit under the United States, shall be appointed an elector. Thus it appears that the people do not vote for President directly, they vote to elect a certain number of electors who assemble at a time and place fixed by law to elect the Presi dent ; and therefore if the people of a State should decline to vote for President there is no power to compel them to do it. The Fed eral Government is not so much interested in having a State vote as the State itself is. If a State shall see fit to decline to vote for Presi dent at all, there is no power to compel the people of that State to vote for President, nor is there any power conferred on Congress to compel the people of the State to have an elec tion for President at all. It is a matter within the control of the people of the State through their Legislature. The Legislature may pro vide that the people may elect a certain num ber of electors to vote for President and Vice- President. The Legislature may provide that they themselves shall elect the electors. They may provide that the governor may appoint them. They may provide that the supreme court may appoint or the chief justice may ap point them, or they may provide so many ap- pointers to appoint electors to cast the vote of the State for President and Vice-President. The whole matter is within the jurisdiction of the States, each for itself. It has been asked, suppose there are great frauds practised in the States in an election of President and Vice-President, as is sometimes the case in that election as in other elections. There is no power conferred in the Constitution on the national authority to contest the elec tion in that behalf. The authority remains in the State to provide for that. It is true that in the history of this Government it does not 480 PROPOSED LEGISLATION AS TO THE MODE OF appear that any State ever has provided for a contest of the election of electors of President and A 7 ice-President ; but it does not follow, therefore, that the State might not have done it. A good many powers are conferred on va rious authorities by the Constitution that have never yet been exercised, and I do not think I go too far when I say that the American people and the Congress of the Union and the author ities of* the Union have to learn a good many things yet about the Constitution. It is an in strument that is not yet fully comprehended by the most learned men in the land. I maintain that it is perfectly competent un der the Constitution for the Legislatures of the several States to provide for contesting the election for President and Vice-President, in order to ascertain whether the people are di rected to eject, whether A B, D, and E F were elected electors by the people according to law. They might provide that the Legisla ture should contest it and that the contest should be decided by the Legislatures of the several States. They might provide that the Supreme Court should decide it. They might provide that a commission created by a law passed by the Legislature should determine whether the election was fairly held, and who were elected electors. So if the Legislature elected, they might by law provide for ascer taining whether the electors were fairly elected by the Legislature. So if the Legislature should confer power on the governor to appoint, there might be a tribunal constituted to contest the matter and see whether or not the governor had fairly appointed so many men to be electors to vote for President and Vice-President. It is a matter with which the Federal authori ties, I repeat, have no concern whatsoever. It is a, matter with the State, and when it is de termined by the State, Congress cannot inquire into the election any more than Congress, when the people of a State have voted for governor and the proper authorities have de cided that he was elected governor, can go on and determine that question again. I suppose no one will seriously pretend that if an elec tion is held in New York, and the proper authorities of New York ascertain that A B has been elected, Congress may inquire into that matter and ascertain whether the election was conducted fairly, whether he was in fact elected. That is a matter that pertains to the State, of which the State authorities alone have jurisdiction, and of which the Federal authority has no jurisdiction whatever. So in the election of President and Vice- President the election, so far as the State is concerned, is exclusively within the jurisdic tion of the several States. I admit that the States have not heretofore provided a tribunal for such contests, but that does not prove that they might not have so provided. I believe they could have so provided. I believe that it is important that they should so provide, that every State should pass a statute regulating the manner and providing a tribunal for contest ing the election of electors of President and Vice-President, just as they have a tribunal before which to contest the election of a gov ernor or any other State officer ; and therefore that difficulty is out of the way. The only question that ever can arise before Congress must arise before it in joint session, and the Congress in joint session, in exercising the powers conferred upon it as a joint body, can only determine whether a vote that is sent to the President of the Senate is the vote that was ascertained by the authorities of the State, and when that is ascertained that is the end of the controversy. If the certificate of election was so informal that it did not show that there was an election. Congress would have the power to say "it does not appear that any election was held in North Carolina," but Con gress has no power to say that the election held for electors of President and Vice-Presi dent in North Carolina was fraudulent, that democratic electors ought to have been elected whereas the returns show that republican elec tors were elected, or vice versa. When the State authorities have determined the matter, there is the end of the controversy, and Con gress cannot inquire into it. The election of electors of President by the people of the State or by the authorities of the State as provided by the Constitution is a matter of greater moment to the State than to the Federal Gov ernment. It is a matter with them. If they choose to elect, they have the privilege and the right to do it. If they choose to abstain from voting, there is no Federal authority or power that can compel them to vote. The bill was reported to the Senate as amended, and the amendments were con curred in. Mr. EDMUNDS. I feel it to be my duty to move to amend the bill now by striking out all after the enacting clause and inserting what I send to the Chair. The Secretary read the words proposed to be inserted, as follows : That within not more than ten and not less than three days next prior to the last Monday in January next following any election for President or Vice- President, the Senate shall appoint four Senators and the House of Representatives shall appoint four members, and such eight persons shall constitute a Committee upon Elections of President and Vice- President. A majority of said committee shall "be a quorum thereof, and the concurrence of such majority shall be necessary in any action thereof. Each mem ber of such committee shall, before he enters upon the duties by this act imposed on such committee, take and subscribe the following oath: "I, , do solemnly swear that I will faithfully and impartially perform all the duties mi- posed upon me by the act entitled An act to pi-ovide for and regulate the counting of votes for President and Yice-President: so help me God." And such oaths of Senators shall be filed in the archives of the Senate, and of members of the House of Representatives in the archives of the House. SEC. 2. That Congress shall be in session on the last Monday in January next after any election for President and Yice-President shall have occurred ; COUNTING THE ELECTORAL VOTES. 481 and the Senate and House of Representatives shall meet in the Hall of the House of Representatives, at one o clock, afternoon of that day, and from day to day (Sundays excepted), at the same hour, until the duties required by this act shall have been performed; the President of the Senate shall preside, and when ever the Senate shall withdraw, from time to time, the Speaker of the House shall resume his chair; having so met, the President of the Senate shall, in the presence of the Senate and House of Representa tives, open all the certificates and papers purporting to be certificates of votes given at the last preceding election for President and for Vice-President, respec tively, and which shall have come to his possession ; and the votes shall then be counted in the manner and with effect hereinafter provided. SEO. 3. That when the certificates of votes for President of the United Sates shall be opened by the President of the Senate, in the presence of the Sen ate and House of Representatives, as provided in the Constitution and by this act, the same shall, with the votes therein contained or stated, be then and there delivered to the committee provided for in section 1 of this act ; which committee shall forth with proceed to examine the same, and shall count the votes which shall appear to have been legally given and duly certified and returned. And said committee shall report in writing as soon as may be to said meeting their proceedings, the state of the votes, and what persons, if any, have been pursuant to law elected President and Vice-President respec tively ; and if, on such report, any question shall be made by any Senator or member of the House of Representatives touching the legal validity of any vote or votes so delivered to said committee, or touching any action of said committee, the Senate shall withdraw, and each House shall proceed to consider the question ; and if the two Houses concur in the decision thereof, their judgment shall stand, and the report of such committee shall be modified accordingly ; but if they do not so concur, the report of such committee shall stand ; and if such com mittee shall be equally divided in opinion, the vote in question sha$ be counted unless both Houses con cur in rejecting the same. And the persons so de clared elected shall respectively be deemed entitled to exercise the functions of their offices. SEO. 4. That section 142 of the Revised Statutes 1 of the United States and all provisions inconsistent with this act are hereby repealed. Mr. EDMUNDS. I do not wish to take the time of the Senate to explain this amendment ; any more than I have already done, which | only as I conceive it furnishes an additional security and safeguard in the inspection and scrutinizing of the papers coining from States purporting to be votes ; and when it comes to be a disputed question, it leaves it substantially where the bill of the Senator from Indiana leaves it. Mr. MORTON. I do not intend to discuss this amendment. I have already said that I think his amendment is as dangerous and does embrace most of the dangers of the present , twenty-second joint rule. I think it is unsafe in every respect, and I know of no advantage to be derived from it. It would be fatal to the bill if it should be adopted. The PRESIDING OFFICER (Mr. SCOTT in the chair). The question is on the amendment of the Senator from Vermont. The amendment was rejected. Mr. STOCKTON". Mr. President, I did not intend to say a word upon this question, and I 31 shall not detain the Senate at this time of the evening longer than a few moments. I have listened attentively to this debate, and the conclusion of my mind is that it never was intended that the two Houses of Congress in separate session in their own Chambers should legislate on this subject at all. The power given by the Constitution of the United States as to counting the electoral votes is for the Vice-President to count the votes in the presence of the two bodies. The power com mences there; it commences at no moment before they are so assembled ; and I have heard nothing in this debate from the commence ment to the end of it which answers that ob jection. You will recollect, Mr. President, that that clause of the Constitution which pro vides for the election of Senators requires that they shall be chosen by the Legislatures of the States. Under that clause, as is well known, various manners of elections sprang up. Some Legislatures elected in separate session of the two Houses, and failing to agree went into joint session, as they do now, voting as they do per capita under the existing law of Con gress. Congress had the right to provide a manner, but at that time had not provided. Other Legislatures elected in joint meeting at once. The objection was made that the joint meeting was not the Legislature, that it was not the power that legislated, that passed bills. The decisions and precedents were otherwise, and have been otherwise. They did not meet in that capacity to pass laws ; they met under the Constitution of the United States as a joint body for the purpose of having an election ; and they claimed the right and exercised it, whenever they met in joint meeting, to make the rules that indicated the manner of their making their choice. It seems to me that our fathers never did contemplate that this- power of deciding upon the legality of a vote should ever come before Congress at all, either in its legislative capaci ty, sitting each House in its own Chamber as a separate body, or when sitting together for the purpose of counting the votes. I think it never did occur to them that such a euestion could or ever would come up. It may be that it is a case that ought to be provided for by constitutional amendment, but that is not the question with us now. The question is wheth er we shall by legislation, sitting in different Chambers long before the moment comes when our power begins, make a law which will con trol the action of that body to whom, and to whom alone, the Constitution of the United States has committed that power. It may be that it is a mere ministerial power. I have no doubt it was meant to be that and nothing else by the Constitution and those who framed it. But whether it be a ministerial power, or whether it goes further and includes the right to decide upon the legality of the votes, the body can get no right from your legislation. Will any Senator insist that any more power 482 PROPOSED LEGISLATION AS TO THE MODE OF than the Constitution has given to these two bodies sitting under that clause of the Consti tution can be given to them by legislation by each House in separate bodies ? No Senator will insist on that. If so, why should you act in reference to the case of how they shall de cide when two parties from the same State present different certificates of election ? Why should you provide for that if you can give them no more power than they have ; and cer tainly it must be so ? I really think, without the slightest desire to reopen this debate at this moment, that we are acting unwisely in attempting to pass any law on this subject at this time of night and at this stage of the session. I think it will be found that s o far from doing away with the diffi culty which undoubtedly exists, which all admit exists, we are getting ourselves in more trouble and undertaking to do what we have not pow er to do. If a constitutional amendment is not necessary, then those two bodies there as sembled have the power to regulate the way they shall count the vote, and if they have not the power it certainly does not exist in these two bodies sitting before the Congress meets, before the body to whom the Constitution of the United States has committed the power to count the next vote of presidential electors has convened. At a session before they are elected, you are here making laws to prevent them from doing that which was committed to them alone, and not to you, by the Constitution of the Unit ed States. I do not know that I should have said a word on this subject if it had not struck me that the amendment offered a few moments ago by the Senator from Vermont was a better bill, if a bill must be passed, than the bill we have been discussing which has been offered by the Senator from Indiana. I think the dis cussion has shown some of the difficulties of the case ; and some of them possibly are avoided (not those I have mentioned, but some others that have been spoken of by other gentlemen) by the amendment of the Senator from Ver mont; and yet that amendment comes in at this moment. It is a question of too much importance to be acted upon at such a moment as this without consideration, without time to examine even whether the amendment is bet ter then the original bill, and yet the question is put upon the amendment and is voted down, and now we are on the eve of passing the bill when many gentlemen really do not know what was the precise effect of the amendment of the Senator from Vermont. I think it is unwise. While I perceive that the majority of this body mean to pass this bill to-night, I simply desire to enter my protest against a subject of so much importance being legislated upon in this way. I certainly for one I know there, are others most earnestly desire an op portunity of reading carefully the amendment offered by the Senator from Vermont. I think that amendment would be adopted in prefer ence to the bill of the Senator from Indiana if we had an opportunity of examining it ; but it is voted down without a division, simply be cause not one-half the Senate heard it read, and I presume not many of the Senators knew what it did contain nor the advantages it might possess over the bill of the Senator from Indi ana. I need not say that I do not look upon this question as a party question at all, and I do not suppose any gentleman can. I have there fore refrained from speaking of it because I wished to listen to those who were wiser than myself, who have had more experience. I have listened carefully and attentively, and have simply made up my mind on a considera tion of the whole matter. I am driven, as I said before, to the conclusion that it is not a subject for our legislation at all. Mr. EATON. Mr. President, I wish to call the attention of the Senator from Indiana to the close of the bill : Such joint meeting shall not be dissolved until the electoral votes are all counted and the result de clared ; and no recess shall be taken unless a ques tion shall have arisen in regard to counting any such votes, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess not beyond the next day at the hour of ten o clock in the forenoon. I desire to ask the honorable Senator if the meaning of the bill is that the second day closes the action of the two Houses upon this subject necessarily. Mr. MORTON. Not necessarily. Mr. EATON. Then I think the bill is very imperfect if in the opinion of the framer and manager of the bill the session*does not close with the ordinary day ; but there should be a time when it should close, so as not to run on until the 4th of March. There should be some definite time in the bill. I am not prepared to offer an amendment, for I hardly knew what the opinion of the honorable Senator was. Mr. MORTON. I hardly think any amend ment is necessary. The Senator will observe that in the first section the time of counting the votes is fixed on the last Wednesday in January, which is two weeks earlier than is now provided by law. That was intended to give plenty of time in case there should be questions of difficulty arising, in order to give time to consider and have the whole matter determined before the 4th of March. Mr. EATON. My impression is that there should be something definite as to this point, if the bill is to pass. I am not prepared to offer an amendment at this time. I am opposed to the passage of the bill ; and I shall occupy the tin* of the Senate but for a few moments in stating why. I agree in brief with what was said by my distinguished friend from New Jersey [Mr. STOCKTON]. It is not in the power of this Congress to pass this law. It is a void law if passed. For three-quarters of a century the COUNTING THE ELECTORAL VOTES. 483 good people who represented their fellow-citi zens here were satisfied with the Constitution of the United States ; and let me read the Con stitution, to see whether there is any necessity for the bill. It is well to read it. It will not harm anybody to hear it. Article 12 of the amendments provides : The electors sVill meet in their respective States, and vote by ballot for President and Viee-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice- Presi dent, and they shall make distinct lists of all per sons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Sen ate. The President of the Senate shall, in presence of the Senate and House of Kepresentatives, open all the certificates, and the votes shall then be counted I have no trouble about whom the count is to be by, though there has seemed to be some little trouble on that subject the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed ; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately That means the next day by ballot, the President. But in choosing the Presi dent, the votes shall be taken by States, the repre sentation from each State having one vote. That is all I care to read. Mr. President, I said that I did not propose to go into a lengthy discussion of this question ; but I say in advance one thing, not for the pur pose of casting any reflection upon any honor able member of this Senate far be that from me that I look upon any bill for a public act of this character, that is brought forward in this Chamber without anybody to say anything in its favor, as suspicious, to say the least. There has been no discussion, not a word, not a breath in favor of the principles contained in this bill. And has it come to this at last, that a bill is to be passed in these the last hours of the session, probably unconstitutional, by the mere force of numbers, without one word of argument in its favor ? I say, Mr. President, it is suspicious. For seventy-five years the peo ple of this country acted under the Constitution of the United States. They can now. The court is here. I defy any Senator on this floor to show any state of facts where under the Constitution, without any bill for a public act, without any rule of the two Houses, we can not go on and perform all the duties that are devolved upon us in this behalf. Some Sen ators say that it is impossible that it can be done. Let us hear why ; give a reason for it, and do not simply rely on a large vote to pass a measure of this character. I say it is suspi cious. Again, it was alleged with great power by mj distinguished friend from Delaware [Mr. BAYARD] that if there was any necessity for a bill of this character it should be passed at the next session of Congress ; it should not be a party measure. I appeal to every Senator on the other side of the Chamber on that point. They, like I the mantle of charity covers us all desire proper action, not improper. Can it be had at any better time than when the Sen ate is under the control of the republicans if terms expressing party names are to be used here? I have not been in the habit of using them in legislative assemblies ; it has been for bidden by the rules of such assemblies where I have served, and it ought to be here where and when the dominant party on this floor will be in the majority for the coming two years; while on the other floor, at the other end of the Capitol, the other party, the party to which I am attached, will be in the majority ? If there be any necessity for a rule, which I deny, is there not patriotism enough in both parties to get such a rule as is proper and just ? There is no President to be elected next January. Two years must elapse. Why, then, in hot haste, without proper consideration, pass this measure of doubtful constitutionality at the best ? Will some gentleman tell us why ? Give us the ne cessity for it. Let us know why you do it ; why your appropriation bills, your tax bills, your other bills of importance, lie upon the floor or on or under your table, and you harp away upon a measure which cannot be of use for two years. It is suspicious at least. And why is this a bill for a public act, I beg to ask? Why not amend your rule if your rule is not right? Why a bill for a public act that cannot be repealed until you have a President and Senate and a House of Representatives to agree to repeal it? Where is the necessity for that ? I say, Mr. President, that this bill ought not -to be passed in this manner. I should like some honorable Senator on the other side of the Chamber to give a reason for it. Is there such a necessity for it, that everything else must go by the board, that a bill to pay old men eighty years of age must be put on the table or refused to be taken up, men that will die before this bill can be of any service, whether it be proper or improper? Oh, no, this bill must be taken up ; you will not pass anything that is necessary, that the honor of the country demands should be passed, but you will prefer and pass a bill for which there is no earthly use for years, and that without a single reason having been given for it. I do not like to characterize it as a party measure. I do not like to say either that any honorable Senator on this floor has given birth to a measure of that character, or that any other honorable Senator is supporting the measure because it is a mere partisan measure. I sim ply say, and no man will deny it, that there is no use for it for years. If you pass it now, you pass it with that imputation hanging over you and you cannot avoid it. There is no use for it. If the election was to be held next January, 484 PROPOSED LEGISLATION AS TO THE MODE OF if the election was to be held in a month or two months, and gentlemen felt that there was a necessity for a bill of this character, then I agree it would be their absolute duty to pass it ; but no such necessity exists. It is not here. Mr. President, not to take up the time of the Senate on this subject, as I said I should not, I simply wish to protest against legislation of this character. It is not consonant to the spirit of the Constitution of the United States which I am here to maintain and defend. I move the indefinite postponement of the bill now under consideration. The PRESIDING OFFICER. The Senator from Connecticut moves that the bill be indefi nitely postponed. Mr. MERRIMON. I ask for the yeas and nays on that motion. The yeas and nays were ordered ; and the Secretary proceeded to call the roll. Mr. JOHNSTON" (when his name was called). On this question I am paired with the Senator from South Carolina [Mr. ROBEET- BON]. If present he would vote " nay," and I should vote " yea." Mr. NORWOOD (when his name was called). On this question I am paired with the Senator from Maine [Mr. MORRILL]. If present he would vote " nay," and I should vote " yea." The call of the roll was concluded. Mr. GORDON (after first voting in the af firmative). Upon this question the Senator from Missouri [Mr. SCITCRZ] is paired with my self, and I voted inadvertently. I therefore desire to have my name stricken from the roll. If he were present he would vote " yea," and I should vote u nay." The PRESIDING OFFICER. The Sena tor s vote will be withdrawn. Mr. STEVENSON. On this question I am paired with the Senator from Ohio [Mr. SHEE- MAN]. If he were here he would vote " nay," and I should vote "yea." Mr. CONKLING." I am opposed to the bill as it now stands, and although it is a matter of little consequence on this motion which way I vote, I will vote " yea," the motion being to postpone indefinitely, as I understand. Mr. HAMILTON, of Maryland. On this bill I am paired with the Senator from Penn sylvania [Mr. CAMERON]. Mr. KELLY. I am requested to state that the Senator from Missouri [Mr. BOGY] is paired with the Senator from Iowa [Mr. ALLISON]. Mr. BOGY would vote " yea " and Mr. ALLISON ^nay." Mr. TIPTON. The Senator from Rhode Isl and [Mr. ANTHONY] left the Chamber under the impression that I was paired with him on this subject, and I will not therefore vote. I am paired with him on another question if it comes up, but as he was of the impression that the pair extended to this question, I desire to be excused from voting. The result was announced yeas 16, nays 31 ; as follows : YEAS Messrs. Bayard, Carpenter, Conkling, Cooper, Davis, Dennis, Eaton, Goldthwaite, Hager, Kelly, McCreery, Merrimon, Eansom, and Stock ton 1 4. NAYS Messrs. Boreman, Boutwell, Chandler, Clayton, Conover, Cragin, Dorsey, Edmunds, Ferry of Michigan, Flanagan, Frelinghuysen, Hamlin, Harvey, Hitchcock, Ingalls, Jones, Logan, Mitchell, Morrill of Vermont, Morton, Oglesoy, Patterson, Pease, Sargent, Scott, Spencer, Sprague, Stewart, Washburn, West, and Windom 31. ABSENT Messrs. Alcorn, Allison, Anthony, Bogy, Brownlow, Cameron, Fenton, Ferry of Con necticut, Gilbert, Gordon, Hamilton of Maryland, Hamilton of Texas, Howe, Johnston, Lewis, Mer rill of Maine, Norwood, Pratt, Ramsey, Robertson, Saulsbury, Schurz, Sherman, Stevenson, Thurman, Tipton, Wadleigh, and Wright 28. So the motion was not agreed to. The bill was ordered to be engrossed for a third reading, and read the third time. The PRESIDING OFFICER. Shall the bill pass ? ^ Messrs. BAYARD, CONKLING, and SPRAGUE demanded the yeas and nays ; and they were ordered. Mr. CONKLING. I have but a single word to say on this bill. I will not at this hour and at this stage of the debate undertake to go at length into its merits. The twenty-second joint rule as it stands is in my judgment ob jectionable. Perhaps I might say something more ; I think I may say it is a dangerous pro vision and questionable in several respects. It; is proposed to obviate it by the adoption of a statute which I think more objectionable, more likely to invite difficulty, more likely to fore-i cast disturbance arid trouble in the counting of the presidential vote. I said in the begin ning that I would not inflict on the Senate a discussion of the subject or a statement of my reasons, but having looked at the bill as care fully as I can, that is my judgment, and I shad therefore vote against it. Mr. MORTON. The Senator from Conl necticut [Mr. EATON] complained somewhat that there had been nothing said in favor of -i this bill. I have abstained from argument because I wanted a vote. The questions in volved in this bill have been discussed on this floor for several years past, and I supposed the Senate was agreed on the question that the twenty-second joint rule ought to be repealed and that there ought to be some provision made by law to prevent the imminent danger of a collision at the counting of the presidential vote. This rule was adopted in 1865, under which as it now stands a single objection, how ever trifling in its character, will cause the two Houses to separate and to vote separately upon that objection, and unless both Houses agree in overruling the objection the vote is lost. There is nothing partisan in this bill. It is as fair for one party as it is for another, and I regret that our democratic friends have been found voting unanimously for the indefinite postponement of this bill, and I presume they will unanimously vote against the bill on its final passage. There is nothing partisan in it ; COUNTING THE ELECTORAL VOTES. 485 and if I were disposed to seek for motives of a party character, I might turn around and say in reply to my friend from Connecticut that as the next House of Representatives will be democratic, and as it is in the power under the present rule of either House to throw the elec tion into the House of Representatives by sus taining objections, therefore there was a strong democratic interest in preserving this rule as it is ; for if this rule shall stand as it is, when we come to count the presidential vote in Feb ruary, 1877, and objection is made to the vote of any State, however trifling in its character, unless that objection is overruled by both Houses, the democratic House concurring in overruling it, the election will be thrown into the House of Representatives and the demo cratic party will then elect the President. If I were disposed to hunt for party motives, I might find them in the existence of that fact. I might therefore account for a solid democratic vote against this bill ; but I have attributed no ^personal or partisan motives to anybody. I [had earnestly hoped that there would be no iparty feeling about this bill. The Senator from .Ohio [Mr. THURMA^], who has made an argu ment in favor of this bill and I believe will vote Ifor it, is certainly governed by no party con siderations in the matter. He has risen above ithem, and he for one is not willing to have that temptation left to the next House of Repre sentatives, for a great temptation would be the ipovver by sustaining an objection to throw the election of President into their own body. Mr. GORDON". "Will the Senator allow me to ask him a question ? Mr. MORTON". Yes, sir. Mr. GORDON. Does the Senator suppose that the temptation would be any greater with (the next House than it has been with preced ing Houses? Mr. MORTON". I will say to my friend that the two Houses have both been of the same political character since the adoption of this rule. This rule was adopted in 1865. Up to this time the country has not been exposed to the danger of having a House of a different political complexion from that of the Senate. If the twenty-second joint rule was abolished, it would throw it back simply to what it was before that time, and the danger of collision before that time was imminent. If any Sena tor will take the trouble to read the debate in the two Houses that occurred immediately after counting the vote for President and Vice- President in 1857, he will understand the nar row escape that the country made at that time. That was before there was any rule on the subject. When the vote was counted for Mr. Buchanan, objection was made to counting the vote of Wisconsin. The electoral vote had not been cast at the time prescribed by the act of Congress. The Constitution required all the States to vote on the same day. The framers of the Constitution thought that was a very important provision. The act of Con gress fixed that time, the first Wednesday in December. The electors of Wisconsin did not meet on that day, but met on a day subsequent. It was objected that that vote ought not to be counted because it was not cast in conformity to the act of Congress. If the election had turned upon the vote of Wisconsin, as was said in the debate that took place both in the Senate and in the House the very day afterward, per haps it would have resulted in an armed con flict and a revolution, but it was very fortunate that at that time Mr. Buchanan was elected without regard to the vote of Wisconsin. Mr. Mason, the President of the Senate, said that as the matter stood any motion to reject the vote of Wisconsin was not in order. No mo tion was in order, he said, but to count the vote. The vote of Wisconsin was counted. He then marched out of the House of Repre sentatives and the Senate followed him, and this very interesting debate took place immedi ately afteward ; and it seemed to be agreed on all hands in both Houses that there ought to be some rule adopted by which the great dan ger would be avoided when the election might turn upon the vote of some State that was in that condition. Therefore, although no colli sion has taken place up to this time, and al though no trouble has come, yet we have seen in the election of 1838, we have seen in the election of 1872, that these things may hap pen, and it is the part of prudence to provide an act by which they shall be guarded against. This bill has been well considered ; there is no advantage in it to any party ; I believe it is fair; and I have therefore brought it before the Senate, and hope that it will be passed to secure the future peace and safety of our coun try. Mr. EDMUNDS. As I feel obliged to vote against this bill, I wish to say a single word in justification of what I do, and I am not spe cially afraid of being found voting with the democrats if they vote this way; I do not know that they will. Every man must act upon his own conviction of duty. To repeal the twenty-second joint rule is ono thing which I may be, and I think I am, in favor of, because it is open to objection. To set up another rule, which is just as bad or worse, which to my mind this bill does, is quite a different thing. If this were simply a proposition to repeal the twenty-second joint rule, I think, as at present advised, I should vote for it. But it is a proposition not only to do that, but to set up another rule in its stead, which in my opinion opens a broader ground for collision, as my honorable friend from In- . diana calls it, a broader ground for difficulty and doubt than the present rule. It is in effect to say that any spurious or revolutionary vote, which may be brought forward from people pretending to be the electors of a State, shall be counted, unless both Houses agree that it shall not. It is not brought forward for deci sion, but it stands because it comes as the an- 486 PROPOSED LEGISLATION AS TO THE MODE OF tlioritative voice of the people until tlie two Houses concur in saying it is not a vote. The twenty-second joint rule is not open to that objection. That requires consideration. " So it appears to me that the rule provided by this bill is more dangerous to the public peace than the twenty-second joint rule. But, as I say, it is not a choice between these two, because we can omit to pass this bill and still repeal the twenty-second joint rule. When the electors meet on the first Wednes day in December in each one of the States, the Constitution entitles us to know, entitles every body to know, that the persons who thus meet are the electors. It entitles the people of the United States to know in some way, under a government of law, that what those who claim to be electors send to the capital is the vote of the State lawfully and constitutionally given. Now, the Senator s bill says that whatever coraes from that State, purporting to be this thing, shall decide who shall be President, un less the two Houses concur in saying that it is inadmissible. I think that is more dangerous than the twenty-second joint rule. I do not want to enlarge upon it, for I have not the time. Mr. MORTON. I must say one word in re ply to that, and I confess my surprise. When I brought forward a proposition the other day to repeal the twenty-second joint rule my friend opposed it, thought there ought to be a law on the subject, and he himself brought forward a bill involving the same principles as this bill, with this difference, that he interposed a com mittee of eight persons, four Senators and four Representatives. In his amendment offered to-night he provided that when that committee made a report, that report should stand, and the votes it reported to be counted should be counted, unless that report was overruled by both Houses acting concurrently. Mr. EDMUNDS. Yes. Mr. MORTON". It involved the very prin ciple in this bill, except that it finally brought it back to the twenty-second joint rule. Now the Senator says this involves all the dangers of the twenty-second joint rule. What is the foundation for that? How can that be said ? If we have no rule at all, the President of the Senate will open the return and hand it down and it will be counted, and there is no power anywhere to prevent it from being counted. If you have no rule at all, as in the case of Wisconsin, it was then decided, and both Houses agreed, that as the matter stood the President had decided correctly. Mr. EDMUNDS. I do not so understand it at all. Mr. MORTON. Yes sir, they decided that there was no remedy, there was no law, there was no rule on the subject, and after discussing the matter it was dropped by common consent in both Houses. If we have no rule, whenever a vote is opened by the President of the Senate in the convention of the two Houses it must be counted, whatever may be the irregularity or unlawfulness of it ; there is no way to prevent it. That is the condition if you have no rule. Now, with the provisions of this bill, when a certificate is opened, if an objection is made, the Houses separate and deliberate upon it. If they both agree that the objection is good, then the vote is not counted ; but if they do not agree that the objection is good, then the vote is to be counted. But as the rule now stands, if an objection is made, however trifling and contemptible, unless both Houses do agree in overruling it, the vote of the State is thrown out. Mr. EDMUNDS. Or however valid it mav be. Mr. MORTON. Or however valid it may be. You have under this bill the judgment of both Houses. In other words under this bill you cannot disfranchise a State except by the con current vote of the two Houses. Under the rule as it now stands one House can disfran chise a State. Without any rule every vote must be counted, no matter how false, how fraudulent, how unlawful it may be. That is the simple situation, and without a rule every vote must be counted. With the rule as it now stands one House can disfranchise New York and Indiana. Under this law no State can be disfranchised except by the combined judgment of the two Houses. I say that is in analogy with our form of government. It is conformable to reason, and in my opinion it is safe. Mr. MERRIMON. I beg to ask the Sena tor from Indiana a question. Why does he say that in the absence of a rule every vote must be counted ? Mr. MORTON. Simply because there is no way of getting clear of the count. That was held in 1857; and if my friend has ever taken the trouble to read the discussion that took place in both Houses then, lasting two or three days, a very earnest and very able one, he will see the difficulties we labored under at that time and the conclusion that the able Senators and members then in Congress came to. Mr. THURMAN. Mr. President, as I have said .before in the debate to-day, I should greatly prefer that this legislation should not take place at this session, but that it should be deferred until the next Congress. In saying that I mean no imputation upon anybody of either House. Nor do I mean to say that a better bill could probably be passed by the next Congress than the bill now before us. But I do say that a bill passed by a Congress, one House of which belonged to one of the great parties of the country and the other to the other, would be more likely to be satisfac tory to the country and to remain the perma nent law of the land than a bill passed in the expiring hours of a Congress two years nearly before the act can have any operation or effect. I should have been glad, therefore, if the ma jority of this body had consented to let this bill go by this session and make it the subject of COUNTING THE ELECTORAL VOTES. 487 legislation next winter. But the majority have seen fit to do otherwise, and we are brought to the consideration of the bill. Now, I wish to say in answer to some re marks made by the Senator from Indiana that I have not been influenced in my course upon this subject by any apprehensions of what the next House of Representatives would do, nor do I share in any apprehension expressed by the Senator from Indiana, nor do I believe there is any ground for their existence. He seems to think that if the present twenty- second joint rule is left to govern us, the next House of Representatives may throw out the vote of a State in order to make the election of President devolve upon the House of Rep resentatives. In the first place that is to impute to that House improper motive. It is not to be pre sumed that the House would throw out im properly the vote of a State any more than it is to be presumed that the Senate would do it. It is not to be presumed of either body that it would thus violate its sworn duty to maintain the Constitution of the Republic. If the House should vote to reject a certificate from a State, the presumption is that in the opinion of the House there was good cause for its rejection, just as if the Senate should vote to reject it the presumption would be that in the opinion of the Senate there was good cause to reject it ; and therefore it is not to be supposed for a moment that the House would proceed in violation of the sworn duty of its members and in a factious and revolu tionary spirit to defeat the will of the people by throwing out the vote of a State which clearly ought to be counted. But if there were any such danger, let me say to the Senator from Indiana that it will exist under this bill ; that he cannot get rid of it upon his interpre tation of the Constitution. How is it that he supposes that the election may be devolved upon the House of Representatives by the revolu tionary proceeding that he has imagined? It rests upon this theory that the person who is declared elected by the people must receive a majority of the votes of all the electors who shall have been appointed by the States ; and that is the literal reading of the Constitution in article 12 of the amendments. In tha origi nal Constitution it was declared that Each State shall appoint, in such manner as the Legislature thereof may direct, a number of elec tors, equal to the whole number of Senators and representatives to which the State may be entitled in the Congress. The amended article declares that The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors ap pointed. Giving a literal interpretation to this lan guage, the Senator from Indiana construes the Constitution to mean that if a return should be cast out for any other reason than that the persons making that return were not electors, then, although that return could not be counted, Congress would be bound to take notice of the fact of the appointment of those electors and count them upon the question whether any individual had received a majority of the whole number of electors appointed. It is a very hard thing to suppose a case of that kind, and yet we might suppose it. In fact, it actually occurred in the case of Wis consin. There the electors were appointed; there was no question but that they were appointed ; there there was no question as to their just title to the office of electors; and the objection to the reception of the return made by them was that they had cast the vote on a day different from that provided in the law. There it might be said electors were ap pointed, and Congress is bound to take notice of the fact that they were appointed; and therefore no one could be President unless he received a majority of all the electors ap pointed, including those whose votes were re jected. That is one interpretation of the Con stitution. It is certainly the literal interpre tation, but it is open to argument whether that is the true interpretation of that instrument. However, I do not wish to go into that argu ment now. That is not a case likely to occur. If votes are rejected it is not likely to be a case in which the evidence before us will satisfy us of the appointment and make it our duty to say that electors were appointed at the same time that we reject their certificates. That is a case that I think is very unlikely to occur, but even under this bill this difficulty might arise. Where there were double re turns it might be that one return would be rejected, although both Houses should believe that the persons casting the votes in that re turn were the legal electors; and another return might be rejected through some infor mality. One return might be rejected because the persons casting the votes were not the legal electors, although the return itself might in every respect conform to the law. If either House were disposed to act factiously, to act in truth corruptly, to act in a revolutionary spirit, in a case where there were two returns, the very difficulty which the Senator supposes might occur under his bill. I do not believe there is danger of anything of that kind tak ing place, and therefore I have no idea that there is any necessity for passing this bill for the purpose of preventing a factious, corrupt and revolutionary attempt on the part of the House of Representatives to defeat the will of the people and devolve the election on that House. I do not know that I desire to say anything more on this subject. I shall be glad to have it laid over. I am free to say, however, that I believe this bill is better than the existing twenty-second joint rule. Mr. SPRAGUE. Mr. President, I shall vote 488 PROPOSED LEGISLATION AS TO THE MODE OF against the measure before the Senate, because it introduces the President of the United States into a matter with which he has nothing to do under the Constitution, and brings him into a dangerous innovation. He is charged with the execution of all laws. This is to be a law. He is charged with its execution. When was it contemplated that a retiring President should have anything to do with the election of his successor ? There is too much executive interference in elections now. To make it his duty to interfere is in my judgment most per nicious. I am opposed to the bill, therefore, because its tendency is such. And to conclude. I have listened with pain to this discussion. It is apparent- that men wisest in the land, or men supposed to be the wisest, think they can carry on the Govern ment successfully, leaving the great material powers among the people untouched, to drift, to act irregularly. Why, sir, the danger men tioned in counting the vote in 1857 was not a danger of that moment, but was nearly ripe from the material condition among the people. It is the irregular action of these affairs that will soon tumble your government structure into atoms, and then these discussions of mere laws and rules will appear in their true light : simply false and weak guides to ruin. Mr. STEWART. Mr. President, this subject is surrounded by difficulties, and my opinion is that it would be safer to leave it where it is in the Constitution without any legislation or rules. I believe it would be more likely to be right. It seems to me the difficulties attempted to be avoided are not met in this bill. In the first section it is provided that the vote shall be counted and the result declared, and that no State shall be rejected without the concur rence of the two Houses, acting separately. That, of course, would place it in the power of either House to retain a vote, although that vote might not be a proper vote. In any event you could not take it out of the power of either House to do wrong if they were disposed to do it. But then the second section provides That if more than one return shall be received by the President of the Senate from a State, purporting to be the certificates of the electoral votes given at the last preceding election for President and Vice- President in such State, all such returns shall be opened by him in the presence of the two Bouses when assembled to count the votes ; and that return from such State shall be counted which the two Houses acting separately shall decide to be the true and valid return. We have had two returns from the same State, and very likely if this law was passed it might invite two returns from a State. We might have several cases of that kind, and then the two Houses, acting separately, would have to determine affirmatively before a vote could be received. Suppose they disagree upon the returns, where would we be then? Mr. LOGAN". It would not be counted. Mr. STEWAPcT. It would not be counted. The two Houses would disagree. There would be a long discussion. That case might arise. I think perhaps they would have disagreed on the vote of Louisiana the last time if this bill had been a law. They might have disagreed; I do not say they would have uone it. You would have under this bill after a disagree ment a long and heated discussion. Then you have got in this bill another pro vision : Such joint meeting shall not be dissolved until the electoral votes are all counted and the result de clared. Then suppose one House would disagree and they would say, " You have no right until the votes are all counted to declare the result." It may be they would not go back to have the result declared. You have the very machinery here to produce great difficulties. What would be the probable result if you had two sets of returns? The two Houses separate. One House would claim that one return should be counted, the other House claiming that the other return should be counted, and you could not get the two Houses back so that the result could be declared. The President of the Sen ate under this law would have no right to declare the result until all the votes were counted. It seems to me, under this bill, where there were two sets of returns that very question might lead to a revolution. I do not see how you could avoid it. The two Houses have separated, having disagreed ; they get up a heated discussion. No result can be declared until the votes are counted, and the votes can not be counted until the Houses agree, because there is no provision made for that. I would much prefer to repeal the twenty- second joint rule, and leave this question where the Constitution has left it. From the short provision in the Constitution it is very evident that the frainers had considerable trouble at the time. It is very evident they could not agree upon any elaborate mode of doing it, and I think if it is left where they left it, it will be put nearly in the true place. The Constitution says : The President of the Senate shall, in the presence of the Senate and House of Kepresentatives,. open all th e certificates, and the vote shall then be counted. I think it was anticipated that they should just count them and he should declare the re sult. In that case you get a President, but under this bill you might have a civil war be fore you get a President ; and if you do not declare the result there might be a pretext for it. In this case there will be no President, no declaration, nothing to swear to according to law. You have separated the two Houses, got up a heated discussion upon a disagreement, and there is a provision in the bill that the re sult shall not be declared until the votes are all counted. One House will be contending for one set of votes and the other House will be contending for another set of votes, and COUNTING THE ELECTORAL VOTES. 489 the Vice-President will not be allowed to de clare the result. I say you have a state of things calculated to lead to rebellion. I can not vote for this bill as it stands. The PRESIDING- OFFICER (Mr. CARPEX- TER in the chair). The question is, Shall the bill pass ? Mr. LOGAN. I should not now say any thing, but that I. see there is a disposition to talk on this bill. I was very sorry to hear my friend from Nevada say he would vote against this bill unless amended. I do not know that I have capacity enough to satisfy him that the objections he makes to this bill are without any good basis ; but I can certainly satisfy my self of it. Let us see what his objections are. First, his objection to the bill is because if there are two returns from a State, both Houses must concur in counting one or the other, or they are not counted. Now, I desire to call the attention of Sen ators who have any difficulty on this point to this proposition, and we will see where my friend will come out. Under the joint rule as it exists, if either House objects the vote is not counted at all ; but if both Houses concur it is counted. That is the case under the rule. Mr. STEWART. Under the existing rule the result would be declared in that case ; but you here propose a legislative enactment which will prevent the declaration of the result. Mr. LOGAN. Hold on! One point at a time. Let us see where you come out. Under the existing rule Mr. STEWART. I do not like the existing rule either. Mr. LOGAN. Very well. I am speaking about things as they exist, and we are trying to better them. Under the rule as it exists, if one House objects, then the vote cannot be counted at all, whether you have one State rejected or two. Under this bill we require the concurrence of both Houses. If both Houses do not concur to reject the vote, then the State has its right under the Constitution to its vote. That is the difference between the rule that exists and the rule that we propose to adopt. If two sets of returns are made to the Vice-President, the two Houses are to deter mine which returns shall be counted ; and un less both concur as to which return shall be counted, none is counted. That is the result under the bill, but under the present rule one House can determine whether the vote of a State shall be counted. Here you require both Houses to determine the vote is a fraud before you can reject it. Under the Constitution both Houses are re quired to count the vote. Now, if it requires both Houses to count the vote, it should require both Houses to determine the votes, because the Constitution contemplates that both Houses form a convention for the purpose of deter mining these questions. That is the meaning of the Constitution. Both Houses then having formed a convention for the purpose of deter mining the votes, in this bill we provided that it shall require the assent of that convention that is, the assent of both Houses before a State shall be deprived of its right under the Constitution to have a vote. That is the proposition in this bill. I defy any good lawyer to tell me why both Houses should not be consulted in reference to depriv ing a State of having a vote for President when both Houses are required to count the vote. Under your present rule one House may deter mine that which the Constitution requires both Houses to determine. Let us see further. My friend from Nevada says that it will produce a revolution because both Houses are required to determine which one of all returns shall be counted. I will put this point to the Senator, or to any of the Senators who have made an objection to this particular section of the bill. When a State votes for President, I do not care if it makes one hundred returns, some one of these returns must be correct. If the people of the State vote at all they must have voted for some per son. Under the present rule it makes no differ ence whether they vote for some person or not, you deprive them of the right to have it determined whom they voted for and to have their votes counted, but under this proposed rule you allow them to have a vote as is con templated by the Constitution. You allow the convention of the two Houses to determine which one of these lists may be the right vote, according to the sentiments of the people when they voted for President and Vice-Presi dent. I ask any man to tell me what wrong there is in that proposition. Even in Louis iana, a State which we have been contending about, they did vote for somebody if we could ascertain it. No man can doubt that. We provide then that when the State does vote for somebody the two Houses may deter mine whom that vote was cast for, and then give them credit for that vote when it is de termined. In the present condition of things you deprive States of votes, but under this bill you provide so that States may vote and have their votes counted. Instead of its being cal culated to produce revolution, it is calculated to produce peace and satisfaction to the people who vote for President that their votes shall be counted. If my State votes for President and Vice-President of the United States and one House of Congress undertakes to say that her vote shall not be counted and it is there fore rejected, I am dissatisfied; but when both Houses in convention under the Constitution determine that to be the fact, then I have no right to complain. But I would have a right to complain under the present condition of things. A second objection is to the following clause in the bill : Such joint meeting shall not be dissolved until the electoral votes are all counted and the result de clared. 490 PROPOSED LEGISLATION AS TO THE MODE OF My friend from Nevada objects to this be cause he says it would be interminable ; that Congress might prevent the election of a Presi dent at all. Will the Senator stand up before this intelligent body and say that under the Constitution of the United States, without any joint rule or without any law, the two Houses can dissolve without having determined the result in any other way except by a reference to the House of Representatives? It is not contemplated that they shall dissolve until a President is declared to be elected ; that is, un til the result is declared. You may declare that no one is elected President, and then it goes to the House, but under the Constitution you are expected and required to determine the re sult. Some result must be ascertained, either that some man has been elected President or that no man has been elected President. If no one is declared elected, then the House determines who shall be the President. This bill only provides that this convention shall not be dissolved "until the electoral votes are all counted and the result declared." What result ? Either that there has been a Presi dent elected or that there has not been a Presi dent elected, so that if there has not been a President elected the House may then act and perform their functions under the Constitu tion. You may take this bill and examine it. I know I have not perhaps given the consider ation to it that some gentlemen have ; but it was before the committee of which I am a member, and has been fairly considered and examined. It has been considered with a view to having the law framed in accordance with the requirements of the Constitution, so framed that neither one House nor the other should deny to a State the right to vote. I ask the Senator by what rule is it to-day that the Senate of the United States alone can de termine that a State s vote shall not be counted in any election whatever except an election that applies only to its own body ? By what rule can the Senate alone determine that a State cannot vote ? By the joint action of the two Houses alone can this be determined, as I read and understand the Constitution. If there is anything unconstitutional, in my judg ment it is the twenty-second rule, which per mits one House by its solitary act to deny a State the right to vote in a presidential elec tion. Mr. MERRIMON". Will the Senator allow me to ask him a question ? Mr. LOGAN". Certainly. < Mr. MERRIMON. I ask the Senator whether this bill, if it should become a law, would not put it within the power of one branch of Congress to compel the count of an unlawful vote ? Mr. LOGAN". It puts it in the power of one branch of Congress to not deny the State its vote. It does not put it in the power of one branch of Congress to say how the vote shall be or shall not be. Under the Constitu tion, and under the rules that have been deter mined prior to the twenty-second joint rule, it was held that Congress itself could not deny the right to count the vote. Mr. MERRIMON. I can see the objection to the twenty-second joint rule. I am now speaking of this bill. Mr. LOGAN. Very well.. I will state my answer to the Senator. Up to the time of the twenty-second joint rule it was held by the Congress of the United States that you could not deny a State its right to vote, whether it voted in accordance with law or not. Until that rule was established allowing one branch of Congress to deny the right of a State to vote, the right had not been denied. If it is held that one branch of Congress can deny a State the right to vote, is it not better that both branches of Congress shall have power to deny it ? Ought not both branches of Con gress to have the right to determine the ques tion of these votes? Would you have it that one branch shall determine that a State shall not vote, but that both branches cannot deter mine that she shall vote? I would ask the Senator if that is not the logic of his sugges tion? I will answer the Senator further. I would prefer, as a member of the Congress of the United States, to count the vote of a State even if it was informally presented and in formal in all that is connected with it, rather than to deny the right of a State to vote whenever its certificate was formal. Mr. MERRIMON. Suppose this case : Sup pose that a certificate is sent here by usurping electors, and the Congress of the United States should have cognizance of that fact. In that case under this bill one branch of Congress could compel the count of the certificate of usurping electors. Mr. LOGAN. Both branches of Congress would be required to exclude it ; but if there was no certificate except that, how would you have any knowledge of any other ? Will the Senator answer me that question ? Mr. MERRIMON. I might have knowledge of the fact outside. Mr. LOGAN. But that is not the point, and as a lawyer you know it is not. How would you have any official knowledge of it? You would have none, and you know it as a lawyer. Mr. MERRIMON. I could ascertain it in this way, and I think it is perfectly logical and lawyer-like: The joint assemblage of Congress would have the power to direct a committee to inquire into those facts just like this body might appoint a committee to inquire into facts, and when they should be ascertained, the joint assemblage of Congress could act upon the facts as they might be reported. Mr. LOGAN. Where does the Senator get the authority to appoint his committee? When the Constitution says that the Senate shall as semble in the Hall of the House of Represent- COUNTING THE ELECTORAL VOTES. 491 atives and there the votes shall be opened by the Vice-President and there they shall be counted and the result declared, where does the Senator get his authority for this com mittee ? Mr. MERRIMON". From the Constitution. Mr. LOGAN". I cannot find it. Mr. MEEBIMON. I say the Constitution provides that Congress shall act in a joint ca pacity ; and Congress in that joint capicity has the power to determine all questions that are essential to ascertain the result of the electoral vote, to appoint committees, or do anything else for that purpose. Mr. LOGAN". I will not go into a labyrinth of argument on that point, because it is not the question before us now. I only say to the Senator that I do not recognize his law, but I will not detain the Senate by any argu ment in reference to it. I merely say of the objections made now, so far as the Senator from North Carolina is concerned I think he is a fair man usually, but I do not believe that we could frame a bill to-night or at any other time in reference to counting the vote of Presi dent and Vice-President that he would assent to, unless he framed it himself. Mr. MERRIMON". I am sorry the Senator has such a bad opinion of me. Mr. LOGAN". It is not a bad opinion at all. Mr. MEREIMOJSi. I do not think I have given any evidence of that. I am sure Con gress has power to pass a bill, and I would most cheerfully support a bill for this purpose which I believe conformed to the Constitution. Mr. LOGAN". I will give the Senator the rea son why I made the statement. He has argued this constitutional question to-day differently from any man I ever heard argue it in- my life, and therefore I presumed he would have to draw a bill himself in order to get his vote for it. I have seen it the case frequently that legislators never could frame laws that would suit other people. It is not to be expected that they can. All laws are compromises; in their nature they must be, because our minds are so constituted that they do not run exactly in the same channel. I was surprised, I must confess, at finding objections to this bill from some of the quar ters from which they have come to-day, for it was different from my understanding in refer ence to it. Rnt the objections that have been made to this bill by Senators to-night, are ob jections that can be wiped away like a cob web or as you would wipe water from a table with a sponge, by the logic of the Constitution and the fairness and the justice of the thin** itself. You have now a rule in your Manual allow ing one House to reject the vote of a State. Do you say it is on account of fraudulent elec- ti-ms ? They need not be fraudulent. If either House were to so far forget their honesty and integrity as to object to tho vote of a State, they can prevent the vote being counted, whether it is an honest vote or a dishonest one. There is no objection specified in the joint rule ; but it allows the objection of one House to prevent the countiug of the vote of your State, my State, or any other State. I witnessed an exhibition of the workings of this joint rule two years ago. The vote 01 Arkansas was objected to in the House. That objection caused the Senate to retire and ex amine it. What was the objection ? That the seal of the State was not affixed to the certifi cate of tho men who cast the vote. It turned out that Arkansas had no seal of State ; that the only seal she had was the seal of the secre tary of state ; and the certificate was stamped with that seal. Upon that frivolous objection the State of Arkansas was refused to be counted in the last presidential election. It only showed that any objection made, how ever frivolous, by one House might deprive a man who has been elected President of the United States of his right to the office, or might deprive a State or States of their right to vote. When after seeing the operation of the rule in the direction in which this rule has operated, we change it even by law so as to require the action of both Houses, in my judg ment it is just, in my judgment it is consti tutional, in my judgment it is honest, in my judgment it is fair. Mr. HAGAR. I have no desire to enter ex tensively upon this debate, but rather to ex plain the vote that I shall give. It is a question of constitutional power and of constitutional interpretation that addresses itself to us as lawyers and as Senators. The view that I take is that the Constitution of itself is oper ative and that you cannot add to the powers conferred or diminish them. According to my view neither the twenty-second joint rule nor this bill, if it shall become a law, has any binding force upon the Congress that must act in this matter under the Constitution. In other words, we cannot here establish a rule by which we dictate to another Congress how they shall perform a constitutional duty. The Constitution is plain : The President of the Senate shall, in presence of the Senate and House of Eepresentatives, open all the certificates, and the votes shall then be counted. There is a plain duty imposed upon the President of the Senate and upon the Senate and House of Representatives assembled to gether. Can you say, sir, that you may limit your powers or add to them by any legislation here? Can you bind your successors in any matter of constitutional legislation? Turn to the powers that Congress has. Congress may "lay and collect taxes, duties, imposts, and excises." You might just as well undertake to pass a law here pointing out how Congress shall levy taxes and imposts as to undertake to regulate them in the performance of a consti tutional duty in regard to this matter. As well might one Supreme Court undertake to bind their successors as for one Congress to 492 PROPOSED LEGISLATION AS TO THE MODE OF undertake to bind their successors. It cannot be done either by legislation or by any rule that you may see fit to adopt. I admit that there is an imperfection in this part of the Constitution as to how the joint body when assembled together shall proceed to act and determine the result of the election. But as the duty is imposed upon the Senate and the House of Representatives it is for them and each body that is called upon to act in that capacity to regulate rules for them selves. There is another important matter that en ters into this consideration upon that point, and I should like to hear Senators answer it. If we pass this bill, in order that it may be come a law it must be signed by the President. The President then to some extent enters into the counting of the electoral vote. Suppose we pass this bill and it becomes a law by the signature of the President with the intent to bind some other House, not ourselves. I ad mit we could pass a law here to regulate the election if we were to act in the matter. If we were to meet next week to count the elec toral vote we could by the concurrence of both Houses pass a law to regulate our action in the matter ; but we cannot, I say, pass a law to regulate the action of a future House or future Senate when they meet to perform a constitutional duty. But, as I said, suppose this bill becomes a law signed by the President, how are you to get rid of it in the future ? If it is binding upon the Senate and House that meet next, it requires, in order to repeal it, not only the vote of the Senate and the House, but the ap proval of the President. Thus the President enters into the consideration, when the Con stitution never contemplated any such thing. It is a duty imposed entirely upon the Senate and House of Representatives ; and if you pass this bill, in order that it may be a law it re quires the approval of the President, and here after to repeal it and get rid of it also requires the approval of the President, so that a future Senate and a future House of Representatives may be entirely under the control of the Presi dent of the United States. Did the framers of the Constitution con template any such state of things as that when tlie twelfth article of amendment was adopted? It was the intent that the people should con trol the election of the President, and not the President of the United States. It was the in tent that the electoral vote should be brought here and opened in the presence of both Houses, and that they there, according to such rules as they might adopt, should declare the result. The President has nothing to do with it. Sir, I am satisfied that we cannot bind our successors by any legislation in regard to a constitutional duty that they have to perform. They themselves must judge how they shall perform it ; and you might as well undertake to dictate that they should doit in a particular way to accomplish a particular result as to un dertake to say that they shall do it according to the provisions of this bill. I shall, therefore, vote against the measure. I believe that if it passes it will be clearly un constitutional. I see also that there is great difficulty in getting the question before any tribunal by which it may be determined. I think we should legislate on a matter of this importance with great deliberation and great care, because I know of no tribunal that can undertake to decide the question. It cannot be raised until a convention meets to act upon it; and they must act within a certain period of time, and it may lead to interminable diffi culties before we can get a judicial interpreta tion of this law as to whether it be or be not a constitutional act. Mr. STEWART. Mr. President, my friend from Illinois [Mr. LOGAN] failed to remove the objections in my mind. From his remarks I do not think he understood my objections. The first section of the bill is a very smooth, easy-going section. If both Houses concur in the counting it goes on to say that the vote shall be counted and the result declared. But when you come to the second section, where there are two sets of returns, which may hap pen and probably would happen, and if per sons were sufficiently disposed to have a revo lution it would be a natural state to have two sets of returns. "What then? " That if more than one return shall be received by the Presi dent of the Senate " .... " that return from such State shall be counted which the two Houses acting separately shall decide." They shall decide which of the two returns shall be counted. My friend from Illinois thinks it is eminently fair to leave the two Houses to de cide separately such a question. If the two Houses agree affirmatively that a particular return shall be counted, then very well ; but suppose they do not ? Mr. MORTON. Let me ask the Senator a question right there. Suppose there are two returns placed in the hands of the Vice-Presi dent, who shall determine which one of them shall be counted ? Will you leave it to him to determine ? Will you leave it to one House to determine ? Or will you leave it to both Houses to determine it? Somebody must de termine, and to whom will you leave it ? Mr. STEWART. I will discuss that after ward. I would leave it where it could be de termined, and not put it where it certainly cannot be determined as this bill does. Mr. MORTON. That does not answer the question. Mr. STEWART. I will answer it by and by. I say I would put it somewhere where it could be determined, but this bill has put it where it cannot be determined. Provided t^e two Houses disagree, there is no determination of the question but civil war, because you have provided in the same bill that the result shall COUNTING THE ELECTORAL VOTES. 493 not be declared until all the votes are counted, and they cannot be counted on a disagree ment. Such joint meeting shall not be dissolved until the electoral votes are all counted and the result de clared. The votes shall not be counted unless both Houses agree when there are two sets of re turns, and unless all the votes are counted the joint meeting shall not dissolve nor shall the result be declared ! There you are. Suppose you had a heated discussion for a week or ten days, the two Houses refuse to agree, and there is no way of declaring the result, and there is nothing pointed out as to what is to be done next, and in that state of things it seems to me you have legislated yourselves into war. I am not here to defend the twenty-second joint rale. I have seen the operation of it, and I think it very dangerous, and believe that both Houses will consent at this session or any other to get rid of that. Under that it is in the power of either House to exclude the vote of a State; but that being done, which is a great injustice, it does not further provide that the result shall not be declared or the joint meeting dissolved. It does not leave you in a state of anarchy. Under it a great outrage might be committed by the action of either House excluding States entitled to cast their votes; but there is no prohibition against declaring the result and having a President so that we can have law and order. I think this bill is a good deal worse than the twenty- second joint rule. Mr. MORTON". What is the provision the Senator refers to ? Mr. STEWART. " Such joint meeting shall not be dissolved until the electoral votes are all counted and the result declared." Mr. MORTON". Does the Senator know that it provides, as the twenty-second rule does, for taking a recess? Mr. STEWART. It does provide for taking plenty of recesses. I understand that, and that is one trouble. It provides for recesses, for time, for deliberation, for discussion, for or ganization, for treason, and for overthrowing the Government ; but it does not provide for declaring anybody President. You have your recess and you get apart and the two Houses disagree and nobody has authority under this bill to come together and declare the result; no result is declared, and we have no Presi dent. Every day faction will be strengthen ing if the two Houses should disagree and no chance of a result. Under the twenty-second joint rule they might arbitrarily rule out a State, but when they came together they would be bound to declare a result. Mr. MORTONT. The terms are the same precisely in the first section as in the rule on that point. Mr. STEWART. In the first section it is provided that they shall declare the result when the votes are counted, but in the second section there is a contingency in which the votes cannot be counted. You say if the two Houses do not agree the vote shall not be counted, and then you say, in the last section, the result shall not be declared unless all the votes are counted. Mr. MORTON". There is no such provision there that the result shall not be declared. Mr. STEWART. I will read it again : Such joint meeting shall not be dissolved until the electoral votes are all counted and the result de clared. Mr. MORTON. Exactly. Mr. STEWART. You cannot declare the result until you count all the votes, and you have provided a contingency in which all the votes shall not be counted. You say that where there are duplicate returns and the two Houses disagree the vote shall not be counted at all. Then you say that the joint meeting shall not be dissolved until they are counted. I think we had better leave it under the Con stitution. I think that is better than to have this legislation on the subject. The President of the Senate, in the presence of the Senate and the House of Representatives, shall open all the certificates, and the votes shall then bo counted. And for a great number of years they were counted. Mr. LOGAN". What votes does it mean ? Mr. STJEWART. It means the votes that are there. Mr. LOGAN. Does it mean all the votes or part of the votes ? Mr. STEWART. It does not provide affirm atively for anarchy, and I would rather leave it to the good sense and patriotism of the two Houses there together to work out a good result and in the hands of a firm Vice-Presi- dent to declare some result and keep us out of anarchy ; I would rather the Vice-President would take it by the strong hand and declare the result and give us a President, than trust to a law that legislates us into anarchy. It is not clear to me but that the Vice-President after he has counted the votes and found a majority would have a right to declare the result ; he would have a show of authority ; and somebody would be President. I would rather leave it just where the Constitution leaves it, and when a result is reached let the Vice-President declare that somebody is Presi dent. I think there is less danger in that than in providing for all sorts of frivolous objec tions and then providing one contingency when anarchy is inevitable. I am aware of the good faith of the author of this bill ; I am aware of the labor bestowed on this bill ; but I am also aware of the intrin sic difficulty of the case. It is all idle to talk about getting up any other tribunal. I do not believe your courts would last an hour after they had this function to perform. It is too big a function to turn over to any other tribunal 494 PROPOSED LEGISLATION 7 AS TO THE MODE OP than Congress. It is too great a question for any tribunal to be organized to decide. No tri bunal could exist a day in this Republic that was organized to try this question, and the more you legislate to patch this up the worse you will be off, in my opinion. . The founders of the Eepublic would have used some lan guage and pointed out some ways of doing this thing if it had seemed safe, but they said that when the two Houses were assembled the votes should be counted and the result declared. I think the sensible thing is to repeal the twenty-second joint rule. I do not believe this bill will be passed when it is reflected upon. I do not believe it is wise to pass it. I want to say here that I believe more evil results will grow out of this than out of the present rule. This bill provides for a great many contingencies provides for one of the worst features of the rule, frequent separations, giving opportunity for arrangements and organizations ; and those who have seen such things know the evil results of them and the danger of a disagreement be tween the two Houses, when the disagreement must bring them right against a position where there is no law to execute itself and where it is easy for a party to say, " "Wo will not go any further ; we will not count any votes." Again : And that return from such State shall be counted which the two Houses acting separately shall decide to be the true and lawful return. But suppose the two Houses do not agree, then that return cannot be counted. They must agree affirmatively before it can be counted. Then I submit that there is a dis agreement upon a vital point. Such joint meeting shall not he dissolved until the electoral votes are all counted and the result declared. Suppose you have a division of opinion as to a vote ; suppose now that from the State of Illinois there came up two sets of returns ; the two Houses separate. One House decides in favor of one set of returns and the other House upon the other. They meet; that vote cannot be counted. If there is only one return, it cannot be excluded without the joint action of the two Houses. Mr. LOGAN. But one return now can be excluded by one House. Mr. STEWART. It is not excluded, but you do not count it. Here it says the votes shall all be counted. If it is excluded from the count, then the joint meeting shall not dis solve; it is hung up. There may be various pretexts under this bill to get the two Houses separated and discuss the question of who shall be President, and after heated discussion two or three weeks you will find you have a great deal more difficulty than there would be if you declared the result at once before there could be organizations. This invites them. I do not want any rules except those that have stood since the foundation of the Government. The twenty-second joint rule has nearly de stroyed us already. All see the folly of that practice. Let the Vice-President declare the result. That is the safest thing that can be done, in my opinion. Mr. EATON. May I ask the Clerk to report the second section ? It seems to me that it is inconsistent with other parts of the bill. The PRESIDING OFFICER. The section will be read as amended. The Secretary read as follows : SEC. 2. That if more than one return shall he re ceived by the President of the Senate from a State, purporting to he the certificates of electoral votes given _at the last preceding election for President and Vice-President in such State, all such returns shall be opened hy him in the presence of the two Houses when assembled to count the votes ; and that return onlv from such State shall he counted which the two Houses acting separately shall each decide to be the true and valid return. Mr. EATON. Now, I desire to suggest that the first section of the bill provides If, upon the reading of any such certificate hy the tellers, any question shall arise in regard to count ing the votes therein certified, the same having been stated by the presiding officer, the Senate shall there upon withdraw, and said question shall be submitted to the body for its decision ; and the Speaker of the House of Eepresentatives shall, in like manner, sub mit said question to the House of Eepresentatives for its decision ; and no electoral vote or votes from any State, to the counting of which objections have been made, shall he rejected except by the affirmative vote of the two Houses. Now the second section is that All such returns shall he opened by him [the Vice- President] in the presence of the two Houses when assembled to count the votes; and that return only from such State shall he counted which the two Houses, acting separately, shall each decide to be the true and valid return. I ask the honorable Senator from Indiana if there may not be some inconsistency here ? It strikes me that there may be. Let me sup pose that the condition of the country just after the next presidential election should be as it is now and has been for years past, though I hope it will not be. A certain re turn comes up ; the seal of the State is upon that return, or a pretended seal of the State, whether stolen or not ; it is there. How do you reconcile these two provisions? I take it that men are generally made of the same ma terial. I apprehend that if a return came here that I believed was a fraud, that I had no doubt the seal of the State was fraudulently placed upon, I would vote against the recep tion of that return, and my friend from Indi ana would in the same way vote against the other return, and for some good reason. Our feelings of party might have something to do with our judgment, but we would both en deavor to be honest ; I have no doubt about that ; but as men think differently to-day with regard to the government in Louisiana, one gentleman honestly thinking it to be a fraud and usurpation and another gentleman of equal capacity, of equal honesty, of equal integrity, believing it to be a proper and legitimate gov ernment, I suggest that if the condition of COUNTING THE ELECTORAL VOTES. 495 the country two years hence should be just what it is to-day, this bill would produce an archy in this city and you could not carry it out. By honest men I mean men doing what they believe to be just and right, but differing in opinion with regard to the returns that are sent here. I say there is an inconsistency be tween these two sections, and gentlemen had better be very careful before they pass the bill. Mr. MORTON. One word in answer to the Senator from Connecticut. The second section is intended to apply to a particular case which has occurred in one of the States of this Union, that is, to a case where there are two sets of returns from the same State sent to the Vice- President. There are two sets of returns in his hands. Somebody must have the power to determine which are the correct returns. Will you give that power to the Vice-Presi dent, will you trust it to him alone ? Will you give it to one of the Houses independent of the other? You answer "No." Then you give it to both Houses to determine which of the two sets of returns is the correct return. You cannot do anything else under these cir cumstances. If somebody cannot determine that question, it is not to be determined at all, and neither set is to be counted. You would not leave that to the Vice-President, who might be a candidate himself. You would not perhaps trust his judgment. It might be a disputed point. You would not leave it to one House. Therefore you leave it just where you leave the enactment of a law you leave it to both Houses. The first section refers to a case where there is only one return from a State. Somebody gets up and makes an objection ; it may be a very trivial one. We have known examples of that kind. Now the twenty-second joint rule says that unless both Houses concur in over ruling that objection the vote is lost. We say that is not sensible ; no State ought to be dis franchised in that way. We say in this bill that unless both Houses agree that the objec tion is a good one the vote of the State shall bo counted. Mr. ^THURMAN. Will the Senator allow me to interrupt him ? Mr. MORTON. Yes, sir. Mr. THURMAN. The inconsistency here is only because these provisions are in two different sections. The first section lays down a general rule ; the second section excepts one class of cases from that general rule. If the words " section 2 " were stricken out, and the words " provided that " inserted, so as to make the second section precisely what it is, a pro viso to the first section, there would be no in consistency at all. It is the office of a proviso in a statute, as everybody knows, to except some case from the generality of the text of the law. This second section is in fact a pro viso. It excepts one class of cases from the operation of the general rule established by the text of the statute. I suggest to the Senator from Indiana that he can avoid all the trouble on the score of apparent inconsistency by simply amending the bill by striking out the words " section 2," and inserting " provided that." Mr. MORTON. The bill is not amendable now. At this stage of proceeding I prefer not to amend the bill, Mr. EDMUNDS. We are now on the pas sage, though nobody would object if the Sena tor from Indiana wishes to make that amend ment. Mr. MORTON. It is not an amendment of substance, and I ask to have the vote taken. Mr. GORDON. I do not want to discuss the bill; I only want to ask the Senator a question that I think is of some importance. If I understand the operation of this bill, if it becomes a law it can increase the electoral vote of States, and may therefore make more votes in the electoral college than the Con stitution provides for. Now let us see if that be true. The second section of the bill pro vides that where there is more than one return from a Stae both shall be opened ; that is, "such returns shall be opened by the Vice- President in the presence of the two Houses." Then the first section provides that neither shall be rejected unless upon the concurrence of both Houses. Now, suppose one be a democratic return and one a republican return, and the Senate in good faith believes that the republican return is the true and valid return, in the language of the second section, and the democratic House believes that the democratic return is the true and valid return, then under the second section of this bill both of these returns must be counted, giving to the electo ral college an additional number of votes. Mr. LOGAN. Oh, no. Mr. MORTON. I submit to my friend from Georgia that it is not so. Mr. GORDON. That occurs to me as the working of the bill, and I want to know whether it is so. Mr. MORTON. The second section is in tended to apply to a case where there are double returns from the same State. In that case somebody has got to decide. We say it shall be left to both Houses. It shall not be left to the President of the Senate to decide a grave question of that kind. It should not be left to one House alone. It should be left to both Houses, and that return not returns, but that return which the two Houses agree is the valid one shall be counted. Mr. GORDON. I understand that. Mr. MORTON. Does my friend think it would be safer if we were to say that only one return should be counted from one State ? Mr. GORDON. Suppose both Houses would not agree upon any one of these returns ? My question was based upon the supposition that the Senate should declare one to be the valid return and the House the other the valid return. Now I maintain that under the first section of 496 PROPOSED LEGISLATION AS TO THE MODE OF the bill both must be counted, because neither can be thrown out unless both Houses agree. Mr. MORTON". My friend has not read the section. The section applying to two returns goes on to say : And that return only from such State. The word " only " was put in some time ago, on the suggestion of the Senator from Iowa [Mr. WEIGHT]. Mr. GORDON. I had not seen the word "only." Mr. MORTON". "And that return only from such State shall be counted which the t^ro Houses, each acting separately, shall decide to be the true and valid return." Mr. GORDON. But suppose they disagree ? That is the point. Mr. MORTON". Then neither is counted. That is the express provision. Mr. STOCKTON. Mr. President, I cannot at this last moment see the vote taken on this bill with a debate going on among gentlemen so distinguished, which seems to me so entirely away from the real point of issue in reference to the bill, without saying a final word. "When the Senator from Indiana replied to the remarks of the Senator from Connecticut by asking " Where shall we leave the power ? " he showed precisely the throes and anxieties of his mind as to where that power should be left. If he was willing to leave that power where the Constitution of his country places it, he would have no anxiety to decide where he should leave it. He can put it nowhere. All he should do with it is to leave it where it was put by the fathers of the country until he can succeed in altering the Constitution which is the fundamental law of the land. But, Mr. President, the few words I am going to utter were called forth more by a re mark made by the Senator from Rhode Island [Mr. SPEAGUE] and some subsequent remarks that were made by the Senator from Califor nia [Mr. HAGEE]. I endeavored, feebly indeed, to call the attention of the Senate to the fact that while it was very doubtful whether the twenty-second joint rule was constitutional and very doubtful whether a joint rule passed by these two bodies in separate session could control that joint meeting for another purpose under a constitutional power, yet a bill, which is an act of legislation, attempting to control that, was clearly unconstitutional. But, sir, reaching for a substance I lost sight of an illus tration which I got from the Senator from Rhode Island ; and in my own behalf and on behalf of the Senator from Connecticut [Mr. EATON] I desire to thank the Senator from Rhode Island for having introduced that point. An act of legislation, this bill requires the sig nature of the President of the United States. The President of the United States can veto this bill. The President of the United States may be a candidate running for a second or third term, and it may be important to him to settle how these votes shall be counted ; and whether he approves of the bill or not finally settles the question. You can make no such law without his approval. Does any gentle man dare rise in his seat and say that the Con stitution of the United States has placed it in the power of the President of the United States to say how these votes shall be counted? Make your rule here ; let it be decided in joint session or in separate session, each House by itself ; do by rule all that is necessary to exe cute that power which the Constitution of the United States gives you for the purpose of counting the votes ; do all that ; but dare you say that, without one clause in the Constitution to justify it, the very man who may be a can didate may have the power of approving or disapproving a bill, vetoing or not vetoing a bill preventing the action to be had two years hence in the counting of the votes by the two bodies or by the Yice-President in their pres ence? I thank the Senator from California for his illustration, and I thank the Senator from Rhode Island for making that point. As I said before, I was grasping at it when I said that no legislative act could control that body; it was not an act of legislation, it was not a law; but for the moment -it did not occur to me that it requires the President as well as both Houses of Congress to make a law ; and in passing this bill you are proposing to-night to regulate, contrary to the Constitution, the counting of these votes by making the Presi dent a power that may veto the rules you make. Gentlemen here discuss whether this thing shall be done in joint session or in sep arate session, whether it shall require both Houses ; but the President of the United States has his voice in that by your bill. He can send you word that he will approve no bill which puts the thing in this position or that position. He vetoes it. Then you try to pass it by a two-thirds vote over his veto. The truth is and the honest truth is that the twenty-second joint rule ought never to have been passed. The whole power rested in the joint assembly when it met ; and as the Sen ator from Nevada well said I cannot quote his words the power in those simple few words is as plain and express as language can make it, and as the Senator from Connecticut said this afternoon, for seventy-five years we got along very well ; there never was any trouble, and I believe that there never will be any trouble in counting the vote unless you under take to take the power from the place where the Constitution put it. This is an effort on your part by an act of legislation to change the body, to control it; and do you say to me this is only the manner of the choice? If that be so, the Constitution left the manner of the choice, by not express ing it, to the body where it placed the power of counting the vote. The counting of the vote was put on the body who were told they must COUNTING THE ELECTORAL VOTES. 497 count the vote. If it be a manner, if, as I said before, you insist that the manner may be determined by your joint rules and joint regulations made in separate bodies, no man can insist that the President of the United States has anything to do with the manner. Has the President of the United States any thing to do with how your tellers are ap pointed? Do you recollect a little amendment offered this morning by the Senator from Ohio, that there should be two tellers on the part of the Senate? Has the President of the United States anything to do with that ? Did the Constitution mean he should have any thing to do with it? The President of the United States, if this be proper, had better be there present personally to attend, and instead of the clause of the Constitution being that the Vice-President shall open the votes in the pres ence of the two Houses, change your law and say the President himself shall be personally present. I nse these illustrations as they occur to me simply in order that before the vote is tak.en on this bill the pointjnade by my distinguished friend from Rhode Island should not be for gotten or omitted. It is precisely the point, as I said before, that I was trying to reach this morning, and I thank him heartily for having brought it out. In addition to that my friend from Missouri [Mr. BOGY] suggests to me that the instant the law is passed it becomes the duty of the Presi dent on his oath to execute it ; and here the man who may be a candidate running has the power of veto in his hand, and is made a party to the making of the very rule of this joint body, and he is the man in command of the Army and Jfavy sworn on his oath to execute it. Sir, I say to the Senate with perfect frank ness and with perfect candor that I did not know this bill was so bad when I first spoke upon it. I sat here this afternoon a listener. My mind went step by step during the debate, and I found that the bill in my judgment was unconstitutional; and listening to-night to the points that have been made, I say it is much worse than unconstitutional; it is a revolu tionary measure, and I do not believe the bill lias had proper consideration. I believe that views will enter the minds of gentlemen who have charge of this bill before this debate is over which will make them in their own hearts think differently about it. I have found in my humble experience in life, not only at the bar, not only in the Senate, not only in deliberative bodies, but at business meetings of all kinds, that there was nothing which would elicit truth so well as the knock ing of heads and minds together. The advan tage of our free debate in this body, which God forbid ever shall be restricted, is for those of us who come here, as I hope we all do, really and honestly wishing and hoping to do our duty and to vote on bills as our best judgment may guide us the advantage is that we learn ; 32 and although we may not be so well prepared when the debate opens as others, particularly :hose on the committee and the lawyers of the Senate, yet with reasonable good sense after hearing the arguments we have the advantage of a judge who hears a case argued on both sides. I hope if there are gentlemen in the Senate whose minds have become awakened by this debate to the fact that this question is a much more serious constitutional question and likely to create more trouble than they apprehended, they will pause before they put this bill through to-night. Mr. SHERMAN. I think Senators have borrowed a great deal of trouble about this matter. I am not acute enough to see the weight of many objections made to this bill. Look at it : the first, second, third and fourth sections of this bill differ from the twenty- second joint rule only in one or two important particulars. The twenty-second joint rule has this provision : And no question shall be decided affirmatively and no vote objected to shall be counted except by the concurrent vote of the two Houses. On the other hand this bill provides : And no electoral vote or votes from any State, to the counting of which objections have been made, shall be rejected except by the affirmative vote of the two Houses. There is the gist of the whole matter. The other point of difference between the rule and the bill is this : The rule requires that when the two Houses meet to pass upon a question raised in joint convention, the question shall be decided without debate. The third section of this bill, however, provides for a limited debate. These are the material differences between the first, second, third, and fourth sections of the bill and the present joint rule. My objec tion to this bill, if I was going to make it as a reason for voting against it, would be that it is unnecessary, in order to correct the errors in the joint rule, to pass a law ; and the only "ex ception that I take to this measure is that it is in the form of a bill instead of a joint rule. It is to be sent now to the President and approved or disapproved by him. It will be very much like the thirteenth amendment, which was sent to Mr. Lincoln. Mr. Lincoln said he did not see that his signature to it would give it any additional force, but still he was very glad to sign the thirteenth amend ment. If this bill is sent to the President of the United States, I believe it will be a useless act. It will have all the force of a joint rule, binding upon each House in the ministerial duty of counting the presidential vote, without the signature of the President; but the signa ture of the President will not make it any the worse, will not take away its binding force, will not change it. It is said the President may veto it. If he vetoes it, there is the end of it; but what is the use of talking about that ? There is no difficulty of that sort. 498 PROPOSED LEGISLATION AS TO TEE MODE OF Therefore so far as the gist of the matter is concerned the first, third, and fourth sections of the bill are only a modification of the rule, and we have been spending this whole day in doing what might be done in that way. But as the bill has been presented and the Senator from Indiana with a good deal of force said Senators objected to any form of joint rule, and my colleague I am told concurred in that opinion that it was better to give this change of the rule the form of a law ; if in order to satisfy some of our democratic friends it was deemed advisable to put this in the form of a law, it cannot hurt it by that form, it cannot make it any .worse and does not make it any better. The signature of the President is not necessary at all to the modification of our rules, but his signature will not hurt. I be lieve we refused to send the fourteenth amend ment to President Johnson because he had nothing to do with it, but we sent the thir teenth amendment to President Lincoln, and I believe we sent the fifteenth amendment to President Grant. I am not certain about that, and it is not material. The only new matter introduced in this bill is in the second section, which provides for the case of a contested election where there are two sets of electors claiming to be electors from a given State. This provides for a case that is not provided for by the joint rule, and it is a case that it is well enough to provide for and I see no objection on that point. It provides that where there are two returns found in their character from a State or from two bodies to be electors, if the two Houses cannot agree which is the proper legitimate return, for that reason the vote shall not be counted. That is all there is of it. I do not think there is any very great evil to occur from the passage of this bill, except ing that it provides by bill against a contin gency, a trouble arising in the mere execution of a ministerial act if the two Houses concur. I regard it as vitally important, because it is utterly impossible in the nature of things to decide a contest which may arise in the count of electoral votes under the present rule. I shall vote for the bill, not that it is in the best form, because I would prefer some modification of the joint rule, but it is in substance an im provement of the joint rule and in two im portant particulars it is a vital improvement. That is, it prevents either House by its own arbitrary dictum from excluding the vote of a State from being counted, and next it allows a reasonable debate. We all remember the difficulty about Arkan sas growing out of the fact that not one word could be said. The objection was made and presented to us, and there was not a single word of debate allowed, under the joint rule, and every Senator went up to the Clerk s desk to pass upon the question whether or not the seal of the secretary of state was attached to the return from Arkansas or the seal of the State. "We had no opportunity to explain. Somebody endeavored to say that the State of Arkansas had no seal, but he was hooted down, as I remember, or at least was not al lowed to say anything in the way of debate. This bill allows a moderate and reasonable de bate, and in that respect it is an improvement on the joint rule. The only material changes are, first, that it allows a short and reasonable debate, and next it changes the rule as to the effect of a disagreement of the two Houses. Mr. FRELINGHUYSEN. Do I understand the Senator from Ohio to say that this bill will have the force of a law without the signa ture of the President? Mr. SHERMAN. No, sir; I say it could have the force of a joint rule without the sig nature of the President, and as a joint rule it would be just as effective. Mr. FRELINGHUYSEN. But not in the shape it is now. Mr. SHERMAN. No. The President of the United States will probably not veto it, and the only danger my friend seeks to guard against is that possibly the President will veto 1 "Mr. FRELINGHUYSEN. I understood the Senator to say that it would have force with out being submitted to the President for his signature. That certainly cannot be. Mr. SHERMAN. Not in the form of a bill. Mr. FRELINGHUYSEN. The true answer to the suggestion which was made by the Sena tor from California, and repeated by the Sena tor from New Jersey, my colleague, is that the Constitution provides that Congress may by proper legislation carry out and execute the various provisions of the Constitution. This is doing that. Mr. SHERMAN. This provision of the Con stitution is to be executed by two bodies of men acting in a ministerial capacity witnessing the counting of the vote, and we can prescribe the rules and mode and manner of doing that business just as we can the mode of coming to an agreement about disagreeing votes on amendments. Mr. HAGER. I should like to ask one question, and that is whether when we get through with this bill it will be considered a rule or an enactment without the approbation of the President ? Ordinarily legislative bodies control their own rules, but in this case we put it beyond our control. Mr. SHERMAN. Not at all. Mr. HAGER, Certainly ; unless the Presi dent approves the bill we may pass to repeal this. Mr. SHERMAN. Not at all. I have no doubt the two Houses can in their own way, in their own manner, on the very day they meQt in convention, pass a joint rule pre scribing the mode and manner of doing that ministerial duty. Mr. CONKLING. And thus repeal a law ? Mr. SHERMAN. I have no doubt. This COUNTING THE ELECTORAL VOTES. 499 amounts to a modification of the joint rule, just as the two Houses of Congress by a vote of two- thirds can submit a constitutional amendment to the people of the United States whether the President be willing or unwilling. Mr. COCKLING. But does my honorable friend mean that if we pass a bill in the form of a statute, which becomes a statute by the executive signature and takes its place in the book, we can supersede or repeal that statute in any way except by passing another statute ? Mr. SHERMAN". I do say that in regard to this ministerial duty^ to be performed by the two Houses that the* two Houses at the next Congress can pass a modification of the rule which will abolish and repeal this statute. Mr. HAGER. Without the President s ap proval ? Mr. SHERMAN". Yes, sir. Mr. COCKLING. Then I undertake to say as a lawyer that that is a cognovit and admis sion, clear and distinct, that there is no consti tutional power to pass this bill. If there is constitutional power to pass this bill, it be comes a statute, and no joint rule, no concur rent resolution can strike it down. The Con stitution says that, and such an attempt would be in the very teeth of it. Mr. SHERMAN". I do not think there is any ground for that declaration whatever. The Constitution of the United States declares that the two Houses may meet together in joint convention and count the votes. Mr. EDMUNDS. It does not say that. Mr. SHERMAN". It does practically, and we have a right to prescribe by our joint rules our own actions. We may put this joint rule in the form of an act, and yet the two Houses in the execution of that ministerial duty may adopt any other rule they may see proper. Sir, if we put our joint rule, the whole of it, in the form of law, the Constitution gives to each House the power to make rules for its own government and the power to make joint rules for the government of the two Houses. That is a constitutional power, and this Forty-third Congress cannot deprive the next Congress of the power of making rules for the government of the two Houses or for* the government of either House. There the constitutional privilege overrides all your laws. Sir, the Senate of the United States can make any rule it pleases that affects its mode of proceeding, and no law can affect it, and the next Senate may change it. So with the House of Representatives. The right to make the rules of each legislative body is inherent in every parliamentary body, and is expressly guaranteed to it by the Constitution of the United States; and the right to make joint rules ia equally operative. Mr. EDMUNDS. Where does the Senator find that power in the Constitution ? Mr. SHERMAN". The Senator can look at the Constitution and find that each House may prescribe its own rules. Mr. EDMUNDS. That I see ; but the Sen ator adds that they have the right to make joint rules. Mr. SHERMAN". Undoubtedly, the one in cludes the other. The joint rules of the two Houses are nothing but the concurrent rules of the Senate and House. Mr. EDMUNDS. What does the Senator say to this clause of the Constitution Mr. SHERMAN". I hope my friend will not catechise me now. Mr. EDMUNDS. Certainly not. I was merely asking a question for information. Mr. SHERMAN. How ^is it that we pass a bill? Do we send a joint rule as to our mode of passing a bill to the President of the United States ? Not at all. Where does our power exist to make a joint rule? I ask my honor able friend, and he may answer me after a while. Is that given by the Constitution ? Mr. EDMUNDS. Does the Senator wish an answer now ? Mr. SHERMAN. No ; after a while. Well, I will ask the Senator to answer now. Mr. EDMUNDS. I do not wish to interrupt the Senator now, but if the honorable Senator will state his question I will stand the cate chism. Mr. SHERMAN. I ask where he finds the power of both Houses to make joint rules for their government ? Mr. EDMUNDS. I was asking the Senator that very question. When he answers my question I will answer his. Mr. SHERMAN. That is as frank as I ex pected the honorable Senator to be. We do make these joint rules. If we make them without any authority in the Constitution, are they of any binding force upon us ? Mr. EDMUNDS. Will the Senator pardon me if I ask him a question ? Mr. SHERMAN. Certainly. Mr. EDMUNDS. I asked him in good faith to tell me whereabouts in the Constitution ho found the power to enact a joint rule, and he turns around and asks me the same question, and when I ask him to answer me he says I am evading. I do not think that is fair. Mr. SHERMAN. Well, I will answer the question of the Senator. Mr. EDMUNDS. I merely wish light about it. Mr. SHERMAN. The Senator has the Con stitution before him. If he will turn to tho provision that authorizes each House to make rules for its own government, I will answer him. Mr. EDMUNDS. I will do that. It is in the second paragraph of the fifth section of the first article : j Each House may determine the rules of its pro ceedings, punish its members for disorderly be havior, and, with the concurrence of two-thirds, expel a member. Mr. SHERMAN. It is under that clause that joint rules are made, because the joint rules 500 PROPOSED LEGISLATION AS TO THE MODE OF are but concurring votes of the two Houses. We have joint rules that have been in ex istence from the very foundation of the Gov ernment. Where is the express provision of the Constitution which authorizes the two Houses to make joint rules ? It necessarily flows out of the right of each House to make rules for its own government ; and rules for the government of the two Houses may be made by joint vote. There the power rests. The two Houses acting together may go on a certain day named in the Constitution or law to count the vote, and they can ma*ke a joint rule to govern their proceeding. That has already been done 1 . That is the constitutional right of the two Houses, and no law can im pair it unless it can repeal the Constitution of the United States which gives to each House and the two Houses power to make these rules. This law cannot prevent this exercise of a constitutional power, and there is the an swer to my honorable friend from New York. Mr. EDMUNDS. Are we, then, exercising a constitutional power in passing a law which repeals the constitutional privileges of each House under the clause that has been read ? Mr. SHERMAN. I do not know that it makes any difference whether we put our joint rules in the form of a law or in the form of rules. It does not weaken their force in the least. They are the assent of the two Houses. As I said before, if I had been consulted or if I had undertaken to frame this matter myself, I would have made it simply an amendment to the joint rules, and so suggested to the honorable Senator from Indiana ; but he said that there were other Senators Mr. MORTON. The Senator from Vermont among others suggested that it had better be in the form of a law. Mr. EDMUNDS. Certainly ; and I stand by that now. Mr. MORTON. There being two opinions, I rather thought myself it had better, be in the form of a law, and accordingly took that course. Mr. SHERMAN. My, honorable colleague and the honorable Senator from Vermont con curred that this had better be in the form of a law. Why ? Is it anything but a joint rule ? Is it anything but an agreement between the two Houses as to how they shall perform this duty? Their advice was followed, and if the Senator from Indiana has got into trouble, it has been-by following their advice. I say that the next Senate and the next House can, if they choose, modify and change this law, if you call it so, though it is nothing but a joint rule. It has not the binding force of a law except as it is the concurrent sense of the two Houses, and may be put in the form of a law. The President s signing it does not weaken it, though it may be a work of supererogation. Mr. EDMUNDS. May I ask a question? I do not wish to take the Senator s time or ask questions if it is disagreeable to him. Mr. SHERMAN. Not at all. Mr. EDMUNDS. I wish to ask the Senator in view of what he is saying what construction he puts on the third clause of the seventh sec tion of the first article: Every order, resolution, or vote to which the con currence of the Senate and House of Representa tives may be necessary (except on a question of adjournment) shall be presented to the President of the United States ; and before the same shall take effect, shall be approved \>y him, or being disap proved, etc. Mr. SHERMAN. The answer to that has been made a hundred times, that where an act is to be performed by the two bodies, or is to regulate proceedings of the two bodies in the making of laws, or in any duty whatever, it does not require the assent of the President. It is only when you wish to give something more than a mere concurring vote of the two Houses the force of law to bind the people of the United States outside of Congress that the forms of law are required ; but to govern the proceedings of the two Houses, acting together or separately, joint rules are amply sufficient. The PRESIDING OFFICER (Mr. CARPEN TER). The question is, Shall the bill pass ? OB which the yeas and nays are ordered. The Chief Clerk proceeded to call the roll. Mr. GORDON (when his name was called). On this question I am paired with the Senatoi from Missouri [Mr. SCHURZ]. If he were here he would vote " yea," and I should vote u nay." Mr. HAMILTON, of Maryland (when his name was called). I am paired with the Sen ator from Pennsylvania [Mr. CAMERON], Mr. NORWOOD (when his name was called). On this question I am paired with the Senator from Maine [Mr. MORRILL]. I should vote u nay, " and he would vote u yea " if present. The roll-call having been concluded, resulted yeas 28, nays 20 ; as follows : YEAS Messrs. Allison, Boreman, Boutwell, Chandler, Clayton, Conover, Cragin, Dorsey, Ferry of Michigan, Flanagan, Frelinghuysen, Hamilton of Texas, Harvey, Hitchcock, Logan, Mitchell, Mer rill of Vermont, Morton, Ogleshy, Patterson, Pease, Ramsey, Sargent, Sherman, Spencer, Washburn, West, and Wright 28. NAYS Messrs. Bayard, Bogy, Carpenter, Conk- ling, Cooper, Davis. Dennis", Eaton, Edmunds, GoJdthwaite, Hager, Jones. Kelly, Merrimon, Ran som, Saulsbury, Sprague, Stewart, Stockton, and Windom 20. ABSENT Messrs. Alcorn, Anthony, Brownlow, Cameron, Fenton, Ferry of Connecticut, Gilbert, Gordon, Hamilton of Maryland, Hamlin, Howe, Ingalls, Johnston, Lewis, McCreery, Morrill of Maine, Norwood, Pratt, Robertson, Schurz, Scott, Stevenson, Thurman, Tipton, and Wadleigh 25. So the bill was passed. PROPOSED LEGISLATION" AS TO THE MODE OF COUNTING THE ELECTORAL VOTES. 1876. Ix SENATE. Monday, March 13, 1876. (" Congressional Record," pp. 1662-1675.) Mr. MORTON". If there be no further morn ing business, I move to proceed to the consider ation of Senate bill No. 1. The motion was agreed to ; and the Senate, as in Committee of the Whole, proceeded to consider the bill (S. No. 1) to provide for and regulate the counting of votes for President and Vice-President, and the decision of ques tions arising thereon. The first section provides that the two Houses of Congress shall assemble in the Hall of the House of Representatives, at the hour of one o clock, on the last Wednesday in January next succeeding the meeting of the electors of Presi dent and* Vice-President of the United States, and the President of the Senate shall be their presiding officer ; one teller shall be appointed on the part of the Senate, and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, the certificates of the electoral votes ; and the tellers, having read the same in the presence and hearing of the two Houses then assembled, shall make a list of the votes as they shall appear from the certificates ; and the votes having been counted, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, and the names of the persons, if any, elected, which announcement shall be deemed a sufficient declaration of the persons elected President and Vice-President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. If, upon the reading of any certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw, and the ques tion shall be submitted to the body for its de cision ; and the Speaker of the House of Rep resentatives shall, in like manner, submit the question to the House of Representatives for its decision; and no electoral vote or votes from any State, to the counting of which ob jections have been made, shall be rejected ex cept by the affirmative vote of the two Houses. When the two Houses have voted, they shall immediately reassemble, and the presiding offi cer shall then announce the decision of the question submitted. And any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner. The second section provides that if more than one return shall be received by the Presi dent of the Senate from a State, purporting to be the certificates of electoral votes given at the last preceding election for President and Vice-President in such State, all such returns shall be opened by him in the presence of the two Houses when assembled to count the votes ; and that return from such State shall be counted which the two Houses, acting separately, shall decide to be the true and valid return. By the third section it is provided that when the two Houses separate to decide upon an ob jection that may have been made to the count ing of any electoral vote or votes from any State, or for the decision of any other question pertinent thereto, each Senator and Repre sentative may speak to such objection or ques tion ten minutes, and not oftener than once ; but after such debate has lasted two hours, it shall be in the power of a majority of each House to direct that the main question shall be put without further debate. Section 4 declares that at such joint meeting of the two Houses, seats shall be provided as follows : For the President of the Senate, the Speaker s chair ; for the Speaker, immediately upon his left ; the Senators in the body of the Hall upon the right of the presiding officer; for the Representatives, in the body of the Hall not provided for the Senators; for the tellers, Secretary of the Senate, and Clerk of the House of Representatives, at the Clerk s desk ; for the other officers of the two Houses, in front of the Clerk s desk and upon each side of the Speaker s platform. The joint meeting shall not be dissolved until the electoral votes 502 PROPOSED LEGISLATION AS TO THE MODE OF are all counted and the result declared ; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess not beyond the next day, at the hour of ten o clock in the forenoon. Mr. BAYARD. Mr. President, I wish to ask the Senator from Indiana, who has here tofore considered this subject with a good deal of care, whether this bill differs, and if so, in what respect, from the measure which passed the Senate at the last session? Mr. MORTON. There are some verbal al terations, but it is substantially the same bill. Mr. BAYARD. Nothing affecting the sub stance is changed? Mr. MORTON. Nothing affecting the sub stantial features of the bill which the Senate passed last year. Mr. BAYARD. Mr. President, I am very glad that, even at this stage of the session, this very important question has come up for the consideration of the Senate. The Senate may remember that many w r eeks ago I urged speedy action on the subject, and I suggested methods of action which I believed then, and still be lieve, were the best calculated to insure co operative action between the two Houses of Congress upon this subject. The power of each House is the same over this subject, the same measure being committed by the Consti tution to each; and therefore it was that I be lieved the present condition of party majority in each House was exceedingly favorable to the framing of such a permanent rule in the shape of law upon this subject as would be satisfactory to the American people. Although the Senate has not seen fit to adopt my sugges tion, that this subject should be considered by the two Committees on Rules or the two Com mittees on Elections in the Houses respective ly, and that in that way a measure could be made more probable of acceptance by each simply by being reported by each committee to its own House favorably, still I am most anxious to see something done in the proper direction upon this subject, and if this bill shall be a step in that way I am prepared to give it my support. I have felt long that which I apprehend the honorable Senator from Indiana has felt, some degree of embarrassment in regard to the meas ure of power committed to Congress over the counting, accepting, or rejecting of the elec toral votes of the electors of the various States. The letter of the Constitution on this subject is very meagre. In the second article of the original Constitution it was provided that " each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress ; " and then proceeds to exclude Senators or Repre sentatives or persons holding an office of trust or profit, from the office of elector. Then fol lows in the original Constitution a provision for the meeting of the electors, which has been superseded and annulled by the twelfth amend ment of the Constitution. Then follows a paragtaph authorizing Congress in its discre tion to determine the time of choosing the electors and the day on which they shall give their votes, and declaring that that day shall be the same day throughout the United States. The twelfth article of amendments, super seding a portion of the third paragraph of the second article, provided that The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-Presi- dent, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each ; which lists they shall sign and certify, and transmit sealed to the seat of Government of the United States, directed to the President of the Sen ate. The President of the Senate shall, in the pres ence of the Senate and Bouse of Representatives, open all the certificates, and the votes shall then be counted. This -latter clause contains all the power that is delegated to the two Houses of Congress or to any other officer of the Government in respect to the counting of the electoral vote ; and the present bill provides simply the legis lative machinery to accomplish this result. There has been argument heretofore before Congress, w r hich I have concurred in, to the effect that the two Houses are mere witnesses to the counting of these votes. The only offi cer named is the Presiding Officer of the Sen ate, into whose custody the certificates shall have been delivered in accordance with the mandate of the Constitution, by the electors or their agents, their messengers, and those cer tificates being in his hands, are to be opened by him and the votes are then to be counted ; by whom, is simply a matter of inference, per haps of necessary inference ; but they are to be counted. The powers given to Congress are enumerated, and a just and wholesome con struction will cause the expression of one pow er over a subject to exclude other powers not expressed. Power is given to each State to appoint through its Legislature, or in such manner as the Legislature may provide, a num ber of electors. Congress is given the power to determine the time of choosing them, and the day on which they shall cast their votes ; and then the two Houses are made the wit nesses of the opening of the certificates by the presiding officer ; and this enumerates all the express powers ; and the question for the Sen ate and for each member to determine, is how far this expression of powers excludes others not expressed. For the last three presidential elections, the vote for President and Vice-President has COUNTING THE ELECTORAL VOTES. 503 been counted under the alleged authority of a joint rule, which, at the end of eleven years, the Senate have rescinded hy their own ac tion, which, as yet, has not been concurred in by the other House, whether any concurrence be necessary or not. I have heretofore stated that in my opinion the concurrence of the House was not essential. But under that rule the electoral votes in three presidential elec tions have been counted; under a rule that gave the power of absolute veto to either House, and that was given in separate session and without an opportunity of debate, with the barest statement of an objection which might be on its face the merest pretext for the assumption of a power to exclude the vote of any State, and disfranchise any State at the caprice, the unargued or unreasoning will of either House of Congress. It is not too much to say that such a power was an utter usurpation, utterly without warrant in the Constitution, dangerous in the extreme, and threatening to overthrow that spirit of popular government which all over underlies the framework of our system, because it enabled, on account of a disagreement in regard to a vote, the entire electoral vote of a State,, any portion of the electoral vote of a State or the electoral votes of any number of States, to be cast out by the silent operation of a veto by the vote of the Senate or of the House. It gave to either House the power to disregard and overthrow the expression of the popular will, and con sign the election to that one body to which only in the event of the failure of the people by a majority vote of all the electors to express their will has the Constitution relegated the question. In that event the decision which the people had failed to make themselves the Constitution remits to the popular branch of Congress, the House of Representatives. This state of things has continued for three elections. Thrice have the people of this coun try votad with a power that was foreordained in, case of necessity to thwart their election, given to either House of Congress, the right under any pretext in silence and without rea son, without debate, to overthrow the result of the popular election. But the present bill abrogates that monstrous claim of power; and I will not say that the monstrosity of that claim was discovered only when a variance oc curred under a popular election between the majorities of the two Houses; but such is the fact, that for three presidential terms, the last term of Mr. Lincoln and both terms of the present President, and until there was a change in the majority of the popular branch of Con gress, this rule with all its unhallowed and dangerous and despotic power stood unques tioned and unassailed. Mr. MORTON". If the Senator will allow me I will call his attention to the fact that, so far as I am concerned, I proposed a change in this rule before this change in the House of Representatives. I think for three years I have been calling the attention of the Senate to the twenty-second joint rule and urging that it ought to be abolished or modified. Mr. BAYARD. I do not desire to deny anything that the honorable Senator says in regard to his action ; but I simply say, having been a member of the Senate for seven years, that until the last year and the last session I had no knowledge, and I do not think the rec ords of the Senate betray any debate upon the subject in the line of reformation of that rule. If there had been any, there would have been no difficulty whatever in the passage of some remedy. The Senate had no trouble in pass ing this act at the last session, or one, as I understand, from the Senator almost precisely similar, and it could readily, in the then con dition of the House of Representatives, have become the law of the land. Mr. BOUTWELL. Will the Senator allow me a word ? Mr. BAYARD. Certainly. Mr. BOUTWELL. While I have nothing to say in regard to the opinions that may have been entertained in the Senate, it is within my personal knowledge that immediately after the votes were counted in the month of February, 1869, a debate took place in the House of Representatives, where I then had a seat ; and the provisions of that rule were generally con demned, I think uniformly condemned, by those who took part in the debate and who were then members of the majority party in the House. No action was taken tending to secure the repeal of the joint rule, for it was late in the session and late in the Congress ; but at that time there was a very decided opinion that the rule was a bad one. Mr. BAYARD. I am very glad, then, to hear that there was a debate in the House of Representatives ; but I am also aware, as the Senate and the country are, that that debate was followed by no action and by no amend ment of the rule. However, I merely cited this more historically than for any other fact. I am glad that a remedy or a proposed remedy comes now. Now it is proposed, however, after the very sensible and I think authorized machinery of tellers merely to tabulate this vote and ret irn it to the two Houses, that " no electoral vote or votes from any State to the counting of which objections have been made shall be re jected, except by the affirmative vote of the two Houses." That is far safer, that is far better ; and I do not know that I am prepared so offer any tribunal better adapted than the two Houses for a co-operative vote, which is made necessary before the electoral certificate of a State shall be rejected ; and yet my want of suggestion comes from the silence of tho Constitution itself on this subject. It has been suggested that the Supreme Court of the United States might take cognizance of these grand questions of election upon which the Chiof Magistracy of the Union and the Vice- 50i PROPOSED LEGISLATION AS TO THE MODE OF Presidency also depend. And there will be found, I think, in the mind of every one who considers this question, a hesitancy for want of the power of the two Houses of Congress to provide, as once they did, for giving to each House the power of rejection and now to constitute the two Houses the tribunal which shall decide upon the reception or the rejection of the vote of a State. This bill undoubtedly does place this power in the hands of the two Houses, formerly confined to either one, of disfranchising at any time an entire communi ty ; that is to say, the community of an entire State or of any number of States. The an swer is very plain, that, where the two Houses shall be of a different political complexion, both will not join to defeat a popular choice, because the Senate would not wish to throw the election into the hands of the House, as it necessarily must do, if there be not a majority of electoral votes declared by the count ; and the House undoubtedly, on the other hand, would not have it in its power to claim the election by the non-assent of a non-concurring body of a different political view. But it is a grave question whether the two Houses have the power to constitute themselves a tribunal for the acceptance or rejection of the vote of a State at will, and with the small amount of debate and time allowed by the subsequent sections of this bill, and thus by a concurrence of action assume and perhaps exercise the power of changing the prima facie result of a popular election, and throwing it under the control of one of the branches of Congress. That is the result; let us contemplate it, and ask whether we have the power thus to do. In the event of a majority of the electors not having been found to cast their votes for any one candidate, the election must go to the House of Representatives. I can imagine the two Houses of the same political party, not as they are now constituted, for this is not a law for to-day only ; it is to become a settled law, a fixed rule, requiring for its repeal the assent of a majority of each House and the President of the United States. We are to establish as our rule that a power is to be deposited in the hands of the Senate and the House of Repre sentatives at their will to throw the election at all times into the House of Representatives by concurring in the rejection of the electoral votes of the various States. Is or is not that an authorized exercise of power ? Is or is it not in accordance with the theory of our Gov ernment on this subject? Were the two Houses of Congress ever intended to become the judges of the electoral vote of the people of this country ? Apparently by the Constitu tion their d"uties would seem to be of a minis terial character only. They were to stand by and witness the counting, and their presence in that way as witnesses was supposed to be a security. Now you change this from a merely ministerial power into a judicial power of the very gravest and most important character. Is there a warrant for that in the Constitution of the United States ? And if Congress has the right thus to create itself into a tribunal for this purpose or to create any other tribu nal competent for this purpose, are the two Houses of Congress the best tribunal that we can devise and suggest ? I state these ques tions without the preparation to answer them fully, and in regard to them not having that conclusive opinion that I would wish to have before my vote is to be cast on this subject ; but I state them to exhibit to the Senate the gravity of the propositions contained in the present bill, and to ask them not hastily to adopt a measure of this kind. Everything that tends to give certainty, ev erything that tends to promote fairness, every thing that tends to create such a decision as shall satisfy the great popular mind of the country and give that respect to public action Which every legislator ought to do his best to secure, I desire to favor. Give the people a tribunal entitled to respect, and its decisions they will abide by though they may be adverse to the popular will at the moment. Therefore it behooves us, in dealing with a question which was intended to be left to popular election, not to interpose such a tribunal, and that tribunal to be created to-day by our own votes, as may thwart, and has certainly the power to thwart in a given case, the expression of the popular will at the polls. I hope this measure will be discussed. I am not prepared to say that I shall vote against this bill, nor have I proposed to raise my voice in opposition to it ; but I trust that these sug gestions thus thrown out, and rather unpre- meditatedly for I did not suppose the measure would be called before the Senate this morn ing may meet with some response from* oth ers on this floor who have likewise given grave consideration to this subject. Mr. MORTON. Mr. President- Mr. SHERMAN. With the consent of the Senator from Indiana, and before he discusses this bill, I arise to suggest an amendment in harmony with the general purpose of the bill. The proviso of section 3, in my judgment, may possibly enable either House to defeat the object of the bill, the object of the bill as de clared on the second page, in section 1, being to prevent either House from defeating the counting of the vote of any State, and to re peal the practice that had grown up under the twenty-second joint rule, by which either House might by its affirmative vote exclude any State for any cause whatever from having its electoral vote counted for President. That rule is sufficiently met by the language of the twenty-ninth, thirtieth, and thirty-first lines of the first section, as follows : And no electoral vote or votes from any State, to the counting of which objections have been made, shall be rejected except by the affirmative vote or the two Houses. But under the proviso to section 3, I fear COUNTING THE ELECTORAL VOTES. 505 very much that either House might by indirec tion defeat the counting of a vote, because it provide? for the separation of the two Houses and the consideration by each House of the question, and then provides : That after such debate has lasted two hours, it shall be in the power of a majority of each House to direct that the main question shall be put without further debate. This provision is not compulsory, and either House might prolong debate indefinitely, and thus prevent the question from being taken on the counting of the vote. It is true, it is rather a violent supposition to suppose that either House of Congress would, by an abuse of its power, endanger the existence of the Government ; but the object of this bill is to guard against all possibility of the abuse of power in that respect, and it is not an im probable supposition that in high party times, under great excitement, one House might thus neglect or refuse to direct the main question to be put. We know very well the influence of party excitement and party feeling, especially under strong provocation. Therefore it seems to me that this provision ought to be more peremptory in its character; it ought to re quire, after two hours debate, a peremptory putting of the main question. I suggest to the Senator from Indiana whether it would not be safer and more in harmony with the object of the bill, to require after a reasonable time, say two hours, that the question should be put in each House and the convention again assem bled. I therefore move an amendment to make the provision read : " That after such debate has lasted two hours, it shall be the duty of each House to put the main question without i further debate." That, it seems to me, will avoid the difficulty, and then no question can be discussed longer than two hours. I think two hours ample time for the discussion of any question that may arise. Mr. EATON. I was about to ask my friend i from Ohio if, in his judgment, two hours time would bo sufficient to discuss the grave ques- i tions that might arise. I agree that his criti cism is entirely just in regard to the clause in the bill. The only doubt in my mind is in regard to the time. Mr. SHERMAN. This is a duty rather in the nature of a ministerial duty, that must be promptly performed. The only question be fore the two Houses is as to the form and suffi ciency of a return, and that depends on mat ters rather of a historical character. The facts connected with these returns will have been published to the world before the time when the two Houses meet, and probably the atten tion of each member of Congress will have been called to them. If you allow more than two hours, or open the subject for indefinite debate, you may defeat the object of the law. There is not much time allowed to elapse be tween the time of counting the votes of the electors, and the time when the presidential office must commence, on the 4th of March. This bill antedates the time of counting the votes, making it two weeks, as I understand, earlier than it was before, in order to allow a reasonable time to dispose of any question which may arise. It seems to me that two hours time is sufficient in a deliberative body to point out the real point or merit of any proposition likely to arise on a question of this kind, which is rather a matter of form than otherwise. Indeed I remember in the last case, which was a very important case, that the Senate hastily decided, I think wrongly, on the Arkansas vote ; no debate was allowed. Each Senator went up to the desk and examined the paper, and without having time to look at the law, without having even time to send to the Library to see what the constitution of Arkan sas required, we fell into the error of suppos ing a fact which did not exist, that the State of Arkansas had a seal, and therefore we re jected the vote of that State because of the want of a State seal to the certificate. Two hours time is ample to decide any question of that kind or that is likely to arise in these cases. Indeed I thought it was rather longer than necessary. A short debate would be prop er to call the attention of each House to the matters before them, and then the vote should be taken peremptorily and mandatorily, in my judgment. I submit the amendment. Mr. WITHERS. In the same connection with the remarks made by the Senator from Ohio, and to save trouble to the chairman of the committee who reported the bill, I would call his attention to the second section, and in quire whether the point which I am about to mention was considered by the committee, and whether they designed the bill to havo the- effect that it seems to me it will have if it be adopted in its present form ? The provision in the twenty-ninth, thir tieth, and thirty-first lines of the first section, gives practically a veto power to both Houses acting conjointly when an objection is made to a vote being counted ; but in regard to the contingency where different certificates of elec tion are sent up from a State, the second sec tion provides that, " all such returns shall be opened by him " (the President of the Senate) in the presence ot the two Houses when as sembled to count the votes ; " both the con flicting returns shall be opened. And that return from such -State shall be counted which the two Houses acting separately shall decide to be the true and valid return. It would therefore require the concurrent action of both Houses to fix upon the authen tic return from such a State. Suppose these two Houses should differ ; one should assert that one return was the correct one, and the other the other ; there seems to be no provi sion made for settling the difficulty that would thus arise. I would inquire if in the event such a thing should occur, the vote of a Stato that was thus disputed would be cast out en- 506 PROPOSED LEGISLATION AS TO THE MODE OF tirely ? If so, it leaves it still in the power of either House to veto the vote of such a State. Mr. WEIGHT. The suggestion just made by the Senator from Virginia had occurred to me, as also one or two others that I beg leave to submit to the chairman of the committee before he shall address the Senate. By the first section it is provided that no electoral vote of a State shall be rejected ex cept by the affirmative vote of the two Houses. That contemplates a case where there is but one return from a State. The second section contemplates a case of two returns ; and that provides that the return from such State shall be counted which the two Houses acting sepa rately shall decide to be the true and valid re turn. Now, suppose they shall not agree, then what is to be the result ? That is a contingency thatf it seems to me, is not provided for in this bill. That is one suggestion that I have to make ; and it is the one already submitted by the Senator from Virginia. I will suggest to the Senator from Indiana another trouble that occurs to me under the first section. The last clause of the first sec tion contemplates that not only the question of the admission of the return from a State may be referred to the two Houses acting sepa rately, but that other questions "pertinent to the object for which the two Houses are as sembled may be submitted and determined in like manner." If the "like manner" refers to what precedes, with reference to the man- .ner of accepting or rejecting a return, and that in determining any of these other pertinent questions there must be an affirmative vote of the two Houses to reject, otherwise it shall be accepted ; and if, upon a question thus perti nent being submitted to the two Houses, they do not affirmatively determine to reject it, it Feems to me that you would get into difficulty. That is my second suggestion. The third suggestion arises upon the fourth section of the bill. That provides that : No recess shall be taken unless a question shall have arisen in regard to counting any such votes, in which case it shall be competent for either House, acting separately, in the manner hereinbefore pro vided, to direct a recess rot beyond the next day at the hour often o clock in the forenoon. The doubt that occurs to me is whether that recess relates to a recess by each House sepa rately or a recess as to both Houses, and wheth er if one House determines to take a recess that works a recess of both Houses or whether it only works a recess of such House as thus determines, or whether it is necessary that there shall be concurrent action determining in favor of a recess to have a recess of both Houses, or whether either House acting for it self can take a recess. I do not know but that the inquiries I make are entirely answered by the bill as it stands ; but I suggest them as difficulties which have occurred to me, and I shall be glad to hear from the Senator from Indiana upon them. Mr. EATON. Mr. President, the objection which has been so well stated by the Senator from Iowa and the Senator from Virginia had occurred to me, but I thought I would not mention it until the matter had been arranged in regard to the amendment of the Senatoi from Ohio. It seems to me that this second section is altogether vicious. SEC. 2. That if more than one return shall be re ceived by the President of the Senate from a State purporting to be the certificates of electoral votes given at the last preceding election for President and Vice-President in such State, all such returns shall be opened by him in the presence of the two Houses when assembled to count the votes ; and that return from such State shall be counted which tht two Houses acting separately shall decide to be the true and valid return. Now, suppose they do not decide. Suppose the Senate acting separately decides that re turn marked " A " is the true return and th^ House of Representatives decides that the re turn marked " B " is the true return. Then neither can be counted by the terms of this bill. Manifestly this cannot be the design ot the distinguished Senator from Indiana. Al though perhaps it is a little out of place now. the question being on the amendment of the Senator from Ohio, if the Senator from Indiana will have the kindness to look at the second section of the bill I will read the last para graph : And that return from such State shall be counted which the two Houses acting separately shall decide to be the true and valid return. Now, I will suppose there are two return r which I will designate for the purpose of iden tification as one " A n and the other "B." The Senate decides that " A " is the proper return ; the House of Representatives decides that the return marked "B " is the proper return from that State. Which is to be counted under this bill? Certainly neither. "That return from such State shall be counted which the two Houses, acting separately, shall decide to be the true and valid return." Manifestly the bill is vicious in this particular. Mr. MORTON. Mr. President, before pro ceeding to comment on the features of this bill, I wish to answer a suggestion made by the Senator from Delaware to the effect that it was not proposed to repeal or modify the twenty-second joint rule until after a change had occurred in the political relations of the House of Representatives. The effect of that suggestion was to give this proposed amend ment a political significance. Now to relieve myself at least from any imputation of the kind, I call the attention of the Senate to a speech that I made in this body on the 17th day of January, 1873, three years ago and more, certainly before this change had taken place in the political complexion of the House of Representatives. .1 discussed the twenty- second joint rule as it stcod until a few weeks ago, and I cannot now atld anything to tho COUNTING THE ELECTORAL VOTES. 507 objections I then took to that^rule, to its enor mity, and to its danger. I said : I now come to the consideration of the twenty- second joint rule of the two Houses, adopted in 1865, in regard to the counting of the electoral vote, lias rule was undoubtedly the result of a conviction in Congress of the necessity of providing some method for avoiding the dangers I have heen discussing ; but it was certainly adopted without much consider ation, and with a view apparently of furnishing an additional safeguard against receiving electoral votes from States that had been in rebellion. Again I said : It is, in my judgment, the most dangerous contriv ance to the peace of the nation that has ever been invented by Congress ; a torpedo planted in the straits with which the ship of state may at some time come into fatal collision. I then went on to recite the rule, and dis cussed it somewhat at length. It was at a time when both Houses of Congress were Re publican. I did not discuss it in any political aspect. It was a question above party and political considerations, and as such I present it now. The principal change which tbis bill makes from the old twenty-second joint rule consists in three things, to which I will call the atten tion of the Senate. Under the twenty-second joint rule, wben the two Houses assemble to count the electoral vote, if an objection be made, we will suppose to the vote of New Jersey, however technical and trifling it may be, the two Houses separate to vote on the objection, each in its own chamber. Unless the objection be overruled by the vote of both Houses, the vote of New Jersey is lost. For example, if the Senate sustain the objection and the House of Representatives overrule it, the vote of New Jersey goes out. If the House of Representatives sustains it and the Senate overrules it, the vote of New Jersey goes out. Thus, it was in the power of one House of Congress to disfranchise a State and to dis franchise all the States; and under the opera tion of that rule, when the two Houses came to vote separately, there was no debate ; there could not be a single suggestion. The Senate rejected the vote of Arkansas when we counted the votes the last time. Then, if there could have been a word said, we should have avoided that foolish blunder, for such it turned out to I be; but under the rule there could not be a word said; we could not even refer to the constitution of Arkansas, and the result was that in twenty minutes we disfranchised about six hundred thousand people. This bill allows a short debate to point out the objection or the futility of the objection ; and it provides that no State shall be disen franchised or any electoral vote lost without the concurrent vote of both Houses. You can not pass the most trifling bill without the con- j current vote of both Houses ; you cannot ap propriate a dollar of money without the con current vote of both Houses, each acting sepa rately ; but, under this old rule, you could dis- ranchise forty millions of people by one House. ;t was absurd, wickedly and dangerously un constitutional. This bill provides that you ;annot reject an electoral vote from any State mless both Houses shall concur in that rejec tion, and that is the only safe rule on the sub ject, in my judgment. Mr. BAYARD. Will the Senator permit me ;o make a suggestion ? Mr. MORTON. Yes, sir. Mr. BAYARD. Do not the provisions of this bill allow of the increase of the votes of the electoral college by compelling the count- ng of any votes purporting to be electoral votes sent up from a State, no matter by whom ; I want to sbo w this eifect : There are, say, in our electoral college at present 366 electoral votes ; one-half of tbis is 183 votes, and 184 is a majority. The Constitution entitles the person having the greatest number of votes for President to be President, if such number be a majority of the wbole number of electors appointed ; so that if any man shall be found to have received 184 votes he has a majority and he is entitled to be President. Now, if we shall permit two sets of returns to come from any State and re quire the concurrence of both Houses in order to reject either one of those two sets, we may, by one House refusing to concur with the other House in choosing which of these sets of du plicate returns shall be regarded as the lawful one, have the aggregate of the electoral votes increased ; and say it occurs to the extent of 12 votes, we should then have 366, the true electoral college, increased to 378, and thereby we should make it necessary for a man to re ceive 190 instead of 184 to bave a majority. We are not making a law for this man s chance or that, or for this or that party, but proposing to make a permanent rule which shall be safe, satisfactory, just, and exclusive, so for as we can, of frauds or unfairness in elections ; and the question is, would it be a wise thing to provide by this section 2 That if more than one return shall be received by the President of the Senate from a State, purporting to be the certificates of electoral votes given at the last preceding election for President and Vice-Presi- dent in such State, all such returns shall be opened by him in the presence of the two Houses when as sembled to count the votes ; and that return from such State shall be counted which the two Houses, acting separately, shall decide to be the true and valid return. Let us construe that section by the language of section 1, from line 29 to 32 : And no electoral vote or votes from any State to the counting of which objections have been mad shall be rejected except by the affirmative vote of the two Houses. Here, then, should we not find that it would be within the power of some mischievous and un fair persons in different States of the country to cause certificates purporting, to use the lan guage of this bill, to be certificates of electoral votes to come up, and thereby the aggregate of the electoral college to be swollen to such 508 PROPOSED LEGISLATION AS TO THE MODE OF a figure that a majority would be required which in reality the present Constitution does not require? I ask the Senator if it does not strike him that there is force in that view ? Mr. MORTON. The first section of this bill applies to a case where there is but one return from a State, and provides for settling objec tions which may be made to that return. The second section is intended to provide for a case where there are two sets of returns from the same State, as there were from Louisiana in 1872. Now, the question of the Senator from Delaware goes to this point, that where there are two sets of returns and the two Houses do not agree which set shall be counted, both sets will be counted and the aggregate number of electoral votes increased. That is not intended to be the effect of this section, and I think it is not. The effect of it is to determine which set shall be counted, and if the two Houses do not agree neither set is to be counted. That if more than one return shall be received by the President of the Senate from a State, purporting to be the certificates of electoral votes given at the last preceding election for President and Vice-Presi dent in such State, all such returns shall be opened by him in the presence of the two Houses when as sembled to count the votes, and that return from euch. State I call the attention of the Senator now to this point and that return from such State shall be counted which the two Houses, acting separately, shall de cide to be the true and valid return. Does not that carry with it the negative, that if the two Houses do not agree, neither set shall be counted? Would it change the sense if you insert the word " only ? " I have to objection to that being inserted, if it is de sired, to make it certain. Mr. BAYARD. Then, I suggest, the only point is this : the Senator says that the second section relates to cases where different certifi cates come up, and that the first section does not relate to such cases; that in the second section it requires a concurrent vote to have either passed, and in the first section it requires a concurrent vote to have one rejected. There fore, in the t\vo classes of votes, where a single certificate comes up, it requires the action of each House acting separately to reject, but where there comes a duplicate certificate the result of the Senator s present construction of this bill is that either House by sticking to the certificate which it prefers can disfranchise the State as completely as was done under the twenty-second joint rule. Mr. MORTON. I suggest to the Senator that the rule is exactly the reverse in the two sections, and of necessity. "Where there is one set of returns, this bill provides that tlje vote of a State shall not be rejected unless both Houses agree to it ; but where there are two sets of returns, and the two Houses disagree, then who is to decide ? I will suppose, as in the case of Louisiana, here are two packages sent to the Vice-President. He opens them, and finds that each one purports to be signed :>y the Governor of Louisiana ; that there are :wo sets of electors, each assuming to vote for [Resident and Vice-President. Who is to de cide which is the correct return, who is the Governor of Louisiana, and which set of elec tors was entitled to cast the vote of that State? Will you leave it to the Vice-President alone ? If you do not provide for settling it by the two Houses, he must decide that question. He is the absolute arbiter, and there is no appeal from his decision. Here are two sets placed in his hands. He may take a political view of the question, and he presents that set to the two Houses to be counted which he thinks ought to be counted, and there is no possible escape from it. You cannot even know what are the contents of the other package ; you have no means of knowing. You leave him to decide what this bill provides that both Houses shall decide. There is the precise danger to be avoided. If there are two sets of returns, and there is no means by which the two Houses can pass upon them, who is to decide that question 2 We cannot read both sets; both cannot be counted, because the State can have but one vote or series of votes according to its popula tion. Somebody must decide it. If the two Houses do not decide it, the President of the Senate must decide it, and that is just the au thority which Mr. Mason assumed in 1857, when he refused to entertain a motion to reject the vote of Wisconsin. In that case the vote of Wisconsin was clearly illegal. It was not cast by the electors on the day fixed by law. A motion was made to reject the vote. That was before the adoption of any rule on the subject. Mr. Mason, then President pro tempore of the Senate, refused to entertain the motion, de clared it out of order, directed the tellers to read the vote and to count it, and the vote of Wisconsin was counted, clearly in violation of the Constitution. As soon as that was done, the two Houses separated, and an angry debate took place in both Houses. The power of Mr. Mason was denied ; but there was no rule on the subject, and it all came to nothing. Hap pily, in that case, the vote of Wisconsin was not important. Mr. Buchanan was elected by a large majority, even counting the vote of Wis consin for Mr. Frfimont. It became unimpor tant, as it would have been unimportant if we had had no rule on the subject three years ago, and the Vice-President had determined that he would count this or that set of votes from Louisiana in 1873. But suppose that the election of President had turned upon it, we can then see the danger and the trouble to re sult from it. Where there is but one set of re turns, it is right to provide that no vote shall be rejected unless by the concurrent vote of both Houses; but where there are two sets, somebody has got to choose between them. And who is it ? Will you leave it to the Presi dent of the Senate ? You cannot leave it to one COUNTING THE ELECTORAL VOTES. 509 House, because one House may choose one set and the other House choose the other set. You must trust to the judgment, you must trust to the integrity of Congress acting under the Con stitution and under their oaths, just as you do in the passage of any bill on an important sub ject. You must believe something in the in tegrity of men, and in that case it is safer to leave it to both Houses than it is to leave it to one House alone. It is safer to leave it to both Houses than it is to leave it to the Pre siding Officer of the Senate, because there is where the power must rest if it is not placed in the two Houses of Congress. Mr. WALLACE. Will the Senator allow me to make a suggestion ? Suppose that the Senate should use the remedy that the Consti tution provides in the case of the election of President when it goes into the House, that the States by their representation shall settle this question when there shall be two returns, and that a vote by States be taken in the joint body. I would suggest such an amendment as this: When the two Houses acting separately shall dis agree in their decision as to which is the true and valid return from any State, or as to any other ques tion which they may have separated to decide, the joint meeting shall finally determine the same by a vote by States, the representation from each State, including the Senators therefrom, having one vote ; but if such representation shall be equally divided, the vote of such State shall not be counted. This I have drawn hastily, and it is a mere suggestion thrown out. It seems to me it would solve this difficulty. There are two re turns from a State ; we are in joint conven tion ; the States themselves by their votes could settle the question, the representation from each State having a single vote. It is a mere suggestion, .which I throw out for what it is worth! Mr. MORTON. As between the method provided in this bill and leaving it to the votes of the States, I should much prefer this as be ing the most democratic and as being the fair est in every point of view. I think the weak est part of our Constitution to-day is that part which provides for the election of President by the States, each State having one vote; the smallest State in the Union having the same voice in the election of President as the largest one. That experiment has been tried twice ; twice it endangered the existence of the Gov ernment ; and it is to be sincerely hoped that it will never be tried again. The remedy of electing by the States was the last provision put in the Constitution of the United States after the convention had tried in various ways to settle the question. Jt was put there finally with but little consideration. It is unjust to the people; it is dangerous; it presents the greatest temptation for corruption that can possibly be presented. But I was discussing the question in regard to two sets of electors in a State, where two sets of votes come hero where there are two persons each claiming to act as the governor of the State, two bodies of men claiming to be electors. Two packages come here. Some body must settle that question ; and how shall it be done the most safely to the country and the most satisfactorily? Unless you provide for settling it in this way you must leave it to be settled by the Presiding Officer of the Sen ate. In my judgment it would be more con ducive to the peace and safety of this country to provide for settling it by the action of the two Houses of Congress, just as you make the important laws and carry on the business of this country. You cannot leave it to one House alone. They do not agree ; you cannot read both sets ; you can only read one set, and therefore read that set which both Houses of Congress, supposing men to be patriotic and to be honest and acting under the obligations of the Constitution and their oaths, shall decide to be the true and valid return. I think that is the fairest way. Mr. EATON". Suppose they do not agree on the same return, what then ? Mr. MORTON". The vote goes out, the State has no vote, because unless there is some tri bunal to settle which vote shall be counted you cannot count both, and therefore you can not count either. You must have some tribu nal to settle that difficulty ; and what tribunal is safer than the two Houses of Congress, I ask my friend from Connecticut ? Mr. WITHERS. I suggest that it would be better that some tribunal should be provided for settling this question of duplicate returns, which is not provided for in the bill at all. If the bill is passed in its present form, it will be in the power of a small faction or a largo one in any State which wished to deprive that State of its voice in the electoral college, to send up a set of returns claiming to be the electoral returns, and if there was anything like strong partisan feeling in the Houses and they were divided politically, each party hav ing a majority in one House, the effect of such returns would be to deprive that State of its vote. It might be engineered solely for the purpose of producing that result. It seems to me the bill would be in better form if some arbiter were provided to decide what should be the return from the State in that case. Mr. MORTON. In the case suggested by the Senator from Virginia, where a faction gets up another set of returns of electoral votes for the purpose of depriving a State of its vote, something must be left to the integrity and judgment of Congress. Take that very case where a faction works up a false set of returns, and they are sent to the President of the Sen ate. If you do not provide for the two Houses settling that question, you necessarily leave him to pick, out the package that he thinks ought to be counted. He is as liable to be swayed by political considerations as both Houses are, or as either House is, and there fore the same difficulty returns. Now in re- 510 PROPOSED LEGISLATION AS TO THE MODE OF gard to another tribunal, I presume my friend refers to a court or something of that sort to decide. That under the Constitution cannot be done, as will be seen when we come to con sider its phraseology : The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves : they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-Presi- dent, and they shall make distinct lists of all per sons voted ibr as President, and of all persons voted for as Vice-President, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of Government of the United States, directed to the President of the Senate. The certificates are to come to the President of the Senate sealed. Nobody knows the con tents of them. Whether the electors have been certified to by the governor as elected, whether they have voted for persons living in different States for President or Vice-Presi dent, as required by the Constitution, or whether they have voted by ballot as required by the Constitution, none of these facts can be known until the two Houses assemble to count the votes, because the packages are not to be opened except in the presence of the two Houses at the precise time when the votes are to be counted. You cannot examine in ad vance and see if there are any irregularities and have them corrected, or submit them to a court to decide questions. These questions cannot arise until the two Houses have assem bled to count the votes, and then the packages are opened for the first time. The President of the Senate shall, in the presence of the Senate and House of Eepresentatives, open all the certificates and the votes shall then be counted. Then and there. You cannot refer to any other tribunal ; you cannot get the case before the Supreme Court of the United States or be fore any special court to be created for that purpose. These votes are then to be opened, and then and there they are to be counted. I will read on : The person having the greatest number of votes for President shall be the President, if such number be_a majority _of the whole number of electors ap- n nted ; and if no person have such majority, then in the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately. It contemplates, and the history of the de bates shows that the Constitution contemplates, that when the votes have thus been opened and counted, if no person is found to be elected, the House of Eepresentatives shall without ad journment proceed to elect a President, so that there shall be no interregnum that there shall be no delay in the choice of an Executive of the United States. Mr. WITHERS. The view which is stated by the Senator from Indiana in regard to the necessity of an immediate counting of the votes is undoubtedly correct ; and so as to the in ability of remanding the decision of the ques tion to the Supreme Court ; but I am not pre pared at this time to give my assent to the doctrine that the two Houses would be better prepared or qualified in any sense to decide this question than would the joint representa tion of the States, acting by States, as suggested by the Senator from Pennsylvania; or even than the Vice-President of the United States, because we all know that where responsibility is devolved specifically upon an individual oc cupying a position as high as the Vice-Presi dent occupies he will proceed to the discharge of that duty with a fuller knowledge of that responsibility, and, I think, with less probability of having his judgment warped by purely par tisan considerations than would either House of Congress. But I have merely thrown out these suggestions not that I am prepared now to offer an amendment which would meet the difficulty I have suggested, but to call the at tention of the distinguished chairman of the committee to it, and elicit such information with regard to arguments and reasons which caused the committee to report the bill in its present form rather than to propose a remedy for them. Mr. MAXEY. I desire to call the atten tion of the Senator from Indiana, the chairman of the Committee on Privileges and Elections, to sections 1 and 2. It occurs to me that sec tion 1 is predicated on the principle of law that, where a certificate is presented, all presump tions are in favor of that certificate being regu lar. Hence, according to law, that presumption remains unless it is set aside by the joint action of both Houses. If the Houses disagree, the presumption remains ; and therefore you count the vote of the State. I can understand that to be the doctrine, and I think that follows rightly. But when we come to the second section, there is trouble in my mind ; and all I want is to get the thing right. Where two sets of certificates are presented, and . the Houses disagree as to which is the right certificate, what are you going to do about it? Certainly one or the other is right, because the State has certainly voted. If the two Houses differ, then, according to this bill, the vote of that State falls. There is the trouble in my mind. Can there not be some means devised whereby a sovereign State will have a right to have her vote counted and not be cut out of that vote by reason of the failure, or, if you please, the fraud of the certifying officers in sending up the wrong certificate ? Is there not some way of getting at that and counting the vote? I can readily see that if the President of the Sen ate were the arbiter or umpire between the two Houses when the two Houses disagree, that umpire, as in many other cases, would settle the question ; but where the Houses disagree and there is not an umpire to settle the ques tion, the inevitable result will be that a State is deprived of its vote in the electoral college. COUNTING THE ELECTORAL VOTES. 511 I would like to hear from the Senator if there could not be some means devised by the Com mittee on Privileges and Elections to save the right of such State to vote ? Mr. MORTON. I think the bill is intended for that. To come right back to the point, where there are two sets of electors, two per sona purporting to act as governor, and two seals each purporting to be the seal of the State, and when, as in the case of Louisiana, they are precisely alike so that nobody can tell the difference between them, when such a con tingency occurs somebody must decide; and the only question is what is the safest tribunal. Is it safer to leave it to one man, however high his character and his ability may be, as the Vice-President, or is it safer and more in har mony with our institutions to leave it to the two Houses of Congress? Mr. MAXEY. If the Senator will pardon me, the point was, where the two Houses dis agree, one House votes in favor of one certifi cate, and the other House in favor of the other certificate. In that case, if I understood the Senator correctly, the vote of the State falls ; and it was to get over that difficulty that I asked him if a remedy could not be devised. Mr. MORTON". Where there are two sets of votes and the Houses disagree they must both fall, unless you go to some other tribunal. Who can decide that question? What other tribunal can decide the question ? You cannot have it decided by a court, for that would be clearly in violation of the Constitution. If the two Houses disagree, supposing of course that they are acting honestly and patriotically, who shall settle that question ? Mr. MAXEY. Is not the spirit of the Con stitution in that case like a case here in the Senate? When the Senate divides equally, the Vice-President as President of the Senate, who ordinarily has no vote at all, gives the casting vote. Here you have the two bodies divided ; one favors one certificate, the other the other. The State has to lose its vote al together or leave it to some umpire. I ask would it not be within the spirit of the Con stitution to let the Vice-Presiclent decide? Mr. MORTON". If, when the Senate comes to decide the question, which is the correct return, there is a tie vote in the Senate, and the Vice-President is presiding, not a President pro fompore, he can cast a vote in that case, deciding the question in the Senate; but there is uo provision in our Constitution authorizing the Vice-President or any other officer of Gov ernment to come in and settle the question where the two Houses disagree. If there is a tie vote in the Senate, the Vice-President can cast the deciding vote ; but it is not in conform ity with the spirit of our Constitution to pro vide for some officer who shall settle between the two Houses when they disagree. There fore it seems to me that this provision is a matter of necessity. You have got to leave I li s disputed question somewhere, and is it not safer, is it not more democratic, more republi can, to leave it to the two Houses than to any single officer ? You cannot take it into a court ; that is clear. Mr. MAXEY. The Senator is correct if the two Houses can agree ; but what I am trying to reach is where the two Houses disagree, how are you going to save the right of a sovereign State? We ought to do that if we can. Mr. BOUTWELL. Mr. President, I cannot assume that I entertain the same opinion of the wisdom of this measure that is entertained by the honorable chairman of the committee, nor do I anticipate that if adopted it will prove efficacious in that moment of imminent peril when it is expected to be operative and to guard the interests of the country. We have gone on nearly a century without legislation. For three presidential periods we had a joint rule, a very bad one, for it augmented our dif ficulties rather than diminished them, and in creased the apprehension which careful and judicious men naturally entertained concerning the possibilities of danger to the Republic in passing through the great crises of its exist ence. In the examination which I have given to the provisions of the Constitution relating to the election of President and Vice-President, I have become more and more convinced, as my reflection and examination have been ex tended, that not only did the framers of the Constitution do all that was possible in order to secure safety in the counting of the votes for President and Vice-President, but that in fact they did substantially all that was neces sary. I do not accept the suggestion that the Vice-President of the United. States has any thing more to do in the business of counting the votes for President and Vice-President than that specific duty which is prescribed for and enjoined upon him by the Constitution. That duty is, in the presence of the Senate and House of Representatives to open the certifi cates. There being no other duty assigned to him, I infer naturally that he is to do nothing more. Almost always, I think, when the subject has been discussed, the question has been pre sented whether Congress is to count the votes ; and by Congress I mean the two Houses met in convention, according to the terms of the Constitution. Our best answer to that is the fact that from the first convention that assem bled until the last, the two Houses in conven tion always did count the votes. A teller was appointed by the Senate, two tellers by the House. The votes, or certificates, or returns, whatever they are called, were handed by the Vice-President, after he had opened them, to the tellers. The tellers were the organs, the instruments, the hands of the respective Houses. The votes wers counted by the tellers, and be ing counted by the tellers, they were counted by the two Houses ; and, therefore, there never has been any difference of practice, and no 512 PROPOSED LEGISLATION AS TO THE MODE OF different practice could have arisen under the Constitution. The two Houses in convention have from the first until now counted the votes. I agree entirely with the suggestion made by the honorable chairman of the committee in regard to the power to count the votes and the duty to count the votes. The power was con- i erred upon Congress and the duty was en joined upon Congress. The power and the duty are in Congress. Congress must exercise the power and perform the duty, and it is not possible under the Constitution to transfer it. If that be so, then the suggestion of the Sena tors from Virginia and Texas is answered, whether some device may not be resorted to by which there can be an arbitration and a judgment when a case shall arise such as is provided for in the second section of the bill. There can be, under the Constitution, no tri bunal to decide that or any other question arising in the course of counting the votes ; the duty is imposed upon the two Houses of Con gress. They alone can perform it, and they have not the power to transfer its performance to anybody else. Whether this power is there for weal or for woe, there it is ; and until the Constitution is altered there it must remain. I say I have not the faith in the wisdom of this measure that is probably entertained by the honorable chairman of the committee ; and yet I expect to vote for the bill. I have not the faith in it because I do not see the consti tutional force that can be given to this bill, so that when it becomes a law it will be impera tively operative upon the two Houses of Con gress that may assemble under it. I can un derstand that a joint rule adopted by each Congress would be operative upon that Con gress that might be called upon to count the votes in a particular case, not only in good conscience, but in such a general judgment of the whole country that we may say, speaking in the ordinary use of language, it would not be possible for either House to violate the obli gation imposed upon it by the joint rule and receive any support from any party in the country ; but I think a law would have some what less force upon a Congress or upon one branch of a Congress that might find it con venient not to obey the law. Here is a duty imposed upon Congress by the Constitution ; it is a duty to be exercised at stated periods. The provision of the Con stitution does not operate upon every Con gress, but it operates upon particular Con gresses. Can a Congress to which or upon which the provision of the Constitution does not attach at all legislate and bind the con science and the judgment of a Congress {that is to perform a duty imposed by the Consti tution especially upon itself? I have great doubt upon the point, whether, if the exigency should arise when it would be thought desir able, so desirable as to be expedient, for one branch or the other of Congress to disregard the law (and that would be just the exigency when probably the law should be observed), we should not find one body or the other will ing to take the responsibility, and, upon the argument that could be presented, to go to the country for justification. Nevertheless it is true that, if we can devise a wise and just sys tem, a system in harmony with the practice of the country and the judgment of men as to the constitutional provision, its enactment into law such is the respect of the American people for law would do something to secure the country against the evils that might other wise arise; and therefore I am disposed to vote for the bill substantially as it is presented to us; and yet without feeling absolutely se cure that it so rests in the power of Congress under the Constitution that a Congress called upon to observe it might not feel authorized to disregard it. Still further, Mr. President, I think the counting of the votes, in the language of the Constitution, means something more than a mere examination of the certificates returned from the electors of the respective States. There are several precedents, I think, which go to show that our predecessors have also entertained that opinion. But it must, in the nature of the case, mean something more. Under the first section of this bill the votes are to be counted unless the two Houses con cur in the rejection of them. The reason for this, it seems to me, is plain. The presenta tion of a single certificate in the usual form is prima facie evidence of the truth of what the certificate contains, and there being no testi mony controverting that prima facie case, it certainly ought to stand until it is overruled by the concurrent judgment of the two branches of Congress authorized to pass upon the ques tion. But when two certificates are returned from the same State, it cannot be said that there is a prima facie case for either of these certificates, and with less reason can it be said that there is a prima facie case for both of these conflicting certificates, and therefore there is not a prima facie case for anything. Two consequences follow from this state of things: First, that the counting of the votes under the Constitution means something more than the mere examination of the paper cer tificate; otherwise there would be no possible means by which Congress, when there were two certificates returned from a given State, would have the power of ascertaining what the truth is. Hence, in the very nature of the case, there is power under the Constitution, vested in the two Houses of Congress, if the occasion demands it, to go behind the certifi cate and inquire into the facts; and that is a general power lodged in all tribunals and as semblies of men where there is authority to ascertain the truth in regard to an election. Secondly, it follows that neither of these cer tificates can be accepted and a result deduced from it unless the two Houses concur in ac cepting that certificate ; and from that a third COUNTING THE ELECTORAL VOTES. 513 conclusion necessarily results, that if, unfor tunately, through accident or intrigue or -the machinations of persons hostile to the true in terests of tlje country, two returns come in from a given State, and it is not in the power of anybody to demonstrate to the two Houses which is the true return, that State must lose its vote. That is what happens in all cases where the truth cannot be ascertained ; some one suffers as a consequence of that inability, and no scheme that we can devise will rid us of that difficulty. We must rely upon the integrity and intelli gence of the people first, secondly upon the electors and representatives of the people in the respective States, and at last, notwith standing the divisions of opinion upon party questions, notwithstanding the diversity of in terests, notwithstanding the clash and the hos tility of diverse purposes among men, we have in the end to rely much upon the integrity of the tribunals constituted by the Constitution to pass upon great questions involving the in tegrity and the continuance of the Government itself. All governments are exposed to dan ger. Not yet has human wisdom devised a government free from danger. The machina tions of men hostile to the perpetuity of a government always create apprehensions, and when by constitutional provisions you have set up every safeguard and interposed every check which human wisdom or human ingenuity can devise, there still remains the element of dan- ger*in unmeasured quantity. The people of this country have confided something to Congress, and this is one of the powers confided to Congress, a solemn duty resting upon it. We have, with all the confi dence we can command, to believe that each succeeding Congress when called upon to act in this critical period of national life will do its duty. In this view of the case as I am able to pre sent it, I am disposed to vote for the bill; and yet I am not sure but that the Constitution, in terpreted ifi its natural sense and in the light of the usage of the country for nearly a century, would after all be as good security for the peace and the continuance of the Government as any measure we can devise. Mr. THURMAN. Mr. President, this is no new subject to me. Soon after the count of votes at the last presidential election I took oc casion to say in the Senate that in my judgment unless something were devised to obviate the danger to the country that might grow out of the count of the vote for President, we might find the country plunged into civil war upon the question who has been elected President of the United States. That count was calculated to make every one reflect, to make every one feel how dangerous is our situation. We saw more than one State deprived of its electoral vote on that count where the two Houses were divided in opinion ; we saw States lose their vote entirely ; and fortunate it was for the 33 country that the rejection of those States did not change the result. If the case had been that the votes of those States, if counted, would have changed the result, it is almost too much to expect of human nature that that count would have been peaceably acquiesced in. Very soon after that, or I believe at the begin ning of the next session, the Senator from In diana [Mr. MORTON] introduced a resolution and spoke upon it, referring this subject, if I recollect aright, to the Committee on Privileges and Elections for a report. Mr. MORTON". It was three weeks before that count. Mr. TIIURMAN. Before that count ; per haps it was. The Senator spoke somewhat elaborately upon it. The subject was referred to the committee and a bill was reported by that committee. Glancing over this bill, I find it to be substantially the bill that was reported then. I do not know what changes have been made in it particularly ; but I do not dispover, on a hasty reading of this bill, any material changes that have been made. Now, sir, I wish to say that for the second section of this bill, to which exception has been taken, I must assume a portion of the re sponsibility, for I believe that it was upon my suggestion that the Senator from Indiana intro duced this second section into the draught of his bill. I ask my friends to consider what this bill would be if the second section were stricken out. We all agree, I think I am right in saying, that the duty of the President of the Senate is simply ministerial ; that he is not constituted the judge to decide whether a re turn is valid or not. The whole history of the country, I think, is against any such interpre tation of the Constitution as would confer on him that power ; and the fact that more than, once the Vice-President who presided over the joint convention was himself a candidate either for the office of President or Vice-President would seem to be quite sufficient to show that it never was the intention of the framers of the Constitution, or of the people who adopted it, that this great power of judging of elections should be decided by one man and he a candi date. Mr. MORTON. Will the Senator allow me to refer to that ? Mr. THURMAN. I will thank the Senator. Mr. MORTON. In the remarks I made in 1873, and to which I have before referred, I made this statement : Upon the hypothesis that the President of the Senate has the power to open and count the electoral votes, and. that the two Houses are to be present merely as witnesses, and have no jurisdiction over the subject either jointly or separately, everybody must perceive that it is a vast and dangerous power to repose in the hands of one man, especially when he may be ardently devoted to the fortunes of a great party, or when he maybe personally interested sit ting as a judge in his own case ; for it has happened six times in the history of our Government that the President of the Senate has opened and counted the votes for himself, either for President or Vice-Presi- 514 PROPOSED LEGISLATION AS TO THE MODE OF dent. In 1797, John Adams, as Vice-President, opened the votes for himself, and declared himself elected President. In 1801, Jefferson, as President of the Senate, opened and counted the votes for himself when he and Burr were the candidates for President. In 1821, Vice-President Tompkins, as President of the Senate, opened and counted the votes for him self, he being a candidate for reelection; and in 1837, Mr. Van Buren, then Vice-President, counted the votes for himself as President, and declared him self elected. In 1841, Richard M. Johnson, then Vice-President, opened and counted the votes for his reelection as against Mr. Tyler, the opposing can didate ; and in 1861 Mr. Breckinridge, then Presi dent of the Senate, opened and counted the votes for himself as a candidate for the Presidency. Mr. THURMAN. I am obliged to the Sen ator for recalling to our memories those facts. Mr. EATON. May I be permitted to ask the Senator from Indiana from what he read ? Mr. MORTON. I read an extract from the speech that I made some three years ago. Mr. EATON. I did not suppose myself that the Vice-President counted the votes at all. Mr: THURMAN. That was exactly the con clusion I would have come to, that the count ing is not by the Vice-President, and these facts show that it never could have been con templated that he should be the judge of the election. What his duty is, is prescribed in the Constitution : The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. There is no duty devolved upon him but to open the certificates in the presence of the Senate and House of Representatives. That is all the function that is devolved upon the President of the Senate, and that is all the duty he has to perform. We do not disagree about that. The votes then are to be counted. How are they to be counted ? They have been counted by a sort of common understanding as to the mode of procedure. They were up to the time of the adoption of the twenty-sec ond joint rule. But now that joint rule, it is held, has been abolished by the Senate reced ing from it, or by its falling at the end of a Congress. So, at least, I understand a ma jority of the Senate to hold. How, then, are the votes to be counted ? In answer to what is said by the Senator from Massachusetts about a law being inoperative, and some re marks that seemed to favor the regulation of this matter by rule, I have this fundamental principle to assert: that where a power is vested in any department of this Government, and the particular mode of exercising that power is not prescribed in the Constitution, that mode is to be prescribed by law. I never thought that a joint rule was the proper mode. I repeat, when a power is vested in any de partment of this Government and the mode of its exercise is not prescribed by the Constitu tion, the prescribing of that mode belongs to the law-making power, the Congress of the United States; and, therefore, in this case, where the Constitution simply says that these votes shall be counted, without prescribing in detail the mode of their count, it follows ne cessarily from the structure and genius of our Government, and from the very nature of legis lative power, that that mode is to be prescribed by law. I never believed, therefore, that a joint rule was the proper mode. I believe that a law is the proper mode ; and I believe that that law binds everybody, binds each House of Congress as much as any law binds us until it is repealed. I have no difficulty there fore with this being a law. I think it proper that it should be in the shape of a bill to be come a law. Now, I ask my friends to consider what this bill would be if the second section were strick en out. The first section provides, in accord ance with the Constitution, that the returns shall be opened and laid before the convention of the two Houses. If there be no objection to a return it is counted as a matter of course ; but if there be an objection to a return, then the first section provides that the Senate shall retire, and each House shall consider the ob jection, and that return shall be counted unless both Houses concur in rejecting it ; and if both Houses concur in rejecting it, then it is to be rejected ; but if either House is in favor of counting it, it shall be counted. But suppose there are two returns from a State ; the presid ing officer, the President of the Senate, is the man who is to open the returns ; he opens the return first which he sees fit to open, and it would not happen one time in ten thousand that he would not know whose return that is ; he would know whether that return was in favor of the candidate of his party, or whether it was a return in favor of the candidate of the other party. He then selects the return which is in favor of the candidate of his own party, and lays that before the joint convention of the two Houses. Objection is made ; the Sen ate retires ; one body votes for that return, and the other body votes against that return. Un der the first section that return must be count ed. Thus by that means you have put it com pletely in the power of the Presiding Officer of the Senate, by presenting one return before another, to cause that return which he first presents to be counted as the vote of the State. Mr. MAXEY. I do not think the Senator states it precisely as the second section reads. Mr. THURMAN. I am speaking of the first section. Mr. MAXEY. There is no objection to that so far as I know ; but the question raised by the Senator from Ohio was as to the propriety of striking out the second section. I presume no one is in favor of striking that out entirely, but the second section reads that if there are two returns from the same State, both those re turns shall be opened by the President of the Senate, not one submitted to be disposed of and then another, but both shall be opened. Now the query arises: One of the Houses is in favor of sustaining one of thor-e returns, and the other COUNTING THE ELECTORAL VOTES. 515 is in favor of sustaining the other return ; the Houses divide. There i$ no presumption in favor of those certificates, because they are of equal dignity. As the section now stands, the vote of that State falls, is not counted either way. The question which I have endeavored to raise is : Can there not be, by the Committee on Privileges and Elections, some means de vised whereby the vote of the State in that case may be saved and counted in the selection of President and Vice-President? That is the point. Mr. THURMAN. I am coming to that pres ently. I was endeavoring to show what would be the result if the second section were stricken out. If it were stricken out it would be abso lutely in the power of the President of the Senate to determine, by presenting one return before another, which return should be counted as the vote of the State. Then we all agree that the bill ought not to stand upon the "first section alone, and that pro vision ought to be made for the case of two or more returns from a State. Is there any like lihood of such a case occurring which makes it necessary to legislate in respect to it ? Yes, sir. We had two returns from Louisiana at the last election, and we had two returns from Arkansas at the last election ; so that the case of two returns from a State is not simply a possible case, but it may be said sometimes to be a probable case ; at all events it having oc curred, it cannot be said that it is a far-fetched idea which need not be taken notice of by practical statesmen. It has occurred, and it may occur again. Mr. KERNAN. Permit me to ask did the Vice-President produce both returns under the clause of the Constitution? Mr. THURMAN. He did produce both. Mr. KERNAN. And open both? Mr. THURMAN. Yes. Mr. KERN AN". So that somebody had to decide which was the true return ? Mr. THURMAN. He did open, according to my recollection, both from Louisiana, and both from Arkansas, and they were both re jected, if I recollect aright. Louisiana was I know. Mr. MORTON". There was but one set from Arkansas. Mr. THURMAN. There were thought to be two. Mr. MORTON. There were supposed to be two at first; but there turned out to be only one. Mr. THURMAN. There were certainly two from Louisiana. Then, in order to prevent the President of the Senate from forestalling judg ment by simply presenting one of the returns, this second section requires him to present them all. There is no objection to that. Then comes the question, where there are two re turns how are we to decide between them? We are to decide between them, as I suppose, according to the provisions of some law which we shall enact, which will enable us to come to a decision. This second section undoubt edly may have the effect if there be no amend ment to it, and no remedy can be found, to cast out the vote of a State because the two Houses cannot agree which is the correct re turn. Mr. BAYARD. That leaves a veto power to either House. Mr. THURMAN. I do not care by what name you choose to call it ; that is the result. I suppose that in any other case that should come up for decision before any tribunal, if there were a question which of two papers, for instance, was a valid paper, and which was a forgery, and the court was composed of equal numbers, and two of them should decide in favor of one paper, and two decide in favor of the other, both papers would be excluded. The only question, and the difficult one, is this : Is the Constitution so impotent that we cannot provide a remedy or a tribunal to decide where the two Houses disagree ? As I have said, the mode is to be decided by law. It is submitted to the law-making power to provide the mode by which it shall be ascertained which is the true return ; and I must say that I am not pre pared just now to assert that we cannot pro vide some mode by which this difficulty., where there is this disagreement between the two Houses, may be decided. Mr. EATON. Allow me to suggest that that is just the fault in my mind with the second section that it does not provide a tribunal to decide ; it dodges the question. It throws out possibly both returns, and thus the State is dis franchised. I hope my friend from Ohio will be able to find some tribunal which will deter mine the matter. I think I can suggest one by and by. Mr. THURMAN. I hope those who have devoted some attention to this subject will be able to find some tribunal or some mode of de ciding; and I am sure that I shall give my sup port to any constitutional mode that is reasona ble and proper and just in itself by which this difficulty arising from a disagreement between the two Houses can be decided. Mr. MAXEY. Will the Senator from Ohio allow me to make a suggestion at that point? Mr. THURMAN. Yes, sir. Mr. MAXEY. Every practising lawyer knows that there is sometimes a case omitted falling within the purview of the law and which ought to fall within the purview that is not discovered at the passage of the law, but it is discovered in practice. Here we do discover before the law is enacted that if this law is en acted as it now stands, there may be an impor tant omitted case. It is to meet that that I have been so persistent in this matter. I can readily perceive that a case may arise where two certificates will come from the same State. I can conceive that one House would adopt one certificate and the other House the other ; and, as the bill stands, the inevitable 516 PROPOSED LEGISLATION AS TO THE MODE OF result would be that the vote of that State would not be counted. Now, can there not be and I address that question to the Committee on Privileges and Elections, because it is their peculiar province some mode devised where by, in the event of a disagreement of the two Houses, the vote of the State can be counted, and that too in compliance with the Constitu tion ? I will add that I believe, as has been stated by the Senator from Ohio, that this matter should not be left to a rule, but it should be done by a law which binds all, from the highest to the lowest, Congress and everybody else. Let us make a law which will provide for every contingency. This contingency which has been so persistently urged as being proper to be pro vided for is, in my humble judgment, of very great importance; and, as the matter is open, I would ask can there not be some means de vised for counting the vote of a State in the event of a disagreement of the two Houses, as mentioned in the second section? Mr. THURMAN. I have already stated, Mr. President, that I would not undertake to say that no mode could be provided, and I shall hail with joy any reasonable and constitutional mode that shall be proposed, for we ought by all means to avoid depriving any State of its vote. That is the first and most important thing, and just so far as we can go pursuant to the Constitution, just so far as we can provide for the contingency of two returns and of the two Houses disagreeing in respect to them, just so far as we can go to provide for the solution of that difficulty, just so far we ought to go within the limits of the Constitution. Now, sir, I am not prepared at this moment to suggest how this problem should be solved. It is full of difficulty. But in order to aid a little in solving it, I wish to say that it is not Congress in its legislative capacity that counts the votes; it is not Congress as a law-making power that counts the votes. Laws can be enacted by Congress only in pursuance of the Constitution, in the mode provided by the Con stitution. When Congress acts upon these re turns, it is not acting in the exercise of its law- making power ; it is not acting under its legis lative power. Congress can provide by law the mode of counting these votes. The only question is what limitations are there on our power to provide that mode. I know it was suggested, and I think a propo sition to that effect was offered at a previous session, that the votes should be counted, in case of a disagreement betwen the two Houses, by the Supreme Court. I for one must say that I hardly see how that could be done. The Supreme Court is a part of the judicial system of the United States. It is a distinct depart ment, clothed with judicial power and no other powers ; and I for one am not able to see how Congress can devolve on the Supreme Court any powers that are not judicial. It has cer tain original jurisdiction conferred upon it by the Constitution. It is no part of that original jurisdiction to coun* the votes for President and Vice-President, or to decide any question relative to the election of President or Vice- President. Then what other jurisdiction has it? All the rest of its jurisdiction is appellate jurisdiction, such appellate jurisdiction as shall be conferred upon it by Congress. And now, what is meant by the appellate jurisdiction of the Supreme Court ? It is the jurisdiction by appeal from the decisions of inferior courts. It is not meant appeals from the decisions of the executive department; much less is it meant appeals from the decisions of the legis lative department or from the two Houses of Congress when they are assembled together to count the votes for President and Vice-Presi dent. I do not see, therefore, that you can confer this power upon the supreme judges as judges, sitting as a Supreme Court to decide this question, because it is not a judicial ques tion within the meaning of the Constitution of the United States. And to say that you could confer it upon them as nine individuals is to say that you can confer it upon any other nine in dividuals in the United States. It do not see, then, that we can get out of the dilemma by making the supreme judges the umpire between the two Houses of Congress. Then we shall perhaps be brought to this con clusion, to decide whether or not we shall give to the decision of one of the two Houses of Con gress a predominance over the decision of the other. I am afraid it will come to that. But if some one has the ingenuity to devise some other method, I shall hail it with great pleas ure ; and I hope the discussion may last upon this bill until some such mode can be found, if it exists, consistent with the Constitution. If it can be, I shall vote for it. If it cannot be, I shall vote for the bill without it. Mr. WHYTE. Mr. President, it is eminently proper that there should be some act of Con gress regulating the decent order of proceed ings in counting and ascertaining and declar ing the electoral vote of the States. Therefore I shall vote for a bill looking to that, and to that only. The bill presented by the Senator from Indiana, as the chairman of the Com mittee on Privileges and Elections, does cover that part of the case. There are other por tions of his bill which in my judgment are thoroughly and entirely unconstitutional. It was wise at the beginning of this session of Congress that the Senate of the United States should undertake the work of reform and an nihilate a joint rule which was an enormity, a rule which passed this body almost without debate, which was not intelligently discussed at all, or its defects properly pointed out. It passed through the Rotunda to the other side of the Capitol, and there at a night session, without debate, under a suspension of the rules, a rule of such a grave character as that received the votes of a majority of the Representatives of the people. That rule put it in the power COUNTING THE ELECTORAL VOTES. of either House of Congress to defeat the will of the people expressed at the preceding presi dential election. It was extraordinary in its character, and I was glad to see the Senate of the United States so soon repudiate it. I differ with most of the Senators whom I have heard discuss this subject. The Senator from Indiana seems to have objection to the place where the privilege of counting and an nouncing the result of the electoral vote is now lodged, and he asks us, where is it safest to put it? I say put it where our fathers put it ; put it where the Constitution puts it, and leave it there. It seems to me there can be no difficulty if we stand upon the provision which our fathers made for that case. It belongs to the President of the Senate to count the elec toral votes. I differ with the Senator from Massachusetts when he speaks of the two Houses counting the electoral votes. I differ with Senators who doubt for a moment that our fathers meant to leave it in the power of the President of the Senate to open the cer tificates, to state the votes of the people of the States, and to declare what the people had de termined should be in the future their will. I am surprised that we should stop here to-day to discuss the question whether we have a right by legal enactments to take away from the people that power put in the Constitution of the United States for their benefit merely authorizing the Vice-President of the United States to enunciate their will. Mr. MORTON. Will the Senator allow me to ask him a question ? Mr. WIIYTE. Certainly. Mr. MORTON". Where there are two re turns, each purporting to be the returns of a State, does the Senator hold that the Vice- President is authorized to select the return which shall be counted? Does he construe the Constitution in that way? Mr. WHYTE. I do hold that the Vice- President of the United States is the proper person to state which vote shall be counted, because the Constitution has put it in his 1 lands. I do say that, probably, except, for the military interference, there never would have been any question as to what was the right return or the proper exhibit of the pop ular will in any of the States of this Union. Our fathers lodged the power with the people, in their Legislatures, in their States, to regu late the election of electors, and only left it to Congress to enunciate the voice of the people, the result of the action of the people in the several States. The Constitution puts the power in the President of the Senate in plain and unmistakable words. It is merely a minis terial duty. He has nothing more to do. It is his duty to open the certificates. The elec tion has taken place in the November preced ing. He knows who is governor of the State. The presumption is all of us know who is legal governor of the State. The law prescribes the mode in which the electoral colleges shall meet, in which they shall cast their votes, in which they shall make certificates and lists, and pro vides for the certificate of the governor of tho State. Mr. MAXEY. If the Senator from Mary land will allow me, the reading of the Consti tution upon that point is this : The President of the Senate shall, in the presence of the Senate and House of .Representatives, open all the certificates, and the votes shall then be counted. It does not say that the votes shall be count ed by the President of the Senate. Mr. WIIYTE. No ; it did not mean to im pose upon the President of the Senate the mere clerical duty of writing down the votes before him, as the Secretary of the Senate now does on every vote we cast here. It did not mean to impose upon him the clerical work of writing down the number of votes cast and making the calculation ; but it did impose upon him the duty of making the actual count and announcing the result of the popular will. So, as I will show the Senator from Texas in a moment, Congress acted upon that theory when the first Congress met. Let us look at the question as stated in the Constitution : The President of tfie Senate shall, in the presence of the Senate and House of Representatives That is all they have got to do with it. It is to be done in their presence, so that the eyes of the Representatives of the people in the House and the eyes of the representatives of the States in the Senate shall see that, as an American citizen, holding the high position of President of the Senate, he is discharging his duty faithfully before the people, that great duty confided to him, of opening the certifi cates and counting the votes and announcing the result of the action of the people in their several States. The President of the Senate shall, in the pres ence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. Counted how ? Under his direction, under his eye ; calculated, I care not whether by the Secretary of the Senate or by the Clerk of the House of Representatives. That is all that the House of Representatives have to do ; that is all that the Senate have to do ; to be per sonally present and see the formality gone through with, in order that the Vice-President or the President of the Senate might not in his chamber or in his retiring-room open these certificates and announce to the world what the result had been. Say some Senators, the Vice-President has no power, and would you not rather trust the Senate or the House of Representatives than one man? No, Mr. President, not in performing a ministerial duty. Mr. MORTON. I would ask my friend "if choosing between two sets of votes is a min isterial duty ? Mr. WHYTE. Yes ; it is announcing what is the vote of the State ; it is counting the vote of the State under the Constitution. Our 518 PROPOSED LEGISLATION AS TO THE MODE OF fathers understood that to be the duty of the President of the Senate. It is no new idea of mine. Our fathers recognized the President of the Senate as the proper officer to count the votes of the electoral colleges, for when they sent the Constitution to Congress to be transmitted to the people of the States, what did they say ? They had provided for a Vice- President in the Constitution to preside over this body. The Constitution made him the presiding officer of the Senate. Therefore who was to count the votes ? Congress ? Con gress was here ; Congress was elected ; Con- ress was supposed to be in session. Then, if ongress counted the votes, there was no dif ficulty about it ; but what did our fathers say when they transmitted this Constitution to the States ? They sent down with it over the signature of George Washington this direction to the Congress first assembled after the presi dential election. After the other details it was resolved : That the Senators should appoint a President of the Senate, for the sole purpose of receiving, open ing, and counting the votes for President. Our fathers trusted the President of the Senate. Our fathers told the first Senate that assembled, " In order to meet the provisions in regard to the President of the United States, you must have a President of your Senate." For what purpose? To receive the certifi cates, to open the certificates, and to stop there and leave it to Congress to count them? No, for receiving the certificates, for opening the certificates, and counting the votes for President of the United States. So it is to day as it was under the first Congress that met after the adoption of the Constitution, and they have acted under it. Congress after Con gress has acted under it ; and this very twenty- second joint rule and the act proposed by the Senator from Indiana down to the words " two Houses " on the twenty-first line of the second page, with the exception of changing the date, is nothing more nor less than em bodying the practice of Congress from the foundation of the Government down to 1865. It is nothing else than the practice that has preceded. They appointed a teller on the part of the Senate and two tellers on the part of the House. These two made an actual manual count, and the President of the Senate an nounced to the two Houses and to the country what the result of that count was. It would be a monstrous thing to say that either House or both Houses of Congress can defeat the will of the people of the States, with whom exclusively is lodged the power of elect ing a President and Vice-President through their electoral college. The Constitution, in article second, left with the people of the States the arrangement of their electoral vote : Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Repre sentatives to which the State may be entitled in the Congress. So that the whole power is in the people. The power is left with the people. Under the act of 1792, after they have sent here a certifi cate of their will from the States, all provided for regularly, these two Houses have nothing to do with it but to obey their will ; and in order that that will may be properly ascer tained the act of 1792 expressly provides the mode in which it shall be certified to Congress : That the executive authority of each State shall cause three lists of the names of the electors of such State to be made and certified, to be delivered to the electors on or before the said first "Wednesday in De cember, and the said electors shall annex one of the said lists to each of the lists of their votes. Then the act requires Congress to be in ses sion : On the second Wednesday in February succeeding every meeting of the electors ; and the said cer tificates, or so many of them as shall have been re ceived, shall then be opened, and the votes counted, and the persons who shall fill the offices of Presi dent and Vice-President ascertained and declared, agreeably to the Constitution. That is, by the President of the Senate, un der the provisions of the Constitution. It was intended to leave it to the people, and it was intended that the Senate of the United States should have nothing to do with the election of President of the United States. I would rather vote for a bill leaving it to the House of Rep resentatives to interfere than a bill which pro vided that the Senate should have anything to do with the election of President of the United States. We do not represent the people here. We represent the Legislatures of the States. We represent the States themselves, the gov ernment of the States, and not the people in their primary sovereign capacity. The other House comes from the people. Every two years representatives come to the other side of the Capitol to speak the voice of the people ; and I would rather let the House of Repre sentatives interfere than vote for any bill that permits the Senate to have part or lot in deter mining who shall or who shall not be Presi dent of the United States. The framers of the Constitution denied it to us. They denied it to us upon the very ground that we represented the States ; that we were elected for the long term of six years ; that we did not go back to the people often enough to be responsible to the people. Therefore, although when this clause of the Constitution was originally pre sented to the convention it left it to the Sen ate to elect a President and Yice-President of the United States in case of a failure on the part of the people to elect, the convention would not allow the Senate to have anything to do with it, and they struck out the Senate and put that clause in the Constitution which now remains, placing it in the power of the House of Representatives to elect where there is a failure on the part of the people, making them vote by States in order that some regard may be paid to the voice of the people of the States. COUNTING THE ELECTORAL VOTES. 519 I said it was safer to leave a question of this character in the hands of one man than in the hands of many. Divide the responsibility, and it becomes so small, so infinitesimal, that scarce ly any man feels it ; but centre it in one man of honesty and integrity, put him before the people liable to impeachment for high crimes and misdemeanors, hold him accountable for speaking the voice and will of the people, and my word for it there is a greater protection to the body of the people than in a majority, which are often more tyrannical than any sin gle man. I shall vote for th.it part of the bill, if it can be so dissected and divided as will make a reg ular and orderly mode of procedure in the count and enunciation of the vote for Presi dent and Vice-President ; but I will vote for no bill which takes away the power of an nouncing the vote, the power of counting the vote, the power of opening the returns, from that officer whom in my judgment our fathers designated as the proper depositary for such power. Mr. COOPER. Mr. President, as one of the Committee on Privileges and Elections, I felt that the great difficulty in framing a bill and passing it into a law, to meet the troubles which we all feared might arise, would be found in meeting the question suggested by the provisions of the second section. As the de bate this morning has developed, the same fear exists in the Senate and the same difficulty. It is conceded that difficulty may arise in the count of the votes giving proper expression to the will of the people expressed in the choice of electors for President and Vice-President. The Senator from Maryland has discussed with earnestness and ability the question which trou bled some members of the Committee on Priv ileges and Elections, who I am sorry to say are not here to-day to participate in this debate and press those objections more fully before the Senate. I confess that I can see no objection to a law providing for the mode and manner of count ing the vote. I desire by that law of course to reach what is in fact the will of the people. Having been present at the counting of the votes of the last presidential election and wit nessed the decision of the two Houses where there were two returns from one of the States, I could very well see and feel the danger which is liable to occur in the future. I do not sup pose our fathers thought of that want of po litical integrity which would induce separate returns from a State or ever imagined that the people would be so lost to their rights as to permit such a thing to occur, or that Congress would ever assume to itself the right to inter fere within the limits of a State in settling that question for the people. The Constitution in providing for the election of a President and Vice-President evidently intended that it should be made by the people of the different States, acting through laws enacted by the States themselves, because it will be remarked that the Constitution vests no power in Con gress to provide either for the mode or the manner of choosing electors, but leaves that duty wholly to the Legislatures of the several States. The difficulty that has arisen, as was very truthfully said by the Senator from Maryland, has been caused by the interference of the mili tary power of the Government of the United States in the internal affairs of the States, and by placing persons in power and retaining them contrary to the will of the people. The "framers of our Constitution imagined that the people of the States were capable of govern ing themselves ; that they were capable of ex pressing their will at the ballot-box, and in augurating those as their rulers whom they may have thus chosen at the ballot-box, and scarcely imagined that the Federal Govern ment would interfere to prevent them from thus installing the rulers of their choice. Con sequently the Constitution left to them and to the Legislatures chosen by themselves the province of choosing electors to select the President and Vice-President. Whatever may have been their intention, however, we must meet facts as they exist. We do know that the difficulty which the second section seeks to provide against has arisen and may arise in the future; and the great question to be de termined, it seems to me, is, where shall we lodge the power of deciding in such an emer gency what has been the expressed will of the people of a State who may by some abnormal condition in their political affairs send two re turns to be counted purporting to be the vote of the electoral college of that State? The bill as reported by the committee pro poses to vest this power in the two Houses of Congress acting separately. It provides that they must concur before the President of the Senate or the proper officer shall be permitted to count either of the returns thus made. It seems to me that, if we would avoid a conflict where such a difficulty arises, it would be bet ter to vest the choice of which is the proper return in somebody who will determine it and not leave it between the two Houses, which may be composed, as at present, of opposite politics, and which would be apt in that case to disagree, and thus exclude the vote of any State that might thus send two or more re turns. The suggestion was first intimated by the Senator from Pennsylvania, and afterward by the Senator from Maryland, that, as the Con stitution has vested the House of Representa tives, who are directly from the people, with the power to choose a President in default of an election by the people, it gives us the proper idea of what would be the safest body with which to intrust this power of choice in the event of a difference of opinion or of two re turns coming from any one State. It strikes me to be more consistent with the theory of 530 PROPOSED LEGISLATION AS TO THE MODE OF the Constitution of the United States that this power should be vested in that body thus pointed out by the Constitution to choose a President where the people themselves shall fail to make a choice than that it should be placed elsewhere. I therefore have prepared an amendment to the second section, which I offer for the consideration of the Senate, car rying out this view to vest in the House of Representatives of the people, the choice of the proper returns to be counted in the event that two or more returns are sent up. I move to strike out in the second section all after the word " which " in line 7 to the end of the sec tion, as follows : The two Houses acting separately shall decide to be the true and valid return. And in lieu thereof insert the House of Kepresentatives, voting by States, in the manner provided by the Constitution when the election devolves upon th*e House, shall decide to be the true and valid return. So that, if amended, the section will read : That if more than one return shall be received by the President of the Senate from a State, purporting to be the certificates of electoral votes given at the last preceding election for President and V ice-Presi dent in such State, all such returns shall be opened by him in the presence of the two Houses when as sembled to count the votes; and that return from such State shall be counted which the House of Kep resentatives, voting by States, in the manner pro vided by the Constitution when the election devolves upon the House, shall decide to be the true and valid return. Mr. FRELINGHUYSEtf. Mr. President, it had always appeared to me that the provision of the twelfth article of amendments to the Constitution, which declares that the Presi dent of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and omits to say that he shall do anything more, was equivalent to the ex clusion of the idea that any other duty was to be performed by him, and that the Constitu tion left it open as to who should count the votes otherwise than by stating that they should " then be counted." There is some force, haw- ever, in the resolution of the convention to which our attention has been called by the Senator from Maryland ; and as we are making suggestions it has occurred to me that the sec ond section might be amended by adding : And if the two Houses do not agree as to which is the true and valid return, then the President of the Senate shall determine which is the valid return. I do not mean to say that, on deliberation, that is the best provision ; but it is very clear from the amendments which, have been offered that it is within the compass of our power to provide for that omission which exists in the bill. It is not likely that any vote will be taken on this bill to-day, and I have no doubt the reflection of the different Senators will provide the remedy which is sought for. Mr. MAXEY. Mr. President, I listened with great attention to the able argument of the Senator from Maryland [Mr. WHYTE] ; and, as I had his permission to read a clause from the Constitution, I wish to state that it was with a view to the point suggested by the Sena tor from New Jersey : The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates. There is a positive, unequivocal duty de volving upon the President of the Senate. What is that duty ? That duty is, in the pres ence of the Senate and House of Representa tives, to open all the certificates. Then what follows : And the votes shall then be counted. It does not say, " by the Vice-President of the United States." My study of the Consti tution has taught me that it is the most guard ed and best expressed instrument that I have ever read anywhere. And the votes shall then be counted. If it had been meant, as is contended, to de volve upon the President of the Senate the duty of counting the votes as well as the open ing of the certificates, I ask why was not the clause so worded as to read thus? The President of the Senate shall, in the presence of the Senate and House of Kepresentatives, open all the certificates and count the votes. It does not so read. And the votes shall then be counted. That is the way it reads, implying clearly, in my judgment, that it was the duty of the President of the Senate in determining who was elected President and Vice-President of the United States to open the votes in the presence of the Senate and House of Repre sentatives, and that they should be witnesses to that great event ; but there was another reason for that. It was that the House of Representatives, the direct representatives of the people, and the Senators, the embassadors of the sovereign States, should be there ; that when the expression was used, " and the votes shall then be counted," it was intended that the votes might be counted in the mode and manner which the embassadors of the States, constituting the Senate, and the Representa tives of the people, constituting the House of Representatives, might point out. It was meant that they had the power to point out the mode and manner in which the votes should be counted. That at least is my con struction of the Constitution. As I said on a former occasion, I regard the twenty -second joint rule as an iniquity. It is a blot upon the mode and manner of counting the votes of the electoral college. It gives to either House of Congress the right to stab to the death a sovereign State of this Union. It is for that reason that I have so earnestly pro tested against the rule. It is a perversion of every known principle of law ; for, when a certificate of election comes up prima facie, that is good enough until it is removed ; and COUNTING THE ELECTORAL VCTES. where the two Houses differ, one saying that it is not good and the other that it is good, ac cording to every construction of law that we have learned the certificate stands in full force and effect. But, according to the twenty-sec ond joint rule, that is reversed. If one of the Houses says that it is not good, then the bal ance of the authority, which is the other House, and the certificate itself, is to be over come by one. That is against every construc tion of the law. By that rule the great right of a State, the privilege of a State, to say who shall be its President and its Vice-President may be stricken down. So far as the first section of the bill is con cerned, I apprehend there can be no serious objection to it. It provides clearly in regard to the counting of the electoral votes. The only remaining question, then, is raised in the second section, where two certificates of elec tors come up from the same State. That sec tion provides that in that case both the cer tificates shall be opened by the President of the Senate and shall be submitted to the two Houses, and if the Houses agree upon one of those, that shall be counted ; but if the Houses disagree, then the omitted case stands in full force, and the vote of the State is not counted in an election of President and Vice-President of the American Union. It is to provide a remedy for that loss of the vote of a State that I have so earnestly requested of that committee most competent to judge to make a provision to meet the case. The view which I have and which I suggest ed in the outset is, that the President of the Senate is, by the authority of the Constitution, to open these votes. By the Constitution he is the presiding officer over the joint assemblage of the Senate and the House. If these two Houses disagree, a State should not be de prived of its great right of voting for Presi dent and Vice-President; and the omitted case, in my judgment, can be provided for by giving to the Vice-President, presiding over the joint assemblage of the Senate and House, the right to determine as between these two certificates when the Houses themselves di vide. That, it seems to me, would cut the knot. It seems to me that it would meet the case which is omitted in the second section as reported, and would give to every State the grave and inestimable privilege of saying for themselves whom they prefer for President and Vice-President. As I have stated more than once, I do not want to leave this an open question. I do not want to see more than once a sovereign State deprived of its franchise by being thrown out by one of the Houses. In one of the presidential elections the presid ing officer made an announcement that struck the American people as perhaps the most ex traordinary announcement that was ever made by a presiding officer over any body of men. I do not want to see any rule established which would justify, authorize, or tolerate such an expression as on<! of a presiding officer over the Senate and House; provision made whereby each one of tne sover eign States of the American Union can come up, and, beyond all peradventure, beyond all doubt, cast its vote for President and Vice- President. I believe that such a provision may be made. I do not present it as the best mode, but I simply suggest that, where the two Houses do differ, the decision might safe- ly and constitutionally be lodged in that event because we must leave it somewhere or de prive a State of its right in the President of the Senate, who is the presiding officer over the joint session of the Senate and the House. The PRESIDING OFFICER (Mr. WEIGHT in the chair). The question is on the amend ment of the Senator from Ohio [Mr. SHER MAN]. The Chair was under the impression that the only pending amendment was the one offered by the Senator from Tennessee [Mr. COOPER]. He is now advised that the first amendment in order is the one offered by the Senator from Ohio. Mr. BAYARD. I ask that that amendment be reported. The PRESIDING OFFICER. The amend ment of the Senator from Ohio will be re ported. The CHIEF CLERK. The proviso to the third section of the bill reads : That after such debate has lasted two hours, it shall be in the power of a majority of each House to direct that the main question shall be put without further debate. It is proposed to amend that proviso so that it shall read : Provided, That after such debate has lasted two hours, it shall be the duty of each House to put the main question without further debate. Mr. BAYARD. I ask that the amendment of the Senator from Tennessee may be read, because that relates to the section we have been considering. The amendment of the Sen ator from Ohio really relates to a section of the bill subsequent to that which has been un der consideration by the Senate. THE CHIEF CLERK. The amendment pro posed by the Senator from Tennessee [Mr. COOPER] is to strike out in section 2, lines 7, 8, and 9, the following words : The two Houses acting separately shall decide to be the true and valid return. And insert in lieu thereof: The House ot Eepresentatives, voting by States in the manner provided by the Constitution when the election devolves upon the House, shall decide to be the true and valid return. Mr. COOPER. I ask leave to modify my amendment, instead of striking out to leave the section as it now is and add the words : And if the Houses do not agree on which return shall be counted, the House of ^Representatives, vot ing by States in the manner provided by the Consti tution when the election devolves upon the House, 522 PROPOSED LEGISLATION A3 TO THE MODS OF shall decide which shall be the true and valid re turn. So that the question shall only be left to the House voting in that way in the event that the two Houses acting separately cannot agree. Mr. BAYARD. The amendment of the Sen ator from Tennessee commends itself very fa vorably to my mind. It is very true that when the time shall come that the governor of a State or any considerable number of persons claiming any authority shall certify a false cer tificate, a certificate of a false claim of election in a State, to affect the choice of the people of the United States of their Chief Magistrate, and there shall not be in both Houses of Con gress a sentiment of honor and integrity that shall make such plans impossible of success, then the body-politic will be sick indeed, and we may well begin to despair of this experi ment of men to govern themselves. Neverthe less we have seen, we did see in 1872, a conflict in respect of the electoral vote of one of the States of this Union, and, without going back to the history, the very sad and disgraceful history of that time, we must yet recognize the fact that that which has been may again occur, and that, although fortunately the pre ponderance of the electoral vote was so strong as to make this attempt inefficient for any pur pose, still we ought to contemplate the possi bility that such an act might have been the turning point in the choice of the President and Vice-President of this country in 1872, or may be in 1876, or some year of the future. Now, sir, it is important that in settling this question we should do so satisfactorily to the judgment of the whole country, what I may call the sense of common honesty and right of the people, as well as the provisions of the Federal Constitution under which we assume to act. Grant, therefore, that no State is to be disfranchised without the concurrent vote of each House of Congress, and there is some security there ; but where there are duplicate returns, or more than one return sent up from a State, then the .question arises which is the true return and which should be counted ? As the section now stands, it undoubtedly pro vides for the disfranchisement of a State in the event of the Senate and the House not being of the same mind with regard to those returns. If there shall be two returns say from this same State of Louisiana, one casting the electoral vote for one candidate and the other for another candidate, and the Senate shall decide that the votes in favor of A shall be received and the House shall decide that the votes in favor of B shall be received, be tween those two, the difference being irrecon cilable, both votes fall and the State is disfran chised. Sir, such a proposition is not in ac cordance with justice ; it is not in accordance with the genius and intent of our frame of government. Ours was to be a represented people and not a people stifled into silence by the action of either House of Congress, much less by the action of the Senate of the United States, for, be it observed, although the presi dential office was not intended to be the office of popular election, for he was intended to be an officer chosen by a selected body of men, the electors as a college were to be interposed between the people and the President to be chosen ; but custom is stronger than law ; usage has become stronger than law, and so in effect the presidential office has become an entirely popular office ; and, so far as any useful pur pose is concerned, the electoral college might, in my opinion, be as well abolished, because in fact and practically men vote for a candi date for the Presidency or the Vice-Presidency just as directly in effect as if they did not vote for A, B, C, D, E, and F, who were to vote for him as their representatives. The Constitution has provided, however, that in cage a majority of the electoral votes cannot be discovered upon a fair count to have been cast for any one of the candidates, then the popular branch of Congress, the Repre sentatives of the people, shall have the power, voting by States, to choose the President whom the electoral college has failed to choose. The House of Representatives, voting by States, has been said to be the ultimate arbiter of choice of this high officer. The plan of the committee, as reported in this bill, would in the event of the disagreement of the two Houses disfranchise a State and render all its efforts to elect a nullity. The amendment of the Senator from Tennessee prevents the possi bility of that, and giving first in a proper form the right for all parties to be heard and all certificates emanating from what purports to be lawful authority to be presented to the two Houses in joint meeting for the purpose of being counted, authorizes first a separation of the Senate and the House for the purpose of deciding which of these several returns is the just and true one, and in case they should not be able to decide then it relegates the question to that body acting in that form which the Constitution has prescribed for the election of President in case election has failed in the electoral college. The proposition seems to me to run in the current of the constitutional provision. It seems to me to recognize the broad fact that where from confusion, where from error, where from any cause there can not be an undisturbed, definite, distinct count, satisfactory to all men as to its accuracy, made of the electoral votes, then the people of the country acting through their Representatives, voted for immediately by them, shall express their choice. The proposition of the Senator from Tennessee relieves us from the possibility of seeing a State disfranchised in the vote for President and Vice-President. That should be satisfactory to us all. I trust and pray that no occasion for the use of this second section may arise, and that no questions will come affecting this choice as be tween two sets of electors. We know they COUNTING THE ELECTORAL VOTES. 523 cannot honestly exist. We know there must be a decision, and that if it does come it comes as the offspring and child of violence and fraud, as came the votes from Louisiana in 1872, two certificates certifying directly opposite facts. But if it should come, if it be our shame and misfortune that such things shall be presented in the coming year, then let us provide the machinery to meet it, and to meet in accord ance with the spirit, the intent, what I may term the genius of the Constitution of our country. Take the case that from any State there come up two certificates. The Houses separately consider them, and there shall be, much as I should regret to see it, a difference of opinion between the Senate and the House of Repre sentatives as to whether one certificate or the other is the proper one to be opened and the votes to be counted. If they do so differ, how ever, this amendment of the Senator from Tennessee will place the case exactly as though there had been a failure to elect a majority, and remand it to the House of Representatives, the Representatives of the people, where the States voting as States shall decide the question in accordance with the original provision and intent of the Constitution. It seems to me that this amendment of the Senator from Tennessee has the effect of pro curing an ultimate arbitration, constitutional, fair, and just, ono which cannot be alleged to be in the interest of any party, because this law is not meant for one election or another. 1 I would not stop to consider whether the effect would be ultimately, in case of a difference of opinion between the Senate and House, to throw the result in favor of the man who had my vote or that of the party with whom I acted. I have not made it a calculation, nor do I think I am capable of making it the basis of consideration in such questions as are before us; but the amendment has the merit that it prevents the disfranchisement of a State, and it provides for an arbitration to settle the ques tion according to the very theory and meaning of our Government ; that is, when the people speaking by their own voice shall not have made a decision, then, in accordance with the Constitution, those who are directly elected by the people and come freshly from them shall be suffered to speak for them. I can see in this amendment a great deal that is satisfactory, and if it is adopted by the Senate I shall vote for the bill. Mr. KERtfAN". Mr. President, with very great respect to the Senator from Maryland [Mr. WHYTE] I am compelled to dissent from his view of the constitutional provision. I cannot believe that the true construction of this clause is that the President pro tempore of the Senate, in the event of a question arising as to what is a return of electoral votes, is the conclusive and final arbiter of that question. I think that view is very contrary to the spirit of the Constitution, and certainly, as was well said by one or two Senators, the language does not require any such construction. He is sim ply the person to whom votes are to be sent from the States. The Constitution declares that he shall open all the votes received, sub stantially, and then they are to be counted ; and I think it would be a very unnatural con struction to say that if he opens two sets of re turns from the State of Pennsylvania he shall decide which of them is the true return. I think then that we have to decide, or provide for deciding by some other tribunal than the President of the Senate, in the event of two re turns coming from a State or a return being challenged from a State, whether it shall be counted or not. I appreciate the serious objection there is to the second section, wherein it declares that if the Senate shall vote one way in separate ses sion, and the House of Representatives the other, a State shall not have a voice in refer ence to the election of President. I am solici tous, if we can, to provide some other mode than that for disposing of the question. I think, as the duty is devolved upon the two Houses to count the votes, where there is a question as to what vote shall be counted, we must have power to decide how the bodies here assembled shall decide. My objection to the amendment of the Senator from Tennessee [Mr. COOPER] and I only suggest it to see if we cannot reme dy it is that, while it does not disfranchise a State, it certainly does or may annul the will of the people ; because, voting in that way, a State which has a single Representative in the other House, and population only for a single Representative, will have a vote on that im portant question equivalent to the vote of four millions of people in another State. I suggest that it is desirable, and the intent of the Constitution is that the President shall be elected by the people and not by the States. It is true there is a provision that in a certain contingency, where the people fail to elect, the House of Representatives shall elect, each State having but one vote. But I submit whether it would not be more in accordance with the intent of the Constitution as to the election of President, if a question is to be decided bear ing upon that, as we have contemplated there may be, although I hope there never will bo, instead of leaving it to the House of Represent atives to decide it, each State giving one vote as indicated by the amendment, it should be left to the House of Representatives by a majority of the votes of the members ; because certainly, so far as that shall have any bearing, they will more nearly represent the majority of the peo ple of the United States who should elect the President. As this question is probably not to be decided to-day, I only suggest this, to the end that each Senator may think upon the sub ject ; and if we are to adopt the amendment, I think it had better be modified so that the Representatives of the people in the other House shall decide the point which shall arise 524 PROPOSED LEGISLATION AS TO THE MODE OF in reference to which returns shall be counted in the event that there are two. Mr. ANTHONY. I should like to make one suggestion to my friend from New York. Would it not be better, instead of having the House of Representatives decide, to have it delegated to the democratic national conven tion of the preceding year ? [Laughter.] Mr. KERNAN. I am of opinion that that is where the people probably will delegate it this year ; but I do not want any constitution al or legal provision here made with that view. I do not think my friend puts a fair question. The people will act for themselves in each con vention, and I hope they will decide it, and that we shall never have it come here. But there was no such motive in my suggestion as the inquiry implies. The House of Represent atives may be the other way at some other election. We expect that there will be such unanimity this year that no sort of counting can defeat the will of the people, and that the democratic convention will name the man. [Laughter.] But I do not want to talk that sort of thing in this question. I am simply talking about providing for all time. I should hope there never would be a body of men here that would fail to count the votes as they real ly were ; but we are contemplating the con tingency that, through fraud or through fac tion in States, there may be two sets of returns opened by the President of the Senate, and we have to decide upon them. It is suggested and I treat that with great respect that there are provisions of the bill to guard against it. I am talking about it in no partisan spirit, and I said no word that seriously should have led the Senator from Rhode Island to suppose I was talking with a party view. Mr. ANTHONY. I did not think so, of course. I only made that suggestion. Mr. KERNAN. My friend from Iowa [Mr. ALLISON] says I really talk as if I was against such a thing, and I meant to be so understood. I have been looking at this bill with care, and I should regret to see it enacted into a law as it is, though it is better than nothing, in my judgment, because we do lay down some rule of action by it. It makes it the duty of the President of the Senate to open whatever comes to him certified by one acting as gov ernor. He may find two sets from the State of New York, two sets from the State of Louisiana, two sets from another State. In view of that contingency we should now make a rule for the future that we shall be willing to abide by, no matter what party shall be in power in the two Houses or in either. I think we should do what we can to provide as wise ly as we may that the question shall be decided whenever it does come. Mr. FRELINGHUYSEN. I wish to ask my friend from New York whether, inasmuch as the Constitution now provides that the House of Representatives, when they vote, shall vote by States, he expects the number of little States that are represented in this Congress to give to New York and Pennsylvania the pre ponderance they would have by voting accord ing to representation ? Mr. KERNAN. I do not know. I think it is worthy of consideration. The Constitution now gives the election to the House when there shall be a failure to elect. The framers of the Constitution were not contemplating such trou bles as have arisen. They meant when the people have so voted that they have not indi cated the will of a majority, then it shall be decided in the way they prescribed. But I am assuming that the trouble may arise here, though the people have really given a vote in dicating what is the popular majority. We are contemplating that a question may arise about what returns shall be counted from a State in that case, the consideration of which may be swayed by feeling in reference to the result. AY here the people have not failed to choose, but we have failed to count, I would remit it to that tribunal elected by the people, which will most nearly represent their will, in the other House of Congress. That Is all I mean to say. I hope no such difficulty will occur. I hope, if it should, that every man in Congress would vote on his judgment as to what was right ; but if it comes to a division between the two Houses and it is not very likely there will be a division if the majority in both Houses is of the same party if a division arises on count ing the votes and one body elected by the States is of one party, be it the democratic to which I belong, and the majority in the other, Representatives just elected at the same presi dential election, is the other way, I should think it was in accordance with the spirit of the Constitution and the theory of our Govern ment to say, "We will leave it to the popular branch just elected by the people to declare which returns shall be counted if that question affects the result and we cannot agree with them." Mr. MORTON. Mr. President, the amend ment offered by the Senator from Tennessee is that, where there are two returns from a State and the two Houses acting separately cannot agree which one shall be counted, then the decision of that question shall be left to the House of Representatives voting by. States, each State to have one vote; Delaware to have one vote ; New York to have one vote ; Neva da, with one Representative, to have the same voice in settling a judicial question with New York, which has thirty-three Representatives. Mr. MORRILL, of Vermont. And that by a House elected two years before. Mr. MORTON. And that by a House elected two years before. When Senators talk about representing the will of the people, can they devise a scheme for getting further away from the will of the people ? because in elect ing a President by States the will of the peo ple is not counted. Some time ago, two or COUNTING THE ELECTORAL VOTES. 525 three years ago, I had occasion to consider this very question of the election of President by the House of Representatives, and I made a little calculation, and the same facts and the same inequalities would exist in the decision of this question which it is proposed to leave to the House voting by States. I then said : In the election of President in the House of Rep resentatives under the present apportionment, each State having one vote, forty-live members out of two hundred and ninety-two may make the election, as follows And so forty -five members of the two hun dred and ninety-two may decide the question which it is proposed to leave to the House Delaware, Nebraska, Nevada, and Oregon have each one member, and four members would cast the votes of those four States ; Rhode Island and Florida have each two, and four members would cast the votes of those States ; Minnesota, New Hampshire, West Virginia, Vermont, and Kansas have each three members, and two votes in each, or ten mem bers in all, five would cast the votes of those five States ; Arkansas, California, and Connecticut have four members each, and three in each, or nine in all, may cast their votes ; Maine and South Carolina have each five members, three of whom in each, or six in both, may cast their two votes ; Maryland, Mississippi, and Texas have each six members, and four in each, or twelve in all, may cast the vote of those three States. This makes nineteen States, or a majority of the States in the Union, and forty-five members may cast their votes and elect a President of the United States against the wishes of the other two hundred and forty-seven members of the House of Representatives. This is a process for getting at the will of the people ! Again, these nineteen States have an aggregate population, by the census of 1870, of a fraction over eight millions of people, while the remaining eigh teen States have an aggregate population of about thirty millions. So that nineteen States, having scarcely more than one-fifth, of the entire population of the United States, may elect a President in the House of Representatives against the wishes of the other four-fifths ; and this, by courtesy, has been called republican government ! Such a combination and result as above exhibited may not be likely to occur; but they are passible under the present system of electing a President in the House of Representatives by a majority of States ; and no system admitting such possibilities should be tolerated. In 1825 it did happen that Mr. Adams was elected in the House over General Jack- son, who had received a larger proportional majority of the popular vote than has any President elected sines that time, and who had also a large plurality over the electoral votes. Mr. President, one of two constructions of the Constitution must be adopted, I think. The President of the Senate shall, in tbe presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. One construction is that the President of the Senate shall open and count the votes cast and settle all these questions ; and the other is that the President of the Senate after opening the certificates shall submit them to the two Houses, and that the two Houses, acting sep arately as the Senate and as the House of Rep resentatives, shall count the votes and settle all questions growing out of them. The idea that the Senate and House of Representatives, in case of a disagreement, shall provide an umpire that shall settle disputed questions be tween these two Houses, seems to me, to say the least, remarkable. If we can make the House, voting by States, the umpire, then we can make the Vice-President the umpire, then we can make the President the umpire, we can make a justice of the peace the umpire just as well and just as constitutionally. It is one or the other. It is either that the President of th e Senate shall decide this question himself, as argued by the Senator from Maryland, or it is that the two Houses, acting in their normal capacity the Senate acting as a Senate, each Senator having one vote, and the House acting as a House, each member having one vote shall decide this question; and in case they cannot agree, who shall decide it? It is not defeating the will of the people ; but it is sim ply an inability to find out what is the will ot the people ; and what government does actu ally represent the people. A contingency of that kind may occur ; it would be a misfortune, and not perhaps the fault of our system of government. It is one of those things that may happen in regard to the passage of any law, the most necessary law to the existence of the nation, appropriation bills for carrying on the Government. If the two Houses cannot agree, the bill must fail ; and the necessity of passing a bill never put it into the heads of the framers of our Constitution that we should call in an umpire to settle an appropriation bill in case the two Houses could not agree. Mr. BAYARD. I wish to ask the Senator a question. Is not the latter portion of his argu ment fatal entirely to that which preceded it ? He is claiming a power for the two Houses to act conjointly. That is an affirmative power. He is claiming a right in either House acting separately to exercise a negative power, a pow er of veto, that is quite as complete for the pur pose of controlling this question as the affirma tive power to permit a vote to be counted. If he claims that power, and claims for the Senate the right to put its veto upon the count of an electoral vote, how can he deny the power of the Senate to vest that same power in the House ? He speaks of the House and the Sen ate acting in their normal capacity, whatever that may mean. They are differently consti tuted, constituted for different purposes, with very different constituencies, upon very differ ent principles, the one representing numbers, the other representing separate communities. But if the Senator denies the power of the Senate and House to give the House in one event the power of arbitration, he may just as well and as consistently deny the power of either House to have the right of negativing the action of the other, which he has claimed by his bill in th& second section. But it was not necessary for the Senator to 526 PROPOSED LEGISLATION AS TO THE MODE OF read from his former report on this question of counting the electoral votes to show that there was an inequality under the Constitution of the Union as to mere numbers in the formation of this Union. The States as separate commu nities formed it, and they had in the composi tion of this council which we constitute pow ers given to them as States, an equal suffrage to them irrespective of the population within their limits ; and had that not been given, the Union never would have been formed. The principle is recognized by the Constitution when it provides that in the matter of select ing a Chief Magistrate on a failure to find a majority of votes in the electoral college, then the States as States voting one equal with the other shall take the place of the people and de termine. This was not intended to be a purely popular Government, and the features of its frame work show that it was not. There were to be checks upon numbers as well as checks upon mere local sovereignty. It was the blended form that made it complete, and that attests its wisdom ; and the principle, dislike it though the Senator may, and argue against it though he may, and ridicule it though he may, in his re ports, the principle stands that this Union is one of separates States, and the rights of the weakest stand level with the rights of the great est; and so it will be until the Constitution shall be trampled under foot and our form of government broken up. The amendment of the Senator from Tennes see invokes that very principle which the Con stitution itself is so replete with, the recogni tion of State sovereignty and State existence upon important occasions, and one of those oc casions is when a Chief Magistrate comes to be chosen and the electoral college has failed to declare itself by a majority of its votes in favor of one or the other candidate ; then and in that event the result is imperative and the duty is imperative, and the power is complete in the States meeting as States, and each one for it self, with equal voice proceeding to represent the people and elect a President for them. It is because that provision is found in the Con stitution, it is because I do respect the Consti tution and am sworn to obey it, that I did recommend the adoption of this amendment which provides, in the event of the failure of the Senate and House to concur as to which is the true certificate to be received by them of the electoral vote of a State, that then the House shall exercise its function properly as established by the Constitution and declare for them. I have no objection at all in the event of the States being equal in number, and therefore a tie vote between them arising, that we should accept the amendment of the Senator from New Jersey and make the Vice-President the ultimate arbiter, so that he shall decide in case from these causes you have mot reached a de cision. But it is. all-important that the States should not be disfranchised, that we should have a decision, and that we should come at that in a way that shall give satisfaction to all parties, and upon which we may rest all with confidence. Mr. MORTON. Mr. President, when it is said that this Union is composed of States, I agree to it ; but when it is said that this is a Government of States, I disagree utterly. It is a Government of the people, and is not a Gov ernment of States. Mr. BAYARD. Is it not a Federal Govern ment? Mr. MORTON". It is not a compact of States. The Constitution was formed by the people of the United States and rests upon the broad shoulders of the nation. Mr. President, the clause in the Constitution providing for an election of President of the United States finally by the States voting as States is the most illogical provision in it, and was so recognized at the time it was adopted by at least one distinguished member of the convention, and has often been since. First, our fathers did not recognize an election by a plurality vote of the electors. The successful candidate must have a majority of all, so as to make him more nearly represent all the people of the United States ; but in case he cannot get that, then the question was to be referred to the States voting as States, each being equal, under which, as I have just shown, one-fifth of the people of the United States may elect a President ; under which forty-five members of Congress out of two hundred and ninety-two may elect a President, and forty-five members may decide every question proposed to be re ferred to that House under this amendment of the Senator from Tennessee. Sir, we cannot afford to go any further in that direction ; and I undertake to say that if we were now called upon to frame the Constitution, with our pres ent ideas with regard to the rights of the peo ple and the safety of electing directly by the people, and not by intermediate bodies, no such provision would be placed in the Constitution of the United States. The idea of Congress having a right by a bill to- provide an umpire to decide in case the two Houses disagree, it seems to me, is so ut terly foreign to our system of government, that I can hardly regard it seriously. In a matter which belongs to the two Houses of Congress, if it belongs to them at all, and not to the Vice-President, that they can delegate their power to the House voting by States, or to the Court of Claims, or to the Supreme Court of the United States, or to any distin guished private person, is utterly at war with our whole theory of constitutional govern ment. Mr. FRELINGHUYSEN. I do not mean to say that my friend from Indiana is not right; but there are a good many analogies for it. In Wisconsin they elected a governor, and yet, after one man was proclaimed the governor, COUNTING THE ELECTORAL VOTES. 527 there was an umpire in the shape of a court of justice that declared another man elected and turned him out. We have, in the discussion over Pinchback s case, a good many times re ferred to an umpire who, after the people of Louisiana had decided, settled the question as to which was the governor. Now it seems to me that, where the Constitution commits a subject to Congress and yet leaves it so unde fined, so general, we have a power according to our discretion by law to carry out the au thority committed to us ; but, while I say this, I want to reserve my right to vote against the suggestion that I have made, because the Sena tor may convince me that I am wrong; a thing which does not often occur, however, I notice, in the Senate. Mr. MORTON. Mr. President, I believe un der the constitution of Wisconsin it was held that the question of a contested gubernatorial election might be decided by the courts of that State. Just the reverse was held in the State of Arkansas. It depended upon the wording of the constitution. The Legislature decided a question of contested election between con tending candidates for governor. The supreme court of that State assumed the jurisdiction to decide the same question and awarded the office to another man. That is a very recent thing, and within our recollection here. The Attorney-General and, if I mistake not, the Judiciary Committee of the Senate, of which my friend from New Jersey is a very distin guished member, were consulted, and they de cided that the jurisdiction belonged exclusively to the Legislature of Arkansas and that the supreme court had no jurisdiction over it. I may be wrong about my recollection of the affair, but that is it. I speak of the general principle that, where powers are devolved upon a legislature or upon Congress ques tions to be decided by the Legislature of a State or by Congress the decision of those questions cannot be delegated to an umpire or to any third tribunal. That is the general principle which, I think, may be safely assert ed here. Mr. President, I understand that there are Senators who desire not to have this vote . taken to-day ; and, as I am not at all urgent about it, I will move that the Senate proceed to the consideration of executive business. The PRESIDING OFFICER (Mr. WRIOTIT in the chair). Before putting that motion, the Chair will lay before the Senate a House bill for reference. IN SENATE. Tuesday, Marcli 14, 1876. (" Congressional Eecord," pp. 1693-1695.) The Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 1) to provide for and regulate the counting of votes for President and Vice-President and the decision of questions arising thereon, the pending question being on the amendment of Mr. SHERMAN to strike out in lines 7, 8, and 9 of the third section the words : In the power of a majority of each House to direct that the main question shall be put. And insert in lieu thereof : The duty of each House to put the main question. So that the proviso will read : Provided, That, after such debate has lasted two hours, it shall be the duty of each House to put the main question without further debate. Nf. MORTON". I do not know that I have any objection to that amendment. It is possi ble objections might arise to an electoral vote that the Senate and House might want to con sider longer than two hours ; but at the same time, as there might be danger of the final de termination of the result of the vote being too long delayed, I shall not especially oppose the amendment which will close the debate per emptorily at the end of two hours. The amendment was agreed to. The PRESIDENT pro tempore. The ques tion will now be on the amendment proposed by the Senator from Tennessee [Mr. COOPER], which will be read. Mr. EDMUNDS. On that amendment I ask for the yeas and nays. The yeas and nays were ordered. The PRESIDENT pro tempore. The amend ment will now be read. The CHIEF CLERK. At the end of the sec ond section it is proposed to insert : And if the two Houses do not agree as to which return shall be counted, then that vote shall be counted which the House of Representatives, voting by States, in the manner provided by the Constitu tion when the election devolves upon the House, shall decide to be the true and valid return. Mr. JOHNSTON. Is it in order to offer an amendment to that amendment ? The PRESIDENT pro tempore. It is. Mr. JOHNSTON. Mr. President, yesterday the Senator from Pennsylvania [Mr. WALLACE] suggested an amendment, and if he does not offer it I wish to offer substantially the same amendment. I offer the following amendment to the amendment, as a substitute for it : But if the Senate should vote for counting one certificate find the House of Representatives another, the joint meeting of the two Houses shall finally de termine which shall be counted, by a vote by States, the representation from each State (including the Senators therefrom) having one vote ; but if the rep resentation of any State shall be equally divided its vote shall not be counted. The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from Virginia to the amendment of the Senator from Tennessee. Mr. JOHNSTON. It is evident that the bill is defective in one respect. The author of the bill himself admits that in a certain contin gency this bill will not be operative ; that where there are two returns from a State and the House of Representatives votes for accept ing one return and the Senate the other, in that event the vote of the State will be lost. 52S PROPOSED LEGISLATION AS TO THE MODE OF It seems to me in a bill of so milch importance as this there ought to be no omission of that sort, but that the bill ought to be complete and provide for every contingency that may arise. It is not only the right of Congress to provide for counting the electoral votes, but it is an imperative duty and we ought to perform that duty. It seems to me that Congress itself is the only body to determine this question. The Constitution provides that where there has been no election by the people the House of Eepresentatives shall decide who shall be Resi dent, but the same Constitution provides that where there shall be no election of Vice-Presi- dent the Senate shall decide who shall be Vice- President. The second article of the Consti tution in the second section has this provision. After providing for the election of President by the House, it says : The person having the greatest number of votes as Vice-President shall be the Vice-President, if such number be a majority of the whole number of electors appointed ; and if no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. It seems, then, according to that provision of the Constitution, that in a certain event the Vice-President shall be chosen by the Senate. There is provision for the failure of an election by the electoral college of President and Vice- President; in one event the House elects the President, and in another event the Senate elects the Vice-President. The returns of the election of both officers are embraced in the same certificates. It would seem to me there fore proper, as the election is for both, that the two Houses should be the joint tribunal to determine the question. In that view I think the amendment I have offered is the proper solution of this question. Mr. EDMUNDS. I should like to have the Senator from Virginia explain to me where he finds the constitutional authority for making this provision or for making the provision pro posed by the Senator from Tennessee? What is the nature of the power we are conferring upon one House or upon the two Houses vot ing together as a consolidated committee ? Is it a legislative power, or a judicial power, or what sort of a power? The Constitution, it appears to me, regulates what is to be done on this occasion without conferring any powers upon the House of Representatives or the Sen ate ; or else it provides, as it does here, what shall be done, and then leaves it, as all other questions arising under the Constitution are left, to judicial determination, if any dispute should arise. It seems to me that there is very great difficulty indeed in holding that we have the power by law to say that in case of a dis pute about a return on the occasion referred to in the Constitution, the House of Repre sentatives shall determine that dispute. The legal objection to it, to my mind, is just as great as it would be to our saying that the common council of the city of Washington shall determine that dispute. If we have the power to legislate at all otherwise than to regulate the congressional action of the two Houses as independent bodies, as has been the practice hitherto, we have the power, of course, to select who shall be the canvassing board in case of dispute, who shall be the deciding board in case of dispute, in reference to the very act of reaching the result, not in refer ence to who may have the title afterward, be cause we do not undertake to dispose of that in any way except as the Constitution does, that the man who has got the most electoral votes and of course that means legal and constitu tional votes shall be the President. Nobody would contend if one was declared by the Pres ident of the Senate to have been elected, and it turned out that the returns from half of the States were entirely fabricated and had never been sent by those States at all, that the person he so declared to be elected on that day was constitutionally the President, I should sup pose. But certainly if you were .to say that, it is one thing to say that the Constitution has confided to Congress the congressional power, acting as two independent bodies but concur rently, to dispose of this question ; but to say that we may by law (not in the exercise of our function to confer powers upon some judicial tribunal described in the Constitution to settle something) confer powers upon a body not judicial and not legislative in a constitutional sense, is to my mind going entirely outside of any authority that we possess. I therefore, Mr. President, without going into the practical inequalities and temptations that would exist in respect of either of these amendments, vote against them both upon the ground that, as it appears to me, they are plain ly in violation of the Constitution. Mr. FKELINGHUYSEN. I shall propose an amendment when the proper time comes, which I will now read : If the two Houses shall not agree, the difference shall be immediately referred to the Chief Justice of the Supreme Court, the presiding officer of the Senate, and the Speaker of the House, whose deci sion shall be final. If the Chief Justice is absent or unable to attend, the senior associate justice of the Supreme Court present in the Capitol or other place of meeting shall act in his place. This is a judicial question ; a question of law and of fact; but judicial, whether of fact or law ; and it seems to me that there is a pro priety in referring it to the presiding officer cf the judicial department. It is true that it is judicial, and yet it is political in its nature. The Constitution has imposed certain duties upon the presiding officer of the Senate, and the presiding officers of the Senate and of the House are competently associated with the Chief Justice. If it be said that nothing will COUNTING THE ELECTORAL VOTES. 529 result excepting the loss of the vote of one State unless we make this arrangement, the loss of one State is a great loss ; it is an organic loss ; it is a loss that may change the character ot the whole election ; it is a loss that the peo ple of this country would not quietly submit to. It seems to me it is very important that before we pass this bill we should make such arrangement as will secure the vote of every State, for thereby we may avoid civil war. Those who have written upon this part of the Constitution have predicted that the great est peril to this country is just at the very point we are now considering ; and I see nothing in the amendment which I have offered which is in violation of the Constitution. The Consti tution is silent on the subject. It imposes upon the Legislature the duty of making provision for counting the votes. This amendment, it seems to me, is an equitable, just, constitution al provision ; and, besides, it is dignified, con servative, and proper. It comports with the magnitude of the great question that we should call the head of the judicial department of the country to decide it. The matter referred is a difference between the two Houses. That might be only a question of law. The two Houses might agree on everything excepting a dispute as to some principle of law. The dif ference between the two Houses is the matter which the amendment proposes to refer. I make these suggestions now rather than when the amendment is taken up, because it may have an effect upon the vote which shall be given upon the pending amendments. Mr. THURMAN. I am not prepared just now to vote upon any of the propositions which have been suggested ; that is, I am not as well prepared as I would like to be. This subject is full of difficulty. For reasons that I gave yesterday, I do not think a matter of disagreement can be referred to the Supreme Court. I do not believe you can confer upon that court as a court any such power. I have seen no reason to change the opinion I ex pressed yesterday. Then, to give the House of Representatives the right to decide it may be a matter of ne cessity, and yet there are very grave consider ations there, for you put the House under the temptation to disagree with the Senate, so that the result of the disagreement may be that the House will have the decision alone. So, take it any way you will, there is difficulty. I do not believe that we can or ought to confer this power, in the case of disagreement of the Houses, upon the presiding officer of either House. I do not think that can be done. What I desire is that wo may, in the situation in which we find ourselves placed, one House having a majority of one party and the other House having a majority of the other party, endeavor to come to some understanding that, being agreed upon, will command the support of reasonable men of all parties. I should hope that, if we came to a conclusion satisfac- 84 tory to the Senate generally, the bill that pass es here would receive the approbation of the House of Representatives. If it is made a party question, I do not know what might be the result. I have no right, however, to urge that consideration upon the Senate ; but it seems to me very material that we should, if possible, arrive at as harmonious a result as can be reached. In order that we may study the various propositions that have been submitted more than we have yet had time at least I speak for myself as well as other propositions which Senators may desire to lay upon the table, I move that the further consideration of the bill be postponed until one o clock to-morrow, and that the amendments already suggested or that any other Senator may wish to lay before the Senate be printed. Mr. RANDOLPH. I should like to offer an amendment in the shape of a new section, dif fering somewhat from either of the amend ments that have been offered. I do not wish to speak to it now, and do not know that I shall address the Senate upon it at all. Some thing better may be offered, but, with the view of facilitating the progress of the work, I ask that my amendment may be put with the others and printed in due form. The PRESIDENT pro tempore. The Sena tor from New Jersey proposes an amendment. It is not in order now, but it will be submit ted and printed with the three amendments already pending. Mr. MORTON. Let it be read for infor mation. The PRESIDENT pro tempore. The pro posed amendment will be read. The CHIEF CLEEK. It is proposed to insert as an additional section the following: SEO. . Should the two Houses of Congress, act ing separately, fail to agree as to which is the true and valid return of such State, then, and in that event only, it shall become the duty of the Presi dent of the Senate to make a decision of the ques tion: Provided,, the President of the Senate shall render his decision in favor of such return as shall have received a majority of all the votes of both Houses of Congress considered by him as if both Houses had cast their votos in ioint meeting assem- bled. Mr. HOWE. I shall acquiesce in the motion to postpone very readily, for it will not be re garded as surprising that I should find myself quite as unprepared to vote satisfactorily to myself as the Senator from. Ohio professes himself to be. But I want, before the bill goes over, to make one suggestion which has occurred to me, and which is a suggestion of the difficulty that is presented to my mind as the most obvious one, and the one most difficult to meet. It seems to me that the question of deter mining what votes shall be counted and what shall not is either a political or a judicial ques tion. If a judicial question, I think it ought to be submitted to some one of the judicial 530 PROPOSED LEGISLATION A3 TO THE MODS OF tribunals recognized by the Constitution, and not to a special tribunal manufactured for the purpose. If it is a political question, then shall it be determined by any political depart ment of the National Government or {>y the political department of the State government? It is manifest to my mind, from looking at the Constitution, that those who framed that in strument never anticipated that the Congress of the United States would be stumbling over a difficulty of this sort. They said that each State shall appoint the electors in just such way as the Legislature may see fit ; and it did not apparently occur to the men who made the Constitution that such a scandal as two bodies of men claiming to be the Legislature of a State would ever appear in American his tory. I wish we could say that no such scan dal ever had appeared. It did not occur to the men who made the Constitution that there would be ever, I think, two sets of papers sent up here pretending to be the vote of a State. Therefore it seems to me that they intended to delegate to these two Houses no judicial, no political, no discretionary authority whatever, but simply the ministerial act of opening a letter and reading the contents in the presence of the picked men of all the States; that is all. We are not now quite a hundred years old as a nation, as a government considerably less, and we have already been shocked by the ap pearance of two letters declaring very differ ent results in the same State upon a presiden tial vote. The thing we want to guard against, if we can by any possibility, is the appearance of any such dispute in the convention hereaf ter. If you can legislate in any way so as to prevent the appearance in any of the States of two bodies of men claiming to be a legislature, or two bodies of men claiming to be an elec toral college, then I think you have accom plished the object. Clearly there can be but one Legislature in a State; there can be but one electoral college of a State ; but one body having the right to send the letter declaring the will of a particular State in the choice of President and Vice-President. Dozens of pre tenders may appear. Only one is true, and all the rest are sham. A dozen bills may be put in circulation of the same number, the same letter, claiming to be issued by the same au thority, and to rest upon the same credit. One is genuine ; all the rest are counterfeit. You have provided laws for punishing everybody who puts in circulation all the sham notes; and if you can provide by law for punishing adequately those who shall forge or counter feit or issue sham letters or certificates of elec tion, that is a sort of legislation that I would like to engage in. You send the man who is sues a forged or counterfeit note to State s prison or somewhere else where he will be out of the way. Precisely where you should put those men who send up to the Congress of the United States a false and counterfeited certifi cate of the result of a presidential election in a State I am not prepared to say. There is no punishment I can conceive of ever inflicted upon crime too heavy to visit upon the head of such miscreants. Whether those penalties should be imposed by the States, or should be imposed by the national authority, is a ques tion we might well consider ; but I do not see this morning how, if you allow such papers to come up here, you are going to provide a tribu nal which shall instruct the two Houses which of the two papers is a true one and which is a false one. Mr. MORTON. As this is a very important question, I shall not object to the postpone ment, but I venture to express the hope that when we take up the bill to-morrow we shall consider it until it is disposed of, either on to morrow or as soon thereafter as possible, with out a further postponement. Mr. FRELINGHU YSEN. I move the amend ment which I read to the Senate as an art-end- ment to the amendment suggested by the Sen ator from Tennessee [Mr. COOPER], to come in after the word "agree." The PRESIDENT pro tempore. The Senator fr6m New Jersey moves to amend the amend ment of the Senator from Tennessee by striking out all after the word u agree " and inserting what he has read, which is to perfect the text while the substitute is pending offered by the Senator from Virginia [Mr. JOHNSTON]. The Senator from Virginia proposes a substitute for the whole amendment, striking out all after the word " and." The rule permits a perfec tion of the text. The question will be first on the amendment proposed by the Senator from New Jersey. All these amendments are to be printed, and the question now is whether the whole subject shall be postponed until to-mor row at one o clock. Mr. CONKLING. I do not rise to repeat what other Senators have said as to the im portance of this question. It is important and it is intricate ; and because of both those things I venture to make a suggestion. The postponement is moved very properly, as I think, in order that the Senator who moves it, and of course that other Senators, may have an opportunity to understand, as they do not yet understand, the bill before us and the vari ous amendments which have been and may be proposed. If the postponement takes place until to-morrow at one o clock, the Senator from Ohio must see that there is but little force at least in that part of his motion which relates to printing the amendments. Nobody is to see them in print until that time. Possibly they may be found in the morning in the RECOKD, if one can get time in the morning before the meeting of the Senate to study them. I rather think it would be better if this matter should stand until day after to-morrow, perhaps, and be made a special order, if the Senator from Indiana thinks there is any danger of its being displaced. I should not at all be surprised if COUNTING THE ELECTORAL VOTES. 531 a conclusion might be reached as soon if now it is known that it is to be considered at that time, Senators having time to look at the sub ject generally and to look at these amend ments, as it would be if taken up at one o clock to-morrow, when really very little opportunity will be given after the amendments are in print to study them. I have no convenience of my own about it. Mr. THURMAN. If it would be agreeable to the Senator from Indiana who has the bill in charge to fix the day after to-morrow, I will very willingly modify my motion. Mr. CONKLING. As I was saying, I have no convenience of my own about it at all, ex cept that, having been out of the Senate yes terday, very likely I am less informed, and no doubt I am, than any other Senator; but it strikes me that the object being to enable all of us to be prepared to form and express an opinion about it, we had better have a time within which that can be done than to fix a time within which we know it cannot be done. Mr. THURMAN. I am perfectly willing to acquiesce in the suggestion of the Senator from New York. I understand it would be agree able to the Senator who has the bill in charge, and therefore I modify my motion to postpone the bill until one o clock on Thursday and make it the special order for that time. The PRESIDENT pro tempore. The Senator from Ohio modifies his motion, postponing the bill until Thursday at one o clock and making it the special order at that time. Mr. SARGENT. I have no objection to the bill going over until that time ; but we are aware that a special order has no weight, that it is only a method of postponing a matter indefinitely. It seems to me that there ought to be a sort of understanding I will not say expressed, but a kind of understanding that the unfinished business of Wednesday shall not put the bill out of the charge of the Senate. I do not ask a change of the rule in reference to special orders, but I am willing that in this particular case, which ought to be attended to early in this session and ought to be consid ered in the other House, the bill going over until day after to-morrow, it shall be with the understanding that it will be considered on that day. Mr. CONKLING. I venture to suggest that no objection has appeared here, and I imagine that there will be no objection, that by unani mous consent the Senator from Indiana can have an understanding that when, at one o clock on Thursday, he moves to take up this bill, he shall have the vote of everybody in the Senate to take it up. In that case we do not want it made a special order. Mr. MORTON. I wish to have that under standing. The PRESIDENT pro tempore. That must be done by unanimous consent. A special order cannot displace unfinished business. Is there objection? There is no objection ; and, by unanimous consent, the bill will come up on Thursday at one o clock. IN SENATE. Thursday, March 16, 1876. (" Congressional Eecord," pp. 1749-1757.) The PRESIDENT pro tempore. ^The morn ing hour has expired, and the special order is now before the Senate. The Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 1) to provide for and regulate the counting of votes for President and Vice-President and the decision of questions arising thereon. The PRESIDENT pro tempore. The Sena tor from Tennessee [Mr. COOPER] proposed an amendment for which the Senator from Vir ginia [Mr. JOHNSTON] moved a substitute, and the Senator from New Jersey [Mr. FRELING- HUYSEN] has moved to perfect the text of the amendment of the Senator from Tennessee by an amendment which is now the pending ques tion. The Secretary will report it. The CHIEF CLERK. The amendment of the Senator from Tennessee [Mr. COOPER] is to add to the second section of the bill : And if the two Houses do not agree as to which return shall be counted, then that vote shall be counted which the House of Representatives, voting by States, in the manner provided by the Constitu tion when the election devolves upon the House, shall decide to be the true and valid return. The amendment of the Senator from New Jersey [Mr. FRELING-HUYSEN] is to. strike out all after the word "agree" in the first line of the amendment of the Senator from Tennessee, and insert : The difference shall be immediately referred to the Chief Justice of the Supreme Court, the Presid ing Oiiicer of the Senate, and the Speaker of the House, whose decision shall be final. If the Chief Justice is absent or unable to attend, the senior asso ciate justice of the Supreme Court present in the Capitol or other place of meeting shall act in his place. Mr. TIIURMAN. Mr. President, the amend ment offered by the Senator from New Jersey proposes to refer the difference between the two Houses to the umpirage of three individu als : the Chief Justice of the Supreme Court, the President of the Senate, and the Speaker of the House of Representatives. It is plain that this is not referring it to any judical tri bunal, and if such a reference as this can be made then it is equally clear that a reference might be made to any other three individuals. There is nothing in the fact that the three in dividuals named in the amendment are officers of the Government. If this reference can be made to them it may be made to three private citizens, and it can only therefore be justified upon the ground that Congress, having power to provide by law the mode of counting the votes, its power is almost or quite unlimited in the choice of the means. I shall not undertake to say what are the limits upon our power of 532 PROPOSED LEGISLATION AS TO THE MODE OF legislation in this respect. It is always dan gerous to undertake to set fixed limits to a power of the Government before the case arises, for the plain reason that no one can foresee all the cases that may arise in the history of the country. But it seems to me perfectly clear that this proposition is not consistent with the spirit of the Constitution. The Constitution provides and I beg pardon for occupying the time of the Senate in saying what has been said and what is known to every Senator ; and yet the impor tance of this subject will be perhaps a sufficient excuse The President of the Senate shall, in presence of the Senate and House of Kepresentatives, open all the certificates, and the votes shall then be counted. From the plain language of the Constitution, no function or duty is devolved on the Presi dent of the Senate except to " open all the .cer tificates in the presence of the Senate and House of Kepresentatives." It is not said that he shall count them, nor is it said in express- vyords that they shall be counted by the two Houses in joint convention, and the practice of the Government has not been entirely uniform. The Senator from Maryland [Mr. WHYTE] called our attention the other day to the proceedings when the vote was counted at the first election, the election of General Washington as Presi dent of the United States and Mr. Adams as Vice-President, and it is true that those pro ceedings did give some color to his proposition that the power of counting, and therefore the power of determining what is the true return, is vested in the President of the Senate. I say those proceedings seemed to give some col or to that proposition, because in that case "John Langdon, esq., one of the Senators from the State of New Hampshire, was elected Pres ident of the Senate for the sole purpose of opening and counting the votes for President and Yice-President of the United States." That language would seem to import that he was to do the counting, and yet it does not necessarily follow, because a President of the Senate was necessary in order that the votes might be opened, and therefore in order that they might be counted, and nothing, I think, of any great force can be gathered from the use of that language in the resolution appoint ing Mr. Langdon President of the Senate. The proceedings, however, go on further. On the 6th of April, 1789, it was ordered by the Sen ate this was immediately on the election of Mr. Langdon Ordered, That Mr. Ellsworth inform the Iloiise of Representatives that a quorum of the Senate is formed ; that a President is elected for the sole pur pose of opening the certificates and counting the votes of the electors of the several States in the choice of a President and Vice-President of the United States. The same remarks that I have made in refer ence to the resolution by which Mr. Langdon was appointed will apply to this part of the order that the fact be communicated to the House of Representatives. Then the order goes on further : And that the Senate is now ready in the Senate Chamber to proceed in the presence of th House to discharge that duty. What "duty" is here spoken of? What duty is it that the Senate is to discharge ? If you take the language of the order, it can only be the duty of counting the votes. It then proceeds further : And that the Senate have appointed one of their members to sit at the Clerk s table to make a list of the votes as they shall be declared, submitting it to the wisdom of the House to appoint one or more of their members for the like purpose. That was the order of the Senate, and Mr. Ellsworth subsequently reported that he had delivered the message. Then Mr. Boudinot, from the House of Kepresentatives, communicated the following verbal message to the Senate : "Mr. President: I am directed by the House of Representatives to inform the Senate that the House is ready forthwith to meet the Senate to attend the opening and counting of the votes of the electors of the President and Vice-President of the United States." And he withdrew. That sheds no light on the subject. The Speaker and the House of Representatives at tended in the Senate Chamber for the purpose ex pressed in the message delivered by Mr. Ellsworth ; and after some time withdrew. The Senate then proceeded by ballot to the choice of a President of their body pro tempore. John Langdon, esq., was duly elected. The President elected for the purpose of counting the votes declared to the Senate that the Senate and House of Representatives had met, and that he, in their presence, had opened and counted the votes of the electors for President and Vice-President of the United States, which were as follows : Then follows the table. Certainly it must be admitted that, looking at that record alone, it would seem as if the idea at the commence ment of the Government was that the Presi dent of the Senate was not only to open but that he was to count the votes. I am told I have not seen it and referred to it myself that these proceedings which I have read from our Manual are not quite complete, and that a reference to the Journal rebuts to some extent the presumption arising from what I have read ; that it was considered then that the duty of counting the votes devolved on the President of the Senate ; but I do not think that much weight can.be attached to that precedent, even though it was set by those who met imme diately after the adoption of the Federal Con stitution. No question was then made ; there was no contest for the Presidency ; General Washington had received every vote ; and there was no contest of any consequence for the office of Yice-President. There was nothing to do but the ministerial duty of making a table of the electoral votes and adding it up. That was all ; and a precedent set under those circumstances, without any discussion whatso- COUNTING THE ELECTORAL VOTES. 533 ever and where there was nothing to raise any discussion or question, is not one entitled to any great weight in settling a matter so im portant as this, For reasons which I have already stated and which I shall not bore the Senate with repeat ing, it seems to me quite inadmissible to adopt the theory that the counting of these votes, and consequently the function of judging which is the true return, is devolved upon the President of the Senate. The bare fact, which we are to presume must have been foreseen by the framers of the Constitution, that the Vice-President might himself be a candidate for the Presidency or for reelection, shows that, if the counting of the votes were de volved upon him, if the judicial function of de ciding upon the validity of the returns were devolved upon him, it would be devolved upon a man who was a judge in his own cause. There is no provision in the Constitution that if he is a candidate he shall not act in the premises ; on the contrary, the provision of the Constitution is so mandatory that, as was shown by the Senator from Indiana [Mr. MOK- TON] the other day, in no less than six in stances has the Vice-President opened the votes when he himself was a candidate either for the office of President or for reelection to that of Vice-President ; and to say that our Constitution is so defective that it makes the determination of one who has been elected the Chief Magistrate of the Republic to depend upon the will of the very man who is a candi date for that office is to condemn the Constitu tion beyond redemption. No, sir; the Consti tution is not so defective as that. Nothing jbut the strongest, clearest, and most precise .language could drive us to an interpretation of that sort. I therefore think, with great deference to my friend from Maryland who itook that ground the other day, that that inter pretation is not the correct one, and while the twenty-second joint rule was, in my judgment, an improper rule, and while the subject was not one to be regulated by any joint rule of (the two Houses, but to be regulated by law et I think that the determination then arrived at, after, discussion, after a fall consideration of the subject and in the light of the experi ence of the Republic, is worth much more han this precedent set by the first Congress in counting the votes for General Washington. Mr. CONKL1NG. Will the Senator allow me to ask him a question, if I do not interrupt him ? Mr. THURMAN. With great pleasure. Mr. GONKLIN.G. I was diverted for a moment during part of his argument. I beg to inquire whether the Constitution, as he un derstands it, means in the words "the votes shall then be counted," that the counting must be by the two Houses ? He has been explain ing himself, touching the function of the pre siding officer. My inquiry is whether these Words which he understands, commit to Con gress, or, more exactly speaking, to the two Houses of Congress then assembled, the duty of counting the votes ; or whether the words u the votes shall then be counted " leave a discretion to the law-making power to provide by whom the count shall be made? Mr. THCJRMAN. The Senator from New York was not, I think, here on the former day when I gave to the Senate my view Mr. CONKLING-. I was not ; I would not have interrupted him if I had been. I was necessarily absent that day and did not hear the discussion. Mr. THURMAN. I have no objection to restating, and I will endeavor to do it briefly, my view on that subject. I think that the spirit of the Constitution requires that these votes shall be counted in some mode by Con gress or the convention of the two Houses ; but what shall be the mode? Now, I repeat what I said the other day, that it is a funda mental principle that, where any power is con ferred upon the Government, or any Depart ment, or officer thereof, and the mode of ex ercising that power is not prescribed in the Constitution itself, it belongs to the law-mak ing power to prescribe the mode. I said the other day that that was a fundamental prin ciple of the Government, but I need not have gone to any general principles of government, because it is expressly declared in the Consti tution, as we all know in the very familiar paragraph, the last of section 8 of article 1, in which, after enumerating the powers of Con gress, it is said : The Congress shall 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 Govern ment of the United States, or in any Department or officer thereof. What could be broader than that ? It is well known that that was only put in out of abun dant caution; that those powers would have belonged to the Congress by necessary impli cation, even if that clause were stricken out of the Constitution; but it is put in there that there may be no question about it that Con gress has these powers. Now, the power to count these votes must be a power of the Government or of some De partment or officer thereof. If it is, then Con gress has power to make all laws necessary "and proper for carrying into execution that power. I have, therefore, thought from the beginning that a joint rule was not the proper mode, but that a law was the proper mode, and that that law would be binding upon Congress, as well as upon everybody else, as long as it remained in force. Then comes the question, What mode shall be prescribed ? I have said before, that I do not undertake to place limits arbi trarily upon the mode which we may adopt. Definitions are very dangerous, as every lawyer, knows. It is not safe to undertake beforehand, and before the case arises, to make an arbitrary, 534 PROPOSED LEGISLATION AS TO THE MODS OF absolute definition, the boundaries of which can never be passed, no matter what may be the exigency. That is always unsafe. There fore no wise man is apt to go beyond the case in hand, whether he is sitting as a judge or sitting as a Senator. I do not undertake, then, to say what are the boundaries of our power, in the execution ,of our legislative duty, to provide for the mode of counting these votes ; but this I do say, that the spirit of the Constitution requires that this matter shall be settled, if it is possible to settle it, by the Senate and the House of Representa tives, either acting separately or acting in joint convention. Either one way or the other, the spirit of the Constitution requires that it shall be settled in that mode. The Senators and Representatives are to be present when the votes are counted. They are to be opened in their presence. The usage of the Government has been to appoint tellers from the two bodies ; and it seems to me that it never was contem plated that the determination of any question which should arise upon that count should be decided by some other tribunal or body of men. This being my view, I cannot concur with the idea that this power can be devolved upon the Supreme Court, as was suggested, if I am not mistaken, by no less eminent a Senator and distinguished a jurist than the present chairman of the Judiciary- Committee at a former session. You cannot compel the Su preme Court to execute any such power as a court ; that is very certain. The Supreme Court, as a court, has nothing but judicial power ; and its original jurisdiction is ex pressly denned in the Constitution; and de termining any question of election is not one of the original powers thus conferred on the court. Then the other powers of the Supreme Court are appellate powers. It has such ap pellate jurisdiction as may be provided by law ; that is, as Congress may confer upon it. As I said the other day, the appellate jurisdiction spoken of in the Constitution is appellate juris diction from the inferior judicial tribunals of the country. That I am right in this has been settled by the Supreme Court again and again. If my memory is not at fault, there is an old case away back in Dallas s Reports, in which the Supreme Court held that they could not determine an appeal from one of the Executive Departments of the Government. But we have lately had the most marked case, the most im portant case that could possibly arise on that question perhaps, thoroughly investigated by the Supreme Court. It will be remembered that when the Court of Claims was established its sole power was to hear and decide whether a claim was valid or not, without any power to give judgment. It could simply report its finding to Congress ; it had no power to give any judgment whatsoever. That was the Court of Claims as originally constituted. An act was passed authorizing an appeal to the Su preme Court from this finding of the Court of Claims. The Supreme Court after an elabo rate discussion decided that no such appeal could be entertained by the Supreme Court, because the Court of Claims as then consti tuted, having no power to render a judgment, was not a judicial tribunal at all, but a mere commission, and that the power of appeal to the Supreme Court was limited to appeals from judicial tribunals, and therefore it was held that the appeal would not lie, and it was dismissed. Congress, to remedy that defect, then passed the present law giving to the Court of Claims the power to render judg ment ; and since that appeals to the Supreme Court have always been entertained by that court. This is the latest and most authoritative- decision after great discussion and great con sideration, that the Supreme Court can enter tain no appeal except from judicial tribunals and exercise no function that is not judicial. I do not, therefore, believe that this power can be given to the Supreme Court as a court, and for that reason I am strengthened in the belief that it is a question which ought to be settled by the Congress. Mr. CONKLIN T G. Will the Senator let me ! interpose there for a moment ? Mr. TIIURMAK Yes, sir. Mr. CONKLING. The Senator has just concluded an argument addressed, as I under stand it, to the incompetency of one agency to receive a delegation of this power. He has argued to show that the Supreme Court as a court is such a creature under the Constitution ; that it cannot be charged with this function. ] That is all. If it does not interrupt or unpleas antly dislocate the argument of the Senator, I ] wish he would tell us what his opinion is as to the power of the two Houses, the law-making power, to deposit it with some agency or in- , strumentality whose function is not so limited by the Constitution that it cannot receive and j perform this duty. That is the question to I which my mind addresses itself the Senator, j I am sure, will apprehend me whether the I law-making power may create an instrumen- j tality for this purpose, although it may be true that the Supreme Court as such is an instru- j mentality which by the laws of its own being would be incompetent to become such an in strument. Mr. THURMAN. I had already said that I would not undertake to define our legislative power in providing a mode for the solution of j this problem, for the reason that I stated it j would be dangerous to attempt it. But this I ! have intimated, and this I say now more dis- ; tinctly, that in my judgment we shall act most within the spirit of the Constitution and nearest to its letter if this matter shall be de cided by the Senators and the Representatives of the people, and that we ought not for one moment to think of going outside of the Con gress if we can find a proper and safe mode for deciding this question within the halls of Con gress. COUNTING THE ELECTORAL VOTES. 535 That brings us to the question, Can we devise such a mode? The whole difficulty arises from the fact that two or more returns may be made from a State. That is no fanciful apprehension, for that fact has occurred in the past and may occur again in the future. To let the first sec tion of this bill stand and strike out the second section would, as I said the other day, have the effect to throw the determination of the question, in cases where there were two or more returns, into the hands of the President of the Senate, and that I do not think there are many Sena tors on this floor who would agree to. Such, I think, is not the Constitution. Then you must provide some other mode. The second section of the bill provides that all the returns shall be opened and laid before the convention that is assembled. That prevents the President of the Senate, by merely present ing a single return and suppressing the other, from determining the question ; and it is ob viously proper that he should be required to lay all the returns before the convention. In fact, the Constitution declares that he "shall open all the certificates ; " and if he is not invested, as I have argued, with the power of determin ing which is the valid certificate and which is not the valid certificate, then it follows that it is his constitutional duty to open all the returns and to lay them before the joint convention. But as there might be some question about that, this second section very properly makes it his duty to do so. Then what does it provide ? It provides that that return shall be counted which the Senate acting separately, and the House acting separately, shall decide to be the valid return. But then arises the difficulty immediately, the possibility, nay, it may be the probability, that one House may decide in favor of one return, and the other House in favor of another return, and that therefore neither re turn could be counted, and the vote of the State would be lost. The paramount duty of Congress is to see that no State shall lose her vote, that no State shall be deprived of her voice in the selection of the Chief Magistrate of the nation ; and therefore we cannot, as it seems to me, with propriety put any scheme upon our statute- book which is so radically defective as this. We ought to provide for the ultimate decision. When we come to provide for the ultimate de cision there is great trouble. If we take the proposition of my friend from Tennessee [Mr. COOPER], that the voice of the House expressed in the manner provided in his amendment shall predominate over that of the Senate, we place before the House a very strong temptation to disagree with any conclusion at which the Sen ate may arrive, because the effect of the disa greement is to throw power into the hands of the House. That is certainly a very serious objection ; for, although we are bound to con sider that the House of Representatives is a re sponsible part of the Government and not to impute to it or to its members any improper motive, yet we do know that, so weak is human nature, the best prayer that was ever uttered was, * Lead us not into temptation." In view of this, and believing that this mat ter ought to be settled by the Senators and Representatives in Congress, and looking also at the Constitution, which requires the votes to be opened and to be counted in the presence of both Houses, I have come to the conclusion that the proposition of the Senator from Vir ginia [Mr. JOHXSTOX] is the nearest to the Con stitution in its spirit and in its letter, and prob ably in practice would be the best that could be adopted. In counting the votes Congress does not act in a legislative capacity. We all agree to that. The Constitution convenes both Houses together, as it were in a joint conven tion ; and although it does not declare that that joint convention shall act as a convention, al though it confers upon it by no direct or ex press words any function at all, either of de cision or of legislation, certainly none of legis lation, yet the idea of the Constitution is that the Senate is to be there, the representatives of the States, as well as the members of the House, the representatives of the people, and that all are to participate in the decision of this great question, who has been elected to the Chief Magistracy of the Republic? And therefore it does seem to me that we are abid ing by the Constitution more closely, both abiding by its letter and its spirit more closely, when we make both the Senate and the House of Representatives acting together the ultimate umpire where the two Houses have disagreed. I see no other solution that is likely to be as satisfactory to the people, to the country, to the States, and to the requirements of justice and truth. Hence, unless something shall be urged that shall alter my opinon on this sub ject, I am inclined to favor the proposition of the Senator from Virginia. That, if adopted, will require the Senate to act as well as the House. That will not be an abnegation of any power on the part of the Senate, as it might seem that the proposition of the Senator from Tennessee would be. That will require of us to perform the function which reason and our presence there when the votes are counted as required by the Constitution would seem to impose upon us. Then the only point that remains, if I am right in this view, is, How shall that question be decided ? Shall it be decided by a vote of the two Houses sitting as a convention, a vote in which the ballot or the voice of each Sen ator and each Representative is to count one, as if it was one body ; or shall it be, as the amendment proposes, that the vote shall be taken so that each State shall have one vote? Upon that question a great deal can be said on both sides. A great deal can be said in favor of a vote in the joint convention just as if it was one body, or a vote as proposed by the amendment by States; and it is very difficult indeed to make a satisfactory argument, owing 536 PROPOSED LEGISLATION AS TO THE MODE OF to the fact that there is so much ambiguity in the Constitution upon this subject. But if I am right in saying that the mode of counting is left to the law-making power, it would fol low that we have a right to adopt any mode which is fair and just and consistent with the spirit of the Constitution. I have endeavored to show that it is not consistent with the spirit of the Constitution to devolve this power upon the Supreme Court, nor consistent with the spirit of the Constitution to devolve it upon any tribunal or body of men outside of the Halls of Congress. That is my opinion now, without undertaking to say that possibly I may not be in error. Then, with that limitation, that we must confine ourselves to the Halls of Congress, if we have the right to provide the mode by law, the only limit upon our discre tion is the limit placed by eternal truth, the principles of eternal justice, and the spirit of the Constitution under which we act. Any mode, then, consistent with the spirit of the Constitution, and that is not opposed to any express provision of the Constitution, and that is consistent with truth and justice, we are at liberty to adopt. I think, therefore, after much reflection on this very difficult subject, that it is compe tent for us to adopt the mode proposed by the Senator from Virginia ; and then the only point that remains is, is that the mode most consistent with the spirit of the Constitution? As I said, there might be some difficulty about that; but, inasmuch as it is somewhat in anal ogy to the way in which the vote of the House is taken when the House elects a President, a pretty far-fetched analogy, I am compelled to admit, I am inclined to think that that is the best mode in which we can solve this enigma. I thank the Senate for having listened tome again on this subject, and promise not to trou ble them any more. Mr. CHRISTIANCY. Mr. President, so meagre is the provision of the Constitution in reference to the counting of votes for Presi dent and Vice-President of the United States, and so entirely blank is that instrument as to any mode of deciding upon the authenticity or validity of the certificates, that it would almost seem, and some Senators appear really to be of the opinion, that our fathers in framing the Constitution must have acted upon the Irishman s plan of constructing a cannon; which was to make first a large hole and then cast the cannon around it. The Constitution, in one view of it, certainly seems to have taken one step in that process, and seems to have left to us only the ingenuity of taking the other, unless we find upon examination that what at first seems to be a vacuum is in fact filled, and becomes solid by some implication from the affirmative provisions of the Constitution itself. As to the affirmative provisions which it has made, it is very clear that no joint convention of the two Houses for the counting of the presidential vote is contemplated where the votes of all are to be taken collectively. It is not even expressly provided that the two Houses shall meet, though this is clearly im plied, as the votes are to be opened and count ed in the presence of both Houses. The lan guage is this : The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be count ed. It does not say by whom the votes shall be counted ; and as it does expressly provide that the President of the Senate shall open all the certificates, and then immediately declares that "the votes shall then be counted," without saying by whom, there is, as it seems to me, a fair though not conclusive inference that it is not made the duty of the President of the Senate to count them, because, if this had been intended, the language in that connection would naturally have been, as already sug gested by several Senators, " the President of the Senate . . . shall open all the certificates and count the votes." Now, as this counting is required to be in the presence of the two Houses, and no pro vision is made by whom the actual count shall be made, it seems to me that the counting may be considered as, in legal effect, the work of the two Houses, for which each is responsible. Not that each member of each House shall actually count all the votes and make the ne cessary lists, which would be practically very difficult, but that each House should appoint some member or members of its own to count them ; in other words, to act as tellers, and to perform their work in the presence of the two Houses. This is the mode provided in the twenty-second joint rule, now repealed, and in the first section of the bill now before us, and this mode is I think the fair result of the interpretation of the Constitution above indi cated ; and the matters of mere detail for the purpose of accomplishing this mode of count ing and of deciding, as provided in the first, third, and fourth sections of the bill, would, I am inclined to think, come fairly within the constitutional power of Congress. As to the question between the provisions of the twenty-second joint rule, preventing any vote being counted except by the concurrent vote of the two Houses, and the provisions of this bill, that no vote or votes from any State shall be rejected except by the affirmative vote of the two Houses, the question is not so clear as it might at first appear; the difference between the two Houses would necessarily be upon the authenticity or validity of the return or certificate, as there could be no other ground upon which either House could hon estly reject the votes, and a dishonest rejection the framers of the Constitution certainly did not attempt to provide for. But a difficulty arises here from the silence of the Constitu tion, which does not seem to have contemplated the possibility of any disagreement of the two COUNTING THE ELECTORAL VOTES. 537 louses upon the authenticity or validity of the certificate ; and yet we all know that such dif- erence of opinion and such disagreement not only may arise, but have actually occurred. Still this question of the authenticity of the certificate, though not provided for or appar ently thought of by the framers of the Consti- ,ution, is actually and necessarily involved in the counting of the votes, which they did pro vide for, and therefore within every recognized principle of interpretation must be considered is having been contemplated by them, and yet they have made no express provision for the decision of the question arising upon such a difference. But is no mode for its decision to )e fairly implied ? If the mode of deciding such a difference >etween the two Houses is implied or fairly nferable from the provision actually made, :hat implication is as much a part of the Con stitution as if expressed, and no different mode of deciding the question would be within the power of Congress. Now, if it be true that under the Constitu tion the counting is to be considered, in legal sffect, the act of the two Houses ; and if, as I lave suggested, the question of the due au thentication of the certificates of election is necessarily involved and included in the count- ng provided for, then, as there is an absence of any express provision for any other mode of decision, it would seem almost of necessity to follow that the decision upon the authenticity and validity of the certificates should be de cided by the same bodies who make the count ; n other words, by the two Houses, whose act in legal effect the counting is. But if a deci sion by the two Houses, or, as claimed by some, ;he decision by the President of the Senate, is fair implication from the Constitution the mode of decision intended, then very clearly no other mode can be provided by Congress any more than if the implication claimed had been an express provision of the Constitution. Up to this point no difficulty could arise if 3oth Houses agree in their decision ; nor could there be any difficulty if the two Houses were acting strictly in joint convention, so that the vote of each member of that joint body should count as part of the aggregate of the whole. But if they are to act and decide separately, and not jointly, as seems to have been conceded, each House may come to a different conclusion ; one for allowing the certificate and counting the vote, and the other against it. And a similar difficulty would arise in reference to the first section of this bill when there is but one return from a State, as under the second, when there are two sets of certificates. The question is, Who or what tribunal shall decide when the two Houses acting separately disa gree? If the authority of the two is equal and opposed to the other in its decision, how much greater reason is there for saying that the cer tificates from any State shall be admitted and the vote counted than for holding that it shall not be admitted or counted ! Certainly it can not be said that there has been any decision in its favor ; and there may be much difficulty in finding any more intelligible ground for hold ing that the vote should be counted than that it should be excluded. It was, I suppose, upon considerations like this that the twenty-second rule was adopted. And yet the result, I con fess, does not strike my mind as favorable or just, since it puts it in the power of either House alone to disfranchise a State. Just rea soning should lead to just results ; and when it does not, a lurking fallacy is to be suspected. And we should seek to find where it is; or, if not found, then whether the difficulty does not arise from the actual deficiency of the Consti tution itself? It was said yesterday that when the two Houses disagree, their authority being equal, the equilibrium might be overcome and the scales turned in favor of the admission of the certificate and the counting of the vote by the presumption in favor of the authenticity and validity of the certificate. That would be so if the validity and authenticity were conceded ; but it is precisely this which is not conceded, and about which the two Houses disagree. And if we are to base our presumption upon the face of the papers alone and the signature and seal, it would seem to be begging the whole question at issue between the Houses to over come the difference between them by such a presumption from the face of the papers alone. But when we take a little broader view of the matter, and consider the stupendous wrong of disfranchising a State, and the more significant fact that but one return or certificate has been sent up from the State, that no other return is sent up, and no conflicting claim is presented by other certificates or returns, and the strong probability that such would have been pre sented had there been any ground for them, the probability is so strong that the one sent up is correct as to amount to a moral certain ty ; and it is very difficult to see how either House could honestly decide against its admis sion, and a dishonest decision of one House against its admission ought to be disregarded rather than to disfranchise the people of a State. These considerations seem to me to lead to the conclusion that in the great major ity of cases of the kind justice would be much more likely to be reached by admitting the returns and counting the vote, when the two Houses disagree upon a single return from a State, than by excluding it ; and that this con clusion is more in accordance with the tacit assumptions of the Constitution itself, which seems to assume that the vote is to be counted. I can, therefore, as at present advised, vote for the first section of the bill ; and the more read ily because it seems to me the same result would follow from the Constitution without the bill, and that the bill only embodies in a compact and authentic form the conclusions fairly resulting from the Constitution itself. 538 PROPOSED LEGISLATION AS TO THE MODE OF But I am far from being very confident of the correctness of this conclusion or the reason ing by which I have reached it, and may change my opinion entirely in the course of the dis- . cussion. The silence, the apparently utter hia tus in the Constitution, makes it very difficult to find any landmarks by which I can, with any confidence of certainty, guide my course. And I feel some of the same kind of uncertain ty as I can imagine I might feel if thrown out into void space beyond sight of the stellar uni verse, and should there undertake to ascertain courses and distances and to divide that void space into definite areas. From such a posi tion, so obscured by distance, I feel no strong confidence of being able to shed so strong a light upon the questions before us as to remove all the doubts of others or even my own. But take now the case provided for by the second section of the bill, where there are two certificates or returns, or two sets showing the election of a different ticket or different men, one House deciding for one and the other for the other, and let us consider the question as it would stand upon the Constitution with out the aid of this bill. If the two sets of re turns were equally well authenticated, and other things being equal (and a disagreement can hardly be supposed if they were not), no such presumption would arise in their favor as in the case where there is but one return from a State ; and the two Houses being divided in opinion, there is nothing to turn the scale in favor of either, what would be the result with out this bill ? Could the vote be counted ? Cer tainly not ; unless the President of the Senate is to decide, for otherwise there is no decision, and one cannot be counted unless both are counted ; and if both are counted, they would neutralize each other, and the result would be the same as if neither had been counted. The Constitution has provided no tribunal for the decision upon such a disagreement, un less, as I have suggested, that by implication the President of the Senate is to make the deci sion. And if, as already suggested, there be any implication in the Constitution that the two Houses are to decide upon the validity of the returns or certificates, or that the President of the Senate is to decide it before or after the Houses have disagreed, then this implication, being as much a part of the Constitution as if expressed, it would be a violation of the Con stitution for Congress to pass an act providing any other mode or tribunal for its decision. It is only in the event that the Constitution has made no provision by implication (for there is none expressed), that it could be com petent for Congress to establish a mode or tri bunal for the decision. If there be no implica tion of any mode, and the Constitution can be said to have entirely omitted to provide for the decision, then perhaps it might be said the intention was to leave the mode of decision to the discretion of Congress. But the tribunal for this purpose must be one which can act and decide immediately upon the occurrence of the disagreement, for the Constitution evi dently requires immediate decision. The President of the Senate shall, in the presence of the Senate and the House of Eepresentatives, open all the certificates, and the vote shall then be counted. If Congress can provide such a tribunal at all, it must be in their power to select that which in their opinion is best adapted to effect the object, a fair and speedy decision. But there are so many obvious objections to giv ing the power to the House of Eepresentatives, voting by States, or to them with the two Sen ators of the State voting by States, and either of these methods is so obviously calculated to defeat the majority of the people of all the States interested, that I could in no event vote for any such tribunal. It would be far better to provide for a joint vote of the members and Senators of all the States, as in joint conven tion. But the insuperable objection to this would be that it would be in manifest violation of the affirmative provision of the Constitution, meagre as that provision is ; for in providing for the counting of the votes in the presence of the two Houses, the Constitution clearly enough indicates that it is not to be a joint convention, but that each House is to act in its separate capacity. Of all the modes suggested for the decision of the question, when the two Houses disagree, if there be power to establish any tribunal, I am most inclined to that suggested by the Sen ator from New Jersey, to call in the Chief Jus tice or one of the justices of the Supreme Court to act with the Speaker of the House and the President of the Senate, and making the deci sion of the majority of these final. I think, however, it would be still better to call in the Chief Justice and the next senior justice, or, if there be no Chief Justice, then the two senior justices (according to date of commis sion) to act with the President of the Senate and the Speaker of the House, and making the decision of the majority of these four final. This would be certainly better and more likely to secure a fair and impartial decision when the President of the Senate and the Speaker of the House happen to be of the same political party. But, for the reasons already suggested, I doubt the competency of Congress to provide any tribunal at all for the decision of such a question, and as yet incline to the opinion that the two Houses in their separate capacity are the tribunal of the Constitution, and I am in clined to think the only safe mode to remedy the evil is by an amendment of the Constitu tion itself. But, with my present views, I have come to the conclusion to support the present bill ; but I am still open to conviction, and hope to derive more light from the discussion. The Senator from Ohio [Mr. THUEMAN] said that it was incompetent to devolve this duty upon the justices of the Supreme Court ; and his objection apparently seemed to be based COUNTING THE ELECTORAL VOTES. 539 upon the idea that it would be devolved upon them as a court. I do not understand this to be the fact, but it is only a mode of desig nating certain persons who are to act with the Speaker and with the President of the Senate. I am not sure that even that would be compe tent ; but I wish to hear further discussion upon the subject. Mr. FRELINGHUYSEN". The amendment which I offer is to add at the end of the sec ond section these words : The difference- Between the two Houses shall be immediately referred to the Chief Justice of the Supreme Court, the presiding officer of the Senate, and the Speaker of the House, whose de cision shall be final. If the Chief Justice is absent or unable to attend, the senior associate justice of the Supreme Court present in the capital or other place of meeting shall act in his place. The word "capital" is printed " capitol " instead of "capital." That correction should be made. I was somewhat impressed by the argument made by the Senator from Maryland [Mr. WHYTE] for the purpose of showing that the Constitution contemplated that the vote should be counted by the President of the Senate; but I am satisfied, on reviewing that subject, that my first impressions were correct, and that the Constitution does not contemplate that the President of the Senate should count the vote. The fact that the Constitution does in terms provide what duty the President of the Senate is to perform, to wit, that he is to open all the certificates, and omits to provide that he shall count the vote, I think is con clusive that it was not intended that he should do more than he is expressly authorized to do by the Constitution. On examining the resolution of the conven tion that formed the Constitution (passed Sep tember 17, 1787), I think the Senator from Maryland gives it a misconstruction. That resolution had for its object the setting the wheels of this Government in motion, and after giving direction for the election of electors and having the certificates returned, the resolution provides : That the Senators and Kepresentatives should convene at the time and place assigned ; and that the Senators should appoint a President of the Sen ate for the sole purpose of receiving, openino- and counting the votes for President. Or, to read it otherwise, " That the Senators shall have some person to preside for the sole purpose of receiving, opening, and countin^ the votes for President. It is true that by the Constitution the Presi dent of the Senate is to receive and open the votes ; but the phraseology of this resolution is to be construed according to the well-known rule, " Eeddendo singula singulis." The words of the resolution are to be taken singly, and the only intention of that resolution is that they shall have a presiding officer, in order that the votes may be received, opened, and counted, as provided in the Constitution. Mr. THUPvMAN. From what page does the Senator read ? Mr. FRELINGHUYSEST. Page 387 of the Manual. The bill under consideration, as it stands, in effect says that when more than one return is made from any State and the two Houses dis agree as to which is the true return, the voto of that State must be lost. Permit me to say to Senators that we all know that is a result that the Constitution did not contemplate. Whatever errors we may make in acting on this subject, we know that we commit an error if we enact a law leaving the election of the President in that position. It would be a great calamity to the country to have the will of the people defeated in the election of Presi dent by the failure to count the vote of one State. It might lead to results that we do not even dare to contemplate. It is our duty to make such enactment that the vote of every State shall certainly be counted. We must then take some action. The Con stitution being silent, it is perhaps impossible to invoke its affirmative sanction for any plan that we may propose. No proposition can be put forward, in support of which its advo cates can turn to the Constitution and say, " Here is the positive authority for the propo sition." The best that can be said for any plan is that it is not in violation of any provi sion of the Constitution. If I may have the attention of the Senator from Ohio [Mr. THTJK- MAN], it seems to me that the plan which he favors comes near to being a violation of the Constitution. The Constitution has told us what part the House of Eepresentatives shall take in the election of President, and we may not say that instrument intended that the House should take other or further action than that stated by it. It has declared and defined what shall be the province of the House in the election. It has said that if no person has a majority of the whole number of electors, then the House, voting by States, shall from those having the highest number, not exceed ing three, choose a President. The Constitu tion has told us when and how the House of Eepresentatives is to vote for President, and I think we have no right to assume that it contemplated that the House should vote in any other manner than is plainly stated in the Constitution. We conclude that the President of the Sen ate is not to count the votes, because the Con stitution says he is to open the votes, and does not say he is to count them. And by the same reasoning we conclude that the House is not to vote in the exigency we are contemplating. The Constitution declares when and how the House is to vote. The amendment which I have proposed is not contrary to the Constitution, and the duty is on us to meet the difficulty in some way. 540 PROPOSED LEGISLATION AS TO THE MODE OF The question to be submitted, and upon which a difference arises between the two Houses, is a judicial question. It is a question as to the authenticity of a return, and it is also un doubtedly a political question. It is no less a question than who shall be the Chief Magis trate of the nation ; and the tribunal to make that determination should be one having judi cial and political characteristics. The amend ment suggests that it shall be the head of the judiciary, the President of the Senate, and the Speaker of the House. Thus we have the representative of the States in the presiding officer of the Senate; the representative of the popular branch of the Legislature in the Speaker of the House of Eepresentatives. They probably, in a difference between the House and the Senate, would in opinion rep resent their respective Houses, and being a ju dicial as well as a political question, we invoke the aid of the head of the judiciary. The high character of this tribunal, composed of men who have been selected by the nation, gives security against all partisan and all unjust de cisions. Their determination would be made with the eyes of the nation upon them. The tribunal comports with the dignity of the great question, and would be safe and conservative ; and I doubt whether it is possible to adopt a better. It is said that the votes are to be counted in the presence of the Senate and House. That is true, but the difficulty we are meeting is that of there being votes which they can not count, where the Senate says, " Count them," and the House says, u Let them not be counted." Intervention thus becomes neces sary. Therefore let us establish this tribunal, representing each House, and invoking the aid of the judiciary to determine what is the vote, that it may be counted in the presence of the two Houses. Mr. JOHNSTON. The amendment offered by me is not properly printed. It purports to strike out all after the word u and" of the amendment of the Senator from Tennessee [Mr. COOPER] and insert my amendment. In stead of that it is to come in at the end of the second section of the bill, being an addition to that section. On the top of the second page of the printed amendment the word " vot ing" is omitted before " by States." Then, in order to perfect the amendment, I desire to add after the word " vote," in the fifth line on the second page, the words, " a majority of such representation shall cast the vote of the State." The PRESIDING OFFICER (Mr. CAMEROX, of "Wisconsin, in the chair). The amendment will be reported as modified. The CHIEF CLERK. It is proposed to insert 9 4 the end of the second section of the bill the following : If the Senate should vote for counting one certifi cate and the House of Eepresentatives another, the joint meeting of the two Houses shall finally deter mine which shall "be counted, voting by States, the representation from each State, including the Sen ators therefrom, having one vote. A majority of such representation shall cast the vote of the State, but if the representation of any State shall be equal ly divided its vote shall not be counted. Mr. JOHNSTON. I suppose, although strict ly speaking the amendment of the Senator from New Jersey is the one before the Senate, it is not improper to consider all the amendments which are before the body. It seems to me that the amendment offered by the Senator from Tennessee is liable to several objections. In the first place it provides for the decision of a question by one body where the two bodies disagree. In the event that the Senate should decide in favor of one set of returns and the House in favor of another, the amendment of the "Senator from Tennessee provides that the question shall be decided by the vote of one of these bodies, excluding the vote of the other. The amendment is objectionable in that respect, for in a matter of disagreement in regard to the vote of a State each body should have a right to express their opinions and be heard. Each body should be allowed a vote in the final ar bitrament of that question, and it should not be left exclusively to one of the two Houses to decide. That would be proper according to my view in any question arising between the two- Houses, and it is rendered particularly proper in the consideration of this particular question. The bill is one relating to the election of both President and Vice-President. The first and second sections refer to counting the votes for both officers; but the second section especially says that the returns of the election for Presi dent and Vice-President in such States shall be opened by the Vice-President " in the presence of the two Houses when assembled to count the votes." And the amendment of the Sena tor from Tennessee proposes a mode of settling a disputed question in regard to the election of both officers. The twelfth article of the Constitution of the United States declares that where there has been no election by the people the House of Eepresentatives shall elect the President and the Senate of the United States shall elect the Vice-President. We are now considering a measure in regard to the election of both these officers, not the President only, but the Presi dent and Vice-President also. The bill is applic able to both of these officers, and we must there fore frame a law so as to be operative as to each of those officers, and not to one alone, and that shall not deprive either body of its constitution al right. While the Constitution declares that the Vice-President shall be elected, in the event that there is no election by the people, by the Senate of the United States, the amend ment of the Senator from Tennessee proposes to take away entirely from the Senate any voice in his election. I think, therefore, that the amendment of the Senator from Tennessee is liable to the fatal objection that it deprives the very body which the Constitution itself COUNTING THE ELECTORAL VOTES. 541 provided shall decide that question of any choice in the matter. Mr. EATON. Will my friend allow me to ask him a question ? Mr. JOHNSTON". Certainly. Mr. EATON. Does the logic of the Sena- or s argument carry it -to the extent that un der certain circumstances a President might be elected of one party and a Vice-President of another party ? Mr. JOHNSTON. I think not, under the amendment I propose. Mr. EATON. I speak of the logic of the ar gument, not of the words of the amendment. Mr. JOHNSTON. I think that the sugges tion made by the Senator from Ohio in regard [to the amendment of the Senator from Ten- inessee has great weight. -He suggested that in times of high party excitement, times which lead not only men but public bodies from what they might do in cooler moments, the House of Representatives might attempt to usurp the functions of the Senate by intentionally differ- ;ing from the Senate. Take the case of the two Houses being under the control of two different political parties. A question arises jtn which the Senate votes one way and the House another. Then in the face of a dis agreement between those two bodies the House ; under the amendment of the Senator from Ten nessee would have a right to determine the iwhole question. That might be an inducement to the House to differ from the Senate in or der that they might thus be enabled to exer cise this whole important function. It seems to me that we ought not to put any such power as that in the hands of anybody ; that we ought not by adopting such an amendment to enable ithe House of Representatives by differing de signedly from the Senate to acquire the right and power to decide the question themselves to the exclusion of the other body. Therefore that amendment is objectionable on that ac count. Nor do I think the amendment of the Sena tor from New Jersey is the proper solution of this question. I believe that the Constitution intended in the beginning that Congress should decide these questions. I do not think it w.as ever contemplated by the framers of that .in strument, or that it is in accordance with its spirit, that anybody or any set of men but the Congress should decide these very important questions ; yet the amendment of the Senator from New Jersey calls in an entirely new body, one not recognized at all by the Constitution, a body to be created now by law, never thought of at the time the Constitution was framed, having its whole existence in this proposed law, and originating on this particular occa sion. Such a body is no part of the regular Government of the United States, but it is a new body to be brought into existence for the first time. I respectfully suggest to the Senator from New Jersey that the Speaker of the House, as such, is not recognized in the Constitution in regard to the count of the votes for President and Vice-President, but is only a member of the House. He performs no function ; he does nothing more than any other member of the body and has no greater power. He is ignored in the Constitution. When they meet in joint assembly the President of the Senate presides over the body. The Speaker does not preside. He is there as a member of the House but not as Speaker of the House. He has nothing to do, therefore, beyond any other member of the House on that occasion, and the selection of him to discharge any important duty as Speak er is therefore outside of the original purpose of the Constitution, and if he has to have any especial powers they have to be given to him now. The same is true in regard to the ap pointment of the Chief Justice as a member of this new tribunal. That was never contem plated by the Constitution. It was intended in the beginning that any questions which might arise on this matter should be decided by Congress alone, and by nobody else. If we adopt the amendment of the Senator from New Jersey we create a body of men who are to act when the circumstances arise, who have been contemplated by no previous law, by nothing in the Constitution of the United States itself, and who are to solve and settle a question which according to my view the Constitutio-n intended Congress itself to settle. It is agreed upon all hands that it is the duty of Congress to provide for a contingency in which there may be two returns from a State when the question arises as to which of those returns shall be counted. All agree that nobody in the beginning contemplated, and no one contemplates now, that the fair vote of a State should be excluded. The right of every State to vote lies at the very bottom of our con stitutional rights. If it is ever conceded that a contingency may arise in which the fair vote of a State shall be excluded, then we at once lay a foundation for the destruction of our Government. The Constitution intended that not only the votes of one State or two States should be counted, but that the votes of all the States should be counted ; every State ; not nineteen put of twenty, not thirty-six out of thirty-seven, but the whole thirty-seven. Each and every State has a right to have its vote counted in. the election for President and Vice-President. Therefore, this being a fun damental right lying at the very foundation of .our Government, it is imperative on us to find some mode to provide against a contingency which may defeat the vote of a State. What seems to have been the original purpose of the Constitution ? It appears to me there can be no doubt on that subject. It does not seem that there was any idea, either in the framers of the Constitution or in the Constitution it self, that anybody could exercise that right except the Congress of the United States. The Constitution provides that where there is no 542 PROPOSED LEGISLATION AS TO THE MODE OF election by the people, the House of Repre sentatives shall elect the President, and where there is no election by the people the Senate shall elect the Vice-President. It provides that the two bodies shall meet in joint session. The joint convention shall separate only for certain specified purposes, namely, where questions arise to be decided touching any re turn. In that case the two bodies are to sep arate and each shall decide for itself. There may be a contingency in which the two bodies acting separately may differ. One may decide in favor of one set of returns and the other in favor of another. It does not seem to me that the powers of the Congress of the United States are insufficient to provide for a contin gency of that sort. The fact being admitted that it is the duty of Congress to provide for the counting of every vote of a State (and that fact cannot be disputed), if the Constitu tion itself fails to provide for the mode of do ing this, can there be any doubt of the power of Congress, under the general section read by the Senator from Ohio, to provide for this emer gency ? If the machinery is not provided by the Constitution itself, the power to provide that machinery is given to Congress. The Constitution says that the votes of the States shall be counted. If it omits to provide how it may be done in each and every emergency when an unexpected difficulty arises, under its general power Congress can give each State its vote, in order to preserve the spirit of our institutions. The Constitution in substance allows the two bodies together by law to pro vide a mode in which that difficulty shall be removed and that the vote of that State shall be counted. The question is, What mode is most in consonance with the spirit of the Con stitution ? What did the Constitution intend in the beginning ? What did the framers of the Constitution intend? What mode is most likely to be the one which was originally in tended, and which would carry out the spirit and intention of the Constitution most effect ually ? As th Constitution has mentioned no other body but Congress, as there is no reference anywhere in the instrument to this duty being performed by any body but Congress, when ever we go outside of Congress to get any man, or any set of men, for the purpose of deciding this question, we go outside of the spirit of the instrument, and outside of its letter. The right course to pursue is to see what the spirit of the instrument is, what was intended in the beginning, w r hat the purpose of it was, that whatever remedy we do adopt we may adopt the one nearest to the spirit of the in strument. The amendment proposed by my self answers that end. Here is a law providing how the certificates as to the election of the President and the Yice-Presiderit, two great officers, shall be determined. We have to count the returns for both, and we must pro vide by law for counting them both. Then in attempting to do that we must look to see what the Constitution intended. It is clear that the Constitution intended that, in a certain contin gency, the election of President should be < settled by th House and the election of Vice- ; President should be settled by this body. To propose that the House should have the com- j plete right to settle both of these questions is not in conformity with the spirit of the Con stitution. I cannot see that there is any other ; solution of the question. If we adopt any oth- . er we go outside of the letter and outside of the spirit of the Constitution, and therefore it seems to me that the amendment proposed ] by myself is the only proper solution. Mr. HOWE. Mr. President, I would not I trouble the Senate with any remarks at this time if it were not for the fact that I hold some impressions upon this question which I have not heard yet expressed by any Senator who has preceded me in the debate. I speak j of them as impressions rather than as a belief; ; but, whether they are one or the other, they j are so strong upon me that I think it worth I while for me to give them to the Senate. I agree with all other Senators that this is i one of the most important pieces of legislation ] that I have seen before this body since I have j had the honor of a seat here ; and I may be \ allowed to say that to me it is altogether the j saddest piece of legislation. It is to me, as I doubt not it is to the Senate at large and the j country as well, a melancholy reflection that we should at this early period of our history require additional legislation, special legisla tion, in order to execute properly the very simple trust which the Constitution confided to the States and to the Congress of the Unit ed States. When the constitutional conven tion, after a great deal of discussion, after pro longed deliberation, finally invented the plan of having the States make known their choice for President through an electoral college, and had declared to that end that they might ap point a prescribed number of electors in any way the Legislature of the State thought best, I do not think it was contemplated by any one member of that convention that it would ever be a doubtful question, in fact, among honest men who had been appointed by the Legisla ture of any given State. When the conven tion said that at a given time the two Houses of Congress should be convened together, and that there the votes which had been returned from the different States should be spread open, and, in the presence of all the members of Congress, those votes should be counted, I do not think it ever entered into the mind of one member of that convention to suppose that a difficulty should ever arise in that joint convention as to which missive purporting to come from a State should be respected as the message of that State. But already we know historically that that convention was over confident either as to the sagacity or the integ rity of the men who were to come afterward. COUNTING THE ELECTORAL VOTES. 543 Questions of great difficulty have already arisen ; and this bill, as well as all the amend ments proposed to it, is full of prophecy that like difficulties may occur hereafter. If such difficulties are to come, we ought to deliberate very carefully and very conscientiously how we can best avoid them, or how we can best meet them and deal with them if they must arise. I have given undoubtedly much less atten tion to this subject than I ought to have done. I will say right here, however, that, upon such consideration as I have bestowed upon the sub- ji ject, if I am called upon to choose between (the different expedients already laid upon our j desks, I should prefer myself the provisions of :the bill reported from the Committee on Privi leges and Elections to any of the amendments . which have been offered. Before telling why, I want to make another preliminary remark ; and that is, that I am one of those who sup- : posed that all the power of every kind which I the constitutional convention intended should [ever be exercised by the Government of the I United States that convention vested in one or [the other of the three departments which it : created under this Constitution ; and I cannot ! help feeling to-day that there is no power i which the Government can exercise which is | not in its nature legislative, executive, orju- idicial. If it be executive, it belongs to the ex- jecutive department of the Government in ex press terms by the Constitution. If it be legis lative, it belongs to the Congress of the United States, to the legislative department of the Government, in express terms by the Constitu tion. If, on the contrary, it be judicial in its nature, it belongs to the judicial department of the Government, as fixed by the Constitution ; it does not wait for an act of Congress to vest it there ; it does not need a tribunal or that you pass an act of Congress for it. Is this power executive in its nature ? What is the power that you propose to exert ? Briefly this : There is the State of Rhode Island, which is entitled to four votes upon the election of your next President and Vice - President. I suppose the Legislature of that State has pro vided that thosa electors shall be chosen by the people, or does the Legislature appoint them itself? Mr. ANTHONY. They are chosen by the people. Mr. HOWE. Suppose it shall so happen that next autumn there comes to the President of the Senate a letter from Rhode Island signed by four men who claim to be the electors of the State, and who say that they voted for Brown for President and Wilkins for Vice-President, and that there shall come another letter from the same State, signed by four gentlemen claim ing also to be electors of that same State, say ing that they voted for two other and different people. Or, to suggest another case which presents precisely the same difficulty, suppose there come two letters from the Stae of Rhode Island signed precisely the same, but one letter says that the State of Rhode Island voted for Brown and Wilkins, and the other letter says that it voted for two different men. There the question is presented. In the first case, you know that everybody voted ; that one set of those fellows who claim to be elected is abso lutely the right set. In the other case, every body knows that one of those letters is a for gery. One is true, the other is false. You want to ascertain how to determine in the one case which of the letters is the true letter and which is the forged ; or, in the other case, wh^h set of four men was legally authorized by the State of Rhode Island to declare its wishes in the presidential election. Now, what is the nature of that question ? What is the nature of the power which determines that question ? If executive, clearly the President should determine it ; but then no one will say that it is executive, or at least no one has yet said that. Well, is it legislative? This bill, and each one of the amendments, and all the discussion to which I have listened seem to go upon the supposition that it is legislative power. If it be, I wish Senators would consider for a moment whether they can abdicate, transfer, transmit the exercise of that power to any oth er body in the world. The Constitution says that legislative power is vested in a Senate made so and so, and in a House of Representa tives made exactly so, and in no other way. Those two bodies, under the correction of the President, are to wield all legislative power, and for the very gravest reasons in the world the Constitution vested this legislative power in these very peculiarly constituted bodies. Now, can you delegate the exercise of any part of legislative power to any other tribunal ? I simply state the question. I do not argue it. Mr. EDMUNDS. And do not answer it. Mr. HOWE. No; I do not answer it. I will give my own opinion. My own opinion is that it cannot be delegated ; and, therefore, if I were driven to the conclusion that the de cision of this grave question, this momentous question, this question upon which, under conditions entirely conceivable, may hang the issues of civil war if I were driven to the conclusion that that is a legislative question, I should say that, when the question arises which one of these letters from Rhode Island shall be respected as the voice of Rhode Island, it must be settled either by the joint convention or by the several Houses acting separately; nor can it be left to arbitration, no matter who may be the arbitrators. There is but one way under the Constitution in which it can be settled, and that is by bill, going through all the forms of enactment, becoming a law by the approval of the President of the United States, or receiv ing the vote of two-thirds of each House over his veto. That is my own conclusion. I do not propose to argue it, and I do not propose to occupy the attention of the Senate any longer than to make one other suggestion 544 PROPOSED LEGISLATION AS TO THE MODE OF probably it already occurs to so many Senators as have done me the honor of listening to me and that is that in my own mind the power which can definitely settle that question, con clusively settle that question which letter re flects the voice of Khode Island, is not the ex ercise of executive power, is not the exercise of legislative power, but is the exercise of ju dicial power. Who are interested in that question? If those four votes would change tha political complexion of the executive department of the Government for four years, it is a question which interests certainly all the political paries into which the people of the United States may be divided ; aud in that sense it interests all the people of the United States. Nay, the politi cal complexion of these parties may assume a hue, a color which would make the great issues of peace and war with foreign powers actually to depend upon the question which of those letters actually represents the will of Rhode Isl and. But then there are two or more persons who have a peculiar and a pecuniary interest in that question. Who are they? The men who are rival candidates for the Presidency. Count one of those letters true, and one man becomes President of the United States ; count the other, and another becomes the President of the United States. Now, is the Presiden cy under our system of government an office or is it not? If it be an office, why is not the selection of men to fill it as jealously guarded and as jealously controlled as the se lection of men to fill any other office ? If the dispute be about the choice of a municipal officer, the sheriff of a county, or anything of that sort, and a question arises before the board of county canvassers, or whatever they may be called, as to which of two letters from a certain town contains the true vote of that town, that question, everybody knows, I sup pose, at this day, is under the government of all our States plainly a judicial question. The courts have so held over and over again ; and in one instance to my knowledge it has been held that a dispute between two contending candidates for the office of governor of a State was a question to be settled by the judicial tri bunals of the State. The sitting governor, the occupying governor, has been ousted from office, and another man has been invested with the office under the judgment of a court of law. In what respect, except in point of mere dig nity, does the office of President differ from the office of governor? If, then, this be a judicial question, it belongs of course to the courts of the United States. The Senator from Ohio says that the Supreme Court cannot take original jurisdiction of the question. He is undoubtedly right about that, for the very good reason that it is not one of the questions nominated in the Constitution over which the Supreme Court has original jurisdic tion ; but, if it is a judicial question in its nature and a question which arises under the Consti tution of the United States, it belongs to some court of the United States, that which has original jurisdiction. Does it arise under the Constitution of the United States ? "What does the Constitution say? Not contemplating that there may be any dispute, that there may be any two pretenders to the office of elector of a State, it says these two things : First, that when the two Houses get together the votes given by the States shall be counted ; and you do not obey the command of the Constitution by any thing short of that; no matter what the dis pute may be, no matter what the difficulty may be of determining what are the votes of the State, the command of the Constitution is ex plicit that the votes shall be counted. What more? It says this other thing, that the man who has the majority of the votes shall be President ; not the man whom the president of the convention shall assert has the majority ; not the man whom the joint convention shall say has the majority ; not the man whom the two Houses shall say ; not the man to whom it may be awarded by any arbitration that may be possibly manufactured, but the man who has the majority. He is the man upon whom the Constitution, which we are all sworn to sup port, devolves the office of President. There fore I think, myself, that by the express letter of the Constitution this question is a judicial question, and all the legislation you want is such as may simplify and expedite the trial and the determination of it. I know very well that it does not matter at all who decides this question which may arise in the States touching the vote of a State, if after all the vote which the State really gave is counted in the convention and goes into the summing up of the general result, no matter who gets it, whether the president of the con vention, the Speaker of the House, the Clerk, or any member ; but, if there is a dispute as to which is the true vote, then it has to be de cided by somebody. I admit, if you leave it to the president of the convention, he may decide it wrong; if you leave it to the two Houses, they may ; if you leave it to any of the tribunals suggested by the different amend ments, they may decide it wrong ; and I ad mit, if you leave it to the judicial tribunals, they may decide it wrong; and so, after all, the command of the Constitution may not be obeyed, and the true vote of a State may be rejected and a false vote substituted. But the two reasons why I conclude that this power belongs to the courts, and to no body else, are : First, I think it is judicial power in its nature, and so has gone by the express delegation of the Constitution to the courts ; and, secondly, if I were myself, instead of being a Senator, a full-fledged constitutional convention, and were making a constitution upon this point, I would delegate this power to the courts; not because they cannot blun der or be dishonest even as well as other tri bunals, but because they have less excuse for COUNTING THE ELECTORAL VOTES. 545 blundering and are under greater obligations to be honest than most other tribunals, the forms of procedure in the courts are so deliberate, both parties are so carefully heard, testimony is so fully adduced, and the opportunity is given for so careful a weighing of it, and they act before the whole world, their judgments are submitted to the criticisms not merely of the present generation but of all time. So, as I was about to say, if I were making a consti tution, I should take pains in most explicit terms to give this authority to the courts. Mr. MORTON". Mr. President, there are three propositions here as amendments to the second section of this bill. That section pro vides for a case where there are two returns of electoral votes from the same State, and fur ther provides that only that return which both Houses agree is the true and valid return shall be counted. The first amendment, that offered by the Senator from Tennessee [Mr. COOPEK], is that in case the two Houses do not agree upon the same return the question shall then be referred to the House of Representatives, and they shall vote by States, and that return which has a majority of the States represented in the House shall be counted. The Senator from Virginia [Mr. JOHXSTOX] proposes to amend that by providing for a joint convention of the two Houses, the Senators and Representatives to meet together and compose one body, but that in that capacity, each Senator and each Repre sentative having one vote, the vote shall again be taken by States. For example, the State of Delaware would have three votes in this joint convention, having two Senators and one Rep- ; resentative. The two Senators would cast the j vote of the State, or one Senator and one Rep resentative could cast the vote of the State. ; In other words, it is proposed to give the Sen ators a vote in the determination of the voice of the State, just as a member of the other 1 House would have in the election of President. The third proposition is submitted by the Senator from New Jersey [Mr. FRELINGHUYSEX] to provide that, in case of disagreement of the two Houses in determining which is the valid return, then the question shall be referred to the decision of the President of the Senate and Speaker of the House, acting together with the Chief Justice of the Supreme Court ; that they shall constitute a tribunal. Of these three propositions, that of the Senator from New Jersey is, in my opinion, much the best. It is much more fair, equitable, and republican than either of the others, in my judgment. But, sir, I now present the question as to whether you can constitute an umpire between these two Houses. In the first place, to go back to the main proposition, the Constitution declares that The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. Two constructions are contended for here. 35 One is that the President of the Senate himself shall open and count the votes and shall deter mine all questions arising upon the certificates, or, in case there are two certificates, shall de cide which is the true and valid return. That is one construction claimed. There is another that the duty of the President of the Senate is simply to open the certificates in the presence of the two Houses ; that the two Houses are assembled not as a joint convention, but each in its separate capacity; that they are there not only as witnesses, but they are there as judges ; and if a question arises in regard to the vote of a State or a part of it, it is to be settled by the two Houses who are present there as the judges of the election. We could, without doing any great violence to the Constitution, adopt either of these con structions. Each is possible under the lan guage. The Constitution says : The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. It does not say who shall count them ; it leaves it open to inference that they shall be counted by the two Houses on the one hand or by the President of the Senate on the other. I will assume, for the sake of the argument, that you can give to it either construction. I will assume that it is open to both views. Then the question comes, which is the more reasonable, which is the better, which is the safer of the two : to adopt that construction which gives this great power to one man, the President of the Senate, who may be counting the votes for himself, as it has turned out six times in our history ; or would it be safer to leave it to the determination of the two Houses of Congress, representing the States and the people ? If we are open to adopt either one of these constructions, I say the latter is the safer, it is the more reasonable, it is in con formity with the spirit of our Government and of popular institutions. I then adopt the latter construction. If the votes are to be counted by the two Houses, a disagreement arising, how shall that be settled ? In the first place the first section of this bill provides for the case where there is but one certificate, where there is but one set of electoral votes ; there is no question that that certificate does come from the State; but it may be defective. For example, it may not state that the electors voted by ballot, as the Constitution requires ; it may not show that separate lists were made, as the Constitu tion requires ; it may not show that the vote was cast on the day the law requires ; or it may not be properly authenticated by the governor, according to form. There may be doubts upon these questions ; but still, the re turn itself being admitted to be the only one from the State, that section of the bill provides that the return shall be counted unless both Houses concur in saying that some one of these 546 PROPOSED LEGISLATION AS TO THE MODE OF objections is so clear as to require its rejec tion. That part of it is safe enough. There is only one return; the authenticity of it is admitted, but there is some defect about it. That defect shall not reject the return unless it is so plain that both Houses concur in reject ing it. That is safe for the country. We then come to the case where there are two sets of electoral votes two certificates, and each on its face is prima facie the vote of the State. How, then, shall it be determined? I assume that the Senate is acting patriotically and honestly ; I assume that the House would act in the same way. They may be composed of different parties, but we must leave some thing to the integrity of men, no difference by what political name they may be called. There are two sets. The Senate resolves in favor of one set, the House resolves in favor of the other set. There is a disagreement. The Senator from Ohio said that it was the intention that the State should have a vote, and so I say. The intention is that the State shall have a vote, but if the thing is in that condition that Congress cannot determine which is the correct vote, it will be the misfortune of the State if the vote is lost. That is all you can say about it. It is like any other case where the tribunal cannot agree. Appropriation bills are abso lutely necessary to carry on this Government ; and yet if the two Houses cannot agree about them the bills are lost. It is the misfortune of the Government ; it may be the destruction of the Government, but you cannot create an um pire in that case to pass an appropriation bill and determine whether the appropriation shall be made. Mr. SARGENT. It is because the Constitu tion prohibits it in that case. Does the Con stitution prohibit it in the other ? Mr. MORTON. I do not know that the Constitution prohibits it in that case any more than it prohibits it in the other. It provides that all the powers of this Government shall be in the three departments, the executive, the legislative, and the judicial ; and when the judi cial cannot agree and fails to act, that is the end of it ; and so with the legislative. I know of no provision in the Constitution authorizing you to create an umpire between the two Houses in regard to this question any more than in regard to a legislative question. Take a case where there are eight judges on the bench of the Supreme Court, an even number, and they stand four and four. They have failed to act. The judgment of the court below may be affirmed because the judgment of the court above is equally divided, or where affirmative action is positively required, as in the case of a mandate, the judges being equally divided, it falls. You cannot provide for an umpire in that case to come in and settle the question in case of a division of the Supreme Court. Now I want to consider very briefly the amendment offered by the Senator from Ten nessee providing that in case the two Houses of Congress shall disagree, then the House of Representatives, voting by States, shall settle the question. I would say to my friend that I am opposed to that upon every ground ; first, because it is inequitable, it is unjust, and I can see no logical propriety in taking a vote by States in determining a question of that kind as to which may be the true return from a State. There it may be a question arising up on the certificate, or possibly, though I cannot see how, a question of fact outside. The idea of deciding a question of that kind by the vote of States seems to me to be illogical in every respect. It recognizes a principle to which I am unalterably opposed. We have got one vote by States in the Constitution. That is enough. I undertake to say it is to-day the most dangerous provision in that instrument, and it ought to be out of it. It has been exer cised but twice, and each time it brought the Government into great danger. The idea now of giving to the House of Representatives the power of voting by States to disfranchise a State, or to admit this return or that return, the effect of which might be to give to the House itself the election of a President, or to give the election to that candidate who had a majority of States in his favor voting by States in the House, but to whom a large majority of that House personally might be opposed, is too dangerous to be tolerated. I have already shown by a calculation which has been made that you may take the present House of Rep resentatives and out of two hundred and ninety-two members forty-five members can elect a President against the wishes of nearly two hundred and fifty, and that nineteen States having less than a population of eight millions can elect a President over the other States having a population of thirty -two millions. Sir, if I had the time I could go into the history of the election of President in the House of Representatives in 1801 to show that it presents the most powerful temptation to corruption of any process connected with our whole Government ; and if it were not for shock ing the sensibilities of men, if it were not that I might detract something from that reverence which time has cast upon certain characters, I might refer to the history of that election to show that perhaps it was the most corrupt election in the history of our Government. I referred this morning to an old document that I remembered to have seen some time ago, and I read from a speech made by Mr. Bayard, of Delaware, in February, 1802, in regard to the election by the House of Representatives in 1801, a speech made in Congress by one who participated in that election. I will ask the Clerk to read from where I have marked on page 417 to page 420 of the volume, Debates on the Judiciary, which I send to the desk. The Chief Clerk read as follows : The case, sir, to which I refer, carries me once more to the scene of the presidential election. J should not have introduced it into this debate had it COUNTING THE ELECTORAL VOTES. 547 not been called up by the honorable member from Vir ginia. In that scene I had my part ; it was a part not barren of incident, and which has left an impression which cannot easily depart from my recollection. I know who were rendered important characters, either from the possession of personal means or from the accident of political situation. And now, sir, let me ask the honorable member what his re flections and belief will be when he observes that every man on whose vote the event of the election hung has since been distinguished by presidential favor. I fear, sir, I shall violate the decorum of par liamentary proceeding in the mentioning of names ; but I hope the example which has been set me will be admitted as an excuse. Mr. Charles Pinckney, of South Carolina, was not a member of the House, ; but he was one of the most active, efficient, and suc- cessful promoters of the election of the present Chief Magistrate. It was well ascertained that the ; votes of South Carolina were to turn the equal bal ance of the scales. The zeal and industry of Mr. Pinckney had no bounds. The doubtful politics of South Carolina were decided, and her votes cast into the scale of Mr. Jefferson. Mr. Pinckney has since been appointed minister plenipotentiary to the court of Madrid; an appointment as high and honorable as any within the gift of the Executive." I will not deny that this preferment is the reward of talents and services, although, sir, I have never yet heard > of the talents or services of Mr. Charles Pinckney. ; In the House of Eepresentatives I know what was t the value of the vote of Mr. Claiborne, of Tennes- [, see. The vote of a State was in his hands. Mr. Claiborne has since been raised to the high dignity of governor of the Mississippi Territory. I know how great, and how greatly felt, was the importance of the vote of Mr. Linn, of New Jersey. The del egation of the State consists of five members. Two " of the delegation were decidedly for Mr. Jefferson ; \ two were decidedly for Mr. Burr. Mr. Linn was considered as inclining to one side, but still doubt- I ful. Both parties looked up to him for the vote of New Jersey. He gave it to Mr. Jefferson, and Mr. Linn has since had the profitable office of supervisor :i of his district conferred upon him. Mr. Lyon, of ; Vermont, was, in this instance, an important man. ij He neutralized the vote of Vermont. His absence | alone would have given the vote of a State to Mr. |i Burr. It was too much to give an office to Mr. Lyon ; his character was low. But Mr. Lyon s son has | been handsomely provided for in one of the exec- | utive offices. I shall add to the catalogue but the name of one more gentleman, Mr. Edward Living ston, of New York. I knew well, full well I knew, the consequence of this gentleman. His means were not limited to his own vote ; nay, I always consid ered more than the vote of New York within his power. Mr. Livingston has been made the attorney for the district of New York ; the road of prefer ment has been opened to him, and his brother has been raised to the distinguished place of minister plenipotentiary to the French Republic. This catalogue might be swelled to a much greater magnitude ; but I fear, Mr. Chairman, were I to pro ceed farther, it might be supposed that I myself har bored the uncharitable suspicions of the integrity of the Chief Magistrate, and of the purity of the gentle men whom he thought proper to promote, which it is my design alone to banish from the mind of the honorable member from Virginia. It would be doino- me great injustice to suppose that I have the smallest desire or have had the remotest intention to tarnish the fame of the present Chief Magistrate, or of any of the honorable gentlemen who have been the ob jects of his favor, by the statement which I have made; my motive is of an opposite nature. The late President appointed gentlemen to office to whom he owed no personal obligations, but who only sup ported what has been considered as a favorite meas ure. This has been assumed as a sufficient ground, not only of suspicion, but of condemnation. The present Executive, leaving scarcely an. exception, has appointed to office, or has by accident indirectly gratified, every man who had any distinguished mean8 ? in the competition for the presidential office, of deciding the election in his favor. Mr. MORTON. That extract from a speech of Mr. Bayard showing very clearly that the election of President by the House of Repre sentatives or the decision of any question re ferred to that House where the vote was to be taken by States would be within the reach of the patronage of the President, proves the dan ger of that form of election. Aside from all questions of unfairness, aside from giving to the smallest State in this Union, with a popula tion of not one hundred thousand, the same voice in the selection of a Chief Magistrate or in determining some question upon which that election turns that the great State of New York has with nearly five million people, such a plan of election is a strain upon popular government in this country to which our institutions ought never to be subjected again, if possible. There are other features connected with that election that I might refer to, going to show the same thing ; but coming down to the election of John Quincy Adams, Mr. Clay, one of the most dis tinguished members who has ever had a seat in this body, long the great leader of his party, as a member of the House of Representatives voted for Mr. Adams when the election went to the House ; and afterward being appointed Secretary of State, he had a stigma affixed upon him from which he never escaped through a long and honorable life. The proposition of my friend from Virginia as well as that of my friend from Tennessee recognizes this principle of the independence and the sovereignty of the States, thus subdi viding the nation, and giving to each one a voice in the settlement and determination of this question a principle which in its amplifi cation and in its consequences was the founda tion of the doctrine of secession, and has brought upon this country the greatest evils under which it has suffered. I can never con sent, so far as I am concerned, to vote for any bill that further extends the operation of that doctrine. If we have power at all, which I do not think we have, to create an umpire to decide where the two Houses disagree, I then submit to my friend from New Jersey as well as to all the Senate, that the safest and best proposition is to introduce the Supreme Court in that case. If upon the question of a vote of a State that may turn a presidential election the House and the Senate cannot agree, the country would not l)e so well satisfied with a decision made by the President of the Senate and the Speaker of the House and the Chief Justice, a special tri bunal, as it would with a decision made by the Supreme Court of the United States. If we can call in an outside tribunal, one already ex isting, or if we can create one, would not the Supreme Court of the United States be more 548 PROPOSED LEGISLATION AS TO THE MODE OF satisfactory to this nation than any other one whose services we could invoke? And if, as the Senator from Ohio argued, you cannot con fer the power upon the Supreme Court, because there can be no appellate jurisdiction conferred upon that court that does not come from an in ferior court, as there could not be an appeal taken from the Court of Claims until you first gave the Court of Claims the power of finding a judgment if he is technically right about that, if we cannot call in the Supreme Court as a supreme court to decide that question, still we can do this, and I invite the attention of Senators to this : If we can make a special tri bunal out of the Speaker of the House, the President of the Senate, and the Chief Justice, we can make a special tribunal to consist of the judges of the Supreme Court. I have therefore drawn up the form of a proposition, if it be the pleasure of the Senate to establish an umpire, which I will read it is not in order now, but I will read it for information and I avoid the technical difficulty suggested by the Senator from Ohio, that you cannot confer this power on the Supreme Court as a supreme court, but keeping in mind the other suggestion, that we can create a special tribunal, then I say we can make that special tribunal to consist as well of the judges of the Supreme Court as of the Speaker of the House, the President of the Sen ate, and the Chief Justice. Mr. STEVENSON. Will the Senator from Indiana allow me to suggest to him and I make the suggestion to the Senator from New Jersey as well might not this question come before the Supreme Court of the United States as a judicial question, as much, for instance, as in the case of Marbury vs. Madison ? I can very well understand how a judicial question involving this election might come before the Supreme Court in its judicial character ; and it seems to me an objection, therefore, to make them decide, or at least the Chief Justice to decide it, not as a judicial question, when he may be afterward called upon to decide it ju dicially. Mr. MORTON. I think this question can not come before the Supreme Court judicially ; certainly not under the present law that we have, but I will now read the plan of the amendment that I would suggest in case the Senate determines that we have the power to establish an umpire : That the judges of the Supreme Court of the United States shall be assembled in the chamber of the Supreme Court at the same time that the two Houses of Congress are counting the electoral votes for President and Vice-President ; and in case the two Houses shall fail to agree as to which is the true and valid return as provided for in this section, the returns shall be immediately submitted to the said judges, who shall summarily decide which is the true and valid return, which return shall be counted. It seems to me that, if we have got to refer this question to anybody, it would be more satisfactory to refer it to the Supreme Court of the United States ; and if you cannot do it in the character of Supreme Court, then let your special tribunal be composed of judges of that court, and let them decide it, and decide it forthwith. My opinion is that there is a defect in the Constitution. I think this whole electoral- college business ought to be destroyed. The purpose of it has failed utterly. It is entirely useless ; it is dangerous ; but until that amend ment is made, my opinion is you cannot do better than to take this bill substantially as it has been reported to this body. Mr. EDMUNDS. Mr. President, I think it quite obvious that we cannot conclude this discussion to-night. It has been valuable to us all, and the question is of so great impor tance that reflection upon what has been said I have no doubt will be advantageous to each Senator. I move therefore that the Senate now proceed to the consideration of executive business. Mr. EANDOLPH. Before that motion is put I should like to bring the attention of the Senate to the fact that the day before yester day I submitted an amendment which seems to have escaped the attention of most of the Senate, the reason being that it was then out of order and that it was not printed with the other amendments. I should like to have the amendment that I proposed laid before the Senate, in order that it, with the others, may be discussed. Mr. MORTON. It has been printed. Mr. EDMUNDS. It will come up in due time. Mr. RANDOLPH. But it was printed on a separate slip, and during the whole discussion it has not entered into consideration as one of the amendments that might possibly be adopted. Mr. MORTON. I overlooked it. I should like to hear it read. , The PRESIDENT pro tempore. The Secre tary will report the printed amendment of the Senator from New Jersey [ME. RANDOLPH]. The CHIEF CLEEK. The proposed amend ment is to insert as an additional section the following : SEC. . Should the two Houses of Congress, act ing separately, fail to agree as to which is the true and valid return of a State, then, and in that event only, the President of the Senate shall render a de cision of the question, and such rendition shall be in favor of that return of a State which shall have received a majority of all the votes cast in both Houses of Congress, considered as if both Houses had cast their votes in joint meeting assembled. Mr. MORTON. I will ask to have the amendment which I suggested printed also. The PRESIDENT pro tempore. The sug gested amendment will be read. . The Chief Clerk read as follows : That the judges of the Supreme Court of the United States shall be assembled in the chamber of the Supreme Court at the same time that the two Houses of Congress are counting the electoral votes for President and Vice-President, and in case the two Houses shall fail to agree as to which is the true and valid return as provided for in this section, COUNTING THE FLECTORAL VOTES. 549 the returns shall be immediately submitted to the said judges, who shall summarily decide which is the true and valid return, which return shall be counted. The PRESIDENT pro tempore. This amend ment will also be printed. Mr. EDMUNDS. I renew my motion for an executive session. The motion was agreed to ; and the Senate proceeded to the consideration of executive business. After eight minutes spent in execu tive session the doors were reopened, and (at three o clock and fifty minutes P. M.) the Sen ate adjourned. IN SEXATE, Monday, March 20, 1876. (" Congressional Record," pp. 1802-1810.) The Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 1) to provide for and regulate the counting of votes for President and Vice-President and the decision of questions arising thereon. Mr. RANDOLPH. Mr. President, under the rules of the Senate the amendment I propose to the pending bill will not be strictly in order until a vote has been taken upon the question before us. What that vote shall be may de pend up the existence of some better plan than any now under consideration, and I therefore beg to speak to the subject for a few moments. The committee s bill has in view the passage of a law under which the electoral votes of States shall be counted. Debate has elicited these facts : That as to this important subject there is a vital omission in the organic law ; that for many years there has been in force as a remedy for the defect a joint rule of Congress. That rule, now abro gated, is admitted on all sides to have been in iquitous in conception, dangerous in existence, and constitutionally without warrant. With its paternity denied by all, and its abrogation delayed by none, it seems to have been a polit ical bastard, whose usefulness was contingent upon a partisan emergency, and whose life closed with the first dawn of purer public sen timent. The debate also discloses this remaining fact : That, agreed as we are as to the necessity of some new and equitable law which shall cover all contingencies likely to arise in the selection of a President and Vice-President, we are at great variance as to a remedial mode, compre hensive in its character, and within our power to adopt. The Committee on Privileges and Elections present their remedy in the pending bill ; to it several amendments are offered, among them one of my own. Before presenting reasons in favor of this amendment I desire to state my objections to the committee s proposition, as well as to some of the amendments thereto. The original bill fails in its purpose, confess edly so, in contingencies likely to arise, that have arisen heretofore. It is imperfect, be cause it leaves the count of the electoral vote of a State entirely dependent upon the concur rent vote of both Houses of Congress. Should a State be so unfortunate as to have two sets of electors returned, and fail to convince both Houses of Congress as to which the true ones are, then its electoral vote is thrown out, its people wholly disfranchised. A large majority of the House of Represent atives, for instance, might declare in favor of one set of returns ; in the Senate all but one vote necessary to a majority might concur therein ; yet this lacking vote, representing at best but half a State, and in fact but an in dividual opinion, would suffice to reject the electoral vote of a State. Clearly it was not within the purpose of the fathers to give any such extraordinary power to an individual over the people of a State, and that in deciding a question not judicial but po litical in its character. There has been a general expression that the functions of members of both Houses of Congress are largely, if not altogether, minis terial as to the count of the electoral vote. The Constitution could scarcely have contem plated the almost instant transformation of a mere ministerial agent to that of a supreme judicial officer from whose fiat no appeal could be taken. The original bill fails in comprehensiveness. Its fault is that of omission. The second section reads thus : SEC. 2. That if more than one return shall be re ceived by the President of the Senate from a State, purporting to be the certificates of electoral votes given at the last preceding election for President and Vice-President in such State, all such returns shall be opened by him in the presence of the two Houses when assembled to count the votes ; and that return from such State shall be counted which the two Houses, acting separately, shall decide to bo the true and valid return. Simply stated, the bill provides for the count of each undisputed electoral vote. In case of dispute as to the true returns of any State two hours only are allowed for reconciling the con flicting views of the Senate and House. Even this brief time is consumed in separate session; and, failing to agree, the electoral vote of the State is wholly cast out. The disfranchisement of a people may thus hinge upon two quite possible contingencies : First, the easily procured and presented bogus returns so called from a State ; next, the vir tue of one or the other of the great political parties, tested under the greatest temptation. Practically the committee s bill gives to Con gress a veto power upon the acts of States. The danger of adopting the second section of the pending bill can be briefly illustrated by taking the case of Louisiana. Should that State return two sets of electors and the vote of one or the other set be sufficient to determine the political ascendency of one or the other of the parties, in the administra- 550 PROPOSED LEGISLATION A3 TO THE MODE OF tion of Federal affairs, is it probable the Son- ate and House would agree as to which were the true returns ? No. Then the vote of Lou isiana would be rejected. This might leave the remaining three hun dred and sixt j-two votes standing as follows : For the democratic electors 181 For the republican electors 180 Total. 361 This would insure a democratic President and Vice-President. Yet to the people of the country it might be made palpable that the re jection of Louisiana by a democratic House was a partisan action and to defeat, as it only could defeat, the election of a republican Pres ident, as the count of Louisiana s vote would do. I choose this illustration, that is hypo- thetically against my own party, to strengthen its force with my republican friends. Aside from this narrow and partisan result there is an objection broader and deeper. It consists in the crime of deliberately disfran chising the people of a State in the enormity of excluding one of our own not because her rights are not equal, but because we have not patriotism, patience, and virtue enough to de fend them.. Yet this defense is one of, and perhaps the greatest of, our mutual obligations as States to each other. It is the keystone guarantee of the Federal compact. No, Mr. President, Congress has no right never had, and never will have, if justice is to prevail to disfranchise the people of any State. The admission of such power is fraught with dan ger to liberty itself. Peculiarly as to this mat ter the States stand as peers, nor can we, their servants in Congress, infringe the rights of the weakest of them. Sir, it has been intimated at least that the rejection of contested electoral votes would be no fault of the Congress nor of the people of the uncontested States. This is not true. There is just as much power in Congress under the Constitution to assure the full vote of every State as to assure that of one. If we can provide by law for doing anything (be yond the plain, though admitted imperfect, provisions of the Constitution), we can pro vide for all contingencies foreseen as possible. Our duty, sir, is to leave no chance for injus tice, no invitation to fraud. The amendment of the Senator from Ten nessee [Mr. COOPEE] proceeds upon the theory of the constitutional provision regulating the selection of a President and Vice-President when no choice has been made by the electors. The theory seems to me to fail when applied to an equitable adjustment of the difficulty now under consideration. The electors referred to in the Constitution were to be persons chosen by the State Legis latures not by the people. They were to be an intermediate body between the States not the people and the executive officers selected. Their selection of proper officials was not ex pected to be controlled by party conventions, as has turned out to be the fact. It was an ticipated they might differ in judgment to such degree as to leave no one person with a major ity vote. So plain is this anticipation that the Consti tution provides that only three of all the per sons voted for by State electors should be sub sequently considered. The electoral vote is a secret one. The power, once exercised, is ended. Thus the necessity for another tribunal, another elec toral college substantially, in a contingency pos sible. That final tribunal, as we all know, is the House of Representatives ; but only in the emergency named. The whole of this residuary power of the House of Representatives proceeds upon the theory of a want of sufficient agreement be tween the agents or electors of all the States ; not between people of the same State. The principle that lodged the first-named power in the House of Representatives was that of pro tection to the smaller States. No such prin ciple applies in the adjustment of differences arising within a State. The constitutional provision referred to is a remedy for what might otherwise be a fatal defect. It points to the legislative power, or a portion of it, as the proper power to decide who the Executive shall be in grave emergen cies. In this view it is just now very sugges tive. But it seems to me no more. The amendment proposed by the Senator from Tennessee, to my mind, renders possible the selection of an Executive against whom the popular vote has been largely cast. It is no fair reply that this possibility already ex ists in another emergency. There should be no additional crevice through which the will of the majority of the people can be defeated. The amendment proposed by the Senator from Virginia [Mr. JOHNSTON] proceeds upon the power of the two Houses to come together in joint meeting, and when together to act as a unit in legislation. This power, in Con gress, is not generally admitted. Its exercise, if constitutional, is hazardous, and the line that most old-fashioned democrats deem as indis pensable to true constitutional government is badly weakened by his plan, if not, for a period, absolutely lost sight of. I think the Senator will, upon reflection, agree with me that the actual amalgamation of the votes of the two Houses by meeting in joint convention is open to objection. The amendment proposed by my colleague in substance provides for a court composed of the Chief Justice, the President of the Senate, and the Speaker of the House of Representa tives. Though he does not say so in words, his amendment would seem to imply a lack of power in Congress to do that which it gives authority to its agent to do ; or, if I am wrong in this construction, then it doubts the fitness COUNTING THE ELECTORAL VOTES. 551 of Congress to decide a question "partly ju dicial, partly political." Yet, Mr. President, it is just such questions this body, at least, is often called upon to decid*. But there is another objection to the amend ment of my colleague that I deem fatal. This relates to the persons constituting the final tribunal named by him. The Chief Justice or senior justice holds his appointment from the President ; not infrequently, as reflections of Presidents occur, from the person to whom he owes his original elevation and upon whose continuance in the presidential office, as a mat ter of fact, he is called upon to decide. How ever just and honest his vote, this high judicial officer would stand in imminent danger of be ing questioned as to motive, and thus of losing his indispensable judicial influence. No part of the Supreme Court can be brought to the decision of a question that plain people would ever consider purely political without lower ing public respect for that great and final tribunal. Mr. President, I have proposed to add a new section to the bill now being considered, which I will thank the Clerk, if he has the amendment, to read. The PRESIDING OFFICER. The amend ment submitted by the Senator from New Jersey will be read. The Chief Clerk read as follows : , SEC. . Should the two Houses of Congress, act ing separately, fail to agree as to which is the true and valid return of a State, then, and in that event only, the President of the Senate shall render a deci sion of the question, and such rendition shall be in favor of that return of a State which shall have re ceived a majority of all the votes cast in both Houses of Congress, considered as if both Houses had cast their votes in joint meeting assembled. Mr. RANDOLPH. Now, Mr. President, I hope it will be plainly seen that the adoption of this or a kindred section leaves no pretext for omitting the count of every electoral vote of all the States. The Houses of Congress, acting separately, failing to agree as to which the true returns of a State are, join in effect the aggregate vote of both, and those returns which shall have re ceived a majority of all the votes of the mem bers of both Houses are declared the true re turns. The duty of making this declaration is put upon the President of the Senate. The decision is final ; the case is ended. This plan has some affinity with parts of both of those suggested in the amendments made by the Senator from Tennessee and the Senator from Virginia. Through the votes of Senators the States, as such, are directly had. By the votes of members the people speak through their more immediate Representatives. There is no exclusion of either voice. The larger States make their power felt through their greater number of Representatives ; the smaller States assert their equal voice in the votes of their Senators. It may be said that the voice of States is li able to be lost under my amendment. This may sometimes occur. Yet at all times the plan suggested by me is an important gain of power to the smaller States, as against relegat ing the decision of the question to the House of Representatives alone. Another view of the matter will disclo se this fact. Under my plan the practical decision of the question may often rest with the States through the votes of Sen ators. Should the House of Representatives be about evenly divided, as is frequently the case, then the Senate, usually very unevenly divided politically, would have the controlling vote. In a word, the opportunities would be quite evenly divided as to whether the decision would be reached by the controlling vote of the Senate or the House. So, Mr. President, the amendment proposed seems to be as reasonably free from objection as any we are likely to adopt. Undoubtedly the wiser and safer plan would be to amend the Federal Constitution in such manner as to render the disfranchisement of the people of any State impossible. Meantime our duty is to provide the best system we can. That which I have proposed may be more objectionable under the light of full discussion than it now appears. It seeks no party advantage. It is in practice familiar to the people of all the States through the results of State legislative joint meetings. It has no small sanction from Congress itself since the passage of the law regulating the election of United States Sen ators. That law, it will be recollected, had for its object, almost its sole object at the time of its passage, the compulsory decision of a grave question, the selection of members of this body. The mode concluded upon as just and equita ble was that of compulsory joint meeting when separate branches of a State Legislature would not or could not agree. I propose to apply to ourselves the same remedy for honest differ ences or factious opposition that we have as sured the State governments was good for them. Mr. President, I ought to say in justice to myself that I have not been able to give that full consideration to my own amendment which I had hoped to be able to do, and it is only within the last three or four hours that I have been able to touch it at all. I submit the sug gestions 1 have made in the earnest hope that they *inay to some extent lead to a true and legitimate determination of this important, if not the most important, question now before Congress. Mr. WHYTE. Mr. President, I should not attempt so soon again to make any remarks in the Senate upon this subject were it not that it strikes me the Senate ought first to be brought to the conclusion whether this power, about which so much discussion is now being had, is not lodged with the President of the Senate, as I suggested when making the remarks that I did last Monday to the Senate. If that power is lodged now with the President of the Sen- 552 PROPOSED LEGISLATION AS TO THE MODE OF ate, then it is idle for us to waste time in stat ute legislation ; but it is the duty of Congress, in case we have discovered an omission, to pro vide for contested elections, or, in case the power is doubtful as regards the President of the Senate, to propose an amendment to the Constitution; and therefore the preliminary inquiry is whether or not a constitutional amendment is necessary. That having been concluded, then what shall be the character of that constitutional amendment ? There is a vast difference between the min isterial duty of the President of the Senate, as I maintained the other day, in counting the electoral returns, and granting a prima facie case to an officer, and the examination of the right of that officer to hold the place in the case of a contest whether as regards the elec toral vote of a specific State or in regard to the aggregate votes of all the States. There fore, whether in regard to the count there is an omission or not, it is clear that there is no provision of the Constitution for the case of a contested election of President or Vice-Pres- ident before the people. Hence it is important, if we mean to make any provision in regard to the count of the vote, that we should go a step further and provide for a contested elec tion of President and Vice-President of the United States. I say that it is essential for us now to amend the Constitution, for, after reading the able arguments of the Sena tors on this floor on last Thursday, I have seen nothing to change the view which I had the honor to present to the Senate on Monday of last week. On the contrary, a close exami nation of the question and mature reflection not only satisfy me in regard to that view of the case as presented by my own reading of the Constitution, but I do not think the pre cedent established when the Constitution was set in motion can be " whistled down the wind " as it was by my friend the Senator from Ohio [Mr. THUEMAN]. No, Mr. President, let us look at the point for a moment, and I shall not oc- cupv the Senate long ; let us look at the prop osition as I presented it to the Senate upon that occasion. The Senator from Ohio speaks of the prece dent in the count. I did not call the attention of the Senate to the precedent in that respect ; I called the attention of the Senate to what the convention that framed the Constitution, to what the men who were the makers of the Constitution asked the First Congress to do, and then followed it up by the precedent es tablished by the first Congress that assembled under the Constitution. I called the attention of the Senate to the fact that, in the resolu tion which sent the Constitution to the Con gress of the confederation and requested its delivery to the people of the States for ratifica tion, the express language was : That the Senators should appoint a President of the Senate for the sole purpose of receiving, opening, and counting the votes for President That was his duty, to receive, to open, and to count the votes. That resolution went with the Constitution to the Congress of the Con federation; that Congress sent the Constitu tion, with this resolution, with the report of the committee, to the people of the States to be ratified by the people of the States. The people of nine States ratified it. Congress met under it ; and, when Congress met, what was the action of Congress ? Its action was to elect a President of the Senate in the very words of this resolution, complying literally with it ; the Senate of the First Congress elected John Lang- don, one of the Senators from the State of New Hampshire, President of the Senate, " for the sole purpose of opening and counting the vote for President and Vice-President of the United States." "Who was John Langdon? John Langdon, a Senator from New Hampshire, was the very first man to sign the Constitu tion, the work of the convention, under the name of George "Washington. He was one of the framers of this very Constitution ; he was one of those who gave it his signature to send it to the world ; he was one of those who voted for this identical resolution ; and he now be comes the hand of the convention to open and to count these very votes under that very reso lution which he himself had voted for in the convention that framed the Constitution. That is not all, Mr. President. Immediately upon the election of Mr. Langdon the follow ing proceedings were had : Ordered, That Mr. Ellsworth inform the House of Representatives that a quorum of the Senate is formed ; that a President is elected for the sole pur pose of opening the certificates and counting the votes of the electors of the several States in the choice of a President and Vice-President of the United States. "Who was to bear this message to the House of Representatives, that the Senate was now in session to attend upon the opening and counting of the votes by the President of the Senate who had been elected for that sole pur pose ? It was Oliver Ellsworth, who had done as much in the framing of the Constitution as any other member of the convention. Oliver Ellsworth knew what he was going to the House of Representatives for. He knew that the Senate of the United States was merely performing the duty of attending while the President of the Senate opened and counted the votes for President and Vice-President of the United States. That is not all, sir. Who else was there? Of the ten members of the Senate at that time, six were members of the convention that framed the Constitution. Of the very Senate that passed this resolution, the very Senate that ordered Mr. Ellsworth to go to the House of Representatives and invite them to attend to witness the counting of the votes by the Presi dent of the Senate, six had been participants in framing this very Constitution. There, if I remember correctly, were Langdon, and Ells worth, and Robert Morris, and Bassett of COUNTING THE ELECTORAL VOTES. 553 1 Delaware, and Few of Georgia. There were , the very men who knew exactly what was the intention of the framers of the Constitution ! and knew exactly how to carry out that inten tion in setting the machinery of the Govern ment in motion. What did they do? Mr Ellsworth went to the House of Representa- tives. The Senator from Ohio when he spoke about this precedent being of no great force added also that this most admirable compila tion or history of the First Congress made by our worthy Chief Clerk was not an accurate account, and that an opposite presumption might be drawn by reading the Journal. . He is mistaken. I have examined another history of Congress by Mr. Blanchard of the First Congress, and it corresponds exactly ; and to day I have got the Journals of the Senate from 1789 to 1793, and they confirm, and not only confirm, but make stronger, the theory that the House of Representatives and the Senate were mere attendants upon the duty discharged by the President of the Senate : they had no part or lot in it except to furnish two gentle men on the part of the House and one on the part of the Senate to sit at the Clerk s table and make out a list as the President of the Senate declared the votes of the States. That is all. Let us see. Mr. Ellsworth proceeded to the House of Representatives and informed them that The Senate is now ready in the Senate Chamber to proceed, in the presence of the House, to discharge that duty. I read from the Journal. He informed them also that the Senate have ap pointed one of their members To do what ? to sit at the Clerk s table to make a list of the votes as they shall be declared- Declared by the President of the Senate- submitting it to the wisdom of the House to appoint one or more of their members for the like purpose. He reported that he had delivered the mes- Mr. Boudinot, from the House of Eepresentatives, communicated the following verbal message to the Senate : "Mr. President, I am directed by the House of Representatives to inform the Senate that the House is ready forthwith to meet the Senate, to attend the opening and counting of the votes of the electors ot the President and Vice-President of the United States." " To attend," to wait upon the President of the Senate as witnesses, to attend him as he performs his duty, but not to take any part in the performance of that duty, not to interfere with him in discharging his office of opening counting, and declaring the electoral votes of the various States ; and so it goes on. They appointed tellers. The President elected for the purpose of counting {he votes That is the record of the First Congress. The record leaves out " opening the votes ; " but The President elected for the purpose of counting the votes declared to the Senate that the Senate and House of Representatives had met, and that he John Langdon in their presence, had opened and counted the votes of the electors for President and Vice-President of the United States ; which were as follows. That is not all. John Langdon gave the certificate to George Washington of his elec tion, and in that certificate, as the Senate will see, announced that The underwritten, appointed President of the Senate for the sole purpose of receiving, opening, and counting the votes of the electors, did, in the presence of the said Senate and House of Repre sentatives, open all the certificates and count all the votes. He, John Langdon, did, and nobody else did; and he certified that Washington was elected, and sent messengers to the President and to the Vice-President. That is not all. What was done at the very next election of the President of the United States when George Washington was again elected ? I turn to page 480 of this volume of the Journal. The very question was brought to the attention of the two Houses at that time ; for there was a resolution passed by the House of Representatives to which the Senate gave its concurrence, which will be found on page 480 : The Senate proceeded to consider the resolution of the House of Representatives that a committee be appointed, to join such committee as may be ap pointed by the Senate, to ascertain and report a mode of examining STot of counting a mode of examining the votes for President and Vice-President, and of notifying the persons who shall be elected of their election, and for regulating the time, place, and manner of administering the oath of office to the President. Of examining the votes, not counting them. The counting was done by the President of the Senate, and nobody at that day supposed for a moment that Congress could dislodge him from the position in which the framers of the Con stitution had placed him. JSTow see, page 484, bhe report of that committee, composed of Mr. [zard and other gentlemen who had been mem bers of the constitutional convention. James Madison was one of that committee on the Dart of the House ; and I presume no man was nore familiar with the Constitution, then but a few years framed, in which he took such a part ; no man could have been more familiar with it, and no man could have known the intention and object of the framers of that instrument better than James Madison : Mr. King, from the joint committee appointed the 5th February, instant, reported, That the two Houses shall assemble in the Senate Chamber on Wednes day next, at twelve o clock; that one person be ap pointed a teller, on the part of the Senate, to make a list of the votes as they shall be declared. 554 PROPOSED LEGISLATION AS TO THE MODE OF By the President of the Senate, just as it had been done four years before, when lie opened them and read them, and the tellers made the count under his eye and under his hand, using them merely to do the manual labor of making the list, and certifying and handing it to him that he might announce the result. Mr. SAULSBURY. I desire to ask the Senator from Maryland if the object of that resolution of the House for examining the votes of the electors of the different States was not to ascertain whether they were electoral votes or not ? What was the object of examining on the part of the two Houses, unless it was with some vie\v of regulating and controlling the counting of the votes? Mr. WHYTE. Mr. President, it was for the simple purpose of being a check upon the Vice- president or President of the Senate, so that the very object of the Constitution should be complied with of having witnesses who saw the certificates before the count had been an nounced by the Vice-President. That was the object. What is the meaning of tellers? Only to keep a tally of the votes. What power has a teller in an election but to keep a tally of the votes? He is only to mark them down and see that they correspond with the enunciation by the Chair. That is all, Mr. President. To make a list of the votes as they shall be de clared, that the result shall be delivered to the Presi dent of the Senate, who shall announce the state of the vote and the persons elected to the two Houses assembled as aforesaid; which shall be deemed a declaration of the persons elected President and Vice-President, and, together with a list of the votes, be entered on the Journals of the two Houses. Therefore, in the beginning, the eye of Con gress was turned to this very question, and they recognized that the President of the Sen ate was the proper depositary of the votes, and that he was the proper person to discharge the duty of making the count and announcing it to the country in the presence of the two Houses. If any resolution of the House shows that, it was merely to attend upon the President of the Senate when he makes this count. I have shown, Mr. President, that this was a resolution first from the convention that framed the Constitution to the First Congress, and that the First Congress obeyed that order, and after that the Congress in session, when George Washington was elected the second time confirmed everything that had been done by the preceding Congress, and that was the uniform practice from that day down to 1865, for in 1857 Mr. Mason, presiding over the two Houses, did not count the vote of Wisconsin, as I shall show directly. Some Senators seem to think that this is an extraordinary power. Why should it be so deemed? In regard to the election of Presi dent you have to find some similitude in your mode of procedure from the past. You have to look at the operations of your States, for after all we all, or certainly those of us who think the way I think upon constitutional ques tions generally, maintain that the Federal Gov ernment is but an aggregation of the State governments, and therefore what will apply within a State government may very well apply to the National Government so far as its method of exercising power is concerned ; and does not every Senator on this floor know that the governors of nearly all the States, if not all of them, possess the same power in re gard to the returns of elections of State offi cers ? Certainly in my State, and I believe in most of the other States, the governor issues a commission upon the returns made through the clerk s offices of the various courts, or through the local boards of canvassers. He looks at those returns, and he issues the commission, and declares the party elected. Is not that so ? W T hat is his duty ? The other day my friend from Indiana seemed increduously to smile when he asked me whether I considered it a ministerial duty to decide between two re turns, and I said yes. I repeat it. There is not a canvasser of any State in this Union that does not have to do that very thing, and yet everybody knows his office is ministerial. Mr. MERPJMOK Quasi judicial ? Mr. WHYTE. No, sir ; not quasi judicial. On the contrary it is purely ministerial, and just as ministerial as that of the clerk of a court who is authorized to record a deed, and will not record the morning newspaper if you take it to him and ask him to do it. He is bound to record a deed where the law is complied with, and he looks to the deed to see if the law is com plied with and if it is a deed to be recorded. If it is not, he is not bound to record it. Who would for a moment say that that was the ex ercise of a quasi judicial duty ? Cooley on Lim itations lays it down so broad that no man can doubt it, that the power of a canvasser, though you may call it quasi judicial if you please, is not quasi judicial, but purely ministerial from the beginning to the end. Take, in passing, the case of a marriage license. A clerk of a court is authorized to issue a marriage license, but not to a minor. A gentleman presents him self at his desk and asks him for a marriage li cense. He looks at him and doubts whether he is of age. He has a right to refuse it if he thinks proper, and subject that man to the ne cessity of a mandamus to compel him to per form that duty. More than that, he has a right to swear the man, and ascertain whether he is a minor or not before he issues a license. It is a purely ministerial duty. It has been recog nized by everybody as a ministerial duty so far as the ordinary boards of canvassers are con cerned. Such a person is a mere canvassing officer. In my judgment he represents the State. The State votes for President. Each State, says the Constitution, shall, under the direction of the Legislature, appoint electors, and the President of the Senate is the canvass er for the States ; and, as such canvasser, per- COUNTING THE ELECTORAL VOTES. 555 forms merely the ministerial duty of deciding, prima facie, who is elected President or Vice- president of the United States. Now, no Sen ator need answer me by saying that that de cides the whole case, because there is no pro vision in the Constitution which looks to a contested presidential election. That may be an omission in the Constitution which ought to be supplied. Then you can take the contested election to the Supreme Court of the United States to determine who ought to be the lawful occupant of the White House ; but, until some such provision is made in the Constitution, the President of the Senate, as a ministerial officer, determines who is elected President and Vice- President of the United States. Kent says so : The President of the Senate, on the second Wednesday in February succeeding every meeting of the electors, in the presence of both Houses of Con gress, opens all the certificates, and the votes are then to be counted. The Constitution does not expressly declare by whom the votes are to be counted and the result declared. In the case of questionable votes, and a closely contested election, this power may be all-important ; and, I presume, in the absence of all legislative provision on the subject, that the Presi dent of the Senate counts the votes, and determines the result, and that the two Houses are present only us spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors. Sir, the presumption is conclusive, there be ing nothing else in the Constitution, the Con stitution not specifically saying by whom, the presumption is, from all the surrounding lan guage, that the two Houses are only there as spectators, and that the President of the Sen ate is the proper person to count and to de clare the vote ; and, if I am not much mistaken, bhe distinguished Senator from Indiana thought the same way when he made his speech on the 17th of January, 1873 : Clearly- Said he fne framers of tlie Constitution did not contemplate iliat the President of the Senate in opening and counting the^vote for President and Vice-President should exercise any discretionary or judicial powers n determining between the votes of two sets of elec- ;ors, or upon the sufficiency or validity of the record of the votes of the electors in any State ; but that he should perform a merely ministerial act, of which the two Houses were to be witnesses and to make record. But the exercise of these high powers may devolve upon him ex, necessitate rei, and whatever de cision he may make between the two sets of electors or upon the sufficiency and validity of the record of the votes whether on the evidence of the right of the electors to cast votes, or whether they have been cast in the manner prescribed by the Constitution als decision is final. So that the Senator from Indiana clearly ac cepted that as the true construction, that hav ing this ministerial power lodged with him out of the necessity of things he might be called upon on some occasion to declare which of two returns he would take, or whether the people had the right to vote or not, and the Senator stated then that he considered his decision to be final, and I agree with him. If it is to be changed, it is to be changed by a constitutional amendment, and in no other form. Let us see what else the Senator said on that same sub ject on that occasion : The Constitution provides that the President of the Senate shall be the depositary of the electoral votes of the States, and that he " shall, in the pres ence of the Senate and House of Kepresentatives, open all the certificates, and the votes shall then be counted." It has been generally conceded that this means that the two Houses shall be present in their separate characters, and not as a joint convention ; that they cannot act and vote as one body ; that the two bodies cannot deliberate and act as separate bodies in each other s presence; that they are sim ply brought together to witness the result of the opening and counting of the vote as reported by the President of the Senate. The fact that tellers have been generally appointed by the two Houses in no wise affects the question, for they are mere facilities to actually count and make record of such votes as the Vice-President hands to them for that purpose, Can there be any doubt that it was the view of the Senator then that it was conceded on all hands that that was the status of the case under the Constitution of the United States ? But, Mr. President, I may not perhaps be adding any strength to my argument with the Senate ; but certainly, to my judgment, the authority I am about to quote was a high au thority on constitutional questions; and there fore I ask permission to call the attention of the Senate to this question as presented by the late President of the United States and late Senator who we regret to miss from the chair in my rear. I refer to a veto which he sent to Congress on the 20th of July, 1868 a veto which I had the honor to vote to sustain in company with Senator Hendricks and other gentlemen on this floor. It is not material to read any other portion of the message or to discuss any other part of the question raised in his veto further than this particular point referring to the power of the President of the Senate. Said President Johnson, on the 20th of July, 1868 : The mode and manner of receiving and counting the electoral votes for President and Vice-President of the United States are in plain and simple terms prescribed by the Constitution. That instrument imperatively requires that the President of the Sen ate " shall, in the presence of the Senate and House of Kepresentatives, open all the certificates, and the votes shall then be counted." Congress has, there fore, no power under the Constitution to receive the electoral votes or reject them. The whole power is exhausted when, in the presence of the two Houses, the votes are counted and the result declared. In ;his respect the power and duty of the President of ;he Senate are, under the Constitution, purely min isterial. When, therefore, the joint resolution de clares that no electoral votes shall be received or counted from States that since the 4th of March, 1867, have not " adopted a constitution of State gov ernment under which a State government shall have ^een organized " a power is assumed which is no where delegated to Congress. And so all the better reasoning in the case of Wisconsin was that way. There is no argu ment worthy of the name of argument that lan be presented in reply to the statement of 556 PROPOSED LEGISLATION AS TO THE MODE OF the case as made by Mr. Stuart, of Michigan, at that time, which Mr. Collamer thought so strong and so important in its character that he refused to vote for, the resolution that had been proposed by Mr. Crittenden ; and I ask the attention of the Senate to Mr. Collamers remarks on that subject. "We all know that the certificate of the vote of Wisconsin showed that the electoral college had met a day after the day appointed by law for casting the elec toral vote, by reason of a snow-storm. We all know that Mr. Mason did not count Wisconsin, upon the ground that it would make no differ ence whether Wisconsin was counted or not ; the result was the same ; and, therefore, the vote was not counted. A debate arose, and Mr. Toombs, of Georgia, made a violent demon stration against the ruling of the President of the Senate. The announcement was made, and the Houses separated. The debate was resumed in each House, and, in the Senate, Mr. Crittenden, after a long debate, offered this resolution : Resolved ly the Senate and House of Representatives oftfie United States of America in Congress^ assembled, That the electoral vote of the State of Wisconsin in the late presidential election, being given on a day different from that prescribed by law, was therefore null, and ought not to have been admitted or included in the count of electoral votes given in the late pres idential election. The Senate laid that resolution on the table, after Mr. Collamer s speech, without even a division. Now, let us see what Mr. Collamer said: I very much doubt whether the framers of the Constitution ever intended to leave the subject of the presidential election to the -House of Repre sentatives or the Senate, or either or both of them. There was a great deal of debate in the convention that framed the Constitution as to the manner of choosing a President of the United States. Various projects were presented. Among others, it was very gravely debated whether he had not better be elected by Congress. For some considerable time that prop osition was under consideration. Various plans were put forward, vai ious suggestions made as to the manner of choosing a President, and much difficulty was found in relation to it before a plan was arrived at, and that so soon resulted in a practical failure as to lead to the change in the Constitution to what it now is in this respect. The Constitution vested in each House the power to decide upon the election of its members ; it provided carefully that it would not trust to the two Houses to elect a President. That is what we are trying to do here to day. It seems to me that if we consult .history at all, and consider the probability of things even as they fall within our own observation and experience, we shall find that there is very little practical difference between leaving the presidential election to Con gress and leaving Congress to decide that election. He could not put it better than that by the use of human language. The convention would not leave it to Congress to elect, and now Con gress proposes to elect for itself. Mr. THURMAN. Shall I interrupt the Sen ator if I make a suggestion ? Mr. WHYTE. Not at all. Mr. THUKMAN. Does the Senator think that the question before the Senate is whether we can go back of a return admitted to be genuine and regular upon its face? If he sup poses that to be the question, I must say that I do not suppose it to be the question ; nor do I see how it is involved. I certainly do not admit that you can go back and go into a con test of the election at all. I submit that the remarks that have been made, which he has read, both by the late Senator Johnson and Mr. Collamer and Mr. Crittenden, do not refer to a case like the present at all. The question now is, what must we do when the question is which of two returns is the genuine return? When you have decided which of them is the genuine return, I admit you cannot go back of that. Mr. WHYTE. Yes, sir, that is just what I am on. I say that Congress has no right to assume to itself to decide which is the right return, because the Constitution has put it in the hands of the President of the Senate, and until you amend the Constitution you have no right to take it away from him. That is my argument. The Senator was not in when I first commenced, or he would have known that that is precisely what I say. It is tinkering with the Constitution if you do not go a step further. You want to decide which of the two returns is the right one, and not to go behind the return and take the evidence that is to give you the power to decide judicially. What is it that is to be done ? One party in the House may say one is the right return ; another party in the Senate may say another is the right re turn ; and the State is disfranchised, which our fathers never meant. The President of tlfe Senate is the custodian of these votes ; he is the canvasser of these votes; and he is just where the governor of a ; State is when he is bound to issue a commis sion upon the returns that are sent to him. He is bound to look at the returns and see that they comply with the law, and then he is to issue a commission to the man who upon the face of the return has a majority of the votes cast. That is the state of the case. I say that is a mere ministerial duty, and I should like to be pointed to some authority to the contrary. Every governor has to discharge that duty, not as governor, not in the discharge of those ex ecutive functions which are political exclu sively in their character, and which are not subject to the revision of the courts. Take the case of a governor ; and I liken the President of the Senate to him, for I see no difference. Suppose the President of the Senate wantonly rejects the legitimate return from a State ; is there no power to compel him to count it ? Is there a power to compel the governor of a State to count a return properly certified? The Senator from Wisconsin [Mr. HOWE] truly said the other day there can be but one right return and one wrong one, and our fathers COUNTING THE ELECTORAL VOTES. 557 never expected us to legislate for a case where there should be two executives of a State at one time. Our fathers never expected us to be in a condition that we should doubt what was the executive authority which certified to the electors in any State of this Union. The Constitution prescribes the duty to the Pres ident of the Senate. The law of 1792 shows him how the certificates are to be certified to him, shows him how he is to know who are the persons in the States claiming to be elec tors ; and on that he has got to answer to the country and to his God that he discharges his duty faithfully. If he discharges it wickedly and puts aside a regular return which he ought to count, is he not in the same position as the Governor of Kentucky, who is bound to issue a commission to the attorney-general upon the returns of the canvassers or the county clerks that he has a majority of the votes cast? When he adds them up and finds he has got a majority of the votes, he is bound to issue the commission. If he rejects the right return and counts him out, the courts of Kentucky by mandamus will compel him to issue the com mission to the lawfully elected officer. That is the law. JSTobody knows better than the Senator from Ohio that governors perform ministerial duties as well as discharge their general duties as governors of States. He him self has applied for a mandamus to compel the Governor of Ohio to execute a law of his own State which he claimed was merely a minis terial duty upon his part ; and in my State it has been decided over and over again, not only by democratic courts but by republican courts, without any reference to politics, upon the plain, square, judicial inquiry, and I ask the attention of the Senate briefly to it. In the case of Magruder vs. Swann, governor, re ported in 1866, in 25 Maryland Reports, there is a review of all the cases : The cases cited were used to sustain the position that the executive, in his political or discretionary powers, was beyond all judicial interference, not to sanction the application of the principle to the facts of each case. Here is the clause of the constitution : All elections of judges and other officers, provided for by this constitution (States attorneys excepted), shall be certified and the returns made by the clerks of the respective counties to the governor, who shall issue commissions to the different persons for the offices to which they shall have been respectively elected, and in all such elections the person having the greatest number of votes shall be declared to ba elected. The court held, in regard to the duties de volved upon the governor by these sections of article 4, that These are auxiliary ministerial duties imposed on the governor preliminary to the qualification of the judges and other officers, in the discharge of which he has been invested with no discretion but is imperatively required by the organic law to per form in order to keep the departments of govern ment in motion. The clerks certificates determine " who has the "^nber of votes," or whether " the oppos ing candidates have an equal number of votes." In either event the injunction of the constitution is equally peremptory. To go a step further, to show that this duty is merely ministerial, I refer to the case of The People vs. Pease, in the New York Court of Appeals, also decided, if I can judge from the names, by judges a majority of whom were in opposition to the democratic party. Speaking of canvassers, the court say : These are all the safeguards the Legislature have thought proper to provi de to insure the prevention of fraudulent or illegal voting, and this leaves but little discretion to the inspectors. Their duties, ex cept in the_ single instance averted to, are simply ministerial in the reception of the votes, and entire ly so in counting and making returns thereof. And then, when they come to speak further on of the board of county canvassers, they say: It is made the duty of the board of county canvass ers, upon the statement of votes given, to deter mine what person by the greatest number of votes has been duly elected to any office mentioned in said statement. . . And the certificate of the board of canvassers authorized to canvass the votes given for any elective office is made evidence of the election of the person therein declared to have been elected. I read now from the syllabus of the case : The inspectors of elections are not judicial, but administrative officers. Their decision is final only as to receiving or rejecting votes ; but the question whether a voter was or was not entitled to vote is open to examination in subsequent proceedings upon any competent evidence. (13 New York Court of Appeals Keports, page 45.) There is a clause in this decision in regard to county canvassers which maintains the same ground precisely. Mr. MORTON. Would it interrupt my friend if I called his attention to a point in the line of his argument ? Mr. WHYTE. Not at all. Mr. MORTON". I venture to suggest to the Senator from Indiana that, as I understand ministerial duty and as it is defined in books of law, it is one which is to be performed under the direction of another. Bouvier describes it thus : That which is done under the authority of a superior; opposed to judicial; as, the sheriff is a ministerial officer, bound to obey the judicial com mands of the court. Where a duty is prescribed by law and the officer is simply to follow the law and do the particular thing the law requires, it is done by the direction of the Legislature and it is purely ministerial. Take the case which was pre sented from Louisiana in 1873. Suppose, when the President of the Senate comes to count the vote in the presence of the two Houses, he finds upon his desk two sets of re turns from the State of Louisiana each of which bears what purports to be the great seal of the State, each signed by a person claiming to be governor. The question as to which of ;hese returns is the valid and legal return from Louisiana is a question that is not ministerial, 558 PROPOSED LEGISLATION AS TO THE MODE OF in my judgment, at all. It is the highest form of political duty, or, as was suggested by the Senator from North Carolina [Mr. MEKEIMON], in one sense you may call it a judicial duty. If there is but one set of returns, and they are in form, and he opens them and counts them, that is ministerial ; but where he is called upon to decide some question that is not determined upon the face of the paper itself, that is a political duty of the highest character, and is as far from a ministerial duty as any political duty can be. Let me make a further suggestion. I will take the case of but one return. Suppose, when the President of the Senate opens that return, he finds that there is no statement on the face of the return that the electors voted by ballot, as the Constitution requires. Is it necessary that the return should show the fact that the Constitution has been complied with ? The decision of that question is political in its highest character. One lawyer may say that it is not necessary for the return to show that the electors voted by ballot ; that is presumed to be their duty. Others may say that the re turn must show that the Constitution was com plied with. Who is to decide that question? In one sense it is a judicial question of the highest character. The decision of that ques tion is not ministerial at all. Again, the elec tors are required to vote for one person for President and another person for Vice-Presi- dent, who shall not both be citizens of the same State. Suppose the returns showed, as in the case of Georgia at the very last count, that the persons receiving votes for President and Vice-President both lived in the same State. That was the fact in regard to three votes from Georgia. Shall the result of that be to cast the vote out? What shall be done with it ? Shall it be rejected ? The decision of that question is not ministerial, but is as far from it as it can be. Mr. THURMAN. And in the case of Geor gia the vote was for Greeley, who was dead. Mr. MORTON. The question was whether the vote for Greeley should be counted. In that case it was a notorious fact that he was dead; but it was a very important question, because it went to determine what constituted a majority of all the electors appointed. It might become a very important question in a close contest. The decision of the question as to whether the vote of Georgia should be counted or not was very far from being minis terial. One word further. Take the case of com mon canvassers in an election, return created under the laws of a State. So far as their duty consists in simply counting the votes sent up, it is ministerial ; but if there is a discretion ary power reposed with that board of canvass ers to determine certain questions that may arise, that discretionary duty is not ministerial, but it is judicial in its character. Almost every board of canvassers in every one of the States has to some extent judicial power con ferred upon it. I want to call the attention of my friend to a point which I think is stated in the passage he read from Kent, that in the ab sence of legislation the President of the Senate will count the vote. I quote from the report of the committee from which my friend read : Clearly the framers of the Constitution did not contemplate that the President of the Senate, in opening and counting the vote for President and yice-Presidentj should exercise any discretionary or judicial power in determining between the votes of two sets of electors or upon the sufficiency or valid ity of the record of the votes of the electors in any State; but that he should perform a merely minis terial act, of which the two Houses were to be wit nesses and to make record. But the exercise of these high powers may devolve upon him ex neces sitate rei, and whatever decision he may make be tween the two sets of electors or upon the suffi ciency and validity of the record of the votes whether on the evidence of the right of the electors to cast votes or whether they have been cast in the manner prescribed by the Constitution his decision is final. And unquestionably so. I presume the fact is that the framers of the Constitution and those who counted the votes during the first few elections did not contemplate- the fact of two sets of electors. No such contingency ever happened until the case of New Jersey, within the last twenty-five years. They con templated simply a ministerial duty. They did not expect the President of the Senate to per form anything but a ministerial duty ; but, as stated by Kent and as stated in this report, if the two Houses of Congress decline to take any jurisdiction of the questions that may arise, then that duty would be devolved. upon him ex necessitate rei. Somebody must decide it, and if he finds two sets of returns upon his table, if the two Houses of Congress refuse to decide the question, then the President of the Senate must decide it. He then determines whether the Kellogg government or whether the Mc- Enery government is the lawful government of Louisiana, whether McEnery should certify to the electors or Kellogg could do it ; and in doing that it seems to me he would be exercis ing the very highest form of political power, entirely aside from a ministerial duty. Mr. WHYTE. Now let me ask my friend the Senator from Indiana a question. The Clerk of the last House of Representatives makes up a list of the succeeding House of Representatives. Suppose two sets of gentle men claiming to represent the State of Lou isiana in the House of Representatives, one with a certificate signed by Kellogg, the other with a certificate signed by McEnery, ask to be put upon the roll, so that when the roll is called they will be there to answer to their names ; and the Clerk of the House puts one set on. Does the Senator from Indiana call that a judicial duty ? Mr. MORTON. As I understand the law organizing the House of Representatives it authorizes the Clerk of the old House to make COUNTING THE ELECTORAL VOTES. 559 up the roll of members of the new one for the purpose of organization; and should there be jtwo sets of members certified to by different Ipersons each claiming to be the governor of jthe State of Louisiana, inasmuch as the law [authorizes the Clerk to make up the roll, it ifroni necessity gives to him the choice for the I time being, and that far his duty is not min isterial. It is a higher duty, but it is one de volved upon him by the law. Mr. WHYTE. I will ask the Senator an- Jother question, because I differ with him upon that point. Suppose the Governor of Indiana is authorized to issue a commission to the au- ,ditor-general of that State, if there is one, who :shall be elected by a majority of the people of jthe State, and the law requires that the re- iturns shall be made by the clerks of the courts. Suppose the clerk of a court sends two returns, ior there are returns from two persons claim ing to be clerk of a court, and the governor of the State decides in favor of one of them, is that the performance of a judicial duty? Is the determining whether a law has been com plied with the performance of a judicial duty ? [ Mr. MORTON". If I understand the ques tion put by my friend, it is where the governor K)f a State is called upon to commission a State bfficer, the auditor for example, and the clerks |of the counties have sent up two sets of re turns. The question supposes that the gov ernor in that case may choose between these returns and determine which is the proper re turn, and issue a commission accordingly. If the law of the State authorizes the governor in such a case to decide which of the two re turns is the correct one, that power of decision is not ministerial ; it is judicial clearly. Mr. WHYTE. But where it is just as the constitution leaves it, and there is no provision of law? Mr. MORTON". Then the law authorizes him to make that decision. If there are two sets of returns both certified by competent au thority, the governor has no discretionary power, he cannot issue a commission to any body, because there is no evidence before him authorizing him to do it ; but if the law of the State authorizes him in that contingency to decide which of the two is the correct return, the exercise of that discretionary power is not ministerial but it is judicial. In some States the governors have such power conferred upon them ; in other States they have not. In the State of Indiana the governor has no such power, and if he should make such a decision and issue a commission his act would be a nul lity and in violation of law. But if the law gave him the power to determine which of the two returns of the county clerks is the correct and true return, then the exercise of that dis cretionary power would be judicial. Mr. WHYTE. The question has been de cided over and over again that where the gov ernor is authorized and required to issue a commission upon certain returns made to him, he has to issue a commission and the contest comes afterward. He is bound to deliver the commission as the prima facie title. It is his duty to do it or the wheels of government would stop. There would be a hiatus in the office if there was no provision of law that the prior incumbent held until his successor was appointed and qualified. Mr. MORTON. Let me say to my friend that in the case he supposes himself, there is no prima facie title. He supposes a case where the lawful clerk of the county has made two returns, each of which is certified by the proper authority. In that case if the returns are contradictory, one is as prima facie correct as the other, and so there is no prima facie case about it. But if the governor is author ized to decide which is the correct return, I submit to my friend that that is not minis terial. Mr. WHYTE. I am sorry to differ with so distinguished a lawyer. The courts, as far as I have examined the question, are unanimous upon that subject, that it is a ministerial duty, and governors have been compelled by a man damus to perform that duty. Mr. MAXEY. Will the Senator from Mary land inform me whether in any case where an act of judgment is devolved upon an officer his view that the power is ministerial would ap ply? Mr. WHYTE. No, sir. Where he has dis cretionary power a mandamus will not lie; but where he is in the discharge of a mere ministerial duty a mandamus will lie. Let us see why a mandamus will not lie against the President of the Senate. Mr. MAXEY. If the Senator will permit me, the point I would like to make is that where two certificates come up it is an act of judgment to determine which one of those certificates is the right one; and if it be an act of judgment it is not a mere ministerial act. The opening of a certificate is a mere ministerial act unquestionably. The counting of the vote may be a mere ministerial act, but it may also involve an act of judgment. Where there are two certificates it necessarily does involve an act of judgment. Mr. WHYTE. If my friend will read Cooley on the subject he will find the whole thing ex plained, and all the authorities cited. He will see that it is an act judicial in its character, but that it is simply attached to the ministerial duty that the party may discharge it intelli gently. Cooley cites the very case, according to my recollection (for I cannot lay my hand upon the book), of the clerk of a court who has to see that he complies with the law, who has to examine the paper that he is authorized to record to see that it complies with the law before he records it. The President of the Senate is in no other position than the governor of a State who is authorized to issue a commis sion upon the returns made to him. If there are two returns, there must be a lawful return 560 PROPOSED LEGISLATION AS TO THE MODE OF and an unlawful one. If there are two gov ernors, there must be a lawful governor and an unlawful governor. Therefore there must be a right and a wrong. Neither the learned Senator from Indiana, nor the Senator from Ohio, need point out to me defects in the Constitution. I am not saying that there are no defects in the Constitution. I am not say ing that it is the perfection of wisdom, because we know ourselves that at the election of Jef ferson in 1801 the defect of this very clause in the Constitution about the electors was dis covered, and that it was amended; but our fathers had not got quite as far advanced in political ethics as we have. They did not an ticipate two governors in one State. They thought the States were hardly big enough for more than one governor each, and therefore they looked to a return certified by one gov ernor. I admit that you have to make some amendment to the Constitution, and all that I have argued against here is that by legislation you are seeking to take away from the Presi dent of the Senate his constitutional power. All that I have been attempting to say is to show that the power is with him, and that you are bound to amend the Constitution if you mean to take it away from him ; and if you mean to give any person or any umpire au thority to decide upon the returns, you had better go a step further and go behind the re turns themselves. I have not much faith in election returns after the exhibit of the manner in which they were concocted in Louisiana. I do not speak of any party ; I have not much faith in the men who put them up ; and there fore if you are going to determine which of two returns you will take, go behind the re turns and propose a constitutional amendment that will lodge the power to decide upon the prima facie case first, and then submit it to some court or some judicial tribunal to deter mine upon testimony who has been lawfully elected the President of the United States. That is the point I make. I am not quite sure that that power is not now lodged in the courts of the United States. I am not sure of the entire truth of the remark which fell from the Senator from Kentucky [Mr. STEVENSON] the other day about the power of issuing a man damus against the President of the Senate not being lodged either with the Supreme Court of the United States, exercising original juris diction, or with one of the courts of this Dis trict, and then the Supreme Court having ap pellate jurisdiction in the case. "Why ? "Who votes for electors ? Each State votes for elec tors. Each State can vote by its Legislature. It can vote by general ticket, and let a major ity of the people of each State choose the elec tors. It can vote by districts. It can vote in any way the Legislature of the State shall de termine. Therefore the State votes. The State is interested in having its vote counted. Sup pose when the lawful State government sends its electoral vote here the President of the Sen ate refuses to count it. Why cannot that State, through its properly authorized oflicer, apply to the Supreme Court of the United States i or a mandamus to compel the President of the Senate to count its vote ? I would like to see some authorities to the contrary. If the Su preme Court cannot exercise original jurisdic tion where a State is a party, because there the State is a party in claiming its vote, then the people can through the circuit court of the district, and by appeal to the Supreme Court, test the question as to which is the lawful re turn upon which the President of the Senate is bound to base his decision. I do not differ with gentlemen here that there is a defect in the Constitution in not providing for a case of contested election of President and Vice-President of the United States. I will vote to submit to the people of the States a constitutional amendment pro viding who shall count, who shall declare, in the first instance, the prima facie title to the office of President and Yice-President, and also designating a tribunal before which the contested election may be heard and decided in behalf of the person lawfully entitled to the office and lawfully chosen by a majority of the people in the several States; but I will vote for no bill that undertakes to assert upon the part of Congress the power of counting the electoral vote and deprive the President of the Senate of it, as I understand him to be en titled to it under the Constitution as it now is. Mr. DA WES. Mr. President, after this pro tracted debate upon a subject-matter the need of legislation in respect to which all of us ad mit, I should not think of engaging the atten tion of the Senate for a moment did either the discussion itself or the bill before the Senate meet certain difficulties which have for a long time existed in my mind in reference to this question. It was my lot for many years to be upon a committee in the other branch corre sponding to the one which has reported this bill here, before which this subject was fre quently brought, growing out of the appre hensions in the public mind arising from the danger which at this point the Government of the United States seemed exposed to in 1857, in 1861, and again in 1869. Although those dangers were of a different kind on each of those successive occasions, yet in attempting to find some remedy, some guard against the evil and the danger which those discussions gave rise to, I have listened patiently in this debate to see if the difficulties which I then encountered had found a solution either in this debate or in the bill before the Senate. I hope I may be permitted to express my disappoint ment that after so long a time and such a dis cussion, under circumstances so favorable, in which all parties seem to have addressed them selves to the question without the bias or pas sion of party ; when no measure can become a law unless it receives the sanction of both par ties, no measure is agitated that can have any COUNTING THE ELECTORAL VOTES. 561 possible bearing upon any future contingency so far as we can foresee it now. This bill in so far as it follows the outlines of the Constitution is without difficulty ; but the moment it attempts to approach and grap ple with the questions that may arise, with the actual difficulties, with those dangers to which I have alluded, if they ever shall exist, it seems to me it utterly falls. My disappointment is that there is going upon the statute-book a de lusion, an appearance of provision against danger under which, when that danger shall arise, it will be found to be utterly unprovided for ; and so we shall be carried along in fan cied security until we are upon the danger itself, and when provision for it will be in the nature of things utterly impossible. Those difficulties I wish briefly to state to see whether there is any relief from them either in this bill or in any possibility of legis lation, and whether we had not better have addressed ourselves to some amendment of the Constitution rather than to have attempted to tide over a danger with what is, in my mind, utterly insufficient and will prove rather a snare than a protection. Take the electoral college from the moment its action comes under the provisions of the United States Gov ernment, either the Constitution or any legis lation ; follow step by step all the proceedings ; | and the moment you undertake to provide for the question which this bill and this earnest I effort of this committee and this discussion is | seeking to provide for, you run at once counter to the very provisions of the Constitution itself, and why? Because the danger is something else than that which we have discussed. It does not arise upon the papers. It does not arise upon any question that can be decided, whether by the President of the Senate or the two Houses of Congress, or any umpire that it is possible to provide for, upon the papers themselves. A discussion or deliberation of two hours duration is provided in this bill. The Constitution provided that the States should appoint the electors. It was not any body else but the States, the States as States, and in just such manner as each individual State should deem best. One State might appoint them by a popular vote; another by its Legislature; a third might clothe its gov ernor with power to appoint them ; but how ever appointed, it was the act of the State. It was the State and not the nation, that was to appoint them ; and the State was to take good care, in the opinion of the framers of the Con stitution, that its act, whatever it was, was to be verified by the State and not by the nation. The State was to verify its act and certify it in such way as each State might determine so to certify its act. Each State shall appoint Is the language of the Constitution in such manner as the Legislature thereof may di rect, a number of electors equal to the whole number 36 of Senators and Eepresentativcs to which the State may be entitled in the Congress. In point of fact one State did provide that it should be by popular vote. To-day in my State and I doubt not that is an illustration of all the States there are three methods: First, the popular method, and, if that fails, the legislative method ; and, when the college meets on the first Wednesday in December, if there is a failure of a sufficient number to meet, the college itself fills up the number. But, however they were to be chosen, it was the act of the State, and it was the business of the State to verify and certify its own act and furnish each elector with the evidence of his appointment. Then the United States takes up the matter, and from that point provides by law just what is to be done. These electors, bearing the certificate of their State, are by the provisions of the Constitution and of the stat ute to meet at such place as the Legislature of the State has determined, and there, in the manner prescribed by the Constitution, these men, bearing the certificate of the State, and these alone, are to cast their votes in a manner so particularly, so carefully guarded, that the idea that it is possible for these particular men ever to make a mistake, or for anybody to ever make any mistake about the action of these particular men, seemed to be considered a phantom, a far-fetched idea. They are, after they have voted, and each man subscribed his name to the vote and sealed it up, by a special messenger to send that particular action, and no other, to the President of the Senate. T*he President of the Senate is the sole constitution al custodian of these certificates from the sev eral States. He is to bring them, upon a par ticular day, into the presence of the two Houses, of the Senate and of the House of Representa tives, and he is to open them. He is not to open anything else but these certificates. No body can clothe him with power to open any thing else but the genuine certificate of each State; but that carries along with it the inci dental power of determining whether the paper in his hand is that certificate or not. Eight there, at the outset, before he breaks its seal, he is to determine whether he does break the seal of this certificate, or whether he has a false certificate in his hand. So far, incidental to the duty with which the Constitution clothes him of receiving and keeping this certificate, and in the presence of the two Houses opening it incidental to that, and without which he cannot determine that he has performed this act he must decide whether the paper coming into his hands is the genuine certificate. Then the several certificates, all opened by him and before him, are to be counted. When ? When he is with them there in the presence of the two Houses, and nowhere else. That, it seems to me, disposes of every one of these amend ments that propose to take these certificates out of the presence of the two Houses and sub mit them to another tribunal to be created for 562 PROPOSED LEGISLATION AS TO THE MODE OF the purpose of determining what these men shall count, and then for us to say that a tribu nal created by us determining what shall be counted does not count ! I ain not going into the argument that has been so elaborately made by the Senator from Maryland [Mr. WHYTE] as to whether these votes shall be counted by the President of the Senate or by the two Houses, because so far as my difficulties are concerned it does not mat ter. I have heard no one say that they were to be counted by anybody else, and therefore after he has brought them into a constitutional presence, if I may .use that word, namely, the presence of the Senate and the House of Rep resentatives, they are " then "to be counted. That is, when they are there; and therefore they cannot be counted in any other presence and before any other tribunal or by any other tribunal. I think that the Constitution means that they shall be counted by the two Houses. I cannot quite agree with the Senator from Maryland, that they are to be counted by the President of the Senate, for the reason that the framers of the Constitution kept in their mind, when they prepared for the election of President, the States. They pro vided, as I have said, that the States should appoint the electors, that the college of elec tors should in the first instance choose the President and the Yice-President ; they pro vided that, if the college of electors shall fail to do their duty, then the States in the House of Representatives, as States, shall elect the President, and the States as represented in the Senate shall elect the Vice-President. They have kept up the idea of the States all through, until, as they supposed, they had secured be yond peradventure the election of a President. I am not discussing the question whether we can now in this day afford to stand upon the ground of the States as against the people in the popular branch. I am one of those who believe in State rights, and I am one of those who so far as State rights are defined in the Constitution are for preserving them with sa cred care, and I shall stand \\p for them. More than any other feature of this whole Constitu tion this idea is prominent, running from the time when the States reserved to themselves the power in such manner as they pleased of appointing the electoral college to the time when, if the electoral college fail to make that choice, they devolved it upon the States in the House of Representatives to choose the Presi dent and upon the States in the Senate to choose the Vice-President. I infer, therefore, that, if these two bodies are there for any purpose whatever, they are first there to aid in the counting of the votes ; and the question is whether they are there as one body or as two. The Constitution says this shall be done, not in the presence of the members of the Senate and House of Representatives, but in the presence of the Senate and of the House of Representatives. Therefore the only question that can possibly arise at that point, namely, whether the paper that tfye Vice-President opens is the real genuine paper coming from the electors of a State, must be decided either by the two as one body or by the two in their separate capacity as Senate and House of Rep resentatives. You depart at once from the whole theory and tenor of the provision the moment you say it is to be done by them in convention in one body. If you follow it out and in harmony with all its provisions, as it seems to me I am only suggesting how it strikes my; own mind you must say that this incidental question necessary for the counting of the votes is to be determined by the two Houses as Houses, and so far as this bill recog nizes that principle so far this bill is but car rying out what seems to me to be the plain provision of the Constitution. But then from that point I find no comfort in this bill. The second section is : That if more than one return shall "be received by the President of the Senate from a State, purporting to be the certificates of electoral votes given at the last preceding election for President and Vice-Presi dent in such State, all such returns shall be opened by him in the presence of the two Houses when as sembled to count the votes ; and that return from such State shall be counted which the two Houses acting separately shall decide to be the true and valid return. Does that mean two returns purporting to come from the same electoral college ? If you reflect how the electoral college acts, you will see that that is a contingency so remote, so im possible to happen, that for us to spend any time in providing for it seems to me to be en tirely idle. They are to act on a particular day, and they cannot act on any other day. Each one of them is to vote and to sign his name to his vote, and the sign-manual of every one of them is attached to the certificate stating how they vote. That is to be sealed up on that day, and a special messenger is to take that to the President of the Senate. Now the idea that on that day these same men could do two different acts in that way, vote for one man, and then, before the day closed, falsify that vote by voting for another, supposes a con tingency which, I am free to confess, I do not think the framers of the Constitution ever con templated ; and if that is what is meant by de ciding between two returns from the same col lege, it is not worth while for us to spend a great deal of time on so remote and almost im possible a contingency. If, however, it means to meet the case of two returns Cfoming from a State, purporting to be the action of two sets of electors ap pointed by the State, what is to be done under this bill ? That is a question of fact which set is appointed ; and, considering the general manner in which they are appointed, by elec tion by the people, it is a question of fact lying deep down, surrounded by difficulties, and to be determined, not upon inspection of the papers, but upon evidence to be taken outside COUNTING THE ELECTORAL VOTES. 563 of the papers, if such a contingency shall ever arise. On those. two sets of papers it is pro posed here to determine this question of fact, without any hearing of the question of fact whatever, for the papers are to be submitted to the two Houses of Congress and to be de cided on a ten-minute debate in two hours. Well, that only puts one s hand on the mouth of a crater in the vain idea that you have closed it up. That is a poor cobweb attempt to smother a volcano. It is a delusion to the peo ple if it means that; and, if it means the other thing, it is an impossibility almost in the nature of the case that there can be two certificates from the same set of men on the same day, under their own seal and under their own hand. Mr. MERPJMON. Suppose, in a State where the electors are elected by the people, those who are in the minority insist that they really got a majority of the votes ? Mr. DAWES. That is what I am discuss ing. I say, if it means that, if it means that those electors declared to be chosen are to meet on the proper day and send up a vote, and those who are defeated but who believed that they were really and actually elected are to do the same thing, so that we have two sets of certificates, I can understand that that is a danger upon which we are drifting, a danger which we have had warning time and again to provide for ; and that was what I hoped from this able committee there would come out some remedy for. But what is it ? It is to take these two certificates, and on the face of the certifi cates, and by a law of Congress limiting the deliberation to two hours, without testimony from any quarter whatever, to reach a result that the people of that State, or of the United States in certain contingencies, everybody will see it is impossible to expect will acquiesce in. Mr. MITCHELL. Allow me to ask a ques tion. Suppose a case of that kind just stated by the Senator, where two returns come up Mr. DAWES. From two different bodies ? Mr. MITCHELL. From the same body, in the case stated, where one part of the electoral college claim that they were elected and the other part claim that they were elected, and two returns come up. Mr. DAWES. That would be from two dif ferent delegations. Mr. MITCHELL. Yes. In that case do I understand the Senator to contend that, under the Constitution as it now stands, it is the duty of the President of the Senate to determine, before he breaks the seal, which of the two is the correct return? Mr. DAWES. No, I did not say so. If I do not make it clear what I do mean before I get through Mr. MITCHELL. I understood the Senator to contend that there could be but one correct return from a State, and that under the Con stitution it is the duty of the President of the Senate to determine, before he breaks any seal at all, which is that return. Mr. DAWES. The Senator will allow me. I do think the Senator will admit that there can be but one correct return in point of fact. Mr. MITCHELL. I admit that ; but what I want to know is whether the Senator contends that, under the Constitution as it now is, it is the duty of the President of the Senate to de termine, before he breaks the seal, which is the correct return ? Mr. DAWES. If the Senator will excuse me from answering just at this point, I will proceed. Let me go through with my state ment again. It is impossible for there to be more than one correct return ; and in the na ture of the case it is next to impossible that there can be two returns from the same body of men. Inasmuch as they have to act on one particular day, in broad daylight, and sign their names to what they do, in the nature of the case, I do not say it is impossible, but it is next to impossible, that there can be two re turns from the same body of men in the State of Massachusetts or the State of Oregon claim ing to be the electors. Then I say this pro vision can in practice have no possible applica tion to any other case except where two sets of men in Massachusetts claim to be each one of them appointed electors, and those two sets meet together at the capital of the State, and each one of them goes through with precisely the same form, voting for different men, and send up their votes ; so that when they come to the President of the Senate, on the papers themselves there is nothing to guide him to determine which of them is correct and which is not. Mr. MITCHELL. Now in that case, do 1 understand the Senator to say that it is the duty of the President of the Senate under the Constitution to determine which is the correct one? Mr. DAWES. I did say a moment ago that that was a case for which no provision had been made, and that was a danger upon which we were drifting, and that I had hoped that, warned as we had been that such a contingen cy not only was possible but was almost prob able, some provision would come from this committee. I said I had been disappointed in that hope. I said so because I stated that all the provision for such a case which they have made in this bill is that these two sets of cer tificates (the right or the wrong of which lies in a question of fact deep down among the complications, and passions, and frauds that exist in the State itself, which the Constitu tion has clothed with the power, and which alone it has clothed with the power of making the appointment) shall be opened and laid be fore the two Houses, and that the decision upon them shall be made by a vote of the two Houses, and it provides by law that it shall be done in two hours, and decided without any evidence upon the question of fact. I re 564 PROPOSED LEGISLATION AS TO THE MODE OF gretted to be compelled to say that that was an attempt to stifle with the palm of a man s hand the crater of a volcano. Mr. MITCHELL. I do not like to interrupt my friend, but I wish to ask him one other question. I am a member of the Committee on Privileges and Elections, and trying to as sist in this matter. What I want to know is whether the Senator means to be understood now as contending that there is no power in Congress under the Constitution to provide a means of determining as to which is the right certificate in a case of that kind, or whether the President of the Senate is compelled, under the plain provision of the Constitution, to de termine it for himself? Mr. DAWES. I am sorry, Mr. President, to be compelled to agree with the Senator from Wisconsin [Mr. HOWE] on that point. I do not think the framers of the Constitution foresaw that when they clothed the State with the power itself to appoint the electors, a con tingency would ever arise where the State would fail to see to it that its appointment was so certain and so verified that no question could ever arise about it. Inasmuch as the State ap points, the State must determine whether the State has appointed or not ; the State must de termine whether it has performed its duty in the absence of any constitutional provision. Mr. MORTON. Will my friend allow me to call his attention to the questions that I think are involved in his argument? Mr. DAWES. I am after light, nothing more. Mr. MORTON. In a case where there are two sets of electors take the case of PJiode Island during the Dorr trouble there ; suppose a presidential election had occurred at that pre cise time and there were two sets of electors, one certified by the governor under the old charter government, and the other certified by Governor Dorr under the Dorr government, and those two certificates or packages came here sealed. In order to settle which set of electors is to be counted in the vote it must be determined which is the government of Rhode Island, the Dorr government or the charter government. I suggest to the Senator wheth er that question under the Constitution of the United States must not be decided by Congress in such a case as that ? One other question in regard to what must be done in such a case. W T here there are two sets of electors and there are two packages, of course the President of the Senate cannot, without some outside information, determine which is the proper certificate until he opens them. I understand the Senator to say that to determine on the face of these papers is simply to put the hand on the crater of a vol cano ; but the question goes back to which set of electors was chosen by the people or by the State. I want to call my friend s attention to this proposition, that the Constitution admits of no time for that investigation. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. There is no period of time in which you can go back into a State and inquire who was act ually elected. And then further on it provides that when these votes are thus counted, if no one person has a majority of all the electors appointed, the House of Representatives shall immediately proceed to the election ; so that there shall be no interregnum, there is no pause in the proceedings until a President is chosen either by the votes of the electors or the vote of the House of Representatives. Mr. DAWES. The remarks of the Senator from Indiana are but in corroboration of the reply that I made to the Senator from Oregon, that the provisions of the Constitution fail to meet the case of a contest upon a question of fact. These points that the Senator from In diana has called my attention to are but an ticipating what I was going to say in a few moments. The very fact that they are " then " to be counted, and as they appear then in that con stitutional presence and nowhere else, shows that you have no more power to take them out of that presence before they are counted and submit them to the Supreme Court or to a court of arbitration than you have to submit them to a synod of Presbyterian ministers. The presence in which they are to be counted is fixed by the Constitution itself; and whether they are to be counted by the President of the Senate or to be counted by the Senate and House of Representatives, they are to be counted " then," in that presence, and " then " means at that time, and " immediately" there after, if the electors shall have failed to make a choice, the House of Representatives by States is to make the choice. Thus it appears that the Constitution has provided no method, has left no opportunity, if I may use that phrase, for a contest upon a question of fact ; and the committee, recognizing that fact, has provided for a method of determining it by smothering the fact. When two distinct cer tificates come up here to the President of the Senate, from two distinct and separate sets of electors in the State of Massachusetts, each one of them claiming to be the true board appointed by the State, there is no provision, no opportunity, no method pointed out by the Constitution to determine that question of fact, and the Senator proposes, instead there of, to take these two certificates, and on their face submit them to a two hours deliberation in the two branches of Congress, and smother the voice of the State by the decision of those two branches. Mr. McMILLAN. Will the Senator allow me to ask him a question? In the present state of the Constitution can we make any further provision than that? Mr. DAWES. I was going to say, and had almost said it before the Senator interrupted COUNTING THE ELECTORAL VOTES. 565 me, that the fact that there is no other pro vision in the Constitution to meet this ques tion, does not relieve us from the necessity, when there is a provision for amending the Constitution, of meeting the question. Mr. MoMILLAK Will the Senator then allow me to suggest to him that the joint rule of the two Houses which has existed up to this session has been repealed, and that before any provision for an amendment to the Con stitution can transpire a presidential election must intervene ; so that if this bill is not passed, there will be the mere naked provision of the Constitution of the United States, and that would certainly leave us in a most unfor tunate condition. Mr. DAWES. If the Senator from Min nesota will indulge me, I will endeavor to state just what I think will be the result when we get through and pass this bill ; and I pro pose to vote for it. My objection to the bill is that, as I said in the beginning, it is a delu sion; it purports to accomplish what it does not accomplish ; it leads the people of this country into a snare because it leads them to think Congress has provided Mr. MORTON". If my friend will permit ine a moment, as I am also in pursuit of light, I want to ask him a question. The twenty- second joint rule has been abolished. We have no rule. Suppose we fail to pass any law, and when we count the presidential vote less than a year hence there are from the State of Louis iana, if you please, two packages of electoral votes, each purporting to be certified to by a governor of that State, and each bearing the fac simile of the seal o! the State, so that you cannot tell by inspection which is the genuine and which is the false. I ask my friend, if we do not pass this bill and we have no rule, who is to determine the question between those two sets of votes ? How is the question to be set tled ? Are you to cast aside both, or are you to count one ? And if you are to count one, who is to select the one to be counted? I would further add that the one is to be counted which is certified to by the governor of the State of Louisiana; and is not the ques tion who is the governor or which is the gov ernment of Louisiana a proper question for the Congress of the United States to determine? Wherever there is a dispute in regard to elec toral votes, or in regard to a Senator, is it not the proper thing for the Congress to say which is the government of a State, and, that being decided, then the votes of the electors who are certified by that governor are to be counted. Mr. DAWES. I agree with the Senator that every disputed question which can pos sibly arise upon the papers themselves had bet ter be decided by the two Houses, as Houses, than to-be decided by the President of the Senate. But I was commenting upon the utter impossibility of deciding the question under the form or, without meaning any offense, un der the pretext of deciding it by deciding upon the face of the paper where the question lies deeper than all that, and I was showing that that question, from the very provisions that I have discussed, there is as yet no provision of the Constitution to settle; and an act of Con gress only deludes the people by giving them the idea that it is settled, when in point of fact it is not. But the third section, the Senator will allow me to say, is the most curious section that ever I saw in a statute. It proposes to determine the rule of deliberation in the two Houses of Congress by an act of Congress. Mr. MORTON" v Before my friend passes to the other point, will he allow me Mr. DAWES. I wish to say but a few words more. The third section declares : That when the two Houses separate to decide upon an objection that may have been made to the count ing of an electoral vote or votes from any State, or for the decision of any other question pertinent there to, each Senator and Kepresentative may speak to such objection or question ten minutes, and not oftener than once : Provided, That after such debate has lasted two hours, it shall be in the power of a majority of each House to direct that the main ques tion shall be put without further debate. Mr. MORTON". Before my friend passes to the third section and I shall be glad to hear him on that question I ask him if the two Houses are not to settle the question between the two sets of electors in the case supposed, who is to settle it, and how is it to be settled ? What would my friend do in that case ? If we do not pass the bill and authorize the two Houses to settle the question, how is the ques tion to be settled between two sets of electors? Mr. DAWES. I never would content myself with doing what is in this bill, and I never would fancy that I had done my duty as a legis lator if I stopped with the provisions of this bill. That this bill is better than none I have said, and that is why I shall vote for it. That it is all that can be done without an amendment to the Constitution, I have no disposition to deny. I have not found fault with it, and I have not criticised this measure in any such spirit as that. I have listened with entire sin cerity to see if it were possible by an act of Congress to meet the exigency; and having deliberated in another committee a good deal upon that question, I did hope that this com mittee would solve that question ; but they have not done it, and that was the burden of my talk. That they could do anything better than this, I am not prepared to say. Now the Senator will permit me to ask him what binding force as a rule upon the Senate or the House of Representatives this act of Congress can possibly have, if either desires to change it, when the Constitution itself says in so many words that each House may deter mine the rules of its proceedings itself, with out the consent of the other House and of the Executive ? That this may be treated as a rule of the Senate or of the House just so long as the Senate or the House is willing so to do, I 566 PROPOSED LEGISLATION AS TO THE MODE OF will admit. It may be said that by passing this bill the Senate consents itself and the House consents itself to this law as its rule. That may be true; but the moment either wants to change it, it will have the power to change it without regard to this law. If, when the Houses are deliberating upon a question of this sort they choose to deliberate three hours, there is nothing in this law in the way, and it would not be a violation of this law, because this law is an attempt to exercise an authority over which the Constitution says the body it self is supreme ; and therefore this section, in the interest of dispatch, in ^Jie interest of ne cessity, as the Constitution now exists, is a mere rope of sand, and the Senate can do away with it or the House do away with it at its pleasure. It is as idle to enact what shall bo the rule of this body and of the House of Representatives by a statute as it is to enact what shall be the constitutional prerogative of the Executive himself. The Senator has pressed upon me the ques tion, what shall we do ? I say, meet it fairly and squarely ; bring forward some measure for an amendment of the Constitution upon a subject which the framers of the Constitution did not think there was any necesaity for amending, but which subsequent experience has shown is vital and essential. But while such an amendment is pending, and until it becomes a part of the organic law, I shall vote for this bill ; but I shall vote for it believing that, just so far as it follows the rules that ex isted before the twenty-second joint rule, it is but providing the uniform usage, and that the moment it goes beyond that it is only advisory and has no sort of binding force ; and it is in vain for us to tell the people that we have met the peril, for the peril exists precisely under this bill as it existed before the twenty-second joint rule and when nothing but the usage un der the Constitution was the guide of the two Houses. Mr. MAXEY obtained the floor. Mr. LOGAN. It is getting late, and if the Senator will give way I will move an execu tive session. Mr. MAXEY. I am satisfied. I do not care to proceed at this late hour. Mr. LOGAN. I move that the Senate pro ceed to the consideration of executive busi ness. IN SENATE. Tuesday, March 21, 1876. (" Congressional Kecord," pp. 1830-1843.) The Senate, as in Committee of the "Whole, resumed the consideration of the bill (S. No. 1) to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon. Mr. MAXEY. Mr. President, no question of so much importance as the one now under consideration has been considered by the Sen ate during the present session. The bill proposes to provide for and regulate the counting of votes for President and Vice- President, and the decision of questions arising thereon. We are warned by the past to pro vide for the future. With the majority in the two Houses representing opposing parties, the time is propitious for passing a wholesome law which all the people will recognize as honest and free from party bias. We should take ad vantage of the favoring circumstances. The Constitution reads : The President of the Senate shall, in the presence of the Senate and House of Eepresentatives, open all the certificates, and the votes shall then be counted. (Part ot the twelfth amendment.) Here are two distinct duties to be performed. First, the President of the Senate shall, in the presence of the Senate and House of Repre sentatives, open all the certificates. That is mandatory, not directory ; it is unmistakable. The President of the Senate, and none other, 1 shall open all the certificates ; not part, but all. \ He cannot perform this duty except in the j presence of the Senate and House of Repre- j sentatives ; not Senators and Representatives ; not a mass convention of Senators and Repre- 1 sentatives; but in the presence of the Senate, organized and appearing in its organized capa city, and the House of Representatives there present, organized as such. So far, then, as opening all the certificates by the President of i the Senate, in the presence of the Senate and House of Representatives, is concerned, there ! is no dispute ; but it is insisted by the Senator from Maryland, that the President of the Sen ate must not only open all the certificates, but i must likewise count the votes ; that the act of counting the votes is a mere ministerial act, and that the sole office of the two Houses, who j are required to be present, is to witness the - performance of these two ministerial acts, ! namely, the opening all the certificates and the counting of the votes by the President of the Senate. If he is correct in this construction, then there is no need of any law. It would be a work of supererogation. The Constitution in this regard executes itself. The two Houses are figure-heads, and part of an imposing pa geant. I dissent from this construction. The duty of counting the votes devolves in the first in stance, in my judgment, on the Senate and House of Representatives. "Why the necessity of requiring the Senate to appear organized and ready for business, unless it has business ? Why require the House of Representatives to be present organized, unless for business ? The very fact that the two Houses are required to appear in their organized capacities strength ens the construction which I place on the clause in question. Had the framers of the Constitution designed to confer on the President of the Senate the duty as well as power of counting the votes, j COUNTING THE ELECTORAL VOTES. 567 then why does it not say so ? Why not read, The President of the Senate shall . . . . open all the certificates and count the votes ? As the power is, in express terms, conferred upon the President of the Senate to open all the certificates, and is not conferred upon him in express terms or by implication to count the votes, we naturally conclude that the power of counting the votes was not lodged in the Presi dent of the Senate, but was lodged in the Senate and House of Representatives, then present by the mandate of the Constitution and organized for business, and none other be ing required to be present. This view is sup ported by the well-known rules of construction and is consonant with right reason. The second officer of the United States in rank opens all the certificates in the presence of the two Houses of Congress, and they, in his presence, count the votes. I say in his pres ence, because the Constitution says the votes shall then be counted. If this view of the Constitution be correct, as I think it undoubtedly is, then it logically follows that Congress has the power to pass any law within the limits of its express or im plied grants necessary and proper to carry out the foregoing provision of the Constitu- ton. Mr. EATON". Will my friend allow me to ask him a question ? Mr. MAXEY. Certainly. Mr. EATON". He speaks of the two Houses being organized for business. Do I under stand him to mean by that, that, when these two Houses meet together for the purpose of having the votes opened and counted, there are two organizations in the same room, one of the Senate and one of the House of Repre- sentatives ? Mr. MAXEY. That is precisely what I mean, sir. The Constitution says : The President of the Senate shall, in the presence of the Senate and House Eepresentatives, open all the certificates, and the votes shall then be counted. The word " Senate " means an organized body; the words "House of Representatives" mean an organized body. If it was designed simply to open the votes in the presence of Senators and Representatives, it would have said so; but it says "Senate," which is an organized body; it says "House of Repre sentatives," which is an organized body ; and I hold that these two bodies as organized bodies are present, and I have argued that they are present for business, and I think there is force in that view. The question then is, What law will most effectually secure a fair count of the electoral vote ^ and to each State its undisputed and inestimable right of having its true and valid return of the vote of the people through the electors counted beyond peradventure ? Now, I hold that the grant of power to and consequent duty upon the Senate and House of Representatives is a sacred trust of the very highest character devolved upon these two bodies for the soundest of reasons. The Senators are the direct representatives of the States, or, if you please, the people of the States in their organized capacity under State governments, and the House of Repre sentatives represent the people directly in their primary capacity, and the highest incen tives that can impel a man to honest action lie before them. These distinguished bodies organized for business, in order to proceed in an orderly manner without confusion, are pre sided over by the second officer of the Govern ment. His incentive to honest action is of the highest character. Could there be a more en lightened court organized ? Now, as I have said, this duty of opening all the certificates and counting the votes is a trust reposed by the Constitution, the first in the President of the Senate, the second in the two Houses of Congress, and in no other body or persons whatever. It is in its nature like a personal trust, and can be delegated to no power on earth, and necessarily demands sound judgment and discretion. Would any one say that, when the Constitution says in terms " the President of the Senate shall open all the certificates," we, or any other power on this earth, can say " the President of the Senate shall not do this, but some other party we name shall do ifc ?" Now, if the argument is sound, as I believe it is, that the two Houses are intrusted with counting the votes, we have no more right or power to take the authority out of the body of Congress to count the votes than we have to take away from the President of the Senate the power of opening all the certificates. It makes no difference that one is by express grant and the other by fair im plication; the implied grant once established is just as binding, valid, effectual, and constitu tional as the express ^rant. Therefore, as in the case of the President of the Senate, it is clearly and in express terms a personal trust, so by fair implication the grant to the two Houses to count the vote is a personal trust, and cannot therefore be transferred to arbi trators, court, or commission not of the body, however exalted be the personages. If I am correct in my reasoning, it follows necessarily that the amendment of the Senator from New Jersey [Mr. FEELIXGHUTSEN] falls. The amend ment is as follows : The difference shall be immediately referred to the Chief Justice of the Supreme Court, the presiding officer of the Senate, and the Speaker of the House, whose decision shall be final. If the Chief Justice is absent or unable to attend, the senior associate justice of the Supreme Court present in the capital or other place of meeting shall act in his place. And the same is true of the plan suggested by the Senator from Indiana [Mr. MORTOX] on Thursday last, and which is : That the judges of the Supreme Court of the United States shall be assembled in the chamber of the Su preme Court at the same time that the two Houses of Congress are counting the electoral votes for Presi- 568 PROPOSED LEGISLATION AS TO THE MODE OF dent and Vice -President ; and, in case the two Houses shall fail to agree as to which is the true and valid return as provided for in this section, the returns shall be immediately submitted to the said judges, who shall summarily decide which is the true and valid return, which return shall be counted. The amendment of the Senator from New Jersey [Mr. RANDOLPH] I do not say would be unconstitutional. It reads thus : SEC. . Should the two Houses of Congress, acting separately, fail to agree as to which is the true and valid return of a State, then, and in that event only, the President of the Senate shall render a decision of the question, and such rendition shall be in favor of that return of a State which shall have received a majority of all the votes cast in both Houses of Con gress, considered as if both Houses had cast their votes in.joint meeting assembled. I will say, however, that it does not address itself to my mind as sound. The theory of the Legislative Department of our Government is that Senators represent States in their organ ized capacities as bodies-politic, while Repre sentatives represent the people directly in their primary capacity. The books tell us that "State" and "people of a State" are inter changeable terms. The whole people of a State, in their aggregate capacity as a body- politic, are represented in the Senate by two men Senators; and this without regard to whether the aggregate is great or small, so it is a State. But the House of Representatives, representing the people, is very differently constituted. The State of New York has two Senators and thirty-three Representatives ; the State of Delaware has two Senators and one Representative. Now, manifestly, the vote of the Delaware Senators, counted along with her one Representative, would weigh more than the votes of the ISew York Senators counted along with her thirty-three Representatives. Such a plan follows no analogy of the Consti tution, is not in accordance with the theory of the Constitution, and is, I believe, not the safest or best plan ; and this applies also to the amendment of the Senator from Virginia [Mr. JOHNSTON], which reads as follows : If the Senate should vote for counting one certifi cate arid the House of Representatives another, the joint meeting of the two Houses shall finally deter mine which shall be counted, by States, the repre sentation from each State, including the Senators therefrom, having one vote ; but if the representation of any State shall be equally divided, its vote shall not be counted. The amendment of the Senator from Ten nessee [Mr. COOPER] is plausible, and would seem to rest upon the supposed analogy be tween a total failure of the electoral college to elect and the case under consideration, which is a partial failure, in ascertaining by the concur rent vote of the two Houses how one or more of the States voted, whereby they would be thrown out and thus make a partial failure in the electoral college unless a plan is devised to .save the vote, and his plan is presented, based I think on this supposed analogy. His amend- .ment is: And if the two Houses do not agree as to -which re turn shall be counted, then that vote shall be counted which the House of Representatives, voting by States in the manner provided by the Constitution when the election devolves upon the House, shall decide to be the true and valid return. Now the States as bodies-politic are directly interested in having true and valid returns of the people s votes through their electors. So are the people directly interested in their pri mary capacity. The question is not the same as that which arises in the House of Represen tatives when the election of President devolves on that body. The election in the House takes place from the persons having the highest numbers, not exceeding three, on the list voted for as President. There may have been more than three voted for. In that case the Rep resentatives of the State or States whose people voted for one of the dropped candidates cast about for a second choice, and when the third man is dropped his supporters go to a next choice. But in the case in hand it is not at all a question of choice. It is a question of justice and common honesty. The question, and the only question is, Which is the true and valid return ? Which represents truly the will of the people as expressed through the electors? In the one case politics have all to do. In the other case, if we are honest, politics have nothing to do. But as I believe Congress (al ways confining the settlement of this question within itself) can constitutionally adopt this plan, my opposition to it is that I do not think it the wisest and best. Then can the question be constitutionally settled and the rights of the people and of the States saved by a plan alike just to all ? The first section of the bill under consideration is, in my judgment, substantially correct. It looks to only one certificate from a State. If the two flouses agree, there is an end of it. If they disagree, the vote shall nevertheless be counted. This is according to well-known principles of law, and I have here tofore said all in regard to that section I care to say. The second section, so far as it goes, is to me unobjectionable. The trouble is it does not go far enough to provide a remedy to meet an unfortunate case that has arisen in our history, and may again; that is to say, where two certificates come up from the same State, both seemingly of equal dignity and validity. What are you going to do about it? That section reads : That if more than one return shall be received by the President of the Senate from a State purporting to be the certificates of electoral votes given at the last preceding electioy for President and Vice-Presi- dent in such State, all such returns shall be opened by him in the presence of the two Houses when as sembled to count the votes; and that return from such State shall be counted which the two Houses, acting separately, shall decide to be the true and valid return. This section rightly requires the President of the Senate to open all the certificates. If the two Houses agree that one is the right cer- COUNTING THE ELECTORAL VOTES. 569 tificate, then there is no contest, and that cer tificate ought to be counted. Bat suppose one House votes that one certificate is true and valid, and the other Rouse votes the other cer tificate is true and valid, then what do you propose to do about that ? I asked that ques tion of the Senator from Indiana the other day, and he replied that in that case the vote of the State would fall. He deplored this result, but saw no way then of avoiding it. That cannot be. We must give force and effect to every part of this constitutional provision, if this be possible. Justice to the States, to the people, to the whole Union, a sacred regard for the peace and stability of the Union, demand that this problem should be solved. The clause of the Constitution under consid eration reads : The President of the Senate shall, in the presence of the Senate and House of Bepresentatives, open all the certificates, and the votes shall then be counted. Clearly all the votes embraced in the true and valid returns or certificates are to be then counted ; not part, but all ; not at some future time, but then. Now it follows that, of those presented, one from each State is the right return ; but one House says one is valid ; the other says the other is valid. It is no uncom mon thing in Legislatures and courts that opin ions divide; still in a judiciously organized court, or in a Legislature, we get a binding decision of the question. So I think we can here. Claused, section 8, article 1, of the Constitu tion reads : The Vice-President of the United States shall be President of the Senate, hut shall have no vote, un less they be equally divided. Clause 5, same section, reads : The Senate shall choose their other officers, and also a President pro tempore in the absence of the Vice-President, or when he shall exercise the office of President of the United States. Now here we have two organized bodies the Senate and House of Representatives re quired by the Constitution to be present when the certificates are opened and the votes count ed, and the President of the Senate is also re quired to be present, and to open all the cer tificates. None others are required to be pres ent. In an orderly proceeding, such as this great occasion demands, a presiding officer over these two organized bodies, assembled for a common purpose the two bodies that com prise the Legislature of this Union is neces sary in the due order and eternal fitness of things. When these two bodies thus act the senior presiding officer should preside, to wit the President of the Senate, and this bill recog nizes this fact and so provides. Section 1, after providing for the assembling of the two Houses, goes on, in lines 7 and 8 . . . "and the President of the Senate shall be their presiding officer." Now here we have an organization and a presiding officer over that organization. A Senate, separately organized, representing States, which, as an organization, can with draw in an orderly manner, and the House, representing the people, which can in like manner withdraw. Their deliberations con cluded, they return and report to the common presiding officer, who is the second officer ot the Government, and ordinarily elected by the people, filling the double capacity of Vice- President of the United States and President of the Senate. Suppose the House decides in favor of one certificate, the result is announced, and that is the vote of the House. Suppose the Senate decides in favor of the other cer tificate, the result is announced, and that is the vote of the Senate. Now these two votes are of precisely equal weight and equal dig nity. In all like cases the vote of the presid ing officer decides the question, and so it should be here, and in my judgment this is the true solution. The Senator from Maryland read the opinion of Chancellor Kent in support of his position. The opinion read by him I think precisely accords with the opinions I have ex pressed. Chancellor Kent presumes that in the absence of all legislation the President of the Senate should count the votes as well as open all the certificates. It follows that in the presence of legislation devolving the counting of the votes in the first instance upon the two Houses the President of the Senate would not have such authority. But another valuable lesson is learned from this same opinion of Judge Kent. If in the absence of legislation the President of the Senate could count the vote, then a fortiori in the presence of legis lation devolving this duty upon him (he being part of the Senate, and thereby of Congress), most assuredly, in a certain contingency, he could count the vote. Now where the two Houses fail to agree it is the same in result as if no law had ever passed authorizing them to count the vo.te, in which case, applying the views of the distin guished chancellor, the count would fall upon the President of the Senate. The precedent relied on by the Senator was not a precedent under the Constitution, but a plan adopted to put the machinery of the new Government in motion under the Constitution. I will recall to the minds of Senators a few facts of history at this point which will per haps throw some light on the precedent from which the Senator from Maryland has read. The Congress of the confederation was in ses sion at the city of Philadelphia in 1787, at the same time that the convention was in session. The convention, having closed its labors, through its President, General George Wash ington, made report thereof to the Congress of the confederation. In that report you will find, over the signature of General Washing ton, this recommendation (and I will read only so much as pertains to the question before us) : That the Senators should appoint a President of 570 PROPOSED LEGISLATION AS TO THE MODE OF the Senate for the sole purpose of receiving, open ing, and counting the votes for President ; and that after he shall be chosen, the Congress, together with the President, should, without delay, proceed to ex ecute this Constitution. Thus it will be observed that the purpose and design of this was to pass without a shock from the old Government under the Articles of Confederation to the new Government under the new Constitution ; and as Congress had never yet sat, as the Constitution had not been set in action, as the machinery of govern ment had not been put in motion, the conven tion which framed the Constitution recom mended to the Congress of the Confederation this mode. The Congress of the Confedera tion submitted by a resolution the work of the convention to the States for their ratification or rejection. At the first session of the First Congress succeeding the ratification of the Constitution by more than nine States, this resolution was. introduced that a President wo temporc of the Senate should be appointed for the sole purpose of receiving and counting the electoral votes. It was not a precedent under the Constitution, but a precedent adopt ed for the very purpose of setting the machi nery of the Constitution in operation. There fore I think that precedent is not applicable to the case at bar. "Where the presiding officer is President of the Senate pro tempore, then I think his State cannot be deprived of its equal vote in the Sen ate ; still, while in this exceptional case the President of the Senate pro tcmpore acts in a double capacity, I do not think it at all changes the conclusions at which I have arrived. An objection has been urged that the Vice- President may be a candidate for reelection or for the Presidency. So may any man or men you select, if they possess the constitutional qualifications ; so that if this proves anything it proves too much. In the argument I have made I have not in the slightest degree taken into account what may be the effect on par ties. I have tried to arrive at a plan constitu tional, simple, and most likely to prove satis factory to the whole people. In conclusion, permit me to say that I rejoice that so great a question has been all the way through calmly, deliberately, and intelligently discussed in a spirit of fairness and freedom from partisan spirit, and I trust the wisdom of the Senate will devise some plan to meet every phase of this great question with which both Houses of Congress and the country will be satisfied. In view of what I have said, Mr. President, I would suggest, though it is not in order now, at the end of the second section to add : But if the two Houses fail to agree as to which of the returns shall t>e < counted, then the President of the Senate, as presiding officer of the two Houses, shall decide which is the true and valid return, and the same shall then be counted. Mr. JONES, of Florida. Mr. President, I do not come before the Senate to-day with any plan to remedy this great difficulty. Much has been said here which meets my approval, and many plans have been proposed for adoption ; but I propose to discuss the question as a con stitutional question, and I intend to present to the Senate the reasons why I cannot support the present bill, or any of the amendments that are now proposed. The bill before the Senate implies so much that we ought all be loth to admit, that noth ing but the strongest reasons should induce us to pass it even if we had the power. It pre supposes contingencies and dangers that can never arise under a healthy administration of the governments of the States of this Union. I believe that this bill involves a plain de- j parture from the Constitution, and provides machinery for determining the will of the people in elections for President and Vice- President not warranted by that instrument. Jn principle it does not differ at all from the j twenty-second joint rule so much condemned j by Senators on this floor. That rule author- I ized either House of Congress to throw out the electoral vote of a State or of ten States when objection was made to them. This bill | gives jurisdiction to the two Houses of Con gress to do the same thing in a less offensive i manner ; for it provides that, if objection be i made to the certificate from any State, the vote j of such State may be excluded altogether by \ the two Houses of Congress. The second section goes much further than this, and provides that, if more than one re- J turn shall be received purporting to be elec- j toral certificates, all such returns shall be j opened by the President of the Senate ; and it is left to the two Houses, acting separately, to I say whether any returns from such State shall be received or not. Let us analyze these sections, and see what j cases they provide for. The first section pro- j vides for the case of a single electoral return I from a State to which objection of any kind is j made by anybody and stated by the President I of the Senate. The moment objection is made j this law gives to the two Houses of Congress J authority to settle the disputed question by re- I jecting the vote of one State, or of ten States, \ if the two Houses should concur in such re- j jection. The law does not inform us what must be j the character of the objection or whence it I must come in order to justify the exercise of j such an extraordinary power or jurisdiction, j Shall the objection be technical or substantial? j Shall it relate to the form of the certificate, the authority of the electors who signed it or of the governor who certifies to their identity ? j Shall the objection prevail for the want of a } seal to the certificate, or other formal require ments, or must it go to the very right and title of the persons claiming to be the legally- elected electors ? This part of the bill vests an absolute power of rejection in the two Houses, for it makes the vote of each State depend upon the will COUNTING THE ELECTORAL TOTES. 571 and pleasure of these bodies. I cannot imag ine a case where there is but a single certifi cate of election in which either House of Con gress or both Houses would be justified in rejecting it. The second section of the bill provides for the case of two returns, a contingency that is hardly supposable except in a case of revolu tion. The Constitution vests in the several States the power to select in their own way the electors for a President and Vice-President. Those officers, although vested with a duty which concerns the whole Union, are not officers of the United States. They are elected in con formity with the State laws, the same which govern the election of members of the Legis lature, governor, and other local officials. They may b appointed by the Legislatures or they may be elected by the people of the several States. The view entertained of their duties by the framers of the Constitution, as we know, was very different from that which now prevails regarding them. It was expected that they would exercise an independent judgment in voting for President and Vice-President. But we know that under the present practice they meet only to record the will of those who elected them. But the mode and manner of their election was left to the laws of the States. This of necessity involves the right to determine all cases of contest arising out of the claims of rival candidates. The Constitution of the Union was created by people living under organized governments, and it was intended to operate over them only in that state. In construing the Constitution we must look to the view which was enter tained by its framers of the powers of the electors. They are to be selected by the States in such a manner as their Legislatures shall de termine. It was intended that they should vote for whomsoever they pleased for the two first offices in this Government. No person holding any office of honor and profit under the United States can become an elector. No Senator or Representative in Con gress can become such. The selection of those officers was left exclusively to the States, and every question arising out of their election or appointment was left of necessity with the same authority. The laws of the States pro vide the manner in which these persons shall be chosen, and they may provide also who shall determine, in case of contest and difficulty, the persons who have been duly elected. What ever may be the decision of the State authori ties, or by whom made, it is binding on the United States. This bill proposes to take this power from the States and vest it in Congress, because I contend that the right of ultimate decision between two persons claiming a single office is a right which flows from the author ity, and the authority alone, that orders and controls the election. Will any one deny that the States cannot provide by law for determin ing cases of contest between opposing candi dates for the office of elector? If tiiey can, and the tribunal fixed by the local law is vested, as it must be, with the right of exclusive judg ment, how can the same power of decision be exercised by another authority under a distinct government ? This power belongs either to the States or to the Union. If to the latter it cannot be reconciled with the express authority vested in the States by the Constitution. But it may be said, Mr. President, that the object of the present law is to provide for the case of two rival governments, and that it is intended to give to Congress the power to de cide between them when determining the elec toral vote of the State. Sir, I protest against this dangerous doctrine. There is no such power vested in Congress or in either House of Congress. If this or the other House has authority to decide the question at all, it must be an exclusive authority, an authority from which there can be no appeal. The Constitution contemplates that all the States of this Union shall always be connected with this Government by certain constitutional ties. In the very nature of things there never can be but one government in a State with which this Government can have constitution al relations, or that can claim recognition from the authorities of the United States. The governments of the original States, dif fering as they did in many respects, were all recognized as legal governments, and so were all the governments of the States admitted into the Union afterward. But the framers of the Constitution were far-seeing men, and they foresaw that it was possible that the State governments, having legal relations with that of the United States, might be overthrown by usurpation or domestic violence too power ful for the local authorities to resist. And what did they do ? Did they leave the matter to be decided by one or both Houses of Con gress when the electoral vote of the State was counted ? No, sir. They made it the duty of the United States to guarantee to each State a Republican form of government, and to pro tect them against invasion ; and upon applica tion of the Legislature or the executive against domestic violence. It is impossible in the very nature of things that the lawful and rightful government of a State can be destroyed, or a rival power es tablished or put in operation, if this authority vested by the Constitution in the United States is faithfully and honestly exercised. It will be apparent that the Constitution contemplates that there will always be in existence in each State either an executive or a Legislature which will be entitled to make the application pro vided for in case of threatened danger to the local government. It is true that it is not every caso of local disturbance that will call for the exercise of Federal power. But I do say that this is the 572 PROPOSED LEGISLATION AS TO THE MODE OF remedy provided by the Constitution for main taining intact the lawful governments of the States and to enable them to fulfill the duties which they owe to the people and to the Uni ted States. What right have we to suppose that there will be two certificates from two sets of elec tors and two governors? The electors must all be elected under the State laws and certi fied by the governors of the States. These laws all provide for the canvassing of the votes by State officers, who are sworn to perform their duties. The governors are all sworn like wise to do their duty and are liable to impeach ment if they willfully fail to perform it. This bill looks only to the certificates of the electors ; but it is manifest that under an authority to look into the certificate of the elector the right will bo claimed, and may be exercised, to inquire into the election of the electors themselves. Now, I wish to know if gentlemen are will ing that either House of Congress, in any event that can be supposed or imagined, shall go into an investigation of an election in a State held for electors of President and Vice-President. And that is what this bill proposes to authorize. Now, I say that it would be as just, as prop er, it would be as constitutional to give to Congress the power to investigate State elec tions held for governor and other local officers as it would be to authorize the same body to investigate elections held for electors. This is a proposition which I defy any one to dispute. The right of the States to elect or appoint electors, although derived from the Federal Constitution, is just as complete and perfect and independent as the right to elect a gov ernor. The act provides that, if more than one return shall be received by the President of the Senate purporting to be certificates of electoral votes, that return shall be counted which the two Houses, acting separately, shall decide to be the true return. The Houses are to withdraw to discuss and decide this question, and although debate is limited to two hours there is no limitation as to the time the investigation shall last or the range it shall take. On the contrary, the Houses, instead of being confined to the objec tion raised to the returns, may also decide any question pertinent thereto, and Congress is the sole judge of what is pertinent. And then the law, instead of providing that the main ques tion shall be put after debate, simply gives the power to the majority to direct that it shall be put. Is it not known to Senators that elec tions take place in all States for Legislatures and State officers on the same day that the election is held for President ; that both elec tions are held under the same law, by the same officers ? Now by giving authority to Congress, as is proposed by this bill, to decide upon the valid ity of an election held for electors, you open up the whole subject of State elections to the review of Congress. You give to this body and the other House the power to strike down the most essential rights of the States, and make the right to vote by ballot at a State election an empty privilege to be exercised sub ject to the control and censorship of Congress. Why, sir, under the second section of this bill, either House of Congress can bring the whole returns of a State election here or can send a committee to the State and investigate anything and everything they please in con nection with a local election. Yes, sir, and in defiance of State laws and constitutions, Congress can disregard the sanctity of the State ballot, and can force the citizen under oath to disclose how and for whom he voted. This is a power which never was intended to be lodged in either House of Congress. But it may be said that the bill only gives to the Congress the right to decide which is the true return, and that in the absence of some provision of law the same right will devolve upon the President of the Senate. I deny that this is so. The right to decide which is the true return in the case provided for by the bill, if it means anything, means a right of de termining whether or not the electors who made them were legally elected. How is this question to be settled ? Cer tainly not by looking at the face of the re turns. It can only be decided by investigat ing the primary election. The case contem plated by this law is not the case of double returns coming from the same body of electors that is a case which is not supposed but it is the case of two returns coming from two rival bodies of electors. In the first case the only question would be, who received the majority of the electoral body ? But in the other case, and the only case which the second section of this bill pro vides for, the question always must be which of the rival bodies whose returns are before us was legally elected ; and a mere statement of the proposition is enough to show to any mind what is involved in such an inquiry. The President of the Senate is invested with no such power by the Constitution. It is true that it was expected that such a thing as two rival powers in a State might exist, but the Constitution did not intend to leave the de cision of the claims of such powers to recog nition to the judgment of either House of Congress. The President of the Senate was assigned a simple ministerial duty, to count the electoral votes in the presence of the two Houses of Congress, and in view of the safe guards provided against usurpations and il legal governments in the States it was not thought possible for any returns to find their way here except such as came from the local authorities of the States having recognized constitutional relations with this Government. The United States had pledged all their pow er to the executives or Legislatures of the States in order to protect them against illegal COUNTING THE ELECTORAL VOTES. 573 authority. The simple recognition by Presi dent Tyler of the charter government in Ehode Island had the effect of ending the contest in that State between the rival powers. Suppose in that case the Dorr party had elected presi dential electors and they came here with cer tificates, would there have been any trouble in deciding whether or not they should be re ceived? The duty of the President of this body was the same at that time as it is now. Yet I imagine no one will say that he would have had any discretion to exercise in counting the vote of Rhode Island. Mr, President, this Government was found ed in a great part upon the virtue of the peo ple. It was not expected, sir, that our rulers would require penal statutes to compel them to discharge their duty. When Mr. Webster was reminded that the States by refusing to elect Senators could stop the operations of this Government, his reply was that it could not be done except by blackening the souls of State officers with perjury. If we have arrived at that point when we cannot trust our highest officers in the discharge of their plainest duties because of their party feelings and prejudices, we may rest assured that all the legal ingenuity of this body will not be able to devise laws that will preserve the principles of our Con stitution. The first section of this bill, as has been said by some of the Senators who have spoken, is comparatively harmless. It provides for the case of a single electoral certificate to which somebody m*ay make an objection, and thus devolve upon the two Houses of Congress the unpleasant duty of deciding the question. It is the second section that is so full of danger in my opinion. It attempts to provide a rem edy for the case of two electoral returns sent here from a State. Now I submit to the Senate whether it would not be better to try and prevent two returns from coming here than to undertake to consti tute a tribunal to decide between them after they are received. We know that it was never contemplated that more than one electoral return would come from a State. In the nature of things there can be but one legal return. It never was intended that the President of the Senate should receive more than a single certificate of the electoral vote of any State, and his duty under the Constitution is purely ministerial, to count the vote. It never was the purpose of the Constitution that any contest whatever should be carried on here respecting the vote of a State for President and Vice-President. The danger in such a case depends not so much upon the fact of two returns, as upon the body which un dertakes to decide between them. If the de cision of the question is remitted to the State in which the contest arises it is impossible that any trouble can flow from it. Senators have spoken with great force and emphasis of the propriety of following as near as possible the spirit of the Constitution in framing a law upon this delicate subject. Now does it not occur to every one that the great source of danger in this case lies in the jealousy between the State and Federal au thorities ? If a State should fail to vote or should vol untarily refuse to send here her electoral re turns, such contumacy could lead to no serious trouble. But if this body were to disregard the vote of a State, such action would excite at once a spirit of indignation if not resist ance, unless the very clearest grounds and rea sons could be given for such a proceeding. But, sir, the assumptions of this bill amount to the assertion on the part of each House of Congress of an arbitrary right of rejecting the electoral vote of a State. In the event of two returns coming here, that one shall Be re ceived which both Houses acting separately shall decide to be the legal return. This language is calculated, I think, to cre ate a misconception as to its true meaning. It may seem to imply a duty on the part of each House to canvass the vote and count in the re turn of the State. That is not the case. The sense of the section may be stated thus : When two returns are received by the President of the Senate from any State, the vote of such State shall not be counted unless each House of Congress acting separately shall so decide. I say that this amounts to an arbitrary right of rejection on the part of the two Houses of Congress. There is no cause stated in the bill which must be found to exist before the State is dis franchised. There is no mode of trial pointed out which shall precede the judgment of the House upon this momentous issue. No pro vision is made for securing to the State inter ested an opportunity to be heard before a judgment is rendered against her. The Senate or the House may resolve to do this business in secret and exclude the world from all knowledge of the grounds of their decision. The Constitution contemplates that the counting of the electoral vote and all decisions affecting it shall be made under circumstances which place it beyond the power of either House of Congress to withdraw their proceed ings from the public gaze. We know that when they meet together in the Hall of the House of Representatives to witness the count ing of the electoral vote they are beyond the operation of those rules and principles which were intended to control them in their legisla tive character. The two Houses can do no legislative business together, and the whole legislative power of the Union is vested in them in their separate character as Senate and House of Representatives. As I said awhile ago, it is insisted that the power of decision proposed to be given by this % bill is the same that may now be exercised by the President of the Senate in the emergency 574 PROPOSED LEGISLATION AS TO THE MODE OF stated; that this right flows as an incident from the duty devolved upon that officer to count the votes. This proposition is to me very illogical, for, if the President of the Sen ate has a right under the Constitution to de cide all questions incident to the counting of the votes, how can Congress take it from him and vest it in another body ? Upon the other hand, if no power of rejection is vested in the President of the Senate by the Constitution, such as this bill gives to the two Houses, on what principle of constitutional law can it be claimed that an omission in the Constitution to vest this power in any body or officer can furnish authority for the two Houses of Con gress to confer it upon themselves ? The Constitution has provided the mode and manner of returning and counting the electoral votes. It took jurisdiction of the whole sub ject.* Its sense and meaning are to be collect ed as well from what it has omitted as from what it contains. When the great case of Gibbon rs. Ogden was before the Supreme Court of the United States, Chief Justice Marshall, for a time, was very greatly embarrassed in his judgment by the powerful arguments that were made at the bar. Mr. Emmetfc, one of the distinguished coun sel, maintained that, while the Constitution vested Congress with the power to regulate commerce, so long as Congress did not exercise the whole power, it was competent for the States to legislate in respect to any branch of the subject not provided for by some positive legislation of the General Government. Mr. Webster replied (and this was the argu ment that impressed itself most upon the mind of the great judge) that, while there were some powers in the Constitution that were not in their nature exclusive, and were not inconsis tent altogether with legislation on the part of the States, still the commercial power was ex clusive, and when this was conceded it was possible that Congress intended, by omitting to legislate touching a particular subject, to exercise the very power of regulation which was conferred upon Congress by the Constitu tion. Now, sir, there are some parts of the Con stitution to which this argument can fairly be applied, when the question is whether a par ticular power is vested in Congress by the Constitution. I know that Congress is in vested with the power to pass all laws which may be necessary and proper for carrying out the powers vested in the Government or any officer or department thereof. The authority proposed to be given to the Senate and House of Representatives by this bill cannot surely be derived from any of the express powers of the Constitution. There is not a word said in the article which contains the delegated powers on this subject of count ing the electoral votes. All that the Constituj tion says in regard to the electoral vote is to be found embodied in the second article. That article provides the mode and manner of re turning and counting that vote. If it was in tended that Congress should exercise author ity over this subject by general legislation, why is it that the Constitution, instead of giv ing as in other cases a general power to Con gress, has anticipated such legislation by s lengthy provision specifying particularly the manner in which the voice of the electors shall be ascertained? It was not the inten tion of the Constitution to leave to Congress the power to determine how the President and Vice-President should be elected. This is clearly indicated by the express words of the first section of the second article. After vest ing the executive authority in these officers, it provides that they shall be elected as follows : Each State shall appoint, in such manner as tlu Legislature thereof may direct, a number of electors equal to the whole number of Senators and Repre sentatives to which the State may be entitled in the Congress ; but no Senator or Representative, or per son holding an office of trust or profit under the United States, shall be appointed an elector. After having stated in detail how the elec tion shall be held and the returns made, the very same section specifies the part which Congress may take in this important business, It says : The Congress may determine the time of choos ing the electors, and the day on which they shal give their votes ; which day shall he the same throughout the United States. If the framers of the Constitution had sup posed that Congress, und5r the general powei to pass all laws necessary and proper to exe cute the powers of the Union, could deter mine the time of choosing the electors and the day on which they should vote, they were certainly at fault for having encumbered the Constitution with this unnecessary provision. This clause shows that they weighed this subject with great care, and that they thought it necessary not to leave to Congress any im plied power over the election of President. Now, sir, the power to decide whether the votes of two or ten States shall or shall not be counted is a far more important and deli cate power than that given to Congress in express terms to fix the time of choosing the electors. And am I not warranted in saying that, if the Constitution intended that Con gress should have any more extended power than is conferred by this clause, it would have said so in plain language ? The right of Congress to exercise implied powers cannot be doubted. But it cannot be denied that, in exercising implied powers, we are limited by the purposes for which they were granted for carrying into execution the expressly delegated authority of the Constitu tion. We may pass laws which are necessary and proper for carrying into execution the forego ing powers and all other powers vested by the Constitution in the Government of the United COUNTING THE ELECTORAL VOTES. 575 States, or any officer or department thereof. This is the language of the Constitution. "We have seen that all the power vested by the Constitution over the election of President is to be found in the articles of the Constitution which I have cited. This limits the authority of the two Houses over such election to the right of being present at the counting of the votes, and to fix the time of choosing electors and the places where they shall vote. Can we derive the authority to decide in the last resort between two electoral returns from a State from the power conferred upon us to witness the counting of the votes? But, sir, I am free to admit that the evils ap prehended by this bill and the several amend ments proposed call for some remedy. And while I am well satisfied that we have no au thority to give to either House of Congress, or to any other body or tribunal, the power to determine whether or not the electoral vote of a State shall be counted, I still believe that we have authority under the Constitution to so guard the rights of the lawful governments in the States as to render the difficulty which must flow from two returns impossible. Now, sir, the guarantee clause in the Con stitution was intended, first, to protect each State against invasion; secondly, against a usurpation of its government by preventing the overthrow of a republican form of govern ment; and, thirdly, the protection of their governments against domestic violence. The guarantees against invasion and to secure a republican form of government were intended for the benefit of the people of each State, in dependent entirely of their State organizations. It was apprehended that the ambition of their local rulers, yielding to the influence or seduc tions of foreign enemies, might, as in the an cient confederacies, induce them to place the people under a foreign yoke, and subvert their local governments. Hence the right to in terfere in case of invasion or to enforce the guarantee of a republican form of government is not made to depend upon the application of either the Legislature or the executive of the State ; but the guarantee against domestic vio lence, which was intended to protect the local government, can only be made effectual when application is made in due form by the organs of such government the Legislature or the ex ecutive. The object of the last guarantee was to se cure to each State a single lawful government, and the whole power of the Union is pledged to secure that end. I am sure that I need not argue here that so long as there exists in a State but one legal government, with fixed re lations toward this Government, such a diffi culty as that provided for by this bill cannot arise. Congress, as the representative of the sover eignty and power of the United States, is charged with the high duty of carrying out these guarantees. It is beyond doubt its duty to secure the rightful government of each State against such violence as may prevent its author ities fulfilling their duties toward the United States by electing Senators and electors. When there are two legislatures and two governors, Congress must decide which of them is legal. This is what Chief Justice Taney called "political recognition." And when this is done, the acts and proceedings of the au thorities so recognized, in the language of the Supreme Court, bind all the departments and the officers of this Government. The Supreme Court in the case of Luther vs. Borden decided that it was competent for Con gress to designate a court and give to it power to decide when the exigency had arisen when the power of the United States should be inter posed to protect the lawful government of a State. Why may not such a tribunal be desig nated now ; one which is placed by the char acter of its judges above all suspicion of party bias or prejudice, and to which the whole country can look up with confidence when dif ficulties come upon us ? If such a tribunal can be designated, or if Congress itself will exer cise with fairness and justness this high power conferred upon it by the Constitution, you need have no fear, sir, that two electoral returns from a single State will ever find their way here. It has been argued by Senators on this floor since this debate began that this is a judicial function ; that the duty proposed to be given to the Senate and the House is judicial in its character. Some say that it is ministerial. The Senator from Indiana [Mr. MOSTON] says it is judicial. I have but this to say, in con cluding my remarks, that if this be a judicial duty, I want Senators to answer me where this body gets power to delegate a judicial function to either House of Congress. The Constitution provides that all judicial power " shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish." All legislative power by the same instrument is vested in the Senate and in the House of Representatives; and all executive power is vested in the President. If this be, as some claim it is, a judicial duty, I ask, Where is the power to give it to either House of Congress? Mr. MERRIMON. Does not the Senate very often exercise judicial functions ? Mr. JONES, of Florida. I do not think so. If it does, it is without the warrant of the Con stitution. No judicial function belongs to this body except in the single case where the Con stitution invests.it with such power. Mr. MERRIMON. The very question is whether the Constitution itself has not im posed the duty upon Congress to count the votes and decide all questions in connection with the count. Mr. JONES, of Florida. I admit that the case of deciding whether a person is entitled to a seat on this floor or in the other House is 576 PROPOSED LEGISLATION AS TO THE MODE OF an exception, because the Constitution has made it an exception, and we may, in deter mining upon the right of a Senator to a seat on this floor, exercise judicial functions ; but when it comes to the delegating of judicial power generally, I do not believe that this or the other House has any right to delegate it except to some court in accordance with the Constitution. The PRESIDING OFFICER (Mr. MITCHELL in the chair). The question is on the amend ment of the Senator from New Jersey [Mr. FBELINGHUYSEN] to the amendment of the Sen ator from Tennessee [Mr. COOPER]. Mr. EATON. Let the amendment be read. The PRESIDING- OFFICER. The amend ment will be reported. The CHIEF CLEEK. The first amendment was offered by Mr. COOPER, to add to the sec ond section these words: And if the two Houses do not agree as to which return .shall be counted, then that vote shall be count ed which the House of Representatives, voting by States in the manner provided by the Constitution when the election devolves upon the House, shall decide to be the true and valid return. The pending amendment of Mr. FEELING- HUYSEN is to strike out all after the word "agree," in the first line of that amendment, and insert: The difference shall be immediately referred to the Chief Justice of the Supreme Court, the presiding officer of the Senate, and the Speaker of the House, whose decision shall be final. If the Chief Justice is absent or unable to attend, the senior associate justice of the Supreme Court present in the capital or other place of meeting shall act in his place. The PRESIDING OFFICER. The pending amendment is the one offered by the Senator from New Jersey. Mr. STEVENSON. I ask for the yeas and nays on that amendment. The yeas and nays were ordered. Mr. JOHNSTON. I thought the amend ment of the Senator from New Jersey was the one pending before the Senate. The PRESIDING OFFICER. It is the pending amendment, being an amendment to the amendment offered by the Senator from Tennessee. Mr. RANDOLPH. I think the Senator, and perhaps the Senate, is under some misappre hension as to which amendment is pending. The question is not on the amendment offered by the Senator from New Jersey now on the floor. The question is on the amendment of my colleague. - Mr. JOHNSTON. I so understood. The question being taken by yeas and nays, resulted yeas 20, nays 29; as follows: YEAS Messrs. Allison, Anthony, Bruce, Burn- side, Cameron of Pennsylvania, Conkling, Dawes, Terry, Frelinghuysen,Hamlin, Howe, Logan. McMil lan, Morrill of Vermont, Morton, Paddock, Eobert- son, Sharon, West, and Windom 20. NAYS Messrs. Bayard, Bogy, Booth, Boutwell, Christiancy, Cooper, Davis, Eaton, Goldthwaite, Gordon, Ingalls, Johnston, Jones of Florida, Kelly, Kernan, Key. McCreery, McDonald, Maxey, Merri- mon, Mitchell, Norwood, Eandolph, Eansom, Sauls- bury, Stevenson, Thurman,Whyte, and Withers 29. ABSENT Messrs. Alcorn, Cameron of Wiscon sin, Caperton, Clayton, Cockrell, Conover, Cragin, Dennis, Dorsey, Edmunds, English, Hamilton, Har vey, Hitchcock, Jones of Nevada, Morrill of Maine, Oglesby, Patterson, Sargent, Sherman, Spencer, Wadleigh, Wallace, and Wright 24. So the amendment to the amendment was rejected. The PRESIDING OFFICER. The question now recurs on the amendment offered by the Senator from Virginia [Mr. JOHXSTOX] to tho amendment offered by the Senator from Ten nessee [Mr. COOPEE]. Mr. JOHNSTON. I ask for the yeas and nays on that amendment. The yeas and nays were ordered. Mr. RANDOLPH. I suggest that the amend ment had better be read. The PRESIDING OFFICER. The Clerk will report the amendment. The CHIEF CLEEK. The amendment offered by Mr. COOPEE is in the following words : And if the two Houses do not agree as to which return shall be counted, then that vote shall be counted which the House of Representatives, voting by States in the manner provided by the Constitu tion when the election devolves up on the House, shall decide to be the true and valid return. The amendment to the amendment, offered by Mr. JOHNSTON, is to strike out all after the word " and," in the first line of the amendment just read, and insert : If the Senate should vote for counting one certifi cate and the House of Representatives another, the joint meeting of the two Houses shall finally deter mine which shall be counted by States, the repre sentation from t each State, including the Senators therefrom, having one vote; but if the representa tion of any State shall be equally divided, its vote shall not be counted. Mr. MORTON. I voted for the amendment offered by the Senator from New Jersey [Mr. FEELIXGHTJTSEX] because, if we are to establish an umpire to decide between the two Houses, I believe his amendment much preferable to that offered by the Senator from Tennessee [Mr. COOPEE]. I believe, however, the propo sition to vote by States, whether the vote is to be cast entirely by the members of the House of Representatives, or cast by them in conjunc tion with the Senators, to be the most objec tionable plan that could be adopted. Mr. STEVENSON. I am aware, Mr. Presi dent, of the difficulty involved in the solution of this question, nor do I undervalue its mag nitude. I have given to its consideration the time and reflection which its importance de mands. I have sought light in the ways of our fathers in the early Congresses. I have lis tened with great interest to the very able dis cussion which the subject has evoked in the Senate ; and I frankly confess, sir, I have been unable to reach the conclusion that any of the legislation proposed by the pending amend ments is sanctioned by the Constitution. I concur in the able argument of the Sena- COUNTING THE ELECTORAL VOTES. 577 tor from Maryland [Mr. WHYTE]. I agree with him that the President of the Senate of the United States is the only agency selected by the framers of the Constitution and named in that instrument as invested with the sole pow er of receiving, opening, and counting the votes for President as returned by the elec toral colleges, and of declaring the result of that election. The Constitution declares that The President of the Senate shall, in the pres ence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed ; and if there be more than one who have such ma jority, and have an equal number of votes, then the House of Eepresentatives shall immediately choose by ballot one of them for President; and if no per son have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. Such I take to he the meaning, if not the very letter of the Constitution. Let us look to it as I have quoted it, words touching the duty of the Vice-President. The provision on this subject must be looked to as a whole, and so construed as to make all its parts harmo nize. The Constitution provides for the elec tion of President of the United States. It was not by a direct vote of the people, but by a number of electors equal to the whole number of Senators and Representatives to which the State may he entitled, but with this important exclusion that no Senator or Representative or person holding an office of trust or profit un der the United States shall be appointed an elector. Mark that, sir. The Constitution further requires that these electors shall meet in their respective States and vote by ballot for two persons one for President and the other for Vice-President. These electors are required to make a list of all the persons voted for and of the num ber of votes for each ; which list they shall sign and certify and transmit sealed to the seat of Government, directed to the President of the Senate. This was a singular and some what curious innovation upon popular suffrage. It was a well-guarded instrumentality of an electoral college through which the popular voice was to select the President and Vice- President instead of by a direct vote. It seems to have been especially guarded from congres sional interference in forbidding any Federal officer to become an elector. When these electors had been elected by the people and cast their votes in such manner as the Legis latures of the respective States might by law declare, then the results of the respective bal lots by these electors in each State for Presi dent and Vice-President were transmitted to 37 the seat of Government, directed to the Presi dent of the Senate. Then come the provisions of the Constitu tion, already quoted by me above, prescribing the duties of the President of the Senate touch ing these returns. No one doubts that the President of the Senate is to break the seals of the certificates from the electoral colleges as to the votes for President and Vice-Presi dent. No one doubts that this duty is to be done in the presence of the Senate and House of Representatives. " And the votes shall then be counted." That is, the tellers are to put down the whole number of votes cast by the electors for President and Vice-President as shown by these certificates opened by the President of the Senate, and the result is then announced hy him. This opening and count ing by the President of the Senate is to be done without interference and without restric tion, as I think, from any quarter. This is what I think is the true language and iutend- ment of the Constitution. The President of the Senate shall, in the presence of the two Houses, open all the cer tificates, and the votes shall then be counted. By whom? Clearly hy him to whom they were directed ; hy whom they were opened ; counted in the presence of the two Houses of Congress, as chosen witnesses selected by the Constitution to see that the certificates of the electors were all counted, and the results of such certificates to be recorded by the tellers ; and the result was then to be announced by the President of the Senate, whether any one had received a majority of the whole number of electors appointed for President and for Vice-President. If so, then the persons re ceiving such majority for President and such majority for Vice-President were to be de clared by the President of the Senate duly elected President and Vice-President of the United States. But it is insisted that because the Constitution does use the words " by the President of the Senate" after the words " shall then be counted," that the two Houses of Con gress, and not the President of the Senate, are- to count the votes for President and Vice- President. I cannot concur in this construction. I do- not believe that the two Houses of Congress are invested by the Constitution with any sucb power. I do not believe that the framers of that instrument ever intended that Congress should have any power or jurisdiction what ever over the certificates of the electoral col leges. Neither the spirit nor letter of the Con stitution clothes them with any such power. No provision seems to have been made for a contested election of President or Vice-Presi dent hy the framers of the Constitution. To- reach and provide for such a casus omissus the Constitution must be amended. Had our fathers provided for such a con tested election, I do not believe that they would have intrusted it to Congress. They 578 PROPOSED LEGISLATION AS TO THE MODE OF were careful to guard all members of Congress and all Federal officers from being eligible as electors. The very vice of the legislation proposed by these amendments is to give to Congress a power and control over the certificates of the electoral colleges that I wish to guard against. The President of the Senate was the chosen instrumentality provided in the Constitution to open and break the seals of these certificates, in the presence of the Senate and House of Representatives, count the votes evidenced by these certificates, and have them recorded by the tellers. Nobody doubts the power of the President to announce the result of the ballotings of the electoral colleges when ascertained by an examination of these certificates. And yet there is no express words in this clause of the Constitution which declares he must announce this result. It is but a direct legal implication of precedent words. So I insist that the words " shall then be counted," following the words enpowering the President of the Senate to break the seals and "open all the certificates," evidently mean that the counting shall be by him. "Why, Mr. President, the whole count ing amounts to nothing more or less than the enumerating of the action of the electors. It is merely ministerial. The President of the Senate cannot alter, suppress, modify, or change one iota of the results shown by these certificates from the electoral colleges. He merely ascertains the action of these electors and announces it. If no one has received a majority of all the electors appointed in the several States, then the House of Represen tatives is to elect the President, giving each State one vote. If two candidates have received an equal number of votes for President, and there is a tie, then Congress does not decide, but the House of Representatives is to choose one of them by ballot. All these amendments assume a power in Congress over the presidential election which I utterly deny is conferred by either the letter or spirit of that great charter of liberty. At least as I read it I beg Senators to pause and as w r e have gotten rid of that odious joint rule which threatened such danger to popular government, let us stand by the action of our fathers until some amendment to the Consti tution providing for a contested presidential election is proposed and adopted. I may be blindly in error in despite of my efforts to ob tain light, but I see nothing but mischief in these amendments. I see no warrant in the Constitution for their enactment. I voted against the amendment of the Sena tor from New Jersey [Mr. FEELINGHTJYSEN], not only because we, in my judgment, have no constitutional power to select an arbiter to decide a presidential election, but for reasons of obvious impropriety if the power existed. It -might -*o happen that the power of the Supreme Court might in some extreme case be invoked to settle judicially the title of an in cumbent elected by the people to the Presiden cy ; but, the certificates of the electoral col leges suppressed or their results not properly reported, I do not say that the Supreme Court are invested with such power. I see, however, that in the debate in 1857 on the counting of the electoral vote it was stated that the Su preme Court might be called on judicially to settle the title of a claimant under the popular vote to the Presidency. I can without any stretch of fancy imagine a case not very probable where the people had clearly elected a President of the United States and the certificates showed a clear ma jority of votes of the electors as having been cast for him if the President of the Senate should refuse in such case to announce the re sult of the vote of the electoral colleges, and in presence of the Senate and House of Repre sentatives attempted, for any cause whatever, grossly to violate his trust by fraudulently with holding the certificates with a view of defeat ing the popular voice, that there might be re lief afforded by the Supreme Court of the United States. I will not undertake to specify the mode. I will not say that the Supreme Court would possess such power. The very fact that such jurisdiction is barely possible is enough to defeat the amendment of the Senator from New Jersey. Mr. HOWE. I want to ask the Senator to what debate he alludes ? Mr. STEVENSON. I think it was the de bate in February, 1857, on the election of Bu chanan and Breckinridge, when the vote of Wisconsin was counted by the President of the Senate although Wisconsin had voted on a day different from that prescribed by the act of Congress throughout the United States for the presidential election. . My recollection in that discussion is that at least one Senator stated that the power of the judiciary might be invoked in a case of wrong to pass on the election of President by the peo ple in case of wrong or fraud. I do not re member that the statement was denied, al though it may have been. Mr. President, I deny that the power of Con gress to witness the counting of the votes con fers any power whatever upon that body to control "the election of President, to correct- any errors of the electors by exclusion, or to regulate a contested presidential contest. Still less can I consent to infer such a power from the clause relied on by the advocates of these amendments empowering the President of the Senate to open the certificates and count the votes in the presence of the Senate and House of Representatives. Let us stick to the precedents of the early and better days of our fathers. John Langdon was elected President of the Senate especially to open and count the votes for President and Vice-President. For fifty years we went along COUNTING THE ELECTORAL VOTES. under that practice, without mischief or bad results. Let us adhere to it. Let us not exer cise doubtful power. Mr. President, I will never believe, I cannot consent to believe, that any Vice-President or any President of the Senate will ever degrade himself, dishonor his country, and falsify his official vow by any improper tampering with returns and imposing on the people of the United States by fraudulently defeating the election of any one legally-elected President of the United States. If he did, he would prompt ly be impeached and hurled from office. Mr. MAXEY. I would ask the Senator from Kentucky this question : In view of the Blount case, suppose the President of the Senate should be a President pro tempore^ and there fore not liable to impeachment ? Mr. STEVENSON". I suppose if he was President pro tempore he would discharge all the duties of Vice-President. The language of the Constitution .is, the President of the Senate. Mr. MAXEY. But I ask if he would be liable to impeachment under that decision ? Mr. STEVENSON. I do not understand the Senator. Mr. MAXEY. In the Blount case it was de cided that a Senator is not liable to impeach ment. Suppose the President of the Senate is a President pro tempore; as a matter of course he is a Senator, and under that decision he would not be liable to the penalty. Mr. STEVENSON. I cannot undertake to prescribe punishment in every extreme possi ble case. If not liable to impeachment, he would be subject to punishment civilly and to popular degradation. What offenses of the President of the Senate are impeachable is a question which I decline to pass upon without due consideration ; but the Vice-President of the United States, who is usually the President of the Senate, is subject to impeachment, and he is the official to whom we look and to whom I have referred. If Congress possesses the power to legislate on the returns of a presi dential election, why may not Congress deter mine who has been elected President of the United States? Why may not Congress then exclude States on some alleged irregularity? Where, if this power be legislative, is it to end ? The Constitution makes the House of Repre sentatives, voting by States, the electors of President if no candidate has received in the electoral college a majority of all the electors appointed. But if Congress can count the votes of the electoral college ; count returns and ex clude certificates of electors under its constitu tional power then I have no faith in the per manency of our free institutions. Never have I heard before of the existence of such a power. I look back for fifty or sixty years and see how harmoniously and beautifully the action and construction claimed by me have worked. I am unwilling to change it. I will not antici pate danger. We must trust somebody. It occurs to me that the safes to pursue is to adhere to the pre7 for sixty years guided our fathers in the selec tion of Chief Magistrate. Let us guard the States from encroachments of arbitrary Federal power upon their suffrage. I am an old-school democrat ; and I shall vote with the Senator from Maryland [Mr. WHYTE], whose speech I listened to with so much interest and whose enunciations I so heartily indorse. Mr. THURMAN. I did not think I should trouble the Senate with another remark on this subject ; but the respect that I sincerely feel for the Senators from Maryland and Kentucky, who differ so widely from the opinion that I have expressed, compels me to say something more than I have already said. How it could come into the head of any man looking at the Constitution alone, and not look ing at any usage under the Constitution, to suppose that the power of counting the votes is conferred upon the President of the Senate is al most past my comprehension. It has often been said that the framers of the Constitution, and especially that most distinguished man in let ters, Gouverneur Morris, to whom the revision of the language of the Constitution was given, were masters of the English tongue ; and that the Constitution itself is the most remarkable instrument to be found in the world for the clearness and terseness of its provisions. Let us turn to this provision and see what it is, and see what it would have been if the framers of the Constitution had intended what my learned friends suppose. The language is : The President of the Senate shall, in the presence of the Senate and House of Eepresentatives, opsn all the certificates, and the votes shall then be counted. If it were the intention that the President of the Senate should count the votes, would it not have been plainly said : " The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the cer tificates and count the votes?" That would have been a briefer expression than is used. That would have been an expression free from all ambiguity. That would have been an ex pression iu good, plain Anglo-Saxon. That would have been an expression as clear as the intellect of Gouverneur Morris, the reviser of the language of the Constitution. But there is nothing of the sort. It is simply said : The President of the Senate shall, in the presence of the Senate and House of Eepresentatives, open all the certificates And then it is said and the votes shall then be counted. Who is there who can say that the Constitu tion declares in express terms who shall count the votes ? When it simply says, " and the votes shall then be counted," and says nothing more, who is there who can say that the Con stitution in express terms declares that the President of the Senate shall count the votes, or that it declares by whom the votes shall be 580 PROPOSED LEGISLATION AS TO THE MODE OF counted ? Manifestly there is no declaration on that subject. Manifestly it is not declared by whom the votes shall be counted. What is the consequence ? These votes are to be count ed, for they concern the election of the Chief Magistrate and the Yice-President of the Re public. The power to count them is a power conferred upon the Government, or some de partment or officer of the Republic. If, then, there is no declaration by whom they shall be counted, I ask any lawyer in the Senate is there any alternative but to say that the law-making power shall declare by whom they shall be counted ? I ask any lawyer to say if it does not come within the express words of the last clause of section 8 of article 1, defining the powers of the Congress To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Consti tution in the Government of the United States, or in any department or officer thereof? And, without that clause in the Constitu tion, does not every one know that of neces sity where a power is conferred upon a gov ernment or any department of a government by a written constitution and the mode of exer cising that power is not prescribed, that mode is to be prescribed by the law-making power ? Without that express provision in the Consti tution, how could it be doubted that the law- making power is to supply the mode of ascer taining the popular will ? But the Senator from Maryland seems to think that this might deprive a State of its vote for President. He seems to think that if the President of the Senate had the power, no State could be deprived of its vote. With great respect for him, how can that be ? Sup pose the President of the Senate has the whole power to decide that a given return, where there is but one return, is not a valid return, has not this man decided that that State shall be deprived of her vote ? Take the case of Wisconsin in 1857. If the President of the Senate alone had the power to decide that question, and he had decided it against Wis consin, would not Wisconsin have been de prived of her voice in the Presidential elec tion ? Take any other case that you can sup pose, and if you give this one man this power, may you not deprive a State by his fiat, and even when he is a candidate, too, of her voice in the presidential election ? Take the case of Louisiana at the last election when she had two returns sent here. If you give the power to decide that question to one man, the Pres ident of the Senate, may he not decide it wrongly and deprive the people of their just choice ; or may he not do what we did, reject both returns and disfranchise the State ? How, then, do you get rid of the difficulty by conferring the power upon one man ? How does that secure to the people their voice in the choice of their Chief Magistrate ? No, sir ; give this power to whom you please, to one man or a thousand, it may be that the people of a State will unjustly lose their right. You cannot help that, because there is no human tribunal that is free from imperfection. Until men shall be gods, pure and omniscient, there will be error in decision, and you cannot avoid it. But, sir, this is not all in this matter Mr. MORTON. Will the Senator allow me to call his attention to the fact that if this mat ter is to be left entirely to the President of the Senate, it includes the power to disfranchise a State where there is only one return because of an imperfection in the return ? He may say that the return does not show that the electors voted by ballot, and in his judgment that should reject the return from a State ; but that return would not be rejected under this bill unless both Houses concurred in saying that it should be rejected ; or, where there were two returns, he might decide which was the proper one. Mr. THURMAN. But, Mr. President, there is something more, for this goes deeper. We have no Yice-President of the United States now ; but we have a President of the Senate. This Senate by a large majority has declared that a majority on this floor can displace that President pro tempore whenever it pleases. It may change him from day to day. Now, sup pose the presidential election was so close that everything depended upon the rejection of the vote of a single State, it may be the smallest in the Republic. Sir, what have you done ? You have placed it in the power of a bare majority of the Senate to displace the President of the Senate if they fear that his virtue or his knowl edge will decide that qestion against their party wishes. I make no accusation against the ma jority of the Senate or against any Senator. I do not believe that all men in public life are villains, and I never did believe ; but I repeat what 1 said the other day, that the greatest prayer our race has inherited is "lead us not into temptation." Besides, sir, what induce ments would you have to change your presid ing officer with a view to a count of the votes at the presidential election ? But again, it is said that the judiciary can interfere. How can the judiciary interfere? It is said that if the President of the Senate does not count the right vote, a mandamus may issue to him. Well, Mr. President, I am an old lawyer, and it is a long time since I began the practice of the law ; and the idea that the President of the Senate, exercising a power quasi- judicial, as he must do if he is to decide between two returns, and which it is simply idle to call ministerial, can be con trolled in the exercise of that <?w<m -judicial power, or that power not <^m -judicial, but really judicial in its nature, by a mandamus of any court, is to me the most astonishing propo sition. And how would it work in practice, pray? Certainly the Supreme Court of the United States has no original jurisdiction to issue any such mandamus, unless, indeed, it ia COUNTING THE ELECTORAL VOTES. 581 given under that clause conferring original jurisdiction upon it, which says that it shall have original jurisdiction of controversies in which a State is a party. Now assume for a moment that a State could be a party asking for a mandamus to compel what ? To com pel the President of the Senate to count the vote of the State of Louisiana for A B. What is the answer to that mandamus ? The Presi dent of the Senate answers, " I have counted it for C D ; the thing is done ; my function has ceased ; I am functus officio in the busi ness." That is the first answer to it. But suppose that the ruling power in that State coincides with the President of the Senate in the count that he has made ; suppose, for in stance, that Kellogg is governor de facto of Louisiana and the President of the Senate counts Louisiana for the republican candidate, although a majority of the votes of Louisiana have been given for the democratic candidate, how are you going to get your mandamus; how are you going to get the State of Louisi ana to apply for a mandamus ? And, sir, when is that question to be de cided ? Certainly the Constitution requires the count of the votes of the presidential elec tors to be concluded without delay ; and the President is inaugurated, and how then are you to proceed ? Are you to proceed through one year, two years, three years, in some cir cuit court of the United States or in the Su preme Court of the United States, in order to find whether the President of the Senate cor rectly counted the vote, and then to have a decree of the court that he did not correctly count it, and then when you have got that de cree, how are you going to turn the incumbent out ? Suppose that the incumbent has a ma jority of both Houses on the side of his party, of what value would be your decision of the Supreme Court ? Sir, does not every one see that this gets us into inextricable difficulty ? The man who is declared to be elected must be inaugurated. You propose, then, a litigation after he is in augurated, for there cannot be an interregnum, and that litigation may last for years, and when that litigation is determined and the de cision is against the man who is inaugurated, where is the power of the Supreme Court to enforce it ? Where is its Army ? Where is its treasure ? How can it enforce it, and es pecially how can it enforce it if Congress is of the same political party with the President in possession ? Is it possible that our forefathers, those whom we have been accustomed to ven erate as men the wisest in the history of na tions, as the fountain of government, as men before whom the Solons and Lycurguses of the world must hide their diminished heads is it possible that they have framed such a govern ment ? I do not believe it. I believe that the Constitution is perfectly framed. I believe that our forefathers did not foresee the con tingency that has happened. I believe, how ever, that the Constitution is a much more perfect instrument than it is supposed, for, though they did not foresee the particular case which has since arisen, it does so happen that you can scarcely find a case that the lan guage of the Constitution does not cover. That is the wonderful merit of our Constitu tion. It was well expressed by Chief Justice Marshall, when, in answer to an argument that the framers of the Constitution never contemplated a particular case, he said, " It is not sufficient to negative a power that the framers of the Constitution did not contem plate that particular power or the exercise of that particular power; the question is, does the language of the Constitution cover the power ? " Now, I say the language of the Constitution covers the power in this case ; it makes it a legislative power to decide by whom and in what mode these votes shall be counted. Now, sir, I want to stick to the Constitution as closely as I can. Inasmuch as the Senate and House of Representatives are called upon to attend the counting of these votes, I think for that and for other reasons that it was in tended that this matter should be decided by the members of both Houses. I find that first in the fact that they are required to attend ; I find it again in the fact that the Constitution requires that " the votes shall then be count ed ; " it admits of no delay. I find it in the further fact that if there is no choice by the people " the House of Representatives shall immediately proceed" to the choice. I find in all the facts an utter opposition to the idea of the delay incident to judicial proceedings, or any other delay. I think therefore that it was contemplated that this matter should be decided by the Congress or the members of Congress, and therefore I have been in favor and am in favor yet of so deciding it, either by the adoption of the proposition of my friend from Virginia [Mr. JOHNSTON], or by that of my friend from New Jersey [Mr. RANDOLPH], Either by treating the two Houses as a joint convention, and counting the vote of each member for one as in a joint convention, or by the mode proposed by the Senator from Vir ginia. I am in favour of deciding this vexed question. I know very well that the decision can only be for a time. I feel as strongly as any Sena tor on this floor can feel, that the Constitution needs amendment in regard to the choice of President. I feel that the idea of electors of President entertained by our forefathers has in practice wholly failed. Their idea was that these electors were to make the choice of Pres ident according to their own good judgment and will. That idea has wholly failed. I believe that that cumbrous machinery ought to be dispensed with. I believe that it can be dispensed with, and yet preserve to the smaller States their relative weight in the presidential election which they now enjoy, and I believe it ought to be done. I believe that some mode, 582 PROPOSED LEGISLATION AS TO THE MODE OF clear and specific, free from doubt, ought to be constitutionally adopted for the counting and verification of the votes for President and Vice-President. But, sir, we cannot make a Constitution in a day ; we cannot amend the Constitution in a day. The necessity for action is a present necessity ; it is upon us now, and the question is, shall we exercise that power which the Constitution does confer upon us, to provide for ascertaining the voice of the people according to the Constitution as it is ? These considerations, and the firm belief that there is danger unless we settle this mat ter, induce me to hope that this Congress will adopt some measure which shall solve this problem. Certainly it is a difficult question ; but that is no reason why we should not at tempt to solve it. One word more, sir, and 1 have done. The Senator from Maryland read a passage from Kent. With great deference to him it seems to me that Kent s opinion is directly opposed to his argument. What is it that Kent says ? The Constitution does not expressly declare "by whom the votes are to be counted and the result de clared. Every one must admit that. Then Kent goes on to say : In the case of questionable votes, and a closely contested election, this power may be all important ; and I presume It is a mere presumption in the absence of all legislative provision on the sub ject, that the President of the Senate counts the votes and determines the result, and that the two Houses are present only as spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors. " In the absence of legislative provision on the subject," which implies that if there is legislative provision on the subject the Pres ident of the Senate does not then count the vote and determine the result. That is what he means. Mr. WHYTE. May I ask the S.enator from Ohio whether Chancellor Kent refers to legis lation in regard to organic or statute law ? Mr. THURMAK Statute law plainly. Mr. WHYTE. I do not think so. Mr. THURMAK My Triend, I think, wiU see that it must be so when he considers for a moment. If the Constitution gives to the President of the Senate the right to count the votes, no legislation can take it away from him ; that is clear. Why then should Kent talk of the absence of legislative provision? Kent was a man remarkable for the clearness of his diction. His commentaries have won the hearts of all the law students in the coun try, not so much for their great grasp and breadth as for the wonderful clearness that marks them. Would he have talked in ambig uous language on this subject? If the Consti tution had said that the President of the Sen ate was authorized to count the votes, if the Constitution had conferred on him alone the authority to count them, would not Kent have said so ? On the contrary, he says exactly the opposite. He says : The Constitution does not expressly declare by whom the. votes are to be counted and the result de clared. What, then, was in his mind ? That which is in the mind of a lawyer, and a great lawyer, too, that the Constitution not having declared by whom the votes should be counted and the result declared, it necessarily followed that the law-making power had authority to act ; and therefore he says that, in the absence of legis lation, he presumes the President of the Senate declares the result, clearly recognizing that the law-making power had control over the sub ject. Mr. President, I beg pardon for having occu pied the time of the Senate again on this sub ject. I believe I promised the other day that I should say no more about it. I once more affirm, and I affirm it in all sincerity, that if it were not for the real respect I entertain for the legal and statesman-like opinions of my friends from Maryland and Kentucky, I should not have s;wl one word to-day. , Mr. STEVENSON. I desire to add a soli tary additional word. I had no purpose what ever of entering into the debate. I was not prepared to do so. I rose briefly to state be fore the vote was taken the ground upon which my opposition to these amendment? would rest. The able arguments in their favor by political friends with whom I usually agree seemed to demand that much from me. The Senator from Ohio [Mr. THUEMAN], for whose opinions I have the highest possible respect, and in whose judicial construction of any legal or constitutional question I have the greatest confidence, has replied to my few desultory observations at some length and with some animation. He seems to think it profoundly strange that any human intellect should seri ously persuade itself that the President of the United States was the constitutional instru mentality through which the votes of the elec toral colleges in the several States for President and Vice-President were to be counted. I am somewhat surprised perhaps as much so as my friend from Ohio at this broad ex pression of wonder on his part for opposing views on any part of the Federal Constitution. It is an instrument whose opposite constructions have arrayed in fierce opposition parties and men from the moment it was ratified by the States. The fathers who framed it have dif fered widely and warmly as to the true con struction of many of its provisions. That an tagonism of construction still continues. It seems to me somewhat strange that when the views entertained by the Senator from Mary land and myself of the precise clause of the Constitution which we are discussing was sus tained by the usage and practice of our fathers for fifty years, the Senator from Ohio ought not to wonder that we still adhere to them. I COUNTING THE ELECTOEAL VOTES. 583 think the language of the Constitution not less than the early precedents fully sustain us. John Langdon was one who framed and signed the Constitution of the United States. He was, as the record shows, elected President of the Senate of the United States in the First Congress for the sole purpose of counting the votes of the electoral colleges in the States for President and Vice-President. He did open and count them ; a power which the Senator from Ohio [Mr. THURMAN] wonders that any human intellect should conceive was conferred by the Constitution on the President of the Senate. The message sent from the Senate of the United States to the House of Representa tives by Mr. Ellsworth was that John Langdon had been elected President for the express purpose of opening the certificates and count ing the votes of the electors of the several States in the choice of President and Vice- President of the United States. Oliver Ells worth, who bore the message, and John Lang don, whom the Senate made its President, and who did open and count the votes for Presi dent and Vice-President in the First Congress of the United States, were both members of the convention which framed the Constitution, and they took the same view of this question entertained by the Senator from Maryland and myself ; and yet in their time no wonder was expressed in any quarter as to their construc tion of this clause of the Constitution. So far from it, that construction which clothed the President of the Senate with the sole power of opening and counting the certificates of the electoral colleges of the vote for President and Vice-President of the United States was sanc tioned by the uniform and unbroken usage of Congress for fifty years continuously from the beginning of the Government. The claim of power by Congress over these certificates of the electoral colleges certifying the votes for President and Vice-President, and which is asserted in the pending bill, was, so far as history and precedent go, absolutely unknown to the framers of the Constitution and to the members of the early Congresses. This is a most astounding fact if any such power existed. If there is any fact patent in the Constitution it is that Congress was ex pressly excluded by the letter and spirit of the Constitution from any power to interfere with or control the certificates of the electors certi fying the votes for President and Vice-President of the United States. The Senate and House of Representatives were the chosen witnesses of the Constitution to see that the President of the Senate received, opened, and counted all the certificates of the electoral colleges ; that the tellers duly recorded the same, and that the President then faithfully announced the result of the election as evidenced by these certificates of the electors. AVhat is there, then, to astound or surprise the Senator from Ohio that any Senator now on this floor should feel disposed to follow the framers of the Constitution in the construction and prac tice under this clause of the Constitution? The wonder, it seems to me, should be how so acute a lawyer and orthodox a constructionist as the Senator from Ohio [Mr. THTJKMAN] un doubtedly is should abandon the old landmarks of the fathers, ignore their usage of construc tion of the Constitution for one doubtful and dangerous. The Constitution declares that The President of the Senate shall, in the presence of the Senate and House of Representatives In their presence do what? open all the certificates, and the vote shall then be counted. Mr. THURMAN. Allow me to interrupt my friend. Mr. STEVENSON. Certainly. Mr. THURMAN. I ought to have men tioned perhaps that the reason of those pro ceedings in the First Congress is very plain. The Constitution provides that the Vice-Presi dent shall be the President of the Senate. Until it was declared who was elected Vice- President there was no such presiding officer of the Senate as the Constitution provided for ; and it was necessary to have somebody for the simple and sole function of having the votes counted, and that Senate could do not one single act except count those votes until it had a Vice-President to preside over it. Hence in order to show that the Senate was not to do any legislative act or any other act whatsoever, and in accordance with the recommendation of the convention which was read by the Senator from Maryland, John Langdon was selected President of the Senate for the sole purpose of opening and counting the votes for President and Vice-President. The language is not so clear at all that it would purport that he should count them, though I grant that he did it. But the reason why that limitation was put on the resolution, that it was for that sole purpose, was simply to disclaim any power in that Senate to do any act until it had the presiding officer provided for by the Constitution. Mr. STEVENSON. Why, Mr. President, the reason given by the Senator from Ohio is no reply to the argument which I present. Why? Because the language of the Consti tution is, the President of the Senate shall open, &o. ; and the office of President of the Senate is an office created by the Constitution as much as the office of Vice-President. It was the President of the Senate whether Vice-President or President pro tempore who is empowered and designated to open and count the votes. He did it in a ministerial capacity. He had no discretion. He was the instrument of the Constitution of making known, after opening and ascertaining from the certificates of the electoral colleges in the several States, the result of the ballots of their electors for President and Vice-President. He had no power to exclude, alter, or with hold one solitary certificate sent to him by the 584 PROPOSED LEGISLATION AS TO THE MODE OF electoral colleges. Tho Senate and House of Representatives were to witness the discharge of this constitutional duty by the President of the Senate. The tellers were to record the votes for President and Yice-President evi denced by these certificates, and the President was then to announce the result. If the cer tificates showed that a majority of all the electors of all the States had voted for one man as President, he was then to be declared elected by the President. If not, then the House was to elect. All the dangers of double returns, &c., that the Senator from Ohio speaks of now existed then ; and yet the wise and patriotic men who framed the Constitution, and who were then members of the Senate of the United States, elected John Langdon President of the Senate to open and count these certificates of the electoral colleges. The Senator from Ohio admits that he discharged that duty of open ing, counting, and proclaiming the result. And that usage continued for years and years. The tellers were and are mere clerks, as I think, to record the result of the votes of the electors for President and Yice-President, as opened, counted, and announced by the President of the Senate. That result, the fact disclosed by those certificates, untouched, uninterfered with, was beyond the power of either House of Congress, or of both combined. Our fathers intended to guard the votes of electors from all congressional interference of any and every sort. They were wise and far-seeing men. They made no provision in the Constitution for contested presidential elections. I was amazed to hear the Senator from Ohio [Mr. THUKMAIST] say that this power of Congress to count the votes, and regulate the same by law, was a legislative power. I deny it. Congress has no legislative power whatever over the re sult of the electoral colleges in the States in electing President and Yice-President. The Senator from Ohio attempted to deduce the power from that clause of the Constitu tion conferring on Congress all authority, leg islative authority, to effectuate certain granted powers. That clause has no application what ever to the subject of the election of President and Yice-President by the people of the States. Congress cannot interfere with that subject. If there is a tie in the electoral college or no candidate has received a majority of all the electors, then the House of Representatives is to elect, each State having one vote. I rejoice that Congress has no- legislative power in counting the votes of the electors for Presi dent and Yice-President. Whenever such a power is usurped and exercised then our con stitutional liberty becomes extinct. Neither House of Congress can reject the vote of a State, singly or combined. The only constitu tional function assigned to Congress is to wit ness the opening of the votes of electors as certified to the President of the Senate and counted by him. Their duty is to witness and see that every return is opened and counted and tha result as shown by the certificates of the electoral colleges is correctly reported and correctly announced. Had Congress the power to count and regu late these returns, then Congress can regulate the election of President and Yice-President. If Congress can count the vote of one State and exclude another within the discretion of a majority, who shall measure the danger in high party times, or in times of great venality and corruption, of the grant and exercise of such a power ? When I look to the language of the Consti tution, or to the contemporaneous action of the early Congresses, when the President of the Senate alone exercised this power of open ing and counting the votes, I am surprised, I confess, to find that this bill should, without some amendment to the Constitution, find among its supporters my distinguished friend from Ohio. I have listened with attention and interest to all his speeches, hoping that he would show the grant of constitutional power which sanctions this amendment. I confess I have neither seen nor heard it. The language and precedents of the early Congresses are all against the existence or the exercise of so dan gerous a power. Is that circumstance entitled to no weight? Are we to overturn all the rules of construc tion which look to the opinions and con temporaneous action of those who framed the Constitution and put the Government in operation as evidence of its true intendment and meaning? Is action of Congresses for fifty years in allowing the President of the Senate to count the votes to be utterly disre garded ? What says Chancellor Kent on this subject? I beg the attention of the Senator from Ohio to a word or two from him. He says " that the two Houses are present" to count the votes? No, sir. The two Houses are present for another purpose. What is it ? " As spec tators, to witness the fairness and accuracy of the transaction." What transaction ? Open ing the seals ; counting the vote of the electors in every State as certified by their colleges to the President of the Senate, as the sole in strumentality which the Constitution desig nates for the discharge of that duty. If this power be possessed by the two Houses of Con gress as a legislative power, it must follow that the power to correct and to revise, to set aside and to add to, can likewise be exercised by them . Yield the legislative power to Congress, as claimed in the pending bill and amendments, and all the rest follow. Our fathers would not allow a Federal officer or a member of Congress to be an elector ; but their children propose to allow Congress the power to count and control the returns of the electoral colleges. Mr. WHYTE. Will the Senator from Ken tucky allow me to make a suggestion ? COUNTING THE ELECTORAL VOTES. 585 Mr. STEVENSON. With the greatest pleas ure. Mr. WIIYTE. It is a remarkable fact that in the convention the proposition originally agreed upon was that the President of the Senate should in the presence of the Senate open the certificates, and the votes should then and there be counted. That was the original report ; but on motion the House of Representatives were included as spectators ; and the words " in the presence of the Senate and House of Representatives " were put in after the word " counted." In the redraught of the Constitution those words are before the word " counted," but by the vote of the convention it was provided that the certifi cates should be opened and counted in the presence of the Senate and House of Repre sentatives. Mr. STEVENSON. The fact stated greatly fortifies our construction which so surprises the Senator from Ohio. I thank my friend from Maryland for his pertinent suggestion. It is another fact going to show that the framers of the Constitution looked to the President of the Senate as constitutionally empowered not only to open but to count the votes certified by the electors to him. Chancellor Kent tells us the House and Senate were to be specta tors of the accuracy and fidelity with which he discharged that duty, and further, that the tellers were to record what the certificates evidenced had been done by the electoral col leges in voting for President and Vice-Presi dent. The President of the Senate opened and read the returns. The tellers recorded the votes. It is with extreme deference that I find my self differing on a question of constitutional construction with lawyers so eminent as the Senator from Ohio and others who coincide with him. But, tested by the language of the Constitution or the usages under it, I am con strained to believe the bill wholly unconstitu tional. I agree with my friend from Ohio that hu man nature is not perfect. There may be dangers and difficulties that await us whatever construction shall prevail. I can see more from my standpoint as likely to flow from his construction than from mine. Nothing so appalls me as to hear the honorable Senator from Ohio say that Congress possesses the constitutional power to count and regulate the election of President and Vice-President ; to prescribe when the vote of a State may be counted and when it may be rejected. The possession of such power is the tocsin of dan ger to free elections. Mr. THURMAN. I beg my friend to allow me to ask him how he will avoid that by al lowing one man to analyze the vote ? Mr. STEVENSON. I reply that if he is the sole instrumentality named in the Constitution to receive, open, and count the certificates of the electoral colleges showing the votes for President and Vice-President in the States and certified to him, we have no power to dis regard that mandate of the Constitution. It has operated well hi the past ; let us adhere to it. If we desire a change, let us amend the Constitution. If a Vice-President ever sought to degrade himself by improper conduct in withholding returns or counting, false ones, we would soon reach him. The Senator says that he never heard of the Supreme Court of the United States in exercise of its original jurisdiction issuing a mandamus. Mr. THURMAN. No, I did not say that. Mr. STEVENSON. I will state directly what the Senator did say. He said he had never heard of a case where the Supreme Court granted a mandamus in the exercise of its original jurisdiction. The Senator said he would like to hear of it. I will cite a memo rable case to the Senator of the exercise of such original jurisdiction by the Supreme Court against a governor of a sovereign State, and that governor a Governor of Ohio ! I refer to the case of the State of Kentucky *. Dennison, reported in one of the Howard Supreme Court Reports. The governor stands to the State in a position somewhat analogous to that occupied by the President to the United States. When William Dennison, the Governor of Ohio, some years ago refused to deliver up to the Governor of Kentucky a fugitive from justice escaping from the latter State, on a requisition made by the Governor of Kentucky, which, by the man date of the Constitution of the United States he was directed to do, the State of Kentucky applied to the Supreme Court of the United States an exercise of its original jurisdiction for a mandamus against him to compel him to do his duty. The jurisdiction to issue the writ by the Supreme Court of the United States was denied by the attorney-general of Ohio, bnt the plea was overruled. The court held that they possessed the power to issue the writ against Dennison as governor of the State of Ohio, who they held was in default in not surrendering the fugitive to the Governor of Kentucky. They decided, however, that they had no power to coerce a State or its gov ernor. I will not say that the Supreme Court of the United States would or would not undertake to require the performance of a clear minis terial duty by an officer whom the Constitu tion of the United States has named and des ignated for receiving, opening, and counting the votes of the electoral colleges for President and Vice-President. I wili never allow my self to believe that the President of the Senate elected of any political party will be so far recreant to his duty as to require the exercise of such a judicial power. I will never believe it. If such an instance should ever occur, I have no doubt a remedy will be found. There fore I say " sufficient unto the day is the evil thereof." No such instance has occurred in the past. None such is likely to occur in the 586 PROPOSED LEGISLATION AS TO THE MODE OF future. If it does, I neither assert nor deny the power of the judiciary to afford relief by a proper correction. The danger of abuse is more likely to occur by allowing Congress to interfere with the returns of the electors of the States. We have had a dark experience of what Congress has done and may do again with some of the States. Let us beware ! My friend from Ohio need not be amazed that any human intellect should undertake to construe the Constitution as the Senator from Maryland and myself propose to do. Abler and more distinguished Senators than either of us have reached the same conclusion. Jacob Collamer in his time was regarded as a pretty good lawyer ; he was primus inter primos be fore any judicial forum, and as a leading and prominent Senator from Vermont for very many years in this Chamber he was regarded primus inter pares. He construed this clause, in 1857, as I do. He thought the President of the Senate could alone count the votes of the electoral colleges. I repeat, Jacob Collamer believed in no power of Congress to count votes or to exclude votes as certified by the electors. This statesman saw none of the dangers now pictured as likely to occur if we do not pass this bill. Mr. President, I have been drawn unexpect edly and reluctantly into this debate. Now I have spoken hurriedly and without preparation. I have no feeling on the subject whatever. I have tried to gain light from my distinguished friend from Ohio [Mr. THUEMAN] to guide me in my vote on the pending bill. I have listened to him attentively. His learning, his clear, discriminating intellect entitle his utterances to respect, not only in the Senate but everywhere else. He has, however, failed to persuade me that the Constitution authorizes Congress to pass this bill. We have gotten rid of that hateful joint rule whose pernicious operation was acknowledged, a rule which should never have been adopted and was always pregnant with danger. Let us come back to old landmarks, and let us stand where our fathers stood so safely and so long. Let us not exercise doubtful powers or seek to clothe Congress with unlimited dis cretion to interfere with the certificates of the electoral college, and thereby control indirectly the election of President and Vice-President. Let us continue to trust the President of the Senate with the power confided to him by the Constitution of the United States, exercised in the presence of both Houses of Congress as chosen witnesses of that solemn and august cer emony in which he only announces to the Sen ate and to the House of Eepresentatives the action of the electoral college in selecting the President and Vice-President of the United States. What a solemn scene it is, occurring, as it does, once in every four years of our political calendar ! No man lives with the true spirit of American liberty in his heart who does not feel that heart beat quicker when we, as we do in every quiet and peaceable election of President and Vice-President of the United States, give to the despotisms of the Old World new and enduring evidence of man s capacity for self- government. I think, Mr. President, we had better stand where we are. I see possible difficulties, no matter what Congress shall do. It is impossi ble to guard against possible danger. Let us adhere to the limitations of the Constitution, and seek to restrict, not to enlarge, congres sional power. Mr. WITHEES. Mr. President, at the risk of being very presumptuous, I propose to say a word or two in the discussion of this ques tion. I am no lawyer, and consequently do not propose to quote any legal authorities for or against any proposition which I may advo cate ; but I am inclined to take what we call in our country a plain, common-sense, planta tion view of this question. I am the more disposed to do this from the fact that I find gentlemen of the highest legal attainments and reputation who rely upon precisely the same authority and the same paragraph and the same sentence to prove identically opposite propositions. I have listened with great attention to the whole of this discussion. When I first sug gested the difficulty which presented itself to my mind upon reading the bill as it was pro posed by the committee who reported it here, I thought that it was a manifest defect ; that the bill provided no agency by which the de cision of the vexed question of double returns coming up from a State could be settled, thereby risking the loss of the electoral vote of that State. I think that the progress of this discussion has demonstrated that the ob jection was well taken ; because it is admitted by a large proportion of those who have dis cussed the question that some agency or other should be provided, if indeed it does not: already exist, for the contingency which the second section proposes to meet. Now, the discussion has drifted off into two great channels, if I may so express myself. One is upon whom the constitutional right devolves to count the vote of ordinary elec tions. The other is the proposition for which the amendment of my colleague was designed to furnish a remedy ; and that is, what course shall be taken in the case where two returns come up from a State each claiming to be the proper return of that State. With regard to the first, I shall have very little to say beyond this, that the argument of the Senator from Maryland [Mr. WHTTE] was, to my mind, almost conclusive on the subject that the framers of the Constitution designed that the duty of counting the votes should devolve upon the Vice-President of the United States. That the Constitution does not explicitly thus provide is true; but the argument of those who have urged that, because of the absence COUNTING THE ELECTORAL VOTES. 587 f that specific provision, we were therefore to ssume that the power did not exist there, but lat it existed to a much greater degree with le law-making branch of the Government, I link, is defective in this, that while the min- terial agency of the Vice-President is invoked 7 the Constitution to a certain degree in the 3remonial of deciding this question, to wit, in ipening the vote, and while it is true that it tys that vote shall then be counted, without >ecifying that the Vice-President shall count , there is not one word of the agency pro- ded by the Constitution which shall be played y the legislative branch of the Government further than that they shall be then and there resent. No ministerial function under the onstitution devolves upon them at all. They ave no right, so far as the Constitution shows 3, of touching the returns in any manner, iape, or form. When I take this fact into :>nsi<leration, coupled with the additional cir- ; imstance that clearly at the first meeting of I le Senate and House of Representatives after ! le adoption of the Constitution the President f the Senate did not only open the vote but ,ount it, and the additional fact that at the ext presidential election the same duty was erformed by the same officer, I think the ob- jction of the distinguished Senator from Ohio \Ir. THURMAN] can scarcely hold good when e asserts that it is a most remarkable exhibi- on of the wonderful obliquity of intellect on le part of any person to suppose that under ie Constitution the Vice-President was in- ousted with this power. ! The Senator with his usual ability brought b his aid the force of the argument based on Ke primary action under this Constitution by jsserting that the then President of the Senate, |Ir. Langdon, was elected for the sole purpose |f opening and counting the vote, for tta reason nly that the Senate had not been organized ndsr the Constitution and that there had been o organization of Congress under the Consti- ation. It seems to me, taking another branch f his argument and considering it in this con- lection, that if the legislation necessary by Congress under the Constitution to designate he officer or power that should have the right o count the vote had never been had previous- y, it was then had. The very resolution which >mpowered Mr. Langdon to preside for the sole mrpose of opening and counting the vote was egislation, defining on whom this trust should >e imposed. Therefore we have the additional >recedent established by the election of Mr. ^angdon for this purpose to show that it was lie intention of the Constitution that the power should rest in the hands of the President of the Senate. We have had arguments pro and con on the mestion upon whom the counting of the votes should devolve. One is sustained by the im plication which I have mentioned, the only egislation which has ever been enacted by Congress upon the subject, pointing to the President of the Senate as the person by whom this duty should be performed, in the absence of a contrary or a specific provision in the Constitution that the Vice-President should perform it. There is not one word in the Con stitution, there is not a letter or a syllable in it, to indicate by indirection or by implication that the duty should devolve upon any one else. Assuming, however, that this duty under the Constitution could be properly exercised by the Vice-President or President of the Sen ate, I cannot go beyond that point and declare that, because of this legislative provision and because of the action under it, the Vice-Presi dent or the President of the Senate should also be intrusted with the power of deciding as to the validity of returns when two conflicting returns present themselves. That is a different question. The first action, the counting of tfce vote, is clearly ministerial. The last action is by no means clearly ministerial. When two conflicting returns come up, whoever decides as to which is the valid return exercises cer tainly a judicial function. It seems to me that that point is irrefutable. It cannot be urged that it is ministerial, or that it is executive, or legislative. He has to exercise the power of judgment in the matter. Just here I will say that while I favor the proposition of my colleague [Mr. JOHNSTON], for reasons which I will state more at length hereafter, no difficulty is presented to my mind by a proposition to vest this power in the House of Representatives, in a joint session of the two bodies, or in a vote by States ; because, while it is true that the Constitution clearly separates the powers which are wielded by the Government into three great branches, execu tive, legislative, and judicial, yet there are cer tain great functions which must devolve, and do devolve, by the Constitution upon these legislative bodies. These functions are not only discretionary, but judicial, for the Con stitution specifies that this body " shall be the judge of the elections, returns, and qualifica tions of its own members; " and so with the lower House. In cases of impeachment, the Senate constitutes the highest judicial tribunal known, and must of necessity exercise judicial powers. I, therefore, see no constitutional difficulty in providing by legislation that this judicial power. shall be exercised either by the Vice-President, or by the House of Represent atives, or by the Senate and House of Repre sentatives. I think it is clearly competent for the law-making power to delegate this judicial duty to any or all of these. The principal proposition, after the amend ment offered by my colleague, is the one which proposes to substitute the judges of the Su preme Court as the umpire to decide in cases of doubt. It does seem to me that there does exist a constitutional difficulty in that case. The argument of the distinguished Senator from Indiana [Mr. MORTON] the first day this 588 PROPOSED LEGISLATION AS TO THE MODE OF question came up for discussion was to my mind perfectly conclusive and satisfactory, that we could not under the Constitution, and with a due regard to its provisions, delegate this duty to the judges of the Supreme Court ; whether they acted as a Supreme Court, or whether they acted merely in their individual capacity, which the amendment suggested by the Sena tor from Indiana contemplates, for two rea sons : First the Constitution requires that the decision shall be then made ; and it contem plates the presence of no person other than the Vice-President and the two Houses at the time the decision is made. If the Constitu tion had contemplated the possibility of any power other than those mentioned discharging any duty which might directly or indirectly spring out of the performance of the function of counting the vote and declaring the result, it*would have provided some means by which we should have a right to know that this addi tional tribunal was authorized by the Constitu tion ; but no other person, so far as the pro visions of that instrument go, is contemplated to be present, or anywhere near ; and in addi tion the Constitution requires that the question shall be then decided. More than that, the judges of the Supreme Court may possibly themselves be called upon in their judicial capacity to decide upon questions which may arise under the action which is taken in Con gress at the time the vote is counted. I do not pretend to designate the quo modo in which the case may come up for their adjudication; but that such an event is possible I think can scarcely be denied. That being the case, it would be manifestly improper to require the Supreme Court to act as umpire in the decision of a question which they might subsequently be called upon to decide as the highest judicial tribunal of the land. Although it may be as serted that in the one case they would act in their individual capacity, and in the other as an organized legal tribunal, it seems to me that the difficulty is merely evaded, and not met by the suggestion, because it would be impossible for a judge to divest himself of the opinions and conclusions which he reached as an indi vidual when acting as an umpire. Therefore I think that the proposition to refer the deci sion of this question to the judges of the Su preme Court, as provided for in the amend ment suggested by the Senator from Indiana, would be improper. My primary purpose and desire in this whole matter is to secure some tribunal by which this question shall be decided. I am unwilling to leave it undecided, because it may possibly be a fruitful source of the greatest dangers to our institutions. If no legislation is had, if this act is not passed here or if it fails to be agreed upon by the other House, if from any cause whatever we should not consummate any legislation providing for the contingency which we all so much deprecate, I think no Senator present will deny that in the not distant future we may be confronted with a condition of thingg which will test, in a degree beyond any to which this Constitution has ever heretofore been subjected, its vitality and its strength. I think it is the part of the Congress of the United States, as wise legislators, to provide a remedy, to avoid and prevent this contingency, if it be possible to do so. Therefore I am pre pared now, if I cannot get the legislation which I desire, to take what I regard as next best, and having the primary purpose of secur ing some proper tribunal for the decision of such a question as will probably arise in the count of the next presidential vote. In providing these agencies, among all the conflicting propositions which have been sub mitted by different Senators, it does strike me, after due deliberation and consideration, that that presented by my colleague is more in ac cordance with the principles of the Constitu tion, more in accordance with the usages which have prevailed in other departments of the Government, and that the spirit of our Consti tution is carried out more fully thereby than by any of the propositions which have been offered in competition. If it were a ques tion to decide simply upon the election of a President, we all know that the Constitution provides that that shall be done by the House of Representatives, who come forward and stand here as the representatives of the popu lar vote. But the same Constitution requires that the Senate in such a contingency shall have the privilege of deciding who shall be the Vice-President of the United States. It is therefore clear that in a case like the one under consideration, when two conflicting returns come up claiming to be the return of a State, we have to decide not only who is President but who is Vice-President as well. That de cision should accordingly be had by the joint voice or the House of Representatives, who stand as the exponents of the popular will, and of the Senate who represent the will of the States. The objection urged by the distinguished Senator from Indiana that the vote by States would be repugnant to the very spirit of cur institutions, because it would stifle the voice of the people in certain cases, cannot be regarded as valid if you compare it with the provisions of the Constitution and with the ideas which animated the framers of that instrument in the construction of the theory and machinery of our Government. This Government is not a democracy purely ; is not a government of the people perse; but is a representative govern ment. It is a federal government. All the provisions of the Constitution, and especially and a fortiori this one providing for the elec tion of a President when there should be no choice by the people, indicate a purpose and intent on the part of the framers of the Consti tution to provide a tribunal other than that of the popular vote to decide who should perform tne functions of President in the contingency COUNTING THE ELECTORAL TOTES. 589 therein contemplated. They provided that ;his vote should be taken by States. There- ore I say it is no violation of the spirit of the ponstitution, but on the contrary it is in strict Accordance with the provisions of that instru ment, that in such a case as the one now under Discussion, where two conflicting returns come ap here and when the question is as to who shall be elected both President and Vice-Presi dent, both these bodies should exercise a voice !.n the matter, and the vote should be taken by States, inasmuch as it is provided that the vote i^or President shall be taken by States in the House of Representatives in the event of no election being had by the people. The propo sition of my colleague is therefore, I assert, strictly in accordance with the spirit and let ter of our Constitution, and for that reason to oiy mind it is preferable. I do not hesitate to say, however, that if I iannot get my first choice, if I cannot secure :he adoption of this amendment, I will take fcome other amendment, my primary purpose :jeing, as I designated in my opening remarks, iso secure by legislation some tribunal, some authority, to have the right to decide this buestion when the difficulty presents itself, rather than to leave it open to be decided and become the subject of future squabble, and perhaps much greater difficulty than squabble ; pecause we all recognize, not only the possi- ility, but the certainty that if no legislation is ad to provide for the difficulty that may arise, f, in the event it shall arise, we are left with lothing but the constitutional provision, there vill be no concert of action, no unity of opin- on, as to the power in whom the right of de- ision shall then be vested. Mr. MORTON. It seems that the purpose if these several amendments is to provide some vay by which the vote of a State shajl not in my contingency be lost. The second section >f the bill provides that where there are two eturns that return shall be counted which re ceives the vote of both Houses as the valid -eturn. If the two Houses do not agree as to svhich is the valid return, then no vote from ;hat State shall be counted. The amendment we are about to vote upon provides that in such a contingency, where the Houses disagree, :he two Houses shall be together as one body, Senators and Representatives, each having one vote, and the vote shall then be taken by States. For example, the State of Delaware would have one Representative and two Sen ators, and they would cast the vote of that State, which would count one. New York would have thirty-three Representatives and two Senators, making thirty-five, and they, or a majority of them, would cast the vote of New York, counting one. Aside from the inequal ity and the anti-republican character of such an election, the gross injustice to the people, i-the absolute stifling of the public voice, there are other objections to it in the very line which this amendment is intended to meet. If the vote is to be taken by States, and there should be thirty-eight States, as there will be next fall, and the States should be equally divided, then the question is lost. In that case the contingency would happen under which the vote of a State would be lost, because the last ribunal provided for deciding the question would have failed to agree. When you come to take the vote by States there would be very great danger that the votes of particular States would be lost in taking that vote, because if the delegation is equally divided then the vote of that State is not cast, according to this very amendment : But if the representation of any State shall be equally divided, its vote shall not be counted. This very amendment provides for not count ing the vote of a State in deciding the question where the delegation is equally divided ; and that is a contingency very likely to happen. It will not happen very often, 1 trust; it has only occurred once in the history of this nation that there were two returns of electors from the same State. "We may hope that that con tingency will never occur again ; but it may. Then, if there should be such a contingency, it is not very reasonable to suppose that the two Houses will not be able to agree upon which is the true and valid return. Still that contingency may happen ; but where the vote is to be taken by States the contingency of the delegation being equally divided and the vote of the State being lost in that way, in deter mining the question either in the election of a President by the vote of the States or in the decision of this question by the vote of the States, is likely to happen. Mr. MAXEY. Will the Senator from In diana allow me to suggest an amendment which I have prepared, in order that I may get his views upon it? Mr. MORTON". I will give way to my friend in a moment when I get through with the point I am now making. I want to call the attention of the Senator proposing this amend ment to a fact in our history, in the first elec tion of a President by the House of Repre sentatives in 1801. When that election took place, there were fourteen States in the Union. The delegations from two States were equally divided, and the votes of those States were not counted. From the very first ballot the dele gations from Vermont and Maryland -were evenly divided, and so those States were not counted ; and that remained the case from tho llth of February until the 17th of February, and after thirty-five ballots had been taken the dead-lock in those two States was broken in this way : When they took the last ballot, after an hour s interval, on the thirty-sixth ballot, Mr. Morris, of Vermont, was absent, and the two Maryland Federalists, Craig and Baer, put in blank ballots, thus giving two more States to Jefferson, which, added to the eight which had always voted for him, made a majority. There were two States divided in the very first 590 PROPOSED LEGISLATION AS TO THE MODE OF election by the House, a contingency likely to happen. So that, in endeavoring to meet this contingency of the two Houses being divided, the very plans resorted to are exceedingly liable to the same difficulty, causing the loss of the vote of a State. While I agree in the main with the Senator from Ohio [Mr. THUHMAN], it seems to me that he has not been entirely logical. My friend from Texas [Mr. MAXEY] made a very able and a very clear argument this morning, but I think the final conclusion was not in harmony with the premises with which he started out. He took the ground that the two Houses would be present in their separate capacity; the Senate there as a Senate, the House as a House ; not merely the members of the two bodies. In that I think he was entirely right ; and he took the ground that these two Houses were to count the vote. It is a duty then devolving upon the two Houses, and I understood the Senator to argue that it was not competent for these two Houses to cast the duty of counting the votes or determining any question upon the Supreme Court of the United States, be cause it belonged to the two Houses in their legislative capacity ; but, if I understood my friend, at the close of his remarks he came to the conclusion that we could authorize the President of the Senate to count the vote in case of disagreement between the two Houses. If we can authorize the President of the Senate to do it by virtue of this law, if we can depute to him the power, we can depute it to any other specific tribunal that we may create. Mr. MAXEY. If the Senator will permit me, I will state the position I took. The posi tion which I assumed, as is very correctly stated by the Senator from Indiana, was that the two Houses appeared, organized in their separate capacities as a Senate and as a House, and over these organized bodies the President of the Senate presided ; that under the Consti tution you could not go outside of Congress to devolve the duty on anybody ; that it was a personal trust. I further took the position that where these two Houses divided the vote of the Senate counted one, the vote of the House counted one, and the presiding officer being a part of Congress the duty of deciding the question where there was a divided vote between the two Houses could be devolved legitimately upon the President of the Senate, the presiding officer, and you could not go out side of the body to decide it. Mr. MORTON. I understood that to be the argument of the Senator ; but still I think the difficulty is not obviated. When the two Houses come together and the President of the Senate presides over both bodies for the time being, he has no casting vote under the Con stitution. The Yice-President has the casting vote in the Senate on an equal division of that body, by virtue of the Constitution. The President of the Senate pro tempore has no casting vote under the Constitution, but he simply votes as a Senator." If you give the < President pro tempore a casting vote where the two Houses fail to agree in determining which is the true vote of a State, that right thus con ferred upon the President of the Senate is ! given to him by virtue of a law, and does not belong to him under the Constitution ; so that j after all we are deputing to an umpire or to a third party the exercise of a duty which, ac- | cording to the argument of the Senator from Texas, and I think very clearly, too, belongs to the two Houses as a part of the legislative power of the country. Mr. MAXEY. That umpire is a part of our own body. He is not an outside body, but is a part of Congress. Mr. MORTON. That may be true. He is a member of this body either as Vice-President i or as a Senator ; but the power conferred upon him is not given by the Constitution; it is a new power which we are conferring upon him. Our right to confer it does not depend upon] the fact that he is a member of this body. If j we have the power to confer this extraordinary function upon anybody, that power does not; depend upon the fact that the person upon; whom we confer it belongs to this body. We may confer it as well upon the Supreme Court!! as upon the President of the Senate. The same argument applies in regard to my friend from Ohio, who was led into the same difficulty. He started out on the presumption i that the two Houses must count the vote as a part of their legislative powers, but he ended] by agreeing to the amendment of the Senator from Virginia [Mr. JOHNSTON] that we might refer it to a joint convention of Senators and Representatives all voting together, the vote! to be taken by States. If we can thus depute] a legislative power to be exercised by a joint: convention, a body unknown to .the Constitu tion of the United States, and voting by] States, a matter which the Constitution never] contemplated, we can depute that power to the) Supreme Court of the United States, or to any body else ; so that I think my friend s conclu sion was wrong. I deny the power to create an umpire to decide between the two Houses in a matter which is devolved upon the two Houses by the Constitution ; but I said this, and I call the attention of my friend from Texas to it. He misapprehended my position a little. I say that, if we have the power toj create an umpire or to call in a new tribunal, then I think the safest umpire, the one most satisfactory to the people of this nation, would be the Supreme Court of the United States^ simply requiring that body to be in session- when we come to count the votes ; and in case of disagreement requiring it to decide it some where. Mr. MAXEY. I think I understood the Senator s position, but that he may understand mine, I referred to the page of the RECORD in which his view was given, and he will find by reference to it that this power was only to be COUNTING THE ELECTORAL VOTES. 591 zeroised in a certain contingency, if tolerated b all. Mr. MORTON. I failed to hear that part of 17 friend s remarks. Mr. MAXEY. I do not know but that I aborated it. I referred to the page of the ECOED of Thursday last, which shows for it- >lt; page 13. Mr. MERRIMON. How would you give the upreme Court jurisdiction ? Mr. MORTON. If we have power to give ay outside tribunal jurisdiction we have pow- to give it to the Supreme Court, and that -ould he the most satisfactory tribunal to l/lnch we could refer so great a question. j he people of this country would submit with : lore satisfaction to the decision of that body hail they would to the decision of any one jiau, I care not how wise or how great he light be, or to any special tribunal that we night create. | In answer to the question put by my friend rom North Carolina, I say we cannot confer lie jurisdiction upon the Supreme Court as a jtiipreme Court. Still if we have the power p create a special tribunal we can confer it ipon the judges of the Supreme Court because [hey are judges of that court. I Mr. MERRIMON. I ask the Senator where ire get the power to confer it upon any tri- >unal ? I Mr. MORTON. I have been trying to argue hat we have not that power. I do not believe le have that power. I have said that if the mfortunate contingency should happen that pe two Houses cannot agree which return hall be counted, the vote of the State is lost ; If it is left to the President of the Senate and ke is not able to make up his mind which vote hall be counted, the vote is lost ; or if you efer the whole matter to him and he comes o the conclusion that the certificate is defec- ive where there is only one, the vote of the >tate is lost. The vote of the State may be ost in any contingency. In any way that you tiay dispose of this question, that is possible. Ton cannot devise any scheme under which lie vote of a State may not possibly be lost. Jnder the very plan proposed by my friend rom Virginia it is probable that the vote of a state would be lost. I have just shown that n the very first election made by the House .wo States were evenly divided and so re- nained for seven days until the thirty- sixth >allot was taken, and then the dead-lock was )roken by one member dodging and two mem- >ers from other States casting blank ballots ^ Mr. RANDOLPH. May I interrupt the Senator from Indiana for a moment? Mr. MORTON. Yes, sir. Mr. RANDOLPH. The Senator from In- liana says that, under any tribunal that may >e adopted or that has been suggested, it is )ossible to lose the vote of a State. I think if le will refer to the plan I suggested yesterday le will find that it would be impossible to lose the vote of any State. I made the argument yesterday ; I do not know whether the Sena tor was present at the time or not. My prop osition was this : That the two Houses should vote separately: that in the event of their not being able to agree as to which the true returns of a State were, and in that event only, the President of the Senate should de clare which the true returns were ; but that declaration should be based upon aggregating the votes of the two Houses, and a majority in that aggregation should determine the re sult. I would like to know from the Senator from Indiana whether that does not preclude the possibility of rejecting the vote of a State? Mr. CAMERON, of Pennsylvania. I rise for the purpose of making a motion to go into executive session. We cannot get through with this subject to-day, and it may as well be disposed of hereafter. The PRESIDENT pro tempore. Does the Senator from Indiana yield for that purpose ? Mr. MORTON. I yield for that purpose. The PRESIDENT pro tempore. Pending the motion, the Senator from Texas [Mr. MAX EY] desires to present an amendment. Mr. MORTON. Let it be read for informa tion. I desire to hear it. Mr. MAXEY. I move to insert at the end of section 2 the following : But, if the two Houses fail to agree as to which of the returns shall be counted, then the President of the Senate, as presiding officer of the two Houses, shall decide which is the true and valid return ; and the same shall then be counted. Mr. MERRIMON. I ask leave to submit an amendment which I send to the Clerk s desk, and which I ask to have read for information. The PRESIDENT pro tempore. The amend ment will be reported. The CHIEF CLEEK. It is proposed to insert after the word " which " in section 2, line 7, the words : t Shall be duly authenticated by the State authori ties, recognized by and in harmony with the United States, as provided by the Constitution. So that, if amended, that portion of the section will read: And that return from such State shall be counted which shall be duly authenticated by the State au thorities, recognized by and in harmony with the United States, as provided by the Constitution. The PRESIDENT pro tempore. The Sena tor from North Carolina proposes to offer this amendment when it shall be in order. Mr. MERRIMON. As I wish to submit some remarks upon it, I ask that the amend ment be printed. The PRESIDENT pro tempore. The amend ment will be printed. IN SEXATE. Wednesday, March 22, 1876. ("Congressional Eecord," pp. 1874-1884.) Mr. WHYTE. I call for the regular order of business. The Senator from Indiana is in 592 PROPOSED LEGISLATION AS TO THE MODE OF his seat. The regular order was only post poned temporarily until he should come in. The PRESIDENT pro tempore. The Sena tor from Maryland calls for the regular order, which is the unfinished business of yesterday, being Senate bill No. 1. The Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 1) to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon. Mr. MORTON. I desire to ask Senators to remain here to-day until this bill is disposed of. It has been before the Senate for some time ; it is a very important measure, and I hope Sen ators on this side of the Chamber, at least, will find it convenient to remain here and dispose of it to-day. Mr. EDMUNDS. I suggest that the Senator ought to say "to-morrow," because there is some other business that ought to be done to day on another subject. I would suggest to the Senator to fix to-morrow for disposing of this bill. Mr. MORTON. I should prefer to have it disposed of to-day, if possible. Mr. SARGENT. I wish to give notice to the Senate that, at the earliest moment, I shall call up the diplomatic and consular appropria tion bill. I propose to do it as soon as this bill is finished. Mr. WIIYTE. Mr. President, I hope the Senate will not be frightened out of its pro priety by the supposition that I am about to make another speech on this important subject. Nothing is further from my thoughts. But after the judicial broadside fired into the Sena tor from Kentucky [Mr. STEVEXSON] and myself yesterday by the Senator from Ohio [Mr. TRU MAN], when, with uplifted hands, in wondering astonishment, he declared that it was past his comprehension ho*v the idea could enter the brain of any man, upon reading the Constitu tion as it is. that the duty of counting the presi dential vote was lodged with the President of the Senate, I am quite sure the Senate will pardon me if, by one or two quotations, I show them that that idea entered into a brain larger than that of the Senator from Maryland, and into heads which have worn the crown of lau rel with as much grace and almost as much modesty as the Senator from Ohio wears his. I referred, Mr. President, to the views of Chancellor Kent, and for the purpose to which I referred to these views they sustain my posi tion, which was that, as the Constitution now reads, the President of the Senate is presumed to be the proper party to count the electoral vote ; and so, in confirmation of that, I ask permission to read what was said in 1857 by Mr. Israel AVashburn on the floor of the House of Representatives in regard to these views of Chancellor Kent : I received a letter but a few days ago from a gen tleman, eminent for his wisdom and ability, who stated therein that the late Chancellor Kent, of New York, had told him that there was clearly a casua omissus ; that there was no power either in the House or Senate, or in a joint convention, to interfere and participate authoritatively in counting and declaring the votes and deciding upon their validity ; and he said that the chancellor added that he feared the time might come when the country would be shaken to its centre on this point. Congressional Globe, Thirty-fourth Congress, third session, page 657. That was the sole purpose for which I re ferred to the opinion of Chancellor Kent ; and he does most positively say that, looking at the Constitution as it is, the authority is lodged with the President of the Senate. So then when the Senator from Ohio said that reading the Constitution as it is it passed his compre hension how it could enter into the brain of any man so to construe it, he failed to remem ber that it entered into the brain of Chancellor Kent so to construe it, Nor is that all, Mr. President. Mr. Stuart, of Michigan, who was a prominent lawyer and a most honored member of this body/in this same discussion wherein I before referred to Judge Collamer s views, used these remarks : I think the law might be made more specific ; but* I cannot admit that the law can provide for any other counting of the votes under the Constitution, than that they shall be counted by the President oi the Senate. Ibid., page 664. And again : I disagree, therefore, with the honorable Senator from Kentucky [Air. Thompson] when he supposes this is a count by the Senate. It is a count by tlio President of the Senate. To secure fairness and ac curacy it is a public count before two responsible organized bodies under the Constitution. And Mr. Benjamin, than whom no better lawyer ever sat within these walls, did not think it was unworthy of consideration, for he laid it down expressly that there ought to be a law that is in regard to counting the vote not cast upon the day provided by law under the express grant of the Constitution There ought to be a law directing that hereafter, when the vote of a State presented for count shall appear to have been given on a day different from that provided by law, it shall be the duty of the President of the Senate not to count that vote. Ibid., page 665. Recognizing that the President of the Sen ate was the proper person to count the vote and no one else. And so Mr. Toucey, of Con necticut, a gentleman who had held the high and honorable position for fourteen or fifteen years of prosecuting officer of the State of Connecticut, called to the Cabinet of Mr. Polk as Attorney-General of the United States, an honored and respected Senator in this body for many years, said : The whole proceeding of counting is based on the idea merely of disclosing to the public in a safe, au thentic way, the actual state of the vote, and when that is ascertained truly, the President who is chosen by that vote is President, let Congress do what it may. . . . And any law of Congress which un dertakes by its operation to change the actual re sult as found upon an inspection of the facts would, so far as it changed or varied the result, be inopera tive and of no effect ; and hence I say to-day, as I COUNTING THE ELECTORAL VOTES. 593 said yesterday, that in my judgment the course of the presiding officer Mr. Mason who had counted the vote upon the report of the tellers was entirely correct in the House of Representatives. Ibid., page 666. But, Mr. President, to prove that it not only entered into the brains of abler and stronger ; men than the Senator from Maryland, but had strong argument to sustain the rightfulness of such a lodgment, the Senator from Ohio to the contrary notwithstanding, I wish to go a step farther and show that not only was this count the mere disclosure in the presence of witness- ! es of the vote of the States and that neither House had anything to do with it, but that it was purely ministerial in its character, and not judicial at all, I wish to cite to this Senate the authority of a man with whom I differed as widely in politics as the poles are far apart, but a man whose talents no fair-minded man could deny, whose legal learning no man truth fully could gainsay, a man who held his seat high in the estimation of our country, and whose memory to-day is as green as the sham rock in the hearts of the republican party of the United States I refer to Hon. Henry Winter Davis. On page 658 of the volume of the Globe which I have cited will be found what he said in regard to this ministerial duty ; and, more than that, while we are on the brink of this precipice which may involve us in trou ble, let us listen to his warning note as to the difficulty which may arise by Congress tamper ing with this great question of counting the electoral vote. In my opinion Said he- there is no judgment to be passed, either by the Senate or by the House of Representatives, or by the tellers, or by the Speaker of the House. Every one, except the President of the Sen ate, is enumerated here by Mr. Davis. I think that the Constitution of the United States has defined with perfect precision what we are here to do; and beyond that there is nothing to be done, except on a motion which has not yet been made. The Constitution says that the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates that are laid upon your table, as containing the votes of the various States, and the votes shall then be counted. They are to be counted in the presence, not of any joint convention, but of the Senate sitting sepa rately, and of the House sitting separately, as sepa rate Houses. It does not say that any result shall be announced. It does not require any judgment to be declared. It does not confer on either the Senate or the House the power to authorize the President of the Senate to declare who is the President of the United States. Mr. QTTITMA.N. "Will the gentleman permit me to ask a question ? Who is to count the votes, and to decide whether a vote is to be counted or not ? Mr. DAVIS of Maryland. That is the precise point I rose to explain my views upon. The votes are to be " counted," and there the Constitution stops. What do gentlemen mean by the word " counted? " Do gentlemen mean that counting a vote here has the effect of a judgment upon the vote that is counted and admitted, or upon a vote which is not counted and is rejected ? Do they mean to say that if a vote were rejected here upon the count by the tellers, or were admitted, it would bind any authority known to the laws of the United States ? It is that fertile source of all difficulty, this ambiguity in the phrase we are using. I apprehend that the only purpose of assembling here is to identify the things which are sent here as votes. The act is a ministerial and not a judicial one. Counting or refusing to count has no effect. Whether a vote shall or shall not have the effect of electing a President is, after the mere minis terial act of counting out the things sent here by the various States, referred by the Constitution of the United States to the body that is to elect in the event of a failure of election, and there is no motion that can be made here which can raise this question, un less some gentleman shall rise and move, in pur suance of the Constitution of the United States, that the House now proceed to the election of a Presi dent ; and when that shall have been done, and the question shall have arisen whether the papers laid upon the Speaker s table, identified by their official certificates, counted by the gentlemen who are ap pointed to count, are legal or illegal, that question the House, and the House alone, have the power to decide ; and until we are called upon to decide upon the question whether we shall or shall not elect a President, there is no practical question which can be raised in this House upon which our decision would be final. Although this House should go on and pass sepa rate votes upon every vote before them, I apprehend they would be extra-judicial opinions upon facts which they have no right to pass upon separately, and they can only pass upon them upon the motion or upon the presumption that there is no election; and the only decision this House can come to is whether they will proceed or not now to elect a President. I presume that with reference to the Vice-President exactly the same question devolves upon the Senate, untrammeled by any count or re fusal to count, accepting nothing as the basis of their decision except the papers identified here identified before the Senate and the House as wit nesses to the fact. And now, Mr. President, fortified with these views of eminent statesmen, I invoke another fire from the battery of the distinguished Sen ator from Ohio. Mr. THURMAN. Mr. President, I really did not suppose that what I said yesterday would excite the sensitiveness of either of my friends to the extent it has done. I certainly did not intend to wound anybody s sensibili ties. I said, and perhaps I ought to apologize for having said, that it did seem strange to me. how the idea ever could have entered into any body s head, looking to the Constitution alone and not to any practice under it, that the Presi dent of the Senate was the judge in the case that is supposed by this bill. Mr. WHYTE. The Senator must not sup pose that I ever said he was the judge. Count ing the vote, and judging of an election,, are different things. Mr. THURMAK That is what I said, or at least what I intended to say. I do not know myself, except upon this new theory of the late Mr. Davis, how counting the votes and being a judge are not one and the same thing where any judicial question arises. When, for instance, the question is whether a return is in conformity with the statute, it seems to me the 594 PROPOSED LEGISLATION AS TO THE MODE OF decision upon that is in its nature judicial, and not ministerial. When the question is between two returns from the same State, it does seem to my poor comprehension that the decision (3f that question is judicial in its nature, and not ministerial. That is the reason why I said that the power to count the votes does involve a power of judging what votes shall be counted, and what votes shall be rejected. That being the case, I do not see for myself, as I said before, how, upon the language of the Consti tution, the idea can be entertained that the President of the Senate is this judge. The Senator reads a very able argument by the late Mr. Davis, which I never heard before, and to which I have listened with very great attention, at least all of it that he has read since I have come into the Senate, but if I ap prehend what I heard, without knowing what preceded it, Mr. Davis did not entertain the opinion, but entertained directly the opposite opinion, that the President of the Senate was the judge in this matter. He supposes that when the returns are brought in they are to be counted. He says, however, that it does not matter whether they are counted or not, that the question whether or not those returns show an election of President is to be deter mined by the House of Representatives alone on a motion to go into the election of a Pres ident on the theory that the people have failed to elect, and in the same way that the Senate is to decide in respect to the Vice-President whether there has been an election or not. That, I understand, is his theory. It seems to me that it is not a sound theory ; but if it were a sound theory, it would certainly show that the decision does not rest with the President of the Senate. Certainly Mr. Davis s opinion is distinctly against the power of the President of the Senate to decide the question. But I do not quite understand that reason ing, I must confess; and I think that if a case had been brought to the attention of Mr. Davis, who was a very able man indeed, the very case presented by the second section of this bill, he would have had to give a reconsideration to the argument he made. He says that the two Houses are present at the opening of these votes to identify the returns, the Senate as a Senate and the House of Representatives as a House; that they are there to identify them. Mr. MORTON. How? Mr. THURMAN. How they are to identify them he does not say. He says they are there to identify them. Identify what? Identify certain pieces of paper which are laid upon the desk, or identify which is the true return ? If it is meant simply to identify the papers which have been opened by the President of the Sen ate and laid upon the desk, then they are there simply as witnesses to testify that two papers from a single State, in the case of two returns being made from it, have been laid on the table, and there is no decision and no count; for according to Mr. Davis s argument that question then cannot be decided ; the vote of the State cannot then be counted. The Consti tution says the vote shall then be counted. His plan says the vote shall not be counted. That is what it comes to. Jf there are two returns, and if there is no power of decision in the President of the Senate, as he seems to ad mit, nor any power of decision in the Senate and House of Representatives there, then the plain provision of the Constitution that "the votes shall then be counted " becomes a nul lity, for you do not count the votes then at all ; but instead of then counting the votes, as the Constitution requires, you are simply to identify certain papers, and when the Senate has returned to its Chamber without any count of the votes of the State from which two re turns have come, and without any declaration who has been elected, after that has taken place the House of Representatives is to go into the inquiry whether the vote of that State shall be counted, or which one of the certifi cates for that State shall be counted. Is that the Constitution which declares that the votes " shall then be counted," and if it appear that no one has received a majority of all the votes the House of Representatives shall u proceed immediately" to elect a President? Is that it? I must confess, with great respect for the ability of the late Mr. Davis, I cannot see it. And it does seem to me that all this wander ing about, with this plan, that plan, and the other plan, this interpretation and that inter pretation, comes from losing sight of the plain provision of the Constitution and the funda mental principle of government, that where a thing is directed to be done and the mode is not prescribed by the Constitution, it belongs to the law-making power to provide for it. Mr. JOHNSTON. Mr. President, in consid ering this question we have to take the Con stitution as it is, and not as we think it ought to be. It is agreed, I believe, on all hands, that a better mode than the present for the election of President and V ice-President of the United States ought to be provided if possible ; but until that is clone by an amendment of the Constitution of the United States, we have to adapt our legislation and whatever we dp in this regard to the existing provisions of that instrument. The electoral college is just as much a con stitutional body as the Senate and House of Representatives. It is equally established by the Constitution. We are bound to recognize it, and to recognize the fact that it provides for an election of President and Vice-President partly by the States. The election of Presi dent and Vice-President is not merely the act of voting by the people, but it consists in every thing necessary to elect the President, and declare the result. The election consists, first, of the voting by the people ; next, of the meet ing of the electors in the several States, and the casting of their votes ; and then the certi fying of those votes to the President of the COUNTING THE ELECTORAL VOTES. 595 Senate, and of the assembling of the two Houses together and ascertaining the result in joint convention and declaring such result. All these things are necessary to make a complete elec tion. If you stop at the vote of the people, the result is never ascertained. Altogether they cjnstitute what we call the election of Presi dent and Yice-Presideiit ; and in framing any law for the purpose of settling a disputed ques tion connected with it, or to do anything ne cessary to carry out the constitutional provi sion relating to it, we must have regard to the provisions of the Constitution regulating the whole matter and what was intended by the instrument itself, by the framers of the Con stitution. One thing that stands out prominently is that the States, as such, irrespective of their size or population, were to have a voice in the election of these two officers. When the Con stitution was adopted the States were different in size, as they are now. It was known then that that inequality existed; it was known then that the time never would be when the States would be equal in size and population, but that that same inequality which existed then would go on as long as the United States lasted. Therefore the argument now that the States are so unequal in size is no reason why the original provision of the Constitution giv ing the States their due weight in the election of these two officers should be disregarded. It was a provision intended for the protection of the smaller States. They were bodies-politic ; they had their rights ; there was danger that they would be overslaughed by the larger States, and that their rights would be de stroyed by the greater representation that other States had in the House of Representa tives. In order to protect them against that, the States were given a representation without regard to size in this body and also in the elec toral college. Then I insist that any law passed on this subject must be passed with respect to these particular features and pur poses of the Constitution which were to pro tect the smaller States against the dangers aris ing from the preponderance of the larger. Now, Mr. President, how do the electoral colleges vote? They vote by States. Each State elects a number of electors equal to her representation in the House and in the Senate. The State of Delaware elects three, the State of Virginia eleven, the State of New York thirty-five. "When these electors meet togeth er, those representing the States and those representing the people, they constitute one body in each State, and cast their votes as one body. They cast the vote of their State, and a majority casts it, if that majority be only one. Now, to keep up the analogies of the Consti tution and the unities of the Constitution, I insist that whatever we do in this regard shall be done in the same meaning, and in the same sense, and for the same purpose that the elec toral college acts. We must endeavor to pre serve the symmetry of our system, we must strive, in every step we take toward electing a President and Vice-President and declaring the result, to preserve the same analogies that guided the convention in establishing the elec toral college and the mode of electing the President and Vice-President. Any departure from that, anything going outside of that, is a violation of the purposes of the Constitution and the intentions of the framers of it, and should therefore not be adopted. Hence, when it comes to the decision of any important question connected with the elec tion of these officers, and to deciding which of two returns is the vote of a State, upon which decision the result of the election may turn, why is it not proper that that question should be decided upon the same principle, rule, and reason that regulate the election of President in its other phases? If it was proper that the President should be elected by a joint vote of the people and the States ; if it was proper that the electoral college should be constituted partly of the States and partly of the people, is it not equally proper that a question upon the decision of which the result may turn should be decided in the same way that the election itself was intended to be decided ? Certainly when we do that we keep up what the framers of the Constitution intended and we preserve the purpose of the instrument. If we go outside and adopt any plan different from or beyond that, we depart to that extent precisely from what was intended in the origi nal framing of the Constitution; and, there fore, we do what was never intended and what is contrary to the instrument itself. The Senator from Indiana proposes to let the judges of the Supreme Court, not sitting as a court but as individuals, decide this ques tion in the last resort, and he does it upon the ground that letting the Senate and House of Representatives decide it is anti-republican, because the States would thus be represented in the decision. It seems to me that if the Constitution intended that the States should be represented in all these questions, it cannot be contended that it is anti-republican. It is the purpose of the Constitution itself that the States should be represented ; and when an amendment is offered which declares that the shall not be represented as to any particular thing arising in this election, to that extent we depart from the Constitution and from our re publican institutions. The members of this body and the members of the House of Repre sentatives were elected by the people partly to perform these very functions. They were chosen for the purpose, among others, of de ciding who in a certain contingency should be President and who Vice-President. When the people voted for them, they delegated them to fulfill those duties; they elected them for that purpose as well as other purposes ; and when we leave the question with the men 596 PROPOSED LEGISLATION AS TO THE MODE OF thus elected by the people, we leave it where republican government ought to leave it, with the people or with the representatives of the people. But if we take it away from them and give it to nine other men never se lected by the people, knowing little of the people, necessarily by the very nature of their functions and duties removed from the people and in no sense representing them, we get the decision of that great question away from a representative body of men to a body never elected by the people and having little connec tion with them. I can imagine no provision that would be further from the spirit of the Constitution and of our republican institutions, unless it would be to select six or eight of the ministers who represent foreign governments in this city and let them be constituted a court to decide upon this question. That would be just as far from my idea of what constitutes a republican government which is a representa tive government as the propositions submitted by the Senator from Indiana. I think, there fore, that this amendment is wholly inadmis sible. Then I think the proposition of the Senator from New Jersey [Mr. RANDOLPH], to a certain extent incorporating my view, is yet defective in one very important particular, and that is in its practical working. Now observe in what that defect consists. The two Houses meet together in the Hall of the House of Rep resentatives to count the votes. If there is no objection made and the votes are simply count ed throughout without any question arising, the two Houses do not separate at all until all the votes are cpunted and the result announced ; but whenever a question arises to be decided the two Houses separate at once, and the Sen ate returns to its Chamber and the House re mains in its, and each proceeds to act for it self on the disputed point. Suppose there be two returns from a State, and it becomes neces sary to decide which is the right one. The two Houses separate, and each proceeds to act upon the question. After they have acted, the Sen ate is notified of the readiness of the House to receive them and returns to the Hall of the House of Representatives, and there it is ascer tained that the House has decided in favor of one return and the Senate in favor of the other. Now, the proposition of the Senator from New Jersey is that in that event the President of the Senate shall proceed to declare which return shall be counted, and shall base his decision upon a majority vote of the two bodies. But does not this practical difficulty arise : The vote of the House has been given in the ab sence of the Senate and of the President of the Senate; he does not know what it was; and the amendment provides no means of ascer taining what vote the House has given. Mr. RANDOLPH. May I interrupt the Senator ? Mr. JOHNSTON. Certainly. Mr. RANDOLPH. I should like to know whether the President of the Senate would not have the same means of ascertaining the vote of the House as he has of ascertaining that the House has disagreed at all. If he is competent to receive one message, he is com petent to receive both ; and therefore the in formation is within his grasp and within his official grasp, as it seems to me. Mr. JOHNSTON. I think not, sir; because all that the Senate learns when it returns to the House is simply the result. How that has been attained there is no way of ascertaining. It is announced merely that the House has de termined to accept one set of returns. By what vote the House has done that is not an nounced. The proposition of the Senator from New Jersey leaves that as a difficulty likely to impend, and does not undertake to remove it. Mr. RANDOLPH. That is a mere matter of detail. Mr. JOHNSTON. It may very well happen that the vote may not be taken by yeas and nays, and it might happen that that vote would be taken so that those who voted for the prop osition and who voted against it could not be ascertained. Suppose it was a simple vote in the ordinary way : " All who are in favor of this proposition say ay, and the contrary no." It would be out of the power of the presiding officer of the House or anybody there to say how the vote was. Nobody could tell who were the members who constituted the ma jority. Mr. RANDOLPH. Does the Senator from Virginia mean to say that upon a question of that magnitude it is probable or even possible that the vote shall be taken in -the manner in dicated by him ; that so undignified a proceed ing as that would be likely to occur at all? Mr. JOHNSTON. I cannot say that it is probable, but I do say that it is possible ; and, while we are providing against these contin gencies, let us provide against all. Let us have this law passed so that there can be no trouble in the execution of it, and have the mode so clearly defined that it meets every conceivable emergency. Mr. RANDOLPH. Then I will answer the Senator by saying that in providing for the de tails the law may state that the vote shall be taken by roll-call, and the names entered. Mr. JOHNSTON. That is possible. The law might be framed in such a way as to pro vide for that ; but, as it stands now, that diffi culty exists, and, to my mind, it is a serious one. The Senator from North Carolina [Mr. MEE- EIMON] has made a suggestion; and, as I am speaking on this subject, I may as well address myself to that as to the others. His proposition is to strike out all after the word " which," in section 2, line V, and insert : Shall be duly authenticated by the State authori ties, recognized by and in harmony with the United States, as provided by tne Constitution. It seems to me that that amendment of COUNTING THE ELECTORAL VOTES. 597 the Senator from North Carolina is open to very serious objection. What is meant by be ing in harmony with the United States? Sup pose we adopt that amendment and declare that that vote shall be counted which is certified by the authorities of the State in harmony with the United States, what does that mean ? Does not that leave a wide field open for in vestigation and construction? "What is the United States ? The United States is the whole Government. It is the executive, the judicial, and the legislative departments of the Govern ment. All these combined constitute the United States, and no two of them do it. It takes them all ; and when we say that the gov ernment of a State is in harmony with the United States, I do not exactly understand the phrase or know how it will be interpreted. Take the existing state of things. The Presi dent belongs to the republican party ; the Sen ate is republican; the House of Representa tives is democratic ; the Supreme Court and the judiciary are neither one nor the other, but are, as they ought to be, not politicians. Suppose the question should come up, whether or not a particular State government is in har mony with the United States, how is that fact to be ascertained ? All the Departments of the Government are not " in harmony " with each other just now. There is a difference of opinion between the two Houses, the legisla tive branch; and a case might arise in which the government of a State could not be in har mony with the whole United States at the same time. A case might very well exist, too, where a State government had never been recognized by any Department of the United States. The elections come on in November. Most of the governors qualify in January. These returns are to be counted in February. No act of any body, neither the legislative, ex ecutive, nor judicial branch of the Government, may have recognized the government of a State from the time of its inauguration up to the time of counting the electoral vote. I under stand a recognition to mean some act of the legislative body re cognizing a particular gov ernor and a particular legislature as the legal government of a State, or through some procla mation of the President or some communication between him and them recognizing that as the legal government of the State. But the Presi dent cannot by general proclamation declare that a certain man is the governor of a particular State; that is not part of his duties. Neither can the Congress of the United States by law declare that a certain man is the governor of a State ; that is no part of their constitutional power. All that either can do is, when a man claims to be the governor of a State, to recog nize him in such intercourse as may take place between him and the United States or be tween him and a particular department of the Government in such manner as the Constitu tion and laws authorize States to have inter course with that department. That is all we can do. "We can only recognize him as gov ernor when the occasion arises for the recog nition. We cannot make a solemn recognition as an independent act. The recognition is the result of some intercourse between the two which requires that some act shall be done to bring it about. Until that is done there can be no recognition. It may very well happen, therefore, that the State may not be in har mony with the United States. The State gov ernment may have never been recognized; and if the question of the returns comes up then, and it is to be trjed by that standard, we have nothing to decide it by. That practical difficulty arises in regard to that proposition, and I think, therefore, that it is objectionable also. I desire to say a few words in regard to the proposition of the Senator from Maryland [Mr. WHYTE]. I differ as widely from him as I can, both upon the construction of the au thority he quotes from Kent s Commentaries and upon the construction he puts upon the Constitution and the report of the committee quoted by him. His idea is that Chancellor Kent in his Commentaries recognized the right and power of the President of the Senate to count the vote; that that was a duty under the Constitution, and that Congress had no right to legislate upon the subject. I think, with all due deference to the learned Senator, that he construed the authority wrongly. This is the law that he read : In the case of questionable votes and a closely- contested election, this power may be all-impor tant That is, the power to count the votes and I presume, in the absence of all legislative pro vision on the subject, that the President of the Senate counts the votes, and determines the result, and that the two Houses are present only as specta tors, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors. Now I read that to mean this: There is a wide difference between constitutional pro visions and legislative provisions. A consti tutional provision is an amendment to the Constitution, a change in the organic law of the land. A legislative provision is an act of Congress, some proceeding of the two Houses in their legislative capacity. Chancellor Kent certainly knew the difference between a legis lative and a constitutional proceeding; and when he used words intimating that there might be a legislative provision on the subject, he certainly could not be held to have meant that the Constitution might be amended, and thus the difficulty avoided. We all know it is in the power of the country to amend the Constitution whenever three-fourths of the States- agree to do so. There can be no ques tion upon the right of amendments to the Constitution. He could not therefore have re ferred to amendments to the Constitution, nor could he have referred to any question con nected with the Constitution itself, because 598 PROPOSED LEGISLATION AS TO THE MODE OF certainly so learned and so accurate a man as Chancellor Kent knew the difference between the words constitutional and legislative, and he would not use the word "legislative " where he meant " constitutional." That any man, es pecially a learned law-writer, writing an ele mentary book for the regulation of the courts of the country and the instruction of the legal profession, should use words so loosely that he would not discriminate between the word "legislative" and the word "constitutional" is not to be supposed; and when he intimates, or says plainly, that there may be a legislative provision on the subject we understand him to mean that he thinks Congress has the right to pass a law on the subject, and by it to declare who shall count the votes. In that sense, if that view is true, he cannot be held to mean that the Constitution gives the Vice-President the right to count the votes, because if the Constitution did give that right then it could not hold that Congress could legislate on the subject. Whenever the right of Congress to legislate on the subject is conceded the right of the Vice-President under the Constitution to count the votes is denied. That -proposition it seems to me is very plain. ]f the Constitu tion vested in the Yice-President the right to count the votes then no power can take it away from him ; it belongs to him ; he must exercise it ; nobody else can. When Chancel lor Kent says this is a subject upon which Congress may legislate, that Congress may provide who shall count these votes, of course his opinion is that the Yice-President has not the constitutional right to do it or that it is not vested exclusively in him. I think that view is supported precisely by the report of the committee which was quoted by the learned and eloquent Senator from Maryland. It will be observed that the same body of men framed both the Constitution and the report. That was a report to the conven tion that framed the Constitution of the United States, and was adopted by that body. In construing the two instruments, therefore, if we dnd any difference in phraseology be tween them, what is the natural inference? It is not that the two mean the same thing, but that they mean different things. If the same body of men make two instruments, and if in making one they use particular language and in making the other they use other lan guage in regard to the same subject, no rule of construction authorizes us to assume that the two instruments have the same meaning. The Constitution provided, as originally framed, in the second section of the second article, that the Vice-President should open the votes and they should then be counted; just as the twelfth article of the Constitution now pro vides. After the Constitution was constructed the report was made. The object of the re port was merely to put in force the Constitu tion. We then had no President, no Vice- President. This report was in the nature of a schedule, such as accompanies all new State constitutions, specifying the means of putting it in operation, and nothing more. The Vice- President could not count the votes and deter mine who was regularly elected, because he did not then exist. Somebody had to do it. Therefore they had to provide some tempo rary expedient, and having provided first in the Constitution in general terms that the Vice-President should open the votes and that they should then be counted, they provide in this report for a special officer to be elected by the Senate, who should do what ? That the electors should meet on the day fixed for the election of the President, and should transmit their votes, certified, signed, sealed, and directed, as the Constitution requires to the Secretary of the United States in Congress assembled. That provision was changed afterward by directing the votes to be sent to the President of the Senate. That the Senators and Eepresentatives should convene at the time and place assigned; that the Senators should appoint a President of the Senate for the sole purpose of receiving, opening, and counting the votes for President; and that after he shall be chosen, the Congress, together with the President, should, without de-lay, proceed to exe cute this Constitution. , then, that officer was elected for a single purpose. He was particularly deputed by this report to receive, to open, and to count the votes ; but when you come to the Consti tution itself it authorizes him to receive and open, and omits to direct that he shall count the votes. Then what is the rule of construc tion by our courts? When this report provides that the Vice-President or the presiding officer shall receive, shall open, and shall count the wtes, and the Constitution says that he shall receive and open them, by what rule of con struction, I ask, is it that anybody can say that he shall also count the votes ? The instrument itself upon its face would seem to me to de termine it. When we recollect that it was made at the same time that this report was made, by the same body of men, and that these words that are important and material in the report are omitted in the Constitution ; when we recollect that the Constitution spe cially takes away from the Vice-President that particular power, I cannot understand how it is that any one can contend that the framers of the Constitution intended that it should give to that officer the right to count these votes. Every rule of construction and every court in the land would determine that the Constitution meant something different from the report because it omitted an important part of the report ; that it meant something different because it used different language ; that it could not mean the same thing when the two were so widely different in their terms. Therefore, I respectfully submit to the learned Senator that his argument is in de fault in that respect. Upon reviewing all the propositions that COUNTING THE ELECTORAL VOTES. 599 have been made, I still insist that the amend ment offered by myself, that where there is a disputed question in regard to a return, the two Houses together, voting by States, should decide it, is the one most in consonance with the Constitution and with the spirit of our in stitutions. It preserves the legitimate and con stitutional weight of the States, and it is the only mode suggested that does. It presents the same features that the electoral college has, and it is the only provision that does it. It car ries out just what the framers of the Constitu tion seemed to intend, and it is the only one that does it. It remits the decision of an im portant question to the two Houses acting in their capacity under the Constitution and act ing in the way that the Constitution intended them. It seems to me, therefore, with all due def erence to the opinions of other Senators, that this proposition is the true solution of this question and should be adopted. The PRESIDING OFFICER (Mr. MITCHELL in the chair). The question is on the amend ment offered by the Senator from Virginia [Mr. JOHNSTON] to the amendment of the Senator from Tennessee [Mr. COOPER]. Mr. JOHNSTON. I ask for the yeas and nays. The yeas and nays were ordered. Mr. BOGY and Mr. HOWE. Let the amend ment be reported. The PRESIDING OFFICER. The amend ment and the amendment to the amendment will be read. The CHIEF CLERK. The amendment of Mr. COOPER is to add to section 2 the following words : And if the two Houses do not agree as to which return shall be counted, then that vote shall be counted which the House of Representatives, voting by States in the manner provided by the Constitu" tion when the election devolves upon the House, shall decide to be the true and valid one. It is proposed to amend this amendment by striking out all after the first word, "and," and in lieu thereof inserting the following : If the Senate should vote for counting one certifi cate and the House of Representatives another, the joint meeting of the two Houses shall finally deter mine which shall be counted, by States, the repre sentation from each State, including the Senators therefrom, having one vote ; but if the representa tion of any State shall be equally divided, its vote shall not be counted. Mr. SARGENT. I should like to inquire whether if this amendment be adopted it so adopted becomes the text, so as to be capable of amendment. The PRESIDING OFFICER. This is an amendment to the amendment of the Senator from Tennessee, and if adopted it will be still subject to amendment. Mr. SARGENT. It can be superseded by another amendment ? THE PRESIDING OFFICER. It will be open to amendment of course. The question is on the amendment to the amendment, upon which the yeas and nays have been ordered. The question being taken by yeas and nays, resulted yeas 11, nays 39 ; as follows : YEAS Messrs. Allison, Bogy, Davis, Johnston, Kelly, McCreery, Ransom, Sargent, Saulsbury, Thurman, and Withers 11. NAYS Messrs. Booth, Boutwell, Burn side, Cam eron of Pennsylvania, Cameron of Wisconsin, Chris- tiancy, Cockrell, Conkling, Cooper, Dawes, Dennis, Eaton, Edmunds, Ferry, Frelinghuysen, Gordon, Hamilton, Hitchcock, Howe, Ingalls, Jones or Florida, Key, Logan, McDonald, McMillan, Maxey, Merrimon, Mitchell, Morton, Norwood, Oglesby, Paddock, Eandolph, Robertson, Sharon, West, Whyte, Windom, and Wright 39. ABSENT Messrs. Alcorn, Anthony, Bayard, Bruce, Caperton, Clayton, Conover, Cragin,Dorsey, English, G-oldthwaite, Hamlin, Harvey, Jones of Nevada, Kernan, Morrill of Maine, Morrill of Ver mont, Patterson, Sherman, Spencer, Stevenson, Wadleigh, and Wallace 23. So the amendment to the amendment was rejected. The PRESIDENT pro tempo-re. The ques tion recurs on the amendment proposed by the Senator from Tennessee [Mr. COOPER], which will be read. The Secretary read the amendment, as fol lows: And if the two Houses do not agree as to which return shall be counted, then that vote shall be counted which the House of Representatives, vot ing by States in the manner provided by the Consti tution when the election devolves upon the House, shall decide to be the true and valid return. Mr. EDMUNDS. I ask for the yeas and nays on that. The yeas and nays were ordered ; and being- taken, resulted yeas 13, nays 35; as follows: YEAS Messrs. Bogy, Caperton, Cooper, Davis, Gordon, Johnston, Kelly, McCreery, McDonald, Eansom, SauLsbury, Thurman, and \\ v ithers 13. NAYS Messrs. Allison, Booth, Boutwell, Burn- side, Cameron of Pennsylvania, Cameron of Wis consin, Christiancy, Cockrell, Conkling, Dawes, Dennis, Eaton, Edmunds, Ferry, Frelinghuysen, Hamilton, Hitchcock, Howe, Ingalls, Jones of Flor ida, Key, Logan, McMillan, Maxey, Merrimon, Mitchell, Morton, Oglesby, Paddock, Eobertson, Sargent, West, Whyte, Windom, and Wright 35. ABSENT Messrs. Alcorn, Anthony, B*ayard, Brace, Clayton, Conover, Cragin, Dorsey, English, Goldthwaite, Hamlin, Harvey, Jones of Nevada, Kernan, Morrill of Maine, Morrill of Vermont, Nor wood, Patterson, Randolph, Sharon, Sherman, Spen cer, Stevenson, Wadleigh, and Wallace 25. So the amendment was rejected. Mr. MAXEY. I handed in yesterday an amendment which I propose to offer at the proper time. I believe this is the proper time. The PRESIDENT pro tempore. There is^io amendment pending ; the bill is open to amend ments. Mr. MAXEY. I offer the amendment and ask that it be read. The PRESIDENT pro tempore. The amend ment will be reported. The CHIEF CLERK. The amendment is to add to the second section the following : But if the two Houses fail to agree as to which of 600 PROPOSED LEGISLATION AS TO THE MODE OF the returns shall be counted, then the President of the Senate, as presiding officer of the two Houses, shall decide which is the true and valid return, and the same shall then be counted. Mr. EDMUNDS. I ask for the yeas and nays on that amendment. The yeas and nays were ordered. Mr. MAXEY. I ask that the whole section as it will stand if amended be reported. The PRESIDENT pro tempore. The section will be read as it will stand if this amendment be agreed to. The Chief Clerk read as follows : SEC. 2. That if more than one return shall be re ceived by the President of the Senate from a State, purporting to be the certificates of electoral votes given at the last preceding election for President and V ice-President in such State, all such returns shall be opened by him in the presence of the two Houses when assembled to count the votes : and that return from such jState shall be counted which the two Houses, acting separately, shall decide to be the true and valid return. But if the two Houses fail to agree as to which of the returns shall be counted, then the President of the Senate, as presiding offi cer of the two Houses, shall decide which is the true and valid return, and the same shall then be counted. Mr. EDMUNDS. I have two objections to this amendment. The first is one perhaps of mere phraseology. It declares that " the Presi dent of the Senate, as presiding officer of the two Houses, shall decide." I do not think myself, under the Constitution, that any duty of the President of the Senate imposed upon him by the Constitution in respect to counting the votes is in the character of a presiding offi cer of the two Houses, which implies a strict joint assembly, and logically to my mind would imply that the two Houses then and there as sembled, as they frequently do in the States, as they do in my State, should act in a con solidated way and decide any question that might arise just as either House would alone. Therefore, phrased as the amendment is, I can not vote for it for that reason, for I do not un derstand that the President of the Senate is the presiding officer of either House when he is performing that duty, in any legal and con stitutional sense. That he sits in the chair, and that everybody keeps quiet, I agree ; but in respect of it in a legal and constitutional sense I do not believe it at all. But of course it would be very easy to change that phrase ology. The objection that I have in substance to this amendment, and which to my mind is ab solutely fatal, is that the President of the Sen ate may be, sometimes has been, and very like ly* often will be a candidate for President or for Vice-President himself, and this amend ment proposes that that very person, selected by designation, shall, in a case of great doubt and dispute, when the two Houses acting with a patriotic disposition to follow the law and the Constitution are unable to agree, decide himself whether he shall be President or not. It appears to me that that would be a very un safe and dangerous proposition. It is wrong in principle, as I think ; anA that it would be dangerous in the last degree in practice, I have n*> doubt at all. Mr. MERRIMON. Mr. President, I cannot support this amendment. In my judgment, after very considerable reflection, the duty of counting the electoral vote for President and Yice-President is devolved upon the Senate and the House of Representatives as composing the Congress. My mind is not clear whether the two Houses when sitting in joint session should vote as one body or vote separately. At the last session I ventured to say that they should vote as one body. The inclination of my mind now is the other way; but be that as it may, the exclusive jurisdiction is in Congress, and I think so for reasons which I will not now de tain the Senate to express. Entertaining that view, we have no power to delegate to the President of the Senate, or to the Supreme Court, or to commissioners, or to any tribunal whatsoever the right to decide any controvert ed question arising upon the count of the votes. It must be done by the Congress ; by the Sen ate and House of Representatives. As I said, I will not detain the Senate now by assigning the reasons why I think so. I merely wish to say that I cannot support this amendment upon that ground. Mr. BURNSIDE. Mr. President, I shall de tain the Senate but a moment. I approach this question with a great deal of diffidence. It has been discussed by the best legal minds of the Senate and the best legal minds of the land ; but I am well convinced that, if a constitution al mode could be adopted for perfecting the electoral returns before they come before the joint convention of the two Houses, it would be a desirable thing to do, and we should di rect our efforts to bring that state of affairs about. There should be no bone of contention in the joint convention when it meets. The great danger is that there may be a difference of opinion there which might create such great discord as to endanger the peace of the country. Now, it does seem to me that it is within the province of the law-making power of the Gov ernment to impose upon the Supreme Court any duty which is reasonable and proper, just as Congress imposed on that court duties with reference to the appointment of registers in bankruptcy and the organization of bankrupt courts. These duties were quite outside of the specific duties of the Supreme Court under the Constitution, and it seems to me that all agents of this Government, whether Cabinet ministers, courts, or officers of any kind, can have reason able extra duties imposed upon them by Con gress, which they are bound to perform or give up the positions they occupy. Taking that view of the matter, it is clear to my mind that such legislation should be had here as to remove all doubt as to the prima facie legality, if I may say so, of these returns before they come to the joint convention. If the electors were made to meet, say, on the last COUNTING THE ELECTORAL VOTES. 601 Wednesday of November, instead of early in December, as the law now provides, and if the joint convention of the two Houses would meet, say, on the second Wednesday in February, instead of late in January, ample time would be given for an examination of these returns. I do not mean an examination of the matter inclosed in the envelopes, but an examination of the conditions under which the votes were cast. If the electors were obliged by law to subscribe their names on the envelopes inclos ing the returns, together with the date and hour of meeting and mode of procedure, then the returns when they reach the President of the Senate would show on their faces all ne- cessarv information to determine their legality or illegality. If these returns could bo submitted by the President of the Senate to the Supreme Court, either as a court or as a board of examination organized under a law of Congress for the pur pose of examining the returns, the fact would develop itself at once if there were irregular ities of procedure, or if two or more sets of returns had been forwarded from any one State. In the latter event the court or board of examination could send for witnesses and issue all necessary processes to determine which were the legal returns. After the ne cessary examination the legal returns could be certified back to the President of the Senate by the board of examination, and he would then be able to present to the joint convention at their meeting returns which on their faces would show themselves valid. Thus the in trusion of this bone of contention would be avoided. There may be grave constitutional objections to this plan, but I can see no reason why the duty cannot be imposed upon the Supreme Court in some form. It seems to me an equi table way of arranging the matter, and one that would be acceptable to the people. The Presi dent of the Senate, in my opinion, could be au thorized by Congress to part with these returns, for the time being, for the purpose of this ex amination. It is gratifying to me, and must be to every Senator, to witness the spirit with which this question has been approached. There seems to have been no display of partisan feeling, and^we should endeavor before we leave the subject to have it in such condition as to leave no ground for such a display at the meeting of the joint convention. i merely throw out these remarks for con sideration. I have drafted an amendment to the bill covering these points which at the proper time I may offer. Mr. SAULSBURY. Mr. President, I had not proposed to say anything upon this sub ject, but the amendment of the Senator from Texas is of a character that I think will be very dangerous in practice if it should be adopted. I only rise to say that I cannot vote for the amendment of the Senator from Texas. It proposes to confer in a certain contingency upon the presiding officer of this body the right to determine a question about which the two Houses of Congress are at disagreement. I think that would be a very dangerous power to place in the hands of any one man, however exalted his position, however pure his life and character. I would be unwilling to confer such a power, involving such consequences as would then probably arise, upon any one in dividual. Especially would I oppose the vest ing of such great power in the Vice-President after there had been a disagreement between the two Houses of Congress upon the subject of which of two returns of the vote for President of the United States, certified from the same State, should be counted. I fully realize the importance of the subject which has been brought to the attention of the Senate by the bill under consideration, and in the Committee on Privileges and Elections where it was under discussion I think the feel ing very generally was that the question was one of vast importance and one which ought at least to be brought to the consideration and attention of Congress. The bill was reported from the committee for that purpose, with the distinct understanding that the respective mem bers of that committee were not bound by the simple fact that the bill was reported to ad here to its provisions. I should have preferred the amendment offered by the Senator from Virginia [Mr. JOHNSTON], and I voted for that most cordially as an amendment, but it has been voted down. Now, there is no doubt but what there might possibly arise a contingency in the his tory of this country when, if we have nothing but the constitutional provision on this sub ject, great difficulty and embarrassment may result. I have listened to this debate ; I have heard the views of Senators in reference to the true meaning of the constitutional pro vision in regard to the counting and ascertain ing of the result of a presidential election; and I must confess that I widely differ from my learned friend from Maryland [Mr. WHYTE] in his view of that subject. The constitutional provision is simply that the presiding officer of the Senate shall receive and open the votes. It does not say nor does it imply, in my opin ion, that he shall count the votes. In fact, the argument of the Senator from Virginia this morning showed that if any im plication arises from the language of the Con stitution and the practice at the first Congress, it is adverse to the conclusions of the Senator from Maryland, and the implication is the other way, that he shall not count. Mr. Lang- don, the first presiding officer of this body under the Constitution, before its adoption, was specially required and authorized to count the votes by resolution of the Senate when no such authority was conferred upon the pre siding officer of this body under the language of the Constitution. The presiding officer at 602 PROPOSED LEGISLATION AS TO THE MODE OF that time, Mr. Langdon, was appointed to re ceive, to open, and to count the votes ; but under the constitutional provision, the Presi dent of the Senate was only to receive and to open the votes. There is no express grant of authority in the Constitution to the President of the Senate to count the votes ; and I ap prehend that it would have been perfectly competent at any previous period in the his tory of this country for the Congress of the United States to have determined for them selves, in the absence of an express provision on the subject, who should count the votes, whether the President of the Senate, or the Speaker of the House, or persons appointed by their respective Houses. There is nothing in the Constitution to inhibit it, either by express provision, or, as I conceive, by im plication. I am fully aware that the precedents which have been cited are entitled to some weight as authority, indicating at least what may have been considered the meaning, but they are not constitutional provisions. The practice has been, and the precedents establish the practice, that the presiding officer of this body counts when there is but one return ; but those pre cedents do not incorporate any provision into the Constitution, and in the absence of such a provision, I maintain that it would have been competent, on any occasion when the vote for President was to be counted, for the respective Houses of Congress to have designated some other party than the President of the Senate to count the votes. I am not saying that the practice has not been a wise one. I am only saying that that practice has not the force and effect of constitutional provision, that it incor porates nothing into the Constitution that is not there, and that in the absence of any con stitutional provision on the subject as to who shall count the votes, it was competent for Congress to provide some person other than the President of the Senate to have counted them, if in their wisdom they had seen proper so to do. Now, the bill as reported from the Commit tee on Privileges and Elections fails to provide for one contingency that may happen. I do not know that I have any serious objection to the bill except upon that ground, that it fails to provide for one contingency that may happen in the future history of this country v and that is when two returns have been sent up from any State, and the two Houses of Congress are at disagreement in reference to which of those two returns are the true re turns, then, if they cannot agree, but disagree, the vote of that State shall be thrown away. That such a contingency may arise is unques tionable, because it has arisen at one time, and at the very last presidential election such a contingency did arise, and the vote of Louisiana was cast aside. Now, we ought not to leave this matter in that condition. The bill introduced by the Senator from Indiana does leave it in that con dition, if there is no concord and agreement between the two Houses. The bill is defec tive in not further providing some rule by which the true returns from a State in that condition shall be counted. The amendment of the Senator from Virginia met the case, in my judgment, upon the true and proper ground ; that was, to give to the two Houses of Congress, voting by States, the right and the power to determine that question. But that amendment has been voted down. And now an amendment is presented by the Sen ator from Texas that in that contingency that is, upon the disagreement of the two Houses of Congress the power shall be conferred on the presiding officer of this body. That, I say, would be conferring on him a most fear ful power ; and the exercise of that power on his part, I apprehend, would not only create dissatisfaction, but might lead to results in themselves very embarrassing. It is not to be presumed that, if the two Houses of Congress disagree as to which of! the returns in the case of double returns should be counted, there would be general acquies cence in the decision of the presiding officer of this body, and especially if his decision was cast in harmony with the views of his party on that subject. To avoid any such danger, to avoid the possibility of questioning the cor- i rectness of his action, I should be unwilling to see him placed in the possession of such ] authority. Nor do I believe that the presiding officer of this body has the right under the Constitution, as has been contended by some already, of judging when two returns are made which is the proper return. It is a case which was not contemplated by the Constitu tion, and for which no provision has been made ; and if I could admit (which I do not admit) that the Constitution confers upon him now the power of counting the votes, that j being a mere ministerial act, it does not con- j fer upon him the power of judging as to which j of two returns is the correct return ; it does j not devolve upon him the fearful power of de- ! ciding a question of that magnitude. Certain ly it will not be contended that, when there are two returns presented to the presiding i officer of this body where he must exercise j judgment, where he must exercise discretion, the decision of that is the exercise of a minis terial act. It is a judicial act, to all intents and purposes. The Senator from Maryland, if I understand him aright, contends that the power to count : the votes is lodged in the President of the Senate, and is a ministerial act; but if he means to go so far as to say that any decision j which he may render between different re- | turns is a ministerial act, I differ entirely and j essentially from his conclusion. Wherever there is the exercise of judgment required, wherever there is discretion involved, then the j act ceases to be a ministerial act and becomes, | COUNTING THE ELECTORAL VOTES. 60,3 not uo*i-judicial, but judicial in fact. So then, if I were to admit that under the Con stitution the President of the Senate is invest ed with authority and power, not only to re ceive and open the votes, but to count the votes, I do not admit that, when the question is presented of deciding between two sets of returns, he is invested with any authority under the Constitution of deciding which shall be counted. That being the case, I was in favor of some amendment to the bill pro posed by the Senator from Indiana which would meet that contingency. But nothing that I have seen yet fully meets with my ap proval except the amendment, which has been rejected, offered by the Senator from Vir ginia. It is true I voted for the amendment of the Senator from Tennessee [Mr. COOPER] as the next best proposition to meet the diffi culty, but that likewise has been defeated. !N"ow the proposition of the Senator from Texas [Mr. MAXEY] is of such a character, in- esting the presiding officer of this body with uch fearful power, that I am unwilling that liat should become a part of this bill, pre- erring, if it is to pass, that it pass without ny such amendment. I shall therefore vote gainst his amendment, and it was more for lie purpose of announcing my determination o do so that I arose on this occasion than to nter into any general discussion upon the bill r the subject which it brings to the attention f the Senate. Mr. FRELINGHUYSEN. Mr. President, ome days ago in making some remarks on this ubject, I expressed myself as favorable to uch an amendment as that which has since een proposed by the Senator from Texas. )n reflection, however, I became so impressed nth the fact that our past history shows us hat the President of the Senate, either on a eelection as Vice-President or as a candidate or President, is so likely to be interested in he result of the question which he may thus e called upon to decide, that I abandoned that roposition and introduced an amendment, vhich is not perfect, but which has hitherto ommanded the most votes, that the Speaker f the House of Representatives representing he popular branch, the President of the Sen- ,te representing the States, and the Chief Jus- ice, the head of the judiciary, should be a ribunal to decide the question. That, I con- luded, was the best tribunal we could have, a ribunal further removed from political influ- nce than any other ; and unless some other imendment is adopted, when this bill passes nto the Senate, I think I shall renew that >roposition. I simply rose to say that it seems to me the >rob-ability of the presiding officer of the Sen- ite being interested in the question is a reason hy I shall not vote for this amendment. Mr. SARGENT. Mr. President, I think it s a matter of regret that we cannot agree upon ome plan for the decision of a question almost inevitable in the future, and where for the want of a decision the consequences are cer tain to be so grave. With what time and at tention I have been able to give to studying the various amendments proposed, I have thought that the one proposed by the Senator from Texas was preferable to any other, al though not entirely satisfactory. The Consti tution contains in a single clause all power and all direction there is upon this matter. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. It must either be done by the President of the Senate or by the two -Houses. Certainly it is as fair to presume that by this provision of the Constitution it is as much intended that the duty of deciding which are the correct returns shall be devolved upon the President of the Senate as upon the two Houses. The proposition that the Houses, acting either sep arately or together, shall decide, has been al ready rejected ; and the only portion of the Constitution which lias any operative effect left for us to act upon is the first portion of it, which says that this duty, so far as the open ing at any rate is concerned, shall devolve on the President of the Senate. I am aware that the contingency may arise, has arisen before in our history, when the President of the Senate would be a candidate for President or perhaps for Vice-President, and his act might have the effect to either elect or defeat him and his party in his aspirations to that office. But I had rather, even with any temptation which might arise under that con dition of things, leave it to the fair judgment of any man of sufficient character to be intrust ed with the position of presiding officer of the Senate than to leave it to either House, or to both Houses, or to any tribunal where it will be determined simply upon party considera tions. I suppose there is no doubt that a de cision by States in the House of Representa tives would be influenced almost wholly by questions of party, and adding the Senate to them would not change those considerations at all. If the Senate and the House should decide this matter sitting in joint convention, each Senator and each member having one vote, it would still be determined by mere party con siderations ; and I doubt if we are to expect in a decision so made the highest equity ; but to any man occupying the position of presiding officer of the Senate, who should wrongfully, and obviously wrongfully, decide, whereby he became a gainer and attained high office, the office of President or Vice-President, such con tempt would follow him during his term and during his whole life that I believe any one would shrink from encountering it. In this day of the rapid propagation of public opinion, of the facility for making known all facts, of sift ing things to the bottom, any man who should fraudulently decide in favor of his own claims by wrongfully declaring upon these returns, 604 PROPOSED LEGISLATION AS TO THE MODE OF would place himself in a more unenviable posi tion than that of Benedict Arnold, I might say even than that of Judas Iscariot ; and it would be impossible for any man, under any tempta tion or for any office, even if he could hold it after such an act, to shield himself or to en counter contempt like that which would fall on Ms head from the whole American people and from the x inhabitants of this globe. Therefore I believe that that in itself would be a safeguard for the purity of his act, and a very high one. For this reason I am disposed, for one, to vote for this amendment and to lodge this pow er where it would seem that by some plausible interpretation of the Constitution the fathers intended that it should be lodged. There may be some difficulty in the wording of the amend ment. Of course in the Senate, when this bill is reported, if the amendment shall be now adopted, the phraseology can be changed ; but there is certainly the idea carried in the Con stitution that the President of the Senate is the presiding officer of the body : The President of the Senate shall, in^the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. There certainly is a body assembled, a joint convention made up of the two Houses, as sembled for this limited purpose, and a person is designated who is to act in their presence, and act in the way that a presiding officer ordinarily acts. Of course he is not here called distinctly the presiding officer of the body, but the inference is certainly carried by the lan guage that he is to act in a certain capacity, and to a very large extent in that manner ; and therefore the phraseology itself does not trouble me much, but I believe it can be cor rected in that respect, and may conform per haps more nearly to the language of the Con stitution by leaving out the words " as presid ing officer of the two Houses," and simply require this duty of him in the presence of the two Houses. I give thus briefly my reasons for voting for this amendment. I think it is the best we have had. Mr. EDMUNDS. Mr. President, I must confess my surprise at the ground upon which my learned friend from California has placed his support of this amendment, touching a man s judging in his own case. If I under stand him, his reason for being in favor of this amendment, so far as it respects that particular feature of it, is that, if a man were to judge erroneously, wrongly, in his own case in order to gain the election, if he were a candidate himself, he would be so followed by obloquy and moral perdition in this world that he would be restrained from doing it. Mr. SARGENT. I spoke of corruption; not of an error in judgment. Errors of judg ment we are all liable to ; and so is any human tribunal. Mr. EDMUNDS. So we are ; but I have always been taught to suppose that those people were least liable to errors of judgment who had no interest in the question to be de cided. That is the very principle upon which, as I understand it, we nowhere in our polity, and nowhere in the polity of any civilized country, allow a man to be a judge in his own cause. It is not because any man who may happen to have a cause and be a judge is cor rupt, or would mean to be corrupt if he de cided his own cause; but it is because we know, as human nature is, that no man in his own cause can generally be considered as im partial, that his mind is biased, and his intel lect, therefore, is unable from the very nature of things to hold evenly and fairly the balance between opposing considerations or opposing facts. That I understand to be the principle upon which we do not allow people to act themselves where they themselves are con cerned. That is the reason why we do not allow a Senator here to vote upon a measure in which he is directly and personally inter ested, peculiar to himself; not that if he did it we should expect that he was doing it from corrupt motives, if he decided in his own favor, but because we should expect that he was incapable, in the nature of things, of bringing to the consideration of that question a perfectly impartial mind. I think that is the principle. Now, here you propose by a distinct affirma tion of law that a person who may be, and who often is, and is likely often to be, the very per son whose right to the office is in question, shall, in a case of the greatest doubt, when the two Houses disagree, and when the direction in which that doubt may be solved is to turn the scale, be the judge himself. Mr. Presi dent, it does not appear to me that that is sound in principle or safe in practice ; quite the reverse. If there is any man who ought not to be authorized to exercise any judgment to determine a disputed question it is that man who is interested in it; and yet this amend ment selects the very person who in our past history has sometimes been, and in our future history often will be, the person voted for as either President or Yice-President of the United States. I do not think, therefore, that the reasoning of my learned friend from Califor nia is well founded. Mr. SARGENT. I might add another sug gestion. This case, of course, is encompassed ; with difficulties. I presume that any one who addresses himself to it does it with some doubt, with some fear of the correctness of his owni conclusions. I have endeavored to inform my- j self by the progress of this debate of the diffi- ! culties that were to be encountered, and to ; exercise such judgment as I could in arriving at a conclusion. At the same time I am aware , that it is difficult for me, in the absence of light in the Constitution, and in view of such differences of opinion among those around me, to arrive at a conclusion in which I can have entire confidence; but I can suppose a case COUNTING THE ELECTORAL VOTES. 605 where if the presiding officer of the Senate was a candidate for the Presidency of the United States, nominated by any party or re ceiving any electoral votes, and it became his iluty under a law like this to open and decide upon the returns, he would retire from the bffice ; he would resign ; and then it would be ; in the power of the Senate to choose some parson who would not have this disability. I am not sure that if it was decided that the responsibility had better be concentrated upon a single individual of high character rather than be diffused through a body where respon sibility is entirely lost, so many partaking of it, and it becomes merely conventional and Iparty, the law might not require that the pre siding officer of the Senate should vacate his ffice if he became a candidate for President >f the United States, or rather in case any ilectoral votes should be cast for him. That lertainly would remove the difficulty. Then he presiding officer of the Senate does not >ass upon a question the result of which is to ;ive him either the Presidency or Vice-Presi- lency of the United States. I would suggest hat to my friend from Vermont as entirely bviating the objection which he makes to the imendment. That is to say, the amendment night be so framed that in case the presiding fficer shall receive electoral votes from any State in the Union he shall retire from his ffice and the Senate shall select a presiding )fficer whose duty it shall be to open the re- urns. Mr. EDMUNDS. How do you get the con- ititutional power to do that ? Mr. WEIGHT. Mr. President, I was im- jressed, when the question was first mooted f the necessity for an amendment to this sec- )iid section, that some plan should be devised ;o avoid or prevent what it was said would nevitably follow in case of a disagreement be- ;ween the two Houses, that a State might be lisfranchised. I then turned over in my own nind what plan would be better, which of ;he several amendments that have been sug gested it would be better to adopt in order :o meet the contingency that might arise. The more I have reflected upon the subject, ,he more I have been brought to the opinion ;hat I believe it to be better and safer and nore logical to leave the bill as it stands. I confess that so far as the amendment under consideration is concerned, it strikes me of all others as being the most objectionable. I certainly cannot agree to the reasoning or ar gument presented by the Senator from Cali fornia. It occurs to me that if that argument [)e sound, then upon the same principle it were better and safer in all cases to make a man judge in his own case, because that high sense of honor which the Senator presumes would obtain in the person who is to decide this question would necessarily keep him in the right path. All experience demonstrates this one thing, it seems to me, as conclusively as anything else that can be demonstrated, that we know less of the strength of our own preju dices than of anything on earth ; and there is no one thing upon which we are such un safe judges as when we come to determine how strong our prejudices or feelings or in terests may be on a given question. If self in any instance this wavering balance shakes, it is rarely if ever rightiadjusted. We may think it is, but it is inevitably true that it is not right adjusted. Now take the proposed amendment ; how ever much may be the interest, however much may be involved in the question, personally or otherwise, to the person who has to decide it, he may attempt to divest himself of all preju dice and all feeling and all interest, and yet, all unconsciously it may be, he is thus influ enced. It is dangerous for that reason to in trust him with the determination of that ques tion. There can be but one reason, it seems to me, in logic for leaving this question to the pre siding officer, and that is by reason of his rela tions to the two bodies. There is argument in favor of that by reason of his relation, rather than leave it to an outside tribunal ; and yet it seems to me that that reason is more than overcome by his possible, and in many in stances his actual, relation to the question ; and for that reason, without mentioning oth ers, it seems to me that the argument against intrusting the power of deciding the question to him is all-conclusive. Now, suppose the presiding officer shall not be the person, then it is proposed either that the judges of the Supreme Court, not as a court, shall be selected as the tribunal to which this question shall be left. Another proposi tion is that it shall be left to three persons per haps the presiding officers of the two Houses and the Chief Justice of the United States ; and other tribunals have been named. It occurs to me that it is illogical, and in the face of the very theory of our system of government, the nature and duties and obligations imposed upon the legislative department of the Govern ment, that an outside tribunal shall be selected as umpire. It seems to me to be just as logi cal that in a case where the two Houses are unable to agree upon a bill, upon a joint reso lution, or any other measure, you shall provide that an umpire shall be called in to settle this difference. If the presiding officer of the Sen ate can be trusted by reason of that sense of duty that he feels is imposed upon him, and that fear of public condemnation, then why not the two Houses of Congress ? Each and every member of either House must be impressed just as much as he would be, and comes to the discharge of the duty impressed with the solemn obliga tions that are upon him. Now when the two Houses, acting honestly, faithfully, with a sin cere desire to arrive at what is right, as we must presume they are thus impressed, are un able to determine, why not there leave the 606 PROPOSED LEGISLATION AS TO THE MODE OF question, and why seek from an outside tribu nal to settle this question that they are unable to determine, a question that they have strug gled to settle honestly and faithfully and under their oaths ? It is said that it is unfair and that it is un just to a State that its electoral vote shall be rejected, and that unless you provide some tribunal it may occur, Ate two Houses disa greeing, that the vote cannot be counted. Now suppose that shall occur. It occurs after an honest and faithful effort on the part of the two Houses to agree. The two Houses have attempted to agree upon a bill and it fails ; and the two Houses have attempted to agree upon this question and they fail. I think it would rarely occur that the ques tion could be presented in such a form that the two Houses could not agree; but if it should occur, it results from mismanagement, corrupt, captious, unfair, unfaithful conduct on the part of the officials of a State, because persons representing the State have sent up their returns in such a form that the two Houses, acting in good faith and under their sworn obligations, are unable to determine what shall be done. If in such an event a State shall not have its vote, it occurs to me it is only one of those cases where, by reason of the mismanagement of the State or by reason of the inability of the two Houses to agree after the most faithful action or both together, the State fails to have its vote, it may be a misfortune, but it is only another instance of those that frequently occur in legislation or in the administration of our affairs where there is loss, and it were better and safer that the loss should occur, perhaps, than to attempt to encourage any doubtful legislation or to pro vide a tribunal or method of settling it that is doubtful and questionable, to say the least of it. I therefore have reached the conclusion that I shall vote for the bill as it stands, so far as this section is concerned. I am opposed to the present amendment. I am opposed to the erec tion of any tribunal outside of the two bodies to come in and assist in this question. I think the two Houses ought to count the vote, and if they are unable to agree where there are two returns, then, if it occurs that the vote of the State is lost, it results after the most faithful, deliberate and conscientious action, as I am bound to suppose, on the part of the two bodies. If, then, they are unable to agree, we have a case that is not provided for, and that we can not safely provide for, perhaps, as the Consti tution stands. Mr. DAWES. Mr. President, my difficulty with this amendment is that it derives its whole authority from a statute. A statute of the United States in this amendment devolves upon the President of the Senate ; or, in the amendment of the Senator from New Jersey, upon three persons designated ; or, in the amendment of the Senator from Indiana, upon the members of the Supreme Court a statute devolves upon them the designation of a Presi dent of the United States for four years. Their authority is derived solely from a statute of the United States, for nowhere in the Constitution of the United States is the idea broached that upon any individual in the United States shall be devolved the power of selecting the Presi dent of the United States. He who decides this question designates a President of the United States, and he gets his authority from this statute, and nowhere else. Whether the President of the Senate could be trusted, or whether the gentlemen selected in the amendment of the distinguished Senator from New Jersey could be, or those high char acters who constitute the Supreme Court of the United States (which is, in my opinion, the best of all the amendments), it is enough to my mind that they have no other authority to designate a President of the United States than that which they derive from this statute ; and that while the Constitution of the United States took what its framers thought was all necessa ry pains at that time to guard and secure the selection by the people of a President, it has been left to us here to discuss the question whether by a statute we cannot safely desig nate a man or men who will select for us a President of the United States. Sir, that is such a departure from the Constitution that I cannot vote for it. If there were no other ob jection, it is a power reposed in one man or in ten men, however high their character, that it would not be safe to confer. It is in violation of all the analogies and all the theories upon which the Government itself is based, and it would be the strangest anomaly in what would otherwise be called a free government of the people, that although in all things else the na tion and the Constitution had studied to give effect to the voice of the people, we had here deliberately, by a short section of three lines, selected a man and clothed him with the power of saying who shall be the President of the United States. It may be but the best way out of a difficul ty, which I admit (as the Senator from Indiana has over and over again impressed upon the Senate) may exist ; but because it exists, it does not authorize us without authority of the Constitution itself to clothe any man with this authority. I agree with what has just been said that while the Constitution does clothe these two Houses with power, if they fail to agree, the legal effect of it if you do not put it into the bill the consequence of their failing to agree is just what you have written out in this bill, nothing more. If a question arises, about the opening of a vote, whether you shall count it or not, and those on whom the Constitution has devolved the duty of de ciding it fail to agree, the legal consequence is precisely what this bill says shall be the con sequence. It cannot be counted, because those upon whom the Constitution has devolved the COUNTING THE ELECTORAL VOTES. 607 power of determining it have failed to agree that it shall be counted, or how it shall be counted. And because they fail to agree, and because the Constitution has not gone further to dispose of the question, we propose to do so by a statute. The ingenuity of members of the Senate and the House may be exhausted upon selecting the best and the safest tribunal ; but still it will lack constitutional authority, and, lacking constitutional authority, it is naught and being naught to set up a man as President of the United States without author ity is another definition of usurpation. Mr. FKELLNG-HUYSEN". Mr. President, I cannot agree with my friend from Massachu setts that these amendments, or any of them, look to defeating the will of the people, and that this umpire, this tribunal, designates who is to be the President. The people who have voted, the electoral colleges, the States whose votes have been counted, have all had much to say as to who shall be President, and the ob ject of these amendments, one and all, is not to defeat the will of the people, but to prevent the will of the people being defeated. It is n the event of there being two returns that ;ve wish to have a tribunal to select the true >ne, because we believe that the Constitution ontemplated that in that event the vote of ach State should be counted. So it seems to ne that these amendments cannot be charac- erized as usurping the rights of the people. Again, I cannot agree with my friend in his proposition that these amendments have noth- ng to rest upon excepting statute; that they lave not a constitutional basis. Of course, if hey have not a constitutional basis, that is atal to them. But I understand that, when the Constitution says that "the votes shall then 3e counted," a duty is devolved upon the legis- ative branch of the Government. We are not ;old by the Constitution how we shall discharge ;hat duty ; and, according to all the analogies }f the Constitution, where any subject is de- olved upon a legislative department of the 3-overnment, and we are not told how we are to discharge the duty, we do it by legislation ; we are authorized so to do by the Constitution. The Constitution says that there shall be courts nferior to the Supreme Court. We go on and brginize them. So here it says these rotes (shall be counted. We go on "by legislation jknd say how they shall be counted. There is jk difficulty in finding a tribunal upon whom we have a right to impose the duty against itheir will. This is a difficulty, perhaps, which Ironld exist in reference to making the judges jbf the Supreme Court, not as a court, but as individuals, the tribunal in this case. If it is , new office created, they may accept it or not, ias they please ; and that is the only difficulty nhat I see in our arriving at a perfectly satis factory amendment. :? Mr. DAWES. Of course, the Senator from STew Jersey knows that I did not mean to say f.hat these amendments were designed to de- feat the will of the people; but the amend ments may have that result, inasmuch as the will of the people cannot be expressed by both of the certificates, and must be expressed through one or the other, and you clothe an individual with power to say which of those two. One of them expresses the will of the people, and the other defeats the will of the people. You give him the power to select be tween the two, and you give him the power to pervert the will of the people. That is what I meant to say. Mr. EDMUNDS. You do every judge in all cases. Mr. DAWES. I know it ; and therefore the Constitution thought it not wise to leave the question to one individual. If the meaning of the Constitution is that the votes shall be counted in such manner as the two Houses shall prescribe, it would be competent by leg islation to prescribe a method for counting ; but I have not understood any one, and cer tainly do not myself understand, the meaning of the Constitution to be, that the votes shall be counted in such manner as the two Houses may by law prescribe, but they shall be opened by the presiding officer in the presence of the two Houses as Houses, not as members of the Houses, and that they shall then be counted. I have understood all to agree that that means they shall be counted then, when they are in that presence, either by the President of the Senate, or by the two Houses, or by the joint action of the two Houses. If it is to be done by either, then it cannot be done by anybody else. I do -not know how that could be made clearer. If it is to be done by the President of the Senate, if that is the construction, in the presence of the two Houses, then it can not be done by anybody else ; and the attempt to clothe any other tribunal with the power to count the votes is to depart from that provi sion. If that provision of the Constitution means that it is to be done by the two Houses, then it cannot be done by anybody else, and the two Houses cannot devolve that trust on anybody else, nor can any law clothe anybody else with the power. That is my difficulty as well as objection, that it would not be safe to trust the President of the Senate with it, it would not be safe to trust any individual with it, it would not be safe to trust ten men picked out of the Senate of the United States with it, because underneath the point to be decided lie questions of fact growing out of the corruption and fraud and passion and disorganization and demoralization in a State, which has so weak ened and perverted its government that the State cannot make manifest who are the men it has appointed to be electors. There is the difficulty ; there it lies ; and nothing will rem edy it that does Hot reach that. Least of all will it remedy it for us to undertake to find an outside tribunal and clothe it by force of law with *his extraordinary power. " 608 PROPOSED LEGISLATION AS TO THE MODE OF May I ask the Senator from New Jersey where in the Constitution he gets the idea that the President of the Senate and Speaker of the House and the Chief Justice of the United States shall be a tribunal to count these votes by determining which of the two votes shall be counted, for that is equivalent to counting them ? I do not mean to criticise the propriety of such a tribunal if it were within the power of the Constitution, though I say that, of all tribunals outside, the judges of the Supreme Court are the best, because there is, thank God, still a reverence for the judges of the Supreme Court and the court itself and its judgments. Mr. FRELINGHUYSEN. I have no ob jection to stating to my friend that I certainly do not find it written in the Constitution that the presiding officers of the two Houses and the Chief Justice shall be a tribunal ; but I do find it written in the Constitution, mandatory upon us, that we shall see that the vote is counted, without telling us how the vote is to be counted, and thereby imposing upon us as legislators the duty, I think, to make pro vision that it shall be fairly and justly counted. Mr. DAWES. Then I understand the read ing of the Constitution by the Senator from New Jersey to be that when the votes are to be counted, the " then " in the Constitution (which is a time fixed, and that time is when the President of the Senate is in the presence of the two Houses, the Senate and House of Representatives, and "then" they must be counted) means that we can provide by law that in some other presence, before some other tribunal, it shall be determined how the Sen ate and House shall count the votes. Mr. FRELINGHUYSEN. My friend does not exactly get it yet. I think that the vote has got to be counted in the presence of the Houses. But like the cooking of a fish you must catch it first. So you must know what you are going to count before " the votes " can "then be counted." Mr. DAWES. In other words, if there are two certificates coming up from the State of Massachusetts, one having 13 votes for John Smith and the other having 13 votes for Wil liam Wilkins, and if the two Houses, clothed with the power of counting the votes, cannot determine whether 13 votes shall be counted for John Smith or 13 votes for the other man, we refer it to a tribunal to determine which ot them shall be counted, and then that judgment of the tribunal is binding upon the two Houses, and that is equivalent to the two Houses count ing them ! I do not so understand it. I think if this tribunal determine which 13 shall be counted, they have counted them. They have determined the fact ; they have to all intents and purposes counted them, and it is not the two Houses that count them after that. It is the two Houses that record the judgment of this tribunal, to wit, that 13 more shall be added to John Smith instead of William Wil- kins. That is not counting the votes by the two Houses. That is trifling with the ques tion. Somebody else counts those votes, and I do not find that somebody else in the Con stitution. Mr. HOWE. Mr. President, I cannot un derstand myself what difference, except in one point of view, it makes whom you select to decide the controversy that you have in con templation. If the Legislature has authority to name a tribunal to decide that controversy at that time, it does not make much differ ence who composes the tribunal, except in one point of view. If you want a republican de cision, you had better frame your law so as to be sure of having a republican tribunal, and if you want a democratic decision, you had bet ter take care to frame your law so that you have a democratic tribunal. You see the con troversy is a very peculiar one that you are trying to have decided. It is a controversy upon which hangs the title to the highest office under our Constitution, the highest office in the world, and it is a controversy to which all the people of the United States are parties on the one side or the other. It is a controversy so difficult of solution, a controversy the facts or the law concerning which are so involved, that, having been submitted to the House of Representatives and to the Senate separately, they have disagreed about it and do not come to the same conclusion. One thinks the right is one way and the other thinks the right is the other way. That is the sort of contro versy. Now you want to pick out a man who shall say off-hand what shall be done with that question. Take a blind man, take a fool, take a sage, it will happen, whoever you take, that if he is a republican he will count the re publican vote ; if he is a democrat he will count the democratic vote. I take it there is not much doubt about that. I do not mean to impugn any man s good faith or his honesty when I say that. You call upon him to do a thing with only so much light before him as has led all the rest of the world to stumble. He finds every republican in the United States on one side of that controversy. He finds every democrat in the United States on the other side of it. He finds one House of Con gress on one side of it and one House on the other side of it. Mr. MITCHELL. Suppose we appointed an independent power ? Mr. HOWE. No matter how independent he is, what means has he within his reach of determining that question with anything like precision and accuracy ? What you want is not a tribunal but a form of procedure, it seems to me. The law will not allow the title to a horse to be disposed of finally and con clusively without a form of procedure before a judicial tribunal, where evidence is heard from the mouths of sworn witnesses, witnesses who are examined and cross-examined, and where every point of law is settled by one learned in COUNTING THE ELECTORAL YOTES. 609 jurisprudence. When you have obtained a judgment in such a tribunal, then you allow the title to that horse to be disposed of, con sidered, concluded, known. That judgment imports absolute verity. You know then who owns the horse ; nobody in the world can dis pute it. But here the gravest controversy in the world we suppose is going to be settled by a man or a tribunal who cannot swear a wit ness, who cannot read a newspaper, who can not have a deposition read before it, who can not have an argument. OS-hand from what he happens to know or to have heard, he u to pronounce upon the title to the Presidency of the United States, or to pronounce upon a fact which settles the Presidency. I have voted against all these amendments. I shall vote against this amendment for the double reason, first, that I do not think in the Congress of the United States lies the author ity to create any such tribunal ; and, secondly, if it had power to legislate such a tribunal into being, I think we might get a better one than either that has been named yet, or at all events we might provide a better form of trial for ,any one of these tribunals than we yet have provided. Mr. JOHNSTON". It is a rule that ought [never to be departed from in law, that nobody shall be called upon to decide a question who has any interest in the result, and that no one shall be a judge in his own case; yet the [amendment of the Senator from Texas gives a [decision on one of the most important ques tions that ever arose to the very man in all the United States most likely to have an interest in the result the presiding officer of the Sen ate. Mr. CAMERON, of Pennsylvania. I did intend to say a word when the Senator from Wisconsin [Mr. HOWE] sat down, but I did not get the floor then. I may perhaps as well say now what probably I would have said then. While the Senator from Wisconsin said justly that men generally vote according to their preju dices and vote with their party and with their friends, yet it often happens that they do go with their consciences in preference to their [friends. I believe a case might be found where jthe presiding officer of this body, although in- |terested himself in the decision of this ques tion, would vote with his adversaries. I might iibring to the Senator s mind by way of illustra tion a case which occurred here only a little While ago, when several Senators on this side tof the House gave the doubt to their adversa ries. | Mr. EDMUNDS. We gave the certainty to ||our adversaries. Mr. CAMERON, of Pennsylvania. Un doubtedly not one of them would have done ^anything but what he believed to be right ; but ||in the case of Pinchback, the presumed Sena tor from Louisiana, the doubts were given by bnough of our friends on this side to deprive ihim of his seat. So I believe as men acted upon | that occasion according to their consciences, men in the future will be found here in this body who will act according to their con sciences. I believe it is always right to give the doubts to your friends, personally or po litically, but I am sure a good man will always act according to his conscience, no matter what the responsibility may be, no matter how great his personal interest may be in the de cision. The PRESIDENT pro tempore. The ques tion is on the amendment proposed by the Senator from Texas [Mr. MAXEY]. Mr. MAXEY. I presented this amendment because I believe it was a constitutional solu tion of a very difficult problem. I did it be lieving, as I yet believed, that the mode pro vided is sustained by the Constitution. I do not propose to review one solitary argument that I made yesterday, nor to change anything I then said. I do not care, however, that tho record of to-day s proceedings shall go forth to the world with the remark of the Senator from Virginia [Mr. JOHNSTON] without some answer to it. Upon what authority of the Constitution, upon what authority of the law, does he as sume that in giving the settlement of the ques tion to the Yice-President of the United States, presiding over the Senate, he is giving it to that man most of all others interested in the settlement of the question ? If he be the old Vice-President and the count is of a newly- elected ticket, he goes out with that vote. He therefore does not count himself in, because he goes out of office with the coming in of the new President and Vice-President. It rests upon the assumption that the Vice-President is necessarily a candidate for reelection or a candidate for President. It is assuming that because a man happens to be Vice-President he necessarily must be a candidate for reelec tion or a candidate for President. I only have this to say in reply to that : Under the Con stitution of our common country any man hav ing the constitutional requisites has just as much right to be a candidate for the office of President or Vice-President as the Vice-Presi dent or presiding officer of the Senate; so that the reason amounts to nothing. It is assuming that which is not necessarily true. It may be so or it may not be so. The same reason will apply to any tribunal whatever that might be selected for the settlement of this question, be cause every man has the same right if he has the constitutional qualification. It is a sur passing strange thing to me that gentlemen should object to reposing this trust in the Vice-President at this late day and hour, after the Government has followed it from its or ganization down to the year 1869. Mr. MERRIMON. Eighteen hundred and sixty-five. Mr. MAXEY. Eighteen hundred and sixty- five was the time of the passage of the twenty- second joint rule, but I believe the election 610 PROPOSED LEGISLATION AS TO THE MODS OF which took place in November, 1868, was the first election held under the joint rule cf Feb ruary, 1865. Up to the year 1869, according to the authorities, the Vice-President, or Presi dent of the Senate, had always counted the vote ; and yet gentlemen pretend now that this power is so dangerous that of all men in Amer ica the last man to intrust with it is the Presi dent of the Senate. They speak of it as some thing strange, and yet if I remember history correctly, at the very time of the contested election between Mr. Jefferson and Mr. Burr, the most excited race that ever was run in the United States, requiring thirty-six ballots to settle the question, Mr. Jefferson himself was Vice-President. I appeal to gentlemen if it is not a correct statement of history that at that time Mr. Jefferson was Vice-President of the United States, having- been elected under Mr. Adams at the time he was elected President, following General Washington s election. Over and over again the Vice-President has presided when he himself was either a candidate for re election or for President ; and yet during all that long period of our history we have never had one man in America who was so low, so utterly lost to every sense of honor, and jus tice, and of propriety, that we should have to leave, when we came to arrange the pictures of the Presidents and Vice-Presidents of this great and glorious Union of ours, one single niche covered with a black pall, as one in the palace of the Doge of Venice. No man yet in this country has betrayed that great trust, not withstanding the fact that on every occasion up to the year 1868 this vote was counted by the Vice-President. It does seem to me, when that remark is made, it is prostituting into the very dust the character of the men whom the people of this broad land of ours have thought fit to vote for as President and Vice-President of the United States. Are the people of this country so lost to honor, so lost to integrity, that they themselves would select a man to run for one of these high offices who was so cor rupt, so steeped in moral iniquity, that he would count himself into office against the will of the people? I do not believe it. I have a higher regard for the character of the Ameri can people. I have a higher regard for the men whom the American people have brought to the front. The position will not do. It is degrading our own people and degrading the men whom our people have vested with high trusts. When is it, under the amendment that I had the honor to offer, that the Vice-President has the power to decide? Never when there is but one certificate of election, because if both Houses reject the certificate it goes out, and if one House goes one way and the other House goes the other way, it is counted. When there are two certificates, and both Houses agree upon one of the certificates, it is counted. When, then, does this great power of the Vice- President come in? It is only when every effort has been made, and the two Houses can not agree. In that case you have got to do one of two things. If you reject the vote of the State, you may put a man in the presiden tial office who has not, as the Constitution re quires, received a majority of the electoral votes of the people ; for if you throw a vote aside, who can say that the man who is put in the presidential chair has the majority of the votes of the people ? Our Constitution requires all the votes to be cast. If this great power has been intrusted to the Vice-President from the election of General Washington down to the last election of Mr. Lincoln, and never on a single occasion has he betrayed his trust not withstanding that he was a candidate, I ask why, when only in one single state of the case power is to be intrusted to him, has he become so dangerous? Have the people of America been so forgetful of their duty in selecting good men and true as to put a man there who would betray the trust that was given him? That would be worse than murder itself. I do not believe it. I admit, as has been stated often here, that this is a dangerous and a difficult problem. We must believe that there are some honest men in this world. While rumors are afloat all over the land of high crimes and misde meanors committed by men in high places, while men have covered themselves from the crown of the head to the sole of their feet with infamy and with crime, and have fallen from their high position, yet I thank God He has put it into my heart not to believe that all men are dishonest and that I yet have confidence in man. I yet believe that the American people have the intelligence to put in position, what-: ever may be their politics, men of integrity, men who want to do right. I believe that the j two Houses of Congress will want to do right ; ] but, when the question comes up before them, honest men may differ. One of the two Houses ; may decide this question in one way and the other House in the other way. If the matter] is left to stand at that point, the vote of a State j may unquestionably be lost. By the very losing of that vote a man may be placed in the presi dential chair who had not a majority of the] electoral votes by the people, as required by the Constitution. The Constitution says: The President of the Senate shall, in the presence i of the Senate and House of Kepresentatives, open allj the certificates, and the vote shall then be counted. I No part of that vote shall be counted, but all of it. He who desires to stick to the Con- j stitution as closely as I hope I do wants to see it carried out in its letter and in its spirit. The j letter and spirit of the Constitution are that j the votes contained in every valid certificate must be counted then and there, and by the authority which the Constitution has pointed out for that high duty ; that high trust, I will say, because I regard it as a sacred trust. So believing, I cannot conceive that the position COUNTING THE ELECTORAL VOTES. 611 which has been assumed here is tenable, unless you hold out the banner and write upon it in the face of all mankind that we have no confi dence in man, that we believe that any man who is exalted to a high position will so far forget himself, his oath, his honor, the confi dence which the people have placed in him, that he \vill prostitute all these, and, like Judas Iscariot, sell his master for a price. I do not believe that, and therefore I say that in some stage of this proceeding, if we wish to carry out the will of the people, we mast trust some body. I am willing to trust the man that the Constitution trusts, according to my construc tion of the Constitution, with the best lights before me. For that reason I have offered this amendment, not that it is a pet measure with m3, for I have none. I have done what other gentlemen here say they have been doing: I have been seeking light. If any Senator on this floor will point out a better and clearer plan than the one I have suggested, one that aore thoroughly carries out the spirit and the etter of the Constitution, I will adopt his plan. Ill that I want to do is to secure to the States if this American Union their right beyond per- .dventure to have their vote counted in the lection of President and Vice-President of the Jnited States. Mr. CAMERON", of Pennsylvania. I would uggast to the Senator from Texas to make a lorreotion in his amendment by blotting out he words "as presiding officer of the two louses/ Mr. MAXEY. I will state to the Senator rom Pennsylvania that my attention was ailed to that by the Senator from Vermont, think the expression " President of the Sen- its " is sufficient, and that the words " as pre- iding officer of the two Houses" are unneces- ary. I ask that that modification be made. The PRESIDENT pro tempore. The Sen- i,tor has that right. The Senator from Texas modifies his amendment, and the Secretary will eport the amendment as modified. The CHIEF CLERK. It is proposed to insert at the end of the second section of the bill the ollowing : But if the two Houses fail to agree as to which of ;he returns shall be counted, then the President of he Senate shall decide which is the true and valid return, and the same shall then be counted. ^ The PRESIDENT pro tempore. The ques- ion is on agreeing to this amendment, upon which the yeas and nays have been ordered. The Secretary proceeded to call the roll. Mr. DAVIS (when his name was called). On this question I am paired with the Senator rom Minnesota, whom I do not see in his seat Mr. WINDOM]. I should vote " nay " and he would vote " yea." Mr. WEST (when his name was called). On ihis question I am paired with the Senator torn Kentucky [Mr. STEVENSON], who would vote against the amendment, and I, if at liber- ;y, would vote for it. The Secretary resumed and concluded the call of the roll, which resulted yeas 7, nays 38; as follows: YEAS Messrs. Bogy, Cameron of Pennsylvania, Hamlin, Maxey, Robertson, Sargent, and Withers 7. NAYS Messrs. Allison, Anthony, Bayard, Booth, Boutwell, Burnside, Cameron of Wisconsin, Caper- ton, Christiancy, Conkling, Dawes, Dennis, Eaton, Edmunds, English, Ferry, Frelinghuysen, Gokl- thwaite, Gordon, Hamilton, Howe, Ingalls, John ston, Jones of Florida, Jones of Nevada, Kelly, Key, McCreery, McDonald, Merrimon, Mitchell, Merrill of Maine, Morton, Norwood, Oglesby, Sharon, Whyte, and Wright 38. ABSENT Messrs. Alcorn, Bruce, Clayton, Cock- rell, Conover, Cooper, Cragin, Davis, Dorsey, Har vey, Hitchcock, Kernan, Logan, McMillan, Morrill of Vermont, Paddock, Patterson, Randolph, Ran som, Snulsbury, Sherman, Spencer, Stevenson, Thur- man, Wadleigh, Wallace, West, and Windom 28. So the amendment was rejected. Mr. EDMUNDS. This question is so impor tant and the discussions of it have been so in teresting, as they really have, that I think fur ther reflection upon the subject will be useful to the public interest; and I therefore move that the Senate proceed to the consideration of executive business. Mr. MORTON. I should be glad to continue the consideration of this bill a while longer. Mr. EDMUNDS. Let it go over till to-mor row ; we are not losing time. The PRESIDENT pro tempore. The ques tion is on the motion of the Senator from Ver mont [Mr. EDMUNDS]. The motion was agreed to ; and the Senate proceeded to the consideration of executive business. After seven minutes spent in execu tive session, the doors were reopened, and (at three o clock and fifty-seven minutes p. M.) the Senate adjourned. IN SENATE. Thursday, March 23, 1876. ("Congressional Record," pp, 1900-1910,) Mr. MORTON. If there is no further morn ing business, I ask the Senate to take up the unfinished business, hoping to get through with it very soon. The Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 1) to provide for and regulate the counting of votes for President and Vice-President and the decision of questions arising thereon. Mr. MERRIMON. I now offer the amend^ ment which I suggested the other day I would offer at the appropriate time. The PRESIDENT pro tempore. The Secre tary will report the amendment. The CHIEF CLERK. It is proposed in section 2 of the bill, lines 7, 8, and 9, to strike out the words The two Houses acting separately shall decide to be the true and valid return. And in lieu thereof to insert 612 PROPOSED LEGISLATION AS TO THE MODE OF Shall be duly authenticated by the State author- ities, recognized by, and iu harmony with, the United States, as provided by the Constitution. So that the section will read, if amended That if more than one return shall be received by the President of the Senate from a State, purporting to be the certificates of the electoral votes given at the last preceding election for President and Vice- president in such State, all such returns shall be opened by him in the presence of the two Houses when assembled to count the votes ; and that return from such State shall be counted which shall be duly authenticated by the State authorities recognized by, and in harmony with, the United States, as provided by the Constitution. Mr. MERRIMOK Mr. President, I offer no apology for venturing to present some views of my own in reference to the important ques tion under discussion. It is confessedly one of the most serious moment, surrounded by a great multiplicity of complications and per plexing doubts. If I shall be able in any de gree to assist in removing such difficulties I am sure the Senate will be satisfied ; at all events, I will have the consciousness of having en deavored to discharge an important public duty. It is very much to be regretted that the pro visions of the Constitution in reference to the election of President and Vice-President are so general and so meagre in their terms ; and this regret is heightened by the fact that the debates in the convention which framed the Constitution on this particular matter, which have come down to us, are very limited, and not calculated to afford us any, or very little, light on the subject. Besides, there has been no official act or decision anywhere that is cal culated to do so. Whenever action has been taken at all (and this is an important fact to be kept in view in the course of what I have to say), it has been taken without question and without debate ; so that whatever has been done can scarcely be regarded in the light of precedent or authority binding in any degree the action or judgment of Congress. The terms of the Constitution are very gen eral, they are meagre, upon the subject, and almost everything is left to implication, to con struction and inference under the rules that govern us in the interpretation of instruments like the Constitution. I think I may say with confidence that we are left exactly in the con dition of a court .that has no prior lights in which to construe a constitutional instrument submitted to it. This being the ease, it is im portant, it seems to me, and I shall take that course in what I am about to say, that we should take a survey of the whole subject of the election of President and Vice-President under the Constitution and not confine our in vestigation to a single clause. In my judgment and in my view, in order to have a complete and satisfactory comprehension of the subject under discussion, it is essential that we shail consider particularly and accurately the clause of the Constitution immediately preceding that which has been discussed. Upon that rests the clause that has been debated. It is essential that we should understand the ground work before we can understand thoroughly and ac curately the superstructure. The second clause of article 2 of the Consti tution provides in these words : Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Eepre- sentatives to which the State may be entitled in the Congress ; but no Senator or Eepresentative, or per son holding an office of trust or profit under the United States, shall be appointed an elector. This provision of the Constitution is one of those provisions which guarantees to and es tablishes an absolute right in the States, one to be exercised solely by and for the benefit of the State rather than for the benefit of the United States. It establishes a right and power in the State which no Federal authority can compel the State to exercise, which no Federal authority can in any way control or direct. It is as much a matter under the control of the State as the election of the chief magistrate of the State or the Legislature or the judiciary of the State. It is a matter that they have com plete power to regulate and to determine as they will. The State is more interested in the subject exercise of the right and power than any other State, or than the Federal Govern ment. It is a right for the benefit of the par ticular State and by and through which the people may have a voice in the selection of Chief Magistrate of the National Government. The Constitution provides that the State shall participate in the election, and how its right shall be exercised through its legislative au thority. It provides that the Legislature of the State may designate the manner of select ing electors to cast the vote of the people of the State or of the State for President and Vice-President. The Legislature may provide that itself shall elect the electors who are to compose the electoral college and cast the vote. It may provide that the governor shall appoint them. It may provide that the supreme court of the State shall appoint them. It may pro vide that a commissioner shall appoint them. It may provide that the people of the State as a whole and by general ticket shall elect them; or it may provide that the people of each con gressional district shall elect by districts. This being a matter, I repeat, completely within the jurisdiction of the States through their legislative authority, Congress has no power to direct in that behalf at all. That being true, when the Legislature shall have acted, whether in one way or another, and an election shall take place or an appointment shall be made by the authority designated by the Legislature, neither Congress nor any Fed eral authority has any power or right whatever to inquire into the legality of such election or appointment. "Why? Because it is a matter completely within the jurisdiction of the State. Suppose, for example, that according to the COUNTING THE ELECTORAL VOTES. 613 present prevailing custom in the several States, a general election shall take place in a State and there shall be two political tickets before the people for election ; that it shall appear by the final count of the popular vote that the democratic ticket shall have the majority, but the friends of the other ticket insist that the republican ticket really, in fact and in truth, apart from fraud, fraudulent and other unlaw ful considerations, have a majority. Suppose that should become a matter of great moment in the State, and not only in the State but that it should become a matter of the greatest mo ment to the nation, the election of President and Vice-President turning upon the vote in that State. Congress would have no right or power to interfere in any respect whatsoever to determine whether the one ticket or the other was elected. That is a matter with the State, and it is competent for the Legislature of the State to provide the proper means of contesting the election in that case. The State Legislature alone is vested with power to pro vide means and tribunals for contesting such election. If it should be suggested when the electoral vote is cast and is sent to Congress that great frauds have been perpetrated by one party or the other ; that votes have been bought by the score and by the thousand, and that force and intimidation have been used, that would be im pertinent and vain; for it would be a matter clearly without the jurisdiction of Congress. It is a matter to be investigated, considered, and disposed of entirely by the State ; and, if the State will provide no means to investigate and to settle fairly and justly as between con tending parties, if it will not provide for a con test of such election, it is the folly of that State ; it is the misfortune of that State. But, as I said, it would be perfectly competent for the State to provide a means of contest, just as the States provide means and tribunals of con test for the election of members to the Legis lature, or the election of governor, or the elec tion of any other officer. The point I make is that this is a matter completely within the jurisdiction of the State, and it remains there until the election takes place and the electoral college shall be organized in pursuance of law. After the election of electors has taken place or the appointment has been made, as may be provided by the Legislature of the State, and after any contest has been decided, should there be any provision in the State for a con test, then, under the law, the chief magistrate of the State gives to the person elected the cer tificate of election or appointment, which is the evidence of his right to sit and vote in and make part of the electoral college. The gov ernor gives to each of the electors elected or appointed according to the law of the State a certificate, which is the evidence of his elec tion, and, armed with that certificate, the elec tors who receive such certificate assemble to gether at the time and place prescribed by law and organize themselves into what is common ly called the electoral college of that State. When the electoral college is duly organized, then it is in condition to come in lawful con tact with and to establish lawful, cognizable relations with the United States through Con gress. And, therefore, after the members of the electoral college that is, the electors have cast the vote one way or another, when the return of the vote shall come before Con gress in the way and manner I will explain af ter a while, it is then, and not till then, com petent for Congress to inquire whether the electoral college proceeded according to law. For example, suppose it should be suggested when the time shall come for Congress to count the vote I shall show, I think, it has the power and the right and it is its duty so to do and it should bs suggested by a Senator, upon affidavit of some person or on any infor mation of which Congress would take cogni zance, that one, two, or three of the electors had been bribed to give the vote cast by them, or any other consideration touching the integ rity of the vote cast by the electoral college should be suggested in a proper way, it would be perfectly competent for Congress to inquire into and settle the matter. It is not competent for Congress to inquire into the organization of the college, the man ner of appointment or election, whether that was accomplished by fraud or by other unlaw ful means ; that is for the State ; but the col lege must be established according to the laws of the State, and then, after that, it is compe tent for Congress to inquire into the action of the college, in order to see whether that was fair and just and lawful, and in that respect it may become of the very gravest moment that Congress should inquire whether the votes of the electors had been bought for the pur pose of electing a particular candidate. It is like the case of the election of a United States Senator. Congress has no power to go into the State of North Carolina, for example, when a Senator-elect from that State, or one pur porting to have been elected by its Legislature, shall make application for admission here, to inquire whether two, three, four, or a dozen members of the Legislature were elected by fraudulent means or unlawfully in any respect. That is a matter within the jurisdiction of the State authorities, within the jurisdiction of the Legislature ; and when the Legislature de cides, whether its decision be right or wrong, there is the end of the matter, and Congress has no jurisdiction to inquire into it. Con gress can have no jurisdiction for any such purpose. It must take the Legislature of the State as it is ascertained and established under the constitution and laws of the State. But when such Senator comes here and asks to be admitted, it is competent for the Senate, com ing thus in relation with the Legislature of the State under the Constitution of the United States, to inquire whether the applicant bought 614 PROPOSED LEGISLATION AS TO THE MODE OF one, two, three, or a dozen votes to secure his election. Nay, they not only have the power to do so, but it is the duty of the Senate to do so. Just so in the case where the electors comprising the electoral college are elected or appointed, according to the laws of the State, and when the college has been duly organized and proceeds to cast the vote, if it shall be al leged that fraud was perpetrated by the col lege thus proceeding, it is not only the right of Congress, but it is the duty of Congress, and one it cannot in conscience, if it would, evade, to inquire whether such fraud was per petrated. This part of my argument is not immaterial ; it is very material as tending to show how rights and powers and duties spring up under the provisions of the Constitution, which are so meagre in their terms, the meaning of which we must ascertain and understand by infer ence, implication, and construction. I trust those who do me the honor to pay attention to what I am saying will keep in view this fact : that it is the duty of Congress or the authority which shall count the votes for President and Vice President, if it shall be suggested that there was fraud, to look into it, to try the question, and see and determine as the right may be, because, as this is material, this fact goes far toward showing that the President of the Senate is not adapted in the exercise of his powers to count the vote and determine important questions connected with such count. I come now, Mr. President, to discuss the twelfth amendment to the Constitution, which, as I said in my opening remarks, rests upon the clause of the second article which I have just undertaken to expound. So much of the twelfth article of the amendment as is mate rial for my purpose is in these words: The electors shall meet in their respective States and vote by ballot for President and V ice-President, one of whom, at least, shall riot be an inhabitant of the same State with themselves ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice- President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for eacli ; which, lists they shall sign and cer tify, and transmit sealed to the* seat of Government of the United States, directly to the President of the Senate. These last are very material words, as will appear by and by. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. -.. , ., I want to call attention now particularly to the manner in which the electoral college, the State, and the people of the State, come in connection and contact with Congress. Is it not manifest that there must be some means by which whosoever shall count .the electoral vote can see that the electoral college was in deed the lawful college ? It is not expected, it cannot reasonably be expected, that Congre&s can take knowledge of it judicially or officially, and rest satisfied with that; there must be lawful evidence to that end, evidence provided by law. The Constitution implies by every rule of reason and construction that there must be a means of evidence muniments by which it shall appear to Congress, the counting power, that there was a college duly ascertained and established, and that the college did act. Con gress in the past has not been unmindful upon that subject, for it has provided it was origi nally provided by the act of 1792 in the Re vised Statutes, section 136, as follows: It shall be the duty of the executive of each State to cause three lists of the names of the electors of such State to be made and certified, and to be deliv ered to the electors on or before the day on which they are required, by the preceding section, to meet. That clause provides for the evidence by which the elector shall know that he is an elector and a member of the electoral college, and by which Congress, as the authority to count, shall lawfully know that he was an elector. Now see how the relation contact is formed, fixed, and established by proper evidence muniments between the electoral college, and through it between the State and the Congress, or the counting power, what ever that may be. This is yet further pro- i vided for by section 138 of the Eevised Statutes, as follows : The electors shall make and sign three certificates of all the votes given by them, each of which cer tificates shall contain two distinct lists, one of the votes for President and the, other of the votes for Vice-President, &nd shall annex to each of the cer- j tificates one of the lists of the electors These are material words One of the lists of the electors which shall have been furnished to them by direction of the executive of the State. That certificate of the election of the elector is material ; it is material to show that he is an elector, and has a right to a seat in the col lege, and to participate in the college as a member ; but it is not only material for that purpose, it is material for the further purpose that the counting authority, whether it be the President of the Senate or whether it be Con gress, may see that he was elected or ap pointed according to the laws of the State in which he proposed to vote for President and Vice-President. That is the means; that is the evidence; that is the connecting link be tween the State and the counting power; and it is through and by means of that that the jurisdiction of Federal authority attaches, to the end that proper action in that behalf may be taken. Through and by the means so pro vided the State, the people of the State, and the Government of the United States come into conjoint and harmonious action. What is the next thing to be done after the vote is cast by the electoral college ? It were vain that the college should assemble and cast the vote if no means were provided by which COUNTING THE ELECTORAL VOTES. 615 it could be delivered to some proper, lawful, constitutional authority to compare and count the vote, to the end that it might be seen who was elected President and who was elected Vice - President. The Constitution provides how that communication shall be made, in these words : And they The electors shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-Pres- ident, and of the number of votes. for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States That is the place, the general place, to which the return is to be remitted. Now mark the words that follow those; they are dirested to the President of the Senate. Why "directed to the President of the Senate ? " Is there any peculiar function in his office that makes him the very appropriate . person to deposit it with ? Is there anything about his person, or his character, or his official position or character that makes him an appropriate person over any other officer of the Government for such purpose ? How is he better qualified for the discharge of this high trust than the Chief Justice, or the Supreme Court, or the Speaker of the House of Representatives, or the Attorney-General, or any of the other executive officers ? On the contrary, there are grave considerations why he is an inappropriate person for that purpose; for, as is manifest, and as has been shown here, the President of the Senate may be one of the very parties whose right may be in question and to be examined and decided. His right to be elected as President of the United States may be the question involved. His right to be elected as Vice-President may be the question involved. Surely in such a case he would above all others be the least fit to take charge of the returns, unless there was some special reason why he should do so. Then, besides, he is but one man. He is more liable to be entrapped, to be deceived, to be misled by one consideration or another, in finitely more so, than the Supreme Court, more so than the Chief Justice, because he has no motive to expect that he is to be President. It is possible that he might be a candidate, but the Supreme Court as a body would be the infinitely more proper place to deposit this vote than the President of the Senate. The debates in the convention that framed the Constitution do not show, any official action taken or decision that has been made since the adoption of the Constitution does not show, anything which points him out as the ap propriate, the essential depositary of the re turns of the election any more than any other officer of the Government ; and there are the considerations suggested, and perhaps others that I have not adverted to, which disqualify, unfit him to be charged with so grave a matter. In view of these considerations I do maintain. with all respect to everybody who contends otherwise, that it is absurd in reason and law, by inference, by construction, to charge him with the high power and right to receive and count the vote for President and Vice-Presi- dent. There is another consideration pertinent to be considered here. Why were the returns required to be sent to the President of the Senate? Why does the Constitution use the" words " directed to the President of the Sen ate?" If it was contemplated that the Vice- President should count the vote, why did it not say so ? It was not contemplated that the Vice-President in his character as Vice-Presi- dent should have charge of the returns at all, but it was in his character as President of the Senate, and as President of the Senate alone. Besides, there might be no Vice-President ; there might only be a President pro tempore of the Senate, and then they are sent to him. But there was" a motive for using the words " di rected to the President of the Senate" a reasonable motive, a logical motive ; and what was it ? The Senate is the higher branch of Congress, and the President of the Senate is the higher presiding ofiicer in Congress, and by courtesy he has precedence in place and privilege wherever the two presiding officers of Congress are brought in contact in their official capacity. The convention had to pro vide some one to whom should be sent the returns of the electoral vote so that they might be properly counted and the result of the election determined, and as I shall show that Congress was the appropriate body to count it, where else could the returns be so well or appropriately sent to be laid before Congress as to the chief presiding officer in Congress, to wit, the President of the Senate? It was provided that the electoral returns should be sent to the President of the Senate as the most appropriate, the most direct, the the most reasonable, the most orderly channel through which to bring the electoral colleges, and the States through the electoral colleges, in connection and contact with Congress, the counting authority of the electoral vote. That was the purpose, and in my view none other. It does seem to me that one, looking with the pure light of reason at the surrounding circumstances of this whole matter, cannot doubt that such was the purpose. If such was not the purpose, I ask this question, why was it provided, after he is charged with the re turns, that he should be further charged in express terms to do a particular act, to wit, to open the returns in the presence of the Senate and House of Representatives, and the last and most important duty of counting the vote de volved upon him by implication and inference? Can any reason be assigned for such a strange and illogical provision as that? It seem to me not. It was not intended that he should have any absolute control of the returns. Though they may have come to his possession the next 616 PROPOSED LEGISLATION AS TO THE MODE OF day after the vote had been cast, he has no right to open them at his will and anywhere. He is to keep control of them ; he is to keep custody of them, and to open them, not when he will, not where he will, not to make any decision about them whatsoever ; but at a par ticular time prescribed and in a particular place he is to open them just like he opens any other communication sent to Congress through the President of the Senate. When messages come to Congress addressed to the President of the Senate, whether they come from one department of the Government or another, or when a memorial comes to the Senate through the presiding officer, what does he do ? By reason of the fact that it is addressed to him, or that it is delivered to him, he holds it until he comes into the presence of the Senate. In the presence of the Senate he does not deliver it sealed up. We never saw the presiding officer here deliver a mes sage, or any document to the Senate sealed up. He opens it, and having opened it to identify it, to see that it is the paper sent to the Senate, he then delivers it to the Senate. He says : " The Chair lays before the Senate the follow ing executive message," or "this memorial," or whatever paper he is requested as Presi- .dent of the Senate to present, and to the end that the Senate may get jurisdiction of the matter he thus lays before it. And all this harmonizes with the provision of the Consti tution. These electoral returns are sent to the President of the Senate because he is the chief presiding officer in Congress, and it is provided that he shall open the returns and open them only in the presence of the Senate and House. Why should he open them ? For a good reason ; to identify them as returns ; to see that they are that which the law charges him to lay before the Senate and House of Eepresentatives ; and then by such means the Congress has complete jurisdiction, and his authority as the means, as the officer through which the Congress takes jurisdiction, is over, except as he shall be directed in that behalf by proper order, or resolution, or act of the Senate and House of Representatives. I asked the question a while ago, was there anything peculiar about his office that fitted him for this duty of counting the electoral vote ? I endeavored to show that there was not, and that there are grave reasons why he should not be charged with any such power. Now, sir, I put the pertinent question, is there any power appropriate to that end but Con gress? The Congress represents the sover eignty of the American people ; it represents the sovereignty of the American people en masse through the House of Representatives ; it represents the sovereignty of the people as composing States, through the Senate. All power in the Federal Government, the aggre gated, the absolute power of the National Gov ernment, is vested in Congress, except in so far as certain powers of government are lim ited to the executive and to the judicial de partments of the Government by the Consti tution. All power is in the Senate and House of Representatives with the limitations I have mentioned. In the absence of any express provision of the Constitution or necessary im plication of the Constitution (and it is not pre tended that there is any in this case), I ask the question again, is there any power as ap propriate to count this electoral vote and de termine all questions in connection with it, as the Congress representing the sovereignty of the American people as one nation en masse, through the House of Representatives, and as composing States, through the Senate? Sir, it is important in another view of sound pol icy and reason. Would it be possible to cor rupt seventy-four Senators? Would it be possible to corrupt three hundred Represent atives ? Would it be as easy to corrupt the Congress as to corrupt one single officer, or the Supreme Court, or the Chief Justice, or one officer whomsoever he might be? The aggregate wealth of this country could not be practically used to corrupt so large and such a body as Congress so as to control their votes and their actions in the election of President and Vice-President. It would be a practical impossibility to do -so ; it would be an under taking that the most ambitious, the most un scrupulous and powerful never would con template, and because of the very impossibil ity. But there is another consideration why Con gress is the appropriate power, and the law fixes it there, and that is this : Congress are responsible directly and indirectly to the peo ple, the House of Representatives more par ticularly. The House of Representatives are elected directly by the people. They are re sponsible to them by their election every two years. What better tribunal to effectuate the popular will in a proper way as charged by the Constitution and law ? The Senators are re sponsible to the people indirectly through the Legislatures of the States. It is believed by some statesmen, and I believe the doctrine has been acted upon by some political parties in this country, that the Legislature of a State has a right to instruct a Senator how he shall cast his vote on a particular question, and if he does not so, then to ask him to resign his place. At all events, he is responsible to the people of his State through the State Legisla ture every six years. The Supreme Court is not responsible, and the President of the Sen ate is not responsible to the people. He is in no sense dependent upon them; he is above them, and out of their way and reach. I submit that these are grave considerations going to support the legal, logical, and neces sary implication contained in this provision of the Constitution that the Congress is the proper authority to count the electoral vote. There is one other consideration which I will mention here in connection with the pre- COUNTING THE ELECTORAL VOTES. 617 siding officer. The Senate lias decided that it has power to remove the presiding officer at will when there is no Vice-President. How easy it would be when the next electoral vote is to be counted, if it should turn out that the prevailing party in the Senate should appre hend that the presiding officer would not do their will I make no intimation of any such purpose on the part of anybody, but only make the suggestion to illustrate the force of my ^ ar gument how easy it would be for the major ity to remove the presiding officer and appoint a supple tool to take the responsibility to do the lawless, wicked work of party ! The fram- ers of the Constitution were too intelligent and rational to make any such provision, or to con template that any such thing should transpire in this country. To say that, by implication and inference from the provisions of the Con stitution to which I have adverted, the Presi dent of the Senate is charged with power to 3ount the electoral vote, is to contravene all rules of construction, the reason of the thing, ind sound policy, as I have endeavored to make plain. Having thus shown, as we must be directed ind governed by implication and inference, that reason and sound policy force us to the 3onclusion that Congress should be the power ;o count the electoral vote, let us see where the law fixes the power by its terms and neces sary implication. It is provided that the pre siding officer, in the presence of the Senate a-nd House of Representatives, shall open all :he certificates, and then it is further provided ;hat " the votes shall then ~be counted. 1 1 Count ed by whom? By the President of the Sen ate ? Surely not. It is provided in express ierms that he shall open the returns. Why, [ repeat, this the most important duty left to nference ? The Senator from Ohio [Mr. THUEMAX], the other day, I thought put this argument with tremendous power. He called upon every lawyer to say, in the absence of any other provision and express words, to what authority was assigned the counting of the votes by that express provision. He in sisted that, per force of this provision, the Congress, and Congress alone, was charged with the power ; that by no rule of law could any other body or officer be charged with it ; that intuitively the legal mind so assigned the bower. He argued that it shocked the legal pnind to contend otherwise. His argument pmpressed me forcibly. I concurred then bnost heartily and without hesitation and re- [flection has only strengthened my conviction that it is assigned to Congress. "Why ? Be- Icause it did not charge the President of the iSenats to do it, but it did to do another thing. lit did not charge the Supreme Court to do it ; jit did not charge any other functionary to do jit ; and in the absence of any such provision lor charge, by the operation and the force and [effect of the Constitution and legal principle [ex vi termini, Congress is charged with that power. Congress is charged with every power of government unless it be lodged somewhere else by express terms or by necessary implica tion. In the absence of such provision it fixes it there inevitably. So that it follows, by the necessary fact of the express provision of the Constitution as well as necessary impli cation and by every argument founded upon sound and rational policy, that Congress has the power to count the vote and no other power can do it, and because Congress is thus charged therefore Congress cannot delegate its power to the Supreme Court, or to com missioners, or to the President of the Senate, or any other power on earth. It is a duty that the Congress is as completely and thor oughly charged with as it is to pass a revenue law or any other act of legislation. It is fixed there. They cannot delegate it, however they may regulate the manner of counting the vote and deciding questions arising in connection therewith. The Senator from Maryland [Mr. "WnrrE] and the Senator from Kentucky [Mr. STEVEX- sox] argued ingeniously and with much ability, the other day, to show the contrary of what I have advocated ; and instead of resting their argument, as I humbly conceive, upon their own reason and a clear and critical discussion of the provisions of the Constitution, they re lied greatly upon what they treated as prece dents and speeches which had been made by various distinguished men in the past. Now, sir, with all respect and deference, I do insist that there is no precedent to sustain such a view as they held and contended for, and there is no precedent which contravenes the view of the Constitution which I have been present ing. Take the authority insisted upon by the Senator from Maryland. Before the Constitu tion went into operation, and in order to put it into operation, the convention that framed it passed an order providing That the Senators should appoint a President of tli e Senate for the sole purpose of receiving, open ing, and counting the votes for President. I have to say of this action on the part of the convention that it preceded the organization of the Government ; it was an order passed by the convention in order to put the new Government into operation ; it therefore can not be regarded as setting a precedent for pro ceedings under the Constitution ; but there is more than that. It does not provide that he the President of the Senate shall count tho votes ; it provides that is the legal effect that he is to be the presiding officer for that occasion, that he is to be the officer for the purpose of the count then to be made, and for no other purpose or occasion ; and therefore, if a question had been -raised, as I have shffwn a question might be raised, as to whether tho electoral college had acted honestly and fairly and lawfully, I take it that Congress on that occasion would not have allowed Mr. Langdon to decide that question. The convention did 618 PROPOSED LEGISLATION AS TO THE MODE OF not direct that he should count the votes ; it directed that for a particular purpose, the open ing and counting of the electoral votes for President and Vice-President, he should be the presiding officer; he should be the means through which the electoral college would come in contact with Congress. That is all this provides; that is all the effect and conse quence that can properly be assigned to that action of tbe convention. Then, to show, furthermore, that the Con gress did assert its power, let us see what it did do in that behalf. The Senate directed Mr. Ellsworth to proceed to the House of Rep- resentatives and notify the House that the Sen ate was ready to proceed, in conjunction with the House of Representatives, to count the electoral vote. The entry on the Journal reads : The Senate is now ready, in the Senate Chamber, to proceed, in the presence of the House, to discharge that duty. That is, to count the electoral vote, lie in formed them also That the Senate have appointed one of their mem bers, submitting it to the wisdom of the House to appoint one or more of their members for the like purpose. That is, for the purpose of making a list of the votes. The Senate and House of Representatives at that very moment recognized their right and their power in tbat behalf, for in count ing the first electoral vote they appointed tell ers. Tellers for what ? To count and com pare the vote when it should be opened by Mr. Langdon. If the Constitution charged Mr. Langdon, as is contended, with counting the votes, and if the Senate and House of Repre sentatives were merely there as spectators and witnesses, what right had they to appoint tell ers, what right had they to do anything in that behalf but to sit there merely as specta tors and witnesses ? Mr. STEVENSOK May I ask the Senator from North Carolina a question ? Mr. MERRIMON. Certainly. Mr. STEVENSOK. Does the clerk who re cords my vote at a State election count that vote ? Mr. MERRIMON. No, sir. Mr. STEVENSON. Then the tellers are merely to record what the presiding officer does. The Senator attempts to escape the force of the argument that a President of the Senate was elected to count the votes because the Government had not then been organized. Could not the House and Senate have then counted at that time as well as at any other time ? And if it was a constitutional obliga- tion on them, as is now argued by the Sena tor, to count that vote, why should they have allowed the President of the Senate to count it? Mr. MERRIMOK For the plain reason that the Constitution provided no means to bring the electoral college and the Senate and House of Representatives in connection with each other. It had provided no means whatsoever to that end, and the convention in the exer cise of supreme power in that respect saw fit to provide how it should be done on that occa sion, conforming their action to the provision of the Constitution which was to go into effect; from and after that time. But, further, if he was charged with power to count the vote, and it was necessary to have tellers or a clerk to do the clerkly work of counting adding up the A T ote, what right had the Senate and House of Representatives to appoint them ? Was it within their juris diction to appoint? That was a matter with in the power and discretion of the President of the Senate, as they contend, and if he need ed any persons to aid him in counting the vote, it was his right and his duty to appoint them. But Mr. Langdon did not assert the right and did not exercise the right to do so, but it was proposed by the Senate and by the House of Representatives that they should each appoint a teller, and they did appoint tellers, and the tellers counted the vote. And thus the Senate and House on that the first occasion were not mere spectators and witnesses ; they exercised power in connection with the count of the vote ; and if any question had arisen, who can say they would not have insisted on deciding it ? Suppose it had then been suggested that a return was forged, does any one think that the Congress would have allowed Mr. Lang don to decide the question whether it was or not? I do not think so. Mr. WHYTE. Will the Senator from North Carolina allow me to ask him where he finds anything about tellers in that original count; whether they were not appointed to sit at the Clerk s desk, and that was all ? Mr. MERR1MON. If my friend is going toi " stick in the bark " that way, I stand correct ed. The language of the entry is that he in-! formed them also That the Senate have appointed one of their mem- , bers to sit at the Clerk s table to make a list of the votes as they shall be declared. Mr. WHYTE. " As they shall be declared."! Mr. MERRIMOK "Submitting it to the] wisdom of the House to appoint one or morej of their members for the like purpose." I sub-] mit to everybody in all candor whether that is] not the exercise of a power on the part of the! Senate and House of Representatives which! goes to show that they claimed authority inj that behalf. I submit they had no such power,! if the view contended for by the Senators from; Maryland and Kentucky is correct. It was! within the power and jurisdiction of thePresi-J dent of the Senate to appoint those persons toj sit at the table and take a- list of the votes. The fact that Congress asserted the power? makes it a precedent to show that such powerj has been exercised by Congress and may do sol on all proper occasions, treating the President of the Senate as their official organ. COUNTING THE ELECTORAL VOTES. 619 At the next counting of the electoral vote the record shows that The Sonata proceeded to consider the resolution of the House of Representatives that a committee be appointed, to join such committee as may be ap pointed by the Senate, to ascertain and report a mode of examining the votes for President and Vice- President, and of notifying the persons who shall be elected of their election, and for regulating the time, place, and manner of administering the oath of office to the President. Mr. King, from the joint committee appointed the 6th February, instant, reported, That the two Houses shall assemble in the Senate Chamber on Wednesday next, at twelve o clock ; that one person be appoint ed a teller, on the part of the Senate, to make a list of the votes as they shall be declared, and that the result shall be delivered to the President of the Senate, who shall announce the state of the vote and the persons elected to the two Houses assembled as aforesaid ; which shall be deemed a declaration of the persons elected President and Vice-President, and, together with a list of the votes, be entered on ;he Journals of the two Houses. So that at the second counting of the elec- oral votes for President and Vice-President he Senate and House of Representatives did xercisa power, did exercise control, did ap point tellers not persons to sit at the Clerk s esk to make a list but did appoint tellers ; o that so far as that goes as a precedent at all goes to support the argument I have submit- But, sir, as I said a moment ago and if any Senator knows to the contrary I should be glad o be corrected -whatever has been done in :onnention with the counting of the electoral rote in the past has been done by toleration, vithout question and without debate. If there s a solitary exception to that rule, it is the ase in which, in 1857, Mr. Mason, the then residing Officer of the Senate, would not al ow a question to be raised as to whether the r ote of Wisconsin was lawful or not, on a mo- ion to reject the vote. He honestly assumed o himself the great power to decide that all objections were out of order and would riot allow debate. But history shows, and it is within the recollection of Senators here now, that the Senate was dissatisfied, and the House was dissatisfied, and that, if the election of President and Vice-President had then turned upon the vote of Wisconsin, his act might, it probably would, have produced a revolution. According to the strength of reasoning and justice and right, and in the provision of the Constitution, in my judgment, and with all due respect to his memory, he exercised an unwar ranted power on Ms part. I make no question that he did it in good faith and under a high conviction of duty. Mr. STEVENSON. I will state to the Sen ator that Mr. Mason, who then presided, ex pressly said at the time that he claimed no such power. Mr. MERRIMOX. Bat he exercised it. Mr. STEVENSON". He said he did not ex ercise it; he merely acted under that duty confided to him of declaring the vote returned. Mr. MERRIMON. I have no doubt that Mr. Mason did exactly what he thought was right and honest. I do not question his integrity, but I question the wisdom and the lawfulness of his view and his action, and it was ques tioned in both branches of Congress, and the action, I take it, would not have been allowed to stand if the election for President and Vice- President had turned upon the electoral vote of Wisconsin. That is the point I make. So, I repeat, there is no precedent, where there was a question and debate made, that contra dicts the argument that I have submitted here to-day. The honorable Senators from Maryland and Kentucky have cited speeches made by dis tinguished Senators and others in the past. What are they? Only the opinions, and often hasty opinions, expressed by men of distinction. That is all; their words are no authority; and they have not stopped to cite opinions held by distinguished men on the other side. They were assembled just like we are; they were arguing the question as we are ; and their opinion was worth no more than ours, except as some of them might be more intelligent and able than some of us. I could point to the convincing arguments of able and distinguished men, de livered during this debate; they will probably be pointed to in the future, in the line of the view that I have been advocating ; but what does that amount to, except as an expression of opinion? What does my argument to-day amount to, except as an expression of opinion? It is no precedent, it is my opinion and my ar gument ; it is to be measured by its strength and its power, if it have any. If it has power in it, if it has strength in it, if it has convinc ing reasoning in it, it will control the mind "of somebody here to-day, or somebody in the next Congress, or in the next age ; but its weight as a precedent amounts to nothing. Just so as to the arguments cited by the Senators to sup port the view they have insisted upon. They were simply the opinions some of them ex pressed hastily in a running debate of Sena tors or others, and have no authoritative sig nificance. There is no official precedent, there is no official act that contravenes the view that I have insisted upon here to-day, of the power or right of the Senate to pass this bill, or one substantially like it, providing for and regulat ing the counting of the electoral vote. Not only are the precedents wanting, but the opinions of learned commentators are wanting. The only one that has expressed himself at any length at all upon the subject, so far as I now remember, is Chancellor Kent. He was a great lawyer, and fit and worthy and able to express an opinion on this subject; and if he expressed an opinion, I should regard it as entitled to very great weight. I venerate his memory, and I have the profoundest respect for his learning, his ability, and his opinions as a great judge and law-writer. But so far as he expressed PROPOSED LEGISLATION AS TO THE MODE OF any opinion in this respect and it is strange that he did not say more it goes to show-, meagre as it is, that he recognized as existing in Congress a power to pass some bill like that which it is proposed to pass now, regulating the manner of counting the electoral votes for President and Vice-President ; for he says that, "in the absence of legislative authority," he presumes that it would be the duty of the President of the Seriate to count the votes. That word " presume " is a word which implies a very dubious state of mind ; it intimates that he scarcely thought so ; he presumes so, be cause the President of the Senate had done it before. But his opinion was not founded upon reason or any construction of the Constitution, or any language in the Constitution, or any in terpretation of it, or any inference from its provisions. His opinion, so far it goes for any thing, in my judgment, goes to show that he contemplated that such a power did exist, and that Congress might when it saw fit, when the condition of the country and the progress of the Government required it, exercise the power. Mr. President, we well know that many of the provisions of the Constitution have lain dormant, and act after act has been tolerated, and without question and without argument, which when scrutinized could not be tolerated if the touchstone of truth were applied. We find ourselves compelled every day to take some new view, to call into action some new provision of the Constitution in many of its features. Why, sir, the late war has devel oped views of the Constitution that would have startled the men who framed it, that would have amazed the most advanced statesmen be fore the late war ; and it is the province of Con gress now to scrutinize in cooler times wheth er a proper construction was put upon it. What was done will be cited as precedents ; but some of these will not be regarded as good precedents ; they will only be regarded as good precedents so far as they conform to reason and a proper construction of the Constitution. Many of its provisions are to be settled in the future settled differently from the action of the past, where the action of the past went unquestioned at the time. The decision of a court is only valuable as a precedent where the question was squarely presented and argued be fore the court, and when the court considered it, and upon mature deliberation decided it. In such a case the precedent is worth some thing, it commands respect and confidence. If we shall pass this bill, or one substantially like it, after this long debate and after it shall have been debated in the House, and the bill shall have become a law, it will be a precedent, because, upon due consideration of all the issues raised, the whole subject will have been dis cussed and examined pro and con in every light, and the proper authority to decide it will have come to a conclusion and taken action, and thus a precedent for all time will have been established. But if the bill shall not pass, if it shall not become a law, future Congresses will be left to grope along, as we are doing to day, and to settle the matter as their judg ments may lead them. It will be observed, Mr. President, that the bill under consideration provides, in the in terest of the States, that " no electoral vote or votes from any State to the counting of which objections have been made shall be rejected except by the affirmative vote of the two Houses." If but one return shall come, it shall be counted; it shall be counted without reference to its irregularity, its imperfections, unless both branches of Congress shall con cur in the opinion that it ought not to be counted. Suppose the electoral vote from North Carolina is sent, and it shall be sug gested that it is a forgery; the Senate and House of Representatives have the right to inquire whether it be a forgery, they have the means of inquiring whether it be a forgery; they can send out a committee composed of Senators and members of the House to take testimony and ascertain whether it was indeed a forgery ; or suppose some formal defect is suggested, they have the right to inquire into that, and debate the matter. Nevertheless, the vote shall be counted, unless both branches of Congress shall concur in rejecting it. It may be that there are defects about it that one House of Congress think would warrant Congress in rejecting it, and the other House of Congress may be of a different opinion. In such a case the vote must be counted. This is a liberal provision of the bill, and it seems to me a wise one. It is true Congress may decide against the vote of a State and reject it; but any power the President of the Senate might likewise decide against it if charged with the power to count the vote. Now I put this view : Would not the Ameri can people be better satisfied that the Senate and House of Representatives should decide a question of that sort than that the President of the Senate, one man and perhaps he in terested should decide it ? What other tri bunal within the whole range of tribunals in this Government is so well calculated to de cide that question as Congress ? What other tribunal could decide it more to the satisfac tion of the people of the United States than the Congress the Senate and House of Repre sentatives ? And when both branches concur in making such a decision rejecting a vote, can anybody doubt that the American people would submit quietly and cheerfully to a de cision so made? The decision would be made by a body representing the sovereignty and i the will of the people. The great mass of them would be content, whatever their pre dilections. I say, therefore, sir, that the provision is \ wise, it is in the interest of the States, it is in the interest of the people, the vote will be counted unless both branches of Congress shall concur in rejecting it, in which case it COUNTING THE ELECTORAL VOTES. ought to be rejected, and the proper tribunal will have rejected it, and according to reason and theory and the Constitution it ought to be rejected, and therefore the people will be sat isfied with it at all events, and better satisfied than if it had been rejected by the President of the Senate or any other tribunal whatever. But, Mr. President, another case is provided for. The second section of the bill provides That if more than one return shall be received by the President of the Senate from a State purporting to be the certificates of electoral votes given at the last preceding election for President and Vice-Presi dent in such State, all such returns shall be opened by him in the presence of the two Houses, when assembled to count the votes, and that return from such State shall be counted which the two Houses, acting separately, shall decide to be the true and vulid~return. In my opinion the last clause of that section ought to be stricken out, and the amendment which I have offered ought to be substituted, nd for reasons which I now propose to sub- lit. According to the Constitution and the iw, the State governments are at all times in fficial and harmonious and lawful relations riih the Federal Government, and the Con- ress and the President and all official authori- es of the United States take official notice of uch harmonious relations. We are bound to now such a state of things, whether we ctually know it or not. A. judge is bound to now the law whether he knows it or not. [e takes judicial notice of the law. Many iiings that come within his jurisdiction he is ound to know, whether he does or not. Just o in reference to the relations between the tate and the Federal Government. The author- ties of the Federal Government take official .otice of the proper lawful tribunals of the everal States. But it is suggested, suppose a tate of things where there is confusion in a articular State and there are two classes of ersons purporting to be the officers of the tate and to administer its government, and ach class sends up an electoral vote so that here are two electoral votes for President md Vice-President ; what is to be done in hat case? I say that that vote must be counted which is properly authenticated by lie certificate of that governor who adminis- ;ers the government of the State in harmony ivith the Government of the United States. The President recognizes the Governor of ^"orth Carolina ; the authorities of the Fed eral Government the Congress and all other authorities are in proper relations with him; :hey have been in constitutional relations with iim ; they recognize him to-day ; they recog nize him at the time the electoral vote comes, at bhe time the electoral vote is to be counted, and it appears by the signature of that executive and by the seal of the State in conjunction with it that the electoral college was elected by the law of the State as he represents it. Then that vote so authenticated is to be counted. But it may be said that simply official notice of the existence of State officers is sometimes npracticable, and positive action must be taken. What then shall be done? It is within the power of the President under the act of 1795 to recognize the lawful government of ;he State ; and, when he recognizes a partic ular governor and a particular class of offi cers as the lawful governor and officers of the State, that is the State government in har mony with the United States, and the electoral vote sent forward by that authority under the amendment that I have submitted would be counted, or, if Congress had recognized a governor, then the electoral vote sent forward and accompanied by his certificate would be counted. But there is another power above that of the President. His power to recognize a State government is derived from the act of 1795. lie derives his authority from that, and from that alone. His act is subject to the review of Congress. Congress is the last power to deter mine what is the true and lawful State govern ment. Congress may by concurrent resolution, and perhaps in other ways, recognize the gov ernor and the other officers who represent the true State government. When Congress has thus recognized them by express resolution or in any other way as a Congress, the electoral ticket sent forward by the government as ad ministered by such officers is the electoral vote which should be counted. That is the gov ernment which the people of the United States will be satisfied with, that is the lawful gov ernment. I say they will be satisfied with it because the Constitution charges Congress, whenever it shall be necessary for it to deter mine the relations of the Federal with the State authorities, to decide it, and when they decide a matter thus within their jurisdiction the people submit to it just as they would to a decision made by the Supreme Court touching a matter that came completely within its juris diction, and cheerfully. If they will not, the government would be at an end and the people but a mob. That is so, Mr. President, according to the terms of the Constitution, and a reasonable view of it, and it has been so expressly de cided ; and I take pleasure I have done it be fore on former occasions and I do it again in calling to the attention of the Senate ~the lan guage of the Supreme Court in this respect. I believe that we ought to talk more and know more about the relations between the States and the Federal Government. We cannot study them too much. I do not believe in the idea that we are not one people under the Constitu tion. I believe that this is a nation. I believe that the States make up the Union ; that they are of the Union and the Union is of the States ; that each is made an organ for the other and sup ports the other, and there is no hostile element anywhere existing, there is no hostility or ad verse right; and wherever hostility appears, it is because the machinery is not properly ad- PROPOSED LEGISLATION AS TO THE MODE OF justed and is not properly operating ; it is be cause of maladministration somewhere. This Government is imperium in imperio ; it is a National Government and State governments combined. Our system is a mixed government, composed of State and Federal Governments. The National Government within its sphere is absolute and sovereign; the States within their sphere are absolute and sovereign; but the whole make up one Government, one system ; they operate together like a nicely-adjusted piece of machinery. North Carolina is of the Union and for the Union ; the Union is for North Carolina. They cooperate each with the other, and each makes up a part of the machinery of the other. The people of the Union and the Government of the Union are interested in every official act done in North Carolina, and the people of North Carolina are interested in every official act done by the peo ple of the Union in every State, and by the au thorities of the Union, under the Constitution and the laws. This is one system of govern ment; it is one whole; and the only difficulty that Senators and statesmen can have is in ascer taining how the machinery shall be kept inhar monious action, and that is the question, in the respect that we have under discussion, that I am trying to throw some light upon now. I call attention to what the Supreme Court say as to the manner of ascertaining which is the true government and what is the power to determine that question in an emergency like the one suggested and like others I might men tion. In Luther vs. Borden, Chief-Justice Ta- ney, delivering the opinion of the court, said : Under this article of tlie Constitution it rests with Congress to decide what government is the estab lished one in a State ; for, as the United States guar antee to each State a republican government, Con gress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the Sen ators and Representatives of a State are admitted into the councils of the Union, the authority of the Government under which they] are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the Gov ernment, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long This was the Rhode Island case long enough to bring the matter to this issue : and as no Senators or Representatives were elected un der the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts. ! So, too, as relates to the clause in the above-men tioned article of the Constitution providing for cases of domestic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfill this guarantee. They might, if they had deemed it most advisable to do so, have placed it in the power of a court to decide when the contingency had happened which required the Federal Govern ment to interfere. But Congress thought otherwise, and no doubt wisely, and by the act of February 28, 1795, provided that " in case of any insurrection in any State against the government thereof it shall be lawful for the President of the United States, on ap plication of the Legislature of such State, or of the executive (when the Legislature canr.ot be con vened), to call forth such number of the militia of any other State or States as may be applied for, as he may judge sufficient to suppress such insurrec tion. By this act the power of deciding whether the ex igency had arisen upon which the Government of the United States is bound to interfere is given to the President. He is to act upon the application of the Legislature or of the executive, and consequent ly he must determine what body of men constitute the Legislature and who is the governor before he can act. The fact that both parties claim the right to the government cannot alter the case, for both cannot be entitled to it. If there is an armed con flict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful govern ment. And the President must, of necessity, decide which is the government, and which party is unlaw fully arrayed against it, before he can perform the duty imposed upon him by the act of Congress. Undoubtedly, if the President, in exercising this power, shall fall into error or invade the rights of the people of the State, it would be in the power of Congress to apply the proper remedy. That seems to me to be in all respects a proper, reasonable, and just exposition of the relations between the State and Federal Gov ernments in the respect referred to. Mr. President, in the case provided for in the second section of this bill, I say that the President of the United States having recog nized the proper authorities of the State, the electoral ticket sent forward by those authori ties must be counted, unless Congress shall reverse his action and declare . that another body of officers represent the true authority of the State ; and in the contingency that Con gress shall so declare, then the electoral vote sent by that class of officers must be counted. I insist that the proposed amendment to the bill is wise for this reason: It relieves Con gress, and parties in Congress at the time, from getting into squabbles about party ascendency and party success; it compels Congress in the count to accept the recognized government. Mr. MORTON. Will my friend permit me to interrupt him ? Mr. MERRIMON. Yes, sir. Mr. MORTON. While agreeing with most that has been said by the Senator from North Carolina, I desire to call his attention to the particular effect of the amendment which he proposes, so that he may answer the objection that I suggest, if it be an objection. He pro poses to strike out all after the word "which," in line 7, of section 2, and insert a clause to make the section read : And that return from sucli State shall be counted which shall be duly authenticated by the State au thorities recognized by and in harmony with the: United States as provided by the Constitution. The objection I suggest to the amendment offered by the Senator is, first, that this under-: takes to prescribe a rule by which the two Houses shall decide a question arising upon two returns. Congress would be bound to COUNTING THE ELECTORAL VOTES. 623 decide it that way if there was nothing else in it. If there are two returns, and one comes certified by the recognized government of the State, and the other comes from a pretended government, if there be no other objection, that which comes from the recognized govern ment of the State must be counted. If Con gress should recognize the spurious govern ment, or should fail to recognize the only gov ernment in the State, of course it would be a gross breach of its duty. I assume, therefore, that this amendment attempts to establish a rule by which Congress must be governed any how. But the question is whether it does not go too far. It says, " that return which shall be duly authenticated by the State authorities, recognizsd by and in harmony with the United States as provided by the Constitution" shall be counted. Now, suppose there are two re turns, one from the recognized government, and one from a pretended government. Of course, as between the two, we must take that which comas from the recognized government. But are we bound to take that return ? Mr. MERR1MON. We ought to be. Mr. MORTON". So far as the government of the Stats is concerned we ought to be ; but are we bound to take that return ? We should be under this amendment. It may turn out that the return which is sent up by the recog nized government is so defective, or shows such facts that we cannot receive it. For ex ample, suppose it does not show that the Con stitution has been complied with, or suppose it shows on its face that it was not complied with? The Constitution requires electors to vote by ballot ; suppose the return shows upon its face that they voted viva voce f Can we receive it ? Under this amendment we should be bound to receive it. We might reject it for the same reason under which both Houses would be au thorized to reject a return under the first sec tion. Suppose, if you please now, that the re turn which comes up from the recognized gov ernment shows that the persons voted for for President and Vice-President both resided in the same State, in violation of another provi sion of the Constitution, are \ve bound to receive it ? We should be under this amendment. Un der the first section, if there was but one return we should not be bound to receive it. There fore I suggest, even when the return comes from the recognized government, Congress should bo left to reject it under the second section as we should have a right to do under the first if there is but one return. I trust I am comprehended by the Senator. Mr. MERRIMON. 1 think I comprehend the honorable Senator. Mr. MORTON. As the amendments stand, if there are two returns, then the case is taken out from under the operation of the first sec tion, and there being two returns, that return which is authenticated by the recognized gov ernment of the State must be accepted ; it does not leave to Congress the discretion it would have under the first section where there was but one return. Mr. MERRIMON. The object of my amend ment is to cut off the very difficulties that the Senator has suggested. Surely Congress would be willing to receive the return, if it was right in all other respects, which has been sent for ward by the State authorities in harmony with the United States. The object of this amend ment, the legal effect of it, is to put the electo ral return as sent forward by the authorities in harmony with the United States upon an exact footing with the returns from every other State. It is to put the returns sent forward by the government not so recognized out of the case entirely ; and if it should turn out that there is any defect in the returns sent for ward by the government so recognized by the United States, of course it would be upon a footing with the returns from all other States, as if it was suggested that there was a forgery, or that there was any other defect, a concur rent vote under the first section would reject it. Mr. MORTON. The precise point I call at tention to is whether that would be the legal effect of the second section if amended as pro posed. I ask the Secretary to read the sec ond section as it would stand amended as my friend proposes, and then I ask him whether it does not in the case of two returns require Congress to accept anyhow that return which comes from the recognized authority? Mr. MERRIMON. Not necessarily. The only effect I intended it to have is to put the return that is sent by the authority not in har mony with the United States out of the case altogether, and put the return sent forward by the lawful authority of the State and recog nized by the United States on a footing with the returns sent from other States. I think that is legal and fair. Mr. MORTON. Will my friend listen to the reading as amended ? I ask that the sec tion be read as it will stand it amended by this amendment. The Chief Clerk read as follows That if more than one return shall be roceived by the President of the Senate from a State purporting to be the certificates of electoral votes given at the last ^receding election for President and Vice-Presi dent in such State, all such returns shall be opened by him in the presence of the two Houses when as sembled to count the votes ; and that returns from sucli State shall be counted which shall be duly au thenticated by the State authorities recognized by and in harmony with the United States, as provided by the Constitution. Mr t> MERRIMON. I think that a legal con struction of that amendment will give it this effect : that, if two returns are sent, that one which is sent by the authorities of the State not in harmony with the United States is put out of the count altogether and cast aside ; and then it leaves the returns sent by the au thorities recognized by the United States upon an exactly equal footing with the returns sent from every other State. 624 PROPOSED LEGISLATION AS TO THE MODE OF Mr. MORTON. Let me suggest an addition to my friend s amendment to obviate the ob jection, so that he may present the proposition fairly as I think : And that return which shall be duly authenticated by the State authorities recognized by and in har mony with the United States, as provided by the Constitution : Provided, That such return shall be otherwise the true and valid return. Mr. MERRIMON. I do not think I have objection to that. I will scrutinize that sug gestion after I get through with my remarks. It appears to me now that I have no objection to the suggestion, because my purpose is sim ply to put the returns sent forward by the au thorities of the State in harmony with the United States upon an exact footing with those of the other States, and to put the returns sent by the authority not in harmony with the Unit ed States out of the case altogether. Surely there can be no objection to that. The United States are in harmony, as I have said in the outset in debating this part of the subject, always with the proper State authori ties; and, when an emergency arises so that positive action must be taken, first the Presi dent, if called upon, recognizes the lawful State authority; and, if Congress shall not act, when the authority thus recognized by the President sends forward the electoral vote, that must be counted. If Congress shall re verse his action by a joint resolution or other wise, and declare that the other authority is the lawful one, the vote sent by it must be counted. This provision cuts off the debate and dispute that might arise on the occasion of the counting of the vote, in times of high excitement, about whether one government was the lawful government or another govern ment was the lawful government. "We need to keep that question just as far from the oc casion of counting the votes as possible. Let me illustrate this point by putting a sup- Eosed case. I will take the case of Rhode sland during the Dorr rebellion. Suppose that Dorr s rebellion had succeeded further than it did, and that it had gone on to the ex tent of electing or appointing an electoral ticket for President and Vice-President, and the charter authorities had done likewise. Suppose the rival governments had gone to that extent, and the Dorr government had sent forward an electoral return to Congress, and the charter government had done likewise. In that case, under the amendment that I have offered, as the charter government was the government in harmony with the United States, the Dorr return would have been put out of the case entirely. It would have given rise to no debate or trouble. Why? Because the other government was the government in harmony with the United States. The President had recognized the governor under the charter government, and Congress might therefore have recognized the governor under the char ter government by joint resolution. In that ease, under this amendment, the Dorr return would have given rise to no trouble at all ; it would have been cast out. There would have been no doubt about it; and the regular re turn under the charter government would have been counted just like the return from any other State. That is exactly what I want to effectuate. I wish to cut off disputes and quarrels that might arise at the time of count ing the vote by excited factions or excited par ties that might attempt to do an act unlawful in itself to affect the result at that moment. But, Mr. President, I will not avoid any dif ficulty about this question. I want to meet it, and meet it as fairly as I am able to do. Sup pose the case, as it is alleged was the case of Louisiana lately, where an election has been held and, under such circumstances as that, it is contended there is no government at all where the State government is completely dismantled ; still there are two factions there. There is the Kellogg faction ; there is also the McEnery faction, each claiming to administer the true State government. The Kellogg fac tion sends forward an electoral return; the McEnery faction sends forward an electoral return ; and there has been no positive recog nition by the President or by Congress of either of them. Then it may be asked, and, I think, with pertinence, what is to be done in that case ? My answer to that is this : In the first place, it is not probable, it is only remotely possible, that such a case could ever arise. In the next place, it is not probable that the two branches of Congress, in the discharge of their high duty, would divide, one House against the other, upon a question of that sort. Mr. JOHNSTON. Suppose one House rec ognizes one and the other House the other ? Mr. MERRIMON. In that ease I think they would be bound to count the one recognized by the President, unless Congress should over rule his action. Mr. JOHNSTON. Would a State govern ment in harmony with the President, but not with Congress, be in harmony with the United States ? Mr. MERRIMON. Most assuredly not ; the Congress is the supreme authority in such a case. But that is to say the President is cor rupt and has prostituted his office. We can not proceed upon such a supposition. Laws are passed on the supposition that the authori ties of the Government will do their duty as they understand it and faithfully. Mr. WHYTE. May I ask the Senator from North Carolina where he gets the authority from the Constitution to require any certifi cate from the executive authority? I ask whether the electoral college itself may not ertify its own vote ? Mr. MORTON. The act of 1792 Mr. WHYTE. I ask in the Constitution. I know it is in the act of 1792 ; but where in the Constitution is there such a provision that the electoral college cannot certify its own vote? COUNTING THE ELECTORAL VOTES. 625 Mr. MERRIMON. Plainly, by the neces sary, the essential, the inevitable implication. Unless some provision of that sort were made by act of Congress, how could Congress ever 3ome in connection and contact with the elec toral college ? It is necessary that Congress should take some action to provide some ueans, some evidence by which the Congress, ;he counting power, shall know that the State lad done its office or the people of the State lad done their office in electing electors who nake the electoral college. There is where ,he authority comes from. It comes by neces sary and inevitable implication ; and therefore ,he act of 1795 provides that the executive of he State shall give the elector a certificate of iis election, and he shall send it with the cer- ificate of the return. It is in that way the >ower is manifest and proceeds from the Con- tution, or, rather, is inherent in it. And in swer to my friend from Virginia, if the esident shall recognize an insurgent govern- ent, if he is corrupt enough to do it when knows it ought not to be done, I see no her remedy than that the Congress must be und by it, unless Congress will reverse his tion ; and to say to me that he is corrupt, cidlng with his party for his party s sake, is say to me that there must be the end of vernment, is to say to me the Senate will t act with the House and count the votes, d Congress will not perform that act, or 11 not do any other act that the Constitution arges it to do. We cannot proceed and act on the supposition that the President is cor- pt or that Congress is corrupt in any par- ular manner. The Constitution supplies the medy ; and if the President should recog- ze the State government in the case sup- sed, and evidence should be offered tending show that he did it corruptly and prosti- ted his power, he could be impeached for it; t that is not a supposable case in debating a .estion like this. I do not think that in the case of Louisiana 8 State government was dismantled for rea- ns which I have given repeatedly on former casions. But suppose a case and it is a bare- possible case where a State government completely dismantled ; in the first place, I y, it is barely possible that such a case could er happen. In the next place, I say that, if could, it is scarcely possible that when such return would come to Congress the two ouses of Congress would not concur in re- cting it, and whan they did concur in reject- g it the American people would sanction it. the people of a State should behave so bad- , if they should conduct the State govern- ent in such a way as to dismantle it and ostitute it by general disturbance, so as not be able to tell whether they have any gov- nment at all, the American people and the ople in that very State would say that Con- ess ought to exclude such a vote from the unt. Suppose that in that case the politi- 40 cal parties in Congress should be so debased by party zeal as that they would not agree upon what was right in such a case, they would jeopardize the country, and the result would be they would sit and contest and wrangle about it until the 4th March would come ; and, as the law now exists, when that time came, the controversy would be over. The President of the Senate pro tempore uu&er the act of 1792 would be President and would remain President until, under the Constitution, a new election for President and Vice-Presi dent could take place. That would be the effect. That is the way the matter would run, and it would give rise to no disorder. I say it is scarcely worth while to contemplate such extreme cases ; they are barely possible. I trust in God the case never may arise. It is barely possible that such a contingency could happen. Before I take my seat, Mr. President, and I beg pardon of the Senate for detaining them so long rny only apology is that this is a very interesting subject, and I want to get and give all the light I can I wish to consider how the two Houses sit together in counting the elec toral vote. At the last session, in a hurried, running debate here, I expressed the opinion with some hesitation that they sat together in joint session and acted as one body en masse, and that they did so in deciding all questions that came before them. I think that a fair argu ment can be made in support of that view. I know that one or two gentlemen entertained the view I then entertained, gentlemen for whom I have the highest respect, and they entertain that opinion still. I should be grati fied to hear what they have to say on that subject. The strong inclination of my mind, however, is the other way after very consider able reflection, and I will submit one or two reasons that have brought me to that conclu- tion. The Constitution says : The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. It will be noted that the Constitution does not provide that it shall be done in the pres ence of the Senate and House of Representa tives sitting in joint session, and I do not think by any implication we can supply those words. It is not necessary to do it. The Constitution can operate leaving these words to have their natural meaning and force, and by implication or inference we cannot interpolate the words " sitting in joint session." If the Constitution read, u The President of the Senate shall, in the presence of the Senate and House of Rep resentatives, sitting in joint session, open all the certificates," etc., then I would say with out hesitation that they must sit as one body and en masse for the purpose of determining all questions that might arise in counting the vote. But it does not say that ; it says the Senate and House of Representatives. The "Senate" has a technical meaning. It does 626 PROPOSED LEGISLATION AS TO THE MODE OF not imply the seventy-four men who compose the Senate as Senators in their individual ca pacity. It implies the seventy-four men, or a quorum of them, sitting in this Hall, organ ized, with a presiding officer, and proceeding to business under the Constitution and laws. That is what is meant by " Senate." It has a technical meaning. It means the Senators composing the Senate, organized in the Senate or in the proper place to proceed and act, to do anything within their jurisdiction under the Constitution. Mr. MORTON". I want to call the attention of my friend now to what I think is the defect in his amendment. Mr. MERRIMON. I am not through on this point. I will ask the Senator to do so presently. The same remarks are applicable with the change of circumstances to the House of Representatives. The Constitution in this respect treats them as separate and distinct bodies, and it seems to me that they must vote and act as separate and distinct bodies ; and, by the necessity of the case, when a ques tion shall arise the two branches of Congress, proceeding as I have undertaken to indicate in my remarks they ought to proceed, the House of Representatives must decide the question for itself there in its own Hall. If practicable, the Senate might decide the same question for itself there ; but, as it would not be practica ble to do that, it must retire to its Chamber or some other convenient place and decide it there. "When each has made a decision upon any particular question arising, then the two bodies may come together and announce the decision. Suppose they do not agree ; then the disagreement has the same effect as the disagreement of the two Houses upon any measure of legislation or any other matter that they are called to act upon in their legis lative capacity. I will thank the Senator from Indiana now to make the explanation that he desired to make a moment ago. Mr. MORTON. The Senator from North Carolina, in his proposed amendment, strikes out that part of the second section which re quires the joint action of the two Houses : And that return from such State shall be counted which the two Houses, acting separately, shall de cide to be the true and valid return. And he makes it read : And that return from such State shall be counted which shall be duly authenticated by the State au thorities recognized by and in harmony with the United States as provided by the Constitution. I do not know whether he intends to leave out the concurrence of the two houses, but he leaves the same question to be decided by his amendment. He requires that return to be counted which " shall be duly authenticated by the State authorities recognized by and in harmony with the United States." There is the question still to be decided which of these two pretended governments is recognized by and which one is in harmony with the United States. There being two returns and two pre tended governments, somebody nmst decide that question. We say the President of the Senate cannot decide it; the House cannot decide it alone ; the Senate cannot decide it alone. Therefore that government must be selected by both Houses ; and the amendment of the Senator still leaves the main question open to be decided, which is the government acting in harmony with the United States ; in other words, which is the lawful government of the State. I submit to my friend that that question can only be determined by both Houses, and where the two Houses disagree about that the question is left open just as it was before. Mr. MERRIMON. My answer to that is this, and I thought I made myself understood a while ago, that there is at all times an au thority of the State government in harmony with the Government of the United States. There cannot be a time when the Government of the United States does not recognize one authority or another. Sometimes it becomes necessary to recognize it actively, as where there is a call upon the President to exercise power in suppressing an insurrection against the State, or where it becomes necessary for Congress to guarantee to the State a republi can form of government. In that case, where the President has recognized the authority, if Congress has not taken action, that electoral ticket would ordinarily be counted. To say that it would not be counted, ; to say that the Congress sitting here to count the electoral vote would not count it, and count it without debate, that they would go out of the way to raise a question, is to say, it seems to me, that they would be corrupt, that they would not be willing to submit in good faith to a pro vision of the law. Then I go further and say, that if it was contemplated that such contin gencies could arise about a particular State, it would be competent for Congress, in advance of the meeting of the two branches of Con gress, to count the electoral vote, to declare by concurrent resolution, over any action of the President, which was the lawful State govern ment. But suppose that the wrangle, the con flict, that the Senator suggests, should arisa (which I endeavored to show was a bare pos sibility), and the two parties, or the three par ties, or the contending parties, should consent to be prostituted by party zeal, so that they could not make a decision, the controversy would simply go on till the 4th of March, when it would end by limitation of time, and the President pro tempore of the Senate would be the President of the United States temporarily, and a new election would take place under th4 Constitution and laws. Mr. MORTON. I fear I did not make my- self understood by the Senator from North Carolina, It conies right back to this point! here are two returns opened by the Vice-Presf ^7=?-A. 0^ COUNTING THE ELECTORAL VOTES. ident from two pretended governments in a State. His amendment says that that return shall be counted which comes from the lawful government of the State, but the very question to be decided is, which is the lawful govern ment of the State? Mr. MERRLMON. I go on the ground that it has been decided before that time. Mr. MORTON". I submit that is to be de- ided by both Houses, and my friend in his amendment strikes out that part which re quires the concurrence of both Houses. Mr. MERRIMON. But I contend that the decision touching that matter has been made Before actively by the President, where neces sary for him to take action, or actively by Congress ; and if there is a conflict of the par ties whereby they cannot agree, the conflict goes on. I admit that you could possibly raise such a question ; and if such a contingency should arise, then I think it would go on until, >y lapse of time and by operation of law, the residing officer of the Senate would become ^resident, and a new election would have to lake place. Mr. MORTON. The Senator says the deci- iion would be made before as to which was ;he lawful government of the State ; but who s to decide how that decision was made? Who is to decide that question ? Suppose that question arises. I say the President has de- jided it, and we are bound by his decision. Another says no, the President never decided hat question ; he did a certain act, but that was not a recognition of the State government. " will call my friend s attention to an illustra- ion of this very difficulty on this floor. I have irgued in the case that arose from Louisiana hat the President, under the act of 1795, had he power, and that he was authorized there into by Congress, to decide which was the awful government of the State, and that that lecision was binding upon the whole G-overn- nent until the United States, through Con gress, by the action of both Houses, determined therwise. I thought that was the. law then ; think so now ; but that view was disputed, I telieve, by nearly everybody on this side of the Tnaraber, and some on the other side of the Chamber. Then it was argued that, although he President had so far recognized one gov- trnment in Louisiana as to keep the peace un- ler it, he had not done an act which recog- lized it as the lawful government. So, after ill, the question comes right back. Here are ;wo sets of returns. It is said the President has recognized the government that sent one of them ; but who is to settle the question whether the President did recognize that gov ernment ? That very question must be settled by somebody, and I submit it must be settled by both Houses. Therefore I think my friend s amendment is defective. Mr. JOHNSTON. Will the Senator from North Carolina allow me to ask him a ques tion ? Mr. MERRIMON. Yes, sii Mr. JOHNSTON". I understand suggests as a mode of avoiding the difficulty that the two Houses may settle in advance the question suggested by the Senator from Indi ana, but he provides no means of informing the two Houses officially that two returns ex ist. The returns are required to be sent to the Vice-President and remain in his custody. He opens them for the first time after the two Houses assemble in joint convention. That is the first official information that occurs that there are two returns, and it is too late then to provide for the difficulty suggested. Mr. MERRLMON. We well know if such a state of things exists in a State as that, two electoral returns would be sent forward. Mr. JOHNSTON. How do we know it? Mr. MERRIMON". We do not know it offi- cially, but still a member of Congress having personal knowledge of the facts would bring the matter before Congress officially ; he could suggest it, and Congress could appoint a committee to institute an inquiry into the con dition of the State and take proper action by joint resolution or otherwise. Mr. MORTON". Suppose in that case, if my friend permits me, Congress undertakes to settle in advance and cannot agree about it, then comes the same question. Mr. MERRIMON". I endeavored to explain that a moment ago. That case is barely a possible one, and not at all probable. In that case the controversy would go on until the 4th of March, as the law now stands, and the count of the vote for President and Vice- President would be defeated, and another election would have to take place under the Constitution and laws. Mr. JOHNSTON". 1 ask the Senator this question : The Constitution provides that the certificate of returns shall not be opened un til the two Houses meet in joint convention. How can the question as to which are the true returns be said to be up until the returns are opened ? The Constitution provides that they shall not be opened until the two Houses meet in joint assembly. How is it possible to settle the question in advance? Mr. MERRIMON. I thought I had an swered that, but I will do it again. Mr. JOHNSTON". I do not think the Sen ator can answer it very well. Mr. MERRIMON. I think I can. My friend does not make it so by simply saying so. I can not make anything so by simply saying it is so ; I must have some reason to underlie my as sertions. There must be reason, there must be substance underlying my declaration, or it is worth nothing. I say in the first place, as I said a moment ago, if such a controversy should arise in a State, it could not be done without the notice of the nation, and it would be perfectly competent before the time to count the vote arrives for a member of Con gress to bring it before the House or the Sen- 628 PROPOSED LEGISLATION AS TO THE MODE OF ate and raise a proper inquiry in that behalf. That would be a contingency in which it would be proper for Congress to pass a concurrent resolution declaring that one government or the other was the lawful government and the one to be recognized by the United States, and when they had passed such a joint reso lution, under the decision of the Supreme Court which I have read from, it would be the duty of Congress, the duty of the Supreme Court, the duty of the President and all other officials of the Union to recognize that as the true and lawful government. But then my friend s question goes further than that. He says, how could you tell until the returns were opened which was the lawful return ? Suppose, the moment the return is opened and it is handed to the tellers appoint ed under the direction of the two branches of Congress, it appears that one return is signed by John Smith. The Congress knows at once that John Smith is the governor of the State recognized by the joint resolution of Congress or the governor of the State recognized by the President, Congress having taken no action, and the count would be made forthwith. That is the way it would be done. Then if there was another return signed by John Jones, who represented the insurgent government of the State, the moment it was opened the Senate and House of Representatives would see that he was the insurgent governor. In that case the return would be rejected. It would not be counted at all, nor would it be debatable. That is the effect of my amendment ; and it does seem to me that under it the whole work ing machinery would operate thoroughly and well. The one main object I had in view in offering the amendment was to cut off a wrangle that might arise in the count of the vote about which was the lawful governor. I do not think it is very material for the reason I assigned a while ago, to wit, that it is barely possible that such a case could ever exist, and, if it should happen, then it is barely possible that Congress could ever become so prostituted by party zeal as that it would jeopardize the interests of the country by refusing to take proper action in that respect. The PRESIDENT pro tempore. The ques tion is on the amendment proposed by the Senator from North Carolina. The amendment was rejected. Mr. RANDOLPH. I have withheld the amendments that were under discussion yes terday, partly because I did not intend to speak to them and partly because I felt that some amendments might be offered that would do away with the necessity for those which I had already presented. I have already said in sub stance all I intended to say as to what seemed to me the value of the amendments that I have placed before this body. There has been laid upon the desks of the members of the Senate this morning an amendment which I shall now offer, and I beg to call the attention of Sena tors to the fact that the amendment that is now to be offered is not that which was upon their desks a day or two ago, coming from me. It has been changed somewhat, in order to meet the objections urged by the Senator from Virginia [Mr. JOHNSTON] and the Senator from Texas [Mr. MAXEY], among others. I have of fered it in the spirit of compromise. It seems to rue to cover some of the objections that have been offered by the Senators from Vir ginia and Texas, and I believe by the Senator from Tennessee [Mr. COOPER]. I now offer as an amendment to the pending bill the addi tional sections which I send to the Chair, and I ask the Clerk to read them. The CHIEF CLEEK. It is proposed to insert as additional sections to the bill the following : SEC. . To insure each State the count of the electoral vote, except it shall be rejected, as provided for in section 1 of this act, it is declared the duty of each House of Congress to record its vote by yeas and nays upon all questions as to which are the true and valid returns of a State ; and it shall be the duty of the presiding officer of each House to imme diately forward to the others a true and detailed re turn of such vote. SEC. . Should it then appear that the two Houses have failed to agree as to which are the true and valid returns, they shall immediately reassemble, and the President of the Senate shall announce those returns as valid which shall have received a majority of all the votes cast in both Houses of Congress, considered as if in joint meeting assembled. SEC. . Should it occur that the aggregate vote of both Houses be equally divided upon the question, then, and in that event only, the President of the Senate shall give the casting vote. Mr. RANDOLPH. The Senator from In diana, in speaking yesterday to this question, said that no plan had been presented, that no plan could be presented, which would not in certain exigencies leave a State unrepresented. I called his attention yesterday to the fact that the operation of the amendment that I had proposed would get rid of that difficulty. Under the amendment that I have suggested there is no contingency in which the electoral vote of a State can fail to be counted. Whether this be the right plan or not, I do not pretend to say ; but I do say that the two Houses of Congress in one way or another will decide, and must decide, which the true returns of a State are, and the difficulty that has been so frequently suggested in the course of this de bate is overcome by it, and that, too, in a plain, practical manner. Mr. CHRISTIANCY. The chief objection I have to the pending amendment is that it seems to me to proceed on the erroneous idea that it is competent under the Constitution for the two Houses to meet and act in joint con vention. It appears to me from the reading of the Constitution that they act in their sep arate capacities, and that it is incompetent to provide by an act of Congress for their action in joint convention at all. This amendment evidently proceeds on the idea that it is com petent. It provides that : The President of the Senate shall announce those \ COUNTING THE ELECTORAL VOTES. 629 returns as valid which shall have received a major ity of all the votes cast in both Houses of Congress, considered as if in joint meeting assembled. If that does not make a joint convention I am incapable of understanding the language. Then, again, the last section of the amendment reads : Should it occur that the aggregate vote of both Houses be equally divided upon the question, then, and in that event only, the President of the Senate shall give the casting vote. That does not touch the point, however. The main thing, and it seems to me the suffi cient one, is that it attempts to make a joint convention where the Constitution requires the two Houses to act in their separate capaci ties. Mr. MORTON. I did not hear my friend from Michigan very distinctly, but I think he stated the objection to the amendment of the Senator from New Jersey. It proposes to lave the effect of a joint convention without laving it in fact. The two Houses shall vote separately, but, if they disagree, then we shall jiount the number of votes in the House and he number of votes in the Senate, the num- 3er on the one side and the number on the )ther side, and whichever aggregates the argest in favor of the return, that shall be counted. For example, there are two hun- Ired and ninety-two votes in the House : one- lalf is one hundred and forty-six ; seventy- ? our votes in the Senate : one-half is thirty- seven. The two Houses not agreeing, if there should be thirty-eight votes in the Senate in avor of one set of returns and one hundred ind forty-six votes in the House in favor of ;he same set, then add those two sums to- rether and that makes the majority, and de- jiiles it. I state it correctly ? Mr. RANDOLPH. Yes," sir. Mr. MORTON. I think that would be a rery great anomaly under our Constitution, ind it would hardly work. Mr. RANDOLPH. I endeavored to show, n presenting the original amendment, that so far from this being an anomalous condition of iffairs, as the Senator from Indiana has stated, n certain contingencies the States would prac- ically decide the result through the vote of ;he Senate; that in other contingencies the [louse of Representatives, and thus the peo ple, would decide ; and that in still other con tingencies, when the aggregate vote of the ;wo Houses left the matter evenly divided, ;hen, and in that event only, the President of the Senate with his casting vote would decide, is was contemplated by the amendment of the Senator from Texas. So then, it seems to me, f I may use the word, that the chances are equal in favor of one or the other of these >lans ; that no special advantage is given lin ger the proposition I have made either to the Senate, to the House, or to the presiding officer of the two bodies. I am aware that the plan s open to the objection made by the Senator from Michigan ; but if he will consider he will see that it is not a joint meeting, but that it is a law in effect fixing upon the President of the Senate a rule by which he shall in certain emergencies consider calmly the vote. That is all there is of it. It may have the effect of a joint meeting ; I grant that it has ; but it gets rid of the objection which has been urged, that there is no right in the two Houses to come together in a joint meeting. I have no further remarks to offer. The Senate has already been detained a long time on this question. I suspect that the amend ment which I have offered will meet the fate that all the other amendments have met with. I ask for the yeas and nays upon it. The yeas and nays were ordered ; and be ing taken, resulted yeas 15, nays 37"; as fol lows : YEAS Messrs. Bayard, Cape* ton, Cooper, Davis, Gordon, Johnston, McCreery, Eandolph, Ransom, Saulsbury, Thurman, and Withers 12. NAYS Messrs. Bogy, Bout well, Burnside, Cam eron of Wisconsin, Christiancy, Conkling, Cragin, Dawes, Dennis, Dorsey, Eaton, Edmunds, Ferry, Frelinghuysen, Goldthwaite, Hamlin, Howe, Jones of Florida, Kelly, Key, Logan, McDonald, McMillan, Merrimon, Mitchell, Merrill of Maine, Morton, Ogles- by, Paddock, Patterson, Sargent, Spencer, Wadleigh, West, Whyte, Windom, and Wright 37. ABSENT Messrs. Alcorn, Allison, Anthony, Booth, Bruce, Cameron of Pennsylvania, Clayton, Cockrell,Conover, English,Hamilton, Harvey, Hitch cock, Ingalls, Jones of Nevada, Kernan, Maxey, Morrill of Vermont, Norwood, Robertson, Sharon, Sherman, Stevenson, and Wallace 24. So the amendment was rejected. Mr. WRIGHT. I suggested the first day this bill was under consideration a difficulty that occurred to me under the first section. I have since called the attention of the chair man of the committee to the same difficulty, which is in no manner connected with the question we have been discussing ; but it seems to me that the concluding language of the first section is such that it may lead to trouble, and indeed to very great trouble. I see no neces sity at all for the concluding sentence of the first section. The possible difficulty arises in this way: It will be seen by consulting the prior part of the section that it is provided that, unless the two Houses agree in rejecting a vote where there is but one return, that vote shall be counted. Then the concluding sen tence is : And any other question pertinent to the object for which the two Houses are assembled may be sub mitted and determined in like manner. It seems to me that if a question is sub mitted and the two Houses do not concur in rejecting it or in the negative, then, under that language, it would be determined in the af firmative. I think it is susceptible of that construction, and therefore I suggest and I move to strike out the concluding sentence. I do not think it is necessary at all, for the reason that the two Houses would necessarily have the power and the right to take up any subject pertinent to the matter under consid- 630 PROPOSED LEGISLATION AS TO THE MODE OF eration; and such question ought to be de termined by the ordinary rules that obtain in deliberative bodies ; whereas if this language is retained, it seems to me we may be led into the very difficulty that I suggest. Certain it is from this language, " determined in like man ner," if the "like manner" refers to the pro vision touching the rejection of a vote where there is but one return and the two Houses cannot agree in such rejection, then it is to be counted; so if any question pertinent to the manner of counting the votes is present ed and the two Houses do not agree against the motion made, it seems to me it logically follows that it would be adopted. Let me put an illustration. Suppose that during the time of counting the votes some person shall move that a committee be appoint ed, that the subject under consideration be re ferred to a committee of three or five. The two Houses separate and vote upon that ques tion. That is a question legitimate and perti nent to the matter uuder consideration. The House of Representatives determines to vote for the committee, the Senate against it. It seems to me from this language it would fol low that the committee would be raised. Mr. MORTON. I would say to my friend from Iowa that if he makes a motion to strike out that sentence, as far as I am con cerned, I shall not resist it. Perhaps there would be some obscurity in it, and I do not think it is necessary. Mr. WRIGHT. I move to strike out the last sentence of the first section, in the follow ing words : And any other question pertinent to the object for which the two Houses are assernhled may be sub mitted and determined in like manner. Mr. THURMAN. The same question was before the Senate at the last session when the bill was up before, and a similar provision was stricken out I believe unanimously. The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from Iowa. The amendment was agreed to. Mr. WRIGHT. I suggest also an amend ment in the last section of the bill to remove an obscurity. It is a matter of doubt, as the language stands, whether, if one House shall determine to take a recess, that operates to work a recess as to both Houses, or it is in tended that a recess may be taken by one House and the other continue in the discharge of its duty. I understand the intention is that one House may take a recess without working a re cess of the other. I therefore suggest that in line 16 of section 4, between the words " re cess " and "not," the words " of such House " be inserted. Mr. MORTON. That is what it was in tended to mean. 1 have no objection to the amendment. Mr. WRIGHT. I have no doubt that was the intention, but I think the language as it is leaves it a matter of doubt, and therefore I move the amendment. The amendment was agreed to. Mr. THURMAN. In order to make the bill consistent with the amendment adopted on the motion of the Senator from Iowa to the first section, I move to strike out of the third sec tion, in lines 3 and 4, the words "or for the decision of any other question pertinent there to." That is necessary after having stricken out the last sentence of the first section. Mr. WRIGHT. I suggest to my friend that I doubt whether it logically follows that you should strike those words out because we have emitted what was in the first section. This is giving a rule, as I understand, to govern the two Houses when they shall separate with reference to the discussion; and if you omit these words entirely it might be construed to follow that you cannot consider any other question -except the single ultimate one. My object in striking out the language in the first section was that it was susceptible of a miscon struction as to the rule that would obtain in deciding such questions. Mr. THURMAN. I think the words ought to go out. They were stricken out of the pre vious bill, and 1 think they ought to go out of this, for the very reason which the Senator has suggested, that they may be liable to a very wrong interpretation, and are very objection able to some Senators for fear of their being misconstrued. There can be no trouble about the Senate exercising any of the powers that are necessary for the convenience of its pro ceedings, and these words are not necessary in order to enable it to exercise those powers which are necessary to the proper order and convenience of its proceedings. 1 hope there fore there will be no objection to striking those words out. I want this bill to command as universal assent as it is possible to obtain for it, and these words are very obnoxious to some. The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from Ohio. The amendment was agreed to. ( Mr. THURMAN. I wish to call the atten tion of the chairman of the committee to one or two other amendments which were made at the last session, which I think ought to be made in this bill. Line 8 of section 1 pro vides: "One teller shall be appointed on the part of the Senate and two on the part of the House of Representatives." I do not see any reason for distinguishing between the dignity or the weight of the two Houses. ] move to strike out "one teller" and insert "two tellers," so that there may be the same number of tellers on the part of each branch. Mr. MORTON. I see no objection to that. I will only say that I believe that from the first count, which was made in 1789, it has been the custom to appoint one teller on the COUNTING THE ELECTORAL VOTES. 631 part of the Senate and two on the part of the House ; but I see no reason for that. I have no objection to the amendment. The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from Ohio. The amendment was agreed to. Mr. THURMAN. I now move to insert after the word " votes," at the end of line 11 of section 1, these words : Which certificates shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter "A." The reason for that is that the mode of call ing the States upon any question whatsoever is different in the Senate from what it is in the House. In the Senate we always observe the alphabetical order ; in the House, on the con trary, they call the States in the order in which they were admitted into the Union for peti tions and the like I do not refer to calling the yeas and nays, for of course then the members are called by their names. Mr. MORTON. I have no objection to the amendment. Mr. THURMAN. This adopts the simple plain rule of alphabetical order. The chair man of the committee says he has no objection to the amendment. The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from Ohio. The amendment was agreed to. Mr. MERRIMON. I move to strike out in the third line of section 1 the words "the two Houses of Congress," and insert " the Senate and House of Representatives," so as to con form to the language of the Constitution. That was agreed to in the previous bill. It will then read That the Senate and House of Eepresentatives shall assemble in the Hall of the House of Eepresent- ativesat one o clock, etc. The amendment was agreed to. Mr. MERRIMON. At the end of line 4 of section 1, after the words "one o clock," I move to insert the letters " p. M." Mr. MORTON. All right. The amendment was agreed to. The bill was reported to the Senate as amended, and the amendments made as in Committee of the Whole were concurred in. The PRESIDENT pro tempore. The bill is still open to amendment. The bill was ordered to be engrossed for a third reading, and was read the third time. Mr. EATON. Mr. President, I do not de sire at this late hour, after the prolonged dis cussion we have had, to detain the Senate long. I have voted steadily against every amend ment that has been sought to be placed upon this bill, and I shall vote against the bill, and I desire to state very briefly the views which govern my action. In the first place, I am opposed to legislative tinkering of the Constitution; and the first question that each Senator should put to him self is, Is there any necessity for a bill of this character ? And the second question is, Has Congress any power to legislate upon this sub ject whatever ? A great deal has been said here with regard to the operation of parties in discussing amendments, and my good friend, the senior Senator from the State of Rhode Island [Mr. ANTHOXT], gave the key to it. "When a proposition was made that the House of Representatives as States should vote upon this subject, my good friend, the Senator from Rhode Island, suggested, why not put in the words, " the next democratic national conven tion?" This question ought not to be ap proached in any way in a party spirit. I will not be accused of discussing this question from that standpoint, because 1 undertake to say now that the Constitution is perfect to-day. Mr. CAMERON, of Pennsylvania Will the Senator from Connecticut give way ? I be lieve the Senator from Connecticut is not very well to-day, and does not care about finishing his speech now. I, therefore, move that the Senate proceed to the consideration of execu tive business. The PRESIDENT pro tempore. Does the Senator from Connecticut yield for that pur pose ? Mr. EATON. Yes, sir. Mr. EDMUNDS. What is the stage of the pending bill ? The PRESIDENT pro tempore. The ques tion is on the passage of the bill. Mr. EDMUNDS. Has the bill been read the third time ? The PRESIDENT pro tempore. It has been. Mr. EDMUNDS. I did not know that. I ask, if we are going into executive session, that the bill as it now stands be printed, so that we may all see it to-morrow as it is. ^ Mr. MORTON. I hope we shall finish the bill to-day. We are very near the determina tion of it. The PRESIDENT pro tempore. The Sen ator from Pennsylvania moves that the Senate proceed to the consideration of executive busi ness. Mr. MORTON. I hope that motion will be withdrawn. Let us finish this bill. Mr. BAYARD. I hope not. The Senator from Connecticut would prefer to go on, to morrow morning. The PRESIDENT pro tempore. The ques tion is on the motion of the Senator from Pennsylvania. Mr. HAMLIN. I waut to make a sugges tion to the Senator from Pennsylvania to ac commodate the Senator from Connecticut. In stead of going into executive session, I ask that I be allowed to call up the bill establish ing certain post-roads. It is highly desirable, because in some of the States for which routes are provided the lettings are about to be ad vertised. The PRESIDENT pro tempore. Does the 632 PROPOSED LEGISLATION AS TO THE MODE OF Senator from Pennsylvania insist on his mo tion ? Mr. CAMERON, of Pennsylvania. Not at present. Mr. HAMLIN. Then, with the consent of the Senator from Connecticut Mr. MORTON. Let not the electoral bill be displaced, but left as the unfinished busi ness. Mr. HAMLIN. I was going to make this suggestion with the consent of the Senator from Connecticut : I ask that this bill be in formally passed by, to retain its place, and allow the post-route bill to be taken up. The PRESIDENT pro tempore. Is there objection to the suggestion of the Senator from Maine ? The Chair hears none ; and the post-route bill is before the Senate. Mr. EDMUNDS. Now, I move that the bill about the electoral votes be printed with the amendments as they stand. The motion was agreed to. Ix SENATE. Friday, March 24, 1870. (" Congressional Eecord," pp. 1936-1946.) The Senate resumed the consideration of the bill (S. No. 1) to provide for and regulate the counting of votes for President and Vice-Pres- ident and the decision of questions arising thereon, the pending question being on the passage of the bill. Mr. EATON. Mr. President- Mr. BURNSIDE. I beg to ask the Senator from Connecticut to yield the floor for a few moments. I move a reconsideration of the vote by which this bill was ordered to a third reading, with a view to offer an amendment. Mr. MORTON. If I understand the purpose the Senator from Rhode Island has in view, he proposes to offer an amendment. It cannot be done without a reconsideration ; but, as the bill has been pending before the Senate for a long time, I suggest to the Senator that he have his amendment read for information, and he can speak to it in the present condition of the bill, and let the vote on reconsideration then be the test on his amendment. That will answer his purpose. Mr. BURNSIDE. I am quite willing to take that course. Mr. BAYARD. I hope the motion of the honorable Senator from Rhode Island will pre vail. I was not aware that the bill had passed to a third reading. I had intended to offer in the Senate the amendment of the Senator from Tennessee [Mr. COOPEE], the vote upon which was taken in his and my temporary absence from the Senate. Unexpectedly the vote was reached and taken, and I did desire to submit to the Senate a few remarks in favor of the amendment of the Senator from Tennessee. Now, as the bill has passed to a third reading, unless the reconsideration is ordered by the Senate, we shall be excluded from offering amendments ; and yet I did desire that that amendment should be voted upon by a fuller Senate than those who were present at the time the vote was reached. I trust, therefore, understanding the motion of the Senator from Rhode Island to be for the reconsideration of the vote by which the bill passed to a third reading, it will prevail, and that no objection will be offered to it. The PRESIDENT pro tempore. Is there objection? Mr. MORTON. I withdraw the objection. The PRESIDENT pro tempore. The Chair hears no objection. The motion to order the bill to a third reading is reconsidered, and tho bill is now open to amendment. Mr. BURNSIDE. I now offer my amend ment. There is a misprint ; the amendment is intended to take the place of the second section of the bill instead of the third as printed. The Chief Clerk read the amendment ; which is to strike out all of section 2 and insert in lieu thereof That if more than one return shall be received by the President of the Senate from a State, purporting to be the certificates of electoral votes given at the last preceding election for President and Vice-Presi- dent in such State, he shall immediately make a re port thereof to the Chief Justice of the Supreme Court of the United States, who shall at once cause the said Supreme Court to proceed to examine as to who are the legal electors of said State, and shall have power to send for persons and papers ; and the said Chief Justice shall, on or heforu the last Tues day in January next succeeding the meeting of the electors of President and Vice-President, report to the President of the Senate which of the said elec tors were legally elected ; and the returns sent by the electors so designated shall, if in all other re spects they are legal, be counted before the two Houses. Mr. BURNSIDE. Mr. President, it was my intention to offer an amendment covering the points embraced in the remarks I submitted the day before yesterday ; but, inasmuch as a constitutional amendment will doubtless bo adopted before the presidential election of 1880, 1 have decided to confine my amendment to the case of two sets of returns from the same State. I am aware that there may be a supposed constitutional objection to this, but I think in an emergency like this, if it is possible for Congress to give the Constitution a liberal con struction which will enable us to avoid the dis cord that may arise from double sets of returns from any single State at the next election, we ought to do it. Take, for instance, the case of Louisiana. If the electoral votes should be so equally divided as to make the return from that State decide the election, it is clear to me, and must be clear to every Senator here, that the two Houses would disagree upon that sub ject. It is clear to me that the present House of Representatives, the same House which is to act when we count the electoral votes at the next presidential election, would declare COUNTING THE ELECTORAL VOTES. 633 the McEnery government the legal govern ment of the State of Louisiana. We all know that the Senate would declare the Kellogg gov ernment the legal government because it has already passed a resolution to that effect. Now, Mr. President, is it at all reasonable to suppose that either party would be satisfied with the result in such a case when the elec toral votes are counted next February ? Does any Senator believe that there would not be great discord in the country if that state of af fairs should arise? Yet under this bill it may arise. I hold it to be the duty of Congress to pass some law or make some joint rule that will avert the difficulty. The objection that my amendment is not constitutional does not strike me with the same force that it does many of the Senators with whom I have talked. I do not consider this a judicial question ; I do not consider it a " case " within the meaning of the Constitu tion. It is simply a call from Congress on the Supreme Court to perform the reasonable duty of instructing them as to which is the legal government and which set of electors were le gally elected in a State. If it is a case " at all, it is a case in which a State is interested, and therefore the Supreme Court has original juris diction. I may say many things that seem absurd to the legal gentlemen in the Senate ; but I am striving to get at some practical means of avoiding a very serious difficulty which may arise at the counting of the next electoral votes. If we cannot refer this question di rectly to the Supreme Court as a court, can we not refer it to it as a board of arbitration? Can they not resolve themselves into such a board for the time being ? Is it not their duty as citizens of the United States and as officers of the United States and officers of the highest court of the land, one of the coordinate branches of the Government, to perform this work for Congress ? It is clear to me, and must be clear to the mind of every Senator here, that the people of the United States would bow to a decision of that kind without complaint. They are accus tomed to regard the decisions of the Supreme Court as of great authority ; they are accus tomed to respect them, whether they are for or against them. There is no mode I can think of that would give such universal satis faction to the whole people. Another thing is very clear to me, that it was never the intention of the fratners of the Constitution to make Congress the judge of the qualifications of the electors. If it had been so, the Constitution would have distinctly stated it. It makes each House the judge of the qualifications of its own members in express terms, but it does not imply even that Congress has any right to judge of the qualifications of the electors. The framers of the Constitution probably rind we are discussing would arise. It is an unforeseen trouble which is presented to us, and we as representatives of the people are bound to grapple it in such a way as to avoid discord and danger. I offer this amendment in the best possible spirit. If it does not prevail, I shall vote for the bill as it stands ; but I see a gap, and a very wide one, which in my opinion should be filled. I agree entirely with the Senator from Massachusetts [Mr. DAWES] that, as it stands, with the exception of creating a method by which we can have an orderly meeting of the two Houses in case the returns are all regular, there is very little in it. I am much obliged to the Senator from Con necticut for yielding me the floor. Mr. EATON". I had supposed, Mr. Presi dent, that all amendments that were to be offered to the bill had been offered and disposed of; but now comes in this new amendment, and before I proceed to the discussion of the bill, I will say a word or two in regard to the amendment which has been offered by my dis tinguished friend from Rhode Island [Mr. BURNSIDE]. In my view of the Constitution of the United States it is not competent for Congress to legis late on this subject, to throw into any other Department of Government, or to give to any other man in the world or to any other set of men in the world the power to decide this question. By the terms of the Constitution of the United States it belongs to the Congress of the United States to decide to no other power, no other body, no other man. I beg leave to suggest to my distinguished friend that by an amendment to the Constitution of the United States, passed by two-thirds of each House of Congress and ratified by three-fourths of the States of the Union, he could arrive at the terms of his proposition, and, in my judgment, in no other manner. Therefore, Mr. President, I shall vote against that amendment. Mr. BAYARD. With the permission of the Senator from Connecticut I will offer now an amendment, the amendment originally proposed by the Senator from Tennessee [Mr. COOPER]. The PRESIDENT pro tempore. The amend ment will be read for information. The CHIEF CLERK. At the end of the second section it is proposed to insert . And that if the two Houses do not agree as to which return shall be counted, then that vote shall be counted which the House of Representatives, voting by States in the manner provided by the Constitution when the election devolves upon the House, shall decide to be the true and valid return. Mr. EATON. Mr. President, the amend ment which has just been offered by the Sen ator from Delaware I have no question as to the constitutionality of. If the House and Senate see fit to legislate on this question, it is competent for them to adopt an amendment of that character in accordance with the Con- never expected a difficulty of the kind we are j stitution of the United States, as I understand 634 PROPOSED LEGISLATION AS TO THE MODE OF that instrument. Objection was made the other day to this amendment, or one of a similar character, by the honorable Senator from Indiana [Mr. MOETON] because it gave to the States too much power ; because it gave to the small States a power which they ought not to have under our Government. With all that argument I take issue. I shall not vote for this amendment ; but the argument against it in that regard, in my judgment, is not sound. Sir, by the terms of the Constitution of the United States, under certain circumstances the States hold that power, and I know of no rea son why Connecticut and Delaware and Kew Hampshire and Massachusetts, States belong ing to the old thirteen, should not exercise the same power with Indiana and Ohio and Missouri, children of the old thirteen. But I do not care to follow that line of argument, because I intend to vote against the amend ment. As I said yesterday, so I again say to-day, that the remarks which I shall submit to the Senate will not be in any degree tinctured by an exhibition of party feeling. My views of the importance of the subject, for upon it rests the peace of the whole Federal Union, the peace and well-being of the entire people of this broad land, I trust will prevent from allowing any partisan feeling to appear. It may not be unimportant to allude to the great contest in 1801, which contest discovered to the people of the Union that there was a great and lamentable defect in the Constitu tion of the United States. By the very means of that defect in the Constitution, the wishes of a large majority of the people of the United States came very near being defeated ; an in dividual came very near being elected Presi dent of the United States who did not receive in fact one single vote within the limits of the Union for that high office. Thomas Jefferson and Aaron Burr were the candidates of the then republican party for the offices of Presi dent and Vice-President. They received an equal number of votes, and by the terms of the Constitution as originally framed neither of them was elected President because a major ity was necessary in order to constitute either of them President of the United States, and so the election was devolved on the House of Representatives. For many days a great con test went on ; public feeling was aroused all over the country ; but I am happy to be able to say here in 1876 that there were in 1801 honest public men, as I believe there are in 1876 honest public men. There were on that occasion men who trod under foot their po litical views, and one of them, a distinguished Representative from Delaware, the grandfather of one of our own number, a federalist of great renown, did not press the vote of his State, and thus Mr. Jefferson was elected to the office that the people designed him for. There were then, as there are to-day, public men in whom the people had confidence with out regard to their political opinions. Mr. Jeffer son was elected. Mr. Burr, of course, by the terms of the Constitution, was elected to the second office. An amendment to the Consti tution was necessary that there might not again be a difficulty of that character. The Constitution was amended, and from that day to 1865 the Constitution answered a proper and a beneficent purpose. In 1865 a little tinkering was thought necessary to be done, and legislative action was had upon this very subject, and perhaps in another part of my re marks I may say more in regard to the unwise- ness, the absurdity, the foolishness of that ac tion. I take occasion now to say that we had better not again be guilty of any such absurd ity or foolishness of that character. Sir, there are two questions which each Sena tor ought to answer to himself. First, have we the power to legislate on this subject ? Under a clause of the Constitution, I have no doubt that where the instrument is not plain in its terms, where its implied powers are not thor oughly understood and agreed upon, it is with in the province of Congress to legislate upon the subject. Therefore in my judgment, as in the opinion of other Senators, legislation may be had when necessary to carry out the implied powers of the Constitution ; but I desire to im press it upon every Senator in this body that all such legislation should be avoided, if possi ble. It is a dangerous power to exercise even when you possess it under the Constitution. It becomes necessary, Mr. President, that we should look at the Constitution, because the second question to which I address myself is this : Is there any necessity for legislation ? I desire to call the attention of the Senate in this connection to a clause in the Constitution which has before been read : The President of the Senate shall, in the presence of the Senate and House ol Eepresentatives, open all the certificates, and the votes shall then be counted. " The President of the Senate shall open all the certificates." That is his duty; that de volves upon him by the Constitution of the United States ; and there is the end of his duty. So far as the Constitution is concerned, he opens the certificates, "and the votes shall then be counted." The duties of the President of the Senate or of the Vice-President of the United States are defined by the Constitution. There are other duties, and I shall have occa sion, if time serves me, to speak at length upon the duties which devolve upon the Senate and House of Representatives ; but right here I desire to speak of the operation of that law, that constitutional law, as it sufficed to carry this people from 1801 to 1865. For more than sixty years the people of the United States went on and elected their electors of President and Vice-President ; the certificates were sent to the Vice-President of the United States, the presiding officer of the Senate, and there never was any trouble, there never was any difficul ty, there never was even (and that is the trou- COUNTING THE ELECTORAL VOTES. 635 ble we find to-day) discussion enough upon that very clause of the Constitution for the lawyers of the land to form their opinions ; and we come now to the discussion of that question to-day, when, in ray judgment, it has not ever been thoroughly discussed before, be cause there has been no necessity for the dis cussion. But, sir, in 1865 and why I do not know; why I cannot conceive; why I have never heard anybody say honorable gentlemen, act ing under doubtless a high sense of duty, passed a certain rule which was called the twenty- second joint rule. Why they passed it nobody has ventured here to say ; perhaps I shall learn by and by. There never had been any diffi culty under the Constitution. Eight in the throes of war, with a Vice-President occupy ing the seat which you honor and dignify, sir, of secession sympathies, a candidate himself for the high office of President of the United States, the certificates of the electors were opened according to law, and Lincoln and Hamlin were declared President and Vice- President of the United States. Why the ne cessity, then, for any such rule as the twenty- second joint rule ? When the country was on the very verge of the most destructive civil war ever known to man, this instrument, this Constitution of the United States, controlled, and the personal honor, the personal integrity, of the then Vice-President of the United States forbade him not to do his whole duty, his full duty. Sir, I thank God I have not lost all confidence in the personal honor and the per sonal integrity of man. Then why was the twenty-second joint rule adopted ? I will not undertake to say that it was adopted for the very purpose of disfran chising a people, but I say it has had the effect. But no matter why, the very fathers of it dis own the child. It is no longer the rule. It is repealed. Now, sir, where does the repeal of that rule leave us ? That is the question. One good thing was done when the rule was re pealed; but where does that leave us? The repeal of that rule leaves us exactly where we were before the rule was passed. The Consti tution of the United States is now the govern ing power of the Senate and House of Repre sentatives with regard to the election certifi cates of which I have spoken. The action of the Congress of the United States, or, if gentle men desire to be technical, the action of the Senate and House of Representatives of the United States, under this. clause of the Consti tution was for seventy years honest, honor able, upright, just. What business has any man to suppose that it is going to be dishonest and corrupt hereafter? Sir, it is an old say ing, and perhaps smacks somewhat of a vulgar saying, to speak well of a bridge that carries you safely over. Now, with this clause of the Constitution which has carried us along for three-quarters of a century why should we find fault to-day? We are told that it is a dangerous power to be intrusted to a single man, and he a possible candidate. There never was a cause in the world so weak but what its advocates could find reasons, poor ones, not infrequently ; but one of the reasons that have been most harped upon here is that this is a dangerous power to place in the hands of one man. Sir, is this question properly understood ? I said some minutes ago that the question had not yet been thoroughly discussed by the legal talent of the United States ; it has been discussed, but not thoroughly. Does it rest with one man ? Not in my judgment would the exercise of the pow er be dangerous if it did, but I will speak of that in another place ; but does it rest with one man ? I say no, sir, a thousand times no ; it does not rest with one man. But suppose it does ; let us for one moment consider the ques tion from that standpoint. Suppose it does rest in the hands of the Vice-President of the United States or the President pro tempore of the Senate. Tor seventy-five years it has been properly exercised. We have been told on the floor of the Senate that six times within the last seventy-five years Vice-Presidents who have been candidates for reelection or for the Presidency have exercised this power. Six times within the last seventy-five years have candidates exercised this power ; and yet the stars have not fallen, no injury has been done to any of the people of this land, and why beg a fight now ? Why insist upon it that there is to be corruption hereafter? Mr. President, one would suppose, I have been almost induced to suppose, that honorable Senators here gravely fear, assuming that the power is in the hands of the President of the Senate, that some time in February next the President of the Senate of the United States will degrade his character and dishonor his high place. Sir, I do not fear it. I deny the power. I say, and shall endeavor to show be fore I get through, that it is somewhere else ; but, assuming the power to be in the Vice- President of the United States, I do not fear it. But now what is the true intendment of the Constitution ? I desire to say, and particular ly to my honorable friend from Indiana for I know his ability and the power with which he grapples with constitutional questions that for more than sixty years no question was ever raised; and there is the trouble with this whole matter to-day. The votes were opened, the certificates were counted, the election de clared ; everything went along as smooth as a marriage-bell. Mr. MORTON. Let me ask my friend if he thinks we ought to wait until after the trouble does occur ? Mr. EATON. No. Mr. MORTON. I -call my friend s attention to the fact that in 1857 in the counting of the votes a question arose which happened to be unimportant because it did not change the re sult. It was in regard to the counting of the C36 PROPOSED LEGISLATION AS TO THE MODE OF vote of Wisconsin ; but the danger that the nation passed through at that time, and avoid ed simply by the fact that the vote was not important to the final result, was such as to fill every member of both Houses of Congress with alarm, as is shown by the debate that subsequently occurred. Had the result of that election depended on the vote of Wisconsin nobody can tell what might have happened. Mr. EATON. The Senator from Indiana reads me rightly ; I do not wish the horse to be stolen before a lock is put upon the stable door. I do not intend that it shall be stolen. I simply desire to say that in my judgment this question has not yet been thoroughly dis cussed ; I hope it will be by my honorable friend from Indiana before the debate closes npon this bill. In the minds of many men whose opinions are deserving of great respect, among them the honorable Senator from Indi ana and my distinguished friend from Ohio [Mr. THUBMAN], the time has arrived when something ought to be done. Now, Mr. President, I desire again to look at the clause in the Constitution: " The Presi dent of the Senate shall, in the presence of the Senate and House of Eeprescntatives, open all the certificates, and the vote shall then be counted." By whom ? I insist, and I assert without fear of successful contradiction, giving due weight to the argument of my distinguished friend from North Carolina [Mr. MEEEIMON] made yesterday, that the votes are counted by the Senate and the House of Representatives, and not by the Yice-President or the presiding officer of the Senate. In my judgment, the V ice-President is the organ of the two Houses, jind nothing else. It has never been my for tune, whether good or ill, to be present there as an actor or a spectator when the votes have been counted for President and V ice-President. Mr. SAULSBUEY. If the Senator will al low me, he says the presiding officer of the Senate is the organ of Congress. I wish to propound this question : Is it competent, if the two Houses of Congress see proper, to appoint some other organ for Congress to make known its will, or whether he considers that under the Constitution the President of the Senate is made the organ of the two Houses ? Mr. EATON. Of course he is. It is said by the Constitution that he shall be. Mr. SAULSBCEY. To count? Mr. EATON. No, to open. Will my friend state the question again ? Mr. SAULSBUEY. I understood the Sena tor to say that the President of the Senate was the organ of the two Houses for the purpose of counting. I do not know whether I under stood him correctly. Then I follow the prece dent. It has been the practice, I understand, that he does open and announce the vote. I ask the Senator if he thinks it competent for the two Houses of Congress, when assembled, to appoint some other organ for the purpose of counting the votes ? Mr. EATON. They do now. They do it every time they meet. They always do it. Mr. JOHNSON. Will the Senator allow me? Mr. EATON. Certainly, but I would like to answer one first. The Constitution of the United States points out who shall open the certificates. The two Houses appoint counters now. Who are counters ? The tellers. Who appoints them? The Senate appoints its teller and the House of Representatives appoints its tellers. Am I wrong? I suppose I am entirely right. The misunderstanding of my distin guished friend from Delaware consisted in this: I said that the President of the Senate was the organ of the two Houses for a certain pur pose ; he is the organ of the Constitution to open the votes; he is the organ of the two Houses to declare the result after the two Houses have counted. There is no doubt about it in my mind ; it is as clear as God s sun. Let me read. For another purpose, I sent for the Globe of 1860- 61, and I will read from page 894. I think I am entirely right. The manner of going into the House, etc., I will not read : The Vice-President took his seat on the right of the Speaker of the House of Representatives, and presided over the joint convention of the two Houses. The members of the Senate occupied seats provided for them in the area of the hall. Mr. Trumbull, the teller appointed on the part of the Senate, and Messrs. Phelps and \Vashburne of Illinois, the two tellers appointed on the part of the House, took their seats at the Clerk s desk. Mr. JOHNSTON. Tellers appointed by the President or by the Senate ? Mr. EATON. I have said by the Senate or by the House. u The teller appointed on the part of the Senate" is the language and "the two tellers appointed on the part of the House." I have been informed, I will say to my friend from Virginia, by a member of this body who has acted as a teller in the other House, that he was appointed by the House, and the Senate appointed its teller. The VICE-PKESIDENT then said And this is important " The two Houses being assembled, in pursuance of the Constitution, that the votes may be counted and declared for President and Vice-President of the United States for the term commencing on the 4th of March, 1861, it becomes my duty, under the Consti tution, to open the certificates of election in the pres ence of the two Houses of Congress. I now proceed to discharge that duty." That is all he had. The VICE-PRESIDEKI then proceeded to open and hand to the tellers the votes of the several States for President and Vice-President of the United States, commencing with the State of Maine. The votes having been opened and counted, the tellers through Mr. Trumbull reported the following as the result of the count. And then follows the result. Mr. JOHNSTON. When was that ? Mr. EATON. February, 1861. Now, sir, what can be clearer to the mind of any con stitutional lawyer than that the duty of the COUNTING THE ELECTORAL VOTES. 637 Vioe-President is to open the certificates ? They are sent to him ; he is their custodian. On a certain day he meets the two Houses to gether in joint convention. He, their presid ing officer, opens the certificates ; and the Sen ate and the House of Representatives, through ther tellers, count; not he. Sir, I have no doubt on this subject. That is the entire duty of the presiding officer of the Senate ; not that, if I am wrong and it is his duty to count, I fear that he will not discharge his duty. I am talking now about what I believe the law is, the organic law of the land. Take the other view of this case. What are we, if we should live until the time arrives, and what are the membarsof the House of Representatives? Wit nesses of a pageant ; that is all. According to the theory of my friend from Indiana, and I believe also of the distinguished Senator from Ohio, we are simply witnesses of what transpires, got together in the House of Rep- resautatives or somewhere else as mere wit nesses of a pageant ; under, as some Senator obsarved, a separate organization: the House under its Speaker, the Senate under its Presi dent. Our fathers who formed this Constitu tion had been at town meetings. They were known and are now known all through New England. It has been my good fortune to preside at many a one, but I should have hated bo see another one in another corner of the hall. I do not apprehend that there can be any doubt upon this subject. The two Houses go "nto joint convention for that purpose. When in joint convention the Vice-President, the second officer under and known to our form of government, becomes the presiding officer of that joint convention; and in case of his inability to be there the President pro temporc of the Senate occupies the position. Further, for I propose to meat this whole question, I will suppose that we are in joint convention next February. Our distinguished friend, the Presiding Officer of the Senate, who, I take the liberty to say, has been exceptionally fair as Presiding Officer of the Senate, is the- presiding officer of that joint convention. Two returns come up from the same State, I will say my own State. I do not know well how anybody can steal the soal of the "nutmeg" State and two returns here ; but I will suppose that two returns do come up from Connecticut. I will suppose that, not the distinguished Senator from New York [Mr. CONKLIXG] (for he might not like to count on that occasion), but my good friend the Senator from Massachusetts, nearest ms [Mr. BOUTWELL], is the teller ap pointed by the Senate. Two tellers have been :anpointed by the House of Representatives. [What is it the duty of the honorable President (of the Senate to do? Here are two returns :from the Stat3 of Connecticut Does he count [them? No, a thousand times no. He has no warrant for it. There is no warrant in the Constitution; there is no warrant in practice for it. What does he do with those two re turns ? lie passes them over to the honorable Senator from Massachusetts, our teller, and the two honorable tellers from the House of Rep resentatives, and those three men count and determine the matter. I will go further. Suppose that there are two returns from the State of Connecticut, both, for the purposes of this argument, with the great seal of the State attached. It has been known for months that there were two such returns. Everybody has known it. It has been canvassed through the public press. There is not a member of the Senate nor a member of the House of Representatives who is not thoroughly informed with regard to those two returns and all the antecedents of those two returns. Do not let us blink this question. It is known that one of them is a bare, open fraud. One is the valid one ; the other is the fraudulent one. The Senate know it; the House of Representatives know it. Suppose, for the purposes of the argument, that there is a supple tool in the chair, not you, sir, as President of the Senate. Suppose he assumes to count, against the Constitution and against all practice under the Constitution, the well- known and absolutely false return, He never would count it in the world. He could not count it before the Senate and the Representa tives of forty millions of people. Instantly a motion would be made by somebody, my friend from Vermont, or my friend from Indiana, and if by nobody else I would make it. This ques tion would be tried, tried there, and properly tried. Then the joint convention would deter mine which was the true return ; and, after the joint convention had spoken, the world would be satisfied. I say tbat, after the joint conven tion of the Senate and House of Representa tives of the United States speaks authoritative ly with regard to the return from any State, the world will be satisfied. Mr. MORTON. Will the Senator permit me to ask him a question at this point ? Could this joint convention determine it acting as one body, each Senator and each Representative having one vote ? Mr. EATON. Undoubtedly. Under my view, it is decided by a majority vote of the conven tion. I am very well aware that the Constitu tion does not expressly say that. Mr. JOHNSTON. Will the Senator allow me to ask him a question? Mr. EATON. Certainly. Mr. JOHNSTON. Does not the Constitution provide that the two Houses shall separate? Mr. EATON. On this point? Mr. JOHNSTON. On any question. Mr. EATON. I do not know ; but I would like my distinguished friend to point it out to rne. < Mr. JOHNSTON. It applies to all ques tions that come before that joint convention. Mr. EATON. It applies to this, I admit. I do not 836 the point, and there is not any, 638 PROPOSED LEGISLATION AS TO THE MODE OF in my judgment. I assume that it is a joint convention ; because everybody else for three- quarters of a century has assumed the same thing. Mr. WHYTE. Will the Senator allow me to ask a question ? Mr. EATON . Certainly. Mr. WHYTE. I ask if that very question did not come up in 1857 ; whether Mr. Mason did not walk out with the Senate, without having any vote in the body at all ? Mr. MORTON". Held it was not in order to make any motion. Mr. WHYTE. Refused to hear any propo sition. Mr. EATON". Then all I have to say about it is that he did not do his duty. That is all there is about that. The question was a new one. It will not be new next February. We are now discussing that question, and this is the time to discuss it. Mr. SARGENT. Will not that be a pre cedent ? Mr. EATON. It will be ; but, to use a common expression, "that skimmer will not hold water," in my judgment. It is a joint con vention. I have not time to go back and find, but I presume that the very Globe in which the account is printed calls it a joint conven tion. If I am right (and I have no doubt about it), the vote of every State in this Union will be counted next February ; there will be no disfranchising of the people of a State. The question will be opened and settled and passed on, not by any act of Congress, not by any legislative tinkering upon the Constitution, but by the great governing power of the land, the Constitution itself. Sir, I should be glad, if time would serve, to discuss at greater length my construction of this clause in the Constitution ; but time for bids. Is there any danger to be apprehended to the country that is the point that I desire to be calmly considered by every Senator is there any danger to be apprehended to the country, to its institutions, to the welfare of our people by this construction of the Consti tution? Why, sir, the great right of the peo ple is preserved intact, the right to have the certificates opened and counted and the result declared. There is another point. A friend might say to me from the other side of the Chamber, " There is an objection to this construction of the Constitution, because a party majority would rule." That is true. Party majorities rule everywhere. I recognize the objection and its force ; but let the construction of the Constitution be final; let us know what the law is forever. Parties change, but let the Constitution not be changed. This objection comes and must always come under this form of government of ours. Party comes in every where. The very amendment that has been offered to-day in good faith by the distin guished Senator from Rhode Island gives to a party man the decision of this question. There 1 is nobody in the United States that is worth j having, there is nobody in the United States I that can decide the question intelligently that is not in some way connected with some party organization. Of necessity he will not be a i partisan in the decision of this question. God forbid! If you should give to the Supreme Court, if you could, the right to decide a ques tion of this magnitude, while I should know that a majority of them belonged to a party different from the one to which I was attached, yet I should believe and expect that their deci- sion would be honorable, just, and upright. We shall all agree upon one thing: no matter what we do, no matter what construction we give to the Constitution, no matter what law of Congress you may pass in order to carry out the principles of the instrument, something must be left to human integrity, something , must be left to man s honor, and I thank God ! for it. One objection that I have to giving this power to any other body than the two Houses is, because the Constitution lodges it with us. We are forced by the Constitution not to shirk the duty but to perform it, and I ask honorable Senators, have you not confidence in your own integrity ? Mr. President, I have discussed this question at some length, but let me suppose that I am entirely wrong it is very possible that I may j be let me suppose that under the Constitution , the power is vested, not as I claim it to be i vested in the Senate and House of Representa- ; tives, but in the Vice-President of the United States or the President of the Senate, as the case may be. If it be so, in God s name let it rest there. I thank God I have left in me some confidence in human nature. While I do not desire to say an improper thing in this high body, I have to say this, and I feel I have a right to say it : There is no Vice-President of the United States ; there is a President of the | Senate, and in that President of the Senate I > have entire confidence. Therefore I say that i if I am wrong in my construction, let us have ! no legislation, and let this power rest where our fathers placed it. Again, by a decision of the Senate the pow er is claimed and I will not undertake to say wrongfully that they have the right daily or hourly or fifteen minutely to make a new pre-- siding officer of the Senate. If that is suggested : as an objection, I have to say that I have con fidence in the American Senate. I do not be lieve a majority of the American Senate would place a man in that chair to disgrace common humanity and cast a blot upon the fair fame of the United States. I have no fear, I will not have any fear, on that subject. If my view and construction of the Constitution are wrong and those taken by others are right, whoever occupies that chair in February next will have :he proud honor of declaring and announcing: the future President and Vice-President of the I COUNTING THE ELECTORAL VOTES. 639 United States ; and, sir, lie will do it honestly. With the eyes of the Senate and House of Rep resentatives, with the eyes of forty millions of free people, with the eyes of the whole civil ized world upon him, he cannot disgrace him self. Whatever other men may think, I will not believe that integrity is a myth, I will not believe that our form of government has be come a mockery all over the civilized world. Mr. President, believing as I do that the power is ample now, I have voted steadily, as I said yesterday, against every amendment to this bill, and I shall vote against the bill itself for the reasons that I have given, and for the further reason that the second section of the bill is a bid for fraud open, unmitigated fraud ; not that my distinguished and honor able friend from Indiana [Mr. MORTOX] and my equally distinguished and honorable friend from Ohio [Mr. THUEMAN] so intend it; God forbid ! They cannot think that- 1 charge them with anything wrong; but I say the second section of the bill is a bid for designing men under it to defraud the people of their rights. Let every Senator read it ; that very section tells men all over this. Union how to get up a set of returns, to bring them here, and to destroy and disfranchise the vote of a State. Therefore I will vote against the bill. ISTo legislation, in my judgment, is required. That Constitution under which we have lived, that clause under which we have acted for nearly three-quarters of a century, is all we re quire to-day, no matter how it is construed, either my way or the other way. If anything is required, it is an amendment to the Consti tution itself, and not legislation. If I could become convinced that there was any necessity for an amendment to the Constitution, then I would unite with my friend from Indiana in the purpose of framing such an amendment as would in our judgment answer for the people in the future ; but no legislation upon this matter is required, especially no legislation un der which one, two, three, or four States may be disfranchised. Let us go on as our fathers did ; let us go on under this clause in the Con stitution ; and, my word for it, the spirit which comes before the eyes of the distinguished Senators from Indiana and Ohio will down, down, at the bidding of the President of this Senate when the votes are counted next for President and Vice-President of the United States. Mr. BAYARD. Mr. President, the debate that has taken place in the Senate upon this grave and important subject, is a very strong proof of the want of direct provision in the Constitution in relation to this question of the count of the electoral votes. It is seldom that so many views so diverse have been expressed in relation to a matter that should seem so simple in itself. At the election that shall have been held before the body of the Ameri can people, they will have expressed their will in regard to their candidates, and it would sim ply seem that nothing more was left than a declaration of results which had already been completed. From the foundation of this Gov ernment up to 1872 there had been one re markable feature, the complete acquiescence at all times and under all circumstances of the people in every State with the result of the election for electors for President and Vice- President. Such a thing as an attempt to con test the election of the presidential electors never was known in our history until 1872. Such a thing as a double return of electoral votes from any State never had been heard of until the evil case and shocking precedent of Louisiana in 1872. It seems to me that, in considering a ques tion like this, a very grave and important les son may be learned by us all. If there be a dishonest disposition, it will find some way or other a pretext for its exhibition and gratifica tion. If there be a will, a way will be found for it ; and if the disposition fraudulently to escape from the popular verdict does exist and dares to exhibit itself before the people of America before one of their chief executive officers in the presence of the two Houses chosen by these people as their representa tives, and shall not be withered and blasted in the attempt, then it will be a proof that the spirit that made this Government possible, that alone can make it permanent, has died out in the hearts of the American people. This Government of ours, .frame it as we may, legislate upon it as we please, was meant, and meant only, for an honorable, a virtuous, and an intelligent people; and if those qualities have so sunk out of sight and practice that fraud in a matter touching their interests so deeply as the choice of their Chief Magistrate can be perpetrated in the presence of the two Houses of Congress, and the man survive it or the party survive it, then I say that our Gov ernment has been formed in vain, and we have only proved that we are unfit and unworthy of it. In the various attempts which have been honestly made, intelligently made, to prescribe some means by which perfect justice may he reached in this important matter of counting these votes, I have felt the truth of Lord Bol- iugbroke s saying, versified by Pope : " For forms of government let fools contest, Whatever is best administered is best." We had in this country no question as to the action of the Vice-President in opening the certificates; the count of the tellers ap pointed for the mere arithmetical calculation of the votes cast never was questioned in this country until 1872. Then, under the malefi cent working of a rule adopted without regard to the Constitution, under the assumption of powers utterly unwarranted by the two Houses of Congress, there came the assumption of a veto power by either branch of Congress, in silence, without debate, without reason, to throw out the electoral vote and disfranchise 640 PROPOSED LEGISLATION AS TO THE MODE OF one or more communities at will. It was done. It was done in the case of Louisiana. It was done in the face of ballots then in existence, done in the face of returns then in existence which proclaimed palpably that the election liad been held and that a majority of many thousand votes had been cast in favor of one electoral ticket. And yet the people of that State were deprived of any voice, and that majority was silenced in respect of its declara tion as to who should or who should not be the President of the United States. Now, sir, I can well understand that in the scant language of the Constitution, in those brief unsatisfsctory phrases in which we find all that is to guide us simply that the two Houses are to meet ; that a certain officer is to preside, and that he is to open the certificates, and that then the counting is to take place there is no suggestion of judgnient,no sugges tion of discretion, but simply the power to re cite in a public meeting the result of action which has taken place theretofore in the States, and which is certified, according to the Con stitution of the United States, to a certain officer of the Government. If the spirit which I trust win yet be the ruling spirit of this country, of self-respect in officers, of self- respect in people, of duty and fidelity to the great trusts of government if this spirit shall prevail, I shall not fear that low fraud can ever be perpetrated in high places without in stant moral, and I had almost said I trust physical, death would follow to the persons who attempt it. But nevertheless the time may arise ; the suggestion, the evil suggestion has been made, and this bill unfortunately rec ognizes that fact as a possibility, that without the machinery for conducting a contested elec tion of electors you are still to have a contest without the proper means of deciding it ; and how is that to be done ? A, B, and C, with their confederates, ten in number say, from the same State, are voted for against ten other men as electors respectively. One of the tickets is defeated. It is so declared by the executive power of the State to have been defeated. Those on the defeated ticket, not satisfied with the verdict of the people, losing sight of that great duty of acquiescence in the popular dec laration, meet and go through the forms of casting their electoral votes for a candidate, and send up here to the President of the Sen ate that which purports to be the result of their proceedings and a certificate of how their votes were cast. It has been done ; the evil suggestion has been made, and this bill pro poses to meet it. I for one am glad that it takes not the shape of a joint rule, which may be rescinded at will, as we have seen in this late joint rule begotten and carried into effect in silence and retired from without notification to the other branch of Congress simply by the sole action of the Senate. That rule is at an end. It has proved (not speaking of its own intrinsic want of merit) to have one of the greatest vices that a regulation can have, and that is a want of stability and certainty, be cause its existence depends upon the pleasure of the accidental majority of either body of Congress. Therefore it is plain that, if we can provide a wholesome and just and proper rule for this important subject, it should take the permanent form of a law, which can only be rescinded by the vote of each House and the signature of the President. Therefore to pro vide for meeting this question by legislation seems to me the proper way; and the only remaining consideration is whether we have the power under the Constitution so to deal with the subject. I am inclined to think that there is some power in Congress on this subject. At the same time, I think the discussion we have had will develop to any thinking man the neces sity for an amendment to the Constitution, so that there shall be with greater clearness a deposit of unquestioned and unquestionable power in some tribunal upon whose decision the American people will rest with satisfac tion and with safety. But until that may be done, I still hope that there may be found warrant for some action which will make con fusion, injustice, fraud, and escape from popu lar results difficult, if not absolutely impos sible. Here by this first section provision is made for the orderly count of the votes, and that no votes shall be rejected without the concur rent action of the two Houses. Then comes the questionable section, the second, which provides that, in case more than one return shall be received from any State, that one of the returns only shall be counted whicli the concurrent voices of the two Houses, act ing separately, shall concur is the proper one to be counted, which means that, if the Houses fail to agree, the vote of the State is not to be counted at all. It will be then perceived that by a disagreement the same result is reached as though you had an absolute veto. The two Houses have but to disagree in regard to the counting of one and then the other of these duplicate returns and no vote is cast. Sir, I do not believe that by any ingenuity, arguing either by the letter or the spirit of the Consti tution, it is possible to show that it ever was intended that the two Houses of Congress should disfranchise any State and keep her voice from being heard, according to her right, in the electoral college. I do not believe such a result can be honestly or fairly inferred or obtained from either the spirit or the letter of our charter of Government; and therefore when this question may arise it is bound to be settled in such a way that the voice of the State shall be heard, and that her electoral vote shall not be excluded from the canvass. Many propositions have been made, and chiefly on this side of the Chamber, to insure this result. That which was offered by my friend from Tennessee [Mr. COOPER] came near- COUNTING THE ELECTORAL VOTES. 641 st to meeting my approbation. I was absent ccidentally from the Chamber, as was he, at 10 time the vote was taken upon it, and for lat reason I have renewed the amendment, nd now occupy the attention of the Senate or a few moments while I discuss it. It will be observed that the sole duty and he sole power of the two Houses meeting to dtness this counting, and the sole result of lat joint convention under the Constitution in he Hall of the House of Representatives, is the scertaininent of a majority of the electoral otes for a candidate for the Presidency and kewise for the Vice-Presidency. The Consti- ition requires that the person taking this office lall have a majority of all the votes of the ectoral college; and, unless that majority lall be found and shall be declared, no elec- on has taken place; and then, immediately pon the failure to ascertain and declare such lajority, the power and the duty at once de- olve upon the House of Representatives to loose by ballot the President from those two ersons having the highest number of votes. Vhat shall defeat the possibility to declare a ajority if there be but one return from each tate, as there should be if decorum, if self- espect and decency shall govern the American eople as heretofore, with the single exception f the case of Louisiana in 1872 ? Then there nil be nothing but the arithmetical calculation f the votes as contained in the single certifi- ates sent by each State to that joint assembly. lut if there be a double return, the impossi- ility of declaring the majority becomes mani- st ; and then what is the course plainly pro- idsd by the Constitution? An election by le House of Representatives, the States voting s States. I do not propose to discuss it is ot necessary the advisability of this feature f the Constitution. I think a great deal could e said to show why it was wise and right ; ut, whether wise or otherwise, it is the method ointed out by the Constitution, which we are 11 sworn to obey ; and.it seems to me that, when re have reached a point when a decision must e made in regard to matters not apparently rovided for, we can show our duty to this rovernment and our subordination to the pro- isions of this charter in no way so well as by dapting them to the case in hand. Therefore, E it shall be that two returns come up and the wo Houses do not agree that the proper return hall be counted, then the amendment of the onorable Senator from Tennessee proposes istantly that the tribunal shall settle the ques- ion of the proper return which the Constitu- ion has required to choose the President, in ase a majority has not been declared of the lectoral votes in favor of one of the candi- ates. The method proposed is in precise anal- gy ; it is not only in analogy but it is in direct bedience to the requirements of the Constitu- ion that confide the question of election imme- iately to the House of Representatives, that hey shall vote as States individually in the 41 event of the joint convention failing to find that a majority of all the votes of the electoral college have been cast for any particular can didate. Such a proposition, it seems to me, ought to be satisfactory to those who look, as I trust we all do, to the provisions of the Constitution for all the just powers which we propose to exercise. Sir, it is very important in my opinion that an arbitrament should be provided in advance for this question of double returns. Double returns are in their nature and suggestion fraud ulent on one side or the other, because there can be but one set of electors chosen and those who contest it unjustly necessarily are fraud ulent. Now, if it shall be known in advance that we have provided a test for this, if it shall be known that we have provided a tribunal capable of making a prompt decision, then I believe the attempt will never be made. The very fact of providing for the arbitrament of choice between two returns, and having that before the eyes of the rogues who propose to contest elections in this way, will deter and discourage them, and the Senate and the House will have no trouble whatever on the subject. Nor have I any idea that the House of Repre sentatives will be called upon at all to act un der the provisions of the amendment which I have sent to the Clerk s table. Those who propose this species of contest because there must be of these two returns but one that is right will see the folly of the attempt, which can end only in defeat. And when we shall have established a tribunal competent and trustworthy, the very one provided by the Constitution for the election of the President himself in case a majority of the electoral votes has not been declared by the joint convention, when the States acting in their independent and sovereign capacity shall vote as individuals upon .this subject, when that power and duty are confided to them, we may be sure that the attempt at a double return will never be made, and the count of the electoral votes will pro ceed with all that dignity, with all that sim plicity, with all that impressiveness which marked it in days gone by. The spectacle of an administration charged and possessed with all the great affairs of a Government like this, quietly, subordinately giving way to the new expression of the popu lar will, has been always something that has impressed not only those accustomed in other lands to the violent emotion of rulers no longer desired by the people, but it has been, I believe, a source of more pure patriotic pride to the American people to see their Government a Government of law and of order before which when the wish of the people is duly expressed instant acquiescence to it took place with or der, with dignity, and with simplicity. It is my earnest desire that all causes of dis satisfaction, of conflict, of misunderstanding, of possible difference should be removed, if pos- 642 PROPOSED LEGISLATION AS TO THE MODE OF sible, in advance by some action now in the shape of legislation by Congress. I believed at the beginning of this session, and still be lieve, that it would have been wiser to commit this question in advance to a joint committee of the two Houses ; that they could in seclu sion and retirement, without any of the ex citement of debate, arrange upon some plan that would have been mutually satisfactory to each House, and therefore likely to command the assent of both. I will not yet despair. I still hope that, if this measure as it shall be passed by the Senate may not meet the con currence of the House, a committee of confer ence may yet arrange it. I cannot conceive how any man can so degrade this subject as to bring it down to a mere partisan level. I cannot see how any man contemplating the great difficulty of this subject should not be willing to sink his private opinion in regard to measures in order to do everything that in him lay to produce a quiet, orderly, dignified, and just settlement of this question. Believing that the amendment offered by the Senator from Tennessee is the best solution thus far submitted to the Senate, and that the vote upon it was taken before perhaps with some what of inadvertence, I trust it now will re ceive the approval of the Senate. As I have said before, I believe the constitu tion of this tribunal of the House as the ulti mate judge in case of difference between the two Houses as to which of the two returns shall be the just one the mere constitution of that arbiter will of itself destroy the possibility of attempted contest or of attempted duplicate returns. The attempt will not be made, be cause defeat certainly will await it. " F.ore- warned is forearmed," and therefore I will not believe that in the next presidential election, if this present measure shall become the law, the country will be distracted, disgusted, or disgraced by the sight of an attempt to con test an election by a defeated minority. For these reasons, Mr. President, hastily and very lamely expressed, I hope the Senate will give its assent to this amendment. Mr. MORTON. Mr. President, I submit to the Senate that this discussion has demonstrated the absolute necessity of the adoption of a law upon this subject. The diversity of opinion that has been developed here in a season of, profound repose, when no party question can enter into it, when it is above and independent of party considerations, shows the necessity of having some established rule when the time comes to count the presidential vote. Let me suppose, for the sake of the argu ment, that the two Houses have assembled in the Hall of the House of Representatives to count the votes ; let me suppose that two sets of electoral votes have been sent here from the State of Connecticut, and they are opened by the President of the Senate. What shall be done? The Senator from Maryland [Mr. WHYTE] rises and says, "I demand that the President of the Senate shall decide which set of votes shall be counted." The Senator from Connecticut [Mr. EATON] rises and says, as he said here to-day : " No, a thousand times no ; the President of the Senate has no such power ; the decision must, be by this joint convention acting as one legislative body, each Senator and each Representative having one vote ; that is the only constitutional method of settling this question between these elec toral votes." He takes his seat. Then the distinguished Senator from Ohio [Mr. THTIR- MAN] rises in his place and says : "No, a thou sand times no! There is no such thing as a joint convention; a body of that kind has never been recognized under the Constitution, . never has been recognized by anybody in three- quarters of a century." I understood my friend from Connecticut to say to-day that for three-quarters of a century the idea of a joint convention hqd been recognized. I submit that my friend was mistaken in this, that for three-quarters of a century it never was rec ognized, and I think was never seriously pro posed by anybody. The Senator from Ohio says the Senate and the House of Representa tives are present here under the Constitution as witnesses and as judges ; and if a question shall arise involving a high discretionary power, it cannot be decided by the President of the Senate, whose duty is ministerial; it, cannot be decided by a joint convention utterly unknown to the Constitution, entirely anoma lous under our system of government ; but it must be decided like any other question, by the Senate and House of Representatives, each acting for itself and in its own capacity. This is the state of the case. The election is to depend upon which set of votes is counted from Connecticut. If one set is counted, the republican candidate is elected ; if the other set is counted, the democratic candidate is< elected ; and here is a diversity of opinion and confusion equal to that which prevailed at Babel. How is it to be settled? Shall the two Houses separate, go to work, and legislate j on that question ? That may take days. It has ; | taken us seven days here now, in a time of pro found repose, to consider this bill, and I am not- sure that we shall get through with it to-day, j for I am in momentary apprehension that some Senator will get up and move an executive ses-- sion. But here the votes are to be counted., The 4th of March is close at hand. An utter di versity of opinion exists as to where the power j is. The two Houses cannot separate and legis- late. What is to be done ? We can easily un derstand what will intervene. It was suggested ij by the Senator from Delaware awhile ago that, in case an officer should make a wrong decision, the moral reprobation of the world would fall ! upon him, and he said perhaps physical pun ishment ; that is he might fall like Ca3sar. Wt can understand when such vast consequences- are to depend upon the exercise of a power that may be a clear usurpation, and would be COUNTING THE ELECTORAL VOTES. 643 n the opinion of a majority of the people of his country, that that usurpation could not mss with impunity. How, then, can we decide hat it shall be done hy a joint convention in he passion and excitement of the hour and ivith such vast consequences depending upon t? How, then, can we decide that it shall be lone by the two Houses ; acting separately ? It night be understood that, if the two Houses ivere to act separately, the question might be lecided one way ; if by a joint convention, an- >ther way ; and, if by the President of the Senate, possibly another way ; and the imme- liate result of the adoption of one or the other )f these methods would come in largely to in- luence the judgment and increase the confu- ion and danger of the hour. Therefore, I ex- lort Senators to avoid this danger by agreeing ipon some method. It is not so important vhat that method is as that there shall be some >lan agreed upon that will avoid these dangers vlfich are right before us. Mr. BAYARD. I concur most earnestly ,nd warmly in this invitation of the Senator rom Indiana ; and there is now, by the amend- nent of the Senator from Tennessee, which I lave offered again, a fair and a constitutional irbitrament, where the two Houses shall dis- jree, to prevent the occurrence of that which ny honorable friend from Indiana and I both o justly dread and deplore. The proposition s this: that we shall leave it just where our athers left it ; we shall leave it to the same >ody, acting as they said that body should act vhen the broad question of the election of resident, without respect to the mere contest >f votes, should be before them. Leave it ust as they left it, to that body for its decision vhich they said was the proper one to decide he great question of elections, where a major- ty of the votes of the electoral college had not >een declared by the Houses in joint conven- ion to have been cast in favor of any candidate, agree with my friend that it is not so much the [uestion as to how you shall have this matter iettled, although it is important to us as citi- :ns under a constitutional government and Lcting under its limitations, that we should not sreate a tribunal unwarranted by the Oonsti- ution ; but here is a tribunal pointed out by .he Constitution as the peculiar and fitting me upon whom immediately shall devolve the luty of electing the President and Vice-Presi- lent in case a majority of the electoral votes lave not been ascertained to have been cast or any particular candidate. What objection ;an there be in my friend s mind to adopting his proposition now, offered by the Senator rom Tennessee? Mr. MORTON. Very briefly will I attempt o answer the question of the Senator from )elaware, and to state the objection to re- erring the decision of the question to the louse of Representatives voting by States. j"irst, because the Constitution has made no >rovision for the decision or settlement of any question, judicial or legislative, by the House of Representatives voting by States. It has provided for the election of a President, an anomalous, unfair, and, in my judgment, dan gerous method, in a certain case ; but in no other contingency is there to be any question settled in this Government by the House of Representatives voting by States. I would not extend the idea of settling questions by the vote of States, giving to the State of Nevada the same voice with New York, which has one hundred and fourteen times the population of Nevada. Mr. WHYTE. I want to ask the Senator from Indiana if he does not really, under the second section of this bill, in a certain contin gency, do the very thing that he now objects to doing ; that is to say, upon a certain con tingency throw the election into the House of Representatives ? Take this case, and it is a mathematical calculation. It takes 185 votes to elect a President of the United States in the present college, counting Colorado. Suppose there are three candidates at the election. The republican candidate gets 177 undisputed votes ; and the independent candidate 24 un disputed votes, which he could do by getting Illinois and Nevada and Nebraska. Suppose the democratic candidate gets 160 undisputed votes, leaving 8 votes, the votes of Louisiana, to determine whether the republican candidate was elected or not. Suppose that in Louis iana there is a contested election of great violence. The independent candidate is sup posed by one party to be elected ; the repub lican candidate is supposed by the other party to be elected. The republican electors get a certificate from Governor Kellogg of their elec tion, cast their votes for the republican can didate, and that return comes to the President of the Senate. Suppose the electors on the independent ticket meet as a college, cast their votes for the independent candidate, certify under the Constitution, if there is no provi sion for the executive authentication of their election, that they have voted for the inde pendent candidate. Those returns are opened by the President of the Senate. The House honestly believe that the independent electors were elected in Louisiana. The republicans in the Senate believe that the republican can didates were elected. They separate. The House stands by the independent organization, the Senate stands by the republican election, thus defeating the election of President and throwing it into the House of Representatives under the second section of the bill. Mr. MORTON. I think the precise contin gency mentioned by the Senator from Mary land may happen either by the vote of a State being lost, the two Houses not being able to decide, or by being cast in favor of an indepen dent candidate ; but that is the precise contin gency which the Constitution has provided for when it declares that unless some one person have a majority of all the electors appointed 644 PROPOSED LEGISLATION AS TO THE MODE OF the House shall immediately proceed to elect by States. How does that change the prin ciple ? The Constitution has provided for the action of the House hy States only in one case. Shall we extend that principle? The Consti tution does not provide for the House ever deciding any legislative or judicial question by States, but simply an election in certain cases ; and in my opinion it is the most dangerous contrivance ever put into the Constitution. Would you extend that principle to the mere decision of a question on the electoral vote when that may decide the question of an elec tion ? The first election of President by the House took place in 1801, the House voting by States. The delegation from two States was divided from the 10th of February to the 17th, from the first to the thirty-sixth ballot, Vermont and Maryland. The dead-lock was finally broken by an intrigue, one member from Ver mont dodging the vote, going out of the House, and two members from Maryland casting blank ballots. The history of that election, given by the distinguished member from Delaware, Mr. Bayard, two years afterward, shows that it was thoroughly corrupt in the sense in which that word is used in these times; that that election was controlled by appointments of members of the House of Representatives to office. More, there is an affidavit on file I have it here, but I will not stop to read it which shows that the vote of another State, on the last day when the election of Jefferson was finally made, was controlled by an agree ment that the collectors of the district of Dela ware and of the port of Philadelphia should not be removed by Mr. Jefferson. That elec tion came near making shipwreck of the Gov ernment at that time. What followed in 1825, when Mr. Adams was elected? The same charge of corruption existed, a charge from which the great Clay never escaped, because he voted for Adams in the House, and was afterward appointed Secretary of State. How did that election result? Mr. Adams was elected, who received less than one-third of the popular vote of the United States; and General Jackson was defeated, who received the largest popular majority that any President ever has done up to this hour. The will of the people was overridden in 1825, and this form of election presents the opportunity and the power of doing that always. It presents the greatest possible inducement and the great est possible opportunity for corruption. God grant we shall never have to pass through the ordeal of another election of President by the House of Representatives! I want to make a remark in regard to the amendment of my distinguished friend from Rhode Island [Mr. BTTRNSIDE] ; and what I shall say will touch the whole question of fur nishing an umpire either by the Supreme Court or by the House of Representatives or in any other form. The amendment proposed by the Senator from Rhode Island is this : that as soon as the electoral certificates are sent to the Presi dent of the Senate, before the time comes for counting the vote, they shall be sent to the Chief Justice of the Supreme Court or to the court. , Mr. BURNSIDE. If the Senator from In diana will allow me, it does not provide that they shall be sent to the Supreme Court, but the fact is to be reported to the Supreme Court. Mr. MORTON. I give the substance, the idea of the amendment, that when the certifi cates are made up by the electoral colleges they shall indorse on the outside of the envel ope, so that it can be read (because the envel opes cannot be opened under the Constitution until you come to count the vote), the names of the electors, by whom certified, and when elected, so that the Supreme Court shall be able to determine by an inspection of the out side of the envelope whether or not these elec tors were chosen under the recognized Stete government and have been certified by the recognized authority of the State. I submit to my friend, and I will read a very brief extract from the opinion of the Supreme Court to show it, that that transfers to the Supreme Court of i the United States one of the great powers ex pressly reposed in Congress under the Consti tution. The United States shall guarantee to each State a republican form of government, and to decide which is the government of a State, and whether it is republican in its form, is a power expressly devolved upon Congress, and cannot be transferred or deputed except for a single purpose, and that is to enable the President to determine what government he will sustain in a case of insurrection or domes tic violence. In the case of Luther vs. Borden, a case familiar to you all, the court say : Under this article of the Constitution it rests with Congress to decide what government is the estab lished one in a State ; for, as the United States guar antee to each State a republican government, Con gress must necessarily decide what government is- established in the State before it can determine whether it is republican or not. And when the Senators and Representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the*, proper constitutional authority. In the case supposed, where there are two sets of electors certified from two different- pretended State governments, to decide which electors have a right to vote you must decide ; which is the government, and the decision of: that question, which controls all others that may arise on it, is expressly vested in Con- , gress under the Constitution. We cannot transfer it to the Supreme Court in advance. We cannot transfer it to any other power, except for the single and sole purpose of carry ing out another provision, and that is to enable the President to protect the State against in vasion or domestic violence, where it may be necessary, under the act of 1795, for the Presi- COUNTING THE ELECTORAL VOTES. 645 ent to determine, when Congress is not in ession, which is the lawful government of the tate, as he undertook to do in the case of Louisiana. Mr. BURNSIDE. I will ask the Senator rom Indiana if there can be no case before he Supreme Court by appeal which would re- uire them to decide which is the lawful State overnment? Could there not be a case by ppeal from a lower court by which the Su- reme Court would be called upon to decide vhich was the State government? I want to ask the Senator from Delaware Mr. BAYARD] one question. He says that in jttling this question we should adhere to the ule established by the framers of the Consti- utian and allow the same method to be used n determining which are the correct returns s is used to elect the President when no one f the candidates has a majority. I submit to im and I submit to the Senate that in case no ne candidate receives a majority every State as a right to vote as a State according to its olitical proclivities. It becomes a political uestion. They are bound to adhere to their ^parate political parties, in honor bound to ote for the men who represent their party, o matter whether they have received the high- st number of votes or not. The question nder discussion should not be decided politi- ally ; but if you leave it to be decided in the ime way that you elect a President, in case either candidate receives a majority it will be ecided in a partisan spirit; whereas by the tethod I propose it will be decided upon its jgal merits. I submit that no party ties are so loose as to low a member to vote just exactly as a judge u the bench of the Supreme Court would vote n a question of this kind. It is quite clear in own mind that the proposition made by le Senator from Delaware, which he intended > make in all fairness, is not fair. Mr. MORTON". It would perhaps be very esirable to have the solution of every question ibmitted to some tribunal entirely outside of olitical influences; and yet it so happens that le Supreme Court have said in this very case iat the decision of the question as to which is lawful State government in a State is a olitical question to be decided by Congress, nd when decided by Congress that the Su- reme Court of the United States and every ther branch of the Government must abide by iat decision. The power to settle that ques- on has by the Constitution been placed in ongress, and I am trying to argue that we annot take it out of Congress and lodge it lywhere else. I corne now to the other question asked by ly friend, whether under certain circumstances le Supreme Court could not decide which as the lawful government of a State. So ley can and did in the Rhode Island case. In iat very case they recognized the doctrine iat Congress is the power to settle the legal status of a State government, a political ques tion, by which the courts are all bound ; but in the absence of a decision by Congress, in that very case they said, as I have had occasion to argue in another matter before this body, that the supreme court of Rhode Island not being in question, its legitimacy not being questioned, the courts of the United States would follow the decision of the supreme court of the State of Rhode Island in deter mining which was the lawful government of that State. If the supreme court of Rhode Island had said that the charter government was the lawful government and not the Dorr government, the Supreme Court said it was bound to follow and to recognize the charter government as being the lawful government of Rhode Island. In that case the Suprema Court did decide it ; but as a question coming up not from the decision of the lower court by appeal, as a political question to be decided as to which is the lawful government so as to know which government may certify to the electoral vote, that is a power that has been lodged in Congress, and cannot be^divested. We cannot commit it to anybody else. I agree with my friend that if we could cre ate an umpire, if it was in our power to refer the decision of this question to any other tri bunal, I would prefer the Supreme Court of the United States. I believe the people would have more regard for its decision, that it would carry more authority, than any special tribu nal we could create. Therefore, I should pre fer to refer it to that arbitrament if it were possible; but not regarding that as being within our power, I vote against the creation of any umpire. The least acceptable of all would be to refer it to the House and have it decided by a vote by States, I wish here to call the attention of the Sen ate to a fact which I have overlooked in the previous examination of this question, and that is, that so long ago as 1837 the Congress of the United States virtually assumed the jurisdiction to count the vote of a State in a case where the right of the State to vote at all was denied. I refer to the case of the State of Michigan. In that election there was a question as to whether the vote of the State of Michigan should be counted on account of a condition attached to her constitution. I am not entirely familiar with the details of the question, but the following joint resolution was adopted by the two Houses, showing that at that time the two Houses of Congress as sumed the power to determine whether the vote should be counted in that case. The res olution was adopted by a vote of 34 to 9 in the Senate, and read as follows : That, in relation to the votes of Michigan, if the counting or omitting to count them shall not essen tially change the result of the election, they shall be reported by the President of the Senate in the follow ing manner : Were the votes of Michigan to be counted, the result would be, for A B for President of the United States, votes ; if not counted, for - 646 PKOPOSED LEGISLATION AS TO THE MODE OF A B for President of the United States. votes ; but in either event A B is elected President of the United States; and in the same manner for Vice- President. That was followed by the two Houses of Congress as late as 1869 in a joint resolution in reference to counting the vote of Georgia. The language of the two resolutions is identical. Evidently that offered by the Senator from Vermont [Mr. EDMUNDS] in 1869 was copied from that in regard to Michigan in 1837. Mr. WHYTE. I would suggest to the Sena tor from Indiana that it is copied from Mr. Clay s resolution of 1821 in regard to Missouri. Mr. MORTON. I simply refer to it briefly for the purpose of showing that Congress as sumed substantially the power over these con tested votes long ago, and that seems to have been the better judgment of members of the two Houses at different periods of our history. Mr. MAXEY. I should like to ask the Sen ator from Indiana a question, as he has the floor, and I desire his opinion upon it. The amendment of the Senator from Rhode Island in substance is that where two certificates come up from the same State, purporting to be the certificate of the electoral vote cast by that State, those returns are to be turned over or transferred by the President of the Senate to the Chief Justice of the Supreme Court "Who shall at once cause the said Supreme Court to proceed to examine as to who are the legal electors of said State, and shall have power to send for per sons and papers; and the said Chief Justice shall, on or before the last Tuesday of January next suc ceeding the meeting of the electors of President and Vice-President, report to the President of the Senate which of the said electors were legally elected. The Constitution declares that : The President of the Senate shall, in the presence of the Senate and House of Eepresentatives, open all the certificates, and the votes shall then be counted. What I desire to have the Senator s opinion upon is this : Is it constitutional or legal for the President of the Senate to transfer to the Supreme Court or anybody else these certifi cates unopened? Second, if he has to open them, does not the Constitution require that " the votes shall then be counted ? " Then where does the opportunity come in for the action of the Supreme Court as contemplated by this amendment ? That is a question I cannot un derstand myself, and I should like to have the Senator s opinion upon it. Mr. MORTON. The Senator from Texas I think is quite right in his suggestion. If I understand it, his suggestion is that the^Presi- dent of the Senate is the custodian, and the sole custodian, of these certificates from the time they come to his hands ; that he cannot transfer the custody of them to anybody ; that he is responsible for them, and if they snail be lost he is to be held responsible. In the next place, clearly he cannot open them until he does it in the presence of the two Houses. Not until that moment is anybody entitled to know what the contents of these envelopes may be. Mr. MAXEY. And tben the votes must be counted. Mr. MORTON. And then and there the votes must be counted. These provisions grew out of the theory of the electoral college, that it was to be composed of a body of indepen dent men, acting entirely independent oi pledges, of all outside influences, who should come together, and without each other s knowl edge vote by ballot, so that one should not know how the other voted ; and then that they should seal these votes up and they should be kept a secret until the very moment they were to be counted. We have seen how the whole theory failed, but still this is the pro vision of the Constitution of the United States. One word in regard to the bill and I am done. In regard to the first section of the bill there seems to be little or no controversy. That is, that there shall be no electoral vote rejected except by a concurrent vote of both Houses. There seems to be little difference ol opinion about that, and that is the most mate rial provision. Nearly all the questions wil] arise under the first section of the bill. It may not occur for fifty years again that we shall have two sets of electoral votes from the same State. It may occur next fall, but the chances are small of such an event. If it should occur, it is not very likely that the twc Houses of Congress, acting under the pressun of high and solemn considerations of duty would not be able to agree as to which returi should be counted ; so that that contingency in regard to which all this debate has sprung up is very remote indeed. There seems to b< a desire to get some tribunal which shall de cide the question, and the introduction of th< House, voting by States, is suggested, the on* way of all others which is the most liable t< have a dead-lock; for if there should be ai even number of States upon each side, or 1 the delegation from the States should be di vided, as occurred in two States in the ver first election even, then there is no decision So that you can hardly imagine a tribunal tha might be created, even if we had the power where this contingency would not happen but if the second section of the bill werr stricken out altogether the first is of inestima ble importance. If there be a contingency ii the second section that is not quite provider for, still it does not take away the important of passing the first section, or the second sec tion either, because that contingency is ex ceedingly remote. We can understand, ii view of what took place three years ago las month, the necessity of providing some metho for counting these votes. We cannot as com mon lovers of our country and patriots, sw on to stand by this Government, pass over th< duty of providing against such dangers as li< right at the door. Therefore I trust, Mr. President, that thi COUNTING THE ELECTORAL VOTES. 647 bill will not be defeated because of a remote possibility. I trust we will consider the main subject and the principal dangers that are covered by this bill, and I hope it will pass. As I said before, any plan is better than none almost. After hearing all that has been said upon both sides, and I must say this debate has been conducted with great candor and I think with great ability and fairness, I am not now able to see where the bill can be. im proved. Mr. FRELINGHUYSEN. I would call the attention of the Senator from Indiana to the second section. It provides that that return from such State shall be counted " which the two Houses acting separately shall decide "to be the true and valid return." The question has been suggested to me as to what is to happen in case the two Houses acting separately do not agree as to which return is the valid re turn. Mr. MORTON". I suppose there would be no vote counted in that case. Mr. FRELINGHUYSEN. Ought it not to say so ? It might be insisted by those who hold that the Constitution imposes the duty of counting the vote on the Vice-President that he was to count it. At all events, I think it ought not to be left in doubt, but the words ought to be added at the end of that sentence : And if the two Houses do not agree as to which is the true and valid return, then no vote shall be counted from that State. Mr. MORTON. The Senator would arrive at the same thing by inserting the word "only" after the word "return;" "that re turn only from such State shall be counted." Mr. FRELINGHUYSEN". I do not see that you can put it in fewer words. I am sorry to see this bill not in a better shape than it is. I have no doubt when the Constitution im poses a duty upon Congress, and says we shall count the vote, that we have the consti tutional right by legislation to do everything that is necessary to the safe counting of that vote. We have a perfect right by legis lation to carry it out by creating a tribunal, and doing everything that it is necessary to do in order to secure a safe and complete count. The Constitution says so. The Constitution says we have got the right to pass all laws that are necessary to carry out the powers conferred by the Constitution. As to the pLin of referring the question to the House of Representatives, that House vot ing by States, it does seem to me that that is contrary to the Constitution. There is one point where I differ from the Senator from Delaware. It seems to me the Constitution precludes us from adopting the plan he pro poses because the Constitution has spoken. It has told us in what exigencies the election shall be determined by the House voting by States, and the expression of the case in which that is to be resorted to is the exclusion of all intendment that the House in any other emergency might decide upon the vote. Mr. BAYARD called for the yeas and nays on his amendment, and they were ordered. Mr. SAULSBURY. Mr. President, I will vote for the amendment proposed by my col league, though I would have preferred to have the amendment adopted as it was offered ori ginally by the Senator from Tennessee [Mr. COOPER]. The bill of the Senator from Indiana does provide expressly for the rejection of the vote of a State. I am unwilling to vote for a meas ure which provides that the vote of any State of this Union shall be rejected, because I be lieve it is within the power of Congress to provide some fair and proper mode by which the vote of every State in this Union may be counted in the election of President. The amendment offered by my colleague is one mode, and perhaps the fairest mode that we can now hope to obtain for reaching that re sult. I shall therefore support the amend ment, and hope that it may be adopted. I have listened to this whole debate, I am free to say, with unusual interest, because the questions presented by the bill and the amend ments are, as I conceive, of vital importance. If I understood the Senator from Maryland [Mr. WHYTE] aright, and also the Senator from Kentucky [Mr. STEVENSON], they believe that there is an omission in the Constitution, and that the defect can only be remedied by a con stitutional amendment. With that view I do not concur ; but I think that if there is any defect, the power is granted to Congress by express provision to make all laws necessary to carry out the grants of power contained in the Constitution; and that the power to count the votes having been expressly given, Congress may determine the mode by which the votes shall be counted. This is not a new question. It has been here before. The Congress of the United States as far back as 1800 considered this sub ject. I do not believe the discussion that oc curred in the year 1800 upon this very ques tion has been referred to in this debate, and perhaps it may not be amiss to call the atten tion of the Senate to that debate. The Sen ator from Maryland favored the idea that the President of the Senate was to count the votes. So far back as 1800 this question was brought to the attention of Congress, and was discussed in Congress, and I propose to show what the view of Congress, or at least a number of the members of Congress, at that time was upon the question of the power of Congress to deal with this subject. On January 23, 1800, on the motion of Mr. Ross, the Senate Resolved, That a committee be appointed to con sider whether any, and what provisions ought to be made by law for deciding disputed elections of Pres ident 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. 648 PROPOSED LEGISLATION AS TO THE MODE OF On the next day it was Ordered, That Messrs. Eoss, Laurance, Dexter, Pinckney, and Livermore be the committee. And that committee reported a bill the pro visions of which in full 1 have not been able to ascertain. On February 14 Mr. Ross, from the committee appointed the 28th of January last, reported a bill prescribing the mode of deciding disputed elections of President and Vicc-President of the United States, which was read and ordered to the second reading. Some of the provisions of that bill I have been able to find, but not the whole of it in detail. The bill took up the whole subject. Some of the provisions of the bill provided for the appointment of what was called a grand committee selected out of the two Houses of Congress to meet in secret session, there to examine all the votes cast for President and all the petitions and reports that were made from the several States in connection with those votes, and to determine upon the legality of the votes thus cast. Mr. MERRIMOK Where did it lodge the power ? Mr. SAULSBURY. It lodged it in the two Houses of Congress, so far as I have been able to gather from such provisions of the bill as I have been able to find in this book. On March 3 The Senate resumed the consideration of the amendment proposed to the first section of the bill prescribing the mode of deciding disputed elec tions of President and Vice-President of the United States. I will read what was the substance of the provisions of the bill from a speech made by Mr. Pinckney, of South Carolina, who opposed the bill and spoke against it. In the course of his speech he said : What is the mode proposed by this bill ? That the Senate and House of Representatives of the United States shall each of them elect six members, who, with a chairman, to be appointed by the latter from a nomination of the former, would form a grand committee, who should, sitting with closed doors, have a right to examine all the votes given by the electors in the several States for President and Vice- President, and all the memorials and petitions re specting them, and have power finally to decide respecting them, and to declare what votes of differ ent States shall pe rejected and what admitted, and, in short, that this committee thus chosen, and sit ting with closed doors, shall possess complete, un controllable and irrevocable power to decree, without appeal from their decision, who has been returned, and who shall be proclaimed President of the United States. That is the synopsis of the bill reported by the committee, contained in a speech of Mr. Pinckney, of South Carolina. That bill was considered at various times during the session and various amendments were offered. One amendment I will read : The bill prescribing the mode of deciding dis puted elections of President and Vice-President of the United States was read the third time. On motion to strike out the ten first sections and insert I will read now what was proposed to be inserted as showing what the opinion of mem bers of Congress at that time was as to the power of Congress to deal with the question of counting, determining, and passing upon the votes of electors. The amendment is as follows : Whereas, on an election of President and Vice- President of the United States, questions may arise whether an elector has been appointed in a mode authorized by the Legislature of his State or not ; whether the time at which he was chosen and the day he gave his vote were those determined by Con gress ; whether he was not at the time a Senator or Representative of the United States, or held an office of trust or profit under the United States ; whether one at least of the persons he has voted for is an in habitant of a State other than his own ; whether the electors voted by ballot, and have signed, certified, and transmitted to the President of the Senate a list of all the persons voted for, and the number of votes for each ; whether the persons voted for are natural- born citizens, or were citizens of the United States at the time of the adoption of the Constitution, were ! thirty-five years old, and had been fourteen years resident within the United States ; and the Consti tution of the United States having directed that " the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and that the votes shall then be counted," from which the reasonable inference and practice has been that they are to be counted by the members composing the said Houses, and brought there for that office, no other being assigned them ; and inferred the more reasonably, as therebv the constitutional weight of each State in the election of those high officers is exactly preserved in the tribu nal which is to judge of its validity, the number of Senators and Representatives from each State com posing the said tribunal being exactly that of the electors of the same State. And then follows the amendment in the form of a section to carry out the objects pro posed in the preamble. I will read the sec tion : SECTION 1. Be it enacted ty the Senate and House of Representatives of the United States of America in Congress assembled^ That whensoever the members of the Senate and House of Representatives shall be assembled for the purpose of having the certificates of the electors of the several States opened and counted, the names of the several States shall be written on different and similar tickets of paper and put into a ballot-box, out of which one shall be drawn at a time ; and so soon as one is drawn the packet containing the certificates of that State shall be opened by the President of the Senate, and shall then be read, and then shall be read also the peti tions, depositions, and other papers and documents concerning the same ; and, if no exception is taken thereto, the votes contained in such certificates shall be counted ; but if the votes, or any of them, shall be objected to, the members present shall, on the question propounded by the President of the Senate, decide, without debate, by yea or nay, whether such vote or votes are constitutional or not ; and the votes of one State being thus counted, another ticket shall be drawn from the ballot-box, and the certificate and the votes of the electors of the State drawn shall be proceeded on as before directed ; and so on, one after another, until the whole of the votes shall be counted ; and if the counting cannot be completed in one day, the members of the said two Houses may adjourn from day to day until it be completed. A division of the question was called for, and that it first be taken on striking out. A motion was made to strike out of section 1, COUNTING THE ELECTORAL VOTES. 649 lines 10 and 11, these words : " and finally to de cide " and to insert u into and report upon ; " and a division of the motion was called for, and that the question be first taken on striking out; which passed in the negative yeas 11, nays 18. After several amendments were considered the bill was finally discussed at length by Mr. Pinckney, of South Carolina. He opposed the bill, but he seemed to admit in his argument the right of Congress to count the vote. Knowing that it was the intention of the Consti tution to make the President completely independ ent of the Federal Legislature, I well remember it was the object, as it is at present, not only the spirit but the letter of that instrument, to give to Congress no interference in or control over the election of a President. Et is made their duty to count over the votes in a convention of both Houses That favors the idea of the Senator from Connecticut [M!r. EA.TOX] and for the President of the Senate to declare who has the majority of the votes of the electors so transmitted. While he opposed the general provisions of the bill he went to the extent of passing upon the qualifications of the electors, taking it en tirely away from the State ; and he seemed in his argument to admit the power of Congress to determine the question of the votes. In that debate one of the questions that arose was that which has arisen in this debate, what is to be done with double returns ? Mr. Pinck ney took up that question, and after reading his speech I undertake to say that he did not deal with it with that frankness which his eminent character justifies us in supposing he ought to have dealt with it. He seemed to evade the question, did not meet it, but he sserned to meat it as my friend from Connecti cut met it this morning by expressing his con fidence in Congress and his confidence in every public man in the country. He could not an ticipate that there would be any difficulty ; he could not in the first place anticipate that such returns would be made. He had then the un bounded confidence that is exhibited by the Senator from Connecticut to-day. And yet our history proves that Mr. Pinckney was mis taken just as I fear the subsequent history of the country will prove that the Senator from Connecticut is mistaken when he expresses such unbounded confidence, not only in the Senate of the United States, but in every pub lic man, the Vice-President, the Speaker of the House, and the members of this House and of t!ie other. I share largely in the confidence which he has expressed in reference to humani ty, but I have seen enough of life to know that our confidence is frequently misplaced, and I want to prepare against any contingency that mav happen. That bill came finally to a vote in the Senate of the United States after the exhaustive argu ment of Mr. Pinckney, and I wish to read the names of the Senators who voted upon that bill. When Mr. P. had concluded, the question was taken on the passage of the bill, and it was deter mined in the affirmative yeas 16, nays 12, as fol lows : YE AS Messrs. Bingham, Chipman, Dayton, Dex ter, Foster, Goodhue, Greene, Hillhouse, Latimer, Lloyd, Paine, Bead From my own State Ross, Schureman, Tracy, and Wells. NAYS Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Livermore, Mar shall, Mason, Nicholas, and Pinckney. The proceedings to which I have referred show that at that early day the power was claimod for Congress not only to deal with the question we are now discussing, but to deal with other questions, questions which I do not believe we have the right to deal with. But the power of providing the mode of counting the electoral vote by legislation, especially where there is a seeming omission in the Con stitution itself, was then fully recognized, anl these proceedings clearly indicate it. I would not attempt to confer upon on3 House or both Houses of Congress any power which is not expressly granted to them, for I am a strict constructionist of the Constitution. I believe that we have no right as a Congress to exercise any power which is not expressly given or which is not necessary to carry out the grants of power expressly given in the Constitution. I would not usurp any power whatever. I am as free from doing that as my honorable friend from Maryland or my honorable friend from Connecticut ; but I do contend that the criticisms upon the position of my friend from Ohio are not warranted by the precedents that have been referred to as conclusive upon the contemporaneous interpre tation of the provisions of the Constitution in this behalf. I hold that the incident which I have cited shows that at an early day, when the men were living who took part in the formation of the Constitution, when they were members of the Congress of the United States, this power was claimed for Congress. Some of the gentlemen who participated in the for mation of the Constitution were there and voted upon the question. I would not, I re peat, invade that Constitution. I believe that the true interests and the true destiny of this country require a strict adherence to the pro visions of the Federal Constitution. I would not usurp the power by Congress, but I would carry out the provisions of the Constitution. I would count the vote as it is. There is a provision in the bill of the Senator from Indi ana that in a certain contingency the vote of a State shall not be counted, and I am opposed to that bill without some amendment to secure to every State in this Union the right to have her electoral vote counted. Mr. President, I conceive that this is an im portant question. It is one that ought not to be hastily passed upon, and I think the seven days which have been spent in the investiga tion and discussion of this subject have not been spent in vain. I hope that no hurried action will be taken, but that some action may 650 PROPOSED LEGISLATION AS TO THE MODE OF be adopted in this House which will be con curred in by the other House, and that we may make proper provisions to remedy the evil which is seen and acknowledged by all. I have said much more on this question than I designed to say at the present time. Mr. BURNSIDE. Mr. President, I desire to make but a single remark, and that is, that the Supreme Court of the United States substan tially decided in the Rhode Island case, to which the Senator from Indiana referred, that it was in the power of Congress to call upon the courts to decide which of the representatives of the State governments was in accord with the Government of the United States. I am indebted for this suggestion to the honorable Senator from Florida [Mr. JONES]. If Congress has the right to call on the Su preme Court of the United States for a deci sion upon that point, it has the right to do it in this case. Some of the most distinguished Senators have said that this amendment pre sented the most desirable way to settle the difficulty, if it could be done constitutionally ; and here, it seems to me, we have this point settled by the Supreme Court of the United States, unless I misconstrue the substance of that decision. Mr. JONES, of Florida. Mr. President, it is perhaps necessary for me to say a word in re gard to my view of what the court did decide in the case of Luther vs. Borden. It did say, and the opinion will bear me out, that it was competent for Congress to designate a court that should have the power to say which of two rival powers in a State should be recog nized as the legitimate power, with a view of obtaining the assistance contemplated by the Constitution to be extended by the Union. That was decided beyond all doubt. Mr. MERRIMON. Have you the decision before you ? M. JONES, of Florida. I have not. The court said that Congress had delegated the authority to the President by the act of 1795, and that it had done so wisely ; but that it was equally competent for Congress to delegate the same authority to a court for a like purpose, and to withdraw it from the President. The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from Delaware [Mr. BAYAED], upon which the yeas and nays have been ordered. The amendment is to modify the second section before the ques tion is taken on the amendment of the Senator from Rhode Island [Mr. BUENSIDE] to strike it out and insert a substitute. The Chair under stands that this is the same amendment origi nally offered by the Senator from Tennessee [Mr. COOPER]. The question being taken by yeas and nays, resulted yeas 18, nays 34; as follows: YEAS Messrs. Bayard, Bogy, Caperton, Cooper, "Davis, Goldthwaite, Johnston^ Kelly, Key, McCree- ry, McDonald, Maxey, Randolph, Ransom, Sauls- bury, Thurmnn, Wallace, and Withers 18. NAYS Messrs. Allison, Anthony, Booth, Burn- side, Cameron of Pennsylvania, Cameron of Wiscon- pro tempore. Is there Morton, Oglesby, Paddock, Patterson, Sargent, Sher man, Whyte, Windom, and Wright 84. ABSENT Messrs. Alcorn, Boutwell, Bruce Clay ton, Cockrell, Conover, Cragin, Gordon, Harvey, Hitchcock, Ingalls, Jones of Florida, Kernan, Mor- rill of Vermont, Norwood, Robertson, Sharon, Spen cer, Stevenson, Wadleigh, and West 21. So the amendment was rejected. The PRESIDENT pro tempore. The ques tion recurs on the amendment proposed by the Senator from Rhode Island [Mr. BUENSIDE]. The amendment was rejected. Mr. WRIGHT. I suggest an amendment to come in the second sectio-n and I call the at tention of the Senator from Indiana to it in order to make that clear which by possibility is not so clear as it stands now. As it reads now it is : And that return from such State shall be counted which the two Houses, acting separately, shall de cide to be the true and valid return. I propose to insert after the word "return " in line 7" the words " and that return only." Mr. MORTON. That is what it is intended to mean, but I have no objection to the word " only " going in. The PRESIDENT objection? Mr. JOHNSTON and others. Let it be re ported. The CHIEF CLEEK. In the seventh line of the section, after the word "return," it is pro posed to insert " and that only ;" so as to read : That if more than one return sliall be received by the President of the Senate from a State, purporting to be the certificates of electoral votes given at the last preceding election for President and Yice-Presi- dent in such State, all such returns shall be opened by him in the presence of the two Houses when as sembled to count the votes, and that return, and that only, from such. State shall be counted which the two Houses, acting separately, shall decide to be the true and valid return. Mr. MORTON. I think the word " only " would be sufficient ; but I have no objection to the words " and that only." The amendment was agreed to. Mr. WHYTE. I desire to offer an amend ment merely to take the sense of the Senate. I move to strike out all after the word " certi fied," in the twenty- sixth line of the first sec tion, down to section 4, and to insert in lieu of the matter stricken out the following: The President of the Senate shall in the first in stance decide without debate upon all such questions and announce his decisions thereon; and when he shall have counted all the votes he shall announce the result according to his decision. After the whole count has been so made and the result thereof an nounced, if it appears that the result will be changed by the reversal of decisions made by the President of the Senate, any member of either House may ap peal from any such decision. Upon such appeal the vote shall be taken by States, the members of both Houses from each State severally giving one vote. COUNTING THE ELECTORAL VOTES. 651 The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from Maryland [Mr. WHYTE]. The amendment was rejected. The bill was ordered to be engrossed for a third reading, and was read the third time. The PRESIDENT pro tempore. Shall the bill pass ? Mr. STEVENSON. I ask for the yeas and nays on the passage of the bill. The yeas and nays were ordered ; and being taken, resulted yeas 32, nays 26 ; as follows : YEAS Messrs. Allison, Anthony, Booth, Burn- side t Cameron of Pennsylvania, Cameron of \Vis- consin, Christiancy, Dawes, Dorsey, Feny, Freling- huysen, Hamilton, Hamlin, Hitchcock, Ingalls, Jones of Nevada, Key, Logan, McMillan, Merrimon, Mitchell, Morrill of Maine, Morton, Oglesby, Pad dock, Patterson, Sarsrent, Sherman, Spencer, Thur- man, "Windom, and Wright 32. NAYS Messrs. Bayard, Bogy, Caperton, Cock- rell, Conkling, Cooper, Davis, Dennis, Eaton, Ed munds, English, Goldthwaite, Howe, Johnston, Jones of Florida, Kelly, McCreery, McDonald, Maxey, Eandolph, Ransom, Saulsbury, Stevenson, Wallace, Whyte, and Withers-26. ABSENT Messrs. Alcorn, Boutwell, Bruce, Clay ton, Conover, Cragin, Gordon, Harvey, Kernan, Morrill of Vermont, Norwood, Robertson, Sharon, Wadleigh, and West 15. So the bill was passed. Mr. THURMAN. Before the doors are actually closed, I move a reconsideration of the vote just taken on the passage of Senate bill No. 1 relative to counting the electoral votes ; and I wish to say a word. The vote on the bill strikes me with some surprise. What there is that gives any advantage to one party over another in it is past my comprehension. I do not see it in the bill, but there is an objection that has weighed no doubt with many who voted against the bill, and that is that it leaves a case unprovided for, a case where there are two returns from a State. It does not arrive at an ultimate decision, or at least it may not, on that question. I am strongly impressed with the belief that unless the Senate can be come more harmonious than it is on this bill, we have no chance to get a law on the subject at this session. Therefore I, for one, am anx ious to make one more effort in this body, where such a thing as debate is allowed, where a calm consideration of a great question can take place, to have this matter further con sidered. Mr. MORTON". Do you propose to have it considered to-night ? Mr. THURMAN. No; but I ask that the motion to reconsider may be entered in order that it may be further considered. The PRESIDENT pro tempore. The motion to reconsider will be entered. IN SENATE. Wednesday, April 19, 1870. ("Congressional Record," pp. 2581-2586.) Mr. THURMAN. I understand from the Senator from Indiana [Mr. MOKTOX] that ho desires to leave the Chamber soon, and I hope therefore we shall proceed with the electoral bill. I shall not occupy more than ten min utes of the time of the Senate, I think, and there will be ample time after that to take up the bill of the Senator from Nebraska. Mr. HITCHCOCK. Very well. The PRESIDENT pro tempore. The ques tion before the Senate is the motion of the Senator from Ohio [Mr. THURMAX] to recon sider the vote by which the bill (S. No. 1) to provide for and regulate the counting of votes for President and Vice-President, and the deci sion of questions arising thereon, was passed. Mr. THURMAN. Mr. President, I shall not enter into a discussion of the general subject of this bill on the motion to reconsider, but will simply state the reasons which induced me to make the motion. I have, if it is proper to state it, a very firm conviction that if this bill should go to the House of Representatives with no larger ^ majority than that by which it was passed, with the votes of a very large majority of one of the parties in this Chamber against it, it would not pass the House of Representa tives, and the result would be that no law on the subject would be passed. I have said again and again that I think some law on this subject ought to be passed, and I have made the motion to reconsider because I think so, and because I believe that if the bill goes to the House as it has been voted upon, it will not become a law and, in fact, no measure for this purpose will become a law at this session. I wish the vote to be reconsidered in order that one more attempt may be made in the Senate to harmonize the views of Senators upon this measure. I believe that if the Sen ate by a substantially unanimous vote were to approve a measure it would most likely become a law, and I am not without hope that that unanimity of opinion upon a measure like this, which ought not in any sense to be considered a party measure, may be procured. It is very obvious that the reason why there was so large a vote against this measure was the omission of the bill to provide any ultimate umpire or ar biter or tribunal to decide in cases where there were two or more returns from a State. That omission in the bill was considered by a large number of Senators to be an invitation in fact, or that it would operate as an invitation, to bad men in some of the States to make a second re turn from those States, and thus produce the case mentioned in the second section of the bill. ^ And it was the fear that it would be so considered and so acted upon, and that we should have from some of the States perhaps, and States whose votes might affect the gener al result, two returns, and that then the opera- 652 PROPOSED LEGISLAT10X AS TO THE MODE OF tion of the bill might be to deprive those States of their electoral votes altogether it was that consideration, I am quite sure from the debate, which led so many Senators to oppose the measure, because upon the main question as to the right of Congress to legislate upon this sub ject the votes showed that an overwhelming majority of all parties concurred in that right. It was not upon constitutional grounds that the bill was opposed to the extent that it met oppo sition, but it was upon the ground and the sole ground that here was a fatal omission in the bill, the effect of which might be to deprive States of their electoral votes. Now, if that fatal omission can be supplied, if some mode fair and just and within the scope and the spirit of the Constitution can be adopted which shall remedy that omission and thus perfect the bill, it is my belief that the bill will receive almost or quite the unanimous support of the Senate ; and, receiving that, will become a law. But I do very much fear that if the bill go to the House of Representa tives upon the vote that has already been taken, instead of being amended in the House it will simply be defeated, and we shall never have any committee of conference upon the subject and the measure will be wholly lost. If I could see that the bill would be amended in the House and that the result would be a conference committee between the two Houses, I should greatly prefer that, because then each House would be represented in framing this great measure; but I very much fear that would not be the result, and therefore I am anxious that one more effort should be made in this body, where discussion and deliberation still prevail, to perfect this measure which in my judgment ought to be perfected and then ought to be passed. This is all that I have to say. Upon the general subject of the bill I have already ex pressed my opinion, both at this session and at a former session, as fully as I desire to do. It is true that since the vote was taken upon this bill I have discovered, or there have been pointed out to me, some very instructive pro ceedings in Congress more than three-quar ters of a century ago upon this very subject, proceedings that I think might be read and studied with great advantage by every Sen ator; but it would take up too much time to go into them now. If, however, th.e vote shall be reconsidered, then I shall feel it to be my duty to lay those proceedings before the Senate for its consideration. Mr. MORTON". Mr. President, the Senator from Ohio voted for this bill, and is its friend ; but I think he is mistaken in supposing that any good is to be attained by the reconsidera tion, and by making another effort in the Sen ate. If the House of Representatives does not like tins bill, it can amend it. If it is in favor of any bill at all, it can put the bill into the shape that suits it; and if the Senate disagrees to that, it will then go to a committee of con ference, and there the matter can be adjusted ; and that will realize the first motion made by the Senator from Delaware, who wanted it considered by a joint committee. I think the only way of getting it before a joint com mittee is by a committee of conference ; and I have faith to believe that, whatever may be the first action of the House of Representa tives, the two houses will finally come to gether in that way. But, Mr. President, I must take occasion to express my surprise at the vote which was taken on this bill. I certainly supposed it was as far above party considerations as any bill that could possibly be brought into this body. I could not comprehend how there could be any partisan feeling about it, or any partisan interest one way or the other ; and when I found that the vote was comparatively a party vote almost, I was surprised. The argument in favor of reconsideration on the part of the Senator from Ohio is that the majority for the bill was not large enough. That is rather a novel argument for the recon sideration of a bill. What is the point of dis pute? There was but one, substantially but on.e point of disagreement, and that was upon the second section. That was in regard to a case where there were two returns from a State, and the two Houses did not concur in adopting one return as being the lawful return a very remote contingency. I, having faith in men and faith in parties and in the final integrity and patriotism of all parties, will be slow to believe that in a case of that kind the return which is the true and lawful return will not receive the -sanction of both Houses, al though the parties controlling the tAvo Houses may be different. I am not willing to believe that there is in either party of this country such an absence of patriotism as to do great violence to the rights of the people of the States and to the Constitution in a case like that; and hence the contingency that has alarmed so many has not alarmed me. In such a contingency as that it should be subject to the decision of both Houses, just like every other great question of legislation that comes before Congress. Since that vote was taken a circumstance has been brought to my knowledge, a histori cal fact which I am sure will surprise and as tonish this country when it is made known. The discovery was made by another Senator and I shall not state what it is ; but it shows the overwhelming importance of some action upon this point. Mr. BAYARD. Will the Senator state the nature of it ? Mr. MORTON. I will not give the name of the Vice-President or the names of the par ties concerned ; but it was where a Vice-Presi dent was counting the vote, himself being a candidate, and he counted a false or null return in his own favor, a return that was no return at all. The facts are in the possession of the COUNTING THE ELECTORAL VOTES. 653 Senator from Vermont. But it is just one of those things that at any time might occur when a man is to be the judge in a case where he is a party interested. Mr. President, I hope this vote will not be reconsidered, for I have but very little expecta tion that anything will ever come of it. It seems on the part of a majority of our friends on one side of the Chamber there was but one arbitrament that they would accept. If I re member the vote, eighteen distinguished Sena tors, representative men of their party, voted to make the House of Representatives, voting by States, the umpire in deciding upon a ques tion of that kind. It was simply going back a hundred years in this Government; it was simply going back to the confederation where every question was decided in the Congress of the confederation, not by representatives of States, but by States, each State having one vote. This proposition, so far from showing any progress, is retrogression, a retrogression of one hundred years. If that- is the only arbiter that can be accepted, I am sure it will never meet with my approval. I think it is better all around to let this bill go to the House of Representatives, and let the democratic majority there fix up such a bill as will meet with their approbation. If it comas back here, and we cannot agree to it, let it go to a committee of conference. I am sure that the House will see the necessity of doing something, and the only argument my friend offers is that the majority here for the bill was not large enough. It is a bigger ma jority than you will get again. My opinion is that, if this bill is now recbnsidered, that will be the end of it. Mr. BAYARD. Mr. President, I have stated to the Senate too often to make it necessary for me to repeat now my sense of the very great importance of this measure, or of a measure satisfactory in its nature and its results upon this most important subject. I shall vote in favor of the motion of the Senator from Ohio, to reconsider the vote by which this bill was passed by the Senate, because, if it has no other effect, it will lead to a prolonged con sideration of a subject that it seems to me thus far has had what I must think a wrong view taken of it. I regret that the Senator from Indiana should be so thoroughly possessed at all times, as it seems to me, with an idea of distrust and al most of dislike for the very name of State ex istence, or the exercise of State power, or the recognition of State individuality. Why, sir, it seems to me that he is forgetting con stantly the very federal nature of our system ; and everything that tends to give a State indi viduality, to allow it to act as one of the units in our Union, is distasteful to the Senator. Why should he say it was retrogression ; why should he say that it was advancing backward, to intrust a question so vital as the decision of tne people in the choice of their Chief Execu tive Magistrate to the tribunal deliberately se lected by those who framed the Constitution, in the event of a majority of the electoral votes not being ascertained at the first count to be in favor of one of the candidates? Why, Mr. President, if it be true that there was a more distinctive recognition of separate State exist ence under the old Articles of Confederation, yet that was known to have its uses. It was known as a practice, worthy of recognition when, after their experience as a Confederacy, the States resolved themselves into a Union under a national form of government, and car ried into that, on this very subject which we are now considering, the recognition of the right and power of the States, as separate com munities, each voting individually, to elect a President in case a majority of the electoral votes should not be found to be in favor of any one candidate. In the present case it was pro posed by an amendment offered by my friend from Tennessee. [Mr. COOPER], and subsequently renewed by ma, and on both occasions, I am sorry to say, rejected by the Senate, that in the event of the two Houses of Congress not hav ing reached that happy condition of mind which enabled them to judge totally irrespective of partisan bias in respect to candidates, the two Houses failing to agree as to which of two returns should be counted by the tellers in cal culating the electoral vote, then, in the event of that disagreement, the House of Represen tatives, following the analogies of the Consti tution as expressly declared, should, voting by States, become the arbiter between the two Houses who had failed to agree. Mr. President, look at it. I do not say that the Senator from Indiana is oversanguine ; but I am afraid that he is oversanguine in supposing that that day of political millennium has ar rived in which he and his party friends or I and mine shall be able to look at facts imbued with all the color of party feeling and yet de cide them as though we were entirely indiffer ent to the result of our decision. Why, sir, there have been too many votes lately cast in this body need I refer to the unhappy and discreditable case of the State of Louisiana in which we saw what party would do or what party could do ? I do not refer to it for the purpose of suggesting whether on one side or the other the blame or the merit lay. I only state the facts as they exist, facts that astonish me, holding my views, that persons could so be blinded by political prejudices to the extent that perhaps they thought I myself was. But so it is that it would be in my opinion a very dangerous experiment to submit to the two Houses of Congress a question for their sep arate and distinct decision, the result of a dif ference in opinion between them being the to tal disfranchisement of one or more of those political communities that form this Union. Sir, what must be the feeling of the citizens of a disfranchised community? Bring it home to yourself, sir (Mr. WALLACE in the chair), a 654 PROPOSED LEGISLATION" AS TO THE MODE OF citizen of the honored Keystone State of this Union. Suppose there a dissatisfied minority, not accepting the results of an election, should meet and go through the form of a count of electoral votes and send forward a certificate, so that from Pennsylvania a double return should be made to the presiding officer of the Senate, and then came the question of count ing them, the vote of that State determining the contest, what would be the feeling of every citizen of that State to find that the voice of Pennsylvania was absolutely silenced in a contest of that kind, when her vote would have been productive of a decision complete and final on the subject ? Why, sir, it must be dissatisfaction. It cannot be satisfactory to any man who will look at the matter in ad vance ; and, therefore, the very gross defect of the bill as it passed the Senate is that, con templating just such a difference of opinion as that, it provides no arbitration to settle it. The Constitution has provided and to-day pro vides for an arbitration where the original electoral vote has failed to contain a clear majority in favor of one or the other of the candidates. Is it not analogous, not simply to the Constitution, but is it not analogous and amenable to reason, justice, propriety, expe diency, that we should have an arbitration created and accept that as an arbitration which has been suggested by the Constitution to us for the decision of this very question ? Mr. President, I do not see that it is out of order, but perhaps it may be inopportune to have gone into a discussion of this question, so deeply interesting, at this time. If there has been party feeling in the vote cast upon this bill I sincerely regret it. The Senator f-rom Indiana, however, will agree with me in saying that there was no party feeling exhibited in the debate which preceded the vote. There was at least that feature which I am sure was a grateful one in this Chamber. Now, sir, I do not know that a reconsidera tion of this vote and a reargument of the ques tion before the Senate will change opinions ; and yet at the same time I can but remark at the present time what I have often observed before, that here, in the face of a matter of the most vital importance, confessedly so, not more than one-third or one-fourth of the seats in this Chamber are filled by their proper oc cupants ; and so it was before. I believe, could the fact be ascertained, that not more than one-half of the members of the Senate who voted pro and con on the proposition of the Senator from Indiana heard the debate that preceded it or could, it seems to me, have given much attention to the subject. It is, therefore, with a view of provoking, if possi ble, their attention to this matter, of making their vote even more deliberate than it was before, that I shall vote for the reconsidera tion of the vote by which this bill passed the Senate. I did believe and still beliejve that it would have been wiser to commit this whole matter, in advance of any expression of opinion of either House, to a joint select committee, se lected for the purpose of coming together in a proper non-partisan tone for the settlement of this great question. Still it has been the pleasure of the Senate to choose another course; and now the opportunity may arise by a committee of conference to meet some what the object which I originally proposed. But still, sir, as I was one of those who did not concur in the action of the Senate and be lieve still that there should be further con sideration before we come to adopt as a meas ure, by a vote of the Senate, that which I scarcely believe will meet the approval (judg ing from the color of the vote) of the other House of Congress, believing that every effort should be made, dispassionately made, to arrive at a proper solution, I trust the Senator will consent to have this vote reconsidered. Mr. MORTON. No Senator, Mr. President, was more gratified at the tone and character of the debate on this bill than myself, for there was no partisan feeling in it. There was no indication that there was any party interest in the question, and hence my surprise when the vote was taken. As the Senator from Dela ware says, the bill did not appear to excite a very great degree of interest, and yet it is fraught with the very deepest interest to the country. If we shall adjourn without passing some bill upon the subject, we shall have left the seed of a revolution to grow. You will then have left this great power, that you are now not willing to trust to the two Houses be cause they ma y not agree, to the decision of one man. That is the practical result of it, because when we come together to count the votes next February, if there be no law and no rule upon the subject, none can then be made. You cannot then make a rule and agree upon any plan to meet these difficulties. You have then got to decide it as it was in 1857, as it was in 1801, as it was in 1805, and in 1825, by the President of the Senate. The returns that he presents will be counted and those that he withholds will be withheld, and there will be no remedy. You are simply voting to leave this to the decision of one man, because, as I said, when the time comes you can then make no law nor agree upon any rule. As there will be no remedy, it must be left just where it has been from the beginning, to the decision of the Yice-President of the United States, and as one Vice-President did count a vote in his own favor where there was no return, the same thing may be done some time in the future. I do not propose to go into an argument upon this question. It is one of a most im portant character. We cannot have a subject demanding more important consideration be fore us at this session. If we desire to have a law to avoid this danger, let the bill go to the House and let the House put upon it just such amendments as it chooses. Then we can come COUNTING THE ELECTORAL VOTES. 655 together in a committee of conference and we can agree upon some measure I doubt not. If the vote is to be reconsidered, and if the bill is never to go to the House until you get a bill that can be carried by a big majority here, you I may just as well give it up. I have no more interest in it than anybody else. It is a matter I of no personal importance to me over any other Senator, and I have no feeling about it. Mr. MERRIMON. Suppose the House should reject the bill, then we could have no confer ence at all. Mr. MORTON. That would be because they I do not in-tend to pass any bill. If they should do that, it would be simply saying, " We intend to leave this thing just where it is now." It will be in their power to frame any measure ! they choose. They can put the bill in such a shape as to refer the decision of the question to the House voting by States, if they choose, and ! then we can come together in a committee of conference and agree possibly upon some meas- i ure. If they should choose the House to be the umpire, as eighteen Senators in this body voted solidly to do, we can then come together and consider the matter ; but if they pass nothing it is simply saying that they do not want any bill; and of course that would be the end of it. Mr. EATON". I should like to ask the Sen ator from Indiana a question. I understood him to say that a Vice-President of the United States counted a vote that was fraudulently returned. Did I understand him correctly ? Mr. MORTON. I did not mean to say that. Mr. EATON. Will the Senator state again what he said ? Mr. MORTON. I undertake to say that the return-lists will show that the Vice-President counted a vote in his own favor where there was no certificate of return ; where there was simply a certificate by the governor of a State of the election of certain persons as electors, and on the back of the return was a little table, not signed by anybody, not certified to by any body, stating that so many votes for one man and so many votes for another had been cast. Mr. EATON". Will the Senator inform the Senate who that Vice-President was? Mr. MORTON". I will not make that state ment now. There is a Senator here who has the record in his possession. Mr. SAULS BURY. Mr. President, the con clusion to be drawn from the remarks of the Senator from Indiana is that the votes cast on this side of the House in opposition to the bill which he reported were governed by partisan considerations. In reference to the main ques tion which was under consideration, the con stitutionality of this bill, the power of Con gress to pass laws and make the provisions contemplated by the bill, I was with the Sen ator from Indiana. I submitted my views upon that point, and they were in harmony with his own. I believe that a majority of the mem bers on this side of the Chamber concurred with the view of the Senator from Indiana as to the power of Congress to make provision for counting the electoral votes. But there were provisions in the bill which we did not like. I was fully impressed with the impor tance of making some provision for ascertaining the vote of the people of this country in refer ence to the election of President, believing that it ought to be done at the present session. I tried in my humble way to so shape the bill that it should be perfectly fair and right, pro posing such amendments to the bill reported by the Senator from Indiana as I believed would accomplish that purpose. There was a positive provision in the bill as it passed the Senate for throwing out the vote of a State. I was unwilling to commit myself by my vote to the provisions of any bill which provided affirmatively for the rejection of the vote of a State. There is no such provision as that in the Constitution, and I was unwilling to as sume the responsibility of voting for a bill which affirmatively provided for throwing out the vote of a State. Mr. MORTON". Let me suggest to my friend on this point that the bill cannot be said to make provision for throwing out the vote of a State, but it simply provides for the decision of a question arising upon the vote of a State. In the absence of the bill you let the matter stand just as it is now. When we come to count the votes next February, if there are two returns one of those returns must be re jected. It must be rejected by somebody. Who will be that person? It will be the Presi dent of the Senate. Nobody else can act upon it, because there would be no rule under which anybody else could act. You cannot frame a law then. He may select the wrong return. In such a case the bill provides that the right return shall be selected by the two Houses, and if the matter is so doubtful and so obscure that the two Houses cannot agree upon it, then, as a matter of necessity, in the very nature of the case, it goes out. That is all there is of it. Mr. SAULSBURY. I contend, nevertheless, that a fair interpretation of the bill proves this to be an affirmative provision that upon a cer tain contingency the vote of a State shall not be counted. To such a proposition I was un willing to commit myself. I am aware that grave difficulties may arise if the matter is left to stand as it is now. I would prefer there fore to remedy it, and I will assist the honor able Senator from Indiana in shaping the pro visions of a bill that shall provide for every possible contingency, in order to secure to the people of every State in the Union a voice in the election of the Chief Magistrate. I was as anxious as the Senator from Indiana that some provision should be made in regard to this matter ; I feel the importance of such a provision fully as much as the Senator from Indiana; and I tried in my humble way, as honestly as the Senator from Indiana tried, to make some provision. It was because, and 656 PROPOSED LEGISLATION AS TO THE MODE OF only because, the bill of the Senator from In diana did not do what I in my judgment thought it ought to do, because it did not pro vide for the counting of the votes of every State in the Union, that I cast my vote against the bill. I was governed by no party con sideration. It is a question that ought to rise infinitely above party feeling and party inter ests. It addresses itself to the nobler senti ments of our being, and we ought not to be governed by party interests in it. I hope that no inference will arise from the remarks of the Senator from Indiana that the democratic party in the Senate was governed in the vote it cast by anything of party consideration. We were governed by the fact that the Sen ator s bill did not make proper provisions for ascertaining the popular will in reference to the choice of the people for President of the United States. I hope the motion of the Senator from Ohio will prevail so that fair and proper considera tion may be given to this subject, and some proper provision made for securing to the peo ple of every State in the Union their just voice in determining the election of a President. Mr. THURMAN. I have but a word more to say before the vote is taken. I think I have never heard a discussion in the Senate on any great public measure that was freer from any thing like party than was the discussion on this bill. There was not an allusion on any side that could be considered in any sense partisan. The Senator from Indiana is greatly mistaken if he supposes that party feeling dictated the vote upon this bill. There were republican Senators as well as democratic Senators who voted against the bill republican Senators of great distinction, and of great ability, and of great experience. There are Senators on this floor who rather than leave open the possibility of a State losing her vote would prefer that it should be decided by the President of the Sen ate. They would rather trust to one man to decide the grave question of which return should be counted, and leave it to his con science, his honor, his official responsibility to the American people, than leave it open to any possibility that a State should be disfranchised. It cannot be denied that the bill does make a possibility of depriving a State of any voice in the election. The Senator from Indiana says that it is a misfortune that cannot be avoided where a tribunal that is to decide is unable to form its judgment ; but there are Senators here who would, as I said before, fol low the early usage of the country and let the President of the Senate, though opposed to them in political sentiment, decide the ques tion, rather than open the door to the possi bility of depriving a State of her voice in the election of a President. That is the reason which induced so large a vote against the bill. This reason and the belief that, although no such thing was intended, although any such idea was the farthest possible from those who supported the bill, yet that bad men might take advantage of the second section of the bill, and, taking advantage of that, send up double re turns for the very purpose of depriving a State of its voice in the election of President, induced the large vote that was cast against this bill. I do not believe that men ever voted from more patriotic impulses in the world than actu ated those Senators who voted against this bill. I voted for the bill. I voted for it although I considered it imperfect. I voted for it in the hope that it would be amended in the House of Representatives ; but when I saw the large vote against it, I believed, as I still believe, it will not be by amendment there in all proba bility that this measure will be perfected. We cannot conceal the fact that the Senate of the United States is alone the department in this Government in which there is full and free and unrestrained discussion. I say this not to re proach any other department of the Govern ment, but because from the very nature and necessity of the case such is the truth. A measure like this (and no greater measure can engage our attention than this very bill) ought, if possible, to be perfected here where there is deliberation and discussion without trammel and restraint. The Senator from Indiana cer tainly knows that I moved to reconsider the vote on this bill in the most perfect good faith. I may be mistaken as to the effect of a recon sideration and he may be right ; but I believe that I have the right view on the subject. Allusion has been made to a circumstance which I perhaps would not have noticed if something had been said more definitely about it. It was said that a Yice-President of the United States once counted for himself the votes of a State without any return from that State. I have seen it stated in the newspapers that when his attention was called by the tell ers to the fact he directed them to record the vote and then tore up the paper in order to prevent a detection of the fraud. I venture to say that that good man never committed any such fraud in this world ; and, if there is any paper that is apparently insufficient of itself, it is not all the return that was before him at the time and that was counted. What is conclusive in the matter is that the vote of that State, if it had been rejected, would not have affected the result in the slightest degree. The election would still have been determined by the House of Representatives, for there was no choice by the people. Therefore, he could have had no possible inducement to count for himself the vote which they say he counted without any return. Does anybody doubt how Georgia voted on that occasion ? Is there any pretense that she did not vote as her vote was recorded ? Is there any pretense, or can there be, that if her vote had been rejected it would have af fected the result? She would still have the right, when the President came to be elected by the House of Representatives, to cast her vote. It is of no use to conceal the name of COUNTING THE ELECTORAL VOTES. 657 this great man who is charged with this offense. [t is no less a man than he whose hand wrote the Declaration of Independence. It is no less a, great name than that of Thomas Jefferson that is impugned in this way. It is no less a man than he who at this late day is charged with having counted in his own interest the vote of a State without any evidence whatso- 3ver that it had been cast for him. Oh, no, Mr. President, it will not do now to make such a 3harge. I await the production of the evi dence upon that subject, and when it shall be produced I venture to say that nothing that impugns the integrity or the honor of that man will be found to exist. But this is apart from the question. I grant, as fully as the Senator from Indiana 3an argue, that there is danger. I grant, as rully as he can assert, that the President of the enate ought not to be the man to count the ote, he himself being interested. I read the onstitution as he reads it, that the duty of le President of the Senate is to open the votes, ad not to count them. I know the precedents r hen he did count them, in support of his ounting them. I understand all that ; but I now too, I think, the value of precedents r here there was no contest, and where there as no question. I therefore agree, as the enator knows, with him in his view of the onstitutional power of Congress to regulate lis matter; and I urged, therefore, the pas- ge of his bill. I did so at the last session as ell as at this, and I hope that it may yet be assed ; but I say to him in all frankness, that do not believe that any measure which, so 3 speak, creates a possibility of depriving a tate of her voice in the election of President an pass this Congress. Mr. MORTON. I did not intend to impugn e motive of any Senator who voted for any mendment to which I referred, or who de- res to reconsider the vote by which the bill r as passed. All I said was, that I was sur- rised at the final vote in view of the general one of the di scussion. I think I was no more urprised than my friend from Ohio, and per- aps not so much as he was. The Senator says lat no bill can become a law that leaves a pos- ible contingency by which a State can be de rived of a vote. I tell my friend that we can ass no bill that will not leave such a contin- ency. He said he would rather leave it to ie presiding officer of the Senate to decide, /an we compel the presiding officer of the >enate to decide ? Suppose there are two re- arns, and the presiding officer says, " I will .ot take the responsibility of deciding between tiese two returns ; I will refer the matter to he two Houses," a thing the presiding officer >f this body often does ; you cannot make him ecide it. And then, if the two Houses, having LO knowledge about it, cannot decide it, if they eparate and vote by common consent, they nay not agree, and in that case the vote is lost. low will you prevent the vote from being lost 42 in that case ? In the very amendment offered by the Senator from Virginia (Mr. JOHNSTON) to refer the decision of this question to the House of Representatives voting by States, there were two possibilities for the votes of States to be lost. I have that amendment here. In voting by States the amendment pro vides : But if the representation of any State shall be equally divided, its vote shall not be counted. As a matter of course, if you vote by States, and the State has two, four, or six Represen tatives, and they are equally divided, the vote of the State is lost. Mr. WITHERS. Oh, no; the vote of the State in deciding the question in the House is lost ; but the vote of the State is not neces sarily lost in the election of President. Mr. MORTON". Precisely, the vote of the State in deciding that question, and who will decide the other question ? Mr. WITHERS. That is very remote indeed. Mr. MORTON. I will bring the question right home to my friend from Virginia. Sup- posefit is referred to the House under the amendment of his colleague. The House is to decide which of two returns shall be counted and to decide by a vote by States. Suppose the States are equally divided ; I ask him if the vote of the State is not lost then ? Mr. WITHERS. That is a more remote con tingency, possibly, than the other. Mr. MORTON. If you come to count con tingencies, that may be a little more remote ; but my friend from Ohio says that no bill can pass which will leave that contingency open. I say you cannot pass a bill which will not leave that contingency, and that contingency is not so very remote either. When you come to de cide it there may be half a dozen States which will lose their votes in deciding it. I call my friend s attention to the fact that when the President was first elected by the House in 1801, there were three States that were dead locked from the first to the thirty-sixth ballot, and then they were only released from the dead-lock by one member dodging and the other two changing their votes. Mr. RANDOLPH. The Senator from In diana has said three or four times, in the course of this short debate, that Congress cannot pass a bill that will provide for every contingency. He has not said that Congress has had no op portunity of passing a bill so framed as to pro vide for every contingency. I beg to remind the Senator that during the previous discussion I presented an amendment which provided for every difficulty, and the Senator not only voted against it, but, as I believe, spoke against it. If the opportunity is offered, I propose to re new that amendment. I propose to do that which he claims he desires to do, that is, to provide that in no contingency shall the people of a State be disfranchised. Mr. MORTON. What was my friend s amendr ment ? Will my friend read it ? 658 PROPOSED LEGISLATION AS TO THE MODE OF Mr. RANDOLPH. The amendment has al most passed out of my mind, because the de bate occurred some time ago. Mr. MORTON. Has my friend his amend ment? Mr. RANDOLPH. I have a portion of it here. The copy that I finally presented is not now in my possession, but the substance of my amendment is here. In substance it is this : Should the two Houses of Congress, acting sepa rately, fail to agree as to which is the true and valid return of a State, then, and in that event only, the President of the Senate shall render a decision of the question, and such rendition shall be in favor of that return of a State which shall have received a ma jority of all the votes cast in both Houses of Con gress, considered as if both Houses had cast their votes in joint meeting assembled. I submitted the amendment at first in this form, and it was afterward put in a better shape, a copy of which I have sent for. Mr. MORTON. I have it here. Mr. RANDOLPH. Has the Senator from Indiana the last one ? Mr. MORTON. My friend from NewtJer- sey thinks he has found the method by which the vote of a State shall not be lost in any contingency, and he provides that where there are two returns " such rendition shall be in favor of that return of a State which shall have received a majority of all the votes cast in both Houses of Congress, considered as if both Houses Bad cast their votes in joint meet ing assembled," counting so many votes in the Senate and so many votes in the House, and then adding them together as if they had all been cast in one body, and that return which has a majority of all the votes cast is to be adopted. Suppose there is a tie ; in that case no return is adopted, and the vote of the State s lost on my friend s own hypothesis. Mr. RANDOLPH. In the amendment, which is not now in my hand the one that was finally substituted for that which I have just read I provided for that very contingen cy, leaving the President of the Senate to give the casting vote in that exceedingly remote contingency. I regret very much that I could not obtain the Senator s attention upon that subject. I tried very hard, but he seemed to be wedded to his own plan so that he appeared to me to listen very little to the suggestions of others. Mr. MORTON. My friend proposed to leave it in that case to the determination of the President of the Senate. If he should be a President pro tempore, as is the case now, he would vote originally and his vote would be . counted in the vote of the State, and then if he decided as President pro tempore he would vote on it again. He might refuse to exercise the extraordinary power of voting twice on the same thing. My friend from New Jersey [Mr. FEELIXGHUTSEN] suggests that he may himself be a candidate for President or Vice- President and it would place him in a very delicate position. He would not want to be embarrassed and might decline to vote at all. Mr. RANDOLPH. The difficulty is that there are so many gentlemen in this body who are in that condition that we can pass no bill that will not be surrounded with some such difficulty as the Senator has suggested. [Laugh ter.] Mr. MORTON. I appreciate that difficulty, because my gaze falls upon about twenty-five distinguished gentlemen over here who are all in that condition, and I should think they would desire to avoid the embarrassment which may arise from being called upon to decide in that case. [Laughter.] Mr. MAXEY. Mr. President, I gave the bill to count the electoral vote as much care and deliberation conscientiously as I was ca pable of. I regarded the bill as the most im portant that has been before the Senate dur ing the present session. I think so yet. The bill as originally presented, and as it passed the Senate, does contain a defect which was made manifest to everybody during the prog ress of the discussion. If the two certificates are presented and the two Houses disagree, one voting for one certificate and the other voting for the other certificate, both coming from the same State, then according to the bil] as it passed the vote of that State is lost. Va rious propositions were presented to cure that defect. I had the honor of presenting one myself. The Senator from Indiana states that no proposition could come up that would cov er every possible contingency. With all def erence to the opinion of the distinguished Senator, it does seem to me that the amend ment which I presented covered any sort of contingency. That was that where the two Houses disagreed, one voting for one certifi cate and the other for the other, the Vice- President should give the casting vote. A great many of my friends were so very fear ful of the power of the Vice-President that they placed themselves in this condition, in my humble judgment, that by refusing to give him a right to the casting vote in that contin gency (the only case in which he would have the power to cast a vote at all), the result is that he counts the entire vote. That is my judgment about it ; so that they practically, as the Bible says, " strain at a gnat and swal low a camel." That is in my judgment the result of voting down that amendment. But I was not wedded to that amendment, as I stated. I wanted some amendment adopted that would cure that defect. I voted against the bill as it passed conscientiously, because I then believed, and now believe, that the bill as it passed is, though not designedly, an invi tation to fraud ; for if an election for Presi dent is coming to a close vote, and there is the slightest excuse for a State to send up two cer tificates, that State will send up two certifi cates and we have a case directly in point where that might be done and the vote thus COUNTING THE ELECTORAL VOTES. 659 sent up, if one certificate only were to come up, would turn the scale and elect a President. Then the result of sending up two certificates from that State will be that both will be ruled out, one House Voting one way, and the other House the other way ; and thus it would hap pen, under the bill as passed, that the voice of ;he people would not be heard in electing their President. For that reason I voted against ;he bill. It was not with me a party question. As I stated in the argument when that ques tion was here before, it was a great constitut ional question, rising high above and beyond all party considerations ; and I should regard myself unworthy of a position on this floor if were to permit party to control my vote in a matter where the great rights of the people vere concerned in the selection of a President f the United States. So I can say for myself at least that I did all that my poor judgment ould do to relieve the difficulty. I presented an amendment which I then thought would elieve that difficulty. The wisdom of the Senate saw proper to vote down that arnend- nant, and the bill passed without any amend ment. The bill contains a defect which, in ny judgment, is an invitation to fraud unwit- ingly embodied in the bill. So believing I oted against it. Mr. MSRRIMO^ Mr. President, I felt a ery serious interest in the bill and gave it the nost serious attention when it was before the ienate. I did not regard it from a party tand-point at all. The idea of party never ntered into my consideration of it for one noment. My vote went upon the grounds hat the Constitution charges Congress with he duty of counting the vote. I believe that Jongress is as much charged by the Constitu- ion with counting the electoral vote for Presi- .ent and Vice-President as it is charged to >ass a revenue law or any other law ; and, so elieving, I was logically constrained to vote gainst every proposition which provided an mpire in the case of any difference between he two Houses. I cannot conceive a case in ischarging the ordinary legislative duties of Congress, where the two Houses disagree bout the passage of a bill, where Congress vould have the power to provide an umpire to ecide what amendments should be adopted, nd what amendments should be rejected, or rhat action of any character should be taken pon a bill passing between the two Houses. o more can I conceive of any possibility that Congress, in counting the electoral vote, shall rovide that the President of the Senate, or he Chief Justice, or the Supreme Court, or ny other tribunal shall decide whether the ote of a State should be accepted or rejected n that count. It is a duty that devolves upon Congress exclusively, after the President of the Senate, being the medium by which Congress omes in contact with the States, shall have pened the returns and laid them before it. It annot escape the duty. I admit that I have some embarrassment about the question when two electoral returns shall be made from a State ; but I cannot see that if the matter is permitted to remain as it is now we shall be free from that embarrassment, and it did seem to me that under the bill which was passed the possibilities of such a difficulty were so remote that we need not trouble ourselves a great deal about it. I had the honor to offer an amendment which I thought would relieve the difficulty. The judgment of the Senate, however, was against it. Still I was willing, though not entirely satisfied, to accept the bill as it passed. After having given the matter considerable deliberation since the bill passed, I have not come to any conclusion variant from that which I sanctioned by my vote. I should be willing to stand by that vote to-day, unless I thought the bill could be amended in such a way as to obviate the difficulty that we have all talked about so much. I Jaear.no plan suggested by which that difficulty can be ob viated. I do not see from anything that has fallen from Senators in this debate- that we shall be in any other condition after the bill is reconsidered, if it shall be, than w^ were at the time the bill passed. If we had to vote again, I should give the same vote under simi lar circumstances. I am very sure I never could vote for an amendment which would provide an umpire. If, however, it is thought that by a reconsideration of the bill new light can be thrown upon the subject, and that we can come to a more definite and satisfactory conclusion, I have no objection to that, and without desiring to change my vote on the bill as it stands, I shall vote for the motion of the Senator from Ohio to reconsider, hoping that some amendment in the line of the view that Congress, and Congress alone, shall count the vote, may be adopted which will make it more atisfactory. Upon that ground alone I vote to reconsider. Mr. BUR^SIDE. Mr. President, the more I hear this discussion the more I am convinced that the amendment which I submitted to the committee s bill suggests the proper course to be pursued in order to meet the case in all its points. It is clear to me that Congress has a right to delegate to a court the power to de- ida as to the electoral returns where there is a dispute in regard to them. In the famous Rhode Island case to which I referred in the former debate it was decided by the Supreme. Court of the United States that Congress had the right to refer a question of equal impor tance to a court. What was that case ? The fourth section of the fourth article of the Con stitution of the United States provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion, etc. The court goes on to discuss the question, and says finally : It rested with Congress, too, to determine upon the means proper to be adopted to fulfill this guar antee. 660 PROPOSED LEGISLATION" AS TO THE MODE OF So here it is the plain duty of Congress to adopt measures which shall ascertain the will of the electors. The court goes on to say : They might, if they had deemed it most advisa ble to do so, have placed it in the power of a court to decide when the contingency had happened which required the Federal Government to interfere. So spoke the Supreme Court in the great case of Luther vs. Borden, uttering its voice through Chief Justice Taney in a decision which is still regarded as settled and fixed law. Now I say that the duty devolves upon Con gress to see that the electoral returns are properly counted and that each State shall have its representation in the electoral college ; and if any contingency arises which makes it advisable for Congress to impose the duty upon any court of this country to decide for them upon certain points involved in these returns, they clearly have the right to require that court to perform that duty. It seems to me that that comes precisely within the rule prescribed by the Supreme Court in the decis ion from which I have read. If, as the court there hold, Congress had a right to determine when it was necessary for the Government to interfere in a State under the guarantee clause of the Constitution ; if, in other words, Con gress had a right to delegate to a court of the United States the power to decide when the occasion for that interposition arose, then Congress certainly have the right to delegate to a court of the United States the power to decide as to which is the lawful return of the votes of electors from any State where two sets of returns from any one State are pre sented. It seems to nie that the decision to which I have referred is one of great importance. The case there spoken of probably is not of equal importance to the one under discussion, but there certainly can be no reason why all good citizens of the United States w ould not be satisfied with the decision of the Supreme Court in a case like this. As I said the other day, we have been in the habit of abiding by its decisions. Whether they accord with, our own views upon the matters at issue we all acquiesce in their decisions. No safer or more impartial arbitrament can be selected, in my opinion. Mr. MORTON. Mr. President, my friend from Ehode Island, before the conclusion of the former debate, had his attention called to this decision. The remark that he quotes as having been made by the court in that case was clearly outside of the case; but it does not refer to the question of the power of Con gress to establish an umpire to decide the thing other than Congress itself. It refers to the question of fact when the contingency of fact had arisen of domestic violence, and as to that the court say incidentally, in passing : They Congress might, if they had deemed it most advisable to do BO, have placed it in the power of a court to decide when the contingency had happened which required the Federal Government to interfere. But Congress thought otherwise, and no doubt wisely, and, by the act of February 28, 1795, provided that " in case of an insurrection in any State against the govern ment thereof it shall be lawful for the President of the United States, on application of the Legislature of such State or of the Executive (when the Legisla ture cannot be convened), to call forth such number of the militia of any other State or States as may be applied for, as he may judge sufficient to suppress such insurrection." That was a case where the Constitution had not located the power of determining when the contingency of fact had happened ; but Congress did vest the President with that power by the act of lT95- 96. I think the language of the court falls short of the prin ciple my friend refers to, and it is mere obiter any how ; it is not in the case at all. Mr. BURNSIDE. I am quite aware that the court made no decision on this question, but simply said that Congress might, if it chose, delegate this power. It did not delegate the power, I know, as the Senator from Indiana says ; but the court said it might have dele gated the power. I consider that a case of the kind now under consideration, of two returns from a State, is a question of fact just as much as the question to which the Senator from Indiana refers, and which the Supreme Court said Congress might delegate the determina tion of to a court. The PRESIDING OFFICER (Mr. WAL LACE in the chair). The question before the Senate is, Shall the vote by which this bill passed be reconsidered ? Mr. STEVENSON. I ask for the yeas and nays on the motion to reconsider. The yeas and nays were ordered ; and being taken, resulted yeas 31, nays 23 ; as follows : YEAS Messrs. Bayard, Bogy, Caperton, Cock- rell, Conkling, Cooper, Davis, Dawes, Dennis, 1 Eaton, Edmunds, English, Goldthwaite, Gordon, Hamilton, Howe, Kelly, Kernan, Key, McCreery, Maxey, Merrimon, Norwood, Paddock, Eandolph, Bansom, Saulsbury, Stevenson, Thurman, Wall and Withers 31. NAYS Messrs. Anthony, Booth, Boutwell, Burn- side, Cameron of Pennsylvania, Cameron of Wis consin. Clayton, Cragin, Ferry. Frelinghuysen,Ham- lin, Harvey, Ingalls, Jones of Nevada, Logan, Me Millan, Mo rrill of Maine, Morrill of Vermont, Moi ton, Oglesby, Robertson, Sargent, and Windom j 23. ABSENT Messrs. Alcorn, Allison, Bruce, Chris- tiancy, Conover, Dorsey, Hitchcock, Johnston, Jonea of Florida, McDonald, Mitchell, Patterson, Sharon. Sherman, Spencer, Wadleigh, West, Whyte, andj Wright 19. The PRESIDING OFFICER. The motion] to reconsider is agreed to. The question re-J curs on the passage of the bill. Mr. MORTON. I give notice that I wil call up the bill to-morrow. Mr. EDMUNDS. The bill is before the ate now. The motion should be to postpone : until to-morrow. Mr. MORTON. That is to be done by coi mon consent. COUNTING THE ELECTORAL VOTES. 661 The PRESIDING- OFFICER. That is the understanding of the Chair. Mr. SARGENT. I ask the consent of the Senate to take up House bill No. 1052, to cor- ect an error in the revised Statutes of t the United States, and for other purposes. Mr. THURMAN. Before the electoral hill passes over, I wish to suggest that it cannot )e amended without a further vote of recon sideration, which I suppose is a mere matter of form, and that is to reconsider the third reading. I make that motion. The PRESIDING- OFFICER. It is moved to reconsider the vote by which Senate bill $o. 1 was ordered to be engrossed for a third reading. The motion to reconsider was agreed to. The PRESIDING OFFICER. The bill will >e regarded as postponed until to-morrow by common consent. IN SENATE. Tuesday, August 1, 1876. ( " Congressional Kecord," page 5037.) Mr. THURMAN. It will be remembered that in the early part of the session a bill was reported by the Committee on Privileges and Elections respecting the counting of electoral votes for President and Vice-President, and after a long discussion was finally passed. I voted for it and moved to reconsider the vote which it was passed, and that motion has never yet been taken up. I am now informed that if taken up it will lead to a discussion, and that at this late period of the session would be fatal to any measure whatsoever on ;his subject. I therefore suppose that the only way in which the two Houses can come to an arrangement is for the bill to go to the House and let the House propose such amendments as it may in its wisdom deem to be proper. I therefore ask leave to withdraw the motion to reconsider. The PRESIDENT pro tempore. The vote on the passage of the bill (S. No. 1) to provide Eor and regulate the counting of votes for President and Vice-President, and the deci sion of questions arising thereon, was recon sidered, as the record shows ; and the question is on ordering the bill to be engrossed for a third reading. Mr. THURMAN. I do not think any vote was taken on the reconsideration. Mr. EDMUNDS. I move that the Senate bake a recess for fifteen minutes and we can look into that. Mr. CONKLING. Was the vote recon sidered ? The PRESIDENT pro tempore. It is so on the record. Mr. CONKLING. Therefore another vote is necessary to pass the bill. The PRESIDENT pro tempore. The ques tion is on the third reading of the bill. The Senator from Vermont moves to take a recess for fifteen minutes. The motion was agreed to; and (at two o clock and twenty-five minutes p. M.) the Sen ate took a recess for fifteen minutes. The PRESIDENT pro tempore (at two o clock and forty minutes P. M.). The recess having expired, the Senate resumes its session. IN SENATE. Saturday, August 5, 1870. (" Congressional Eecord, i pp. 5193-5194.) Mr. THURMAN. I ask the unanimous con sent of the Senate to take up the bill reported by the Committee on Privileges and Elections in regard to counting the electoral votes. I made a motion to reconsider the vote by which the bill was passed, and I thought that my mo tion was still pending. The other day, when it was called up, I was told that the reconsid eration had been ordered. I now propose that we take up the bill and act upon it without any debate, in order that it may go to the House of Representatives to see whether an agreement can be arrived at. I therefore ask unanimous consent to proceed to the consideration of Sen ate bill No. 1. Mr. SARGENT. I suppose it will take but a moment. Mr. WRIGHT. I shall not interpose any objection if my friend from Ohio Mr. THURMAN. I propose that we just vote upon the bill at once. Mr. WRIGHT. Then I shall not object. By unanimous consent, the Senate resumed the consideration of the bill (S. No. 1) to pro vide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon. The bill was ordered to be engrossed for a third reading, and was read the third time. The PRESIDENT pro tempore. The ques tion is on the passage of the bill. Mr. EDMUNDS. On that I ask for the yeas and nays. Mr. THURMAN. The yeas and nays were ordered before, and were taken on the passage of the bill. Mr. EDMUNDS. I know. Mr. THURMAN. If we order the yeas and nays it may give rise to debate. Mr. EDMUNDS. It need not give rise to any debate, but I do not want the bill to pass with out my name appearing voting for or against it on the record, as it is a bill of great impor tance, and otherwise might appear as if passed by unanimous consent. I therefore, as every body agreed it ought to be acted upon by yeas and nays before, ask for the yeas and nays again ; it will not take any time. I do not propose to debate it at all. The yeas and nays were ordered. Mr. CHRISTIANCY. I ask that the bill be read. 662 PROPOSED LEGISLATION AS TO THE MODE OF The Chief Clerk proceeded to read the bill. Mr. MERRIMON. Is the Clerk reading the bill as amended ? The PRESIDENT^ tempore. One amend ment was made to it. The Clerk is reading it as it stands on its passage as amended. The Chief Clerk resumed and concluded the reading of the bill, as follows : That the Senate and House of Eepresentatives shall assemble in the Hall of the House of Repres.en- tatives, at the hour of one o clock p. m., on the last Wednesday in January next succeeding the meet ing of the electors of President and Vice-President of the United States, and the President of the Senate shall be their presiding officer; two tellers shall "be appointed on the part of the Senate and two on the. part of the House of Eepresentatives, to whom shall he handed as they are opened by the President of the Senate the certificates of the electoral votes, which certificates shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, hav ing read the same in the prcs ence and hearing of the two Houses then assembled, shall make a list of the votes as they shall appear from the said certificates ; and the votes having been c ounted, the result of the same shall be delivered to the President of the Sen ate, who shall thereupon announce the state of the vote and the names of the persons, if any, elected, which announcement shall be deemed a sufficient dec laration of the persons elected President and Vice- President of the United States and, together with a list of the votes, be entered on the Journals of the two Houses. If upon the reading of any such cer tificate by the tellers any question shall arise in re gard to counting the votes therein certified, the same having been stated by the presiding officer, the Sen ate shall thereupon withdraw and said question shall be submitted to the body for its decision ; and the Speaker of the House of Representatives shall in like manner submit said question to the House of Eepre sentatives for its decision; and no Electoral vote or votes from any State to the counting of which objec tions have been made shall be rejected except by the affirmative vote of the two Houses. When the two Houses have voted, they shall immediately reas semble, and the presiding officer shall then announce the decision of the question submitted. SEC. 2. That if more than one return shall be re ceived by the President of the Senate from a State, purporting to be the certificates of electoral votes given at the last preceding election for President and Vice-President in such State, all such returns shall be opened by him in the presence of the two Houses when assembled to count the votes ; and that return and that only from such State shall be counted which the two Houses acting separately shall decide to be the true and valid return. > SEC. 3. That when the two Houses separate to de cide upon an objection that may have been made to the counting of any electoral vote or votes from any State, each Senator and Representative may speak to such objection or question ten minutes, and not oftener than once : Provided, That after such debate has lasted two hours it shall be the duty of each House to put the main question without further de bate. SEC. 4. At such joint meeting of the two Houses, seats shall be provided as follows : For the President of the Senate, the Speaker s chair; for the Speaker, immediately upon his left ; the Senators in the body of the Hall upon the right of the presiding officer : for the Eepresentatives, in the body of the Hall not provided for the Senators ; for the Tellers, Secretary of the Senate, and Clerk of the House of Representa tives, at the Clerk s desk ; for the other officers of the two Houses, in front of the Clerk s desk and upon each side of the Speaker s platform. Such joint meeting shall not be dissolved until the elec toral votes are all counted and the result declared ; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, in which case it shall be competent lor either Heuse, acting separately, in the manner hereinbefore pro vided, to direct a recess of such House not beyond the next day at the hour of ten o clock in the fore noon. Mr. CHRISTIANCY. I wish to be heard one moment in order to make an inquiry of the Senator from Ohio. I notice that this bill, which it is proposed to make an act of Con gress, provides for the length of time that any Senator or Representative may speak when the Senate is acting separately and the House is acting separately. I wish to know if that is not trenching upon the constitutional power of each House to make its own rules to reg ulate its own proceedings. Mr. THURMAN. The joint rule heretofore adopted prohibited all debate, and it seems to have been held good. No question was ever made in respect of that rule. If we have the right to legislate upon this subject, as I think we have and this whole bill goes upon that foundation then I think we have a right to regulate the mode of procedure so that it shall not be defeated, as it otherwise might be, by the consumption of time in speaking. Mr. EDMUNDS. Then you might pass a law as to all bills. Mr. HAMLLN\ Let me ask the Senator from Ohio if this is not the precise condition of things : The Senate makes its own rule ; the House make their own rules; when the two bodies are together it is neither the House nor the Senate, but a convention, and this will be a convention agreed upon by both branches. Mr. EDMUXDS. But the bill refers to their action when they are separate. Your answer would be perfect when they acted together. Mr. FRELINGHUYSEN. I suppose the ob ject of the vote is to have this bill referred to a committee of conference. I would suggest to the Senator from Ohio whether it would not be a better plan to reconsider the vote upon the third reading and to make the bill here as we think it ought to be. Mr. THURMAK I do not object to that. Mr. FRELINGHUYSEN. It seems to me, as I recollect the bill, there is an omission in it. There is no provision made in case two sets of returns come up from the same State. That is left open. There was an amendment to meet that difficulty which I offered myself, which I really think is the best one, not be cause I offered it, but after hearing the whole discussion. I had offered another which I withdrew and presented this one, which was to provide that in that event the question shall be determined by the President of the Senate, the Speaker of the House, and the Chief Jus tice of the Supreme Court of the United States. I am perfectly satisfied in my own mind that we cannot meet this exigency better than by adopting that amendment. There is, COUNTING THE ELECTORAL VOTES. 663 f think, reported to the Senate a constitutional amendment covering this case; hut that of course does not apply to the present year. I aui not the manager of the bill and do not propose to make any motion, except merely to suggest that we should reconsider the third reading and adopt some amendment providing for that omission in the present bill. Mr. THURMAN. I have not the least ob jection to that course; but I suggested that we take the vote on the bill in deference to the opinion of the Senator from Indiana [Mr. MORTOX], the chairman of the committee, who reported the bill, and who thought it had bet ter go to the House and let the House amend it, and then the Senate could agree or disagree to their amendment, and in case of disagree ment have a committee of conference ; but for iny own part I am perfectly indifferent which course may be taken. I think something ought to be don^, and as time is so short, I am in favor of that course which is most likely to effect the passage of an act on this subject. I confess that I am a little apprehensive of the re sult if we merely pass this bill as it is, with the objection which prevails on all this side of the Chamber, and which is very weighty with me, which I had great difficulty in overcoming so far as to vote for the bill, that there is no pro vision made in case of two returns from a State, which was the fatal point in the bill, and which was the cause of nearly every vote on this side of the Chamber being cast against it. Should the bill go in that way to the House of Representatives, I am very apprehensive that nothing will be done, and I would be per fectly willing that the vote should be taken on any one of the propositions that have been made to amend the bill to supply the deficiency of the bill in that respect. I will go further and say that if I can get nothing else I will vote for the amendment, if I understand it corre ctly, proposed by the Senator from New Jersey. There may be some doubt as to whether that is strictly within the spirit of the Constitution ; but I am inclined to think that if we have the power to legislate upon the subject at all we have the power to adopt that amendment, and that is the better impression, although I confess that I am not as clear on it as I should like to be. But rather than let matters stand as they are I would vote for that amendment in the hope that the House might propose even something better, or if they did not, that it might result in a conference com mittee that would agree upon something better. If the Senator from New Jersey sees fit to move to reconsider the third reading of the bill I shall make no objection. Mr. FBELDTGHUtBEN. I will test the view of the Senate by making that motion. The PRESIDENT pro tempore. The Sena tor from New Jersey moves to reconsider the vote by which the bill was ordered to be en grossed for a third reading. The motion was agreed to. The PRESIDENT pro tempore. The bill ia now open to amendment. Mr. FRELINGHUYSEN. I would suggest to the Senator from Ohio that the bill be passed over for the present, and taken up after I can prepare the amendment. Mr. THURMAN. I have no objection to that. Mr. ANTHONY. I hope it will be with the general understanding that when the amend ment is prepared the bill shall be taken up. Mr. THURMAN. I hope so. The PRESIDENT^ pro tempore. Is there objection? The Chair hears none. Mr. EDMUNDS. That general understand ing must take its chances with everything else. Mr. HOWE. It is -to be taken up at some time when nothing else is pending, I sup pose. The PRESIDENT pro tempore. The Sena tor from Rhode Island asked unanimous con sent that it be taken up as soon as the amend ment was prepared. The Chair heard no ob jection to that suggestion, and so stated. Mr. EDMUNDS. I object, not that I shall make the slightest opposition, but in the pres ent stage of the session we cannot foresee what at any particular moment may be the pending urgency. Mr. ANTHONY. Then let the bill be laid aside informally, subject to be called up at any time. Mr. MORTON. Is that the understanding of the Senate ? The PRESIDENT pro tempore. Is there objection to the suggestion now made by the Senator from Rhode Island ? The Chair hears none. Mr. MORTON. If that is the understand ing, then I ask the Senate to take up the resolution I offered several days ago in regard to printing the President s message and ac companying documents and which I gave no tice yesterday I should ask the Senate to con sider this morning. I move now to proceed to the consideration of that resolution. The PRESIDENT pro tempore. There is morning business. The Senator from Iowa is on the floor. Mr: WRIGHT. I rise to call attention to a little bill before the Senator proceeds with his resolution. Mr. MORTON. If the resolution is taken up I will give way. Mr. EDMUNDS. All of us have a little bill apiece, and it will take all the time. Mr. MORTON. My friend from Vermont suggests that we all have a little bill. I have one. Mr. EDMUNDS. I have one about those poor sailors in that monitor that are going to have their bones blown in the midst of the sea that I want to have the Senate act upon speed ily. Mr. MORTON. I hope my friend from 664 PROPOSED LEGISLATION AS TO THE MODE OF COUNTING THE ELECTORAL VOTES. Iowa will allow rae to have the resolution taken up. Mr. WRIGHT. I have no wish to yield, but if there is no objection to taking it up I will yield for that purpose. Mr. THURMA1T. I wish to say to the Senator from Indiana that I feel bound to op pose taking this matter up. It will be debated. Mr. MORTON. I propose to submit it to a vote of the Senate. APPENDIX, SPEECH OF HONORABLE T. F. BAYARD, OP DELAWARE. IN UNITED STATES SENATE, February 25, 1875. Mr. BAYARD said : Mr. PRESIDENT : From the foundation of the Government up to the year 1865 the American people had managed to conduct the count of the electoral votes for President and Vice- President of the United States without any other aid than the constitutional provision and a single statute that had been passed during the first presidential term of George Washing ton.* In 1792, on the 1st of March, an act was passed " relative to the election of a Pres ident and Vice- President of the United States, and declaring the officer who shall act as Pres ident in case of vacancies in the office both of President and Vice-President." One thing is observable in this act of Congress, as in all acts of that period of our country s history, that great care was taken to assume no power not distinctly granted or necessarily implied by the terms of the Federal Constitution. Therefore in this law (which is to be found on pages 305, 306, 307, and 308 of the last compilation of the Constitution, . Rules, and Manual provided by the Senate) there will be found no attempt to transcend the grant of power of the Constitution as to the reception * The Congress of the Confederation, on the 23th of Sep tember, 17S7. directed that the Constitution, with certain resolutions adopted by the Convention on the 17th of Sep tember, 1787, bo transmitted to the Legislatures of the sev eral States, to be submitted to conventions of the people thereof. One of those resolutions is in the following words : Resolved, That it is the opinion of this Convention, that as soon as the conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a day on which electors should be appointed by the States which shall have ratified the same, and a day on which the electors should assemble to vote for the President, and the time and place for commencing proceedings under this Con stitution. That, after such publication, the electors should bo appointed, and the Senators and Representatives elected. That the electors should meet on the day fixed for the election of the President, and should transmit their votes, certified, signed, sealed, and directed, as the Constitution requires, to the Secretary of the United States in Congress assembled ; that the Senators and Representatives should convene at the time and place assigned ; that the Senators should appoint a president of the Senate for the sole purpose of receiving, opening, and counting, the votes for President ; and that after he shall be chosen, the Congress, together with the Presi dent, should, without delay, proceed to execute this Consti tution. and count of the electoral votes. It provided the method of certification of the results ; and it will be observed that not only was the man ner of the election of the electoral college con fided to each State and to the discretion of the Legislature of each State, but that the certifi cation, the authentication of the electoral vote, was confided wholly and unreservedly by the Constitution to the States. And nowhere is power given to either House of Congress to pass upon the election, either the manner or the fact, of electors for President and Vice- President ; and if the Congress of the United States, either one or both Houses, shall as sume, under the guise or pretext of telling or counting a vote, to decide the fact of the elec tion of electors who are to form the college by whom the President and Vice-President are to be chosen, then they will have taken upon themselves an authority for which I, for one, can find no warrant in this charter of limited powers. This was the belief, and the action of the country has been in accordance with this belief from its foundation until February 6, 1865 ; and then, for the first time, did the Congress of the United States assume the au thority by the vote of either House to put a veto upon the count of a State s vote. That such a rule was without constitutional war rant, I cannot doubt; and I do not think I am going too far when I say that the unconstitu tionally of that rule is generally admitted. I find in the records of the debates of Con gress in February, 1865, nothing to instruct me or any other student of this country s his tory as to the reasons upon which Congress undertook to frame the twenty-second joint rule. There were no debates that I can dis cover on the subject. I presume the matter was perhaps, as now, arranged by party caucus and silently passed, and reason was neither given nor sought in a Congress composed al most entirely of one political party. Nor do I mean to say that the rule in 1865 was founded solely upon party considerations. On the con trary, there was an opposition so feeble as scarcely to be called one at that time, and from that time to this the rule has been deemed 666 APPENDIX. good enougli to be let alone. For ten years the rule lias continued, and two presidential elections have proceeded under it, indeed three, for the votes of the election for Mr. Lincoln s second term and of the present President s two terms were counted under it. Now for some reason it is sought to he changed. The mind of the honorable Senator who has had this matter in charge has undergone some fluctuations on this subject. At first he introduced a resolu tion for the absolute repeal of the twenty- second joint rule. After the lapse of a week he came into the Senate, and, calling up the subject, moved to amend his own proposition by simply changing that part of the rule which gave to either House the right to reject the electoral votes of a State into a requirement that both Houses must join in the rejection or the vote should be counted. Then we were dealing with the rules of the two Houses. Upon still further reflection the Senator, by authority of his committee, has brought for ward a new proposition in the form of a bill which is to accomplish its object by the act of the two Houses of Congress receiving the the President s assent, and can then only be repealed by their joint action. Now, sir, it seems to me that the proper method of dealing with this subject should be by joint rule and not by a statute. If any ac tion be necessary, as my friend from Connec ticut [Mr. EATOX] reminds me, certainly of the two modes a joint rule of both Houses is pre ferable. It has been the one heretofore pur sued, and I know of no reason why the form of a statute should now be preferred to what heretofore has been relied upon. And here, Mr. President, I cannot avoid saying that this subject ought to be entirely separate from the taint of party politics. The passion of party can but obscure and render it dangerous. No man, no party, can be safe in legislating upon the basis of party passion. I do not say that this measure is of that charac ter, but I will say that I am surprised that it should be regarded as essential to be passed at the present session when, as we all know, an opportunity is about to be afforded within one week from the present time of having this important subject passed upon by two Houses of Congress differing in their political senti ments, and therefore more fit to agree upon a measure which shall be of party advantage to neither. Sir, this subject should be raised high above and beyond party ; and if it be not, then evil will come from it, and perhaps it may return to plague the inventors and not those for whose defeat it was designed. The subject is one of great difficulty. Contingencies have arisen, may again arise, nay their presence is contemplated by this very bill and provision is sought to be made for them, for which the Constitution of the United States has provided no apparent remedy. I can well imagine that in a government depending so entirely upon the active cooperation of all its parts, a government so thoroughly one of consent, and which relied for its real strength and true power upon the voluntary action of its citi zens, and to which coercion in all forms was so necessarily fatal, its founders could not have imagined that in the high council of an elec toral college and the counting of their votes for the Chief Magistracy of the country the common passions that attend contested elec tions for minor offices would have had weight or force. I do not know that they based their action in the articles of the Constitution which relate to this subject upon such an idea; but it is certain they made no provision for facts which we have seen arising unfortunately in our own day, and which this bill contemplates in the future and seeks to provide for. The clause of the Constitution under which the count of the electoral vote is to be made is in the twelfth article of the amendments. It pre scribes that The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice- President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each This is the power of the electors in the re spective States where they are to make their lists of the number of votes for each which lists they shall sign and certify, and transmit sealed to the seat of Government- of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. There is nothing in this language that au thorizes either House of Congress, or both Houses of Congress, to interfere with the de cision which has been made by the electors themselves and certified by them and sent to the President of the Senate. There is no pre text that for any cause whatever Congress has any power, or all the other departments of the Government have any power, to refuse to re ceive and count the result of the action of the voters in the States in that election as certified by the electors whom they have chosen. That questions may arise whether that choice was made, that questions may arise whether that election was properly held, or whether it was a free and fair election, is undoubtedly true ; but there is no machinery provided for con test, and no contest seems to have been anti cipated on this subject. It is casus omissus, in tentionally or otherwise, upon the part of those who framed this Government, and we must take it as it is, and if there be necessity for its amendment, for its supplement, that must be the action of the American people in accord ance with the Constitution itself; and I am free to say that some amendment on this sub ject should be had. But, because there is no APPENDIX. 667 machinery provided, no tribunal appointed by which this most important issue and contest "may be decided as to who was chosen an elec tor for President and Yice-President in any State, that certainly .does not justify Congress in assuming either by direct formal claim of the power in the enactment of a law, or by adopting rules which shall give them such power as will be equivalent to the control of the subject that is to say, a power of veto, which, under the present twenty-second joint rule, is given to either House, or under the present bill is to be assumed by both Houses acting together. I have been able to find, and I believe there exists, no such power either for one House or for both. But there was provided, in case of the failure from any cause to ascertain the persons elected from a canvass of the electoral votes as so cer tified and transmitted to the President of the Senate, a provision that "immediately" to use the language of the Constitution "the House of Representatives shall choose imme diately, by ballot, the President." When, there fore, you come to construe a constitution which. in the same connection, in the. same con nected phrases, provided for the subject of counting the votes and election of a President, you are bound to construe it so that a power that is not given shall not be assumed, and if for any cause there be default in the election in one mode pointed out, then you are com pelled to resort to the other mode, which is plainly here expressed as supplementary in case of failure of the first. I will illustrate that by a reference to the second section of this bill, and I am sorry the honorable Senator from Ohio [Mr. THUEMAX] is not present, because he has intimated to us his approval of this section, which I cannot as sent to, which provides that if more than one return shall be received by the President of the Senate from a State "purporting to be the certificates of electoral votes given at the last preceding election for President and Vice- President in such State, all such returns shall be opened by him in the presence of the two Houses when assembled to count the votes ; and that return from the said State shall be counted which the two Houses, acting sepa rately, shall decide to be the true and valid return." And this section you read in connection with section 1, which provides that unless the two Houses shall concur in an affirmative vote of rejection, all the electoral votes shall be counted. Fow, sir, what is the result of this ? Let us suppose that one hundred and fifty elec toral votes come from certain States alleged to be regular, but more than one return is re ceived from this same region of country, and one hundred and fifty more electoral votes come up in the same form, the same to the outward eye, certified in the same manner, covered by the same character of envelope and seal, and they are presented. Under this section and the first section all of these votes must be re ceived and counted unless the two Houses shall join in an affirmative vote to reject them. What is the result of that ? Say, for illustra tion, that an electoral college consists of three hundred votes ; one hundred and fifty votes additional are presented in the manner I have described. They must be accepted under this bill unless the united affirmative vote of tho two Houses rejects them. Supposing that af- firmative vote to be lacking in one House, they must be counted, and you have then an electoral college of four hundred and fifty votes instead of three hundred. What does the Constitution say ? The man who has received a majority of the whole number of electors appointed, that is to say, the man who has received one hundred and fifty votes out of the three hundred recognized by our present count of electoral votes as the extent of the electoral college, would be entitled to the office ; but you have increased that three hundred to four hundred and fifty by admitting one hun dred and fifty other double returns from other districts of country, and then two hundred and twenty-six votes will be required instead of one hundred and fifty-one, so that the pro vision of the Constitution which entitled the man who has received but a bare majority of the whole number of electors appointed is defeated by this section, that swells the electoral college to a vote that compels him to receive two hundred and twenty-six instead of one hundred and fifty-one. Mr. President, there -may be a flaw in this reasoning; it may be upon examination not only open to criticism but it may be entirely destroyed; but from the examination which the pressing duties in this body have thrown upon me of late have permitted me to give this subject, it does seem to me that by this bill you have virtually required a superior number of votes to elect a man which the Constitution did not contemplate, but which allowed a certain majority to authorize him to take his seat. Perhaps, as I say, upon exami nation my proposition may not be found to hold water, and yet at the same time I submit this subject so important to the criticism of other gentlemen in this body. If the demonstration can be made differently from what I propose to make it, I presume we shall hear it, because I cannot suppose that any member of the body would vote for a measure that does so materi ally change the rights of a candidate under the Constitution of the United States to take his .seat as Chief Magistrate of the country when the provisions of that instrument have been complied with. If the effect of this bill is to require a larger number of votes for his majority than than he would have if the elec toral college was lawfully filled and only truly filled, then it seems to me this bill would be the most flagrant violation of the Constitution of the United States. But, Mr. President, let us look again at the 668 APPENDIX. effect of it. We had from the Senator from Rhode Island [Mr. ANTHONY] the other day a very thoughtful disquisition on this subject. Questions were then asked in the Senate and were not answered as to what should he done where a double vote was returned from a State and where two sets of electors each present their suffrages for different candidates from the same State at the same election. No one gave the answer, because the Constitution had pro vided no means whereby such a contest could be decided. It will be seen that this bill in its second section proposes to meet this very dan gerous and difficult question of a contest be tween two sets of electoral votes from the same State at the same presidential election. It declares that all of these returns, the false as well as the true, shall be opened, and I can con strue the language of the bill in no other way than that they shall be counted unless there is a concurrent affirmative vote of both Houses rejecting them. See then the result. There is here, if not the invitation, the opportunity giv en to raise a false claim in order to defeat a true election and in determining such a claim the false and the true shall stand upon the same level and be only defeated by the same means, and if you shall between two Houses of Con gress sufficiently inflame the passions of party the two Houses of Congress differing in party affiliations if you shall sufficiently inflame them to warp the judgments of men or to warp the conscience of men and to set party above country and duty, then the false vote will weigh equally with the true vote, and the State will be disfranchised in the result as plainly as though you gave the veto power to either House as now. If you count ten votes for the State ticket and ten votes against the State ticket, what is the result ? The one has neu tralized the other; the one has annihilated the other ; and the vote of the State might as well never have been cast at all. The election would then be an empty form. It is a new and a pat ent method for the disfranchisement of States where a contested election can be gotten up. That is the result of this second section as I read it. I shall be glad to be instructed to the contrary. I have read the section many times ; I have submitted it to the judgment of others whose opinions I value more highly than my own, and have found a concurrence in the be lief that this section is an opportunity, if not an invitation, for the annihilation of the electoral votes of States by having the false vote made equal. in weight with the true and forbidding the rejection of either except by the concur rent affirmative vote of both Houses of Con gress. Mr.- President, I will not anticipate evil re sults. I only say that we should give, so far as we can give, no opportunity for evil results ; that we should not give our consent to a law that would, if carried out, wrongfully make a presidential election a nullity. Mr. FRELINGHUYSEN, I simply wish to say to the Senator from Delaware that I under stand that this second section leaves {he rule as it now is. I understand that by this second section, if there are two sets of votes sent up from any State, then the concurrence of both Houses as to which shall be counted is re quired, and that is the rule at the present time. Mr. BAYARD. If that be so, then an amendment which I have had drafted will not be objected to, to insert at the end of the second section : And in such case the validity of any return shall be agreed to by both Houses, or the same shall not be counted. Mr. FRELmGHUYSEK I had prepared an amendment, which I was going to submit to the Senator from Indiana, to the same effect. Mr. BAYARD. The honorable Senator from Ohio [Mr. THTJKMAN] remarks to me sotto wee that that is Avhat the bill means now. I know that I had not the benefit of his audi ence when this question was being discussed, and I do not propose to repeat what I have said on the subject; but I cannot conceive that the bill now means that. -On the con trary, I believe the bill as it stands now, and if it passes as it stands now, will work the re sult that I have stated, and I am not alone in this view. Wherever a contest can be gotten up, and wherever public opinion is sufficiently excited, wherever the tone of political moral ity is low enough, there the contest will be raised and then the votes coming here cer tified in form must be counted under this sec tion, as I conceive, unless the affirmative vote of both Houses shall reject them. Mr. President, I do not think this second section meets the difficulty. It does not fill the want which we all recognize exists in the Con stitution on this important subject. The Houses shall assemble ; the Vice-President shall open the certificates and a count shall follow ; it is not so important by whom that count shall be made, because being made in the presence of the Houses they are witnesses to a count, which means a valid, a real, a fair, an honest count ; and when the time shall come that a dishonest count of such votes can be made in the pres ence of the two Houses, then your Government will be of so little value that the sooner it passes away and makes place for another, more hon est, more reliable, the better for the people of the country. But there may well be causes why you should doubt that the ticket which is repre sented by these electoral votes was not fairly entitled to be so represented as the sentiment of the people of the State from which it comes, and there should be, as there is not now, some tribunal in whom a deposit of power to deter mine such contests should be lodged. How shall that be reached? Only by an amend ment to the Constitution, and certainly by an amendment in which all men without respect APPENDIX. 669 to party results must join. As I have said before, in dealing with the subject within the powerg confided to us by the Constitution, there never was a better opportunity to place it upon a high non-partisan basis than by awaiting the incoming of a new Congress, in which the two Houses shall not be of the same political opinion. A rule framed between a Democratic House of Eepresentatives and a Republican Senate must of necessity be a non- partisan rule ; and why, when so golden and valuable an opportunity awaits close at hand for the purpose of accomplishing an amend ment so important and beneficial, should it not be embraced, and why should the regular or dinary business of this body be postponed now to accomplish in hot haste that which should be accomplished only by great care and con sideration? Why, Mr. President, it is well known that measures which challenge our closest care and criticism, measures which de mand from us laborious and assiduous atten tion for the next six days, fill the Calendar. The interests of the public without respect to individuals, the interests of individuals to whom our duties are plain and clear as public representatives, ought to require from us all of the attention, all of the care, all of the labor that our frames can stand between now and the termination of the present session of Con gress. Why is it then that measures like this, which need calm counsel, which need the ab straction of all partisan feeling from the mind of him who would properly comprehend and address himself to them why is it that they are pressed? I will admit that their impor tance cannot well be exaggerated ; but for that very reason is the argument strengthened that there should be time for deliberation and that the very circumstance should be allowed to take place which I say is so favorable to their proper decision. Mr. President, if the matter were left to me, as I am glad that it is not, for I would shun the responsibility, and I have great doubt of my capacity to deal with it properly if it were left to me to decide how this question of contest shall be settled, and where will you deposit the power that is to settle it, I would not be able to give an answer ; but I am per fectly clear that the second section of this bill is no answer to such a demand. It provides no, such remedy as solves this question. It satisfies no mind asking for decision in a case like this. As I said before, the measure is new ; it just saw light in this body less than three weeks ago ; and as I said to the Senate it was a remedy differing in method and sub stance from that which the same committee had reported as advisable in the month of January. If they change in so few days, if their opinion so vacillate, is it not of itself a reason why we should pause until opinion shall settle and crystallize itself by common agreement upon a proper and final method of dealing with this great and important subject? If gentlemen desire this subject to be consid ered by the light of partisan feeling, I will ad mit the present time is propitious. If they desire it settled upon what must necessarily be non-partisan feeling and the settlement is important to everybody in the country, before the evils shall crush upon us owing to this de fect in our law, it will be an evil common to all ; no one may hope to escape it more than any other; no party or no individual can assume exemption from suffering in such a case it is of the last importance that we should settle this properly. There is ample time for the settlement. No use for such a law can arise for- two years to come. It cannot be until the winter of 1876- 77, two years from the time at which I now speak, when the machinery which we seek to provide can be called into requisition. Why not then let this subject rest, so far as it has been mooted, aided by the reflections that have been suggested and expressed in regard to it ; why not let the subject rest until you can have assured that which is assured, a non-partisan decision in regard to a subject that should be, for the safety of this whole nation, lifted high above the atmosphere and the heat of party ? If Senators desire that, they can have an op portunity to secure it. If they desire, on the other hand, the decision made in haste, made upon the very heels of and in the midst of doubts expressed by the committee themselves who have reported this measure, then they will vote to press it to a present vote and decision, but it shall not be with my consent. I know not, Mr. President, whether the rea sons for pressing this measure at this time were avowed by the Senator in charge of it. I do not know whether I ought to ask whether, if the incoming House of Representatives were in accord with the opinions of the Republican party and not the Democratic party, the pre cious hours of this closing session would be in sisted upon being occupied with the considera tion of this subject ; and yet I believe that we should be relieved from it if such were the case. Sir, not in this measure only, but in others, do I certainly mourn that distrust which is thus expressed in the party to which I am attached. I mourn this distrust, not for the sake of the party against whom it is assumed, but I mourn it for the sake of the country. The late elections disclose the fact that there are more than one-half of the citizens of this country who do not approve of the policy of the Republican party. Mr. President, why this haste to take away from them their chance to express their opinion, to come into consultation upon subjects so per manent in their effects and in their nature as that which we are now discussing? Does this distrust felt in this country not, on the con trary, seem to intimate that in the opinion of one-half of the nation another half of the whole country contains a body of dissatisfied and un trustworthy citizens? I would beg the gentle- 670 APPENDIX. men who may feel such distrust not to express it. I ask that as much for their sakes as for our own. I beg them not to make so fatal an admission, so insulting and unkind to us and so dangerous to all. I would not have it believed abroad ; I would not have it believed at home. I would bear much to prevent such ideas being prevalent. I do beseech Senators not to give credence to them by their votes and by th.eir acts. It cannot be that this country contains any large body of citizens so lost to patriotism, so lost to the instincts of self-respect and of self-preservation, as to design anything which shall not inure to the credit and the happiness and the grandeur of our nation as a whole ; and yet I can read in the haste with which this bill has been prepared, in the haste with which it is pressed, excluding other matters which are essential in justice and in duty for us to attend to I cannot but read in that expression the fact that the latest expression of the coun try s sentiment is something inconsistent with the best interests and the safety of the country. Mr. President, such an admission ought not to be made even if fear or party suspicions should prompt it. As I said before, it is fatal to our common interest. It is unjust to those against whom it is directed. It is utterly inimical to the safety and the prosperity of the country. Therefore it is in this grave way I close the hasty remarks I have made upon this meas ure. I believe there is no warrant for the power which is sought to be assumed by Con gress over this matter. I believe the bill as it now stands will have the effect of changing that majority which the Constitution entitles a man who has received it to elect him to the Presidency, and of increasing it so that but for the provisions of this bill he might be the duly elected President of the United States, but under the provisions of this bill he will not be, because more votes are required by the bill than the Constitution requires him to have received in order to be declared elected. THE END. A TIMELY AND VALUABLE WORK FOR S7ATESMEX THE ANNUAL CYCLOPEDIA. A Record of the World s History and Progress, Year by Year. A Perpetually-Increasing Library. Scope and Purpose of the Work. Its Value to Different Classes. all the information regarding its history and prog ress, political, material, scientific, and literary, and present it in compact and lucid shape for the con venience of all who need or desire to keep informed on current events. To make this purpose more clear, it will be necessary to descend somewhat to particulars. The ANNUAL CYCLOPAEDIA has a per manent editor, whose business it is throughout the year to collect all the floating material from the thousand currents of publication, and bring it to gether, and then to employ skilled and experienced writers to go over it with care, and put the essen tial substance into articles for the book. These ar ticles are arranged in alphabetical order, and an in dex to each volume is added to facilitate the work of detailed reference. Perhaps the most conspicu ous feature of the work is that of political history. Not only the United States as a whole, but each State of the Union and every foreign nation, as well as many important cities, form each year the sub jects of separate articles. In these are given all the important occurrences of the year, the condition of finances and of commerce and industry, public enterprises and improvements, the movements and action of political parties, the results of elections and all governmental proceedings, the acts of legis lative bodies and other organizations of a public character, important judicial decisions, engineering and scientific projects and works of public improve ment, statistics and information derived from all classes of official reports, and, in short, everything pertaining to the industrial, social, military, politi cal, an.d religious condition of those States, counties, and cities. There are besides separate statistical and historical articles pertaining to special interests. A full and complete synopsis of the proceedings of Congress is given, occupying about one hundred pages of each volume. The finances of the United States are treated, with a full statement of tlie pub lic debt and the receipts and expenditures of the Treasury, and an account of all financial measures aad discussions. Important public documents, mes sages and proclamations, treaties, diplomatic corre spondence and papers pertaining to the domestic and foreign relations of this and other countries, are given in full. The condition of the army and navy and all their operations are clearly presented. There are also articles giving the latest information and statistics on agriculture, commerce, mining, and all mechanical and industrial affairs. The action of various religious organizations and the statistics of churches and denominations are impartially pre sented. Another feature of great interest and value is to be found in the department of science. All the discoveries and improvements made in theoretical and practical science, and all the achievements of study, invention, and enterprise, are duly recorded, saving the reader the trouble and difficulty of col lecting and studying the great mass of original ma terials. The results of astronomical observations, geographical expeditions and surveys, chemical ex periment, and other scientific investigations, are con cisely presented. In the same way the progress and achievements of the world in literature and art are duly noted, with the titles and characteristics of new works, American and foreign, which are wor thy of mention. The department of biography and FOR the information and guidance of all classes of citizens in their practical affairs, the most recent history is the most important and valuable. The record of the last year is that Avhich it most con cerns us to be familiar with, and that of the last ten or fifteen years is worth more than all that precedes it, so far as contributing to the understanding of current events and affording instruction for the du ties of the present are concerned. But the historian does not gather and study his materials and give us the results until a generation or more after the events occur of which he writes. Reports of the proceedings of public bodies are scattered in our libraries and throughout the public periodicals ; political events and public occurrences of general .mportance are registered in the files of newspapers and official documents ; scientific discoveries are made known from time to time in many different :>ooks, lectures, and reports, and all that goes to make up the materials of history and the record of progress is so diffused that it would require all one s time to keep thoroughly informed on the cur rent events of his own time, if no one made it his business to collect these materials and present their essence in compact form as soon as each year s rec ord is completed. The value of a work in which this is done is sufficiently obvious. WHAT THE ANNUAL CYCLOPEDIA AIMS TO BE. There have been year-books and annual registers Before now, but never until the ANNUAL CYCLOPE DIA was published by D. Appleton & Co., of New York, has the work which we have indicated been done with any pretense to regularity and complete ness. After the old edition of the AMERICAN CYCLO PEDIA was substantially completed, the need was recognized of a supplementary publication which should present each year all the information which its events furnished. This would naturally be done with much greater fullness than was attainable in a general reference-book covering all the past, be cause it was both practicable and desirable on account of the freshness of the events, the profusion of the material, and the interest and value of the most re cent history. It was for this reason that the AN NUAL CYCLOPEDIA was projected. Fifteen years tiave passed, and the AMERICAN CYCLOPEDIA has t>een thoroughly revised, incorporating into its six teen volumes all the additional information, in con- ;ise shape, which would serve the purposes of a book of general reference, but the fifteen volumes of the ANNUAL CYCLOPEDIA bridge the period be tween the two editions with a full record of each year s progress, such as it was wholly impracticable ;o condense into that work. In it are all the ma terials of the world s history for those years, or rather the history itself distilled from the vast mass of contemporaneous material. It is a work whose r alue is entirely independent of that of the general Cyclopaedia, as its scope and plan are quite different, and its publication is to continue year after year. There is, in fact, no probability that a record of such value and interest will ever be permitted to lapse. SCOPE AND CONTENTS OF THE WORK. necrology is quite full, mentioning the deaths oc curring during the year of persons of more than or dinary note, and furnishing sketches of those of spe cial prominence who have died, and of living per sons who have come into prominence. The purpose and constant effort is to cover the whole ground of current history in all its parts, and bring within the compass of a single volume of some eight hundred double-column octavo pages, all there is worth pre serving of each year s record. It is always, when it comes out, the history of the last year, which is so important to those who are making the history of this year, and the successive volumes contain that history of recent years which is of such transcend ent value at all times. It is a book to be read and studied from beginning to end, and then to be pre served for frequent and almost constant reference. CERTAIN FEATURES. As an instance of the history fully presented in these volumes, and nowhere else to be found in so convenient form, it may be stated that they contain a complete account of the civil war from its in ception in the secession of the Southern States, in cluding not only the movements and operations of the military and naval forces on both sides, but the action of the Government of the Southern Confed eracy and of the United States and of all the sepa rate States. The record is continued through the process of reconstruction and pacification. The financial policy and legislation of the nation through the same period are clearly traced. In the same way the important wars and political changes in Europe during the last fifteen years are recorded with completeness and accuracy, and a freshness to which no history written at a time remote from the occurrence of the events can pretend. This is merely an illustration, and the whole varied fabric of current history is woven in these successive vol umes with the same care and perfection. The work is done with the utmost fidelity and gives al most constant employment to several able and skill ful writers. SPECIAL VALUE TO VARIOUS CLASSES. It is sufficiently obvious from the account here given of the ANNUAL CYCLOPAEDIA that it is a book which an active and intelligent citizen, whatever his occupation, can hardly do without. Yet it is of special value to various classes of men. To the public man and the journalist it is simply indis pensable. He can find there and nowhere else the record of what is done by Congress and the Legis lature of every State ; he can find there the candi dates and declarations of political parties and the results of elections in every State and in the coun try at large ; he can find a statement of the finan cial condition of every State and country and the latest statistics of every kind ; he can find an ac count of the principal public events in our own country and abroad ; he can find the decisions of courts on important questions ; he can find infor mation about public men and public measures, which he may need ; and all this long before the same information has been published elsewhere ex cept in the scattered form of multitudinous reports and the files of newspapers. To a man who is in the public service, or hopes to be, there is no more effectual aid in the performance of his work, or in preparation for it, than such a repository of infor mation. And those who have the scarcely less im portant function of watching public men and pub lic measures, a function indeed that belongs to all citizens, need the same means of keeping themselves well informed. To lawyers the work commends it self, not only on account of the judicial decisions which it gives far in advance of the official reports, and that, too, for all the different State and Federal Courts, and of legislative action, but for its general information in respect to dates and occurrences which are constantly becoming involved, more or less directly, with matters of litigation. To the physician and student the latest results of scientific investigation which he presents are always of inter est and importance. To the clergyman and the philanthropist the record of ecclesiastical action and the statistics pertaining to religion and the con dition of mankind are of special interest and value. Merchants and manufacturers are concerned in keeping informed on the statistics of trade and production, and the course of industry and of the legislation that affects it. So it might be shown how a work of this kind serves each and every class in the community, not only in their profes sional and industrial capacity, but as intelligent citizens. It should be regarded as indispensable, like a daily newspaper, while it costs less and pre serves at the end of the year, in compact and proper form, all that they contain of first-class importance from day to day. It may be added that the fifteen volumes thus far published are regarded as forming a series in some sort complete, covering the period from the publication of the old to that of the new edition of the AMERICAN CYCLOPEDIA, and that an index to the whole is soon to be published in a separate volume. It is also intended to make the new series beginning with 1876, if possible, more complete, thorough, and perfect in every respect than those of the past. The work is unique, and serves a most valuable purpose which is not even attempted by any other publication in the world. Boston Daily Globe, Oct. 28, 1876. FIFTEEN YEARS OF THE WORLD S HISTORY! NOW READY, UNIFORM WITH THE PRECEDING VOLUMES, THE FIFTEENTH VOLUME OF APPLETONS AMERICAN ANNUAL CYCLOPEDIA. The ANNUAL CYCLOPAEDIA stands alone among the successful literary enterprises of the day, and supplies a widely-extended want among all classes of readers that is not met by any other publication, native or foreign. It is published every year, and deals entirely with the present. Its recording pen is never still. Each volume has a full index, so that the reader may at once be referred to the page where any sub ject is treated. Price per volume, in Cloth, $5.00; Library Leather, $6.00; Half Turkey, $6.50; Half Russia, $T.50. An exhaustive index of the fifteen volumes is just ready. Price in Cloth, $3.50; Sheep, $4.00; Half ] Turkey, &5.00 ; Half Russia, $6.00. A.FPLETON & CO., Publishers, 549 & 8%1 Broadway, New York. 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. t PEC D LD in 4 4 i/i^a Q Pbil ...^ MAR 1 1 67 -3 P* v*^ ... - RECD wn V 3 o 1973 1 2 JUH8 64 " 2 ?M JAN 12 19C3 ~2 FECDLD NUV 18 .0-7PM 1 *^ I.,,) i/t 1. .a. J/!W 25 -66 -5 PA -A tKjrz^ibby LD 21-100m-2, 55 (Bl39s22)476 UNIVERSITY OF CALIFORNIA LIBRARY ill