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44th Congress, ) HOUSE OF REPKESENTATIVES. ( MiS. Doo,
2d Session. } \ No. 13.

COUNTING ELECTORAL VOTES.

PROCEEDINGS AND DEBATES

CONGEESS

RELATING TO

COUNTING THE ELECTORAL VOTES

FOB

PRESIDENT AND VICE-PRESIDENT OF THE
UNITED STATES.

COMPILED AND PRINTED

BY ORDER OF THE HOUSE OF REPRESENTATIVES,

December 23, ISTC.

WASHINGTON:
GOVERNMENT PRINTING OFFICE.

r ^ 1877.

f. f^l^

st^^v-

REPORT OF SUB-COMMITTEE ON COMPILATION OF PRECEDENTS.

House op Representatives,
Room of the Special Committee on Counting Electoral Votes,

Washington, D. C, January 4, 1877.
Sir : The undersigned, your subcommittee appointed to compile the proceedings and
debates of Congress relating to the counting of the electoral votes for President and
Vice-President of the United States, beg leave to present the accompanying compila-
tion as the result of their labor in discharge of that duty. It is believed that this
volume embraces everything said or done in Congress pertinent to the question, from
the formation of the government to the second session of the present Congress, in-
cluding also the proceedings of the Federal convention of 1787, relating to the crea.
tion of the electoral college.

The proceedings and debates have been presented in their chronological order with-
out comment or suggestion, except an occasional marginal note which seemed neces-
sary for explanation.

An appendix contains certain important speeches made at different times in Con-
gress upon questions relating to the electoral vote, together with other congressional
proceedings, which though not strictly pertaining to the presidential count, are never-
theless deemed to possess both interest and value to the inquiry assigned to the com-
mittee.

WILLIAM M. SPRINGER.
GEORGE WILLARD.
Hon. Henry B. Payne, Chairman.

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SELECT COMMITTEES.

SENATE SELECT COMMITTEE ON COUNTING ELECTORAX VOTES, WITH POWER TO CON-
FER WITH HOUSE COMMITTEE.

Messrs. George F. Edmunds, of Vermont.
Oliver P. Morton, of Indiana.
Frederick T. Frelinghuysen, of New Jersey.
RoscoE CoNKLiNG, of New York.

Allen G. Thurman, of Ohio. . •

Thomas F. Bayard, of Delaware.
Matt. W. Ransom, of North Carolina.

HOUSE select committee ON COUNTING ELECTORAL VOTES, TO ACT IN CONJUNCTION

WITH SENATE COMMITTEE.

Messrs. Henry B. Payne, of Ohio.
Eppa Hunton, of Virginia.
Abram S. Hewitt, of New York.
William M. Springer, of Illinois.
George W. McCrary, of Iowa.
George F. Hoar, of Massachusetts.
George Willard, of Michigan.

COUNTING ELECTORAL VOTES.

APPOINTMENT OF SPECIAL COMMITTEES.

In the House of Representatives, December 7, 1876.

Mr. McCrary offered the following :

" Whereas there are differences of opinion as to the proper mode of counting the electoral
votes for President and Vice-President and as to the manner of determining questions
that may arise as to the legality and validity of returns made of such votes by the
several States ;

"And whereas it is of the utmost importance that all differences of opinion and all
doubt and uncertainty upon these questions should be removed, to the end that the
votes may be counted and the result declared by a tribunal whose authority none can
question and whose decision all will accept as final : Therefore,

" Besolved, That a committee of five members of this House be appointed by the
Speaker, to act in conjunction with any similar committee that may be appointed by
the Senate, to prepare aud report without delay such a measure, either legislative or
constitutional, as may in their judgment be best calculated to accomplish the desired
end, and that said committee have leave to report at any time."

The resolution was referred to the Committee on the Judiciary.

In the House op Eepresentatives, Decemler 14, 1876.

Mr. Knott, from the Judiciary Committee, reported the follo\^Qg substitute for Mr-
McCrary's resolution :

" Whereas there are difi^jrences of opinion as to the proper mode of counting the elect-
oral votes for President and Vice-President, and as to the manner of determining
questions that may arise as to the legality and validity of returns made of such votes
by the several States ;

"And whereas it is of the utmost importance that all differences of opinion and all
doubt aud uncertainty upon these questions should be removed, to the end therefore
that the votes may be counted and the result declared by a tribunal whose authority
none can question and whose decision all will accept as final : Therefore,

"Resolved, That a committee of seven members of this House be appointed by the
Speaker, to act in conjunction with any similar committee that may be appointed by the
Senate, to prepare and report without delay such a measure, either legislative or con-
stitutional, as may in their judgment be best calculated to accomplish the desired end,
and that said committte have leave to report at any time.

" Resolved, That a committee of seven members be appointed by the Speaker of this
House to ascertain and report what are the privileges, powers, and duties of the House
of Representatives in counting the votes for President and Vice-President of the United
States, and that said committee have leave to report at any time."

The resolutions were adopted.

In the Senate, December 18, 1876.

Mr. Edmunds moved to take up the following resolution, which had been offered on
the Friday before, in answer to the message of the House that a similar resolution had
been adopted in that body :

"Resolved, That the message of the House of Representatives on the subject of the
presidential election be referred to a select committee of seven Senators, with power
to prepare and report, without unnecessary delay, such a measure, eitlier of a legisla-
tive or other character, as may, in their judgment, be best calculated to accomplish the
lawful counting of the electoral votes, and best disposition of all questions connected
therewith, and the due declaration of the result ; and that said committee have power to
confer and act with the committee of the House of Representatives named in said mes-
sage, and to report by bill or otherwise."

The resolution was adopted.

In the Senate, December 21, 1876.

The President pro tempore appointed as the special committee respecting the count-
ing of the electoral votes authorized by the resolution of the 18th instant, Messrs. Ed-
munds, Morton, Frelinghuysen, Logan, Thurman, Bayard, and Ransom.

VIII COUNTING THE ELECTORAL VOTE.

In the Senate, December 29, 1876.
The President pro tempore laid before the Senate the following communicatiou ;
Tvhich was read :

"Chicago, Decemier 27, 1876.
"Hon. T. W. Ferry,

"President Senate, Washington, D. C:
"I cannot return to Washington in time to act on committee on presidential question.
I must ask to be excused from serving, and ask that you appoint some one to act in my
place.

"J. A. LOGAN."

The President pro tempore. Will the Senate excuse the Senator from Illinois from
further service upou this committee as per request ?

The question being put, Mr. Logan was excused ; aud the President pro tempore being
by unanimous consent authorized to fill the vacancy, Mr. Conkling was appointed.

In the House of Representatives, December 22, 1876.

The Speaker announced the following committees :

Committee to ascertain and report what are the privileges, powers, and duties of
the House of Representatives in counting the votes for President and Vice-President of
the United States: Mr. Knott of Kentucky, Mr. Sparks of Illinois, Mr. Tucker of Vir-
ginia, Mr. Maish of Pennsylvania, Mr. Burchard of Illinois, Mr. Seelye of Massachusetts,
and Mr. Monroe of Ohio.

Mr. Monroe was excused, and Mr. McDill, of Iowa, was appointed to fill his place.

Committee to meet with the Senate committee as to the counting of the electoral
votes for President and Vice-President: Mr. Payne of Ohio, Mr. Hunton of Virginia,
Mr. Hewitt of New York, Mr. Springer of Illinois, Mr. McCrary of Iowa, Mr. Hoar of
Massachusetts, and Mr. Willard of Michigan.

ORDER TO COMPILE AND PRINT.

December 2.3, 1876.

Mr. Springer, from the committee appointed to confer with a similar committee on the
part of the Senate in reference to counting the votes for President and Vice-President,
reported the following resolution and asked its adoption :

'^ Resolved, That the special commitee to confer with a similar committee on the part
of the Senate in reference to couuting the electoral votes for President and Vice-Presi-
dent be authorized to compile and print for the use of that committee and the House
the proceedings and debates of Congress relating to the counting of the electoral votes
from the first election of President and Vice-President to the present time ; and that
said committee shall have power to employ such clerical assistance as may be necessary
in the preparation of said compilation."

There being no objection, the resolution was adopted.

COUNTING ELECTORAL VOTES.

PEOCEEDINGS IN THE FEDERAL CONVENTION OF 1787.

In the Federal Convention, August 6, 1787.

In the " draught of a constitution reported by the committee of five, August 6, 1787,"
article 10, section 1, is as follows:

" The executive power of the United States shall be vested in a single person. His
style shall be " President of the United States of America ;" and his title shall be "His
Excellency." He shall be elected by ballot by the Legislature, [Congress.] He shall
hold his office during the term of seven years; but shall not be elected a second time." —
(Journal of Convention, page 224.)*

Septemler 4, 1787.
The Hon. Mr. Brearly, from the committee of eleven, to whom Sundry resolutions,
&c., were referred on the 31st ultimo, reported that in their opinion the following
additions and alterations should be made to the report before the convention, namely :

4. After the word excellency, in the first section, tenth article, to be inserted, "He
shall hold his office during the term of four years, and, together with the Vice-President,
chosen for the same term, be elected in the following manner :

5. " Each State shall appoint, in such manner as its Legislature may direct, a number
of electors, equal to the whole number of Senators and members of the House of Rep-
resentatives, to which the State may be entitled in the Legislature.

6. "The electors shall meet in their respective States and vote by ballot for two
persons, 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 the General Government, directed to the President of the Senate.

7. " The President of the Senate shall, in that house, open all the certificates ; and
the votes shall be then and there counted. The person having the greatest number of
votes shall be the President, if such number be a majority of the whole number of the
electors appointed ; and if there be more than one who have such majority and have
an equal number of votes, then the Senate shall choose by ballot one of them for Presi-
dent ; but if no person have a majority, then, from the five highest on the list the Sen-
ate shall choose by ballot the President. And in every case after the choice of the
President the person having the greatest number of votes shall be Vice-President. But
if there should remain two or more who have equal votes, the Senate shall choose from
them the Vice-President.

8. " The Legislature may determine the time of choosing and assembling the electors
and the manner of certif j*lng and transmitting the votes."

September 6, 1787.

On the question to agree to the fourth clause of the report, as follows :

" He shall hold his office during the term of four years, and, together with the Vice-
President chosen for the same term, be elected in the following manner " —

It passed in the affirmative :

Yeas — New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Del-
aware, Maryland, Virginia, South Carolina, and Georgia — 10.

Nay — North Carolina — 1.

On the question upon the fifth clause of the report, prescribing^the appointment of
electors,

*In this draught of the Constitution there was no Vice-President provided for, and by article 5, sec-
tion 4, the Senate was to choose its own president and other officers.

2 COUNTING THE ELECTORAL VOTE.

It passed in tlie affirmative :

Yea8 — New Hampsliire, Massachusetts, Connecticut, New Jersey, PennsylTania, Del-
aware, Maryland, Virginia, and Georgia — 9.

Nays — North Carolina and South Carolina — 2.

It was moved and seconded to agree to the following clause :

" That the electors meet at the seat of the General Government ;"

Which passed in the negative :

Yea — North Carolina — 1.

Nays — New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania,, Del-
aware, Maryland, Virginia, South Carolina, and Georgia — 10.

It was moved and seconded to insert the words, " under the seal of the State," after
the word " transmit," in the sixth clause of the report ;

Which passed in the negative.

It was moved and seconded to agree to the sixth clause of the report ;

Which passed in the affirmative :

Yeas — New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Del-
aware, Maryland, Virginia, South Carolina, and Georgia — 10.

Nay— North Carolina — 1.

It was moved and seconded to agree to the words, "the person having the greatest
number of votes shall be President," in the seventh clause of the report ;

Which passed in the affirmative:

Yeas — New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,
Soxith Carolina, and Georgia — 8.

Nays — Massachusetts and Connecticut — 2.

Divided — New Hampshire — 1.

It was moved and seconded to agree to the words, "if such number be a majority of
the whole number of the electors appointed;"

Which passed in the affirmative :

Yeas — New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Mary-
land, South Carolina, and Georgia — 8.

Nays — Pennsylvania, Virginia, and North Carolina — 3.

It was moved and seconded to insert the words " in presence of the Senate and
House of Representatives," after the word " counted ;"

Which passed in the affirmative :

Yeas — New Hampshire, Maryland, Virginia, North Carolina, South Carolina, and
Georgia — (!.

Nays — Connccticiit, New Jersey, Pennsylvania, and Delaware — 4.

It was moved and seconded to insert the words, " and who shall liave given their
votes," after the word " appointed," in the seventh clause of the report ;

Which passed in the negative :

Y'eas — Massachusettb, Pennsylvania, Virginia, North Carolina, and South Caroli-
na— 5.

Nays— Ne'w Hampshire, Connecticut, New Jersey, Delaware, Maryland, and Geor-
gia— G.

It was moved and seconded to insert the word "immediately" before the word
"choose;"

Which passed in the affirmative:

Yeas — New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Del-
aware, Maryland, Virginia, South Carolina, and Georgia — 10.

Nay — North Carolina — 1.

It was moved and seconded to insert the words " of the electors " after the word
" votes ;"

Which passed unanimously in the affirmative.

It was moved and seconded to agree to the following clause :

"But the election shall be on the same day throughout thelfnited States" after the
words " transmitting their votes ;"

Which passed in the affirmative:

Yeas — New Hampshire, Connecticut, Pennsylvania, Maryland, Virginia, North Car-
olina, South Carolina, and Georgia — 8.

Nays — Massachusetts, New Jersey, and Delaware — 3.

It was moved and seconded to strike out the words " the Senate shall immediately
choose by ballot," &c., and to insert the words " the House of Representatives shall
immediately choose by ballot one of them for President, the members from each State
having one vote ;"

Which passed in the affirmative:

Yeas — New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania,
Maryland, Virginia, North Carolina, South Carolina, and Georgiii — 10.

Nay — Delaware — 1 .

PROCEEDINGS IN THE FEDEKAL CONVENTION OF 1787. 3

It was moved and seconded to agree to the following amendment :

" But a quorum for this purpose shall consist of a member or members from two-
thirds of the States ;"

Which passed unanimously in the affirmative.

On the tiuestion to agree to the following amendment :

" And also of a majority of the whole number of the House of Representatives ;"

It passed in the negative :

Yeas — Massachusetts, Connecticut, Pennsylvania, Virginia, and North Carolina — 5.

Nays — New Hampshire, New Jersey, Delaware, Maryland, South Carolina, and
Georgia— 6.

On the question to agree to the following paragraph of the report :

"And in every case after the choice of the President the person having the greatest
number of votes shall be the Vice-President ; but if there should remain two or more
who have equal votes, the Senate shall choose from them the Vice-President ;"

It passed in the affirmative :

Yeas — New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania,
Delaware, Maryland, Virginia, South Carolina, and Georgia — 10.

Nay — North Carolina — 1.

The several amendments being agreed to, on separate questions, the first section of
the report is as follows :

" He shall hold the office during the term of four years ; and, together with the Vice-
President chosen for the same term, be elected in the following manner :

" Each State shall appoint, in such manner as its Legislature may direct, a number
of electors equal to the whole number of Senators and members of the House of Repre-
sentatives to which the State may be entitled in the Legislature.

" But no person shall be appointed an elector who is a member of the LegislatiU'e of
the United States, or who holds any office of profit or trust under th^United States.

" The electors shall meet in their respective States, and vote by 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 i)ersons voted for, and of the number of
votes for each, which list they shall sign and certify, and transmit sealed to the seat
of the Government, directed to the President of the Senate. The President of the Sen-
ate shall, in the presence of the Senate and House of Representatives,* open all the cer-
tificates 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 the electors appointed;) 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 oue of them for Presi-
dent, the rei)resentation from each State having one vote. But if no person have a
majority, then from the five highest on the list, the House of Representatives shall, in
like manner, choose by ballot the President. In the choice of a President by the
House of Representatives a quorum shall consist of a member or members from two-
thirds of the States ; and the concurrence of a majority of all the States shall be neces-
sary to such choice. And in every case after the choice of the President the person
having the greatest number of votes of the electors shall be the Vice-President. But
if there should remain two or more who have equal votes the Senate shall choose from
them the Vice-President.

" The Legislature may determine the time of choosing the electors, and of their giv-
ing their votes, and the manner of certifying and transmitting their votes. But the
election shall be on the same day throughout the United States."

September 13, 1787.

The Hon. Mr. Johnson, from the committee of revision, reported the following as a
substitute for the twenty-second and twenty-third articles :

"Eesolved, That the preceding Constitution be laid before the United States in Con-
gress assembled, and that it is the opinion of this Convention that it should afterward
be submitted to a convention of delegates chosen in each State by the people thereof,
under the recommendation of its Legislature, for their assent and ratification; and
that each convention assenting to and ratifying the same should give notice thereof to
the United States in Congress assembled.

* The words " in presence of the Senate and Honse of Representativea " were moved to be inserted
after the word "counted," (pajre 334 Journal of Federal Convention,) and this motion was carried.
The Journal of the Conventinn does not .show that any motion was made to strike out the words " in
that house," which ;oc<ur in thi- (niiiiiial ihaught, nor does it show why the words ''in the jiiesence
of the Senate and House of Kciircsiutatives " were inserted in the place of the words " in that house "
instead of after the word " counted," as was voted by the convention ; but from the clause in the journal,
at the bottom of pane 371 thereof, it appears tliat the rejiort of the committee of revision was taken up
and read by paragraphs and in some places corrected and amended, and that no entry is made upon the
journal of these corrections and amendments adopted or proposed. From this it would ajipear that this
clause was constructed in this .shape by the committee of revision.

4 COUNTING THE ELECTORAL VOTE.

"Besolved, That it is tlie opinion of tliis Convention, that as soon as the conventions
of nine States shall have ratified this Constitution, the United States in Congress assem-
bled 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 Consti-
tution. That after such publication, the electors should be 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 President, should, without delay, pro-
ceed to execute this Constitution."* (Page 370.)

It was moved and seconded to postpone the consideration of the report of the com-
mittee respecting the twenty-second and twenty-third articles;

Which passed in the afiirmative :

Yeas — New Hampshire, New Jersey, Pennsylvania, Delaware, Maryland, Virginia,
North Carolina, South Carolina, and Georgia — 9.

Nays — Connecticut — 1.

It was moved and seconded to proceed to the comparing of the report from the com-
mittee of revision, with the articles which were agreed to by the house and to them re-
ferred for arrangements.

Which passed in the affirmative :

Yj:as — New Hampshire, Massachusetts, Connecticut, Maryland, Virginia, North Car-
olina, and Georgia — 7.

Nays — Pennsylvania, Delaware, and South Carolina — 3.

And the same was read by paragraphs, compared, and in some ^places corrected and
amended.

[No entry of the corrections and amendments adoj)ted or proposed appears Upon the
journals. The sheets of yeas and nays exhibit, however, many of the questions upon
the amendments proposed, and the result of the votes upon them. The amendments
adopted are interlined in manuscript in the revised draught of the Constitution used by
Mr. Brearly, and, with the minutes furnished by Mr. Madison to complete the journal,
collated with the entries on the sheets of yeas and nays, present the following ques-
tions and votes: — Note in the orUjinal text Journal of Convention, page 372.]

Here follow proceedings irrelevant to the question of counting the electoral votes.

PROCEEDINGS IN CONGRESS OF THE CONFEDERATION.

The Journals of Congress, September 28, 1787, contains the following as apart of the
proceedings of the Federal Convention, transmitted to Congress by the president of the
convention and the secretary :

" In convention Monday, September 17, 1787 ; present the States of New Hampshire,
Massachusetts, Connecticut, Sir. Hamilton from New York,'New Jersey, Pennsylvania,
Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia." Then
follows the resolution above given, signed "by the unanimous order of the convention,
George Washington, president, William Jackson, secretary."

There also appears on the record the letter addressed to the President of Congress by
George Washington, "by unanimous order of the convention," whereupon the Congress
passed the following resolution :

Eesolved unanimously, That the said report, with the resolutions and letter accompa-
nying the same, be transmitted to the several Legislatures, in order to be suljmitted to
a convention of delegates chosen in each State by the people thereof, in conformity to
the resolves of the convention made and provided in that case. — Journals of Congress,
vol. 4, pages 781, 782.

CONSTITUTIONAL PROVISIONS AS ADOPTED IN 1787,

Paragraph 3 of section 1, .Trticle 2 of the Constitution as adopted in 1787 is as fol-
lows:

"The electors shall meet in their respective States, and vote by ballot for two per-
sons, of whom one at least shall not be an inhabitant of the same State with them-

*In the Madison papers, coutaiiiing the debates on the Confederation and Constitution, page 602, is the
following note in reference to these resolutions: "The proceedings on these resohitions are not given-
by Mr. Madison, nor in the Journal of the Federal Convention. In the Journal of Congress, 28th Sep-
tember, 1787, v(duu)e 4, page 781, they are stated to have been presented to that body as having passed
iu the Convention on the 17th September, immediately after the signing of the CoDStitution.''

PROCEEDINGS IN THE FEDERAL CONVENTION OF 1787. 5

selves. And they shall make a list of all the i^ersons voted for, and of the number of
votes for each; which list 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 Representa-
tives, open all the certificates, and the votes shall then be counted. The person hav-
ing 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 a 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. 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. In every case, after the choice of the Presi-
dent, the person having the greatest number of votes of the electors, shall be the Vice-
President. But if there should remain two or more who have equal votes, the Senate
shall choose from them by ballot the Vice-President."

COUNTING ELECTORAL VOTES.

PROCEEDINGS AND DEBATES IN CONGRESS.
ELECTION FOR FIRST TERM, 17S9.

George Washixgtox, President.
John Adams, Vicc-Presideut.

Ix THE Sexate, April 6, 17«9.

The credentials of the members present beino; read and ordered to be tiled, the Sen-
ate proceeded, by ballot, to the choice of a President for the sole pnrpose of opening
and counting the votes for President of the United States.

JoHX IjAXGDOX was elected.

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 purpose of oiiening 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 ; and that the Senate is now
ready, in the Senate Chamber, to proceed in the presence of the House to discharge
that duty; 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.

Mr. Ellsworth reported that he had delivered the message ; and Mr. Bondinot, from
the House of Reiiresentatives, appeared and delivered the following message :

Mr. Presidext : 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 count-
ing of the votes of the electors of the President and Vice-President ofthe United
States.

Ordered, That Mr. Paterson be a teller on the part of the Senate.

The Si)eaker and the House of Representatives attended in the Senate Chamber, and
the president elected for the purpose of counting the votes declared 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 aud Vice-President of the United States,
which were as follows :

States.

-is
a

a
o

'B
"©

r^rs

S'3

S ft

•<

a
o

^-5

A
o

t-5

M
a

t-5

i
^

Counecticiit

6
10

]
8

...

....

Delaware

Virginia

1 X

8 COUNTING THE ELECTORAL VOTE.

Whereby it appeared tLat

George Washington, esq., ^-as elected President, and

John Adams, esq., Vice-President of tlie United States of America.

Mr. Madison came from the House of Eeiiresentatives vrith the following verba_
message :

Mr. President: lam directed by the House of Representatives to inform the Senate
that the Honse have agreed tbat the notihcations 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.

Whereupon the Senate appointed Charles Thomson, esq., to notify George Wash-
ington, esq., of his election to the office of President of the United States of America,
and Mr. Sylvanus Bourn to notify John Adams, esq., of his election to the office of
Vice-President of the s;nd United States.

Ordered, That Mr. Paterson, Mr. Johnson, Mr. Lee, and Mr. Ellsworth be a committee
to prepare the certificates of the election of the President and of the Vice-President of
the United States, and to prejiare letters to George Washington, esq., and to John
Adams, esq., to accompany the said certificates respectively.

Form of the certificate for the President.

"Beit known, that the Senate and House of Representatives of the United States of
America, being convened in the city and State of New York, the sixth day of April, in
the year of our Lord one thousand seveu hundred and eighty-nine, the underwritten,
appointed President of the Senate for the sole purpose of receiving, opening, and count-
ing the votes of the electors, did, in the presence of the said Senate and House of Rep-
resentatives, open all the certificates and connt all the votes of the electors for a Presi-
dent and for a Vice-President ; by which it ai)pear8 that George Washington, esquire,
■was unanimously elected, agreeably to the Constitution, to the office of President of the
United States of America.

"In testimony whereof I have hereunto set my hand and seal.

"JOHN LANGDON."

A similar certificate, substituting the word "Vice-President" for that of "President,"
and the word " duly" for " unanimously," was prepared for Mr. Adams. These certifi-
cates, accompanied by appropriate letters from Mr. Langdon, President of the Senate,
■were dispatched, by special messengers appointed by the Senate for that purpose, to
General Washington and Mr. Adams.

In the House of Representatives, Jjj)i7 6, 1789.

A message from the Senate by Mr. Ellsworth :

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 electors of the several States in the choice
of a President and Vice-President of the United States ; and that the Senate is now
ready in the Senate 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 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 this House to appoint one or more
of its members for the like purpose.

On motion,

Besolved, That Mr. Speaker, attended by the House, do now withdraw to the Senate
Chamber, 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 member 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, withdi-ew to the
Senate 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 aud Vice-President of
the United States, as the same were declared by the President of the Senate in the pres-
ence of the Senate and of this House ; which was ordered to be entered on the Journal,
and is as folio weth :

[Here follows the table, which is an exact copy of the one appearing in the Senate
proceedings, except there is a recapitulation of the votes.]

Ordered, That a message be sent to the Senate 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 j)ersons and in such manner as the Senate
shall be pleased to direct, and that Mr. Madison do communicate the said message.

PKOCEEDINGS AKD DEBATES IN CONGRESS.

LAW REGULATING THE ELECTION OF PRESIDENT AND VICE-PRESIDENT.

[The following act was passed March 1, 1792, to perfect the manner of appointing
electors. Only so much of the act as relates to electors is published:]
An Act relative to the election of a President and Vice-President of the United States
and declaring the officer who shall act as President in case of vacancies in the offices
both of President and Vice-President.

Jieit enacted, tfc, That except in case of an election of a President and Vice-President
of the United States prior to the ordinary period, as hereinafter specified, electors shall
be appointed in each State for the election of a President and Vice-President of the
United States within thirty-four days preceding the tirst Wednesday iu December,
one thousand seven hundred and ninety-two, and within thirty-four days preceding the
first Wednesday in December in every fourth year succeeding the last election ; which.
electors shall be e(iual to the number of Senators and Representatives to which the
several States may by law be entitled at the time when the President and Vice-Presi-
dent thus to be chosen should come into office : Provided always, That where no appor-
tionment of Representatives shall have been made after any enumeration, at the time
of choosing electors, then the number of electors shall be according to the existing
apitortionment of Senators and Representatives.

Sec. 2. And he it further enacted. That the electors shall meet and give their votes on
the said first Wednesday iu December, at such place in each State as shall be directed by
the Legislature thereof; and the electors in each State shall make and sign three cer-
tificates 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 ensuing, 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 certifi-
cates ; 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.

Sec. 3. And be it further enacted. That the executive autliority of each State shall
cause three lists of the names of the electors of such State to be made and certified
and 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.
Sec. 4. And be it further enacted. That if a list of votes from any State shall not have
been received at the seat of Government on the said first W^ednesday in Jannary, that
then the Secretary of State shall send a special messenger to the district j udge in whose
custody such list shall have been lodged, who shall forthwith transmit the same to the
seiit of Government.

Sec. 5. And be it further enacted, That Congress shall be in session on the second
Wednesday in February, one thousand seven hundred and ninety-three, and on the
second Wednesday in February succeeding eveiy meeting of the electors, atidthe 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-Presi-
dent ascertained and declared agreeably to the Constitution.

Sec. 6. And he it further enacted, That, in case there shall be no President of the Sen-
ate at the seat of Government on the arrival of the persons intrusted with the lists of
the votes of the electors, then such persons, shall deliver the lists of votes in their cus-
tody 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.

Sec. 7. And he it further enacted, That the persons appointed by the electors to de-
liver the lists of votes to the President of the Senate shall be allowed, on the delivery
of the said lists, twenty-five cents for every mile of the estimated distance, by the
most usual road, from the jilace of meeting of the electors to the seat of Government
of the United States.

Sec. 8. And be it further enacted. That if any person appointed to deliver the votes
of the electors to the President of the Senate shall, after accepting of his appoint-
ment, neglect to perform the services required of him by this act, he shall forfeit the
sum of one thousand dollars.

COUNTING THE ELECTORAL VOTE.

ELECTION FOR SECOND TERM— 1793.

George Washixgtox, President.
John Adams, Vice-Prcsideut.

In Senate, February ;', 1793.
A message from the, House of Represeutatives, by Mr. Beckley, their Clerk :
Mr. PrEvSIDENT : The House of Represeutatives have resolved that a committee be
appointed, to join such committee as may be appointed by the Senate, to ascertain and
report a mode of examining the votes for Presideutand Vice-President, andof 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, and have appointed a
committee on their part.

Fchrnary 6, 1793.
The Senate proceeded to the consideration of the said resolution and concurred therein ;
and appointed Messrs. Izard, King, and Strong the committee on the part of the Senate.

February 11, 1793.

Mr. King, from the joint committee, reported —

That the two Houses shall assemble in the Senate Chamber on Wednesday next, at
twelve o'clock ; that one person shall 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 the
votes, be entered on the Journals of the two Houses.

And the report was agreed to.

February 12, 1793.

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, conformable to the report of the
joint committee agreed to on the 11th instant, and that the Secretary notify the House
of Represeutatives of his appointment.

February 13, 1793.

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
votes for President and Vice-President of the United States, as the Constitution pro-
vides.

The tM o Houses having accordingly assembled, the certificates of the electors of the
fifteen States in the Union, which came by express, were, by the Vice-President, o])eued,
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 :

002

we .

1
1^ .

'■s

c .

States.

£ S

"i: o

1-5

fe «

a
.a

6
16
4
9
3
12

6
16
4
9
3

Khoile Islaud

1,5

21
4

8
4

.....

132

PROCEEDINGS AND DEBATES IN CONGRESS. 11

Whereupon

The Vice-Presidcut declared Georgk Washington imaTiimously elected President
of the United States for the period of four years to commence with the 4th of March
next ; and

JoHX Adams elected, by a plurality of votes, Vice-President of the United States
for the same perioi, to commence with the 4th of March next.

Fehntary 14, 1793.

Mr. King, from the committee appointed the 6th instart, to join the committee on
the part of the House of Representatives, to report a mode of notifying the person
Avho should be elected President of the United States of his election, submitted the
following resolve :

Resolved, That a committee be appointed, to join snch committee as shall be appointed
l)y the House of Representatives, to wait on the President and notify him of his
nnauinions re-election to the office of President of the United States.

And f lie report was adopted.

Ordered, That Messrs. King, Izard, and Strong be the committee on the part of the
Senate.

Ix THE House of Representatives, February 5, 1793.

On motion,

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 regulate the time, place, aud manner of administering the oath of office to the
President.

Ordered, That Mr. William Smith, Mr. Madison, and Mr. Lanrance be of the said
committee on the part of the House.

February 11, 1793.

Mr. William Smith, from the committee on the part of this House, jointly, with the
committee appointed on the part of the Senate, to ascertain and report a mode of ex-
amining the votes for President aud Vice-President of the United States, and for the
other purposes expressed in the resolution of the fifth instant, made a report ; which
was twice read, and agreed to by the House, as followeth :

"That the two Houses shall assemble in the Senate Chamber 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 thejf shall be declared ; that tlie result shall be delivered
to the President of the Senate, who shall announce the state of the vote, and the per-
sons elected, to both 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 Joui'nals of the two Houses."

Ordered, That Mr. William Smith and Mr. Lanrance be appointed tellers on the part
of this House, pursuant to the said report.

February 13, 1793,

A message from the Senate by Mr. Otis, their Secretary :

Mr. Speaker ;****! am also directed to inform the House that a President
of the Senate is elected * for the sole purpose of opening the certilicates and counting
the votes of the seiveral States in the choice of a President and Vice-President 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 Mr. Speaker, attended by the House, do now withdraw to the Senate
Chamber, for the purj^ose expressed in the said message.

Mr. Speaker accordingly left the chair, and, attended by thc^House, withdrew to the
Senate Chamber, aud, after some time, returned to the House.

Mr. Speaker resumed the chair.

Mr. William Smith and Mr. Laurance then delivered in, at the Clerk's table, a list of
the votes of the electors of the several States, in a choice of a President and Vice-Pres-
ident 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, and is as followeth :

[Here follows the table, which is an exact copy of the one appearing in the Senate
proceedings, except there is a recapitulation of the votes.]

February 14, 1793.
A message from the Senate, by Mr. Otis, their Secretary :

Mr. Speaker ; * * * * Xhe Senate have also agreed to a resolution for the ap-
pointment of a committee, jointly, with a committee on the part of the House, to wait

* This annonncemi'iit of the Clerk is an err r, evidently copied from the form used at the first elec-
tion of President. The journals of the Senate do not show any such election, and the Vice-President,
John Adams, presided at the meting of the two houses, and announced the result, as appears above.

12 COUNTING THE ELECTORA]. VOTE.

on tlie President, and notify liim of bisuuanimons re-electiou to the office of President
of the United States.

Mr. William Smith, from the committee appointed to join snch committee as maybe
appointed 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 the other pur-
poses expressed in the resolution of the tifth instant, made a report ; which was twice
read and agreed to on the part of the House, as foUoweth :

Eesolved, 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 unanimous re-election
to the office of President of the United States.

Ordered, That Mr. William Smith, Mr. Madison, and Mr. Laurance be of the said
committee on the part of this House.

February 15, 1793.

Mr. William Smith, from the committee appointedon the part of the Senate to wait on
the President and to notify to him his unanimous re-election to the office of President of
the United States, reported that the committee had, according to order, performed that
duty.

ELECTION FOR THE THIRD TERM— 1797.

JoHX Adams, President.

Thomas Jefferson, Vice-President.

In Senate, January 31, 1797.
Eesolved, That Messrs. Sedgwick, Lanrance, and Read be a joint committee on the part
of the Senate, with such conmiittee as may be appointed by the House of Representa-
tives, to ascertain and report a mode of examining the votes for President and Vice-
President, and notifying the persons elected of their election, and for regulating the
time, place, and manner of administering the oath of office to the Presnlent.

Ordered, That the Secretary carry this resolution to the House of Representatives,
and desire their concnrrence.

February 2, 1797.

Mr. Sedgwick, from the joint committee, reported that, in their opinion, the following
resolution ought to be adopted, viz :

" That the two Houses shall assemble in the Chamber of the House of Representatives
on Wednesday next, at twelve o'clock; that one person be appointed atelier, 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.

Fthruary 8, 1797.

A message from the House of Representatives, by Mr. Beckley, its Clerk :
Mr. PiiESiDENT : The House of Representatives are ready to meet the Senate in the
Chamber of that House, agreeable to the report of the joint committee, to attend the
opening and examining 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 certiticates 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 as-
certained the number of votes, presented a list thereof to the Vice-President; which
was read, as follows :

PROCEEDINGS AND DEBATES IN CONGRESS.

1
h

■
States.

'£, cS
» St

■31

B s

o ^•

3 £

°^

a
.a

_-a
II

= o

O
1-3

•^

4
4
8
11
20
4

....

3
4

8
1
1
4
3
2
7
12
4

1
1

1
7
12

1
3

...

....

•i"

13
4

6
11

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 com-
mands 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 United States for four years, to commence
with the 4th day of March next ; and that

" Thomas Jeffersox is elected Vice-President of the United States for four years,
to commence Avith the 4th day of March next ;

" And may the Sovereign of the universe, the Ordainerof civil government on earth
for the preservation of liberty, justice, and peace among men, enable both to discharge
the duties of these offices conformably tb the Constitution of the United States with
conscientious 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.

Ix Senate, Fthniary 9, 1797.

Mr. Sedgwick, from the joint committee, to whom it was referred to join such com-
mittee as might be appointed by the House of RepresentatiA'cs, to ascertain and report
a mode of examining the votes tor President and Vice-President of the United States,
and notifying the persons elected of their election, reported that, having further con-
ferred with tlie committee appointed by the House of Representatives, in their opinion,
the following resolution ought to be adopted by the Senate :

lie.'iolvrd, That the Secretary of the Senate be directed to give, by lettei", to the Vice-
President-elect a notitication of his election.

On motion, it was agreed to reconsider the resolution, and to recommit the report
from the joint conimittee.

On motion.

Besolred, That the Senate disagree to the report of the joint committee on the mode
of notifyiug the Vice-President-elect of his election, and that a committee be appointed
on the part of the Senate to confer with such conmiittee as may be appointed on the
part of the House of Representatives, on the report of the joint committee above men-
tioned, and that Messrs. Sedgwick, Laurance, and Read be the managers at the con-
ference on the part of the Senate.

On motion, that it be

liesolved, That the Secretary 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 open-
ing and counting the votes for President and Vice-President of the United States, and
the declaration of the President of the Senate consequent thereon.

Ordered, That the motion lie until to-morrow for consideration.

February 10, 1797.
The Senate resumed the consideration of the motion made yesterday, that the Secre-
tary of the Senate wait upon the President of the United States, and notify him of the
election of President and Vice-President of the I'nited States, to connnence with the
4th of March next.

14 COUNTING THE ELECTORAL VOTE.

And tlie 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 Joni-nal of the 8th instant, relative to the opening and connting
the votes for President and Vice-President of the United States, and the declaration of
the President of the Senate consequent thereon.

Mr. Sedgwick, from the committee of conference above mentioned, reported that the
following resolution should be adopted by the House of Representatives :

Eesolvcd, That the notilication of the election 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 States, for the term of four years, to commence with the 4th day of March
next, information of his said election.

It passed in the negative.

On motion.

Ordered, That the resolution this day agreed to by the House of Representatives,
relative to the notilication of the election of the Vice-President-elect, be referred to
Messrs. Mason, Hillhouse and Sedgwick, to consider and report thereon to the Senate.

Mr. Mason reported from the committee appointed, and the report being read was
amended and adopted as follows :

BesoJved, That the President of the United States be requested to cause to be trans-
mitted to Thomas Jefferson esq., of Virginia, Vice-President-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 cerificate 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 Philadelphia, on the second Wednesday of Feb-
ruary, in the year of our Lord one thousand seven hundred and ninety-seven, the un-
derwritten, Vice-President of the United States and President of the Senate 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 for a Vice-President; by
which it appears that Thomas Jefferson, esq., was duly elected, agreeable to the Con-
stitution, Vice-President of the United States of America.

"In witness whereof I have hei'euntoset my hand and seal this 10th day of February
1797."

Ix THE House of Represextatves, February 1, 1797.

The House proceeded to consider so much of the message of yesterday, from the
Senate, as relates to the appointment of a joint committee of the two Houses, to ascer-
tain and re])ort 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,

Whereupon,

liesoJred, That Mr. Sitgrcaves, Mr. Parker, and Mr. Jeremiah Smith be appointed of
the said committee, on the part of this House.

February 3, 1797.

Mr. Sitgreaves, from the committee named above, made a report, in part; which was
twice read and agreed to by the House, as follows :

" That the two Houses shall assemble in the chamber of the House of Representa-
tives, at Wednesday next, at twelve o'clock. That two persons 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 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-Presi-
dent, and, together with a list of votes, be entered on the Journals of the two Houses."

Besolved, That Mr. Sitgreaves and Mr. Parker be appointed tellers on the part of the
House, pursuant to the said report.

February 8, 1797.

Ordered, That a message be sent to the Senate 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 several States in a choice of a President and Vice-President of the United States,
in pursuance of the resolutions of the two Houses of the 2d and 3d instant.

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 members of the Senate on the
same side of the chamber, when the Pi'esident of the Senate, Mr. Adams, thus addressed
the two Houses :

Gentlemen of the Senate and of the House of Bepresentatives : The purpose for which we
are assembled is expressed in the following resolution. [Mr. Adams here read the reso-
lutions which had been adopted by the two Houses relative to the subject.] I have

PROCEEDINGS AND DEBATES IN CONGRESS. . 15

recoivi'd packets cnutaiiiing the certificates of the votes of the electors for 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 iifteeu of the States. No
duplicate from the State of Kentucky is yet come to hand.

It has been the practice heretofore, on similar occasions, to be<i;in 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 up the packet from the State of Tennessee, and after having
read the sn])erscription, broke the seal and read the certificate of the election of the
electors. He then gave it to the clerk of the Senate, requesting him to read the report
of the electors, which he acconlingly did. All the papers were then handed to the tell-
ers, and when they had noted the contents, the President of the Senate proceeded with
the otiier States.

[Here follows the table which is a copy of the one appearing in the Senate proceed-
ings, except that the States follow in a difierent order, and there is a recapitulation of
the votes.]

All the returns having been gone through, Mr. Sedgwick reported that, according to
order, the tellers appointed by the two Houses had performed the business assigned
them, and reported the result to be as above stated.

The President of the Senate thus addressed the two Houses:

Gentlemen of the Senate and House of Jitprcxcntatives : By the report which has been
made to me by the tellers appointed by the two Houses to examine the votes, there are
71 votes for John Adams ; 68 for Thomas Jeffersox ; .59 for Thojias 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. Pinckney. The whole
number of votes are 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
G8 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 ad-
dressed the two Houses :

'•'In obedience totheConstitutionand law of the United States, and to the commands
of both Houses of Congress, expressed 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 4th day of March next; and that —

" Thomas Jefferson is elected Vice-President of the United States for four years, to
commence on the 4th day of March next. And may the Sovereign of the Universe, the
Ordainer of civil government on earth, for the xireservation 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 diligence, punctuality, and perse-
verance."

The President and members of the Senate then retired, and the House came to order,
when Mr. Sitgreaves make a report on tiie business; which was read and ordered to be
entered on the Journal.

February 9, 1797.

Mr. Sitgreaves, from the joint committee apitointed to confer with a committee of
the Senate on the suliject of the election of a President and Vice-President, made a
further report ; which was twice read, and agreed to by the House, as followeth :

Resolved, That the Clerk of this House be directed to give, by letter, to the Vice-
President-elect a notification of his election.

This resolution was rescinded, and a committee of conference appointed to meet a
like committee on the part of tlie Senate. Mr. Sitgreaves, Mr. Parker, and Mr. Jere-
miah Smith were appointed on said committee.

February 10, 1797.

Mr. Sitgreaves, from the above committee, made a r>iporfc; which was adopted, as
followeth :

Eesolred, That the notification of the election of the Vice-President-elect be made by
such person and in such manner as the Senate may direct.

16 COUNTING THE ELECTORAL VOTE.

AN ATTEMPT TO REMEDY THE DIFFICULTIES LIKELY TO ARISE IN RE-
GARD TO COUNTING ELECTORAL VOTES.

In Sexate, Jamiury 23, 1800.

Mr. James Ross, a Senator from Pennsylvauia, offered the following :

Resolved, That a committee be appointed to consider whether any, and what, provis-
ions ought to be made by law for deciding disputed elections of President and Vice-
President of the United States, and for determining the legality or illegality of the votes
given for those officers in the different States.

A motion was made to amend the resolution by adding " and the committee be author-
ized to report by bill or otherwise."

In the debate upon this resolution,

Mr. John Brown, of Kentucky, was of opinion that this was a subject on which Con-
gress had no right to legislate. * * * 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 Constitu-
tion.

Mr. Ross said the Constitution had certainly made no provision on this subject. It
only directed that after the votes were received, &c., the President of the Senate
should, in the presence of the Senate and House of Representatives, ojien the certifi-
cates, 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? Sup-
pose 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 citizens 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 X'l'o-
vision for it, and he believed a law was sufficient.

Mr. Charles Pinckney, of South Carolina, thought it a very dangerous practice to
endeavor to amend the Constitution by making laws for the i)urpose. » * * He
remembered very well that in the Federal Convention great care was used to provide
for the election of the President of the United States independently 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 appointment is given to the
State Legislatures. 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 Legislatures, they must
make provision for all questions arising on the occasion.

Mr. Samuel Dexter, of Massachusetts, did not doubt the right of the Legislature to
make such provisions on this subject as appeared to be necessary. Thei)roceedings in
the election of a President may be defective, and can it be supposed there is no way to
correct them ? The law now proposed appears to be necessary to carry into effect the
power of appointing the President; it is therefore clearly constitutional.

Mr. Samuel Livermore, of New Hampshire, never felt less doubt on any subject than
the one now under consideration ; the Constitution has given many directions as to ap-
pointment of the President, some of which he read. Is it possible that gentlemen can
suppose all these may be violated and disregarded, and yet that it is nobody's business
to interpose and make provision to prevent it ?

Mr. Abraham Baldwin, of Georgia, is reported at greater length than any other
speaker. The gist of his remarks was in his last sentence. His own opinion was that
the provisions on this subject were already sufficient ; thatall the difficulties 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 House of Rep-
resentatives, when met together in one room, should receive the act of the electors as
they -would the act of any other constitutional branch of the Government, to judge
only of its authentication, and then to proceed to count the votes, as directed in the
second article of the Constitution.

January 24, 1800.

A committee, consisting of Messrs. Ross, Laurance, Dexter, Pinckney, and Livermore?
was appointed, and they reported a bill February 14. This bill is not printed in the
Annals of Congress, but appears in the "Aurora" newspaper, printed at Philadelphia,
Wednesday, February 19, 1800, as follows :

A bill prescribing the mode of deciding disputed elections of President and Vice-President of tba

United States.

Section 1. Be it enacted by the Senate and Rouse of Bepresentatives of the United States
of America in Congress assembled, That on the day before the second Wednesday in
February of any year when a President and Vice-President of the United States shall

PROCEEDINGS AND DEBATES IN CONGRESS. 17

have been voted for by electors in the precediug December, it shall be the duty of the
Senate and House of Representatives of the United States, to choose, by ballot, in
each house, six members thereof, and the twelve persous thus chosen, tos^ether with
the Chief-Justice of the United States, or if he is absent from the seat of Government,
or nnable to attend, then with tiie next seniin- judge of the Supreme Court of tbe
United States who is present and able to attend, shall form a <^raud committee, and
shall have power to examiue, and finally to decide, all disi)utes relating to the election
of President and Vice-President of the United States : Provided, always, That no per-
son shall be deemed capable of serviug on this couunittee who is one of the highest
candidates, or of kin to auy of the five highest candidates out of whom a President
of the United States, to be chosen by the House of Representatives in case no ])erson
shall be found to have a majority of tbe whole number of electors by the ditiercnt
States.

Sec. 2. And be it farther enacted. That it shall be the duty of all of the judges of the
Snpreme Court to attend at the seat of Government on the day before the second
Wednesday of February, in every year, when a President and Vice-President of the
United States shall have been voted for in the preceding December, and to remain
there nntil the committee to be appointed under this act shall have made their hnal
report.

Sec. 3. And he It further enacted, Tbat after the membei'S of the committee shall
have been appointed in the Senate and House of Representatives as aforesaid, each
house shall then proceed to choose by ballot two members thereof as tellers, whose
duty it shall be to receive the certificates of the electors from the President of the
Senate after they shall have been opened and read, and to note in writing the dates
of the certificates, the names of the electors, the time and place of their meeting, the
number 'of votes given, the names of the persons voted for, and also the snbstance of
the certificates from the executive authority of each State accompanying the certifi-
cates of tbe electors; and the minutes thus made bj' the tellers shall be read in the
presence of both houses, and a copy thereof entered on the journals of each.

Sec. 4. And he it farther enacted. That when the certificates transmitted by the
electors of the difierent States shall have been opened by the President of the Senate,
and read in the presence of both houses, and the minutes of the tellers read and com-
pared, the President of the Senate shall administer the following oath to all the mem-
bers of the grand comnuttee appointed in pursuance of this act :

"I, A. B., do swear (or atifirm, as the case may be) that I will impartially examine
the votes given by the electors of President and Vice-President of the United States,,
together with the exceptious and petitions against them, and a true judgment give
thereon, according to the evidence : so help me God."

The President of the Senate shall then deliver to the chairman of the gTand com-
mittee all the certificates of the electors, and all the certificates or other documents
transmitted by theiu, or by the executive authority of any State, and all the petitions,
excejitious, and meiuorials against the votes of the electors, of the persons for whom
they have voted, together with the testimony accompanying the same.

Sec. .5. And he it further enacted, That after the grand commitlee shall have been ap-
pointed and sworn in the manner herein directed, the Chief-Justice of the United
States, or other judge of the Supreme Court of the United States, as the case may be,.

shall act as chairman of the couunittee. They shall meet on every , (Sundays-

excepted,) from the time of their appointment nntil they make their final report.
They shall sit with closed doors, and a majority of the members may proceed to
act, provided the number from each house is equal ; aiul if any member of the com-
mittee, appointed by either house, should die, or become unable to attend after his
appointment, the committee, before they proceed further, shall notify both houses of
such death or inability, and the house by which such member was appointed shall
immediately proceed to choose another member, by ballot, to supply such vacancy;
and the member thus chosen shall be sworn before, the President of the Senate ; and
if the Chief-Justice or other judge of the Snpreme Court of the United States, being
a member of the said coumiittee, should die, or become nnable to attend after his
appoiutment, the committee, before they proceed farther, shall notify both houses of
such death or inability, and the judge of the Supreme Court of the United States who
is next in seniority, and qualified according to the provisious of this act, shall be sworn
before the President of the Senate ; and the person or persons thus appointed and sworn
shall fromtheuceforth have and exercise the powers necessary to supply such vacancy.

Sec. 6. And be it further enacted, That the grand committee shall have power to send
for persons, papers, and records to compel the attendance of witnesses, to administer
oaths to all persous examined before them, and to punish contempts of witnesses re-
fusing to answer, as fully and absolutely as the Supreme Court of the United Statea
may or can do in causes depending therein ; and if any person sworn and examined
before this committee shall swear or athrm falsely, such person being thereof con-
victed shall incur the pains, penalties, and disabilities inflicted by the laws of the
United States n])on willful and corrupt perjury.

Sec. 7. And be it further enacted, That it shall be the duty of the marshals of the

18 COUNTING THE ELECTORAL VOTE.

several districts of the United States, and of tlieir deputies, to serve all process di-
rected to them aud signed by the chairman of the grand committee, and for such
services they shall receive the fees allowed for the services of similar process issued
by the Supreme Court of the United States; and all witnesses attending the commit-
tee in consequence of summons or other process shall receive the same compensation
as witnesses attending the Supreme Court of the United States.

Sec. 8. And he it further enacted, That the grand committee shall have power to in-
quire, examine, decide, and report upon the constitutional qualifications of the per-
sons voted for as President and Vice-President of the United States, upon the consti-
tutional qualifications of the electors appointed bj^ the ditferent States, and whether
their appointment was authorized by the State legislature or not ; 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,
«r the time, place, or manner of giving their votes: Provided, always, That no peti-
tion or exception shall be granted, allowed, or considered by the sitting grand com-
mittee which has for its object to dispute, draw into question the number of votes
given for an elector in any of the States, or the fact whether an elector was chosen
by a majority of votes in his State or district.

Sec. 1>. And be it farther enacted, That the grand committee shall appoint a clerk,
vrho shall keep a journal of their proceedings under their direction ; and after the
grand committee shall have made their final report, he shall deposit with the Secre-
tary of the Senate this journal, together with all the certificates, written testimony,
and documents which were under the consideration of the grand committee, where
the same sliall remain open for the inspection of the members of both houses.

Sec. 10. A)id be it further enacted, Tliat on the first day of March next after their
appoiutment, the grand committee shall make their final report to the Senate and
House of Representatives, stating the legal number of votes for each person, and the
uumber of votes which have been rejected; the report of the majority of the said com-
mittee shall be a final and conclusive determination of the admissibility or inadmissi-
bility of the votes given by the electors for President and Vice-President of the United
States; and where votes are rejected by the grand committee, their reasons shall be
stated in writing for such exclusion, and signed by the members of the committee who
%'^oted for rejecting them, and the report shall be entered on the journals of both
Louses, who shall, on the day after the report is made, meet and declare the persons
duly elected, and if no election of President has happened, then the House of Repre-
sentatives shall immediately proceed, as the Constitution directs, to elect a President.

Sec. 11. And be it further enacted, That when the grand committee shall have been
duly formed according to the directions of this act, it shall not be in the power of
either house to dissolve the committee or to withdraw any of its members.

Sec. 12. And t)e it further enacted, That it shall be the duty of the executive authority
•of each State to cause three copies of the law, resolution, or act of the State legisla-
tures, respectively, under which electors are chosen or appointed, to be made, certified,
and delivered to the electors in such State before they give their votes, and the electors
shall annex one of the said copies to each list of their votes.

Sec. l:?. And be it further enacted, That all petitions respecting the election of Presi-
dent and Vice-President of the United States shall be presented and read in the Senate
of the United States, and remain there until delivered to the grand committee, at
which time each petition shall be read in the presence of both houses ; but no petition
shall be received after the certificates of the electors shall have been opened, read, and

committed to the grand committee, nor unless it is signed by at least citizens

of the State where the votes complained of wei'e given.

Sec. 14. And be it further enacted, That persons petitioning against the votes given
by any of the electors of President and Vice-President of the United States, and per-
sons desirous of supporting such contested votes, may respectively obtain testimony
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 mendjers of the House of Representatives of the United States, and to
compel the attendance of witnesses ; " aud the rules, regulations, provisions, and jieu-
alties of the said act shall be, and they are hereby, extended to cases arising under
this act, as fully and absolutely as if the same were herein recited and enacted : Pro-
vided, always. That the testimony thus taken shall be transmitted to the Seci'etary of
the Senate of the United States,mstead of beingtransmittedto the Clerk of the House
of Representatives, as is directed by the said act : And provided also. That all testi-
mony taken in pursuance of this act shall be transmitted and delivered to the Secre-
tary of the Senate on or before the day ui)on which the certificates of the electors of
the President and Vice-President of the United States are to be opened.

March 2r>, 1800.

A motion was made to strike out the ten first sections of the bill aud insert the
following :

Whereas, On an election of President and Vice-President of the United States, c^ues-

PROCEEDINGS AND DEBATES IN CONGRESS. 19

tions may arise whether au elector has been appointed in a mode airthorizcd by the
Legishxtnre of his State or not : whether the time at which he was chosen and the day
he gave his vote were those determined l)y Congress: whether he were not at the time
a Senator or Representative of the United States, or hekl an office of trust or profit
nnder the United States: wliether one at least of the persons he has voted for is an
inhabitant of a State otlier than his own: whether the electors voted by ballot, and
have signed, certified, and transnutted 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 adop-
tion of the Constitution, were thirtj'-five years old, and had been fourteen years resi-
dent witliin the United States: And the Constitution of the United States having di-
rected 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," from
which the reasonable inference and practice lias been that tliey are to be counted by
the members composing said Houses, and brought there for that otifice, no other being
assigned them ; and inferred the more reasonably as thereby the constitutional weight
of each State in the election of tliose high officers is exactly preserved in the tribunal
which is to judge of its validity; the number of Senators and Representatives from
each State, composing the said tribunal, being exactly that of the electors of the same
State :

Sectiox 1. Be it enacted, cfc, That whensoever the members of the Senate and
House of Representatives shall be assembled for the i)urpose of having the certificates
of the electors of the several States opened and counted, the names of the several
States shall be written on dift'erent and similar tickets of paper, and put into a ballot-
box, out of Avhich one shall bo diawn at a time; and so soon as one is drawn, the
packet containing tlie certificate of that State shall be opened by the President of the
Senate, and shall then be read, and then shall be read also the petitions, 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 (piestion pro-
pounded 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 80 on, one after another, until the whole of the votes shall be counted ; and if the-
counting cannot be completed in one day, tlie members of the said two Houses may
adjourn from day to day until it be completed.
A division of the (juestiou was called for, and that it first be taken on striking out>
The motion to strike out (see xiroceediugs March 27) was ijassed in the negative —
yeas 10, nays 15 ; as follows :

Yeas — Messrs. Anderson, Baldwin, Bloodworth, Cocke, Franklin, Hillhouse, Lang-
don, Mason, Nicholas, and Pinckney.

Nays — Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Lati-
mer, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells.

March 27, 1800.
Ou motion to strike out the seventh section, as follows :

Sec. 7. And be it further enacted, That the grand committee shall haA'e pow-er to in-
quire, examine, decide, and report upon the constitutional qualifications of the persons
voted for as President and Vice-President of the United States ; upon the constitutional
qualifications of the electors appointed by the difiereut States, and whether their ap-
pointment was authorized by the State Legislature or not, or made according to the
mode pi^escribed by the Legislature; upon all petitions and exceptions against corrupt,
illegal conduct of the elector's, orforce, 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: Provided aJwai/s, That no petition, or excejition, shall be granted oral-
lowed by the grand committee which shall have for its object to draw into question
the number of votes ou which any elector in any of the States shall have been declared
appointed.
It passed in the affirmative — yeas 1.5, nays 12; as follows:

Yeas — Messrs. Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Hillhouse, Lati-
mer, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells.

Nays — Messrs. Anderson, Bingham, Bloodworth, Cocke, Franklin, Langdou, Laurance,
Livermore, Marshall, Mason, Nicholas, and Pinckney.

Mr. Pinckney discussed the bill at length. Upon the power of Congress over the
electoral vote he said : " Knowing that it was the intention of the Constitution to
make the President completely independent of the Federal Legislature, I well remem-
ber it was the object, as it is at present not only the spirit but the letter of that iu-
stj'ument, to give to Congress no interference in or control over the election of a Presi-
dent. It is made their duty to count over the votes in a convention of both Houses,

20 COUNTING THE ELECTORAL VOTE.

aniV^or the President of the Senate to dechire who has the majority of the votes of the
electors transmitted. It never was intended, nor conkl it have been safe, in the Con-
stitution, to have given to Congress thus assembled in convention the right to object
to any vpte, 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 tlie guards that are necessary to prevent disqualified or im-
X)roper men voting, and to insure the votes being legally given, rests and is exclusively
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 qualilications, with
the State Legishitures, 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 admit the votes of States, would have been so gross and dangerous
an absurdity as the framers of the Constitution never could have been guilty of. How
could they expect that in deciding on the election of a President, particularly where
such election was strongly contested, that party spirit would not prevail, and govern
every decision? Did they not know how easy it was to raise objections against the
votes of particular elections, and that in determining upon these it was more than
probaltle the members would recollect their .s/f/cs, their favorite candidate, and some-
times their own interests? Or must they not have supposed that, in putting the ulti-
mate 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 assum-
ing and exercising that independence in the performance of his duties upon which the
safety and honor of the Government must forever rest?

" But it is said, are Congress bound to receive every vote of an elector, whether it is
constitutionally given or not ? Suppose votes are sent for a person not a citizen, or four-
teen years a resident of the United States, or under thirty-five years of age, ortliat the
Legislature of a State has 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 re-
jected ?

" These being the avowed reasons for introducing tliis bill, I answer them by observ-
ing that the Constitution having directe<l that electors shall lie appointed in the man-
ner the Legislature of each State shall direct, it is to be taken as granted that the State
Legislatures will perform their duties, and make such directions as only qualified men
shall be returned as electors. The disqualifications agaiust 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 latter is a
provision which goes unanswerably to prove the solidity of my objections to this bill,
and to show how extremely guarded the Constitution is in preventing the members of
Congress from having any agency in the election exc(!pt merely iti counting the votes.
They well knew that to give to members of Congress a right to give votes in this
election, or to decide upon them when given, was to destroy the independence of the
Executive and make him the creature of the Legislature."

Mr. Pinckuey further said, in other parts of his speech, "that no power or authority
is given to Congress, even when both Houses are assembled in convention, further than
to open and to count the votes, and declare who are President and Vice-President, if
an election has been made ;" " that so far from appointing committees to receive me-
morials or petitions respecting the election, or decide upon it, or so far from having
any right to delegate an authority on this subject, that Ccmgress shall not themselves,
even when in convention, have the smallest power to decide on a single vote." " I have
intentionally gone into repetitions on this subject to show how utterly unconstitutional
it would be for Congress, either acting in their separate chambers or in conventiou, to
attempt to assume to themselves the power to reject a single vote."

Mr. Pinckuey, onthenecessityof guard ingagaiust violations of the Constitution, such
as has been suggested by friends of the bill, said : " 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 integrity of their executives. That the Constitution makes this dependence neces-
sary, and as we have never yet been disappointed, we are to hojie 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 returns, or they must im-
mediately 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 forward double returns. In every State where the elec-
tion is strongly contested there will, of course, be a minority. It will be easily known
by the measures of Congress to which candidate the majority of that body inclines, and
whose friends will compose the committee that are to be thus packed and selected. If
the minority in a particular State find that the candidate they have unsuccessfully sup-
ported is the favorite one with the majority of Congress, or their committees, thej" will
easily discover the means of raising objections to the valdity of the return of the elect-
ors, insistthat they themselves are elected, proceed to the length of meeting and voting,

PEOCREDINGS AND DEBATES IN CONGRESS. 21

and transmit to Conoress a double return. It will not be difficult for them to accom-
pany their return with plausible reasons, and perhaps with such uufounded assertions,
and specious although false documents, as to give to the committee some colorable
reasou for rejecting the return of the electors certified l)y the governor, and admitting
the other. Knowing the situation of the Union ; how differently some States think
from others on political questions; how divideil Congress have been for some years on
certain great and trying subjects ; who that is a friend to harmony and the Constitu-
tion, and to that easy, trauquil mode of deciding these elections which has hitherto
prevailed, can wish to go into a measure so calculated to ijroduce unceasing disputes,
and to tlirow almost every State into scenes which can never arise but from this bill."

The bill passed the Senate by a vote of 16 to 12, and its title is as follows : " An act
to prescribe the mode of deciding disputed elections of President and Vice-President of
the United States." The vote was as follows :

Yeas — Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Hill-
house, Latimer, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells.

Nays— Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon,
Livermore, Marshall, Masou, Nicholas, aud Pincknej'.

The bill as it passed the Senate is in these words :

A bill prescriljiiiji the mode of flecidino; disputed elections of President and Vice-President of the
United States, as agreed to be aiiicudtil iu Senate March 10, aud ordered to be engrossed as amended
for a third reading (m the 21st of March, IffOO.

Section 1. Be it enacted hi/ the Senate and Rouse of Bepresentatives of the United States
of America in Congress assembled, That on the day before the second Wednesday in Feb-
ruary, next following the day when a President and Vice-President shall have been
voted for by the electors, it shall be the duty of the Senate and House of Represent-
atives of the United States to choose, by ballot, in each house, six members thereof.
The Senate, immediately after this choice, shall nominate, by ballot, three of its mem-
bers, and transmit their names to the House of Representatives, who shall, bj' ballot,
choose one of the three, and the thirteen persons thus chosen shall form a grand com-
mittee, aud shall have power to examine and liually to decide disputes relative to
election of President aud Vice-President of the United States, as is hereinafter lim-
ited aud prescribed : Provided, always, That no person shall be capable of serving on
this committee who shall be one of the hve highest candidates out of whom a Presi-
dent of the United States may be chosen l)y the House of Representatives, in case no per-
son should be foundto have a majority of the whole number of the votes of the elect-
ors appointed by the different States.

Section 2 is identical with the same section of the preceding bill.

Section 3 is also identical with the same section of the preceding bill, with the
excex)tion that after the word " House," iu Hue three, the following words are inserted,
"before it adjourns."

Section 4 is the same as section four of the foregoing bill, with the exception of the
oatli, which reads as follows :

"I, A. B., do swear (or affirm, as the case may be) that I will impartially
oxamiue the votes given bj'^ the electors of President and Vice-President of the United
States, together with the exceptions and petitions against them, and a true judgment
given thereon agreeable to the Constitution aud laws, aud according to the evidence:
so help me God."

Section 5. And he it further enacted. That after the grand committee shall have been
appointed aud sworn in the same manner herein directed, the person chosen by the
House of Representatives out of the nomination by the Senate, shall act as chairman
of the committee ; they meet on everj' day (Sundays excepted) from the time of their
appointment until they shall make their final report ; they shall sit with closed doors,
and a majority of the members may proceed to act, and if any members of the com-
mittee appointed by either house should die, or become unable to attend after his ap-
pointment, the committee, before they proceed further, shall notify both houses of
such death or inability ; and the house by which such member was appointed shall im-
mediately proceed to choose another member, by ballot, to supjjly such vacancy, and
the member thus chosen shall be sworn or affirmed by the President of the Senate ;
and if the chairman of the committee shall die, or become unable to attend after his
appointment, the committee, before they proceed further, shall notify both houses
of such death or inability ; the Senate shall then nominate three of its members, out
of whom the House of Representatives shall choose according to the provision of this
act, who shall be sworn or affirmed by the President of the Senate, and shall thence-
forth be the chairman of the said committee, and the person or persons thus appointed
and sworn or affirmed shall henceforth have and exereise the powers necessary to
supply such vacancy.

Sec. 6. And he it further enacted, That the grand committee shall have power to send
for persons, papers, and records, to compel the attendance of witnesses, to administer

22 COUNTING THE ELECTORAL VOTE.

oaths or affirmations to all persons examined before them, and to pnnish contempts of
witnesses refusing to answer as fully and absolutely as the Supreme Court of the
United States may or can do in causes depending therein ; and the testimony of all
witnesses examined before the committee shall be reduced to writing by the secretary
of the committee, and shall be signed by the witness after his examination is closed.
And if any i:)erson, sworn and examined before this committee, shall swear or affirm
falsely, such person thereof convicted shall incur the pains, penalties, and disabilities
inflicted by the laws of the United States upon willful and corrupt perjury.

Section 7 is identical with the same section in the preceding bill.

Section 8 is the same as section eight of the pi'eceding bill, with the exception
that after the word "not," in line five, the foUo wing is substituted: "or made accord-
ing 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: Provided, alwai/s, That no petition or exception shall
be granted or allowed by the grand committee which shall have for its object to draw
into cxuestiou the number of votes on which any elector in any of the States shall have
been appointed."

Sections 9, 10, and 11 are the same as similar sections of the preceding bill.

Sec. 12. And be it further enacted, That it shall be the duty of the executive author-
ity of each State to cause three copies of the law, resolution, or act of the State legis-
latures, respectively, under which electors are chosen or appointed, to be made, certi-
fied, and delivered to the electors in such State before they give their votes, and the
electors shall annex one of the said copies to such list of their votes. And it shall
hereafter be the duty of the electors to express specially in their certificates the time,
the place, and the manner of giving their votes.

Section 13 strikes out of the same section of the preceding bill all after the word
" committee," in line six, and inserts the following: "Nor shall an jf^ petition against
the qualifications of a candidate or elector, or for improper conduct in au elector, be

received unless notice thereof be previously given to the person whose

qualifications are contested, or whose improper conduct is petitioned against.

Section 14 strikes out of section 14 of the above bill all after the word "States," in
line eleven, and adds the following: "On or before the day upon which the certificates
of the electors of the President and Vice-President of the United States are to be
opened."

In the House of Eepresextatives, March 31, 1800.

This bill was referred to the Committee of the Whole House on April 1. It was acted
upon April 16. Mr. John Marshall, afterward Chief-Justice, after speaking of the im-
portance of the subject before the committee and the necessity of some salutary mode
being adopted for this object, exjjressed his doubts as to the propriety of two points
in this first section of the bill, to wit : First, that the Senate were to name the chair-
man 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 as a substitute. Some debate
was had on this motion, when Mr. Nicholas, expressing a desire to acquire all the inf oi--
uiation that was necessary to digest the new principles, moved the committee to rise ;
which was done accordingly. April 17, the bill was considered in Committee of the
Whole. Mr. Eandolph moved to amend the amendment by striking out that part which
directs the grand committee to be chosen by ballot, and inserting that they shall be
chosen by lot. Mr. Nicholas rose and, after noticing the amendments which had been
ofiefed and animadverting at considerable length upon the unconstitutionality 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. On April 18, the bill coming up
again, Mr. Harjier moved it be postponed until Monday. Mr. Nicholas, after express-
ing his abhorrence of the principles contained in the bill, moved that it be postponed
till the first Monday in December next. The motion was lost — 48 to 52 ; as follows :

Yeas — Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J.
Cabell, Gabriel Christie, Matthew Clay, William Charles Cole 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, Thomas
Hartley, Joseph Heister, Archibald Henderson, David Holmes, George Jackson, James
Jones, Aaron Kitchell, Michael Leib, Matthew Lyon, Nathaniel Macon, Peter Muhlen-
berg, Anthony New, John Nicholas, Jose])h H. Nicholson, John Randolph, John Smiley,
John Smith, Samuel Smith, Richard Dobbs Spaight, Richard Stanford, David Stone,
Thomas Sumter, Benjamin Taliaferro, John Thomiison, Abram Trigg, John Trigg, Philii>
Van Cortlandt, Joseph B. Varnnm, and Robert 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 Eldmond, Thomas
Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey

PROCEEDINGS AND DEBATES IN CONGRESS. 23

Goodrich, Eliziir Gootlricli, William Gordon, Roger Griswold, William Barry Grove,
Robert Goodloe Harper, William H. Hill, Benjamin Huger, James H. Imlay, Henry
Lee, Silas Lee, Samnel Lyman, James Linn, John Marshall, Lewis R. Morris, Abraham
Nott, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Piatt, Leven Powell, John
Reed, John Rntledge, jr., Samnel Sewall, James Sheafe, William Shepard, George
Thatcher, John Chew Thomas, Richard Thomas, Peleg Wadsworth, Robert Wain,
Lemuel Williams, and Henry Woods.

Mr. Harper's motion then prevailed — ayes 54. On Monday, April 26, Mr. Harper
moved that the Comniittce of the Whole should be discharged from the further consid-
eration of the bill, for the purpose of committing it to a select committee. He thought
some essential alterations were wanting, which could not be incorporated in the present
bill in the House. 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 committee at all or not, before its commitment. The.motion was carried —
yeas 54. Messrs. Marshall, Sewall, Chauncey Goodrich, Harper, Nicholas, Dennis, and
Bayard were appointed said committee. Friday, April 25, the bill was reiJorted back by
Mr. Marshall, as follows :

REPORT.

The committee to whom Avas referred a bill from the Senate, prescribing the mode of
deciding disputed elections of Pi"esident and Vice-President of the United States,
recommended to the House to agree to the said bill, with the following amendments :
Strike out from the word "assembled" in the second line of the first section to the
end of the bill, and insert in lieu thereof the 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 thereof. 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 might relate to the number of votes by which the electors may have been
appointed : Provided always, That no person shall be capable of serving on this com-
mittee who shall be one of the five highest candidates from among whom a President of
the United States may be chosen by the House of Representatives, in case no person
should be found to have a majority of the whole number of the votes of the electors
appointed by the difterent States.

Sec. 2. And he it further enacted, That the President of the Senate shall deliver to the
members of this joint committee appointed from the Senate, all the petitions, excep-
tions, and memorials against the votes of the electors, or the persons for whom they
may have voted, together with the testimony accompanying the same, and all docu-
ments relative thereto of which he may be possessed, other than those inclosed in the
packets containing the certificates of the votes of the electors ; and the Speaker of the
House of Representatives shall deliver to the members of the joint committee ap-
pointed from that house all the documents relative to the votes for President and. Vice-
President of which he may be possessed.

Sec. 3. And be it further enacted. That the joint committee shall meet on every day
(Sundays excepted) from the time of their appointment until they make their report.
Six members, of whom there must be three from each house, may proceed to act. If
nya member of the committee appointed by either house should die, or become unable
to attend after his appointment, the committee, before they proceed further, shall notify
both houses of such death or inability; and the house by which such member was
appointed shall immediately proceed to choose another member, by ballot, to supply
such vacancy.

Sec. 4. And be it further enacted, That the joint committee shall have power to send
for persons and papers, to compel the attendance of witnesses, to administer oaths or
affirmations to all persons examined before them, and to punish contempts of witnesses
refusing to answer, as fully and absolutely as the Supreme Court of the United States
mayor can do in causes depending therein; and the testimony of all witnesses exam-
ined before the committee shall be reduced to writing by the clerk of the committee,
and shall be signed by the witness after his examination is closed. And if any person
sworn and examined before this committee shall swear or afiirm falsely, such person,
being thereof convicted, shall incur the pains, penalties, and disabilities inflicted by
the laws of the United States upon willful and corrupt perjury.

Sec. 5. And be it further enacted, That it shall be the duty of the marshals of the
several districts of the United States, and of their deputies, to serve all process directed
to them and signed by the chairman of the joint committee ; and for such services they
shall receive the fees allowed for services of similar process issued by the Supreme
Court of the United States ; all witnesses attending the committee in consequence of
summons or other process, shall receive the same compensation as witnesses attending
the Supreme Court of the United States.

24 COUNTING THE ELECTORAL VOTE.

Sec. 6. Jnd he it furilier enacted. That the joint committee shall appoint a clerk who
shall keep a journal of their proceedings, under their direction, to be reported to the
Senate and House of Kepresentatives.

Sec. 7. And be it further enacted, That before the houses shall assemble for the pur-
pose of counting the votes, each house shall choose, 1)y ballot, two members thereof
as tellers, whose duty it shall be to receive the certilieates of the electors from the
President of the Senate, after they shall liave been opened and read, and to note in
writing the dates of the certificates, the names of the electors, the time of their elec-
tion, and the time and place of their meeting, the number of votes given, and the names
of the persons voted for ; and also the substance of the certificates from the executive
authority of each State, accompanying the certificates of the electors ; and the min-
utes thus made by the tellers shall be read in the presence of both houses, and a copy
thereof entered on the journals of each house.

Sec. 8. And he it further enacted, That so soon as the joint committee shall have
made the examinations and taken and digested the testimony, a report of their pro-
ceedings shall be made both to the Senate and House of Re'presentatives, and shall
be inserted on the journals of each house. The said report shall contain all the peti-
tions, exceptions, and memorials against the votes of the electors or the persons for
whom they have voted, together with the testimony, and arranging with each peti-
tion, exception, niemorial, and vote, the testimony relative thereto, but without giv-
ing any opinion thereon. The report shall also contain a copy of tlie law, resolution,
or act of the State legislatures, respectively, under which the electors of the President
and Vice-President of the United States, whose votes are to be counted, were chosen.
So soon as this report shall have been made and entered on the journals, the Senate
and House of Eepresentatives shall meet at such place as may be agreed on for the
purpose of counting the votes for President and Vice-President of tlie United States.
The names of the several States shall then be written under the inspection of the
Speaker of the House of Representatives on separate and similar pieces of paper, and
folded up as nearly alike as may be and put into a ballot-box, and taken by a
member of the House of Representatives, to be named by the Speaker thereof ; out
of which box shall be drawn the paper on which the names of the State are written,
one at a time, by,a member of the Senate, to be named by the President thereof, and
so soon as one is drawn the packet containing the certificates from the electors of that
State shall be opened by the President of the Senate, and then shall be read, also, the
petitions, depositions, and other jiapers concerning the same, and if no exceptions
are taken thereto, all the votes contained in such certificate shall be counted ; but if
any exception be taken, the person taking the same shall state it directly and not
argumeutatively, and sign his name thereto ; and, if it be founded on any circumstance
appearing in the report of the joint committee, and the exception be seconded by one
member from the Senate and one from tlie House of Representatives, each of 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 ques-
tion 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 ajjartment as before and the count shall be resumed. And if the two houses
have concurred in rejecting the vote or votes objected to, such votes or votes shall not
be counted ; but unless both houses concur such vote or votes shall be counted. If
the objection taken as afore mentioned shall arise on the face of the papers opened by
the President of the Senate in presence of both houses, and shall not liave been no-
ticed in the report of the joint committee, such objection may be referred to the joint
committee to be examined and reported on by them iu the same manner and on the same
principles as their first report was made; but if both houses do not concur in refer-
ring the same to the committee, then such objection shall be decided on iu like man-
ner as if it had been founded on any circumstance appearing in the report of the
committee. 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 State thus drawn shall
be proceeded on as is hereinbefore directed, and so on, one after another, until the
whole of the vote shall be counted. The two houses may adjourn from day to day,
passing over Sunday, until the count shall be completed. When a motion for adjourn-
ment shall be made by a member of either house, and seconded by a member from
each house, the question thereon shall be taken in the two houses separately, and if
they do not concur they shall proceed in the count.

Sec. y. And he it further enacted. That when the joint committee shall have been duly
formed, according to the directions of this act, it shall not be in the liower of either
house to dissolve the committee or to withdraw any of its members.

Sec. 10. And he it further enacted, That it shall be' the duty of the executive author-
ity of each State to cause three copies of the law, resolution, or act of the State legis-
latures respectively under which electors are chosen or appointed to be made, certified

PKOCEEDINGS AND DEBATES IN CONGRESS. 25

under the seal of the State and delivered to the electors iu such State, before they give
their votes, and the electors shall annex one of the said copies to each list of their votes,
and it shall be the further duty of the executive authority of each State, as soon as may
be, and within days after the appointment therein of electors of President and Vice-
President of the United States, to cause three other copies of the said law, resolution,
or act, together with a complete list of the electors appointed and the time of their
election, to be made and certified as aforesaid, and to transmit them inclosed, noting
on each the contents of the packets, one to the President of the Senate, one to the
Speaker of the House of Representatives, and one to the Secretary of State of the
United States ; and it shall be the duty of the Postmaster-General and postmaster
at the seat of Government, to whom or to whose knowledge such ]iackets may come,
to deliver them to the officers respectively to whom they may l>e directed, or in case
of the absence from the seat of Government of such officer, to deliver the packet to
him directed to the Secretary of the Senate, tlie Clerk of the House of Eepresenta-
tives, or the chief clerk of the Department of State as the case may be ; and it shall
hereafter be the duty of the electors to express specially in their certificates the time,
the place, and the manner of giving their votes.

Sec. 11. And he it further enacted, That all petitions respecting the election of Presi-
dent and Vice-President of the United States shall be presented and read in the Sen-
ate of the United States, and then be transmitted to the House of Representatives,
where they shall be read and afterward delivered to the joint committee, but no peti-
tion shall be received after the ; nor shall any petition against the qualifications

of a candidate or elector, or lor improi^er conduct in an elector, be received, unless ten
days' notice thereof iu writing be previously given to the person wliose qualifications
are contested, or whose improper conduct is petitioned against.

Sec. 12. And he it further enacted, That persons petitioning against any of the votes
given by any of the electors of President and Vice-President of the United States,
and persons being desirous of supporting such contested votes, may respectively apply
to any judge of the courts of the United States, or to any chancellor, justice, or judge
of a superior court, or county court, or court of common pleas of any State, or any
mayor, or recorder, or intendant of a town or cit^y, who shall thercTipon issue his war-
rant of summons, directed to all such witnesses as shall be named to him by such ap-
plicant or his agent duly authorized for that purpose, and requiring the attendance of
such witnesses before him, at some convenient time and place, to be expressed in the
warrant, in order to be then and there examined, in the manner hereinafter provided,
touching the subject-matter of the aforesaid application. '

Sec. 13. And he it further enacted, That every such witness as is above mentioned
shall be duly served with such warrant by a copy thereof being delivered to him or
her, or left to his or her usual place of abode; and that such service shall be made a
convenient time before the day on which the attendance of such witness is required,
which time the magistrate issuing the warrants is hereby authorized and required to
fix for each witness at the time of issuing it, having respect to the circumstances of
such witness, and the distance of his or her residence from the place of attendance.

Spx. 14. And he it further enacted, That any person, being summoned in the manner
above directed, and refusing or neglecting to attend, iiursuant to such summons, unless
in case of sickness or other unavoidable accident, shall forfeit and pay the sum of
twenty dollars, to be recovered, with costs of suit, by the party at Avhose instance the
warrant or summons was issued, and for his use, by action of debt, in any court, or
before any tribunal of the United States, or any State, having jurisdiction to the
amount of such penalty.

Sec. 15. And he it further enaeted, That persons desirous of taking testimony either
to support a petition against any contested votes for President and Vice-President of
the United States, or to support any such vote or votes, shall previously advertise the
time and place for taking such testimony, together with the points intended to be

established thereby, for weeks successively, in some one of the gazettes published

at the seat of government of the State in which the Azotes to which the testimony is
to relate were given, provided there be a gazette published at the seat of government,
and in some one of the gazettes near the place at which the testimony is to be taken,
if there be any gazette published nearer such place than the seat of government.

Sec. 16. And he it further enacted, That all witnesses who shall attend in pursuance of
the said summons, and all other witnesses who shall be produced at the time and place
aforesaid, shall then and there be examined on oath or affirmation aforesaid, or, in
case of his absence, by any other such magistrate as is authorized by this act to issue
such warrant, toirching all such matters and things respecting the votes about to be
contested or supported as may have been suggested in the notice hereinbefore directed
to be published ; the testimony given on which examination, together with the ques-
_ tions proposed to the witnesses respectively, the said magistrate is hereby authorized
and required to cause to be reduced to writing, iu his presence, and to be duly attested
by the witnesses respectively, after which he shall transmit the said testimony, duly
certified under his hand, covered and sealed up, to the President of the Senate, to-
ge'her with a copy of the warrant of summons and noti ication issued iu that behalf
and the original affidavit proving the service of such notification.

26 COUNTING THE ELECTORAL VOTE.

Sec. 17. Jvd be it further enacted, That in case auy judge, justice, cliaucellor, mayor,
recorder, or iuteudaut, as aforesaid, to whom the application herein mentioned shall be
made shall, by reason of sickness, necessary absence, or unavoidable accident, be rendered
tinable to attend at the time andplace fixed for the examination aforesaid, it shall be law-
ful for him to certify the matter and the proceedings had by him in that behalf to any
other magistrate of any of the descriptions aforesaid, which said magistrate thereupon
shall be, and hereby is, authorized to attend, at such time and place, and to proceed
touching the said examinations, in all respects, as the magistrate issuing the warrant
of summons might have done by virtue of this act.

Sec. 18. And be it further enacted, That when no such magistrate as is herein author-
ized to receive applications as aforesaid and proceed upon, shall reside within any
district for which an election about to be contested shall have been lield, it shall be
lawful to make such application to any two justices of the peace residing within the
said district, who are hereby authorized in such case to receive such application, and
jointly to proceed upon it in the manner hereinbefore mentioned.

Sec. 19. And be it further enacted, That every witness attending by virtue of such
warrant of summons as is herein directed to be issued, shall be allowed the sum of
seventy-five cents for each day's attendance, and the further sum of five cents for
every mile necessarily traveled in going and returning, which allowance shall be
ascertained and certified by the magistrate taking the examination, and shall be paid
by the party at whose instance such witness was summoned, and such witness shall
have an action for the recovery of the said allowance before any court or magistrate
having competent jurisdiction according to the laws of the United States, or of any
State, in which action the certificate of the magistrate taking the said examination
shall be evidence.

Sec. 20. And be it further enacted, That each judge, justice, chancellor, mayor, re-
corder, intendaut, and justice of the peace, who shall be necessarily employed, pur-
suant to the directions of this act, and all sheriffs, constables, or other officers who may
be employed to serve any of the warrants of summons, or notifications herein provided
for, shall have and receive from the party at whose instance such service shall have
been performed such fee or fees as are or may be allowed for similar services in the
^States wherein such service shall be rendered respectively.

Strike out the whole of the title, and insert in lieu thereof the following : "An act
prescribing the mode of counting the votes for President and Vice-President of the
United States."

It was committed to the Committee of the Whole House, Monday next, the 28th. The
bill came up on the 29tli.

Mr. Nicholas saw no use for this conmiittec, whose only business was to examine
testimony, which, being next to nothing for them to do, would enable them better
to design mischief 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
were connected should be stricken out. He therefore moved to strike out the first sec-
tion of the bill. This was negatived — 39 to 43. Mr. Gallatin moved to amend a section
which provided the means of ascertaining the votes. Mr. Marshall answered. The
committee rose without a decision. Next day, April 30, the House resumed the consid-
eration of the bill in the Committee of the Whole. A motion of Mr. Gallatin was under
consideration to insert, instead of the principle that in cases 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 question should arise at counting 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." This motion called forth a long debate, and on the
division was negatived — 44 to 46. The committee rose and reported.

May 1, the House proceeded to consider the amendment reported the day before from
the Committee of the Whole House. A motion was made to amend the said amendment

by striking out in the first 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 thereof; and the per-
sons 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 electors may
have been appointed." The motion was negatived — 41 to 47 — as follows :

Yeas — Willis Alston, Theodoras Bailey, Phanuel Bishop, Robert Brown, Samuel J.
Cabell, Gabriel Christie, Matthew 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 Lyon, James Linn, Nathaniel
Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, John

PROCEEDINGS AND DEBATES IN CONGRESS. 27

Randolph, Jolin Smiley, John Smith, Richard Stanford, David Stone, Thomas Sumter,
John Thompson, Abram Trigg, John Trigg, Joseph B. Varuum, and Robert Williams.

Nays — George Baer, Bailey Bartlett, James A. Ijayard, Jonathan Brace, John Brown,
Christopher G. Champlin, William Cooper, Samuel W. Dana, Franklin Davenport,
John Dennis, George Dent, Joseph Dickson, AVilliam Edmoud, Thomas Evans, Abiel
Foster, Dwight Foster, Jonathan Freeman, Henry Gh>u, Chauncey Goodrich, Elizur
Goodrich, Roger Griswold, Robert Goodloe Harper, William H. Hill, Benjamin Huger,
Henry Lee, Silas Lee, Samuel Lyman, John Marshall, Lewis R. Morris, Abraham Nott,
Robert Page, Josiah Parker, Thomas Piuckuey, Jonas Piatt, Leveu Powell, John Reed,
JohnRutledge, jr., Samuel Sewall, .James Sheafe, William She])ard, George Thatcher,
John C. Thomas, Richard Thomas, Peleg Wadsworth, Robert Wain, Lemuel Williams,
and Henry Woods.

A motion was then made to amend the amendment by striking out of the eighth sec-
tion the following :

" And sign his name thereto, and if it be founded on any circumstance appearing in
the report of the joint committee, and the exception be seconded by one member of the
Senate and one from the House of Representatives, each of whom shall sign the said
exception as having seconded the same, then each House shall immediately retire,
without question or debate, to its owu 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, infoi'ming them that the House
sending the message is ])r»-pared to resume the count, and when such message shall have
been received by both Houses, they shall again assemble in the same apartment as be-
fore, and the count shall be resumed. And if the two Houses have concurred inreject-
iug 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 com-
mittee, to be examined and reported on by them, in the same manner and on the
same principles as their tirst 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 appearing in the report of
the committ(M^," and insert, in lieu thereof, the following: "And the question on the
exception shall immediately, and without debate, be taken by ayes and noes, and de-
cided by a majority of the members of both Houses then present." The motion was
decided in the negative — 43 to 46 — as follows:

Yeas — Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J.
Cabell, Gabriel Christie, Matthew Clay, William C. C. Clailx)rne, John Condit, Thomas
T. Davis, John Dawson, George Dent, Joseph Eggleston, Lucas Elmeudorf, John Fowler,
Albert Gallatin, Edwin Gray, Andrew Gregg, John A. Hanna, Joseph Heister, David
Holmes, George Jackson, James Jones, Aaron Kitchell, Michael Leib, Matthew Lyon,
James Linn, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nichols, Joseph
H. Nicholson, John Randolph, 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 Edniond, Thomas Evans, Abiel Foster, Dwight Fos-
ter, Jonathan Freeman, Henry Glen, Chauncey Goodrich, Elizur Goodrich, Roger Gris-
wold, Robert Goodloe Harper, William H. Hill, Benjamin Huger, Henry Lee, Silas Lee,
Samuel Lyman, John Marshall, Lewis R. Morris, Abraham Nott, Robert Page, Josiah
Parker, Thomas Piuckuey, Jonas Piatt, Levcn Powell, John Reed, John Rutledge, jr.,
Samuel Sewall, James Sheafe, William Shepard, George Thatcher, John Chew Thomas,
Richard Thomas, Peleg Wadsworth, Robert Wain, Lemuel Williams, and Henry Woods.

The amendment was then amended, in what particular is not stated, and ordered to
bo read the third time. May 2, the bill was read a third time and passed, 52 to 37, as
follows :

Yeas — Messrs. George Baer, Bailey Bartlett, James A. Bayard, Jonathan Brace, John
Brown, Christopher G. Champlin, Samuel W. Dana, John D.ivenport, Franklin Daven-
port, Thomas T. Davis, John Dennis, George Dent, Joseph Dickson, William Edmoud,
Thomas Evans, Abiel Foster, Dwight Foster, .Jonathan Freeman, Henry Glen, Chauncey
Goodrich, Elizur Goodrich, Roger Griswold, William Barry Grove, Robert Goodloe Har-
per, 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 Piatt, Leven Powell, John Reed, John Rutledge, jr., Samuel
Sewall, James Sheafe, William Shepard, Samuel Smith, George Thatcher, John Chew
Thomas, Richard Thonia.'^, Joseph B. Varnum, Peleg Wadsworth, Robert Wain, Lemuel
Williams, and Henry Woods.

Nays — Messrs. Willis Alston, Theodorus Bailey, PhanuelBishop, Robert Brown, Samuel

28 COUNTING THE ELECTORAL VOTE.

J. Cabell, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, John
Dawsou, Joseph Eggleston, Lncas Elmordorf, Albert Gallatin, Edwin Gray, Andi-ew
Gregg, John A. ilanna, Thomas Hartley, Joseph Heister, David Holmes, George Jack-
son, 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 Senate, May 2, 1800,
The Senate took into consideration the amendments of the House of Representatives
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.

May 8, 1800.

Mr. Ross, from the above committee, reported amendments thereto.

The Senate considered the amendments reported by the committee to the House of
Rej)resentatives on the bill j)rescribing the mode of deciding disputed elections of
President and Vice-President of the United States.

On motion to agree to the following amendment reported by the committee :

Section 8, line 49, strike out the word " reiectiug " and insert " admitting," it passed
in the affirmative — yeas 15, nays 11 ; as follows :

Yeas — Messrs. Bingham, Dayton, Dexter, Goodhue, Greene, Gunn, Hillhouse, Lati-
mer, Livermore, Morris, Read, Ross, Schureman, Tracy, and Wells.

Nays — Messrs. Anderson, Baldwin, Blood worth, Biown, Cocke, Foster, Franklin,
Marshall, Mason, Nicholas, and Pinckney.

On motion to strike out the following words from the first section of the amend-
ment 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,
Schureman, Tracy, and Wells.

Nays — Messrs. Anderson, Baldwin, Bingham, Bloodworth, Brown, Cocke, Foster,
Gunn, Laurance, Livermore, Marshall, Mason, Morris, Nicholas, and Pickney.

On motion to agree to the amendment of the House of Representatives, with the
amendments reported, it passed in the affirmative — yeas 16, nays 11 ; as follows :

Yeas — Messrs. Bingham, Dayton, Dexter, Foster, Goodhue, Greene, Gunn, Hillhouse,
Latimer, Laurance, Livermore, Morris, Ross, Scliureman, Tracy, and Wells.

Nays— Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Marshall,
Mason, Nicholas, Pickney, and Read.

In the House of Representatives, May 9, 1800.

The House received this bill with amendments, one of which, "respecting the elec-
tion 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 ;ind Mr. Bayard hoped the House would not concur, as this amendment
very materially changed the principle of the bill, inasmuch as it would put it in the
power or one or two members of either House to require the majority of both Houses
to admit a vote or votes in default of which the whole votes of a State might be totally
rejected. This was contrary to the former will of the House after mature deliberation.

The yeas and nays were called by Mr. Nicholas on the question, " Shall the amend-
ments of the Senate be concurred iu?" and decided in the negative — yeas 15, nays 73;
as follows :

Yeas — Messrs. John Brown, Samuel W. Dana, Franklin Davenport, Dwight Foster,
Chauucey Goodrich, Roger Griswold, James H.Imlay, SamuelLyman, JonasPlatt, James
Sheafe, William Shepard, George Thatcher, Robert Wain, Lemuel Williams, and Henry
Woods.

Nays — Messrs. Willis Alston, George Baer, Theodorus 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, Will-
iam Craik, John Davenport, Thomas T.Davis, John Dawson, George Dent, .Joseph Dick-
sou, Joseph Eggleston, Lucas Elmendorf, Thomas Evans, Abiel Foster, John Fowler,
.Jonathan Freeman, Albert Gallatin, Henry Glen, Elizur Goodrich, Edwin Gray, Andrew
Gregg, John A. Hanna, Robert Goodloe Harper, Thomas Hartley, .Joseph Heister, Will-
iam H. Hill, David Holmes, George Jackson, James .Jones, Aaron Kitchell, John Wilkes
Ivittera, Mich.ael Leib, Matthew Lyon, James Linn, Edward Livingston, Nathaniel
Macon, Peter Muhlenberg, Anthony New, John Nicholas, Abraham Nott, Robert Page,
Thomas Pinckney, Leven Powell, .John Randol])h, John Reed, .John Rutledge,jr., Sam-
uel Sewall, John Smilie, .John Smith, Samuel Smith, Richard Dobbs Spaight, Richard
Stanford, David Stone, Thomas Sumter, John Chew Thomas, Richard Thomas, John

PROCEEDINGS AND DEBATES IN CONGRESS. '29

Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varunm,Peleg
Wadsworth, and Robert Williams.

In Sexate, Mai/ 10, 1800.

The Senate resumed the consideration of the resolution of the House of Representa-
tives ou the amendments to their amendment to the bill prescribing the mode of decid-
ing disputed elections of President and Vice-President of the United States ; and ou
motion 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, Mar-
shall, Mason, Nicholas, and Pinckney.

Nays — Messrs. Bingham, Dayton, Dexter, Greene, Gunn, Hillhouse, Howard, Latimer,
Laurance, Livermore, Morris, Read, Ross, Schureman, Tracy, and Wells.

Resolved, That the Senate adhere to their said amendments.

In tile House op Representatives, May 10, 1800.
The House "adhered to their disagreement to recede," and the bill was lost.

PROPOSED AMENDMENT TO THE CONSTITUTION.

In THE House of Representatives, January 22, 1801.

In the report of Mr. Nicholas, on a proposed amendment to the Constitution, pro-
viding a change in the mode of the appointment of electors, so as to elect them from
districts, much the same as Congressmen are now elected, appears the following :

'' The votes of the electors of the several States are next to bo rendered by ballot,
and when so rendered, they are to be transmitted, in the form of certificates giving
the result of the ballot, to certain oiScers of the Government of the United States.
When the jieriod arrives for opening these certificates and counting the votes in the
presence of the Senate and House of Representatives of the United States, if error or
abuse shall have taken i>lace, no means exist (in case the ballot be in favor of more than
two persons as Presidents and Vice-Presidents) for discriminating between the votes of
those who shall have been duly appointed and returned and those who shall have been
defectively appointed and uudulj' returned as electors. To set aside votes given by
persons not duly appointed, and consequently wanting the competent authority of
electors, no course presents itself in such case save that of vacating the whole ballot of
which the defective vote or votes may be a component part. Thus to deprive a State
of all participation in the election of the President and Vice-President of the United
States, on account of the defective appointment of one or a few of its electors, would
be a serious and painful duty. To vacate such ballot, and thereby to deprive those
candidates for whom the sound votes of such ballot may have been given, of the aid
of that ballot in order at the same time to destroy the eftect of the unsound votes,
might result in giving to others a priority to which, if eftect could bo given to the
really soiind votes, those others might not be entitled. This also presents an embar-
rassing consideration.

"The vacation of a ballot composed of sound and defective votes ought to be the
result of uniform principle ; it ought to take place ou all occasions where a discrimi-
nation cannot bo made or ou none. Not to vacate such ballot, but to permit the elec-
tion of a Chief jMagistrate to bo carried on any occasion by the aid of one or more
defective votes, would be to hazard, in a most eminent degree, the peace of the Union.
It is of the last importance to the happiness of the people of the United States that a
complete conviction should prevail at all times that the person who may be elected
Chief Magistrate of the Union has been really elected by electors duly and really ap-
appointed by those having competent authority for that purpose. It were painful to
anticipate the consequences which would too probably attend a disputed election to the
Presidency. Those consequences might be more calamitous than can be foreseen."

ELECTION FOR THE FOURTH TERM— 1801.

Thomas Jefferson, President.
Aaron Burr, Vice-President.

In Senate, January 23, 1801.
A message from the House of Representatives, by Mr. Oswald, their Clerk :
Mr. President: The House of Representatives have passed a resolution for the ap-
pointment of a committee, ou their part, with such as may be appointed on the part of
the Senate, to ascertain and report a mode of examining the votes for President and

COUNTING THE ELECTORAL VOTE.

Vice-President, and of notifying the persons who shall be elected of their election ; and
to regnlate the time, place, and manner of administering the oath of office to the Presi-
dent; in Avhich they desire the concurrence of the Senate.

January 27, 1801.

The Senate concurred in the foregoing resolution, and appointed Messrs. Morris,
Tracy, and Bingham to be the committee on the part of the Senate.

February Q,\m\.

Mr. Morris, from the joint committee, appointed the 27th of January last to ascer-
tain 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,

Besohrd, That the Senate -will be ready to receive the House of Representatives in the
Senate Chamber on Wednesday next, at twelve o'clock, for the purpose of being present
at the opening and counting the votes for President of the United States; that one per-
son be appointed a teller on the part of the Senate to make a list of the votes for Presi-
dent 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 upon the Journals; and if it shall appear that a choice hath been made
agreeably to the Constitution, such entry on the Journal shall be deemed a sufficient
declaration thereof.

Ordered, That the Secretary notify the House of Representatives of this resolution.

February, 10, 1801.

Ordered, That Mr. Wells be a teller on the part of the Senate for the purpose ex-
pressed in the above resolution.

February 11, 1801.

Ordered, That the Secretary notify the House of Representatives that the Senate is
ready to meet them in the Senate Chambei', for the ])urx)ose 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
certilicates of the electors of sixteen States wore, by the Vice-President, opened and de-
livered to the tellers appointed for that purpose, who, having examined, and ascer-
tained the number of votes, presented a list thereof to the Vice-President; which was
read, as follows :

States.

O
§

SB a

o
H

1
o .

a
o

>iO

-i

6
10
4
9
4

6
16
3
9
4

];1hh1c I slaiul

7
7
3
5

15
3

Pennsylvania

5
21
4
8
3
8
4

.■>
21
4
8
3
8
4

North Carolina

138

Whereupon

The Vice-President declared that the result of the votes, as delivered by the tellers,
was—

That Thomas Jefferson had 73

That Aaron Burr had 73

That John Adams had 65

That Charles Cotesworth Pinckney had C4

That John Jay had 1

PROCEEDINGS AND DEBATES IN CONGRESS. 31

That the •wholenumber of electors who had voted was one hundred and thirty-eight,
of which number Thomas Jefferson and Aaron Burr had a majority ; bnt, the num-
ber of those voting for them being equal, no choice was made by the people, and that,
consequently, the remaining duties devolve upon the House of Representatives.

On which the House of Representatives repaired to their own chamberT

In the House of Representatives, January 22, 1801.

"BcsoJrcd, That Mr. Rutlodge, Mr. Nicholas, Mr. Griswold, Mr. Macon, and Mr. Bay-
ard be appointed a committee on the part of this House, to join such committee as may
be ajipoiuted 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."

January 30, ISOl.

Mr. Bayard submitted the following resolution, to wit:

" JResoJred, Th.n t in the event of its appearing upon the counting and ascertaining of
the votes given for President and Vice-President, according to the mode prescribed by
the Constitution, that an equal number of votes has been given for two persons, that
as soon as the same have been duly declared and entered on the Journals of this House,
that the Speaker, accompanied by the members of this House, shall return to this cham-
ber, and shall immediately proceed to choose one of the two candidates for President ;
and in case upon the lirst ballot there shall not appear to be a majority of the States
in favor of one of the candidates, in such case the House shall continue to ballot for
President, without iuterruption l)y other business, until it shall a|)pear that aPresident
is duly chosen ; and if no such choice should be made upon the first day, the House
shall continue to ballot from day to day till a clioice shall bo duly made."

Ordered, That the consideration of the said motion be iiostponed until Monday next.

Fehruary 2, 1801.

A motion was made and seconded that the House do come to the following resolution,
to wit :

"Resolved, That a committee be appointed to prepare and adopt such rules as, in their
opinion, are proper to be adopted by this House, to be observed in the choice of a Presi-
dent of the United States, whose term is to commence on the 4th day of March next, if,
when the votes which have been given by the electors appointed under the authority
of the States shall have been counted, as prescribed by the Constitution, it shall appear
that no person for whom the electors shall have voted has a majority, or that more
than one person having such majority have Jin equal number of votes."

Ordered, That Messrs. Rutledge, Nicholas, Griswold, Macon, Bayard, Taliaferro, Fos-
ter, Claiborne, Otis, Davis, Morris, Champlin, Baer, Cooper, Linn, and Woods be ap-
pointed a committee, pursuant to the said resolution.

Ordered, That the motion made on Friday last, relative to the mode of commencing
and continuing the ballot for the choice of a President of the United States, be referred
to the committee last ajipointed.

Friday, February G, 1801.

Mr. Rutledge, from the committee appointed on the^ 2d instant to prepare and report
siich rules as, in their opinion, are proper to be adopted by this House to be observed
in the choice of a President of the United States, made a report ; which was ordered to
be considered Monday next.

Monday, February 9, 1801.

The House proceeded to consider the above report, whereupon said report was com-
mitted to a Committee of the Whole House immediately.

The House 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 agree-
ment to the same, with an amendment ; which he delivered in at the Clerk's table,
where the same was read. Tlie House then proceeded to consider the report, where-
upon the amendment reported from the Committee of the Whole House to the said
report was, on the question x>nt thereon, agreed to by the House.

Motions to disagree to the fourth and fifth of the rules were made and passed in the
negative.

It was then

Eesolved, That this House doth agree with the Committee of the Whole House in
their agreement to the said report, as amended, in the w'ords following, to wit :

"That the following rules be observed in the choice by the House of Representatives
of a President of the United States, whose term is to commence on the 4th day of
March next :

"First. In the event of its appearing, upon the counting and ascertaining of the
votes given for President and Vice-President, according to the mode prescribed by the

32 COUNTING THE ELECTORAL VOTE.

Constitution, that no person has a constitutional majoritj^, and the same shall have
been duly declared and entered on the Journals of this House, the Speaker, accompa-
uied by the members of the House, shall return to their chamber.

'•' Second. Seats shall be provided iu this House for the President and members of
the Senate ; and notification of the same shall be made to the Senate.

" Third. The House, on their return from the Senate Chamber, it being ascertained
that the constitutional number of States are present, shall immediately proceed to choose
one of the persons 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 President, without inter-
ruption by other business, until it shall appear that a President is duly chosen.

"Fourth. After commencing the balloting for President, the House shall not
adjourn until a choice is made.

" Fifth. The doors of the House shall be closed during the balloting, except against
the officers of the House.

" Sixth. In balloting the following mode shall be observed, to wit : The Representa-
tives of the respective States shall be so seated that the delegation of each State shall
be together. The Representatives of each State shall, in the first instance, ballot
among themselves, in order to ascertain the vote of that State ; and it shall be allowed,
where deemed necessary by the delegation, to name one or more persons of the repre-
sentation to be tellers of the ballots. After the vote of each State is ascertained, dupli-
cates thereof shall be made ; and iu case the vote of the State be for one person, then
the name of that person shall be written on each of the duplicates ; and iu case the
ballots of the State be equally divided, then the word "divided" shall be written on
each duplicate, and the said duplicates shall be deposited, in manner hereafter pre-
scribed, in boxes to be provided. That for the conveniently taking the ballots of the
several Representatives of the respective States, there be sixteen ballot-boxes provided ;
and that there be, additionally, two boxes provided for receiving the votes of the
States ; that after the delegation of each State shall have ascertained the vote of the
State, the Sergeant-at-Arms shall carry to the respective delegations the two ballot-
boxes, and the delegation of each State, in the presence and subject to the examination,
of all the members of the delegation, shall deposit a duplicate of the vote of the State
in each ballot-box ; and where there is more than one Representative of a State, the
duplicates shall not both be deposited by the same person. When the votes of the
States are all thus tak(Mi in, the Sergeant-at-Arms shall carry one of thejgeneral ballot-
boxes to one table, and the other to a second 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 tellers shall be divided into two equal sets, according to such agreements 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 aiipointnient of teller by any delegation, the Speaker shall iu such case
api>oint. When the votes of the States are counted by the respective 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 maimer aforesaid.

" Seventh. 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 im-
mediately given to the President of the United States, and to the Senate.

"Eighth. All questions which shall arise after the balloting commences, and which
shall be decided by the House voting jjcr capiia to be incidental to the power of choos-
ing the President, and which shall require the decision of the House, shall be decided
by States, and without debate, and iu case of an equal division of the votes of States,
the question shall be lost."

February 9, 1801.

Mr. Rutledge, from the joint committee appointed the 27th of January last to ascer-
tain 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.

Fehruarij 10, 1801.

Mr. Bayard moved that five hundred tickets be printed on which should be the name
of Thomas Jeffersox, and five hundred on which should be the name of Aaron Burr,
and that the members in balloting should be confined exclusively to the use of these.
At the suggestion of the Speaker, " of Virginia " was ordered to be printed after Thomas
Jefferson, and " of New York " after Aaron Burr. The motion was lost.

"liesolved, That this House will attend iu the chamber of the Senate on Wednesday
next, at 12 o'clock, for the purpose of being present at the opening and counting of the
votes for President and Vice-President of the United States ; that Messrs. Rutledge aud
liTicholas be ai^pointed tellers, to act jointly with the teller appointed on the part of

PROCEEDINGS AND DEBATES IN CONGRESS. 33

the Senate, to make a list of the votes for President 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 Consti-
tution, such entry on the journals shall be deemed a sufficient declaration thereof."

February 11, 1801.

Mr. Speaker, attended by the House, then went into the Senate Chamber and took
seats therein, when both Houses being assembled.

The President of the Senate, in the presence of botb Houses, proceeded to open the
certificates of the electors of the several States, beginning with the State of New Hamp-
shire ; 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 President of the
Senate, and are as follows :

[Here the table of electoral votes is inserted. It is exactly the same as that a^ipear-
ing in the Senate proceedings.]

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 Jeffersox, of Vir-
ginia, and Aaron Burk, of New York, having the greatest number and a majority of
the votes of all the electors appointed, and being equal, it remained to 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 prescribed by the Constitution to the choice of
a President of the United States ; and one teller was appointed from each State to ex-
amine the ballots of each State, pursuant to the sixth rule, adopted by the House on
the 9th instant.

On this day nineteen ballotings were had, in each of which Thomas Jefferson re-
ceived the votes of eight States, Aaron Burr received the votes of six States, and the
votes of two States were divided.

Fehruary 12, 1801.

On this day nine ballotings were had, making twenty-eight in all, with the same
result at each ballot as on the day before.

February 13, 1801.

On this day, one ballot, the twenty-ninth, was had, with the same result as on the
two preceding days.

February 14, (Saturday,) 1801.

On this day four ballotings were had, making in all thirty-three, with the same
result as on the three preceding days.

February 16, (Monday,) 1801.

On this day, one ballot, the thirty-fourth, was had, with the same result as on the
preceding days.

February 17, 1801.

On this day the thirty-fiftb ballot was declared with the like result, w-hen, on the
thirty-sixth ballot, the Speaker declared to the House that the votes of ten States had
been given for Thomas Jefferson ; the votes of four States had been given for Aaron
Burr ; and that the votes of two States had been given in blank ; and that, conse-
quently, Thomas Jefferson had been, agreeably to the Constitution, elected President
of the United States for four years from the" 4th day of March next.

Ordered, That Mr. Pinckney, Mr. Tazewell, and Mr. Bayard be appointed a committee
to wait upon the President of the United States and notify him that Thomas Jefferson
is elected President of the United States for the term commencing on the 4th day of
March next.

Ordered, That a message be sent to the Senate to inform them that Thomas Jef-
ferson has been duly elected President of the United States for the term of four years
commencing on the 4th day of March next.

In Senate, February 18, 1801.

Besolved, That the President of the United States be requested to cause to be trans-
mitted to Aaron Burr, esq., of New York, Vice-President of the United States, noti-
fication 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 Washington on the second Wednesday of Feb-
ruary, 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 President ; where-
upon it appeared that Thomas Jefferson, of Virginia, and Aaron Burr, of New
York, had a majority of the votes of the electors, and an equal number of votes ; in
consequence of which the House of Representatives proceeded to a choice of a Presi-

34 COUNTING THE ELECTORAL VOTE.

dent, and have this day notified to the Senate that Thomas Jefferson has hy them
been duly chosen President ; by all of which it appears that Aaron Burr, esq., of New
York, is dnly 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 18th day of February,
1801.

THOMAS JEFFERSON.

CONSTITUTIONAL AMENDMENT, ARTICLE XII.

EIGHTH CONGRESS OF THE UNITED STATES.

At ths first session, ber/uH and held at the city of Washington, in the Territorij of Columbia,
0)1 Monday the seventh day of October, one thousand eight hundred and three.

Resolved by the Senate and House of Representatives of the United States of America in
Congress assembled, {two-thirds of both Houses concurring,) That in lieu of the third para-
graph of the first section of the second article of the Constitution of the L^nited States
the following be proposed as an amendment to the Constitution of the United States,
which, when ratified by three-fourths of the Legislatures of the several States, shall
be valid to all intents and purposes as part of the said Constitution, to wit: '

ARTICLE XII.

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-Presi-
dent, 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 Presi-
dent 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 ; 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 Represent-
atives shall choose immediately, by ballot, the President. But in choosing the Presi-
dent, 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. And if
the House of Representatives shall not choose a President whenever the right of choice
shall devolve upon them, before the 4th day of March, next following, then the Vice-
President shall act as President, as in the case of the death or other constitutional dis-
ability of the President.

The person having the greatest number of A'otes as Vice-President shall be the
Vice-President, if such number be a majority of the whole number of electors ap-
pointed ; 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.

The change in the Constitution necessitated the passage of the following act :
An Act supplementary to the act entitled "An act relative to the election of a Presi-
dent and Vice-President of the United States, and declaring the officer who shall act
as President in the case of vacancies in the offices both of President and Vice-Presi-
dent."

Be it enacted hy the Senate and House of Representatives of the United States of America in
Congress assembled. That whenever the amendment proposed during the present session
of Congress, to the Constitution of the United States, resjiecting the manner of voting
for President and Vice-President of the United States, shall have been ratified by
the Legislatures of three-fourths of the several States, the Secretary of State shall
forthwith cause a notification thereof to be made to the executive of every State, and
shall also cause the same to be published in at least one of the news^Dapers printed in
each State in Avhich the laws of the United States are annually published. The execu-
tive authority of each State shall cause a transcript of the said notification to be de-
livered to the electors appointed for that purpose, who shall first thereafter meet in
such State for the election of President and Vice-President of the United States ; and
whenever the said electors shall have received the said transcript of notification, or
whenever they shall meet more than five days subsequent to the xiublication of the

PROCEEDINGS AND DEBATES IN CONGRESS. 35

ratification of the ahove-mentioueil amendment in one of the newspapers, by the Sec-
retary of State, they shall vote for President and Vice-President of the United States,
respectively, in the manner directed by the above-mentioned amendment ; and having
made and signed three certificates of all the votes given by them, each of which cer-
tificates shall contain two distinct lists, one of the votes given for President and the
other of the votes given for Vice-President, they shall seal np the said certificates,
certifying on each that lists of all the votes of snch State given for President and of
all votes given for Vice-President are contained therein, and shall cause the said cer-
tificates to be transmitted and disposed of, and in every other respect act in conform-
ity with the provisions of the act to which this is a supplement. And every other pro-
vision of the act to which this is a supplement, and which is not virtually repealed
by this act, shall extend and apply to every election of a President and Vice-Presi-
dent of the United States made in conformity to the above-mentioned amendment to
the Constitution of the United States.

And whereas the above-mentioned amendment may be ratified by the Legislatures
of three-fourths of the States, and thereupon become immediately valid, to all intents
and i>urposes, as part of the Constitution, on a day so near the day fixed by law for
the meeting of the electors in several States that the electors shall not in every State
be apprised of the said ratification and may vote in a manner no longer conformable
with the Constitution as amended, whereby several States might be deprived of their
vote in the election of a President and Vice-President: for remedy whereof.

Sec. 2. Be it further enacted, That the electors who shall be appointed in eacli State
for the election of a President and Vice-President of the United States shall at every
such election, unless they shall have received a transcript of the notification of the rati-
fication of the above-mentioned amendmenttothe Constitution, or unless they shall meet
more than five days subsequent to the publication of the said ratification by the Secretary
of State in one of the newspapers of the State, vote for President and Vice-President
of the United States in the following manner ; that is to say: they shall vote for two
persons as President and Vice-President in conformity with the first section of the sec-
ond article of the Constitution, and in other respects act in conformity with the pro-
visions of the act to which this act is a supplement ; and they shall likewise vote for one
person as President and for one person as Vice-President, in conformity with the above-
mentioned amendment of the Constitution ; and in other resi)ects act in conformity
•with the provisions of the first section of this act. But those certificates only of votes
given for President and Vice-President of the United States shall be opened by the
President of the Senate for tlie purpose of being counted which shall contain the list
or lists of votes given in conformity with the Constitution as in force on the day fixed
by law for the meeting of the electors by whom the said votes shall have been given.

Sec. 3. And be it further enacted, That whenever by the provisions of the second sec-
tion of this act it shall be the duly of the electors for any State to vote in conform-
ity both with the Constitution and of the proposed amendment thereto, the executive
authority of such State shall cause six lists of the names of the electors for the State
to be made and certified and to be delivered to the said electors on or before the day
fixed by law for them to meet and vote for President and Vice-President ; and the said
electox's shall inclose one of the said lists in each of the certificates by them made and
sealed in conformity with the provisions of this act and of the act to which this is a
supplement.

Approved March 2G, 1804.

ELECTION FOR THE FIFTH TERM— 1805-1809.

Thomas Jefferson, President.
George Clinton, Vice-President.

In Senate, February 12, 1805.
Eesolved, That the Senate will be ready to receive the House of Representatives in
the Senate Chamber on Wednesday, the 13th instant, February, at noon, for the purpose
of being present at the opening and counting of the votes for President and Vice-Presi-
dent of the United States ; that one person be appointed a teller on the part of the Sen-
ate, 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 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.

Fehruary 13, 1805.
On motion.

Ordered, That Mr. Smith, of Maryland, be a teller of the votes given for President and
Vice-President of the United States on the part of the Senate.

COUNTING THE ELECTORAL VOTES.

Ordered, That the Secretary acquaint the House of Reiiresentatives therewith.

On motion, it was

Eesolved, That when the two Houses proceed to open and count the ballots for Presi-
dent and Vice-President, the gallery of the Senate Chamber be open.

Ordered, That the Secretary notify the House of Representatives that the Senate are
now ready to meet them in the Senate Chamber, for the purpose of being present at the
opening and counting the votes for President and Vice-President of the United States.

About twelve o'clock the Senators took their seats and immediately after the members
of the House of Representatives entered, the Speaker and Clerk occupying seats on the
floor on the right of the President of the Senate, and the members of the House in
front.

Mr. Samuel Smith, teller on the part of the Senate, and Mr. Joseph Clay and Mr.
Roger Griswold, 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.

Tlie Secretary of the Senate read the resolutions previously agreed to.

The President [Mr. Burr] stated that pursTiant to law there had been transmitted
to him several packets, which, from the indorsements 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, said he, to count the votes as the Con-
stitution and laws direct, adding 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 accompanying duplicate as the seals of each were broken to the
tellers through the Secretary, Mr. S. Smith reading aloud the returns and the attesta-
tions of the appointment of the electors, and Mr. J. Clay and Mr. R. Griswold compar-
ing them with the duplicate return lying before them.

According to which enumeration the following appeared to be the result :

For Presi-

For Vice-

dent.

President.

States.

19
4

""'9'

19
4

""K
19

6
19

9.0

......

24
14
10

6
5

9
24
14
10
6
5
8

01iio{

176

162

*In this return, after stating the whole number of votes given for Thomas Jefferson and George Clin-
ton, each elector certifies distlnctlj' his vote for Thomas Jefferson as President and for George Clinton
as Vice-President.

tThe return certifies the votes to have been given as stated in an inclosed paper.

J In this return the votes are not certified to have been given by ballot, but agreeably to law-

After the returns had been all examined, without any objection having been made
to receiving any of the votes, Mr. S. Smith, on behalf of the tellers, communicated to
the President the foregoing result, which was read from the Chair ; when the Vice-
President said, Upon this report it becomes ray duty to declare, agreeably to the Con-
stitution, that Thomas Jefferson is elected President of the United States for the

PROCEEDINGS AND DEBATES IN CONGRESS. 37

term of four years from the 3d day of March next, and that George Clinton is
elected Vice-President of tlie United States for the term of four years from the 3d
day of March next."

[Previous to tlie above proceedings, a short debate arose in the Senate on the keep-
ing the doors open or shut during the counting of tlie votes. Mr. Wright submitted
a motion for their being kept open ; which, after some opposition, was agreed to.]

February 14, 1805.

On motion,

Bcsolred, That the President of the United States be requested to cause to be trans-
mitted to George Clinton, esq., of New York, Vice-President elect of the United
States, notiticatiou 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 knoum, That the Senate and House of Representatives of the United States,
being convened in the city of Washington, on the second Wednesday in February, in
the year of our Lord one thousand eight hundred and five, the underwritten, Vice-
President of the United States and President of the Senate, did, in the presence of the
Senate and House of Representatives, 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 Thomas Jefferson, of Virginia, had a majority of the votes of the
electors as President, and George Clinton, of New York, had a majority of the votes
of the electors as Vice-President; by all which it appears that Thomas 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 Febru-
ary, 1805.

In the House of Representatives, Fchruary 12, 1805.

On motion, it was

Iiesolved, That a committee be appointed on the part of this House, to join such com-
mittee as may be appoiuted 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.

February 13, 1805.

Fesolred, That this House will attend in the Chamber of the Senate this day at noon,
for the purpose of being present at the opening and counting the votes for President
aud Vice-President of the United States, that Mr. Joseph Clay and Mr. Roger Griswold
be appoiuted tellers to act jointly with the teller who may be appointed on the part
of the Senate, to make a list of the votes forPresidentandVice-Presidentof 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 Consti-
tution, such entry on the Journals shall be deemed a sufficient declaration thereof.

A message was" received from the Senate informing the House that Mr. Smith, of
Maryland, has been appointed a teller of the votes of President and Vice-President of
the United States on the part of the'Senate, conformably with their vote of the 12th
iustant, and are now ready, in the Senate Chamber, to proceed therein ; whereupon

Mr. Speaker, attended 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, proceeded 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 President of the Senate, and are as follows:

[Here is inserted an exact copy of the table appearing in the Senate proceedings.]

The President of the Senate, in pursuance of the duty enjoined on him, announced
the State of the votes to both Houses, and declared that Thomas Jefferson, of Virginia,
having the greatest number, and a majority of the votes of the electors appointed, is
duly elected President of the United States for the term commencing on the 4th day
of March next ; and that George Clinton, of New York, having also received the great-
est number, and a majority of the votes of all the electors appoiuted, was duly elected
Vice-President of the" United States for the term commencing on the 4th day of March
next.

THE MASSACHUSETTS ELECTORS.

In the House of Representati'S'ES, December 26, 1808.
Mr. Barker preseuted a representation of sundry inhabitants of Hanover, in the
couuty of Plymouth, and State of Massachusetts, stating that the late appointment of

38 COUNTING THE ELECTORAL VOTE.

electors of President and Vice-President of the United States by the Legislature of
that State is ii-regnlar and unconstitutional, in consequence of the failure of the Legis-
lature to lay the same before the governor of that State for his approbation, as the law
thereof directs, and praying that the Congress of the United States, when the elect-
oral votes are opened and counted, will take the subject into their consideration and
prevent the establishment of so dangerous a precedent.
Ordered to lie on the table.

January 10, 1809.

The Speaker presented to the House a representation of sundry inhabitants of Town-
send, in the county of Middlesex, and State of Massachusetts, stating certain objections
to the manner of appointing electors for President and Vice-President of the United
States by the senate and house of representatives of said State of Massachusetts, and
praying the interference of the powers vested by the Constitution in the two Houses of
Congress to prevent the establishment of a precedent which, in their opinion, will
have a dangerous tendency; which was ordered to lie on^the table.

In the House of Representatives, January 31, 1809.

Messrs. Varnum, Seaver, Cook, Hsley, Barker, Cutts, and Green presented petitions
from various towns in the State of Massachusetts, remonstrating against the mode in
which the late election of electors was conducted in that State.

Mr. Cutts moved, as the time was fast approaching when it would be necessary to de-
cide upon the subject of these petitions, a reference of all the petitions on this subject
to a joint committee of the two Houses; which was withdrawn to make way fora reso-
lution to the same effect offered by Mr. Bacon, which was agreed to in the following
words :

Eesolved, That a committee on the part of thisHouse, jointly with such as the honor-
able Senate may join, be appointed for the purpose of taking into consideration the
several memorials from sundry of the citizens of the State of Massachusetts, remon-
strating against the mode in wliich the electors for President and Vice-President has been
proceeded to on the part of the Legislature of said State as Irregular and unconstitu-
tional, and praying for the interference of the Senate and House of Representatives of
the United States for the purpose of preventing the establishment of so dangerous a
precedent ; and that said committee do examine the matter of said memorials and re-
port their opinion thereupon to both Houses.

The memorials were ordered to be sent to the Senate and the concurrence of Senate
asked to the above joint resolution.

It was further ordered that the proposed resolution and order lie upon the table.

February 2, 1809.

Mr. Bacon called for the consideration of the above resolution, offered by him on
Monday.

Mr. Randolph wished the resolution to lie on the table that the members of the House
might have an opportunity to take it into their most serious consideration. He said it
appeared to him that, under color of redress of grievances, the resolution might go in
a very alarming and dangerous manner to enlarge the sphere of action of the General
Government at the expense of the dearest rights of the States. In what manner, asked
he, is the General Government constituted ? We, as one of the branches of the Legis-
lature, are unquestionably the judges of our own qualitications and returns. The Sen-
ate, the other branch of the Legislature, is in like manner the judge without appeal of
the qualifications of its own members. But with respect to the appointment of Presi-
dent on whom is that authority devolved in the first instance ? On the electors, who
are to all intents and purposes, according to my apprehension, as much the judges of
their own qualifications as we are of ours ; and it appears to me as competent to the
people of any part of this country to prefer a petition to the electoral college to set
aside the returns of any members" of Congress as to prefer petitions to this House to
set aside the qualifications of electors. True it is that for the convenience of the thing,
and also for the prevention of cabals and intrigue, the electors assemble in separate
divisions in the respective States; but they are to be considered, to all intents and
purposes, as a body of men equal in number to the Senate and House of Representa-
tives, charged with the election of President and Vice-President of the United States,
and judges in the last resort of their own qualifications and returns. If not, they are
a mere nullity. * * * This is a delicate subject ; one which is agreed on all hands
there is no occasion to touch. The election is not only undisputed but indisputable.
* * * If we do away the decision of the electoral body, which is as independent of
us as we are of them, the Constitution is in my opinion verging to its dissolution.

Mr. Bacon said he certainly should consent that the resolution should lie on the table
He was by no means certain that this House or both Houses had the power of acting
on the subject ; but he thought it an attention due to the memorials to give them a

PEOCEEDINGS AND DEBATES IN CONGKESS. 39

reference to a select committee. He did not Avisli to commit himself or the House on
the subject.

The resolution -n-as ordered to lie on the table.

Feh-uary 6, 1809.

Several petitions haA'ing been presented in addition to those heretofore stated against
the mode in which the late election in the State of Massachusetts was conducted,

Mr. Bacon otiered the following resolution :

IicsoU'ed, That the Clerk of this House do carry to the Senate the several memorials
from sundry citizens of the State of Massachusetts, remonstrating against the mode in
which the appointment of electors for President and Vice-President has been proceeded
to on the part of the senate and house of representatives of said State as ii-regular
and unconstitutional, and pra^^iug for the interference of the Senate and House of
Eepresentatives of the United States /or the purpose of preventing the estahJishment of so
dangerous a precedent.

Mr. J. G. Jackson said he saw no objection to the resolution, or even to going further
than it proposed. The Constitution had declared that the election of electors in each
State should be held in such manner as the Legislature should direct ; and he said he
would never consent to the doctrine that any set of men, without the authority of law,
could make an election of electors. He believed that the case was not provided for ;
and as the present case could not Aary the general result of the presidential election,
gentlemen appeared not to be disposed to interfere in it. But he hoped it would op-
erate on the House to induce them to consider the propriety of providing some mode
of hereafter distinguishing between legal and illegal or surreptitious elections.

Mr. Van Horn moved to strike out the words in italic, as he understood them as com-
mitting the House to express an opinion on the subject of the petitions. Motion lost.

Mr. Rowan was opposed to the resolution. He contended that the Constitution hav-
ing provided that each State shall choose, in such manner as the Legislature shall direct,
a number of electors equal to the number of their Senators and Representatives, it was
improper that this House should interfere in it. Why might it not as well interfere in
the election of Senators ? He said that Congress did not possess a superintending
power over the acts of the States in general cases ; if they did in this particular in-
stance, he wished it to be shown. He thought that an interference by Congress would
be an assumption of power on their part forming a dangerous precedent. The House
was called upon to say that the Legislature of the State of Massachusetts had improp-
erly directed the manner of election. "Was Congress to form for the States a model of
the manner in which they sliould direct their elections to be held? Congress had no
power to act on the subject. Why, tlieu, send the memorials to the Senate ? He said
he was against taking any order in relation to them. In his opinion it was improper
to give the petitions a place on the files of the House, because they related to a subject
on which the House had no power to legislate. Having been received, he wished them
to lie on the table.

Mr. Bacon obsers-ed that the adoption of the resolution would not commit the House
at all. He was aware that there was adititiculty in acting on this subject, and he only
wished to give an intimation to the Senate that such petitions had been received.

The resolution was agreed to — yeas 51, nays 24.

[The memorials went to the Senate the next day, where it was ordered that they lie
on the table.]

ELECTION FOR THE SIXTH TERM— 1809.

James Madison, President.
George Clinton, Vice President.

In Senate, February 3, 1809.

Mr. Smith, of Maryland, submitted thef ollowingmotion ; which was read and agreed to ;

Jicsolved, That a committee be appointed, to join such committee as may be apjjointed
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
oifice to the President.

Mr. Smith, of Maryland, and Mr. Gaillard, of South Carolina, were appointed the
committee on the part of the Senate.

February 7, 1809.

Mr. Smith, from the joint committee, reported the following resolution ; which was
agreed to :

Besolved, That the two Houses shall assemble in the Chamber of the House of Repre-
sentatives on Wednesday next, at twelve o'clock: that one person be appointed a teliei

COUNTING THE ELECTORAL VOTE.

on tlie 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 jiersous elected, to the two Houses assembled as aforesaid, which
shall be deemed a declaration of the xjersons elected President and Vice-President, and,
together with a list of the Aotes, 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.

Felruary 8, 1809.

A message from the House of Eepresentatives informed the Senate that the House
is now ready to attend the Senate in opening the eertiticates andcounting the votes of
the electors of the several States in a choice of a President and Vice-President of the
United States, in pursuance of the resolutions of the two Houses of Congress of the
seventh instant, and that the President of the Senate will be introduced to the Speaker's
chair by the Speaker of the House of Eein-esentatives.

The two Houses of Congress, agreeably to the joint resolution, assembled in the

Representatives' 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

hereof to the President of the Senate which was read ; as follows :

For President.

For Yice-Presideut.

o o 1 o

•^

o .

CM
O

States.

t-s.

o
c2

1^
o

1-5

i.i

fcta

a cs

19
4

Vermont

11
10

Ohio

175

122

113

* One of the votes of Kentucky lost, from the non-attendance of one of the electors.

The whole number of votes being 175, of which 88 make a majority.

Whereupon,

The President of the Senate declared James Madisox elected President of the United
States for four years, commencing with the 4th day of March next ; and George Clin-
ton Vice-President of the United States for four years, commencing with the 4th day
©f March next.

The Senate having returned to its Chamber, the following resolution was adopted:

Resolved, That the President of the United States be requested to cause to be deliv-
ered to James Madison, esq., of Virginia, now Secretary of State of the United States,
a notification of his election to the ofiice of President of the United States, and to be
transmitted to George Clinton, esq., of New York, Vice-President of the United
States, notification of his election to that ofiSce ; 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 in the city of Washington on the second Wednesday in Feb-
ruary, in the year of our Lord one thousand eight hundred and nine, the underwrit-
ten. President of the Senate jyro tempore, did, in the presence of the said Senate and
House of Representatives, open all the certificates and count all the votes of the elect-

PROCEEDINGS AND DEBATES IN CONGRESS. 41

ors for a President and Vice-Presideut of the United States. Whereupon it appeared
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-Presideut. By all of which it appears that Jajies 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 be affixed this day of February, 1809.

And that the President of the Senate do cause the certificate aforesaid to be laid be-
fore the President of the United States with this resolution.

In the House of Representatives, February 4, 1809.

The House proceeded to consider the resolution of the Senate of the 3d iustant for
the appointment of a committee on their part, jointly, with such committee as may be
appointed on the part of this House, to ascertaiu 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 ; whereupon,

Resolved, That this House doth agree to the said resolution ; and that Mr. Nicholas,
Mr. Brown, and Mr. Cutts be appointed a committtee on the part of this House, pur-
suant thereto.

Fchruanj 7, 1809.

Mr. Nicholas, from the above committee, made a report ; which was read and agreed
to, as follows :

Eesolced, That the two Houses shall assemble in the Chamber of the House of Rep-
resentatives 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 afore-
said, 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.

February 8, 1809.

Mr. Nicholas offered the following order :

Ordered, That a message be sent to the Senate 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 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 of the 7th iustant, and
that the Clerk of the House do go with the said message.

Mr. Randolph said it now was proposed that the President of the Senate was to take
the Chair of this House, without any vote of this House for the purpose. He objected.
He did not wish the privileges of this House any way diminished. After some discus-
sion the matter was settled on motion of Mr. Nicholas, that when the members of the
Senate were introduced the Speaker should relinquish the Chair to the President of the
Senate.

On the suggestion of Mr. Van Dyke, it was agreed that the members should receive
the Senate stauding and uncovered.

The time for counting the votes having arrived, the members of the Senate, preceded
by their Sergeaut-at-Arms, entered the Representatives' Chamber, Mr. Milledge, the
President pro tempore, took the Speaker's chair, aud the members took their seats on
the right 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 aud Van Dyke, comparing the du-
plicate 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 j)roceeding to read it ;
when

Mr. Hillhouse observed that the returns from one of the States appeared to be de-
fective, 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 upon the subject, however, the President of the Senate
read the following statement of the votes, as reported by the tellers :

[Here follows the table, which is an exact copy of the one appearing iu the Senate
proceedings, except that there is added a recapitulation of the votes.]

The President of the Senate, pursuant to the joint resolution of the two Houses of
the 7th instant, then announced the state of the votes to both Houses of Congress, and
declared "That James Madison was duly elected President of the United States for
four years, to commence on the 4th day of March next ; and that George Clinton was

42 COUNTING THE ELECTORAL VOTE.

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."

February 9, 1809.

Mr. Macon moved to amend the Jonrnal of yesterday's proceedings by inserting the
letter of Mr. Walton, the elector from the State of Kentucky ^ho did not attend to
give his vote, stating the reason thereof. He stated his object to be to state on the
Journal the reason why one vote Tvas deficient from the State of Kentucky, that it
might serve as a precedent on similar occasions. For, if hereafter, in consequence of
the sickness or inability to attend of any one or more electors, there should be a tie be-
tween 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 discussion took place on this point, it being contended by some gentlemen that
the House had no concern 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 proceedings on this subject, it ought to be done with great deliberation.

Mr. Macon's motion was negatived — ayes 20.

ELECTION FOE THE SEVENTH TERM— 1813.

James Madison, President.
Elbridge Gerry, Vice-President.

In Senate, February 8, 1813.

Eesolvcd, 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 notifyingthe persons
elected of their election.

Ordered, That Messrs. Gaillard and Smith, of New York, be the committee on the
part of the Senate.

February^, 1813.

Mr. Gaillard, from the joint committee, reported the following resolution; which
was agreed to :

Eesolved, That the two Houses shall assemble in the Chamber of the House of Repre-
sentativeson Wednesdaynextattwelveo'clock ; thatoneijerson 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 the votes, be entered on the Journals of the two Houses.

On motion.

Ordered, That Mr. Gaillard be appointed a teller^of the ballots, on the part of the
Senate, agreeably to the foregoing resolution.

February 10, 1813.

Ordered, That Mr. Franklin be appointed 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 further message from the House of Representatives announced 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 in-
forming the Senate that the President of the Senate will be introduced to the Speak-
er's chair by the Speaker of the House of Representatives.

Whereupon,

The two Houses of Congress, agreeably to the joint resolution, assembled in the
Representatives' 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 President of the Senate; which was read, as follows:

PROCEEDINGS AND DEBATES IN CONGRESS.

States.

For Presi-
dent.

For Vice-
President.

S »

a
o

1-3

New Hampshire

""29'

......

1
2

....„

'"'25'
""e

25
15
11

8
12

8
7
3

Massachusetts

Rhode IsLand

New York

New Jersey

6
25
15
11

12
8
7
3

Virginia .

North Carolina

South Carolina

Tennessee

Ohio

217

128

131

The whole number of votes being 217, of which 109 make a majority, James Madi-
son had, for President of the United States, 123 votes, and Elbridge Gerry had, for
Vice-President of the United States, 131 votes.

Whereupon,

The President of the Senate declared James Madison elected President of the United
States for four years, commencing with the 4th day of March next, andELBRiDGE Gerry
Vice-President of the United States for four years, commencing on the 4th day of March
next.

Fehntary, 11, 1813.

Resolved, That a committee be appointed, to join such committee as maybe appointed
by the House of Representatives, to wait on the President of the United States and to
notify him of his re-election 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.

Resolved, That the President of the United States be requested to cause to be trans-
mitted to Elbridge Gerry, esq., of Massacliusetts, Vice-President elect of the United
States, notification of his election to that office ; and that the President of the Senate
do make and sign a certificate in the following words, to wit :

Be it knoivn. That the Senate and House of Representatives of the United States of
America, being convened in the city of Washington on the second Wednesday of Febru-
ary, in the year of our Lord one thousand eight hundred and thirteen, the underwrit-
ten, President of the Senate pro tempore, 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-President of the United States ; whereupon it appeared that
James Madison, of Virginia, had a majority of the votes of the electors as Pre3ident,
and Elbridge Gerry, of Massachusetts, had a majority of the votes of the electors as
Vice-Pi-esideut ; by all which it appears that James Madison, of Virginia, has been
duly elected President, and Elbridge Gerry, of Massachusetts, has been duly elected
Vice-President of the United States, agreeably to the Constitution.

In witness whereof I have herewith set my hand and caused the seal of the Senate
to be affixed this day of Februaiy, 1813.

And that the President of the Senate do cause the certificate aforesaid to be laid be-
fore the President of the United States, with this resolution. ^ ^u\y

ied Vice-
Ix THE House of Represextatives, February '

A message from the Senate announced that the Senate had passed a re'"' "^'

the appointment of a joint committee to ascertain and report a mode of+Qijg i^^jjj \)q,.
the votes for President and Vice-President of the United States, and of
persons elected of their election. The said resolution was read and r

44 COUNTING THE ELECTORAL VOTE.

tlie House, and Messrs. Macon, Bassett, and Miluor were appointed the committee on
the part of the House.

February 9, 1813.

Besolved, That the Houses shall assemlile 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 the votes as they shall be declared ; that
the result shall he 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-Presi-
dent, and together with a list of the votes be entered on the Journals of the two
Houses.

Messrs. Macon and Tallmadge were appointed tellers on the part of the House.

Fehruary 10, 1813.

The hour of twelve having arrived, the Senate entered the Hall of Representatives?
preceded by their President, Secretary, Sergeant-at-Arms, and Doorkeeper, and pro-
ceeded to seats prepared for them — the members of the House having risen to receive
them, and remained standing until all entered. The President of the Senate took a
seat which had been prei>ared for him at the Speaker's right hand, and the Secretary
of the Senate was placed beside the Clerk of the House. The tellers were seated at a
table in fi-ont of the Speaker's chair.

The President of the Senate then proceeded to open and hand to the tellers the sealed
returns 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 Azotes having all been opened and read, the following result was announced from
the chair by the President of the Senate, viz :

[Here follows the table, which is an exact copy of the one appearing in the Senate
proceedings, except there is added a recapitulation of the votes.]

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 Madison, of the State of Virginia, was duly elected Presideut of the United
States, for four years, to commence on the 4th day of March next, and that Elbridge
Gerry 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 nest." .

Fehruary 13, 1813.
The resolution from the Senate of the 11th insfant, for the appointment of a com-
mittee to wait upon the President of the LTnited States, aud inform him of his re-elec-
tion to the Presidency of the United States, was read and concurred in by the House,
and Mr. Macon, Mr. Tallmadge, and Mr. Sevier were appointed the said committee.

ELECTION FOR THE EIGHTH TERM— 1817.

Jajies Monroe, President.

Daniel D. Tompkins, Vice-President.

In Senate, Fehruary 10, 1817.
Eesohed, 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 Presideut aud Vice-President of the United States, and of notifying the per-
sons elected of their election.
Ordered, That Mr. Macon and Mr. Tait be the committee on the part of the Senate.

Fehruary 11, 1817.

Besolred, That the two Houses shall assemble in the chamber of the House of Re^e-
sentatives on Wednesday next, at twelve o'clock ; that one person be appointed teller on
the part of the Senate, 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
vot't^s, and the persons elected, to the two Houses assembled as aforesaid, which shall
be decerned a declaration of the persons elected Presideut and Vice-President, and, to-
gether AVith a list of the votes, be entered on the Journals of the two Houses.

Ordered", That Mr. Macon be appointed teller on the part of the Senate, agreeably to
the foregoKuff resolution.

> ° Fehruary 12, 1817.

A message /j-om the House of Representatives informed the Senate that the House
is now ready to Attend the Senate and proceed in opening the certificates and counting

PROCEEDINGS AND DEBATES IN CONGRESS.

the votes of the electors of the several States for a President aud Vice-President, in
pursuance of the resolution of the tT\'o Houses of Congress.

The two Houses of Congress, agreeably to the joint resolution, assembled in the
Representatives' chamber, and the certihcates 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 the tellers appointed for the purpose, vrho, having examined
and ascertained the number of votes, presented a list thereof to the President of the
Senate, which was read, as follows :

States.

For
President.

For Vice-President.

1 .

o
"5

O .

5 g

8
......

'""s

0.2

C >

T. ID

1-3

'"¥2

""h
"'"3

•22

Vermont

8
29

8
25

Pennsylvania

8
25

8
25
15
11

8
12

8
3
3

15 1

11 1

8 ,

Ohio

Louisiana

3
3

217

183

The whole number of votes 217, of which 109 make a majority ;

Whereupon

The President of the Senate declared Jame.'^ Monroe elected President of the United
States for four years, commencing with the 4th day of March next ; and Daniel D.
Tompkins Vice-President of the United States, commencing with the 4th day of March
next.

February 13, 1817.

liesolved, That the President of the United States be requested to cause to be deliv-
ered to James Monroe, esq., of Virginia, now Secretary of State of the United States,
a notification of his election to the office of President of the United States ; and to be
transmitted to Daniel D. Tompkins, e.sq., 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 :

"iJe it knoini, That the Senate and House of Representatives of the United States of
America, being convened in the city of Washington on the second Wednesday in Feb-
ruary, in the year of our Lord one thousand eight hundred and seventeen, the under-
written, President of the Senate pro tempore, 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 President and Vice-President of the United States ; whereupon it appeared that
James Monroe, of Virginia, had a majority of the electors as President, and Daniel
D. Tompkins, of New York, had a majority of the votes of the electors as Vice-Presi-
dent. By all of 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

thousand eight hundred and seventeen."

And that the President of the Senate do canse the certificate aforesaid to be laid be-
fore the President of the United States, with this resolution.

46 COUNTING THE ELECTOEAL VOTE.

In the House of Representatives, February 10, 1817.

A message from the Senate informed the House that the Senate have passed a reso-
lution for the appointment of a joint committee to ascertain and report a mode of exam-
ining the votes for President and Vice-President of the United States, and for notifying
the persons elected of their election ; and have, conformably thereto, ajipointed a com-
mittee on their part.

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 jmrt of the
House.

Fthruary 11, 1817.

Mr. Jackson, from the committee above mentioned, reported the following resolution:

Resolved, That the two Houses shall assemble in the Chamber of the House of Rep-
resentatives on Wednesday next, at twelve o'clock: that two personsbe appointed tellers,
on the part of this 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 Journals of the Houses.

Messrs. Jackson and Pitkin were appointed tellers on the part of the House.

Wednesday, February 12, on motion of Mr. Jackson, a message was sent to the Sen-
ate, informing them that the House of Representatives were ready to proceed, agree-
ably 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 Presi-
dent, who was received by the Speaker at the chair of the House, in which the Presi-
dent of the Senate took his seat. The tellers of the two Houses 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 Sen-
ate and House of Representatives by the Secretary of the Senate and the Clerk of the
House, respectively.

The votes of all the States being read with the exception of Indiana,

Mr. Taylor, of New York, arose, and (addressing himself to the Speaker of the House)
expressed his unfeigned regret at being compelled, by his sense of duty, to interrupt
the proceedings of the two Houses. Mr. Taylor was then going on to state his reasons
for objecting 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 specified purpose — of performing the constitutional duty which they were
then discharging, and that while so acting, in joint meeting, they could consider no
proijosition, nor perform any business not prescribed by the Constitution.

Mr. Varnum, 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 pur-
pose 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 beiug put by
the President to the members of the Senate, it was unanimously agreed to ; and the
Senate withdrew accordingly.*

*[From the National Intelligencer]
Messrs. Gales & Seaton:

In your ]>ap(r this morning, in detailing tlie proceedings of the two Houses of Congress relating to
couutiiig 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, gen-
tlemen, was a mistake. There were several negatives, distinctly and audibly given, and a division be-
ing called for, it is doubtful how the question would have beeii decided. The writer of this is one of
those who voted against the motion, believing that the two Hdus.s ought not to separate 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 tlie Constitution. Ketiectiou has confirmed him in this opin-
ion ; and regarding the precedent as set by the Senate's withdrawing as one which it would be inconve-
nient and dangerous to follow, he is not willing to see it recorded as a unanimous act, when the reverse
is the case, and thereby a weight and importance given which do not in reality belong to it.

"WashdsGTON City, Febrtiary 14, 1817.

f iSTo 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 single negative.

Having stated the profcediugsof the House of Ki-presontatives 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 retiring to their Chamber, some conversation took place in the Senate on the subject that had pro-
duced the separation of two Houses, when

Mr. Barbour moved the adoption of a resolution that the State of Indiana had a right, by her electors,
to vote for President and Vice-President, on the first Monday in December last.

This resolution was supported by Messrs. Talbot, ]Mason of New Hampshire, Barbour, Dana, and
Daggett, and opjiosed by llessrs. Campbell and Fromentin.

Before any decision tiiok i)lace on the resolution, the message from the House of Eepresentatives, an-
nouncing their icadincss to proceed in counting the votes, was received: when

Mr. Barbour stated that, as the question which had interrupted the proceedings of the joint meeting

PROCEEDINGS AND DEBATES IN CONGRESS. 47

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 arrive when it would be of the
greatest importance 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 pro-
ceeded with his olyectiou to receiving the votes of Indiana, contending that the joint
resolution of December last, admitting that State into the Union, was not a matter of
form merely, but a great constitutional prerogative, to be exercised by Congress; until
which a sister-State could not be admitted into the Union ujion an equal footing. If
this was not so where was the use of ijassing upon 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-President 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. He acknowledged he did
not know what would be the most proper course of proceeding in the business, but be-
lieved it would be best to adopt a joint resolution that the votes of Indiana, having been
given previous to her admission into the Union, were illegal and ought not be received.

Mr. Cady, of New York, thought the matter had been settled by the admission of
Senators and Repi'esentatives from Indiana to their seats, and that it was too late on
that account to question her right to participate in the election of President ; and that
from the momeut the constitution of the State was assented to, she was entitled to all
the privileges of an independent member of the Union.

Mr. Sharj), of Kentucky, to settle the question, offered a joint resolution, "That the
votes for electors for 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 resolution ought not to be a joint one, as it
might establish a precedent which might in time, in the case of a tie, &c., deprive this
House of one of its powers, by permitting the Senate to participate in this question.

Mr. Calhoun suggested to Mi\ Sharp if it would not be better to offer his resolution
in the negative form. He did not believe the votes improper, but the question would
be put to rest with more certainty, he thought, by rejecting it in a 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
motion declaring the votes illegal, «S:c.

The discussion was continued at some length, the question turning upon the fact as
to whether or not Indiana was a State in the Union after it had adopted its constitu-
tion and before it was admitted by a formal act of Congress. No one appeared to
question the power of Congress to reject the vote of Indiana if that State was not a
State in the Union at the time the electoral votes were cast. Mr. Ingham, of Penn-
sylvania, moved the resolution and amendment be iudefiuitely postponed; which mo-
tion was agieed to almost unanimously; and then,

On motion of Mr. Jackson, a message was sent to the Senate informing them of the
readiness of this House to proceed in counting the votes.

The Senate soon after entered the Representatives' Hall ; when •

The Speaker informed them that the House 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 ; and the tellers handed a statement
thereof to the President of the Senate, who annouucedto the joint meeting the follow-
ing as the state of the votes :

[Here follows the table, which is an exact copy of the one appearing in the Senate
proceedings, except there follows a recapitulation of the votes.]

The President of the Senate declared that James Moxroe, 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.

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 Representatives' Hall.

On Thursday, the next morning, there was a considerable discussion on the question of how the pro-
ceeding of the preceding day should be stated on the Journal of the Senate, since, being novel in its char-
acter, the proceeding might be drawn into precedent on occasions of more iuiportance than the present.
It was fl nail V resolved th.at the Journal shall be made "according to former precedents." — Editors
Naational Intelligencer.]

48 COUNTING THE ELECTORAL VOTE,

ATTEMPT TO EEMEDY THE UNCERTAINTY AS TO COUNTING THE
ELECTORAL VOTE BY LEGISLATION.

In Senate, Decemhcr 1-2, 1S20.

Mr. Wilson, of New Jersey, submitted the following resolution :

'^ Iiesolred, That the Committee on the Judiciary he instructed to inquire whether
any, and, if any, what provisions are necessary or proper to he made by law to meet
contingencies which may arise from unlawful, disputed, or doubtful votes under that
part of the twelfth article of amendments to the Constitution of the United States
which relates to counting the votes of the electors for the President and Vice-President
of the United States."

Mr. Wilson said it would be found, on referring to the article in the Constitution
alluded to in this resolution, that the provision in relation to counting the votes for Presi-
dent and Vice-President is very general. The words are, " The President of the Senate
shall, in the presenceof the Senate and House of Representatives, open all the certificates,
and the votes shall then be counted." It is not said who shall count the votes, nor
who shall decide what votes shall be counted. In consequence of this defect, as the
Senate will well remember, some dilJiculty occurred four years ago, in relation to the
votes of Indiana. Objections were made to receiving these votes ; the counting was
interruiited ; the two houses separated ; and altl ough on that occasion they again
came together and proceeded on and completed t. \ business before them, so happy a
result might not always be produced. Cases mighi \ccur where stronger doubts might
exist or more excitement prevail, debates be protr ted, decisions deferred, and seri-
ous inconveniences or evils follow. Was it not probable that such a case would occur
during the present session ? Would it not at least be prudent to guard against
danger from such contingency? Congress has unquestionably the power, under the
last clause under the eighth section of the first article of the Constitution, and he
thought they ought to exercise it by vesting the authoritj" to decide upon doubtful,
disputed, or unlawful votes, either in the President of the Senate, the Senate itself,
the House of Rex)resentatives, or the two houses conjointly or separately. At least
he deemed the subject of sufficient importance to justify the inquiry i^roposed in the
resolution which he had submitted.

Mr. Wilson submitted also the following resolution :

" BesoJvcd, That the Committee on the Judiciary be instructed to inquire whether
any, and, if any, what, amendments are^uecessary and proper to be made to the act
entitled 'An act relative to the election of the President and Vice-President of the
United States, and declaring the officer who shall act as President in case of vacan-
cies in the offices both of President and Vice-President,' iiassed March 1, 1792."

February 1, 1821.

Mr. Smith, from the Committee on the Judiciary, to which was referred the resolu-
tion to inopiire, whether any, and, if any, what, provisions are necessary or proper to be
made by law to meet contingencies which may arise from unlawful, disputed, or
doubtful votes, under that part of the twelfth article of amendments to the Constitu-
tion of the United States which relates to counting the votes of the electors for Presi-
dent and Vice-President of the United States, made the following report :

" That the committee have had the resolution under their consideration, and are of
opinion that it is inexpedient at this time to legislate on this subject."

Mr. Smith, from the Committee on the Judiciary, to which was referred the resolu-
tion to inquire whether any, and, if any, what, amendments are necessary and proper
to be made to the act entitled "An act relative to the election of President and Vice-
President of the United States, and declaring the officer who shall act as President in
case of vacancies in the offices both of President and Vice-President," jiassed March 1,
1792, made the following report :

" That the committee have duly considered the resolution, and are of opinion that
it would be inexpedient to legislate further on this subject at this time."

ELECTION FOR NINTH TERM— 1821.

James Monroe, President.

Daniel D. Tompkins, Vice-President.

In Senate, February 6, 1821.
Resolved, That a committee be appointed, to join such committee as maybe 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 per-
sons elected of their election.

PROCEEDINGS AND DEBATES IN CONGRESS. 49

February 7, 1821.

The above resolution was considered and agreed to ; and Mr. Barbour and Mr. Mason
were appointed the committee on the part of the Senate.

Feiruary 13, 1821.

Mr. Barbour, from the joint committee, reported the following resolutions ; which
were read, considered, and agreed to :

Besolved, That the two Houses shall assemble 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 jiresiding 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 tlie state of" the vote, and the per-
sons elected, to the two Houses, assembled as aforesaid, which shall be deemed a decla-
ration 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.

liesoh'td, 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 man-
ner : Were the voles of Missouri 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.

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 plan should becompletedfor joint
meetings, he hoped the practice heretofore prevailing would not be considered in the
light of a precedent, hut that they should repair thither, and the President of the
Senate preside in joint meeting, iSic. He was opi^osed to the settlement of any liti-
gated question in joint meeting, where the Senate, as a body, would be lost ; and ar-
gued that whenever any such should arise, it would be alwaj's proper that the two
Houses should separate.

Mr. Macon ottered some remarks explanatory of the views of the committee on the
points before them ; some thinking the votes of Missouri ought to he 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 ditiflculty. As to the place
of meeting, the Chamber of the Senate would have been recommended but for the
reason it coald not comfortably accommodate the two Houses.

The question being put on the first resolution, it was agreed to nem. con.

On the second resolution a long debate took place. It was opposed by ilessrs.
Smith, Talbot, Williams of Tennessee, and Lanman on various grounds ; principally
for the reasQn that it was not competent in the Senate to decide such a question in an-
ticipation ; 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-morrow by this report ; that
it was useless to touch the question now whether Missouri was a State or not, or had
a right to vote ; that her votes could not be legally known now, &c.

The resolution was defended by Messrs. Barbour, Otis, and Johnson of Kentucky,
on the ground that, as the question would certainly arise to-morrow in joint meeting,
it was much better to adjust it now, and prevent all difflculty and trouble.

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 rela-
tive 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 hy an act of Congress, if that should appear sufficient, or, if not,
by an amendment to the Constitution itself.

The second resolution was then also agreed to.

February 14, 1821.

A message from the House of Representatives informed the Senate that the House
of Representatives concur in the report of the joint committee appointed to make ar-
rangements 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, agreeably to the joint resolution, assembled
in the Representatives' chamber, and the certificates'of the electors of the several States,

COUNTING THE ELECTORAL VOTE.

beginning with the State of New Hampshire, were by the President of the Senate
opened and delivered to tellers appointed for that purpose, by whom they were read,
except the State of Missouri ; and when the cerificates of the electors of that State
were opened, objection was made by Mr. Livermore, a member of the House of Repre-
sentatives from 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 Representatives informed the Senate that the House
was ready to receive the Senate in the chamber of the House for the purpose of con-
tinuing the enumeration of the votes for President and Vice-President, according to the
joint resolutions agreed upon between the two Houses.

On motion of Mr. Barbour, it was

Resolved, That the Senate proceed to meet the House of Representatives, in order to
conclude the counting of the votes for President and Vice-President of the United States,
according to the last of the joint resolutions adopted for that purpose.

Whereupon the two Houses, having again assembled in the Representatives' chamber,
the certificates 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 thereof to the President of the
Senate, by whom it was read, as follows :

States.

•

For Presi-
dent.

For Vice-President.

>
o

9-9

1-5

t-5

o n

cs q
OS

Oca

a 3

1
P

7
7
4
9
8

29
8

""8

BUoili- Island

o^i

Ohio ...

Indiana

:::::: »

2
3
3
9
3

Maine

^35

231

218

The whole number of electors appointed by the several States was 235. One elector
in each of the States of Pennsylvania, Tennessee, and Mississijipi having died before
the meeting of the electoral college of which he was a member, made the whole num-
ber of votes actually cast 232, including the vote of Missouri, of which 117 make a ma-
jority ; or, excludiug the vote of Missouri, 229, of which 11.5 make a majority; but in
either event Jajies Monroe is elected President, and Daxiel D. Tompkins, Vice-
President.

Whereupon,

The President of the Senate declared James Monroe, of Virginia, duly elected Presi-
dent of the United States, commencing with the 4th day of March next ; and Daniel
D. Tompkins Vice-President of the United States, commencing with the 4th day of
March next.

February 20, 1821.

Mr. Barbour submitted the following motions for consideration :

Resolved, That a committee be appointed, to join such committee as may be appointed

PKOCEEDINGS AND DEBATES IN CONGRESS. 51

by tlae House of Eepreseutativcs, to wait on the President of the United States, and to
notify him of his re-election to the office of President of .the United States.

HesoJved, That the President of the United States he requested to cause to be trans-
mitted to Daxiel D. Tompkixs, esq., of New York, Vice-President of the United States,
a notification of his re-election to that office.

Fehruarij 21, 1821.

The resolutions above, being uuder-consideratiou, were adopted, and Messrs. Barbour^
and Kiny of New York, were appointed the committee on the part of the Senate.

Ix THE House of Representatives, Ftbruary 8, 1821.

A message from the Senate informed the House that the Senate have passed a reso-
lution for the appointment of a joint committee to ascertain and report a mode of ex-
amining the votes for President and Vice-President of the United States, and of noti-
fying the persons elected of their election ; in which they ask the concurrence of this
House.

The resolution was read and concurred in by the House. Mr. Clay, Mr. Sergeant,
and Mr. Van Rensselaer were appointed the connnittee on the part of the House.

Fehrnary 14, 1821.
Mr. Clay, from the joint committee, to whom the subject had been referred, reported
the following resolution :

Eesolved, That the two Houses shall assemble in the chamber of the House of Repre-
sentatives on Wednesday, the 14th of February, 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 jiresiding officer of the House ; that two persons
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
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.

Besolred, 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 man-
ner : Were the votes of Missouri 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.

Mr. Barbour explained, in detail, the reasons which influenced the committee in
adopting the resolutions which it recommended.

Mr. Clay offered some remarks explanatory of the considerations which governed
the committee in recommending the resolutions which had been reported. As conven-
ience 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 Houses together. As to the second reso-
lution, 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 con-
curred in it.

The question was taken on the first resolution and agreed to without a division, though
several nays were heard.
The question being stated on the second resolution,

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. * * * 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. He would rather see an interreg-
num, 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 one 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-'im is elected— did not everybody see the absurdity of such a proposition ?
Mr. R. added other remarks illustrative of his opinion of the course proposed by the
resolution, deeming it not only erroneous, biit erroneous in a matter of vital impor-
tance, in the ascertainment of the person who had been elected by the people Chief

52 COUNTING THE ELECTORAL VOTE.

Magistrate of this uation, the most important officer under the Coustitutiou — the mon-
arch— for wlioever, in any country, commands the army and navy and collects and
distributes the revenue 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. Trinible was far from desiring to consume the time of the House, but he could
not give his consent to this resolution. If anything was due to State rights, this reso-
lution ought not to be adopted, as it would, however immaterial in the present case, be
cited hereafter as a prtMcdcnt. It was about to declare, not what was tlie true vote for
President of the United .States, but to state it hypothetically. It was the duty of the
two Houses to enunciate the true state of the vote for President and Vice-President,
and the proposed enunciation would not be the fact. He would rather the votes of
Missouri were left out altogether than adopt the course proposed.

Mr. Eandolph 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 desired to know whether the electors of Missouri were ai>pointed or not.

Mr. Floyd was aware that 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. If they had any power over the votes of Missouri at all, it was when
her votes were tirst received ; but no such power existed. He protested against this
assumption of authority on the part of Congress, and wished to show his disapproba-
tion of the resolution 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 public body — to ascertain who had been elected
by the people to administer their national concerns. In a case of votes coming for-
ward 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 they were called on to de-
cide what are votes. It being obvious that a difficulty would arise in the joint meet-
ing 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
prevent all difficulty by waiving the question in the manner proposed, laiowiug that
it could not aft'ect the result of the election.

Mr. Rhea said the Constitution had in it neither waiving or 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 Constitution, nor to decide such a question as this proposed, and he was op-
posed to the resolution.

Mr. Culbreth discussed the resolution at some length, but his argument was di-
rected to proving Missouri a State in the Union, and that therefore her votes should
be counted.

Mr, Tracy was opposed to the resolution because he did not believe that Missouri
was a State in the Union, and therefore her votes should not be counted.

Mr. Clay would merely observe that the difficulty is before us ; that we must decide
it when the 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 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 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. In fact there was no mode pointed out in the Consti-
tution of settling litigated questions arising in the discharge of this duty ; it was a
casus omissus; and he thought it would be proper, either by some act of derivative leg-
islation or by an amendment to the Constitution itself, to supply the defect.

Mr. Rhea took the ground that it was not in the power of this House, or of both
Houses, by resolution, to remedy a defect in the Constitution.

The resolution was then agreed to— yeas 90, nays 67.

On motion of Mr. Clay, it was then ordered that a message be sent to the Senate, in-
forming that body that this House, on its part, concurs in the peport of the joint com-
mittee, and is now prepared to proceed, with the Senate, in the performance of its con-
stitutional duty.

It was determined by general consent, on motion of Mr. Clay, that the members of
the House should receive the Senate, on their entrance into the House, standing and
uncovered. In the same manner it was determined that a sufficient number of 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 as-
signed them.

PROCEEDINGS AND DEBATES IN CONGRESS.

Mr. Clay's motion was agreed to, uot without some opposition, and Messrs. Clay and
Hill were appointed accordingly.

Soon after, the Senate came into the hall, preceded hy its President and attended by
its Secretary and Sergeant-at-Arms ; and the President 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, &c.,
were each of them twice read in an audible tone and the votes recorded by the Secre-
tary of the Senate and Clerk of the House of Representatives, as follows :

States.

New Hampsliiie
Maasachusetta ..

Rhode Island

Uouuecticiit

Vermont

New York

New .Jersey

Pennsylvania . ..

Delaware

Maryland

Virginia

North Carolina..
South Carolina . .

Georgia

Kentucky

Tennessee

Ohio

Louisiana

Mississippi

Indiana

Illinois

Alabama

Maine

President.

Vice-
President.

■-'

CM
o

c ci

S-2
1"

"Svi

2.5

1.5

1-2

The scattering votes were as follows : For President, in New Hampshire, there was
John Quincy Adams, 1 vote. For Vice-President, there were, in New Hampshire, for
Richard Rush, 1 vote ; in Massachusetts, for Richard Stockton, 8 votes ; in Delaware,
for Daniel Rodney, 4 votes ; in Maryland, for Robert Goodloe Harper, 1 vote.

When the vote's of the electors for Missouri were announced by the President of the
Senate 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 with-
draw to its Chamber ; and the question, having been put, was decided in the affirma-
tive.

The House was then called to order.

Mr. Floyd, of Virginia, then rose and submitted the following resolution :

Besolved, 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 followed in an argument that Missouri was a State iu the Union, and that
her vote should be counted.

Mr. Archer, of Maryland, said that, entertaining the same sentiments as the gentle-
man from Virginia with respect to the refusal to admit Missouri into the Union,
he felt himself bound to move, as he now did, to postpone the further consideration of
the resolution indefinitely. He was opposed to this House undertaking to proceed in
any manner as to the legality of the electoral votes. He could recognize no power in
the House of Representatives on this subject separate from the Senate. The expres-
sions iu the Constitution in regard to the counting of the votes of electors, &c., he con-

54 COUNTING THE ELECTOEAL VOTE.

sidered 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 be received or rejected.
What are the words of the Constitution ? " 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." Does it not follow 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 '1 If not for this purpose, the joint meet-
ing is for form and show and nothing else. We must, in my apiirehension, determine
the question in joint meeting, and in no other way.

Mr. Eandolph argued that to reject the vote of Missouri or to state it hypothetically
"was not in the power of the House, as Missouri was a State in the Union. He also went
liack to first principles. Tlie electoral colleges are as independent of this House as this
House is of them. "Your office," said he, "in regard to the electoral vote 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 worthj- of being at the head of a petty corporation?
Do you ever exi)ect to see in that office an animal so poor as not to have in this House
retainers enough to enable him to reject the vote of any State which, being counted,
might prevent his continuance, 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 under-
took to say that if this House should, by a A'ote of indefinite jjost\>ouement — for the
form was iiumaterial — or in any other way — and it would l)e oliserved for the first
instance in the person of Missouri, of this much-iujured, long-insidted, and trampled-
upon member of this confederacy, 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 precedent,
and that in the life-time of some of those who now hear me, for the manufacture of
Presidents by this House. The wisest men may make constitutions, on paper, as they
please."

What was the theory of this Constitution ? It is that this House, except upon a cer-
tain contingency, has nothing at all to do with the appointment of President and Vice-
President of the United States. What was to be the practice of the Constitution, as
now proposed ? That an informal meeting of this and the other house is to usurp the
initiative, the nominative power, with regard to the two first officers of the Govern-
ment, 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 u.surpation ? Why were the electoral
bodies established ? The Constitution has wisely provided that they shall assemble
each by itself, and not in one great assembly. By this means assuredly that system of
intrigue which was matured into a science, or rather into an art here, was guarded
against. But Mr. E. 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 independent of this House as this House was
of it. If, however, said he, per fas ant nefas, the point is to be carried; if the tocsin is
to be sounded ; if the troops are to be rallied, and Missoiiri 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.

Mr. Archer, of Virginia, said he was willing to go to as great lengths as any man, in
this House to support the rights of Missouri. But he could not maintain, what he
would do by voting for this resolution, that Missouri is now a State in the Union. * *
* He was a little surprised at one ground that had been taken on this occasion :
that the House had no power to pass any judgment on any return. He always thought
that, wherever was lodged the power to receive a return, there was also a power to pass
judgment on the validity of that return. Suppose any Territory not within the limits
of the United States at the time, Florida, for example, to send votes here for electors ;
was there no authority by which these votes could be rejected ? Sui>pose a State en-
titled to twenty-seven votes should send thii'ty-seven votes, would any gentleman con-
tend 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. Eandolph 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 ad-
mitted into the Union in more ways than one. His position then was that this is the
first instance in which Missouri has knocked at the door and demanded her rights. It
is now for us, said Mr. E., 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 Com-

PROCEEDINGS AND DEBATES IN CONGRESS. 55

monwealtli, or, as the fashion is to call it, of our empire. Mr. R. said he had no doubt
that Congi-ess might drive Missouri into the wilderness like another son of Ilager. If
Ave do, said he, we drive her at our own peril. If either of the worthy Senators and Rep-
resentatives from Missouri, whose long forbearance had excited surprise in ]io man's
breast more than that of Mr. R. — he ditl not mean to blame them for pursuing the coun-
sel of cooler heads than his — had presented themselves here, would you (addressing the
Speaker) have felt yourself bound to exclude them from the communion with more ilian
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
w'e possess; and if this be a casus omissus iu the Constitution, I want to know where
■we acquire the power to supply the defect 1 You may keep Missouri out of tlie Union
by violence, bnt here the issue is joined. She comes forward in the person of her pres-
idential and vice-presidential electors, instead of that of her Representative; and she
•was thus i)reseuted in a sliape as unquestionable as tliat of New York, Pennsylvania,
Massachusetts, or the proudest and oldest State in the Union. She comes forward by
her attorneys — her electors. Will you deny them admittance? Will you thrust her
electors, and her's only, from this hall ? Jlr. R. said his friend had not given to tliis sub-
ject thesort of consideration which he knew him to be capable of giving it. I made no
objection, said Mr. R., to the votes of New Hampshire, Maine, or Vermont. I have
had as good aright to object to the votes of New Hampshire as tlie gentleman from New
Hampshire has to object to the votes of Missouri. Who made tbou, Cain, rliy Itrotu-
er's keeper? Who put Missouii into custody of the honorable geutlemau from New
Hampshire? Tlie electors of Missouri are as much homines pmhi et ler/ales as the elect-
ors of New Hampshire. This, Mr. R. said, was no skirmish, as it had been called.
This was the battle when Greek meets Greek ; it was a contlict not to be decided be-
tween the phalanx and the legion, whether the impenetrability of the one or the ac-
tivity of the other shall lu'evail. Let us buckle on our armor, said Mr. R.; let us put
aside all this llummeiw, these metaphysical distinctions, these legal teclmicalities, these
special pleadings, this dry minuteness, this unprotitable drawing of distinctions with-
out difference; let ns say now, as we have said on another occasion, we will assert,
maintain, and vindicate our rights, or put to every hazard what you pretend to hold
iu such high estimation.

Mr. R. said he recollected perfectly well, in the celebrated election of Thomas Jetier-
son 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 oppo-
sition, or there would be no election ; that a dissolution of the Union impended; that
volcanoes began to play; that eartluinakes yawned beneath iis ; and recollect, sir, we
had a President in the chair who had a majority in the House, small as it was. He
treated the idea of giving away witli derision and scorn. We said we will not give
away, and you must take the consefiuences. We aj^pealed, said Mr. R., to the good
sense of the nation ; and I do now appeal to this nation, said he, whether this preteudetl
sympathy for the I'ights of free negroes and mulattoes is to supersede the rights of tlio
free white citizens, of ten times their whole number. They gave wiw, sir, said ^Ir. R. ;
the sheep is the most timid and heli)less of all animals; it retreats before any attack
is offered to it. The President of the United States, said Mr. R., possesses great powers
and highly responsible functions, and should be looked up to with veneration and def-
erence, because he is the Chief Magistrate of a people, legally appointed by tlndr suf-
frages. But a President of the United States appointed by the exclusion of the votes
of those who are the same tlesh aud blood as ourselves — for the people of Missouri are
not natives of Missouri, with the exception of a few French and still fewer Spaniards —
is no more the Chief Magistrate of this country than that thing, that pageant which
the majorities of the two houses proi)osed 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 Constitu-
tion, and in violation of the rights of the freemen of this country. Sir, said Mr. R., I
would not give a button for him. On his personal account and for his personal quali-
ties I might treat him with respect as an individual, but as Chief Magistrate of this
country he would be more odious to my judgment than one of the house of Stuart at-
tempting to seat himself on a throne of England iu defiance of the laws of succession
aud 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 flooi', which he had yielded to the gentleman only for the
purpose of making explanation.

Mr. Randolph took his seat, saying he would give way to the honorable gentleman
in everything bnt one.

Mr. Clay made a short speech, "showing that when objection was made at the joint
meeting the President of the Senate ought not to have put the motion to withdiaw,
but should have held that the adoption of the joint resolution iu regard to counting the
vote of Missouri settled the matter, aud that no objection could be entertained. He

4 X

l)G COUNTING THE ELECTORAL VOTE.

moved to lay the subject under consideratiou on the table, in order to resume the busi-
ness which had been interrupted by theretirement of the Senate ; which motion w^as
adopted.

A messat^e w^as sent to the Senate tliat the House was now ready to receive the Sen-
ate in the Chamber of the former, for the purpose of continniusj the enumeration of the
votes (if the electors for President and Vice-President. "

The Senate again appeared and took their seats in the House as before.

The President of the Senate, in the presence of l)oth Houses, proceeded to open the
certiticate 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 President of the Senate, by whom they
weie read as already printed.

The President of the Senate then, in pursuance of the resolution adopted by the two
Houses, proceeded to announce tlie state of the vote to the two Houses, of Congress, iu
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
MoxK<»E,oi Virginia, 228 votes. For Daniel D.Tompkixs, of New York, for Vice-Presi-
dent of the United States, 218 votes ; if not counted, for Daniel D. Tompkins, of N«w
York, for Vice-President of the United States, 21.5 votes. But, in either event, James
MoNKoE, 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 maj(nity of the votes of
the whole number of electors for Vice-President of the United States."

The President of the Senate had proceeded thus far 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.

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
Lis seat.

Mr. Brush demanded that Mr. Randoljih 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.

The Speaker deteraiined that he was not in order at this time, the only business be-
ing at that present time that ]iresented by the rule of this morning.

There was considerable murmuring at this decision ; but order was restored ; when
the President of the Senate concludeil his annunciation, as follows :

'• I therefoi'e declare that James Moni:oe, of Virginia, is duly elected President of the
U'nited States for four years, to commence on the fourth day of March, 1821 ; and that
Daniel D. Tompi'ixs, 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.

The Senate retired to their Chamber.

The House being called to order,

Sir. Randolph .said he had seen every election of President of the United States ex-
cept that of tlie present Chief Magistrate, and he never before heard aH_^ other form
of proclamation than that snch was the whole number of votes given ; that such a per-
son A or B had so many, and was therefcn'c elected President or Vice-President of the
United States. He closed his remarks bj' ottering resolutions that the election was
illegal, as follow :

' 1. Befiolred, 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 President, and of two hundred and eighteen votes given for Vice-President.

"2. Hesolred, That the whole nuiiiljei- of electors api>ointed, and of votes given for
President and Vice-President, has not i>een 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 he was reducing Ir's resoliiti )ns to writing, a motion was made to adjourn ;
wliieh was carried — 95 to oO.

CONSTITUTIONAL AMENDMENTS.

Resolutions amending the Constitution as to the manner of choosing electors and to
prevent the election of President by the House of Representatives were presented in

PEOCEEDINGS AND DEBATES IN CONGRESS. 57

both sessions of the Eighteenth Congress, as well as in previous sessions of Congress.
Many were considered at length, but none of the speakers, as reported in the Annals of
Congress, discussed the power of Congress over the electoral vote. The only one who
referred to it directly was Senator Thomas H. Benton, of Missouri, who said:

" Two questions of great delicacy now present themselves :

" 1. If electors are not appointed according to the Constitution, can their votes be
counted ?

" 2. If objected to, who shall judge them ?

" It is the duty of the two houses of Congress to count the votes. Can they count
unconstitutional votes ? If they cannot, shall they not judge everj' vote before it is
counted ?"

He began the next paragraph by saying he would not debate these questions.

ANOTHER BILL ON THE SUBJECT PASSES THE SENATE.

In Senate, December 16, 182:5.
The following resolution was offered in the Senate by Mr. Eaton, of Tennessee :
Hesolved, That the .Judiciary Committee inquire if any, and what, amendments are
necessary to an act entitled "An act relative to the election of a President and Vice-
President of the United States, and declaring the officer who shall act as President in
case of vac.iincies in the ofiSces of both President and Vice-President," passed the 1st of
March, ITDkJ.

This resolution was agreed to.

March 4, 1824.
Mr. Van Buren, from the Committee on the Judiciary, to whom the subject was re-
ferred, reiiiated the following bill, which was twice read bj^ unanimous consent:

A. BILL in ailditiou to the act relative to tlio election of a President and Vice-President of the United

States.

Be it enacted hi/ the Senate and House of Representatives of the United States of America iu
Congress assembled, That before the houses shall assemble for the purpose of counting
the votes, as directed by the act to which this is an addition, each house shall choose,
by ballot, two members thereof as tellers, whose duty it shall bB to receive the cer-
tilicates of the electors from the President of the Senate, after they shall have been
opened and read, and to note, in writing, the dates of the certificates, the mxmes of
the electors, the time of their election, and the time and place of their meeting, the
number of votes given, and the names of the ])ersons voted for, and also the substance
of the certificate from the executive authority of each State accompanying the cer-
tificate of the electors; and the minutes thus made by the tellers shall be read in the
jiresence of both houses, and a copy thereof entered on the .Journals of each house.

Sec. 2. And be it fitriher enacted, That on the day appointed for counting the votes
for President and Vice-President, the Senate and House of Representatives shall meet
at such place as nuiy be agreed on for the purjjose, the names of the several States shall
then lie written, under the inspection of the Speaker of the House of Representatives,
on separate and similar ])ieces of paper, and folded up, as nearly alike as may be, and
put into a ballot-box and shaken by a member of the House of Representatives, to be
named by the Speaker thereof, out of which box shall be drawn the pajier on which
the names of the States are written, one at a time, by a member of the Senate, to be
named by the President thereof; and so soon as one is drawn, the [lacket containing
the certificates from the electors of that State shall be opened by the President of the
Senate, and if no exceptions are taken thereto all the votes contained in such certif-
icate shall be counted ; but if any exception be taken, the person taking the same
shall state it directly, and not argumentatively, and sign his name thereto; and if the
exception be seconded by one member from the Senate and one member from the House
of Representatives, and each of whom shall sign the said exception as having seconded
the same, then each house shall immediately retire, without (luestion or debate, to its
own ai)artment, and shall take the question on the exception, without debate, by ayes
ami noes. So soon as the (piestion 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 apartment as before, and the count shall be re
sumed. And if the two /houses have concurred iu 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. The vote of one State being thus counted, another ticket

58 COUNTING THE ELECTORAL VOTE.

sLall in like manner be drawn from the ballot-box, and the certificate of the votes of
the State, thus drawn, shall be proceeded on as is hereinbefore directed, and so on, one
after another, nutil the whole of the votes shall be connted.

April 12, 1824.

The bill, in addition to the act relative to the election of a President and Vice-
President of the United States, being under consideration, Mr. Van Buren proposed
the followinfj as an amendment thereto :

Sec. 3. And be if further enacted, That the time allowed by the second section of
the act, to which this is an addition, for the delivery of the certificates of the votes of
the respective States, for President and Vice-President of the United States, to the
President of the Senate, be, and the same is hereby, extended from the first Wednes-
day in January to the first Wednesday in Febrnary next ensuing after tbe day when
the same shall have been given ; and if the certificates by that section directed to be sent
by a special messenger be delivered to the President of the Senate, or tbe certificate
therein directed to be sent through the post-office be received by him bel'ure the said
first Wednesday in Febrnary, tbe votes contained in sucli certificate shall be connted in
like manner as if the same had been received by the first Wednesday in January, as
provided by tiiat section.

Skc. 4. And be it further enacted, That the person appointed by the electors to deliver
the lists of votes to the President of th(^ Senate shall lie allowed, on the delivery of the
said lists, twenty-five cents for every mile of the estimated distance, by tbe most usual
roads from tbe place of meeting of the electors, to the seat of Government of the United
States, going and returning.

Sec. 5. And be it further enacted, That in all cases where the election of President and
Vice-President of tbe United States shall have been made by the electors, the same
shall be declared and comiunuicated to the persons elected in such manner as the
Senate shall direct. In every case in which the President shall be chosen by the
House of Representatives tlie choice shall be declared and communicated to tbe per-
son chosen in such manner as the House of Representatives shall direct; and in every
case in which the Vice-President shall be ciiosen by the Senate, tbe choice shall be
declared and communicated to the person chosen in such manner as the Senate shall
direct.

April 1.3, 1824.

The following amendment was proposed by Mr. Eaton to the bill in addition to the
act relative to the election of a President and A'ice-President of the United States :

Skc. 3. And be it further enacted, That tbe fourth sectmu of an act passed tbe first of
March, one thousand seven hundred and ninety-two, entitled "An act rehxtive to the
election of a President and Vice-President of the United States, and declaring the
■ofticer who shall act as President in case of vacancies in the offices both of President
and Vice-President," be, and the same is hereby, repealed, and the Secretary of State
shall disjiatch a messenger fin- the vote of any State which may not have ariived at
Washington City by the first Wednesday in January, provided, in his opinion, there
be sufficient time for him to go and return by tlie second Wednesday in February,
otherwise the messenger shall not be sent : Prorided aJwiys, That the vote of any State
which may be received before the count is closed shall ba counted, subject, however,
ito any exception which may be taken to their legality or correctness.

Fiur>AY, Aj)rU 16, 1824.
Mr. Nathaniel Macon, of North Carolina, objected to the general principles of the
bill, on the grnnud that it was not necessary, and would, as he thought, have a tend-
ency to create the very difticnlties it proposed to remedy. He thought, too, that Con-
gress had no power to legislate upon the subject.

April 19, 1824.

This bill was read a third time and passed, as follows :

Be it enacted htj the Senate and House of Rcpresentatires of the United States of America in
'Congress as.-^mhhd. That the electcns sliall meet and give their votes for President atui
Vice-President of tbe United States, in the mannerprescribed by the Constitution, on the
first Wednesday in December in every fourth year next succeeding the last election, at
tbe place in each State directed by the legislature thereof ; and the electors of each
State shall make and sign five certificates of all the votes given by them, each of which
certificates shall contain two distin Jt lists ; one, of the votes given for President, and
the other of tbe votes given for Vice-President ; and shall seal up tbe same, certifying
on each that lists of all the votes of said State given for President, and of all the votes
given for Vice-President, are contained therein, and shall by writing under their bands,
or under the hands of a majority of them, appoint a person to take charge of and deliver

PROCEEDINGS AND DEBATES IN CONGRESS. 59

to the President of the Senate, at the seat of Gnvernment, before the first Weflnestlay
in Jannai'y, then next ensning, 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 deposit two other of said
certificates, directed as aforesaid, in the post-ofdce, and it shall be the duty of the
postmaster to forward the same, st-paralely, in the two next successive mails after the
departure of the first certificate ; and the said electors shall forthwith cause the other
of said certificates to be delivered to the judge of the district in which the said electors
shall assemble; and, if either of the said certificates shall not be received by the
President of the Senate before the second Wednesday in February, the votes contained
tlierein shall be counted, subject, however, to the exceptions and objections hereinafter
mentioned.

Sec. 2. And heit further enacted, That the executive authority of each State shall cause
five lists of the names of the electors of such State to be made and certified, and 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 their said certificates of votes.

Sec. 3. J)id he it further cnaeted, Tliat if any person appointed to deliver the votes
of the electors to the President of the Senate shall, after accepting said appointment,
neglect to perform the services thereby re(inired, he shall forfeit to the United States
a sum not exceeding three thousand dollars; and if any postmaster, or other person
employed in the post-office, shall neglect to forward the certificates, as hereinbefore
directed, he shall forfeit to the United States the sum of three thousand dollars ; and
if any person or persons whatsoever shall, knowingly, destroy, suppress, hinder, delay,
or prevent, the transmission of said certificates, or shall cause or procure the same to
be done, or in any way aid or abet the same, he or they shall forfeit to the United
States a sum not exceeding five thousand dollars, and be subject to imprisonment, at
the discretion of the court, for a period not exceeding three years, nor less than six
months ; either or both of said punishments according to the aggravation of the
offense.

Sec. 4. And he it further enacted, That, before the Senate and House of Representa-
tives shall asseml)le for the ))urpose of counting the votes, as hereinafter directed,
each house shall choose, by ballot, two members thereof as tellers, whose duty it shall
be to receive the certificates of the electors from the President of the Senate after
they shall have been opened, and to read, and note in writing, the dates of the certifi-
cates, the names of the electors, the time of their election, and the time and place of
their meeting, the number of votes given, and the names of the persons voied for,
and, also, the substance of the certili ate from the executive authority of each State
accompanying the certificate of the electors; and the minutes thus made by the tellers
shall be read in the presence of both houses and a copy thereof entered on the Journals
of each house.

Sec. 5. And he it further enacted, That, at twelve o'clock of the day appointed for
counting the votes that may be given at the next election for President and Vice-Presi-
dent, the Senate and House of Representatives shall meet in the hall of the House of
Representatives, and on all future occasions in the center room of the Capitol, at which
meetings the President of the Senate shall be the presiding officer, but no debate shall
be had nor question taken. The packet containing the certificates from the electors of
each State shall then be opened by the President of the Senate, beginning with the
State of New Hampshire and going through to Georgia, in the order in which the thir-
teen original States are enumerated in the Constitution, and afterwards through the
other States in the order in which they were respectively admitted into the Union ;
and if no exceptions are taken thereto, all the votes contained in such certificate shall
be counted ; but, if any exceptions be taken, the person taking the same shall state it
in writing, directly, and not argumeutatively, and sign his name thereto; and if the
exception be seconded by one member from the Senate and one member from the House of
Representatives, and each of whom shall sign the said exception, as having seconded the
same, the exception shall be read by the President of the Senate, and 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 eit her house, a message shall be sent to the other, informing
them of the decision of the question and 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 meet in the same room 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 sliall be counted. The vote ot one State being thus counted, another shall, in
like manner, be called, and the certificates of the votes of the State thus calltd shall
be proceeded on as is hereinbefore directed ; and so on, one after another, in the order
above mentioned, until the count shall be completed.

Sec. 6. And he it further enacted, That the person appointed by the electors, to deliver
the lists of votes to the President of the Senate, shall be allowed, on the delivery of the

60 COUNTING THE ELECTORAL VOTE.

said lists, tweuty-five cents for every mile of the estimated distance, by the most usual
road, from the place of raeetiug of tlie electors, to the seat of Government of the United
States, going and returning, to be paid out of any money in the Treasury not other-
wise appropriated.

Sec. 7. And be itfnrtlier enacted, That, in all cases where the election of President and
Vice-Presiflent of the United States shall have been made by the electors, the same
shall be declared, and communicated to the persons elected, iu such manner as the
Senate shall direct. In every case in which the President shall be chosen by the House
of Representatives, the choice shall be declared and communicated to the person chosen,
in such manner as the House of Representatives shall direct ; and iu every case in which
the Vice-President shall be chosen by the Senate, the choice shall be declared, and
communicated to the person chosen, in such manner as the Senate shall direct.

Sec. 8. And he it further enacted, That it shall be the duty of the Secretary of State, as
soon as may be, to transmit, by mail, a copy of this act to the Executive authority of
each State, to be laid before the electors, at their meeting, on the said tirst Wednesday
in December; and that all such parts of acts as are inconsistent with the provisions of
this act, be, and the same hereby are, repealed.

April 19, 1824 — passed the Senate.

In the House of Representatives, April 21, 1876.
This bill was referred to the Committee on the Judiciary. May 10, Mr. Webster
reported it back without amendment, and it was committed to the Committee of the
Whole House, where it was never considered.

RULES FOR ELECTION OF PRESIDENT BY THE HOUSE OF REPRESENTA-
TIVES.

In the House of Representatives, January 26, 1825.

Mr. Wright, from the select committee appointed to prepare rules to be observed iu
case the election of President and Vice-President shall devolve on this House, made a
I'eport.

The rules recommended in the report were similar to those adopted by the House in
1801, when the House elected Mr. Jetfersou President of the United States. A long dis-
cussion, lasting several days, was had on the proposition in the third rule, to exclude
persons from the galleries at the request of the delegation from any one State.

The rules were adopted substantially as recommended by the committee.

ELECTION FOR THE TENTH TERM— 1825.

John Quincy Adams, President.
John C. Caxhoun, Vice-President.

In Senate, February 1, 1825.

Besolved, That a committee be appointed, to join such committee as may be ap-
pointed by the House of Representativ'es, 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.

Mr. Tazewell, Mr. Van Dyke, and Mr. King, of Alabama, were appointed of the said
committee on the part of the Senate.

In the House of Representatives, February 2, 1825.

The above resolution of the Senate proposing the appointment of a joint committee,
was taken up, read, and concurred iu.

Mr. Taylor, Mr. Archer, and Mr. Thompson, of Pennsylvania, were appointed of the
said joint committee on the part of the House.

In Senate, February 7, 1825.

Mr. Tazewell, from the committee, reported, in part, the agreement of the joint com-
mittee to the following resolution :

Besolved, That the two houses shall assemble in the chamber of the House of Repre-
sentatives 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 persons be appointed tellers on

PROCEEDINGS AND DEBATES IN CONGRESS. 61

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 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 deemed a snfficient declaration of the per-
son or persons elected, and, together with the list of the votes, shall be entered on the
journals of the two houses.

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 House, which had its rights as well as tbe 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 1H17, inclusive.

Mr. Eaton then moved to add the following :

"If any objection shall arise to the vote or votes of any State, it shall be filed in writ-
ing, 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 be liable to be controlled and altered by the decision to be made by the two
houses after their separation relative to any objections that may bo made and entered
on the journals: Provided, No objection taken shall be considered valid unless con-
curred in by the two houses."

This amendment was opposed by Mr. Hayne and Mr. Van Buren, on the ground
that it was now too late to attempt to provide in anticipation for such an occurrence;
that the Senate had at the last session passed a bill providing for every possible con-
tingency for which the Constitution prescribed no rule, which bill tbe House of Rep-
resentatives 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 regulations of the kind in time for the
government of the proceedings to take place to-morrow, it was better to leave the
remedy to be provided for in any case of difficulty that might unexpectedly arise, &c.

The amendment was negatived, and the resolution passed.

Mr. Tazewell was appointed teller on the part of the Senate.

Ix THE House of Representatia'es, Februari/ 8, l~2o.

Mr. Taylor, from 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 persons elected of their election, reported in part the same resolution
reported to and adopted by the Senate ; which was passed.

Mr. P. P. Barbour and Mr. Taylor were appointed tellers on the part of the House.

February 9, 1S25.
The House sent a message to the Senate that this House is ready to receive them, in
pursuance of the resolutions of the two houses of yesterday.

In the presence of the Senate and House of Representatives,

Fehruary 9, 1825.

At 12 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 in-
vited to a seat on the right hand of the Speaker of tho House.

Seats were then assigned the Senators, who took their seats together in front of the
Speaker's chair, and toward the right hand of the entrance.

The President of the Senate (Mr. Gaillard) then rose and stated that the certificates
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
the part of the House, took their seats as tellers at the Clerk's table. The President of
the Senate then opened two packets, one received by messenger and the other by the
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 compared 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 Senate and House of Representatives,
seated at different tables. Thus the certificates from all the States were gone throngh
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 follows:

COUNTING THE ELECTORAL VOTE.

States.

President.

Vice-President.

o
1-

-g .

c
5

^§

a
•<

il
. «

rt-3

_ >■■
£ 2

<4-l

a ©

o
o o

o
a

9
<1

"Co
ce

a
o

8
15
4

Piltudc I^l'iiul

7
29

8
28

1
10

New York

8
28

1
3

15
11

North Caroliua . -

South Carolina

15
U

15
11

......

5
3
3
5
9

3
5
3

2
5

261

84,

182

30 1 24

The President of the Senate then rose and declared that no person had received a
majority of the votes given for President of the United States ; that \ndkew Jackson,
JoiiN QuiNCY Adams, and William H. Crawfoud were the three persons who had re-
ceived tlie highest number of votes, and that the remaining duties in the choice of
President now devolved on the House of Eepresentatives. He further declared that
John C. Calhoun, of South Carolina, having received 182 votes, ^vas duly elected
Vice-President of the United States, to serve four years from the 4th of March next.

The members of the Senate then retired.

In the House or Representatives, February 9, 1825.

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 the order in which the States should
be called, beginning at the right hand of the Speaker.

The delegations took their places accordingly, ballot-boxes were distributed to each
(delegation by the Sergeant-at-Arms, and the Speaker directed that the balloting should
proceed.

The ballots having all been deposited in the boxes, tellers were named by the
respective delegations, being one from ea h State in the Union.

Mr. Webster, of Massachusetts, was appointed by those tellers who sat at one table,
and Mr. Randolph, of Virginia, by those at the other, to announce the result at the
balloting.. After the ballots were counted out, Mr. Webster rose and said :

Mr. Speaker : The tellers of the votes at this table have proceeded to count the bal-
lots contained in the bos set before them. The result they find to be that there are—

For John Quincy Adams, of Massachusetts 1-^ votes-

For Andrew' Jackson, of Tennessee 7 votes.

For Williaji H. Crawfoi{D, of Georgia 4 votes

Mr. Randolph, from the other table, made a statement corresponding with that of
Sir. Webster in the facts, but varying in the phraseology 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 the result to the House, and announced that John Quincy
Adams, having a majority of the votes of these United States, was duly elected Pres-
ident of the same for four years, commencing with the 4th day of March next.

PROCEEDINGS AND DEBATES IN CONGRESS. Go

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 the result of the

ballot.

Ix Senatk, February 11, 1825.

Resolved, That the President of the United States be requested to cause to be trans-
mitted to John C. Calhoun, of South Carolina, Vice-President-elect of the United
States, notification of his election to that office, and that the President of the Senate
do make and sign certificate in the following words, viz :

'^ Be it kiiotcn, That the Senate and House of Representatives of the United States of
America being convened at the city of Washington on the second Wednesday of Feb-
ruary, in the year of our Lord one thousand eight hundred and twenty-tive, the nnder-
wrirten, President of the Senate pro tempore, did, in the presence of the said Senate and
House of Representatives, open all the certificates and count all the votes of the elect-
ors for a President and for a Vice-President of the United States; whereupon it ap-
peared that John C. Calhoun, of South Carolina, had a majority of the votes of the
electors as Vice-President; by all which it appears that John C. Calhoun, of South
Carolina, has been duly elected Vice-President of the United States, agreeably to the
Constitution.

" In witness whereof I have hereunto set my band this day of February, 1825."

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.

A PROPOSITION TO INQUIRE INTO THE LEGALITY OF THE CERTIFICATES
OF THE VOTES OF THE PREVIOUS PRESIDENTIAL ELECTION.

Ix THE House of Repkesextativks, May 10, 1828.

Mr. Wilde moved the following resolution, which was referred:

" Resolved, That a message be sent to the Senate of the United States respectfully
requesting that body to transmit to this House, if in their possession, copies of the
several certificates and lists of all the votes given for President and Vice-President on
the first Wednesday of December, 1824, or of so many thereof as were received, opened,
and counted in this House on the second Wednesday in Febritary, 1825, when the per-
sons who till the offices of President and Vice-President were ascertained and de-
clared."

Mr. Wilde said, upon submitting this resolution, a word or two of exi)lanation might
be expected from him, and perhaps was necessary. He would be as brief as possible.
At the last election of Presidenn he had the honor to be a member of that House.
While the cei'tificates and lists of the votes were in the act of being read it struck him
that, in some of them, it did not appear the requisitions of the Constitution had been
complied with. The twelfth article, it would be borne iu mind, provided that the
election shall be by ballot, and the electors shall name iu their ballots the persons voted
for as President, and, on distinct ballots, the persons voted for as Vice-President. It
had then appeared to him that the certificates from some of the States did not set forth,
or. at least, did nob explicitly set forth a vote by ballot, and by distinct ballots.

He did not raeaTi to create a sensation here or elsewhere. Nothing could be further
from his intention than to controvert the validity of that election. He rose, not to
lament over the past, nor to indulge gloomy forbodings for the future, but to state
facts ; to draw from events gone bj', warning and security for the time to come. It
was a grave question how far the vote of a State might be affected by a departure from
the forms of voting prescribed by the Constitution. It was also an interesting and
delicate inquiry, worthy of much calm and serious thought, to whom the power and
duty of determiinng the fact of such a departure belonged. Into these questions he
did not now propose to enter. He -would not profess that his mind was made up. He
intended studiously to avoid indicating any opinion at this time. They were, he
considered, of s)me magnitude and difiiculty, and he felt them to be so at the
period alluded to, when they had first occurred to him. He did not then venture
to take upon himself the responsibility of causing them to be agitated; neither
his confidence nor his experience in public affairs warranted him in presenting a sug-
gestion, the ultimate consequences of which it was difficult to foresee. He com-
municated bis impressions, however, to two gentlemen near him, one of them then his
colleague, now the governor of Georgia; the other — a friend he hoped he might call
him, for he had found him such — for whose talents and character he had the highest
respect ; a gentleman who had since been translated to the Senate, (Mr. McLane.) The
probable results of such a suggestion were considered during the very short interval
during which' deliberation was possible. It was imagined that, if the difficulty were

64 COUNTING THE ELECTORAL VOTE.

presented, a protracted discussion would arise, public feeling might become highly
excited, and all the evils of a contested election for Chief Magistrate be felt throughout
the Union. His uncertainty was increased in consequence of some of the certificates hav-
ing been already read before they had attracted his uotice. These could not be obtained
for inspection. The bearing of such a question upou the election, therefore, Avas, in
every respect, matter of doubtful conjecture. Under all the circumstances his friends
did not encourage him to introduce the subject. He would not say they advised him
against it. Whatever responsibility attached to his silence on that occasion belonged
to himself. He did not seek to conceal or to divide it. He admitted tliat he hesitated,
doubted, and, in the interval, the event of the election was announced.

Had the objections apparent on these certificates been then uiged— supposing them
to be well fouuded, and this Honse to be the constitutional jadge of their sufficiency,
and the validiiy of the votes, the issue of that election might have been different. He
had not, in this instance, framed a theory and then sought out facts to support it. He
had collected facts, and if he was not mistalien, they were worthy of a passing uotice
and might lead to something practical. Since the commencement of the present ses-
sion he had examined these certificates with as much attention as his other duties
would allow ; and if the House should indulge him in calling for them, they would be
believed to be found, although exhibiting almost every variety of form, to agree sub-
stantially with the abridged statement which he should present.

The return from Delaware did not certify that the electors voted by ballot, but spe-
cified the vote of each elector thus :

"A. B. votes for C. D. as President.

" E. F. votes for G. H. as President," &c. ;

fairly authorizing the inference, as he apprehended, that the vote was viva voce.

The return from New York specifies that the electors voted by ballot, and named, in

distinct ballots, the persons voted for as President and Vice-President.

The return of Rhode Island agrees in effect with that of New York.

The return of Missouri did uot, Mr. \V. believed, certify that the electors voted
by ballot or by distinct ballots.

That of Vermont he conceived did not exhibit a vote by ballot, and by distinct bal-
lots.

That of Tennessee presented distinct ballots, and so also of Connecticut, New Hamp-
shire, Maine, and Maryland.

The electors of Mississippi seem to have voted by ballot; but it did not appear that
they gave distinct ballots for each oftice.

From the returns of Ohio, Pennsylvania, New Jersey, and Kentucky, enough appeared
to warrant the inference that they voted by ballot, and by distinct ballots.

Illinois seemed to have voted by ballot, but not by distinct ballots.

The return of South Carolina does not state explicitly that the electors voted by bal-
lot, and by distinct ballots; but it shows a separate vote, and the ballots themselves
are forwarded.

Indiana seems to have voted by ballot ; but the return does not allege distiuct bal-
lotings.

The return of Alabama says the electors proceeded to vote pursuant to the law and
Constitution ; but does uot specify the mode of voting in direct terms, whether by dis-
tinct ballotings or otherwise.

That of Massachusetts appears to be strictly correct and formal. It says the electors
voted by ballot for President and Vice-President, having named in distinct ballots the
person voted for as President and the person voted for as Vice-President.

The return of Virginia did uot specify that the electors voted by ballot. Separate re-
turns were made of the votes for President and Vice-President ; but it did uot appear
in terms that either vote was by ballot.

The return of Georgia was similar to that of Virginia, except that the electors used
the word ballot.

The electors of North Carolina seemed to have voted by ballot, but did not aver that
it was by distinct ballots, and perhaps the fairest inference from the language of the
return was, that only one balloting was had.

The return of Louisiana was, in efiect, like that of North Carolina.

Mr. W. did not wish to be understood as asserting that the votes he had taken from
these documents to assist his memory were free from error, nor that the construction
be put upou the language used in them was the correct one. The phraseology was so
different as to admit of a great variety of interpretation. He protested likewise, that
he did not intend to say or to insinuate anything against the mode in which the elect-
ors had endeavored to discharge their duty. They had, doubtless, acted according to
established usage in their respective States. Manj', perhaps all of them, were much
his superiors in sagacity and experience, and he was among the last who could be
capable of treating them with any disrespect. He did uot mean to intimate that the

PROCEEDINGS AND DEBATES IN CONGRESS. 65

votes thus given were in fact invalid by the Constitntion, or that any tribnnal had
been created having ])o\ver to declare them so. Upon that subject he forbore express-
ing an opinion. Wliat he wished to say was this : A great diversity among these cer-
tificates existed. Some of them were open to exception. When the Constitntion pre-
scribed a particular mode of doing an act, he took it for granted that mode ought to be
followed. If it was departed from, there might be room to impugn the act done ; and
the mere discussion of such a question, in particular cases, might disturb tlie public
trani|uillity and lead to tumult and confusion.

If, upon the occasion referred to, the votes of those States which, as he supposed,
were liable to excejttion, had, in fact, been objected to, and this House had undertaken
to pronounce them null, the votes of Delaware, Mississippi, Vermont, Missouri, Vir-
ginia, North Carolina, Louisiana, Indiana, and Illinois, might, by possibility, have been
lost. In that event, if a hasty calculation of his were not correct, the result would
have been to take from one candidate twenty -eight votes, leaving him with seventy-
one; to take from another candidate eleven votes, leaving him with seventy-throe; to
deprive a third candidate of twenty-six votes, leaving him only fifteen, and thus ex-
cluding him from tlic House, while the fourth candidate, losing on three, and being
left with thirty-four votes, would have been brought into it as one of the three from
whom the choice was to be made. It was impossible to reflect an instant, without per-
ceiving how momentous, at that time, must have been the investigation of such ques-
tions. He desired, if possible, to prevent in future the occurrence of such a state of
things. He was, he trusted, no political agitator. He desired not to disturb men's
nunds as to the past, but to seek a preventive against prospective, and he hoped dis-
tant, but not improbable evils.

How it was to be sought, he might not then bo prepared to say. The wisdom of that
House would, no doubt, find it, if they thought proper to commence the search. The
first step was to obtain the infoiinatiou those certificates would afford. He asked for
tiiem by a resolution, which gentlemen of skill and experience in parliamentary pr-ece-
deut bad kindly enabled him to place in what he conceived to be the established and
respectful form of asking for ))apers in the possession of the Senate. He regretted,
even on this subject, having so long occupied the fioor. Other gentlemen nught not,
perhaps, attacli to it the same importance he did, but he should not feel justified in
withholding this information any longer, and, unless he deceived himself, the people of
the United States and future electors would find in it matter of sufficient pith and
moment to secure him from the imputation of wasting any portion of that valuable
time, so much of which had been devoted to presiden ial ((uestions of another charac-
ter. This was no party measure. He intended to provoke no discussion. It was at
least doubtful whether any act of legislation was necessary or expedient. But the
information might be at once curious and useful, and gentlemen would vote to obtain
or refuse it as they thought proper. Without the warning it would afiord, such returns
might be made again, and some wiser or bolder [tolitician be found to challenge them
exactly at the riglit moment of a crisis decisive of the fate of men, and deeply affecting
even the destinies of tlio republic.

Mr. Little thought there was no need of agitating th?s subject, particularly at so late
a period in the session. The elections in the States were not subject to the revision of
Congress, and if the certificates stated truly the result of such elections, it was to be
inferred that they were held according to the law and Constitntion, unless the con-
trary were made to appear. He therefore moved that the resolution be laid upon the
table, which motion prevailed — ayes 80, noes 37.

ELECTION FOR THE ELEVENTH TERM.

AxDKEW Jacksox, President.
John C. Calhoun, Vice-President.

In Senate, February 2, 1829.

Mr. Tazewell offered the following, which was adopted :

lienolved. That a committee be appointed, to join such committee as may be appointed
by the House of Representatives, to ascertaiti and report a mode of examining the votes
of President and Vice-President of the United States, and of notifying the persons
elected of their election.

Ordircd, That Mr. Tazewell, Mr. Sanford, and Mr. Webster be the committee on the
part of the Senate.

66 COUNTING THE ELECTORAL VOTE.

In the House of Representatives, Fehruary 4, 1829.

The resolution from the Seuafe, proposing; the appointment of a joint comuiitteo "to
ascertain auil report a mode of exaniiiiinnj the votes of the President and Vice-President
of the United States, and of uotifyiiig the persons elected of their election," was then
called np, read, and adopted by the House ; and

Mr. Philip P. Barbour, Mr. Ingham, Mr. Hoffman, Mr. Moore of Kentucky, and Mr.
Bell were appointed the committee on tiie part of the House.

In Senate, February 9, 1829.

Mr. Tazp:avell, from the joint committee appointed for the purpose, reported, in part,
the following resolution :

BesoJved, That the two houses shall assemble in the chamber of the House of Repre-
sentatives on Wednesday, the 11th day of February, 1829, 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 votes for President 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 to the two houses, assembled as aforesaid,
the state of the vote, and the person or persons elected, if it shall appear that a clioice
hath been made agreeably to the Constitution of the United States; which annuncia-
tion shall be deemed a sntticient declaration ot the person or persons elected, and,
together with a list of the votes, shall be entered upon the journals of the two houses.

The report was read and agreed to, and Mr. Tazewell was elected teller on the part
of the Senate.

In the House of Representatives, Fehruary 9, 1829.

Mr. Philip 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,
and of notifying the persons elected of their election," reported, in x>art, the resolution
above given.

The resohition was read, and concurred in by the House; and Mr. P. P. Barbour and
Mr. Van Rensselaer were apx>ointed tellers on the part of the House.

In Senate, Fehruary 11, 1829.
A message from the House of Representatives, by Mr. Clarke, their Clerk :
Mr. Preiildeni : The House of Representatives have, in pursuance of the resolution of
the 7th instant, in relation to the mode of examining and counting the votes of Presi-
dent and Vice-President of the United States, appointed tellers on their part ; an:l are
now ready to receive the Senate, and to proceed in opening the certihcates and count-
ing the votes of the electors for President and Vice-President.

At 12 o'clock the members of the Senate repaii'ed to the House of Representatives.

In the House of Representatives, Fehruary 11, 1829.

It being 12 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. Baj:i!OUR moved that the Clerk announce to the Senate that the House
■was ready on its part to proceed to that duty.

The motion was agreed to.

In the presence of the Senate and House of Representatives,

February 11, 1829.

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-Armsof the Senate.

When the Senators had taken the seats assigned to them, and the Vice-President had
seated himself at the right hand of the Speaker, the tellers took their places at the
Clerk's table.

The Vice-President then, having before him the packets received, one copy by ex-
press and one through the post-otBce, from the several States, took up those from the
State of Maine, and announcing to the Senators and Representatives that those packets
had been certified, 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 re-
peated until all the packets had been opened and read ; when

PROCEEDINGS AND DEBATES IN CONGRESS. 67

Mr. Tazewell, retiring to some distance from the chair, read the following report :

States.

For Presi-
dent.

Maine

New Haiiipshiro
MiissacliuHctts .
Rhode Island ...
Connecticut ....

Vermont

New Yorlt;

Ni'W Jer.sey

Pennsjlvania

Deliware

Maryland

Virginia

Noitli Carolina .
South Carolina. .

Gforpia

Kentueky

Tennessee

Ohii>

Louisiana

Mis.sissippii

Indiana

Illinois

Al ibania

Missouri

For Vice-Presi-
dent.

n-«

S?H

£•=

The Vice-President of the United States then anuonnced to the two honses the state
of the vote for President of the United States as delivered by the tellers to be—

P"'or Andrew Jackson, of Tennessee 178

F^r John Qniney Adams, of Massachusetts fc'^

and the state of the vote for Vice-President of the United States as delivered by the
tellers to be —

For John C. Calhoun, of South Carolina 171

For Richai'd Rush, of Peiiiisylvaiiia •- 83

For William Smith, of South Carolina 7

The Vice-President of the United States then declared that Andrew Jackson, of Ten-
nessee, having a majority of the wliole number of the electoral votes, was duly elected
President of the United States for four years, commencing with the 4tb day of March,
182J; and that John C. Calhoun, of South Carolina, having a majority of tlie whole
nnmber of the electoral votes, was duly elected Vice-President of the United States for
four years, commencing with the 4th day of March, 1829.

In Senate, Fthruanj 11, 1829.

Mr. Tazewell, from the joint committee, reported that the joint committee, in further
execution of tlie duties with which they were charged by the two houses of Congress
have agri'cd to the following resolution ; in which resolution their committee recom-
mend to tlie Senate to concur:

Hesolred, Tliat a committee of one member of the Senate be appointed by that body,
to join a coriiniittee of two members of the House of Representatives, to be appointed
liy that house, to wait on Andrew .Jackson, of Tennessee, 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, 1H29.

The Senate proceeded to consider the said resolution ; and

liemlrccl, That they concur therein.

Ordered, That Mr. Tazewell be the committee on the part of the Senate.

68 COUNTING THE ELECTORAL VOTE.

In the House of Rephesentatives, February 12.

The above resolution was coiicnrrecl in, and Messrs. Hamilton and Bell were ap-
pointed a committee on the part of the Honse.

'1 he joint committee reported to each honse, Febrnary 17, that they had discharifed
the duty for wliieh they wem appointed, to notify Andi'ew Jackson of his election as
President of the United States, a. d that the President-elect li;id, in signifying his ac-
ceptance of that ottice, exjiressed his deep sense of its responsibilities and his gratitnde
to his country for this recent proof of its confidence. He had, moreover, requested the
committee to convey to their respective houses the assurances of his high considera-
tion and regard.

ELECTION FOR THE TWELFTH TERM.

AxDiiKW Jackson, President.
Maktin Van Buuen, Vice-President.

In Senate, February 1, 183.3.

The following motic^n, submitted l)y Mr. Grundy, was considered ami agreed to :

Het'Olrcd, Thai a committee be apiioiuted, to join such committee as may be api)ointed
by tlie House of Rei)resentatives, to ascertain and report a uhkIc of examining tlie
votes for I'resident and Vice-President of the United States, and of notifying the per-
sons elected of their election.

(Jrdrred, Tliat Mr. Grundy, Mr. Rives, and Mr. Wright be the committee ou the part
of the Senate.

Ordered, That the Secretary request the concurrence of the Honse of Representatives
in said resolution.

In the House of Representatives, February 2, 1833.

The above resolution from the Senate was read and agreed to ; and Mr. Speight, Mr.
Taylor, Mr. Clay, Mr. Muhlenberg, and Mr. Se\\iall were appointed the committee on
the part of tlie House.

In Senate, February 6, IS33.

Mr. Ghundy, from the committee on the part of the Senate, appointed to join such
committee as might bo appointed ou the pare of the House of Representatives, to ascer-
tain and report a nn>de of examining the votes for President ai)d Vice-President of the
United States, and of notifying the persons elected of their election, reported that the
joint committee, in part execution of the duties with which they were charged by the
two bouses of (Jongress, have agreed to the following resolution, in which resolution
their committee recouunend to the Senate to concur :

liesolced, That the two houses shall assemble in the chamber of the House of Repre-
sentatives on Wednesday, the 13th day of February. 1833, at 1 o'clock ; that one per-
son be appointed teller on the part of the Senate and two persons be apiioiuted tellers
on the ])art of the House, to nnike a list of the votes for President and Vice-President
of the United States as tliey shall be declared : that the results shall be delivered to
the President of the Senate, who shall announce to the two houses, assembled as afore-
said, the state li^ the vote, and the person or p(;rsons elected, if ir shall appear that a
choice hath been nuide agreeably to the Constitution of the United States; which an-
nunciation shall be deemed a sul3icient declaration of the ))erson or persons elected ;
and, together with a list of the votes, shall be entered on the journals of the two houses.

The Senate proceeded by unanimous cor sent to cousiaer the said report and resolu-
tion ; and

liesolved, That they concur therein.

Ordered, That Mr. Grundy be the teller on the part of the Senate.

In the House of Rephesentativi'.s, February 7
Mr. Speight, from thejoint committee appointed to ascertain and report a mode of
examining the votes for President and Vice-President of the L'^nited States, and of noti-
fying the persons elected of their election, rei>orted the following resolution :

[The resolution, which is here given in the House proceedings, is identical with the
one given in the Senate proceedings of February (i.]

This resolution was read and agreed to by the House ; and Mr. Drayton and Mr. Hub-
bard were appointed tellers on the part ot the House.

In Sen.ate, February 13, 183
A message was received from the House of Representatives, by their Clerk, stating
that the House was ready to proceed to the counting of the votes for President and Vice-
President, and were wailing to receive the Senate.

PROCEEDINGS AND DEBATES IN CONGRESS.

^Ir. GiiUNDY then moved that the Senate proceed to the House of Representatives for
the i>iupose of i)erforiiiiug the duties referred to in the message; which motion wns
agreed to.

In the HorsE oi<' Rkprkskntatives, Fihruarii 13. 1833.

It was ordered that the Clerk inform the Senate that the House is now ready to re-
ceive tlie Senate, and to jnoceed in o)ieni)i<i the certificates and in counting the votes
of the electors forPrtsident and Vice-Pivsident.

The Ch-rk accordingly delivered the message above alluded to.

In the rr.ESENCE of the Senate and House of Representatives,

February 13, 1833.

The Senate attended in the hall of the House; the President of the Senate pro /em-
pore was invited to a seat on the right of the Speaker, which he occupied ; and the
Senators having taken the seats set apart for their accommodation.

The President of the Senate ^)'o /chij)0)t. in the presence of ihe two houses of Con-
gress, ))roeeeded to oiien the certificates of the electors of President and Vice-President
of tlie Ilniled States, beginning with those of the Slate of Maine and ending with the
Stare of Missouri ; and the tellers — Mr. Grundy, on the part of the Senate, and Mr. Dray-
ton and Mr. Ilnbbard, on the part of the House — having read, counted, and reg stered
the same, making duplicate lists thereof, and the lists being compared, they were de-
livered to the President of the Senate jjro Itmpore, and are as follows:

St.ates.

President.

Vice-President.

o
"c —

•r.

■Si

a
.a

p'S

cs cs

(B CO

tc =

c§

a. 2

as
^0

C A

f- ^

— '>a
S =3

K a

= «*

■"3

14
4

8
7
4-i

2:?
11

1.5

l.T

21
5
4
9
5

23S

Coniu'cticut

VeniKiiit

New York

"3
23
15

New .Tei si-y

......

I)i'l;IUilI-H

M;iiv]niHl

3
23
15

Ncrih Cardliiia ,

(Tc<>i-;;i;i

"15

Kt'iitiu'ky

Teiines.sce

l.-i

15
21
5
4
9
5
7
4

Obio

jMis.si.ssipj)!

Indian.a

Illiiici.s

7
4

1 Alaliama

Missouri

219

189

49 i 30

The President of the Senate then annonuced to the two houses the state of the vote
for President of the United States, as delivered by the tellers, to be:

For Andrew .Jackson, of Tennessee 219

For Henry Clay, of Kentucky 49

For .Tolm Floyd, of Virginia , 11

For William AVirt, of Maryland 7

And the state of the vote for Vice-President of the United States, as delivered by the
tellers, to be :

For Martin \m\ Buren, of New York 189

For .Toll 11 Serge;) nt, of Pennsylvania 49

For William Wilkins. of Pennsylvauia 30

For Henry Lee. of Massachusetts 11

For Amos Ellmaker, of Pennsylvauia 7

70 COUNTING THE ELECTORAL VOTE.

\Yherenpon the President of the Senate proclaimed that Andrew Jaclcson, of Tenn-
essee, haviug a majority of the whole nnmher of votes, was elected President of the
United States for four years from the 4th day of March next, and that Martin Van
Bnren, of New York, havinoj a majority of the votes tberefor, was elected Vice-Presi-
dent of the United States for the same time.

In Senatk, Febvuanj 13, 1833.

Mr. Grundy oft'ered the following; resolution, which was passed :

Rtbolvtd, That a committee of one member of the Senate be appointed to join a com-
mittee of two members of the House of Representatives, to be appointed by that House,
to wait on Andrew Jackson, of Tennessee, and to notify him that he has been duly
elected President of the United States for four years, co:imeneing with the 4th day of
Mareiiuext; and also to notify ilartin Van LJureu, fif New York, tiiat he has been
duly elected Vice-President of the United States for four years, commencing with the
4th day of March next.

Ordered, That Mr. Grundy be the committee on the part of the Senate.

Ln the House of Representatives, February 15, 1«33.
Mr. Speight offered a similar resolution, which was adopted; and Messrs. Speight
and Hubbard were appointed as the comiuittee on the part of the House.

In Senate, Fehruanj 2fi, 1833.
Mr. Gkundy, from the joint committee appointed on the 13th instant, reported that,
in part performance of the duty assigned them, they had waited upon Andrew Jack-
son, and inforuuMl hiui of his election to the office of President of the United States for
four years, commencing on the 4th day of March next ; and received from him, in
answer to the communication made by the committee, that he felt grateful for this
nninifestation of the continued public confidence and favor, and would endeavor to
merit a continuance of the approbation of his fellow-cilizeus by constant efforts so to
discharge his duties as to promote the welfare of our common country.

March 1, 1833.

^Ir. Grundy, from the j )int committee ap])ointed (Ui the 13, h instant, further reported
that they had waited upon Martin Van Ihiren, and informed him tliat he had been
duly elected Vice-President of the United States for four years, commencing on the 4th
day of March instant; that Mr. Van Buren stated, in reply, that he sensibly felt the
manifestation of the public contidence which the committee had communicated ; that,
in obedience to the public will, he should enter upon the duties of the office, and
endeavor, to the best of his abilities, to discharge them.

In the House of Representatives, Fehruanj 2(], 1333.
Mr Huhbard, from the joint committee appointed on the subject, made a similar
report to that of Mr. Grundy to the Senate on February 26.

March 2, 1833.
Mr. Hubbard made a report to the House similar to that of Mr. Grundy to the Senate
on the same day.

ELECTION FOR THE THIRTEENTH TERM— 1837.

Martin Van Buren, President.
Richard M. Johnson, Vice-President.

In Senate, Jauuary 26, 1837.

Resolved, That a committee he appointed, to join such committee as may be appointed
by the House of Representatives, to ascertain and report a mode of examining the
votes of President and Vice-President of the United States, and of notifying the per-
sons of their election.

This resolution laid over until the next day.

February 27, 1837.

The above resolution was taken up, amended, on motion of Mr. Clay, by adding the
following, and was then adopted : And, also, to inquire into the expediency of ascer-
taining whether any votes were given at tlie recent election contrary to the prohibi-
tion contained in the second section of the second article of the Constitution ; and, if

PROCEEDINGS AND DEBATES IN CONGRESS. 71

any such votes were given, what ought to be clone with them; and whether any,
and what, provision ought to be made for securing the faithful observance, in future,
of that section of the Constitution.

Mr. Grundy, Mr. Clay, and Mr. Wright were appointed the committee on the part of
the Senate.

February 1, 1837.

The House of Representatives concurred in the foregoing resolution, and appointed
Mr. Thomas, Mr. Cambreling, Mr. Reed, Mr. Connor, and Mr. Ljon the committee on
the part of the House.

In Senate, February 4, 1837.

Mr. Grundj', from the 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 esaujining the votes for President and Vice-President
of the Uuited States, of notifying the persons elected of their election ; and also to
inquire into the expediency of ascertaining 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, pi'ovision ought to be made for securing the
faithful observance in future of that section of the Constitution," submitted the fol-
lowing report and accompanying resolutions:

That the short period at which they were appointed, before the day on which the
votes for President and Vice-Presideut 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 doue had more time beeu allowed. The correspouilence which has
taken place between the chairman of the committee and the heads of the different De-
partments of the executive branch of the Government accompanies this report, from
which it appears that Isaac Waldron, who was an elector in New Hampshire, was, at
the time of his appointment 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 aitpointed and voted as electors in the State of North Carolina, held the
offices of deputy postmasters under the General Government. It also appears that in
New Hampshire there is one case; in Connecticut there is one case; iu North Caro-
lina there is one case, iu which, from the report of the Postmaster-General, it is prob-
able that, at the time of the appointment of electors in these States, respectively, the
electors or persons of the same name 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 postmasters at the time when the appoint-
ment of electors was made ; and this is the le'^s to be regretted as it is contidently
believed that no change in the result of the election of either the President or Vice-
President would be effected by the ascertainment of the fact in either way, as live or
six votes only would in any event be abstracted from the whole number, for the com-
mittee cannot adopt the opinion entertained by some that a single illegal vote would
vitiate the whole electoral vote of the college of electors iu which it was given,
particularly in cases where the vote of the whole college has been given for the same
persons.

The committee are of opinion that the second section of the second article of the
Constitution, which declares that " no Senator or Representative, or j)ersou 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 iutlueuce 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 appointments, and that
a resignation of the ofhce of deputy postmaster after his appointment as elector would
not entitle him to vote as elector under the Constitution.

Should a case occur iu which it became necessary to ascertain and determine upon
the qualifications of electors of President and Vice-Presideut of the United States,
the important question would be presented, what tribunal would, under the Constitu-
tion, be competent to decide ? Whether the respective colleges of electors iu the dif-
ferent 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 permanent provision upon the subject.

The committee at present, and in part, report the following resolutions:

Resolred, That the two houses shall assemble 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
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 Sen-

72 * COUNTING THE ELECTORAL VOTE.

ate, who shall announce the state of the vote and the persons elected to the two houses
assemhled 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 Journal of tbe two houses.

Besolred, That, in relation to^the votes of Michigan, if the counting or omitting to
count them shall not essentially change tbe 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 President of the United States,

votes ; if not counted, for A B for President of the United States, votes ; but iu

either event A B is elected President of the United States. And in the same manner
for Vice-President.

Mr, NoRVELL called for a division of the question. He objected to the second resolu-
tion because Michigan was now a State in the Union, acknowledged to be such by the
Congress of the United States.

Mr. Grundy observed that the committee were unanimous in reporting the second reso-
lution objected 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 Sena-
tors recollected 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 recom-
mending the resolution objected to. Suppose the two houses should differ and sepa-
rate, and suppose the Honse 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 circumstances, that her
vote should not be counted except in the way provided for by the second resolution.
To count the vote could do no good, inasmuch as it would not vary the result, and it
might do harm. No nuin was more anxious than he was for the admission of Michi-
gan, yet he must express the opinion that she was not a State of this Union when she
gave her vote.

Mr. NoRVELL again rose and reiterated his arguments at greater length. He cited the
case of Indiana as exactly analogous to that of Michigan, and said that Missouri had
not been received into the Union when the electoral vote was counted. His object in
getting up was not to provoke debate, but to protest against the principle of the
second resolution and ask for himself and his colleague the privilege of recording
their names against it.

Mr. Clay said the committee had followed 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, tiie result would be the same. Now, when gentlemen reflected a moment upon
the operations of this Government, the difficulties to be settled, the important ques-
tions jieuding, and especially the one as to tbe election of the Chief Magistrate, they
would see at once the necessity of avoiding doing anything which would have the eft'ect
of creating excitement or throwing any difficulty in the way at this particular juncture,
when they were about to decide on so very important a question as would have to be
disposed of on Wednesday next.

He went on to show the case of Michigan was not exactly like that of Missouri nor
that of Indiana.

Mr. Calhoun said Michigan was a State de facto at the time she formed her constitu-
tion ; and if her electors were not legally appointed, neither were her Senators, who
were admitted upon this floor. He did not believe that doubtful questions of this kind
should be waived, and this question should be settled at once. He should vote against
the resolution.

Mr. Lyon asked what course would have been pursued if the vote of Michigan had
varied the result? Would Michigan, in such a case, be deprived of her vote? He
contended that Michigan was as much entitled to count her vote as was the State of
Indiana.

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.

The first resolution was adopted without division ; the second, by a vote of 34 to 9.

In the House of Representatives, February 6, 1837.

On motion of Mr. Thomas, the House took up the report made by the joint committee
of the houses relative to counting the votes for President and Vice-President of the
United States.

A message having arrived from the Senate at that moment, informing the House
that that body had agreed to the same report and resolutions,

Mr. Thomas moved it be taken up and concurred in.

[The report and resolutions were the same as heretofore given in the Senate proceed-
ings.]

PROCEEDINGS AND DEBATES IN CONGRESS. ' 73

Mr. Mekcer was uuderstood to make au inquiry whether any vc)tes have been given
by persons not competent, under the Constitution of the United States, to vote as
eiectors of President and Vice-President.

Mr. Tliomas's answer was, in substance, the same as the report of the joint commit-
tee. He concluded : The committee, however, had expressed a very decided disappro-
bation of any ofScer of the General 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 expedient.

Mr. Cambkkling stated, in addition, what had been omitted by the gentleman from
Maryland, that it appeared, from examining the list of re-appointments of deputy
postmasters, that the gentlemen referred to had probably all resigued 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. CuAKY, of Michigan, asked a division of the guestion. He thought the position
of his State was analogous to that of ludiaua, and that her vote should be received
and counted.

The resolutions were adopted without division, and Mr. Thomas and Mr. Ingersoll
appointed tellers on its part.

In Senate, Februar)/ 8, 1837.

A message from the House of Representatives announced that the House had ap-
pointed Levi Lincoln a teller on its part in the place of Mr. Ingersoll, excused; and
that it was ready to receive the Senate and to proceed in opening the certificates and
counting the votes of the electors for President and Vice-President of the United
States.

In the House of Representatives, February 8.

This being the day specially set apart by a joint resolution for the two houses to
convene in joint meeting for the purp >se of opening and counting the electoral votes
given by the several States for President and Vice-President of the United States,

Mr. Haynes said, as the hour had nearly elapsed, he begged to propound an inquiry
to the Chair in relation to the order in which the Senate should be received by the
House on occasions like the present.

The Chair 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 aud count the
votes. The Chair stated further that, so far as he had been informed, the mode of
receiving the Senate by the House was for the members to stand, uncovered.

Mr. Pa TTON moved that while the votes were being counted ladies be admitted to the
privilege of the lloor of the hall.

Mr. Jarvis objected.

Mr. Calhoun, of Massachusetts, moved a suspension of the rules. Agreed to, and
Mr. Patton'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 subcommittee, or the Speaker of the House.

The Chair stated in reply that upon every occasion of this kind, with a single excep-
tion, the invariable course had been to send a message to the Senate by the Clerk. In
one instance oiAy the message had been transmitted by a committee of two members
of the House, who were also appointed to conduct the Senate into the hall, but that
was a departure from the former practice.

Mr. Anthony moved that a message be then sent to the Senate by the Clerk, notify-
ing that body that the House was in readiness to receive them, and count the votes for
President aud Vice-President of the United States.

The Chair stated before putting the question that the seats on the right of the
Speaker's chair had been provided for the accommodation of the Senate, aud others
provided 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, Hon. William R. King, of Alabama, at their head,
preceded by the Secretary and Sergeant-at-Arms of the Senate, and were received at
the door of the hall aud conducted to the seats assigned them by the Sergeant-at-Arms
of the House of Rei^resentatives, and the members being uncovered and rising in their
places.

In the presence of the Senate and House of Representatives,

February 8, 1837.

When the Senators had taken the seats assigned them, and the President of the Senate
had seated himself on the right of the Speaker, the tellers took their seats at the Clerk's

COUNTING THE ELECTORAL VOTE.

table. The tellers were: for the Senate, the Hon. Felix Grundy ; for the House of Rep-
resentatives, the Hon. Francis Thomas and the Hon. Levi Lincoln.

The President of the Senate then rose and said : The two houses beinf^ now con-
vened for the purpose of counting the electoral vote of the several States for President
and Vice-President 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 elec-
toral vote of the State of Maine.

The tellers then counted the votes, and announced them as follows, severally, in
their order, the same form having been observed in every case, the tellers also reading
the qualification of the electors and the certificates of their elections :

States.

For President.

For Vice-President.

o
a

W.2

P a
c o

£ .

-is

-a

.a
o

>■

H
a
-§

1-5

■t; CO

a^
%

IS'ew Hampshire

Massachusetts

Khode Island

('onuecticut

Vermont

New York

New Jersey

Pennsylvania

Delaware

Maryland

2.3

Virginia

23
15

North Carolina

South Carolina

"ii

11
11

Georgia

Kentucky

Ohio..

Louisiana

"'5'
4

5
4

Mississippi

Indiana

Illinois

5
7
4
3
3

Alabama

Missouri

Michigan

Whole number of electors were the
votes of Michigan counted - . .

294

170

147

148

Necessary were the votes of Michigan
counted

291

Whole number of electors were the
votes of Michigan not counted

167

144

The Pkesident then announced to the two houses the state of the vote for President
of the United States, as delivered by the tellers, to be :

For Martin Van Buren, of New York, \ SJ*^''*' Michigan counted 170

' ' ^ Were Michigan not counted Ib7

For William H. Harrison, of Ohio 73

For Hugh Lawson White, of Tennessee 26

For Daniel Webster, of Massachusetts 14

For Willie P. Mangum, of North Carolina 11

And the state of the vote for Vice-President of the United States, as delivered by
the tellers, to be :

For Richard M. Johnson, of Kentucky, { ^ere Michigan counted 147

' •" ^ Were Michigan not counted 144

For Francis Granger, of New York 77

For John Tyler, of Virginia 47

For William Smith, of Alabama 23

PROCEEDINGS AND DEBATES IN CONGRESS. 75

That it therefore appeared that, were the votea of Michigan to be counted, the re-
sult would be :

For Martin Van Buren, of New York, for President of the Uuited States, 170 votes;
if not counted, for Martin Van Buren, of New York, for President, 167 votes; but, in
either event, Martin Van Buren is elected President of the Uuited States.

And thereupon.

He declared that Martin Van Buren, of New York, having received a majority of
the whole number of electoral votes, was duly elected President of the United States
for four years, conitnencing with the 4th of March, 1837.

That it also appeared that, were the votes of Michigan to be counted, the highest num-
ber of votes for Vice-President of the United States would be 147 ; aud, if not counted,
the highest number would be 144 votes ; but, in either event, no person had a majority
of the electoral votes as Vice-President of the United States ; he thereupon declared that
no person having a majority of the whole number of electoral votes as Vice-President
of the United States, an election to that office had not been effected ; that Richard
M. Johnson of Kentucky, aud Francis Granger, of New York, were the two highest
on the lists of electoral votes ; and that it devolved on the Senate of the Uuited
States, as provided in the Constitution, to choose from these persons a Vice-President
of the Uuited States.

The Senate then returned to their chamber.

In Senate, February 8, 1837.

Mr. Grundy, from the joint committee, reported that the joint committee, in further
execution of the duties with which they were charged by the two houses of Congress,
have agreed to the following resolution ; in which their committee recommend the
Senate to concur :

Eesolred, 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 ap-
pointed by that House, to wait on Martin Van Buren, of New York, and to notify
him that he has been duly elected President of the United States for four years, com-
mencing with the 4th day of March, 1837.

The Senate proceeded, by unanimous consent, to consider the said resolution, and
concurred therein.

It was agreed that the President appoint the committee ; and

Mr. Gnindy was appointed accordingly.

Mr. Grundy submitted the following resolution ; which was considered and agreed to :

Whereas, upon counting the electoral votes in the presence of both houses of Con-
gress, given at the late election for President and Vice-President of the United States,
it appears that no person has received for the office of Vice-President of the United
States a majonty of the votes of the whole number of electors appointed ; aud it also
appearing that Richard M. Johnson, of Kentucky, and Francis Granger, of New
York, have the two highest numbers on the list of those voted for to fill the office of
Vice-President : Therefore,

Eesolred, That the Senate do now proceed to choose a Vice-President from the said
Richard M. Johnson aud Francis Granger, they having the two highest numbers
on the list ; aud the manner of voting shall be a« follows : The Secretary of the Senate
shall call the names of the Senators in alphabetical order, and each Senator will, when
bis name is called, uame the person for whom he votes ; and if a majority of the whole
number of Senators shall vote for either the said Richard M. Johnson or Francis
Granger, he shall be declared by the Presiding Officer of the Senate constitutionally
elected Vice-President of the United States for four years, commencing the 4th day of
March, 1837.

The Secretary having called the names of the Senators, respectively, in alphabetical
order, the result was as follows :

For Richard M. Johnson, of Kentucky, thirty-three votes, viz :

Messrs. Benton, Black, Brown, Buchanan, Cuthbert, Dana, Ewingof Illinois, Fulton,
Grundy, Hendricks, Hubbard, King of Alabama, King of Georgia, Linn, Lyon, McKean,
Moore, Morris, Moulton, Nichols, Niles, Norvell, Page, Parker, Rives, Robinson, Rug-
gles, Sevier, Strange, Tallmadge, Tipton, Walker, and Wright.

For Francis Granger, of New York, sixteen votes, viz:

Messrs. Bayard, Clay, Clayton, Crittenden, Davis, Ewing of Ohio, Kent, Knight,
Prentiss, Robbins, Southard, Spence, Swift, Tomliuson, Wall, and Webster.

It appeared, therefore, that the whole number of votes was 49, and that, of these,
thirty-three votes were given in favor of Richard M. Johnson, of Kentucky, aud six-
teen votes in favor of Francis Granger, of New York.

The PUK6IDENT OF THE SENATE thereupon declared Richard M. Johnson, of Ken-
tucky, constitutionally elected Vice-President of the United States for four years, com-
mencing on the fourth day of March, 1837.

The following motion was submitted by Mr. Gkundy, considered by unanimous con-
sent, and agreed to :

Etsolved, That a committee of three members be appointed to wait on Richard M.

76 COUNTING THE ELECTORAL VOTE.

Johnson, of Kentucky, and to notify bim that he has been this day duly chosen by the
Senale, in pursuance of the Constitution of the United States, Vice-President of the
United States for four years, commencing with the 4th day of March, 1837.
Mr. Grundy, Mr. Eobinson, and Mr. Niles were appointed the committee.

In the House of Eepresentatives, February 8, 1837.

Mr. Thomas, from the joint committee on the part of the Hou-e of Eepresentatives
to ascertain and report a mode of examining the votes of President and Vice-Presi-
dent of the United States, and of notifying the persons elected of their election, re-
ported the following resolution ; which was agreed to :

Besolved, That a committee of one member of the Senate, to be appointed by that
body, to join two members of the House of Eepresentatives, to be appointed by that
House, to wait on Martin Van Buren, of New York, and notify him that he has been
elected President of the United States for four years, commencing with the 4th day of
March, 1837.

February 9, 1837.

Ordered, That the Secretary notify the House of Eepresentatives that the Senate
has, in pursuance of the provisions contained in the Constitution, chosen Eichard M.
Johnson, of Kentucky, Vice-President of the United States for four years, commenc-
ing with the 4th day of March, 1837.

February 10, 1837.

Mr. Gkundy reported from the joint committee that the committee had waited upon
Martin Van Buren and notilied him of his election as President of the United States,
and that Mr. Van Bnren exprcs.sed in reply his grateful sense of the distinguished
honor which his fellow-citizens had conferred upon him, and requested the committee
to assure their respective houses that they might rely on his unceasing and best efforts
to execute the responsible trnst about to devolve upon him in a manner the most con-
ducive to the public interest.

ELECTION FOE THE FOUETEENTH TEEM— 1841.

William Henry Harrison, President.
John Tyler, Vice-President.

In Senate, January 28, 1841.

Besolved, That a committee be appointed, to join such committee as may be appointed
by tlie 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 per-
sons elected of their election.

Mr. Preston, Mr. Hubbard, and Mr. Huntington were appointed the committee.

In the House of Eepresentatives, January 30, 1841.

On motion of Mr. Cnshing, the House concurred in the following resolution of the
Senate adopted on the 28th instant :

Eesoh'ed, That a committee be appointed to join such committee as may be appointed
on the part of the House of Eepresentatives, to ascertain and report a mode of examin-
ing the votes for President and Vice-President of the United States, and of notifying
the persons elected of their election.

The following Eepresentatives were appointed the committee on the part of the
House: Messrs. Cushiug, J. W. Jones, Granger, Dawson, and Atherton.

In Senate, February 2, 1841.

Mr. Preston, from the joint committee appointed on the subject of counting the
eTeetoral vote, reported the following resolution ; which was read :

Resolved, That the two houses will assemble in the chamber of the House of Eepre-
sentatives on Wednesday, the 10th 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 Eepresentatives, to make a list of
the votes as they shall be declared ; that the result shall be delivered to tlie 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 of the United States, and, together with a list of
votes, be entered on the journals of the two houses.

The resolution was agreed to; and

The Vice-President appointed Mr. Preston the teller on the part of the Senate.

PROCEEDINGS AND DEBATES IN CONGRESS.

In thp: House of Representatives, February 3, 1841.
The House of Representatives agrees to the foregoiug resolution, and appoints Mr.
Cushing and Mr. J. W. Jones tellers on its part.

Fe})ruary\Q,l%a.
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 certificates and in counting the votes of the
electors for President and Vice-President of tlie United States.

In the presence op the Senate and House of Representatives,

February 10, 1841.

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 seats set apart for their accommodation.

The Vice-President of the United States, in the presence of the two houses of Congress,
proceeded 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 Messrs.
Cushing and John W. Jones, on the part of the House, having read, counted, and
registered the same, making duplicate lists thereof, and the lists being compared, they
were delivered to the Vice-President of the United States, and are as follows:

States.

Maine

Kew Hampshiro.

Massachusetts . .

Khode Island

Connecticut

Vermont

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

15 I North Carolina..
11 South Carolina . .

Georgia

Kentucky

Tennessee

Ohio

Louisiana

Mississippi

Indiana

Illinois

Alabama

Missouri

Arkansas

Michigan

294

President.

Vice-President.

The Vice-President of the United States then announced to the two houses the
state of the vote for President of the United States, as delivered by the tellers, to be —

For William Henry Harrison, of Ohio 234

For Martin Van Buren, of New York t)0

And the state of the vote for Vice-President of the United States, as delivered by
the tellers, to be —

For John Tyler, of Virginia 234

For Richard M. Johnson, of Kentucky 48

For Littleton W. Tazewell, of Virginia H

For James K. Polk, of Tennessee 1

78 COUNTING THE ELECTORAL VOTE.

The Vice-President of the United States then declared that William Henry Harri-
son, of Ohio, Laving received a majority of the whole number of the electoral votes,
was duly elected President of the United States for four years, commencing on the 4th
of March, 1841 ; and that John Tyler, of Virginia, having received a majority of the
whole number of the electoral votes, was duly elected Vice-President of the United
States for four years, commencing on the 4th of March, 1841.

In Senate, February 10, 1841.

Mr. Preston, from the joint committee, reported, in further execution of their duties,
the following i esolution ; which was agreed to :

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 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.

Mr. Preston was appointed on the part of the Senate.

Mr. Preston submitted the following resolution ; which was agreed to :

Besolved, 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, commencing with the 4th day of March, 1841.

In the House of Representatives, February 10, 1841.

Mr. Gushing, from the joint committee appointed to ascertain and report a mode for
ascertaining the votes for President and Vice-President of the United States, and of
certifying the persons elected of their election, presented the following in continuation
of their report :

Besolved, That a committee of one member of the Senate, to be appointed by that
body, to join a committee of two members of the House of Representatives, to be ap-
pointed 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, com-
mencing with the 4th day of March, 1841.

Adopted.

uniform time of presidential election.

An act to establish a uniform time for holding elections for electors of President and
Vice-President in all the States of the Union.

Be it enacted by the Senate and House of Bepresentaiives of the United States of America
in Congress assembled, That the electors of President and Vice-President shall be ap-
pointed 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 : Jnd provided
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 maj' be appointed
on a subsequent daj" in such manner as the State shall by law provide.

Approved January 23, 1845.

ELECTION FOR THE FIFTEENTH TERM— 1845.

James K. Polk, President.
George M. Dallas, Vice-President.

In Senate, February 3, 1845.

Besolved, That a committee be appointed, to join such committee as may be ap-
pointed by the House of Representatives, to ascertain and report a mode of examin-
ing the votes for President and Vice-President of the United States, and of notifying
the persons elected of their election.

The President j^ro tempore appointed Mr. Walker, Mr. Woodbury, and Mr. Dayton
the committee on the j)art of the Senate.

In the House op Representatives, February 4, 1845.
Mr. Burke moved that the House take up and concur with the following resolution
from the Senate:

Besolved, That a committee be appointed, to join such committee as may be ap-

PROCEEDINGS AND DEBATES IN CONGRESS. 79

poiutetl by the House of Representatives, to ascertain and report a mode of examin-
ing tlie votes for President and Vice-President of the United States, and of notifying
tbe persons elected of tbeir election.

The motion was agreed to and the resolution was concurred in ; and Mr. Burke, Mr.
A. A. Chapman, Mr J. R. Ingersoll, Mr. D. L. Seymour, and Mr. Vance were appointed
the committee on tbe part of tbe House.

In Senate, February 7, 1845.

Mr. Walker, from the joint committee, reported the following resolution ; which
vpas considered and agreed to :

Ecsolrcd, That the two houses will assemble in the chamber of tbe House of Repre-
sentatives on Wednesday, the l'2th day of February, 1845, at 12 o'clock ; that one per-
son 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 tbe United States as they shall be declared; that the result shall be delivered to
the President of the Senate, who will announce to the two bouses assembled as aforesaid
tbe state of tbe vote and the person or persons elected, if it shall appear that a choice
hath been made agreeably to tbe Constitution of the United States ; which annunci-
ation shall be deemed sufficient declaration of the persons elected ; and that the said
proceedings, together with a list of votes, be entered on tbe journals of the two bouses.

Mr. Walker was appointed the teller on the part of the Senate.

In the House of Representatives, Fehruary 7, 1845.

Mr. Burke submitted the report of tbe joint committee identical with that Mr.
Walker submitted to the Senate as above.

Tbe report was concurred in, and Mr. Burke and Mr. J. R. Ingersoll appointed tel-
lers on the part of the House.

Fehruary 12, 1845.
Mr. Burke announced that Mr. Ingersoll, one of the tellers appointed by the House,
was unable, through indisposition, to attend, and be moved another teller be appointed
in his place. The motion was agreed to, and Mr. J. P. Kennedy was appointed to serve
as teller in place of Mr. Ingersoll.

In the presence of the Senate and House of Representatives,

February 12, 1845.

The hour set apart by a joint resolution of the houses for counting the votes of elect-
ors for President and Vice-President, Mr. Brodbead moved that tbe Senate be informed
that the House was now ready to receive them and proceed to tbe opening of the cer-
tificates aud counting the votes given by the electoral colleges ; which was agreed to.

The Senate soon after entered the ball of the House of Representatives, two abreast,
preceded by their Sergeant-at-Arms, who was succeeded by their President, the Hon.
Willie P. Mauguni, aud Secretary, Asbury Dickins, esq. The Senators took tbe seats
prepared for them in the central area of tbe House, aud the Prebideut 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 took their seats at the Clerk's desk, assisted by the
Secretary of the Senate and B. B. French, esq., Clerk of tbe House.

The President of the Senate rose, when the members of the House and Senators
"were all seated, and stated the object of their thus assembling to be to count the votes
cast by the electors of tbe respective States of this Union for President and Vice-Pres-
ident of the United States ; and handing to Mr. Walker (one of the tellers) a sealed
packet, he said, " I deliver to tbe gentlemen tellers the votes of the electors of tbe
State of Maine for President aud Vice-President of tbe United States in order that
they may be counted."

Mr. Walker received the packet, and having broken the seals, tbe tellers examined
tbe votes, which were aunouuced to be nine in number, all of which were given for
James K. Polk, of Tennessee, as President of tbe Uuited States. Tbe 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 Harap-
Bhire, and of all the other States of tbe Union in succession in tbe same manner, and
they were examined by the tellers, and the result was announced with tbe same for-
malities. The final result stood thus ;

COUNTING THE ELECTORAL VOTE.

-2

President.

Vice-President.

t>5

S .

States.

tot!

a o

=3 a

9
6

12
4
6

Tennessee

Ohio

12
9
9

275

170

105

170

105

The President pro tempore then announced to the two houses the state of the vote
for President of the United States, as delivered by the tellers, to be ;

For James K. Polk, of Tennessee 170

For Henky Clay, of Kentucky 105

And the state of the vote for Vice-President of the United States, as delivered by
the tellers, to be :

For George M. Dallas, of Pennsylvania 170

For Theodore Fuelinghu ysen, of New York 105

The President of the Senate pro tempore then declared that James K. Polk, of Ten-
nessee, having received a majority of the whole number of the electoral votes, was
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 received a majority of the whole
number of the electoral votes, was duly elected Vice-President of the United States
for four years, commencing on the 4th day of March, 1845.

The Senate then returned to its chamber.

In Senate, Fehruary 12, 1845.

Mr. Walker, from the joint committee, reported the following resolution ; which was
considered and agreed to :

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 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
4th day of March, 1845 ; 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 4th day of March. 1845.

Ordered, That Mr. Walker be the committee on the part of the Senate.

In the House of Representatives, February 14, 1845.
The House concurred in the foregoing resolution, and appointed Mr. Burke and Mr.
Boyd the committee on its part.

PROCEEDINGS AND DEBATES IN CONGRESS. 81.

ELECTION FOR THE SIXTEENTH TERM— 1849.

Zachary Taylor, President.
Millard Fillmore, Vice-President.

In Senate, January 31, 1849.

Mr. Clayton submitted the foUowiug resolution ; which was considered, by unani-
mous consent, and agreed to ;

Besolred, 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.

Mr. Clayton, Mr. Davis of Mississippi, and Mr. Davis of Massachusetts were ap-
pointed the committee.

In the House of Representatives, February 2, 1849.

The House of Representatives concurred in the foregoing resolution, and appointed
Mr. Hnnt, Mr. Barrow, Mr. McClelland, Mr. Truman Smith, and Mr. Harmanson the
committee on its part.

In Senate, February 5, 1849.

Mr. Clayton, from the joint committee, reported in part the following resolution ;
which was considered and agreed to :

Besolred, That the two houses will assemble in the chamber of the House of Repre-
sentatives on Wednesday, the fourteenth instant, at twelve o'clock, and the President
of the Senate shall be the presiding officer ; that one person be ai)pointed 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 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.

The Vice-President appointed Mr. Davis, of Mississippi, the teller on the part of the
Senate.

In the House of Representatives, February 7, 1849.

The House concurred in the foregoing resolution, and on February 8 appointed Mr.
Hunt and Mr. McClelland tellers on the part of the House of Representatives in pur-
suance of the concurrent resolution of the two houses.

Mr. Hunt was on February 9 excused from acting on the committee, and Mr. Barrow
appointed in his place.

In the House of Representatives, February 14, 1849.

The House of Representatives notified the Senate that the House was ready to re-
ceive the Senate, in pursuance of the resolution of the two houses, to the end that the
President of the Senate, in the presence of the Senate and House of Representatives,
may open the certificates of the votei» 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.

In the presence of the Senate and House op Representatives,

February 14, 1849.

The Senate, preceded by the Hon. Geo. M. Dallas, Vice-President of the United
States, and its officers, entered the hall of the House. .

The Senators took the seats provided for them in the circle in front of the Speaker's
chair.

The Vice-President took the seat of the presiding officer, the Speaker of the House
of Representatives being seated on 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 Burrow and Robert McClelland, tel-
lers upon the part of the House of Representatives, who were assisted by the Secretary
of the Senate and Clerk of the House.

When thus organized, the two branches of Congress in joint assembly, and the aisles
and galleries (\en8ely crowded with ladies and citizens, the hall presented an impos-
ing appearance.

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 fill 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 iu the respective States, as Presi-

COUNTING THE ELECTORAL VOTE.

dent and Vice-President, cause the votes to be counted, and have tlie persons to fill
those offices ascertained and declared, agreeably to the Constitution."

The Vice-Pkesident then opened the certificate of the electors of the State of Maine,
and said : "I now open and present to the tellers chosen by the two houses the cer-
tificate transmitted by the electors of the State of Maine, that the votes therein re-
corded may be counted."

Mr. Jefferson Davis proceeded to read the certificate, andthe vote reported was regis-
tered by the tellers in duplicate lists.

[After the returns from the State of Maine had been read,

Mr. Stephens arose and suggested that the reading at length of the returns from each
State in detail be dispensed with.

The Vice-President stated that no motion was in order, and no other mode of pro-
ceeding could be adopted but that pointed out by the Constitution of the United States.
but that the tellers might abridge the reports so far as to give merely the results of
the electoral ballotings of each State.]

The same form was observed with the certificates from the States of New Hampshire,
Massachusetts, Rhode Island, Connecticut, Vermont, New York, New Jersey, Pennsyl-
vania, and Delaware.

The certificates from the States of Maryland, Virginia, North Carolina, South Caro-
lina, Georgia, Kentucky, Tennessee, Ohio, Louisiana, and Mississippi were severally
presented In succession in like manner, and read by Mr. Barrow.

Those from Indiana, Illinois, Alabama, Missouri, Arkansas, Michigan, Florida, Texas,
Iowa, and Wisconsin were read by Mr. McClelland.

The tellers having read, counted, and registered the votes of the electors of the
thirty States, and compared their duplicate lists, delivered the same to the Vice-Presi-
dent.

The Vice-President then arose, and read the report of the tellers. The result was as
follows :

states.

Maine

New Hampshire.
Massacbiisetts ..

Kliutle Island

CoDiiecticut

Vermont

New York

New Jersey

Pennsylvania

Delaware

INIaryland

Virginia

North Carolina..
South Carolina . .

Georgia

Kentucky

Tennessee

Ohio

Louisiana

Mississippi

Indiana

Illinois

Alabama

Missouri

Arkansas

Michigan

Florida

Texas

Iowa

Wisconsin

President.

a fcfj
1-1

• 127

Vice-Presi-
dent.

163

The Vice-President of the United States then, in pursuance of the resolution adopted
by the Senate and House of Representatives on the 7th instant, announced the state of
the votes to the houses of Congress in joint meeting, as follows :

PROCKEDINGS AND DEBATES IN CONGRESS. 83

The whole number of electors appointed to vote for President and Vice-President of
the United States is 290; of which number 140 make a majority.
The state of the vote forPresidentof the United States, as delivered by the tellers, is

ForZACHARY 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 tellers, is :

For Millard Fillmore, of New York 163

For William 0. Butler, of Kentucky 127

That Zachary Taylor, of Louisiana, had received 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 Uuited States for the term of four
years, to commence on the fourth day of March, 1849.

The joint meeting of the two houses of Congress was then dissolved, and the Senate
returned to its chamber.

In Senate, February 14, 1849.

[After the count.]

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 :

Eesolvvd, 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 bo appointed
by that body, to wait, on General Zachary Taylor, of Louisiana, and inform him that
he has been duly elected President of the Uuited States for four years, commencing
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, 1849.

The resolution was concurred in, and the President of the Senate appointed Mr. Da-
vis, of Mississippi, the committee on the part of the Senate.

In the House of Representatives, Fehruary 14, 1849.
Mr. Barrow, from the joint committee, presented a resolution identical with the fore-
going ; which was unanimously adopted ; aud the Speaker appointed Mr. Barrow and
and Mr. Nathan K. Hall as the committee on its part.

ELECTION FOR THE SEVENTEENTH TERM— 1853.

Franklin Pierce, President.
William R. King, Vice-President.

In Senate, January 31, 1853.

Mr. Hunter submitted the following resolution ; which was considered, by unanimous
conseut, and agreed to :

Hesolved, 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 of President and Vice-President of the United States, and of notifying the per-
sons elected of their election.

The President of the Senate appointed Mr. Hunter, Mr. Bright, and Mr. Pearce the
committee on the part of the Senate.

In the House of Representatives, February 2, 1853.
The House of Representatives concurred in the foregoing resolution, and appointed
Mr. George W. Jones, Mr. Chandler, Mr. John G. Davis, Mr. Alexander H. Stephens,
and Mr. Dean the committee on its part.

84 COUNTING THE ELECTORAL VOTE.

In Senate, February 4, 1853.

Mr. Hnnter, from the joint committee, reported the following resolution ; which was
considered and agreed to :

Eesolved. That the two houses will assenihle in the chamber of the House of Eepre-
sentatives on Wednesday, the 9th instant, at 12 o'clock, and the President of the Sen-
ate j3ro tempore shall be the presiding officer; and one pei'son shall 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 2)ro 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.

Mr. Hunter was appointed the teller on the part of the Senate.

In the House of Representatives, February 5, 1853.
The House of Representatives agreed to the foregoing resolution, and appointed Mr.
George W. Jones and Mr. Chandler the tellers on its part.

In Senate, February 9, 1853.
The House of Representatives having notified the Senate that the House was ready
to receive the Senate in its chamber for the purpose of proceeding to open and count
the votes for President and Vice-President of the United States, the Senate proceeded
to the chamber of the House of Representatives.

In the presence of the Senate and House of Representatives,

February 9, 1853.

At half past twelve o'clock the Senate, preceded by the Hon. D. R. Atchison, its Presi-
dent 2)ro tempore, and its officei-s, entered the hall of the House to join the House of
Representatives in counting the votes for President and Vice-President of the United
States, in conformity to the Constitution and in pursuance of the following joint reso-
lution, heretofore adopted by the two houses:

Fesohrd, Tlmt the two houses will assemble in the chamber of the House of Repre-
sentatives on Weduesday, the 9th instant, at 12 o'clock, and the President of the Senate
pro tempore shall be the presiding officer ; and one person shall 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 Presi-
dent of the Senate pro tempore, who shall announce the state of the vote and the per-
sons elected to the two houses assembled as aforesaid ; which shall be deemed a decla-
ration 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 the House 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
occupied the seats assigned to them in the area fronting the Clerk's desk.

The Sergeants-at-Arms of the two houses occui)ied 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
Representatives, took their seats at the Clerk's desk, and were assisted on the right by
Asbury Dickius, the Secretary of the Senate, and on the left by John W. Forney, the
Clerk of the House. Messrs. Machiu 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 couuting the votes for President and
Vice-President ot the United States. I present to the tellers the certificates of the
electoral college of the State of Maine."

Hon. 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 sev-
eral States.

The certificates from the States of Rhode Island, New York, Delaware, North Caro-
lina, Kentucky, Louisiana, Illinois, Arkansas, Texas, and California were read by Mr.
Hunter.

Those from New Hampshire, Connecticut, New Jersey, Maryland, South Carolina,
Tennessee, Mississippi, Alabama, Michigan, and Iowa were read by Mr. Jones.

PROCEEDINGS AND DEBATES IN CONGRESS.

Those from Massachusetts, Vermont, Pennsylvania, Virginia, Georgia, Ohio, Indiana,
Missouri, Florida, and Wisconsin were read by Mr. Chandler.

The tellers, having read, counted, and registered the votes of the electoral colleges
of the thirty-one States, and compared their lists, delivered to the President i)ro<ewy3ore
of the Seua'te the result, which was read by him, as follows :

Statement of the vote for President and Vice-President of the United States for four years
from the fourth day of March, eighteen hundred and fifty-three.

States.

For Presi-
dent.

5 ^

For Vice-
President.

«5

;=!2;

!Maine

New Hampshire
Massachusetts ..

Khode Island

Connecticut

Vermont

New York

New Jersey

Pennsylvania . . .

Delaware

Maryland

Virginia

North Carolina..
South Carolina ..

Georgia

Kentucky

Tennessee

Ohio

Louisiana

Mississippi

Indiana

Illinois

Alabama

Missouri

Arkansas

Michigan

Florida

Texas

Iowa

Wisconsin

California

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 Piekce, of New Hampshire, 254 ; for Winfield Scott, of New Jersey, 42 ;
and the state of the vote for Vice-President of the United States, as delivered by the tell-
ers, is, for William R. King, of Alabama, 254 ; and for William A. Gkaham, of North
Carolina, 42.

I therefore declare that Franklin Pierce, of the State of New Hampshire, having the
greatest 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 fourth day of March next.

I also declare that William R. King, of the State of Alabama, 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 four
years to commence on the fourth day of March nest.

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 Sena-
tors repaired to the Senate chamber.

86 COUNTING THE ELECTORAL VOTE.

Ix Senate, February 9, 1853.

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 waib 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 bj' unanimous consent, ap-
point 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
resolution :

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 the House of Representatives, Fehruary 9, 1853.

The foregoing resolution in regard to informing Franklin Pierce, of New Hampshire,
of his election as President of the United States, was received in the House.

On motion of Mr. Jones the resolution was concurred in.

Mr. Jones. I move that the Speaker appoint the committee.

The motion was agreed to ; and the Speaker appointed Mr. George W. Jones and
Mr. Harry Hibbard as such committee on the part of the House.

ELECTION FOR THE EIGHTEENTH TERM— 1857.

James Buchanan, President.

John C. Breckinridge, Vice-President.

In Senate, February 2, 1857.

Mr. Bigi.er submitted the following resolution ; which was considered, by unanimous
consent, and agreed to :

Resolved, That a committee be appointed, to consist of three members, to join such
committee as may be appointed by the House of Representatives, to ascertain and re-
port a mode for examining the votes for President and Vice-President of the United
States, and to notify the persons elected of their election.

Mr. Bigler, Mr. Benjamin, and Mr. Foot were appointed the committee on the part
of the Senate.

In the House of Representatives, February 2, 1857.

Mr. Jones, of Tennessee. I move that a committee of live be appointed by the Chair
in conformity with the resolution of the Senate.

The motion was agreed to; and on February 3 the Speaker announced that he had
appointed Messrs. Jones of Tennessee, Washburue of Maine, Fuller of Pennsylvania,
Liten and Bocock, the conmiittee on the part of the House to co-operate with the Sen-
ate 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 elec-
tion.

In Senate, February 4, 1857.

Mr. Bigler, from the joint committee, reported the following resolution ; which was
considered and agreed to :

Resolved, That the two houses will assemble in the chamber of the House of Rep-
resentatives on Wednesday, the 11th instant, at twelve o'clock, and the President
pro tempore shall be the presiding ofticer ; that one person sball 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 ^ro tempore, 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, be entered on the journals of the two houses.

The President pro tempore aijpointed Mr. Bigler the teller on the part of the Senate.

PROCEEDINGS AND DEBATES IN CONGRESS. 87

In the House of Representatives, February 5, 1857.
The foregoing resolution was coQsidered, and concurred in, and Mr. Geo. W. Jones,
of Tennessee, and Mr. Howard, of Michigan, were appointed tellers upon tlie part oi
the House.

February 11, 1857.

Mr. Jones, of Tennessee, said : Mr. Speaker, the hour of twelve o'clock ni. has now
arrived, and I move the following order :

Ordered, That the Clerk inform'the Senate that the House of Representatives 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.

The motion was agreed to.

Mr. Whitney. If it be not oiit of order at the time, I should like to ask a question of
the Chair on a matter of high importance.

The Speaker. No debate is iu order. No question is before the House. The House
is acting under a special order. Au inquiry relating to the special order is in order.

Mr. Whitney. 1 simply desired to propound a question for the information of the
House as well as for my own information.

The Speaker. It can only be received by unanimous consent.

Mr. RuFFiN. I object.

Mr. Whitney. If the committee be still in existence I would like to ask the Chair

Mr. RuFFiN. I call the gentleman from New York to order.

The Speaker. The gentleman is not iu order.

In the presence of the Senate and House of Representatives,

February 11, 1857.

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 iu 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 Senate took seats provided for them in the area of the House.

The Presiding Officer. Pursuant to law, and iu obedience to the concurrent order
of the two houses, the President of the Senate will now proceed to open and count the
votes which have been given for a 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 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 iu discharge of their
duties.

Mr. Bigler, 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-President of the United States, com-
mencing 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 certificates in full, unless the reading of the certificates be called for.

The Presiding Officer. 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, further, that the tellers should determiue for themselves in what way the
votes are verified to them, and read 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 certificate of the electors of the State of
Wisconsin that the electoral vote of that State 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 uot know 'what would be proper in a case of this sort ; but I desire now
to call attention to it, iu 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 Presiding Officer considers that debate is uot iu order
while the tellers are counting the votes.

Mr. Jones, of Tennessee. I suppose, Mr. President, the i)roper way would be for the
tellers to rcpart the facts to the convention of the two houses, and let them decide.

C X

COUNTING THE ELECTORAL VOTE.

Tlie Presiding Officer. The Presiding Officer so considers.

Mr. Smith, of Tennessee. Wonld 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 concluded,

Mr. Jones, of Tennessee, one of the tellers, reported. He said: Mr. President, the
tellei's appointed ou 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 by law, except in the case of the votes cast by the electors 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 Penn-
sylvania, received 174 votes for President of the United States; that 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 the State of New York, re-
■CBived 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 Wisconsin — 114 electoral votes for Vice-President of the United States ; and that
Andrew Jacksou 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.

States.

President.

Vice-President.

'"3
"o
3

Cm
O

la
o6

2 .
^^
1

.a
o

a
o

"3 »

« S
o ^

R ®
a

Maine

8
5

13
4
6
5

8
5

13
4
6
5

5
13

New Hampshire

Massachusetts

■1

Rhode Island

Connecticut

New York

.27

Maryland

Virginia

15
10
8
10
12
12

7
13
11
9
9
4

North Carolina ■..

South Carolina

Georgia

t-2

Kentucky

Tennessee

Ohio

Louisiana

6
7

13
11
9
9
4

Mississippi

Indiana

Illinois

Alabama

Missouri »

Arkansas

■9

•8

Michigan

Florida

Texas

Iowa

4
5

Wisconsin

California

296

174

114

174

114

PROCEEDINGS AND DEBATES IN CONGRESS. 89

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 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 Repre-
sentatives sitting in this chamber. What further action may be taken, if any further
action should be taken, will devolve upon the properly-constituted authorities of the
country— the Senate or House of Representatives, as the case may be. The Chair was
misunderstood by the Senator from Kentucky. In pursuance of the order of the two
houses, the Presiding Officer will now announce the vote which has been delivered to
him by the tellers.

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 ap-
pointed 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 President of the United States, as de-
livered by the tellers, 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 C. 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
therefore declares that James Buchanan, of the State of Pennsylvania, having the
greatest number of votes for President, that number being a majority of the whole num-
ber of electors, has been duly elected President of the United States for the term pre-
scribed 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, 18.57.

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 Representatives, 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 Wisconsin— the President of
the Seiuite, through the tellers, announces the vote of Wisconsin, and the vote of Wis-
consin is therefore counted, upon your decision. W^hether that is a vote or not must
depend upon the determination of this convention, and if j'ou will regard the verbiage
of the Constitution, you will iind 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 Representatives, 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 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 difference.

Mr. Smith, of Tennessee. I rise to a question of order. Is debate in order ?

The Presiding Officer. The Presiding Officer would state that, the votes having
been counted and announced, the functions of the two houses, assembled for the pur-
pose of counting the votes, are discharged.

Senator Toombs. I except to that decision of the Chair, and appeal from that judg-
ment. I wish to enter my dissent from that decision, that it may not be hereafter
drawn into a precedent. I do not consider it law, and I do not consider that the Pre-
siding Officer has a right to close the mouths of Senators and Representatives here, in
whoso hands the decision of this question must rest.

The Presiding Officer. The Presiding Officer was about to state that the Constitu-
tion 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.
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-Presi-
dent. The concurrent order of the two Houses provides —

" That the two houses will assemble in the chamber of the House of Representatives
on Wednesday, the 11th instant, at twelve o'clock, and the President of the Senate jjro

90 COUNTING THE ELECTORAL VOTE.

femjjore sliall 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 ; which shall be deemed a declaration of the per-
sons elected President and Vice-President of the United States, and, together with a
list of votes, entered on 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 imjiosed by the Con-
stitution was, that the vote should be counted in the presence of the Senate and House
of Representatives. He considers that the vote has been counted by the tellers in the
presence of the two houses, and under the charge, he presumes, of the Presiding Offi-
cer. 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 difference 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 received a majority of the whole vote from the list delivered to him
by the tellers, and to declare 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 deviation from the Constitution and
law, that one State should assume, either by act or by inadvertence, 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 equally 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 ; aud 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 decidedly of 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 certiiicate, 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 de-
termination on that discrepancy, the tellers have no suggestion to make.

Senator Crittendex. I shall not presume 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 Presiding Officer has acted in assuming to
declare the number of votes, involves the privilege of determining a presidential elec-
tion, 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 Presiding Officer is utterly unaware that he has
assumed the exercise of any such power.

Senator Toombs. I consider that the Presiding Officer has done so.

The Presiding Officer. The concurrent order of the two houses makes it the duty
of the President of the Senate to announce the state of the vote, and the persons
elected, to the two houses assembled. That duty he 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, assuming that the vote of Wisconsin would determine 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 f 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. Orr. The votes for President and Vice-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 ou 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 therefore move that the

PEOCEEDINGS AND DEBATES IN CONGRESS. 91

vote of the State of Wisconsin, having been cast on a day different from that provided
by law, be rejected, and that the tellers be instructed to make np 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 ? Fer 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 insiiperable difficulties in the
way, is to adjourn immediately to our respective halls. Then let the Senate or the
House of Representatives bring np the matter for action. By the present proceeding
we are overturning the Government — we are making this a national convention.

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 having
been discharged, the Senate will return to its own chamber.

Senator Seward. I was about to propose that.

Senator Toombs. I protest against that 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 Presiding Officer is informed by the tellers that they
have not yet made out their certificate. [Laughter.]

Senator Douglas. I rise to state that, in my opinion, the tellers have no right to
authenticate that certificate nntil the two houses have passed upon it as to its being
a true count. I rise to i^rotest against this joint convention being dissolved until the
question which has been raised shall have been decided.

Senator Toombs. That is right.

Senator Douglas. I am willing that the Senate shall retire to its own chamber to
consider and determine the question in dispute ; but I do protest solemnlj^ against the
deed being done before we have had an opportunity of deciding this question.

Senator Toombs. I want to vote on it.

Mr. Stanton. I rise to a question of order. Who shall determine when the business
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 con-
vention, and that, pendingthat motion, the President of 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 conveutiou.

The Presiding Officer. The Presiding OtHcer would again refer to that clause of
the Constitution which, in his judgment, prescribes the only functions to be discharged
iu this presence :

"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."

Senator Toombs. What votes ?

The Presiding Officer. The votes for President and Vice-President of the United
States.

Senator Toombs. That is the question. What are the votes?

The Presiding Officer, (reading:)

The Presiding Officer, therefore, again states it as his judgment that the Senate came
here nnder 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 concurrent order of the two houses.

Mr. Stanton. 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. Orr] to reject the
vote of the State of Wisconsin should be first determined? How can the object for
which we assembled here be decided until we shall have settled the question as to
whether the vote of a State is to be couuted or not ? For what purpose did we come
here, if not to decide such questious as the motiou of the gentleman from South Caro-
lina ? I differ with that geutlemau, and shall vote against the motion, Buc it is a
question the right to determine whicli 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 motiou calling
for a vote is in order. The Presiding Officer, therefore, 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

92 COUNTING THE ELECTORAL VOTE.

convention is to count the votes given by the electors in the several States. The prop-
osition which I submit is, that we have not yet counted them. That is the only ques-
tion here — have we counted the votes from the State of Wisconsin f It is alleged on
the part of some gentlemen 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 cognizance. No final certificate of our action here
has yet been made ; and the two houses are at issue, not as separate bodies, but indi-
viduals of both bodies seem to differ iu opiuion as to whether there is or is not a vote
from Wisconsin here, which, according to the Constitution 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 precedent 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 C.
Fremont and William L. Dayton. But it is right that gentlemen here Avho think that
we ought not to count it should be heard on this suliject, either here or in the sepa-
rate houses by the members thereof, and that this convention should by some mode
come to a conclusion. It is understood, I believe, as a matter 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. 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 tneir vote at the earliest practicable moment — such votes are the lawful electoral
A'otes of the State, and should be counted by the two houses on an occasion like this ;
otherwise the jieoplo of such State will be utterly disfranchised, when they have per-
formed every possible duty incumbent upon them under the Constitution. The
acts of God and of i^ublic enemies have always been held to excuse men from the per-
formance of an incumbent duty. On the other hand, the Senator from South Carolina
[Mr. Butler] declares that, in his opiuion, such votes ought not to be counted, and iu
effect the State ought to be disfranchised. Now, I do not propose to settle that ques-
tion ; but I do say that we ought not finally to leave this hall as joint convention, aud
finally to separate, and abandon our duty under the Constitution iu this regard, until
we have put the public mind of the country at ease on the question as to whether the
votes of Wisconsin are to be counted or not ; and I, too, wish to enter my protest against
the President of the Senate aud the tellers settling the question for us, and in spite of
us, as to whether the votes of a State shall be counted or not, aud 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 PuESiDixG Officer. The Presiding Officer would inform the Senate and House
of Representatives thus assembled that the tellers have not yet completed their certifi-
cate. The motion of the gentleman from South Carolina, [Mr. Orr,] in the opinion of
the Chair, is not in order.

Senator Hunter. Let me suggest this point of order : K a question arise during the
process of counting which requires action of the two houses, I believe we cixn 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 committees. I move that the Presi-
dent of the Senate conduct the Senators back to the Senate Chamber.

The Presiding Officer. The Presiding Officer would again state that the duty of
the tellers has not yet been discharged. The tellers, it would appear, made their re-
port before 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 purpose of addressing an inquiry to the Chair,
which is, whether or not an official certificate of the causes which prevented the elect-
ors 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 Off'icer. 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. Orr ?]
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 im-
portant that it should be decided whether or not this convention is to adjourn by the
decision of the Chair or by the judgment of the convention. And I desire to inquire
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 hav©

PROCEEDINGS AND DEBATES IN CONGRESS. 93

discharged their duty? I desire, Mr. President, that this convention shall decide, be-
fore it adjourn, 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 Presid-
ing Oflicer'of the convention. In order, Mr. President, to bring this question directly
before the convention, if the Chair rules out the resolution of the gentleman from
South Carolina, I appeal from that decision.

Senator Butlkr. 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 as I represent the State of South Carolina.

Mr. Okk. Is my motion pending ?

The Presiding Officer. The Senator from South Carolina rises to a question of
order, which he will be good enough to state.

Senator Butler. My point of order is that this is not a debatable question in this
convention, 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 disposition 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 that the Senate is sitting here pursuant to the Constitution, and that when the
Senate may determine that its duties here are ended, tiie Presiding Officer of both bod-
ies will receive a motion from any Senator to return to its own chamber, where its
sitting will be resumed. The Senate is in session now.

Mr. Okr. If the Chair will allow a suggestion, I think perhaps we may be relieved
from this difliculty. This question arises now, whether a vote shall be counted ? A
Senator, I think,'properly objects that the vote shall be taken per capita. Let a mo-
tion be made that the Senate retire to their chamber to determine the question, and
allow this House to do the same. It can be done by an interchange of messages be-
tween 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 separate.

Mr. Jones, of Tennessee. I hope that this convention will not separate until they re-
ceive the report which the tellers have to make; and it will be for the convention
then to determine what tJiey will do with the report.

Mr. Wasrburne, of Illinois. I demand the reading of all the official papers connected
with the Wisconsin case. I think the convention have the right to know what
those papers are.

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
chamber. Let us there decide what we will do. A difficulty has arisen, and it cannot
be settled in this body.

Mr. Jones, 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, i

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 Iklaine. The tellers have declared the vote, and the Presiding
Officer has announced who is elected President, 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 been 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 Presiding Officer announced the result, the
Constitution, 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.

94 COUNTING THE ELECTORAL VOTE.

In the House of Representatives, Fehruary 11, 1857.

ilr. Campbell, of Ohio, [wliile the Senate was retiring.] Mr. Speaker, I call for
the regular order of business.

The Speaker. The gentleman from Maine [Mr. Washburn] reported from the
Committee on Elections a resolution in relation to the seat of the Delegate from the
Territory 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 convention. The object for which that
joint convention 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 con-
vention, and which must be decided by this House before the Senate 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
provision 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 net now the first thing
in order? [Great laughter.]

Mr. Orr. I appeal from the decision of the Chair.

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 diffi-
culty. I wish to move that the vote of the State of Wisconsin be excluded from the
<:ount.

The Speaker. No question relating to that subject can be received.

Mr. Orr. Is not the House in joint convention ? '

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
regular session, the Chair directed the Clerk to proceed with the call of the roll, which
was the business in which it was engaged when interrupted 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 ses-
sion.

Mr. Orr. The Senate has retired to consult and discuss a question which arose dur-
ing the progress of the proceedings of the joint convention. It is now proper that we
shoiild consider the same question, so that we may be prepared to receive the Senate
on its return.

The Speaker. If the gentleman will submit a proposition in order the Chair will
receive it.

Mr. Orr. I propose to make this proposition : 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 prescribed 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 Wiscon-
sin for the election of President and Vice-President, that the vote for President and
Vice-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 —

" Eesohed, That the Senate be informed that the House of Representatives have de-
cided that the vote of Wisconsin be excluded from the count when the joint conven-
tion shall re-assemble."

Mr. Campbell, of Ohio. I understand that the Chair has decided that wo are not in
joint convention; that we are now in the transaction 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 busi-
ness.

The Speaker. The resolution is not in regular order, but will be received unless
there be objection.

Mr. Carlisle. I object.

Mr. Orr. I think there can be no question of higher privilege than my resolution.

PROCEEDINGS AND DEBATES IN CONGRESS. 95

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. Washijurne, 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. Wasiiburne, 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 complied 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. Orr] 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 unanimous consent. From that
decision the gentleman 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 worthj^ of the most serious consideration of the
House, and should be treated of caludy and considerately, for the precedent we are now
to establish will be cited as authority through the future of this Government. The
House of Rejireseutatives — the popular branch of the legislative 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
conformity 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 Senate 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 his function is performed ; and
after all the certificates have been opened, the counting of the votes is then io commence
and he concluded. A question has arisen here to-day, when the certificate of the vote
of Wisconsin was opened by the President of the Senate, whether that vote should be
counted ; and when that vote was challenged by a member of this House the President
of the Senate undertook to say that debate was not admissible 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 f I entered my protest, as a Represen-
tative of the people, against such a proceeding, which in efifect gives a construction to
the Constitution so as to draw the whole power into the hands of the President of the
Senate; and thereupon a question arose as 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 tellere are the
actors, or are the 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 vote — per capita, as individuals in an assembly, or as houses in a, joint conven-
tion f It appears to me there is no real ditficulty 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 capita, the members of the
House would overwhelm 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 organizations ; and when a 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 appointed organ.

According to my understanding, the Senate retired upon the motion of the Senator
from Illinois, [Mr. Douglas,] and I presume the Senate 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 cei'tified 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 Representatives may set aside an election made by the jteople through
the electoral college, and assume the power of bringing the election before the House
or Representatives. I am, therefore, clear that the houses meet as houses, and no
vote^er 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

COUNTING THE ELECTORAL VOTE.

ite ; and it is a duty I insist we should perform before the vote shall be counted.

le 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 tell-
ers, they are part of the draviaiis persona not known to the Constitution— mere facili-
ties, 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 Senate 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 by 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 constitutionally-declared election of a
President and Vice-President of the United States. The functions of the tellers com-
mence 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 certificate from the electors of a State ; but the theory 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 count-
ed, or before the houses have agreed, respectively, to the report, and while a vote from
a body of electors is under challenge from a representative of the people, is premature
and unauthorized, and is not a constitutional ascertainment of the election of the Pres-
ident and Vice-President.

The Speaker, (interrupting.) The Chair will relieve the gentleman from Kentucky
of the question he is now debating. The question is simply a question of priority of
business — whether the resolution of the member from South Carolina is in order, and
supersedes the regular order of business of the House. The Chair is of opinion that it
does not ; but if the gentleman from Kentucky desires 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 geutleman from South Carolina is not in order as a question
of privilege, and that an appeal from that decision is pending.

The Speaker. It is.

Mr. H. Marshall. Well, I am already discussing the matter pertinent on the ap-
peal. The Chair decides the resolntion out of order, because, in the opinion of the
Chair, the meeting of the Senate and House required by the Constitution has definitely
closed ; while I am of oi^iuion that it has not, and that the House should now delibe-
rate whether, when the two houses meet again, this House will vote to count the vote
of Wisconsin or not. The Senate has, as I understand it, returned to its chamber to
deliberate on that proposition.

The Spj:aker. 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. Orr] was offered, as a
matter of privilege, rejecting the vote of Wisconsin, and the Chair decided it could not
supersede 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 decision 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 presented by the gentleman from South Carolina is,
that the resolntion 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 Kentucky yield to me 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 conveution 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 gen-
tleman's resolution, because he has inserted in it " the Senate concurring," thereby
making it a joint resolntion of the two houses; whereas, I think this House determines
by itself, and for itself, how its owu 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

PROCEEDINGS AND DEBATES IN CONGRESS. 97

Tvill vote; and the view of my friend is defective, therefore, in making the concur-
rence of the Senate a condition on which only his resolution will be effective. This
view is apart from any considerations 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, be-
cause I want to sei^these other points settled. 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 certitied, it is willing to
count ? Has the Speaker 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 certifi-
cate 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 majority of the President and Vice-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 session here. So
was the House in session. He presided over the Senate and over the convention ; 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
A'ote offered to be counted, it is not constitutionally counted, and the President of the
Senate cannot, of his own mere will, give that vote any force or validity in that elec-
tion, 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 candidate has the majority, he shall
be President. The laiv of 179'2 says : On the second Wednesday in February the cer-
tificates shall be opened, the votes counted, and the persons who are to fill the offices
of President and Vice-President shaJl be ascertained and declared agreeahly to the Consti-
tution. Ascertained by whom, sir ? Declared by whom, sir ? Is the President of the
Senate to ascertain it I Is he to declare it, agreeably to the Constitution ? Or are the
houses, in the presence of each other, to ascertain the fact, and are they to de-
clare, 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 Constitution.''
Suppose, sir, that the House should not agree to the result as declared by the President
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 House? Or, would not
the House of Representatives undertake, in such an event, to judge for itself whether
the majority had been cast, whether the vote had been counted agreeably to the Con-
stitution, and whether it would or would not in pursuance of a duty devolved on it
by the Constitution, proceed to elect a President of the United States, agreeably to
the constitutional requisition, in the event of a failure of any one to have a majority?
The House holds itt its own hands the means of protecting its own dignity, and of preserving
the substantial requisitions of the Constitution by seeing that the votes are properly counted.

Mr. Ckaige. 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 committee of three or five to confer with a com-
mittee 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
requirement been fulfilled of counting the votes for President and Vice-President, and
has the subject been disposed of by tlie decision of the President of the Senate, though
a vote proposed to be counted was objected to by the member from Virginia, [Mr.
Letcher,] and before 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 Consti-
tution has been accomplished and properly 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 the 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 ascertained 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 i)owers, and to agree to the exclusion of the House from a fair participation in

*98 COUNTING THE ELECTORAL VOTE.

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 proclaim who is elected President or Vice-President of the United States
when no certificate of the fact was signed even by the tellers or certified to him, when
uo count has been verified by the House as a House, but on the contrary a vote is dis-
puted by a member of the House ? Will the retirement of the President of the Senate
" with his Senate at his heels," if intended to be hnal, overcome the House and make
us yield our constitutional privilege? If the Speaker of the House announces that
there is no longer any joint convention, and if the whole thing be broken up in con-
fusion, the question may very well arise as to what then becomes the duty of the
House of Eepresentatives.

I know very well that the President of the Senate finally said that the tellers had
made their report; but, as 1 understood him, the tellers had not completed it. I heard
one of the tellers say that they did not intend to certify 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
assumption that their oflSce here had been performed fully ? If the latter, what will
this House say ?

Mr. Smith, of Tennessee. Will the gentleman allow me a moment ?

Mr. H. Makshall. 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 is proper for its own dignity and due to the propriety of the occasion.

Mr. Smith, of Tennessee. I want to correct the impression which the gentleman is
making.

Mr. H. Marshall. It seems almost impossible for a Representative to speak here
except under continued interruption. Upon a subject like this, I did hope that what I
had to say could have been said to attentive ears without this ; but as it is otherwise, I
prefer to yield the floor rather than to conclude under a continued stream of inter-
rogations, and I yield the floor entirely.

Mr. Quitman. I think, sir, that if the House will reflect upon the conse<iuence8 of
any misstep in its proceedings now, it will deliberate calmly and maturely as to the
proper mode which ought to be pursued. It was my fortune upon one occasion to sit
as the presiding offlcer over two legislative bodies assembled in convention — not, I con-
fess, as turbulent bodies as those I have seen here to-day. Questions of a similar char-
acter to these arose, and I have been obliged to give them some attention. But what I
wish to impress upon this House now is, that unless some conciliation and some pru-
dent measure takes place, this is but the commencement of a revolution. [" Hear,
hear!"] 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 elec-
tion 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 properly put by the gentleman from South
Carolina who introduced this resolution: was the joint convention of the two Houses
-terminated by the withdrawal of the Senate ? No, sir ; it was terminated by no act
of either braiach of this convention. The convention still exists in contemplation of
law. It was said by the honorable gentleman from Kentucky, Mr. H. 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 referred, 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 on 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 return— not
to break up the joint convention, not to dissolve it, but to return to their own cham-
ber, 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. Bat, 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 business before us ; and until it is
disposed of, in my judgment nothing else is in order. Therefore, it is perfectly right
and proper that this House should take up the subject, decide it, and respectfully com-
municate 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 permitting this question of the power of the Pre-
siding Officer of the joint convention to be overslaughed. I think my friend from
Kentucky [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 with-
out 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 de-
cide upon the validity and legality of the vote for President should be complicated
with a question of order.

PROCEEDINGS AND DEBATES IN CONGRESS. 99

Now, sir, the question as to whether or not these two houses are in convention, is
a physical fact, determinable by observation. The question as to whether the two
houses must vote jier capita upon all questions while iu joint convention, is a question
to be decided at the proper time, and in the proper place. But assuming that gentle-
men arej correct in saying that each house is entitled to a separate vote, it by no
means follows that the joint convention should be suspended or dissolved, or that
the two houses should separate. I apprehend that it is an every-day occurrence in
the legislatures of the several States, when assembled 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 con-
vention.

But, sir, I take it that whenever the Senate or the House, which goes into the cham-
ber where the joint convention is to jueet, and there proceeds to the consideration of
the business that devolves upon it, and withdraws, that withdrawal, not i»rofessedly
for any temporary 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 conclusion.

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 gentlemen permit the result
to be announced upon the motion of tbe gentleman from Missouri to lay the report of
the Committee of Elections upon the table f

Mr. Ckaige. However it may be in theory, I apprehend there is no difficulty iu point
of fact as to whether we are in joint convention or not. Wliether it has adjourned,
or is merely 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 iu 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 re-assembling of the joint convention.

Mr. Orr. I desire to modify my proposition. 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 con-
vention, in pursuance 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 M 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.
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 to me that that is perhaps the best way
of relieving ourselves of the present difficulty. If there be gentlemen here, as I have
no doubt there are from the intimations which have fiilleu from some of them, who
think that the vote of the State of Wisconsin ought to be counted, 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 to cast their
electoral votes on different days, you will put it in the power of the electors of the
State to make combinations so as to secure the election of a President and Vice-Presi-
dent against the voice and will of the people.
Mr. MiLLSON. I rise to a question of order.

Mr. Wasuburne, 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 Virginia rises to a question of order.
Mr. MiLLSOX. I will state in advance that what I raise as a question of order may be
considered rather as reasons Avhy this resolution should be rejected. If, however, it
be a question of order in the opinion of the Chair, I will only say that I will indicate
the points of order, and seek an opportunity at some other time to enforce my objec-
tion to the resolution. My point of order is this : The resolution assumes that the
Senate is to return in joint convention, when, I hold that they may never, and need
never return, the work having been accomplished.

The second point is, that the Constitution is a body of rules for the government oi
this House, as well as those enacted by ourselves ; and under the Constitution the.
Senate and the House of Representatives have never been, and can never be, iu joint
convention.

The third point is, that the resolution assumes the right of the House to reject the
vote of a State given for President and Vice-President, when no such authority has been
given by the Constitution, either to the Senate or the House of Representatives, and
when I think the power has been wisely withheld from both to determine any such
question.

The Speaker. The Chair overrules the question of order raised by the gentleman
from Virginia.

100 COUNTING THE ELECTORAL VOTE.

Mr. Washburx, of Maine. I wish to say a word ou this point of order.

The Speaker. Debate is not in order until the Chair has given its decision.

Mr. Our. I will relieve the resolution from one of the difficulties suggested by the
gentleman from Virginia. I propose to modify it by striking out "in joint conven-
tion."

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. Mj' point of order is this : That this
House cannot know, as a House, what has been done in joint convention until the tel-
lers 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 proposi-
tion relating to that purpose is in order. Such a proposition is presented by the gentle-
man 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 decis-
ion 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 question. We have met the Senate here to-day in pur-
suance of the provisions of the Constitution, of a law of Congress, and a joint resolution
adopted a few days since by the two houses. At such meeting nothing could be done
except whathad been authorized by the Constitution and the laws of Congress.

Mr. RuFFiN. 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 a right to state his point of order,

Mr. RuFFiN. He is discussing and not stating it, 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 t'rom South Carolina [Mr. Orr] is not in order. Now, sir, if that mo-
tion is entertained and prevails, we shall be here not in pursuance of the Constitu-
tion

The Speaker. The gentleman from Maine does not present a question of order. He
will please state his question of order.

Mr. Washburn, of Maine. I understand the Speaker to have decided that the reso-
lution oftered by the gentleman from South Carolina was in order. I make the point
that the resolution cannot be received, because this House at this time, and in this
manner, has no jurisdiction over that question under the Constitution, 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. Washburn, of Maine. Then I take an appeal, and I 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 number of votes for President shall be President of the
United States, if such number be a majority of the whole number 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 Constitution, or of law, that they shall be counted by the Senate, or
the House, or by a joint convention. There has been no joint convention, nor could
there have been any. The assemblage 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 iirescribing the rules and regulations 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 certificates, and to cause the votes to be counted. The Houses had directed
how they were to be counted, by a teller a^jpointed 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 Presi-
dent of the Senate, in the pi'esence of the two houses, and in exact conformity with
the provisions of the Constitution, did declare the whole number of votes, and did de-
clare who had the majority. Nothing but that could have been done. There was no
power on the part of the Senate, or on the part of the House, to interfere with the
execution 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, is functus officio. I have no
doubt, sir, that there is here a casus omissus — that there is no law and no provision of
the Constitution by which anything can jjossibly be done, except what has been done
by the President of the Senate in 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

PROCEEDINGS AND DEBATES IN CONGRESS. 101

from the chair, iu presence of the Senate, and to the House, what had been declared to
him by the tellers. That 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 decis-
ion 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
clearlj' a casus oinissus ; that there was no power either in the House or Senate, or in a
joint convention, to interfere and participate authoritatively iu counting and declar-
ing 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 center
on this point.

It is very certain, Mr. Speaker, that this vast power should not be vested in the Pre-
siding 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 ques-
tions 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 bylaw of Congress, sothat hereafier, 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 x»rovisions of established and known law. We cannot overestimate
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, act-
ing 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 Congress, acting without limitations or restrictions, 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 demanded 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 are required to resist the purposes of unscrupu-
lous power ; do not let us entertain motions here, when the principle upon which they
are offered would imply authority on the part of the House to do what would be incon-
venient, absurd, and unconstitutional. If the late meeting in this hall were a joint
convention, how should it vote per capita f Whence did the House derive power to in-
sist upon voting in this manner ? By the houses separately ? Then one house might
lock the other by passing such orders or resolutions as that offered liy the gentleman
from South Carolina, [Mr. Orr,] with conditions annexed 1 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 condi-
tions. Does any one suppose that the counting and declaring of the votes in the pres-
ence of the two houses, as required by the Constitution, can ever bo had in this way 1
But, sir, I took an appeal from your decision to enable me to make these few remarks,
and now withdraw it.

Mr. Washbukn, of Wisconsin. I ofter the following as a substitute for the resolu-
tion of the gentleman from South Carolina.

" Whereas the electoral vote of the State of Wisconsin, 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 at-
tending at the seat of government on that day to cast the vote of said State by physi-
cal impossibility caused by the act of God : Therefore,

"Be 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 question of order. I object to the reception of
the resolution, as it relates to no matter which the House can now legally or constitu-
tionally have before it.

The Speaker. The Chair is of opinion 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 resolution of the gentleman from South Caro-
lina relates to that, and is necessary to its completion.

Mr Davis, of Maryland. I take an appeal from that decision. It is with great re-
luctance, 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 importance 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

102 COUNTING THE ELECTOEAL VOTE.

decide this question. lu my judgment, the phrase "joint convention" has led every-
body here estray. In my judgment, the duty which was assigned to the Senate and
House of Representatives has ah-eady been discharged. 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 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 separately and of the House sitting separately — as separate houses. It does
not say that any result shall be announced. It does not require any judgment to be
declared. I 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 permit me to ask a question f 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
eftect 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 am-
biguity 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 efi'ect. Whether a vote
shall or shall not have the efiect of electing a President is, after the mere ministerial
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 gentleman shall rise and move, in pursuance of the Constitution of the
United States, that the House now proceed to the election of a President; 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 gentle-
men 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 ai"e called upon to decide upon
the question whether we shaJl 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 separate votes upon every A'ote 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 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 constructionist, or wide and loose constructionist, can find any
function confided to both houses together, or to one separately, which enables them to
j>ass preliminarily upon the point whether one vote shall be counted, or another re-
jected. No judgment is called for at all. On the contrary, the Constitution carefully
avoids asking for any judgment by anybody upon a mere count. It does not say that
anybody shall be declared President 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 Pres-
ident, for the law declares him ; and the only way we can get on recoi'd 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 President. The moment that one
practical question 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. AVe are called upon here to enter nothing on the record,
to pass no judgment, until called 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 jierform 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 per-
formed in the presence of the two houses, and they having been witnesses of that one

PEOCEEDINGS AND DEBATES IN CONGEESS. 103

fact, there is no reasou 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 m:uiuer than simply by counting out the votes; and when the certificates 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 gentleman from Georgia yield me the floor for a
single moment, to read a few words from Kent's Commentaries?

Mr. Cobb. I will yield the floor for that purpose.

Mr. Washbukn, (reading:)

"The act of Congress of 1st of March, 1792, section 2, directs that the certificate of
the votes shall be delivered to the President of the Senate before the first Wednesday
of January uext ensuing the election. The President of the Senate, on the second
Wednesday in February succeeding every meeting 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 express hy whom the votes are to be counted and the result
declared. !» the case of questionable votes and a closehj-contested election this power may be
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. 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 beet
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 compli-ted the duties for which
we had assembled, or whether the question should be decided by the two bodies them-
selves. That is the point, and the only point ; and when we are relieved from that
difficulty all others cease to exist.

Now, during that session I submitted that point to the Presiding Officer, and I then
insisted, and I now insist, that it was not within the province of the Presiding Officer
to determine for the two houses when the work had been completed, or to dissolve the
joint convention, 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 respectively? I confess, sir, that
that is not free from difficulty. On the first suggestion of this question, I was inclined
to the opinion that it should be decided by the members of both houses voting per
capita. I listened with interest and instruction to the able argument of the gentleman
from Kentucky [Mr. H. Marshall] on this point; and I am inclined now very strongly
to the opinion that whilst 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 diff'er, there is, I confess, no provision for that con-
dition of things ; and a casus otnissus 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 stndent of the Constitution of this country finds no unmeaning pro-
visions in it. Would the framers of that instrument have provided that the duty of
examining and counting the votes cast for President and Vice-President should be dis-
charged 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, provided there
was a failure to elect by the electoral 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 Speaker and the House of Representatives alone. They could as well go through
•with the simple function of opening and recording the i^apers which have been returned
to the two bodies. If a question arises whether or not one of these papers is a forgery,
who is to decide 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 dutj', the great responsi-
bility, according to the gentleman ,is placed on this House to decide whether or not an
election has transpired ; and that if a majority 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 rejected, so that the record shows no election
has been had in conformity with the Constitution, then we are to proceed to elect a

7 X

104 COUNTING THE ELECTORAL VOTE.

President of the Uuited States. I say that the theory of our Constitution could no
have contemplated such a state of things as that, and could not have required the Pres
Ident of the Senate and the Senate to come to this hall to be witnesses of this trans-
action, with all the power residing in the House of Representatives 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 t7?o bodies are together, 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 entertained 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 question ?
Why could they not have cast their votes respectively ? This presents a fair oppor-
tunity of deciding this question, free from difficulty. What occurred during the time
the two liouses 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. But a case may arise hereafter 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.
Craige] was entitled to more consideration than the House has been disposed to give it ;
and that was, that committees of the two houses should meet and confer on this sub-
ject. If in the view presented by my friend from Virginia [Mr. Millson] we have com-
pleted 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 thinlv 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 majority of this House cannot, without perjury
resting on their consciences, adjourn thi.s 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
discharged, 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
maturely, and free from all feeling and prejudice — there is nothing to cause it here for-
tunately ; 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 resolution 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 ot the Senate and the House of Represent-
atives, the adoption of the resolution of the gentleman from North Carolina. Let this
House by its committee meet a committee of the Seuate. Let us consider the ques-
tions 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 desii'e to submit some remarks for the consideration of
the House on the resolution submitted by the gentleman from South Carolina. The
question of the rejection of the vote of Wisconsin can in no manner affect the result
of the election, 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 tlie reception of that vote, tliat neither the two houses, nor any member
thereof, could be heard upon the question ; that it defended for its determination ex-
clusively upon himself and the tellers. I cannot assent to that, nor to the ojjinion ex-
pressed by gentlemen here that the two houses are, in convention assembled, only in
the capacity of spectators.. It seems to me tbat the Constitution imposes upon Cbn-
gress — the Senate and House — the duty of counting and antioiincuig the whole of the
votes duly certified as having bet^n cast for President and Vice-President on the day
prescribed by law, and the further duty of ascertaining and declaring 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 provides 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 be presumed to have been given
at the time required by the Constitution and prescribed by the statute. The Constitu-
tion 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 1, 1792, section

PROCEEDINGS AND DEBATES IN CONGRESS. 105

two, provides that "the electors shall meet and give their votes on the first Wednes-
day iu December; " and section four of the same act provides that "Congress shall
be in session on the second Wednesday iu 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 tiie offices of President and Vice-President ascertained and de-
clared agreeably to the Constitution.

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
ascertain and declare who is 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 twohouses.
The DUTY to ascertain and declare these results is, in my opinion, devolved upon the
two houses, not U2)on 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 ap-
pointed by the people in the several States. In the discharge of this duty, the Con-
gress 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 wiiich are certified to have
been given on a day other than that prescribed by law. Such a certificate upon its
face shows that such votes were given contrary 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 instrument declares " shall be the same day throughout the United
States," and that Congress 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
contrary to the express requisitions of the Constitution 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 difi'erent from that prescribed. The electors of the several States
cannot meet on difterei\t days, and vote for President and Vice-President; 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, therefore,
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 jour-
nal will show the action of the convention.

The Speaker. The House has no journal of the convention.

Mr. BovcE. Difficulties of a somewhat similar kind, Mr. Speaker, to those which now
exist, have occurred before. In 1821, objection was made to counting the votes of the
State of Missouri. I shall read what Mr. Claj' said on that occasion, and how the diffi-
culty was obviated. It seems to me that by pursuing the same course all the difficul-
ties in this case will be obviated.

The following extract was read by the Clerk :

" Mr. Ci.AY said he really saw no difficulty in this business ; and, before he sat down,
should make amotion, 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 hypothetically ; that the
whole number should be announced, including the vote of Missouri, and that the num-
ber 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 having the
largest number of votes was duly elected. The motive w^hich 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 effort to provide, by previous arrangement, for the very contingency which has
arisen. The moment the objection was made, in that instant the rule adopted this
morning took eftect. Mr. C. said it therefore appeared to him, with very great defer-
ence 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, iu the opinion of Mr. C, to have sei^arated until they
had consummated 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 Missouri 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

106 COUNTING THE ELECTORAL VOTE.

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 contemplated
by the second resolution passed this morning. Mr. C. therefore moved that the sub-
ject 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. BoYCE. 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 ordered 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 Eepresentatives, for
the purpose ofcontinuing 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 be sent to the Senate inviting that body to come in and con-
tinue 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 resolution on the table.

Mr. Florence. I submit a question of privilege.

The Speaker. The gentleman from Pennsylvania rises to a question of privilege.

Mr. Florence. Mr. Speaker, my question 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 Eepresentatives having assembled in joint conven-
tion, and having counted the votes, and the result having been duly pronounced and
declared, there is nothin'g left but to adopt the resolution I submit, providing that a
committee be appointed to inform James Buchanan, of Pennsylvania, that ho has been
elected President of the United States for the constitutional term, beginning on the
4th day of March proximo ; and also to inform John C. Breckinridge, of Kentucky,
that he has been elected Vice-President of the United States for the same period. The
following 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 majority of the votes cast for President
of the United States, which said result having been pronounced and declared ; and it
also ajipearing that John C. Breckinridge, of Kentucky, haviug received a majority
of the votes cast for Vice-President of the United States, which said result having been
prouonnced 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 requested to appoint a committee, to
act in conjunction with a similar committee of the Senate, to wait upon James Bu-
chanan,of Pennsylvania,and inform him he has been elected to be President of the United
States, for the constitutional term of four years, commencing on the 4th day of March,
1857 ; and also to wait upon John C. Breckinridge, of Kentucky, and to inform him
that he has been elected Vice-President 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 priv-
ilege, and is not in order at this time.

Mr. Florence. Very well, sir. It, however, occurred to my mind we bad nothing else
to do upon the subject but to pursue the course I have indicated.

Mr. Campbell, of Ohio. I ask my colleague 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 rieceived pending the ques-
tion 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 4 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 7 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 i)ropose as a substitute for the resolution of the gen-
tleman 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 irom
South Carolina was oifered as an original proposition. A substitute was proposed for
that by the gentleman from Wisconsin. My point of order is that no other substitute
can be in order.

PROCEEDINGS AND DEBATES IN CONGRESS. 107

The SncAKER. The gentleman from Wisconsin moved to amend the original resolu-
tion : and the gentleman from Ohio moves au amendment to the amendment, which is
in order.

The substitute offered by Mr. Campbell was then read, as follows :

" Whereas the members of this House are satisfied that, in pursuance of the Consti-
tution and laws of the United States, James Buchanan, of Pennsylvania, 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-President,
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,

"Besolved, That when the Senate again return to the hall of the House of Represent-
atives, under the provisions of the joint resolution, it is the opinion of this House that
the vote of said State of Wisconsin ought to be counted."

Mr. Letcher. I would suggest to the gentleman from Ohio that he add to his reso-
lution, 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 fit to return, this resolution, if passed, carries with it the expression of the sense of
this House. I am not in favor of sending any committee after that body. They left
us, a co-ordinate and co-equal 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 tlie adoption of this resolution in future. It simply
puts the facts of the case on record, and establishes no dangerous precedent.

Mr. Gaknett. I desire f o 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 Will-
iam L. Dayton for Vice-President ; and I wish to know, further, whether in the pur-
view 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* resolution, 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. I will insert before " John C. Fri^mont" the words
" electors favorable to the election of." Aiul 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 propo-
sition. 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
understanding that he will renew the call for the previous question, I will withdraw
it for his benefit.

Mr. Boyce. What has become of the resolution 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
excitement or feeling on the present occasion.

Mr. Dunn. I ask my friend from Tennessee 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 reading 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 excitement 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 Vice-President of the United States.
The President of the Senate, 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 Wisconsin was
handed to the tellers, I read it to the two houses. I read every word of the certificates
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

108 COUNTING THE ELECTORAL VOTE.

States 174 votes; John C. Fr6mout, of California, including the vote of Wisconsin, 114
votes ; and Millard Fillmore, 8 votes ; and that John C. Breckinridge had received for
Vice-President of the United States 174 votes ; William L. Dayton, including the vote
fo Wisconsin, 114 votes ; and Andrew J. Donelson, 8 votes.

Now, what is the plain provision of the Constitution ? After directing that the re-
turns 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 i)reseuce of the Senate and the
House of Representatives, open all the certificates, and the vote shall then be counted.
Was not that done ; and was not the Constitution complied vvith ? It goes on then to
say that the person having the greatest number of votes for President shall be Presi-
dent, if such number be a majority of the whole number of electors appointed. Is there
a gentleman on this floor, or who was in iihe 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, 179.3, 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 ofiSces of President and
Vice-President of the United States ascertained and declared, agreeably to the Consti-
tution."

All this has been complied with ; the certificates were opened, the votes counted, and
the tellers made their report. The Presiding Officer of the two houses reported the
result, and declared tbat James Buchanan, of Pennsylvania, was duly elected President
of the United States for the constitutional term of four years from the 4th of March
next, and that John C. 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. Jones, 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 iiresume, 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 government 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 Wisconsin, and
say they shall be counted. If they had cast their vote on the proper day, Mr. Fremont
would have received it. It makes no sort of iliiference now whether any one of the
votes cast for Mr. Fr(5mont was legal or not, or whether they were all illegal. It does
not change the result. Mr. Buchanan and Mr. Breckinridge received one hundred and
seventy-four electoral votes. It is conceded by all that they were legal and constitu-
tional ; that they were cast on the day prescribed by law. Therefore, no exception can
be taken to them.

Now, it is argued here that it is all-important to settle this question, for fear of the
tremendous precedent we are about to set. Why, sir, is there a gentleman who be-
lieves (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 tbe votes of those States would afiect or change the
result) this would be held to be a precedent — a controlling and influencing precedent,
to be interpreted in favor of 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 pre-
sume 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. Sjiith, of Tennessee. I move to lay the whole subject on the table.

Mr. H. Maeshall. On that motion I call for the yeas and nays.

Mr. KuNKEL (at 4 o'clock p. m.) moved that the House adjourn.

Mr. Cobb, of Geoi'gia, 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, Billiughurst, Bingham, Bishop,

Bliss, Branch, Brenton, Broom, Buffinton, Burlingame, Clawson, Clingman, Colfax^

Comins, Cox, Cumback, Henry Winter Davis, Timothy Davis, Dick, Dickson, Dodd,

■ Durfee, Etheridge, Flagler, Henry M. Fuller, Galloway, Robert B. Hall, Harlan, Harri-

PROCEEDINGS AND DEBATES IN CONGRESS. 109

son, Herbert, Holloway, Thomas R. Horton, Valentine B. Horton, Howard, George W.
Jones, King, Knapp, Knox, Knukel, Leiter, McCarty, Morgan, Morrill, Mnrray, Norton,
Andrew Oliver, Parker, Pelton, Perry, Pettit, Powell, Pringle, Pnrviance, Ready,
Ricand, Sal)in, Sage, Sapp, Savage, Sherman, Samuel A. Smith, Spinner, Tai)pan, Todd,
Tyson, Wade, Wakemau, Waldron, Cadwalader C. WashUurne, Elihu B. Washburne,
Watkius, Watson, Wood, Woodworth, and Daniel B. Wright— 80.

Nays— Messrs. Aiken, Allen, Barksdale, Hendley S. Bennett, Benson, Bocock, Boyce,
Burnett, John P. Campbell, Lewis D. Campbell, Caruthers, Chaffee, Ezra Clark, Howell
Cobb, Williamson R. W. Cobb, Cragin, Craigc, Crawford, Damroll, Davidson, 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, Lumpkin, Humphrev Marshall, Samuel S.Marshall, Maxwell, McMuUen, Mc-
Queen, Smith Miller, Millsou, Millward, Moore, Mott, Nichols, Mordecai Oliver, Orr,
Packer, Paine, Peck, Pike, Puryear, Quitman, Reade, Roberts, Ruffin, Scott, Seward,
Shorter, William Smith, Sneed, Stanton, Stewart, Strauahan, Talbott, Taylor, Thoring-
ton, Trafton, Trippe, Valk, Walker, Warner, Israel Washburn, Wells, Wheeler, Williams,
Winslow, Woodruff, and John V. Wright— 94.

So the House refused to adjourn.

Pending the call,

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.

Mr. Wright, of Mississippi, called for the yeas and nays.

And then, on motion of Mr. Washburne, of Illinois, (at four o'clock and twenty
minutes,) the House adjourned.

In Senate, February 11, 1857.

At ten minutes past 2 o'clock the Senate returned to their chamber, and the Presi -
dent j)ro tempore resumed the chair, and called the Senate to order.

Mr. BiGLEK. Mr. President, the tellers on the part of the Senate and House of Repre-
sentatives to count the presidential votes have instructed me to make a report. Before
delivering 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 tliink 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 nusapprehension 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. Presi-
dent, that this difficulty is not entirely new. There have been similar cases ; but they
seem to have been anticipated 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 explanation of the peculiar cbaracter of the
report.

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 Amer-
ica 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 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 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. Breck-
inridge, of Kentucky, received 174 votes ; William L. Dayton, of New Jersey, received
109 votes ; and Andrew J. Donelson, of Tennessee, received 8 votes : that from the
report of the electors of the State of Wisconsin, it appears that the electors for 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 of that State, five for John C. Fremont, of California, for President, and five 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 imrt of the House of Representatives."

110 COUNTING THE ELECTORAL VOTE.

Mr. HuKTER. The Senator from Peuusylvania 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 difficulties 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 att'ect the gene-
ral result. It seems to me, and I suggest it for the consideration of the teller in regavd
to the action which he may propose, that the best way would be for the Senate to pro-
pose to the House of Representatives that the committee which has. been appointed on
this subject should confer in regard to the report they have made. I have no doubt
they will agree to make some such report 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 settled 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. Sewaijd. And report to the Senate ?

Mr. Hunter. Yes, sir.

Mr. Seward. I second that motion.

The President ]}ro 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 commit-
tee appointed jointly with that of the House of Representatives to prescribe the mode
of counting the votes, «fec., made a report to the Senate after the votes had been
counted, so that the functions of the committee are j) resumed 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 declaration did not in-
volve, 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 number of votes for President, and that number being a majority of the whole
number of electors, has been duly elected." Whether the vote of the State of Wiscon-
sin be included or not, the declaration made by the Presiding Officer that Mr. Buch-
anan 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 jioint which becomes important when the
vote in question is going to decide the result, but until that occasion comes it is unim-
portant. 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 convention, 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 some body; 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 undoubt-
edly ; but if it depends on the concurrent action of the two houses, why may not a
result be defeated 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 repi-esentatives. Now, sir, I dispute the right,
out and out, of ascertaining who is elected President, and who is not elected President,
except bj' 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 Pennsylvania, there might have been a different result. 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 States 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 Representa-
tives, without 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 for-
tunate 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 ascertaining who has the greatest num-
ber, and what are the relative numbers of the two. I never will consent, Mr. Presi-
dent, that this Wisconsin vote shall be counted.

PROCEEDINGS AND DEBATES IN CONGRESS. Ill

Mr. Seward. Will the honorable Senator from South Carolina allow me to interrupt
him for one moment f

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 Vir-
ginia, 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. Seward. Certainly not; but I suggest 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 motion 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 Government.

Mr. Stuart. It is to the jquestion 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 considered. The Constitution of the
United States has been read several times to-day, and is undoubtedly familiar to every
gentleman present. I call the attention of the Senate to a s-ingle clause of the law
made in pursuance of it, and desire to submit my views against this proposition. The
fifth section of the law 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 ascertained and declared agreeably to the Constitution."

NoM', 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 purpose of having in their
presence the votes which had been cast by the electors for President and Vice Presi-
dent counted, and the result, in the language of the law, ascertained and declared.
Those votes were counted ; the Presiding Officer of the Senate ascertained the count,
and declaired the result. That is the end of the subject.

The reason why I am against this proposition is this : precedents are dangerous
things — very dangerous things. I object to going on now with somewhat of a suppo-
sititious case, and taking a procedure, on the part of Congress, that shall stand as a
precedent hereafter. It is quite easy, and I submit to the consideration of Senators
that it is somewhat indispensable, that the Congress of the United States should fur-
ther declare, by law, that electoral votes not cast on the day required by law shall not
be counted. It is competent for Congress to do that. It is perfectly competent for
Congress, who have declared that the electors shall meet in their respective States on
the first Monday in December 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,^vhen you leave the clear functions of Congress under the Con-
stitution of the United States, and depart from their discharge in the manner pre-
scribed in the Constitution, the Senate, as a separate body, representing States and
voting by States, and undertake to say that a question raised in the two houses when
they are convened for the purpose of hearing the result, may be decided by a vote of
thetwo 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
how they shall vote. The weight of the Senate representing States, is swallowed up
by the weight of the House of Representatives representing population.

It seems to me that what was said in the hall of the House of Representatives in
respect 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 foi-m 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 tellers, 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 become an interesting one at .some time or
other, perhaps — whether the vote of the State of Wisconsin shall be counted. Upon
the present law, made in obedience to the Constitution, 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

112 COUNTING THE ELECTORAL VOTE.

officer to wLom tbey are delivered, the President of the Senate, retains possession of
them, and opens them iu the presence of the two houses. The Constitution declares
that he shall open thera iu the preseuce of the two houses. The law follows up the
laujiuage of the Constitutiou, declaring that they shall be counted and the result
declared.

I submit that whenever this matter is examined — and I submit it now ouly as a ques-
tion having some relation to this subject — one of two things will be ascertained :
either the Presiding Officer is bound to count all the votes that are certified to him by
the State authorities, or else the Presiding Officer, under the present la.v, and he
alone, has a right to decide whether he will count or reject them. In my humble
judgment that is the construction of the Constitution and law as they uow 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 officers or the electors themselves,
■who make the certificate on the part of the States; it is dangerous 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 together in
mass to decide such a question, would but fall but little short of a revolution.

Therefore, believing that the matter has been ended, so far as the duties devolved
on Congress by the Constitutiou and laws of the United States are concerned, I express
the hope tliat no further action will be taken which may stand in t;ie way hereafter
as a precedent, unless it be action in the shape of additional legislation to define pre-
cisely 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 vot(^ 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 uf the United States.
These are the facts. I understood 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 auuouucemeut read a few minutes ago by the Chair. The Chair supposed,
nnder the clause of the Constitution which he read, that he and the tellers had the
right to determine what where legal votes. That I denied ; that I protested against.

The question is not whether a joint convention of the two bodies, as it is termed,
can determine 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 Officer 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 Representatives of the United States to determine what are the votes.
I denied tlien, 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 entered
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^aw, makes the Presi-
dent, and try the (luestion afterward, is like trying a man after 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 ideas ; and it is, that
it is our duty to count the votes, and to decide what are votes. This is a necessary duty
devolved on the Senate and the House of Representatives. They must do it in their
separate capacities, I think; but they alone can determine 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 liberties and Constitution
of this country — one not conferred ou these persons by the Constitution or the law.
The circumstances of the case necessarily involve the right and the duty of the two
■branches of the legislature, the Senate and the House of Represenatives, to determine
what are the votes to be counted ; and the President of the Senate can ouly announce
those to be votes which are thus decided by competent 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 result 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 Presiding Officer by the Constitution and the laws.

The President jyro tempore. The Presiding Officer desires to say — as he thought he
had distinctly stated whilst 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 un-
dertake to decide whether the vote of the State of Wisconsin was a good vote or a bad

PEOCEEDINGS AND DEBATES IN CONGRESS. 113

vote. The Presidiug Officer, upon that matter, did no more than recite the fact which
was I'eported to him by the tellers, pursuant 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. Frdmont. Whether it was a good vote or a bad vote, he did not un-
dertake to decide. The Presiding Officer announced fnrther that James Buchanan had
a majority of all the votes given, and that such a 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 Wis-
consin had been given on a day different from that prescribed by law, the Presiding
Officer would have considered it his duty to h;)ve reported, as the state of the vote^
that whether a majority of the whole electoral votes had been given to James Bu-
chanan would depend on canvassing 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 result of the election remained una-
fected, he announced, 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 tlie 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.

Mr. BiGLER. Mr. President

Mr. Toombs. Did not the Chair count it ? That involves the question.

Mr. Butler. I hope my friend from Georgia will allow me to say a word by way of
explanation.

The President j:>ro tempore. The Senator 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-five votes, and C D sixty votes ; and these being a majority of so
many, C D has been elected. That is the common way of doing it. The Chair is
entirely right in its statement, 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 country, and to these two bodies — both resiwnsible
bodies — the Senate and the House of Representatives, 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, C D so many, and the result thereof is that C D
is elected. That is the common course of procedure in every parliamentary body.
But I hope we shall proceed with the motion of the Senator from Virginia, which, how-
ever, is objected to by the Senator from Michigan, who takes the ground that the Chair
can announce, of its own mere will and motion, without any one else knowing 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 performed 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 beeu given according to law, in his opinion, he
objects to them. As the law now stands, the two houses thus assembled have nothing
to do with the question at all. The Constitution has devolved that duty on the Pre-
siding 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 Sen-
ator from Michigan, and I tell all others who choose to delegate to any one mau such
power in a matter of this kind, where there is dispute I wd(|ld trust it to no man.
Suppose there were two certificates from oue 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 coun-
try— 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 either event. I beg the Senator's pardon; he must
not undertake 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 my views of
what the law is; aud I said that I deemed it imperative on Congress, in the mode
pointed out by the Constitution, by legislation, to determine definitely what should be
done in this case. But, sir, the Constitution has devolved upon the Presiding Officer

114 COUNTING THE ELECTORAL VOTE.

the duty of receiving these votes, of keeping them, of opening them in the presence of
the two houses, of counting them, and declariug 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 wo have jurisdiction at the time, without a previous law to regu-
late 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 Pre-
siding 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 Massachusetts, 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 oue of the judges f 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 imposiug corporate body, to be a witness to the elec-
tion 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 explanation 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
Senate determined or counted the vote from Wisconsin. I wish to call the attention
of Senators to the report of the joint committee. The committee reported that on the
day of election all the States gave their votes according to the facts as stated, with
the exception of Wisconsin, and that on a subsequent day Wisconsin voted for Mr.
Fr6mont. That fact was reported by the committee ; they could not have done other-
wise. The Presiding Officer 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 Georgia to go to the country without some explanation on the part of the
tellers. His reniai'ks are very well calculated to make the impression that the tellers
in this case had attempted some usurpation — that they had attempted to go out of the
ordinary xierformance of their duty. Those tellers regarded their duty as sheerly min-
isterial— 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 in-
stead of on the 3d of December. The tellers have simply reported the facts. They
have stated those facts in the report which they make here. The Senator from Michi-
gan 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 consequence whether they ever made any. That was my position.

Mr. BiGLER. It is a report — call it a certificate or not. In cases similar, Mr. Presi-
dent, to which I was about to refer when we first came into the chamber, one occur-
ring 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 difficulty. Here it was not
anticipated ; no provision was made for it ; and the tellers decided in their report sim-
ply to state the facts as they are. Now I ask my friend from Georgia if there is any
usurpation in that ? What else could we do ? Wherein have the tellers attempted to
usurp power, or to state anythiug else than simply the facts as they appear on the. face
of the papers? •

Mr. Wilson. Will the Senator from Pennsylvania allow me to ask him a question ?

Mr. BiGLER. Certainly.

Mr. Wilson. I should like to ask the Senator how it happens that after the tellers
had counted the voles, and had made the announcement to the convention that Mr.
Fr6mont received one hundred and fourteen votes, including the vote of Wisconsin,
and the President of the convention read their precise report, using tlieir exact lan-
guage, these tellers, after having thus discharged their duty, and what seems to me
their whole duty, make up and bring in another report heref

Mr. BiGLER. I made the whole explanation 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 additions of the votes were announced of course, just as they stood after we

PROCEEDINGS AND DEBATES IN CONGRESS. 115

had added tboiu 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 retjard 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 nature. 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 Mis-
souri, 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 hap-
pily 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 fnture
cases. Fortunately, we are enabled to settle this election without attempting to ar-
rive at any conclusion on this point in a joint meeting of the two houses, or by an in-
terchange of resolutions between them. I propose, therefore, that we shall settle this
matter as similar matters have been settled before, and that we shall instruct the joint
committee 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 ques-
tion.

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 haa
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 majority 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 concur-
rence in it. I believe they will agree to settle this matter as it has heretofore been
settled on two occasions, and then some other occasion in the next four years, if they
should thiuk 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 rep-
resented. Bnt all these are questions 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 occasions heretofore ? I move, therefore, that the joint committee of the Sen-
ate be instructed 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 conclusion that all has been done that the law
requires to 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 law does not provide for tellers. The tellers appeared in this transaction only
in pursuance 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 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 pro tempoye,
who shall announce the state of the vote and the 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 the list of the votes, be entered
on the journals of the two houses."

The tellers did deliver to the Presiding Officer the result of the count, as provided
in this resolution. They read it first to the two houses, and then foruially delivered
it to the Presiding Officer. The Presiding Officer read over that list distinctly, and
thereupon announced that James Buchanan was duly elected President of the United
States, and John C. 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 concerned, 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

116 COUNTING THE ELECTOEAL VOTE.

to turn our attention on this occasion — not because 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 beeu 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, aud cast their votes for President and Vice-President
of the United States. You had no right to receive any vote, or any return, 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 arrived,
there were no pi'esidential electors in Wisconsin. The fact appeared on the face of the
certiiicate 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 authority 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 aud law have been complied with. The only irregularity is that the
name of Wisconsin is unnecessarily on the list.

In this state of the case, I am inclined to arrive at the conclusion which my friend
from Virginia suggests, that we had better let this committee make a report in accord-
ance with the precedents that have been alluded to in the Michigan aud Missouri cases.
It is immaterial 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 mat-
ter of form, I will close it up in the manner indicated by the Senator from Virginia.

Mr. Reid. Mr. President, I suppose every member of the Senate must be perfectly
satisfied that the course pursued by the President of the Senate was from the purest
and highest consideration. I understood the whole difficulty 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 Wisconsin to-day might
determine who should be President of the United States; and the protest made there
by Senators and Representatives was merely for the purpose of declaring, as their
opinion, that the settling of the question as to the validity of the votes cast for Presi-
dent 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 considered 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 re-election ; and we can
scarcely suppose that the Constitution intended to confer on him the power of declar-
ing himself 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 jjower given
to revise at all a contested election of President, that it should be joiutly in the Senate
and House of Representatives. It is true, the Constitution of the United States con-
fers on the House of Representatives alone the power to make the election 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 President of the Senate alone the right of declar-
ing that vote when either of the two houses may dissent.

Then I think the course that should be pursued 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 suggested by any member of either branch
of Congress that the returns are informal, or that they require to be investigated, the
two houses should retire in their separate capacity to determine such questions for
themselves, as we have done to-day.

PROCEEDINGS AND DEBATES IN CONGRESS. 117

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 constitutional requirement— that the votes shall be given on the
same day throughout all the United States. But this question is not material here.
The only apprehension is, that our action now may be regarded hereafter as a prece-
dent 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 material 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— and perhaps it may be the better practice always to pursue— to
let the determination of such questions alone until a time shall arrive making it nec-
essary to decide them. I think it would be better to postpone this question until the
time shall arise when it is indispensably necessary that it should be settled.

Mr. Sewakd. I do not object to this debate, because I am desirous to have this reso-
lution passed and the question settled; but inasmuch 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 iny dissent from that proposition- 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 congrat-
ulate 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
proposed to be rejected, or was questioned, was a vote which determined the election
of a President and a Vice-President of the United States, and it would then be found
to be a very dangerous thing for either the Presiding Officer, or the Senate, or the House
of Reiu-esentatives, or both houses concurring, to undertake to decide that a presi-
dential election was determined in one w.ay, when it involved the exclusion of the
votes of one of the States, which exclusion was the result of an accidental delay pro-
duced by the interposition of Providence preventing the vote being cast at the pre-
scribed time. But, sir, I pass 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. Stuart,] 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 belief that James Buch-
anan will be the President for the next four years; and he will be, whether we do any-
thing more than we have already done, or whether we stop where we are, or under-
take 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 President 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 satisfied with the manner in which he has performed 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,
without counting or rejecting, or even if you were to count the votes of the State of
Wisconsin, the result would be unchanged, and, therefore, the question of counting
those votes was avoided. That is due to the House of Representatives, 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 Representatives desire, and all any portion of
the members of the Senate desire, is that the record 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 counted. Insomuch as the dan-
ger 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 sufficient care, for ascertaining
the will of the people, I hope this resolution will not pass without the Judiciary Com-
mittee, or some other competent committee of this house, taking up the subject and
providing for just such a contingency.

Mr. COLL.VMKU. 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

118 COUNTING THE ELECTORAL VOTE.

settle or coufer about, or any question nr)w 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 m the construction which the gentle-
men 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 different 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 provision in relation to the manner of set-
tling it. In my opinion, further, the Chair, immediately on being informed of that
fact at any stage of the proceedings, should have stated it to the body, and then the
two houses should have separated and taken proceedings in relation to the matter.

In these remarks, I am proceeding entirely on the ground that there was no previous
preparation as to the manner of settling these questions, which, I think, should have
been provided for by law long ago ; or if not provided for by law, everything reason-
ably to be anticipated should have been provided for in the resolutions making ar-
rangements for the meeting 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. George W.
Jones, of Tennessee.] When the returns from the State of Wisconsin were opened and
read, the teller readmg those returns stated distinctly that the vote of that State
was cast on the 4tli of December instead of the 3d, the day prescribed by law. Now,
will the Senator from Vermont say that the tellers had any discretion on this subject ?
Could thej' have refused to read the certificate ? When the tellers announced the re-
sult of the addition, they gave the vote of Mr. Fr6niont 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 irregu-
lar apparently 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. COLLAMEK. That is not material to my point. I say the Chair should have im-
mediately announced it to the body, and the body should have separated, each house
going to its respective chamber, to provide for such a contingency, and prescribe a
mode of arranging it. That is my view of what was the proper course, instead of go-
ing 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. Verj^ 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 Wis-
consin 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, decided any
question which is material to the result, 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 material to that decision that the W^isconsin vote 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 mistaken. I think the Presiding Officer said there
were one hundred and fourteen votes for Mr. Fremont, and took no notice of the fact
reported by the tellers, that the vote of Wisconsin was contested. My impression is
that the President of the Senate did not advert to that fact at all.

Mr. CoLLAMER. The announcement 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 committee ; but I 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 material whether the Wisconsin vote was counted 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 independent of that law. I)e-

PROCEEDINGS AND DEBATES IN CONGRESS. 110

(•i(lii)g that the result was the election of Mr. Biiohauan, does not either directly or
iiidinctly 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 subject.

Mr. Hale. Mr. President, I was not in the House of Representatives when tlirse pro-
ceedings took place. I had made up my mind very early that Mr. Bncliauan was
elected and indeed, after the October elections in Pennsylvania last year, I came to
the conclusion that be 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 opinioa of almost every one whom I have heard spealc on tlie
subject here, that the voteof Wisconsia should not be counted. I protest against that,
here and now, forever and always. I say those votes should have been counted. Form
should always yield to substance, except vhere the form itself is suljstaiice. Prior to
tlie passage of the act of 1845, you left every State to tix the flay upon wliicli the pi'o-
jtle should vote for electors; but in that year Congress, in its wisdom, for certain pur-
poses, prescribed the same day throughout the Union.

Mr. Bkll, of Tennessee. The Constitution of the United States provides that the
electors shall vote on the same day in all the States.

Mr. Halk. I speak of the day on which the electors are chosen. That formerly was
ditt'ereut iu all the States; but in 184.5, I think, you passed a law compelling all the
States to vote for electors on the same daj".

Mr. CrittendEjM. Allow me to read the Constitution :

" The Congress may determine the time of choosing the electors, and the day on
which thev 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 ouglit to yield to the sub-
stance. The substance is, that the people of Wisconsin did, on the day prescribed by
law, cast their votes, aiul did, by a large unijority, choose an electoral board. By an
interposition of Providence, it may be said, or from some unavoidable accident, those
electors failed to cast their votes on the precise day fixed by law ; but just as soon as
they could, they proceeded to cast them on the day toUowiug. I am not clear iu my
own miml that, as a legal question, those votes were not given on the day indicated in
the law, in legal intendment; for this reason: they bcsgau, they entereil u[tou the work,
they were impeded and not able to complete it so as to throw their vot(!s on the par-
ticular day prescribed. Whether that construction be so or iH)t, this is a matter of
direction. The main and the great point is, did the people of Wisconsin, by a nuijor
vote, do all they could do to express their voice in the presidential election ? 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 ^>t' 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 col-
lusion or connivance; would you visit this high ])eualty 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 ;id of December, and arrived on the 4th, are the
whole people, who have done everything that the Consiiiution and laws required them
to do, to be visited with this tremendous penalty of distrauchisemeut, simjily because
the form of casting these votes on the 3d day of Decembrr 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 resulii to which
the British Parliameut came when they gave a mau a seat in ihe 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. W^hy was
that ? Because of ex ictly the same s^ickli^g ac form, and setting aside of substance,
which would decide that the vote of Wisconsin now should not be counted.

Mr. Hale. It is fortunate for us that this election is decided irrespective of this
vote; but there is a principle here which I am not willing to see trampled down ; and
I am not willing to submit to have it conceded away, as it has been by almost every
one who has spoken, except my honorable friend from New York, [Mr.' Seward ;1 anil
even he seems to approach it so timidly as n.t to have formed an opinion on it. .Sir, I
was born with an opini(m on that question, and I have always entertained it. My o[>iu-
ion always has been that form shall yield to substance. When the people have spoken,
and have done everything to give force and ettect to their sentiments, they should not
be deprived of the constitutional result to which they have come, by an accident hap-
pening 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 suggests 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 1
8x

120 COUNTING THE ELECTOEAL VOTE.

Mr. Halk. No. sir. The law that, is going to set aside the will of the people is a
hijilier law. I say, this occasion will not be useless if it suggests the funii of a law
which shall prescribe the niauner 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. BcTi.F.H. 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 Cliair,
provided the record will hereafter show what I regard to be the true state of the case.

The PuKsiDENT jjro tempore. The Chair will say to the Senator from South Carolina
thar. a motion has been offered by the Senator from Virginia, which is the question uow
belnre tlie Senate.

Mr. HuNTEi;. I have been requested by several friends to withdraw that proposi-
tion. I withdraw it.

The Pkesident pro tempore. The resolution of the Senator from South Carolina will
be lead.

Tl;e Secretary read it, as follows:

" Whereas the Senate having met the House of Representatives, in accordance with
the tilth .section of the act of the 1st of March, 1792, relative to the election of Presi-
dent and Vice-President of the United States, and the electoral votes having been
t)pened by the President of the Senate in the prese?tce of the two houses of Congress,
and counted by the tellers ai)pointed on the part of the two houses, and it appearing
that James Bnchauan, of Pennsylvania, had received 174 votes, Johu C. Fremont, of
California, 109 votes, and Millard Fillmore, of New York, 8 votes for President of the
United States; and that John C. Bieckinridge, of Kentucky, had received 174 votes,
William L. Dayton, of New Jersey, 109 votes, and Audrew J. Donelson, of Tennessee,
8 votes for Vice-Presnlent ; and the same having been duly declared by the President
of the Senate in the presence of the two houses: Therefore,

^'RisolreiU That the Senate are of opinion that the Constitution and laws have been
duly execnted, and tliat no further declaration of these facts is necessary than the
annoiincemeiU. that Janu's Bnclnvnan is elected President of the United States, and
John C. Breckinridge elected Vice-President of the United States."

Mr. C<)iJ>AMi.;u. If that. resolution be passed, it in effect disposes of the question re-
sjH'Cting the Wisconsin votes, and rejects tht-m. It is totally unnecessary to pass on
that (pustiDU, and I think it is not desirable to do so. I propose to amend the resolu-
tion so as to make it a simple statement that James Buchanan, having received 174
votes, and that number being a majority of the whole number of electors, is elected
Piesident of the United States; and tliat John C. Breckinridge, having received the
same nnniber of electoral votes, which is a majority of the whole number, is elected
Vice-President of.the United States, and that, the same having been properly announcer),
no fuither proceedings are required. I would prefer to have a resolution in this simple
language, leaving out all detail, sim{>ly stating the result, and then make it a joint
resolutuju requiring the action of both houses.

Mr. BuTLEK. If the proposi'ion takes that form I shall not object materially, but I
cannot ccuisent to receive any other than actual votes. laskand insist uponadecision
of this question, because I desire it to be understood that I do not intend to put into
the volume of history a fact that is not so. lam not like the Senator from New Hamp-
shire, who was born with an opinion.

Mr. CoLLAAiEK. I wi.-h to add to my proposed amendment that the President and
Vice-Piesideut elect be informed of the result.

Mr. TooMhS. 1 hope the amendment of the Senator from Vermont will be adopted
for another reason. The resolution of the Senator from South Carolina, in my judg-
ment, 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
1U9 votes.

Mr. Wii.sox. The annunciation was " 114, including the vote of Wisconsin."

Mr. TooMHS. That, however, was the announcement of the Chair — that he had
received 114 votes. This resolution says it was announced that he got 109 votes.

Mr. Bl'TLER. It does not say "was announced," but " be announced."

Mr. T(JOMiis. My only solicitude on the subject was as I stated before

Mr. BuTLEK. If my frieud from Georgia will allow me, 1 will accept the amendment
at once.

Mr. TooMUS. 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 Wis-
consin was counted or not as a good vote, then my objection was that the Chair so
ruled as not to permit it to be decided. Certainly the Presiding Otticer was of opinion
that there was no authority to decide it ; for, whether he determined that the vote was
a good vote or not, the Chair having said that it did not decide that point determined
that it slmuld not be decided at all. I want no such fact spread on the record. I
again aliirm, as 1 did before, that it is competent for the two houses, in their separate

PROCEEDINGS AND DEBATES IN CONGRESS. 121

capacifios. to deciile wliiou are tlie votes niider the Constitution. It is (!X])ressly de-
clari'd by th« Constitution tliat "the votes'' shall lie counted, but not by the otficers
of tliis body, or of Tlu; 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 bi- <-oniited ? I insist that iu>tiHu<r shall, by legal intendment or implication, assert
the doctiiue that anybody cau deteriuiue what are votes except the Senate and House
of Represtntatives, or that any.one cau prevcut them from deciding that qnestiou.
That is all I wish to be provided against.

The pKivsiDKNT jjro tempore. The order that was made by the Senate of the United
States prescribing the mode of counting the votes f,ir Presi<leut and Vice-Piesident is
not ajoint resolution. It is a resolution of the Senate, in whidi the House of Repre-
sentatives concurred. The entry in the House of Representatives is:

" In the House ok Eipi:eskntatives, Fehruarif 5, 1857.

" Ecsoh-ed, That the House of Represeutatives concur ia the foregoing resolution of
the Senate."

That resolution prescribed to the Presiding Officer simply this duty. The resolutiou
provided for the appointment of a teUer on the part of the Senate, and two tellers on
the part of the House of Representatives. It required of those tellers to make a list
of the votes as tbey should be declared ; then "that the resnit shall be <lt'livered to
the President of the Senate j»o tempore, who shall announce the state of the vote, aiul
the person.s elected, to the two houses assembled as aforesaid." The President of the
Senate, having received the list from the tellers, anuouuced as the state of the vot^", the
state of the vote as it appeared on that list. In the list the vote of Wisconsin was
assigned to John C. Ficmont, and the Chair so read it. The Presiding Otiicer did no
more than give the resnit a.s stated by the tellers, and then, in the further di.seharge of
the duty devolved upon the Presiding Otificer by the concurrent resoluticni, he au-
nounceil the person wlio was electe<l, the Constitution providing that " the person hav-
ing the greatest number of votes for President shall be the President, if such number
l)e"a majoitty of the whole number of electors api>ointed." The Presiding Officer iu
his own'judguient believed then, as he believes now, that he declared correctly, as the
state of tlie vote, that James Buchanan had received the greatest number, and that
that number was a nuytu'ity of tlie whole number of electors, not undertaking to de-
cide, and not having decided, whether the vote of the State of Wi.sconsiu had beeu
given to John C. Fremont or not— a power that the Chair utterly disclaims aud never
asseited.

Ml-. Coi.LAMER. Let the resolutiou 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, 17'J-1, relative to the election of Presideut and Vice-
President of the United States, and the electoral votes having beeu opened by the
Presubitt of the Senate iu the preseuc(! of the two houses of Congress, ami counted
by the tellers appointed on the part of the two honses, and it appearing that James
Buchanan, of Pennsylvania, had received one hundred aud seventy-four votes, snch
number being a nuijority of all the electoral votes of the several States, and that John
C. Breckinridge, of Kentucky, had rewived one hundred aud seventy-four votes, such
number lieiiig a majority of all the electoral votes of the several States, as Vice-Presi-
dent of the United States, and the same having been duly declared by the President
of the Senate in the presence of the two honses: Therefore,

" liesolvrd bij the Senate and House of Ilepre.feutatlres of the United States of America in
Coi>gre«s an.semhled, That the two houses are of opinion that the Constitution aud laws
have lieeu duly executed, and that no further declaration of these facts is necessary
than the annoinicemeut that James Buchanan, of Pennsylvania, is elected President
of tlie United States, and John C. Breckiuridge, of Kentucky, is elected Vice-Presi-
dent of the United States."

Mr. Toi'CEY. I do not rise for the purpose of entering into a debate ou any questiou
which has 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 immaterial to the result to be
announced. I understand the Chair to decide that, iu joint convention, there is no
I)ropriety in deliberating or debating, and I do not understand that there is any
diversity of opinion iu 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 pur-
pose of witnessing the counting of the votes giveu for President of the United States,
there can be no action. If there is to be any action, or deliberation wirli a view to
action, the two houses must separate, deliberate, and act separately. That was the
course which I understood the Chair to indicate — nothing more than that.

If the tellers had made a written report, such as has bren presented here in the
Senat<!, there would have been no qiiestiou— tliere would have beeu no difficulty— be-

122 COUNTING THP] ELECTORAL VOTE.

cause that presents distinctly the number of votes given, and leaves out of the count
the votes of Wisconsin as beinj^ doubtful whether they would be couuted 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 Sen-
ate'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 Repre-
sentatives. He was hound to open, in the presence of the two houses, the electoral
votes which he had received. The law vested him with no discretionary power to
decide as to the validity and legality of those votes.

In the next jjlace, it was proper that he should make the announcement which he
did make, in pursuance of the Coustitution and law. He has carried out, in my opin-
ion, in these two acts — opening the votes received by him, and announcing the result —
all the functions 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 wh'ch a decision could be had in the House of
Representatives upon the validity or insntficiency 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 2d rule of the Senate, which prohibits
conversation while a Senator is speaking.

The President pro tempore. Senators will please not converse in the hall. Does
the Senator from Texas insist on the reading of the 2d rule ?

Mr. Houston, t 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
hereafter the Sergeant-at-Arms put out of this chamber every person who whispers
sufficiently loud to be heard above the voice of the speaker. Sir, I well remember the
augusf and solemn ap])earauce 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 conduct,
the silent auditory — all impressed the spectator with a solemn awe when he entered
this chamber or came into its galleries or lobbies. The House of Representatives, too,
was silent. If there a voice was heard in the galleries, instantly the eye of the Speaker
rested upon the Sergeant-at-Arms, and a messenger or the Sergeant in person immedi-
ately 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 j>ut 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 conversation. I
shall protest against it, and suggest that the President have his eye on the Sergeaat-
at-Arms, and that he maintain silence in this chamber and in the galleries.

Now, sir, after this digression, most important, 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 elected President of the United
States, all his functions ceased. It w as not material whether the tellers certified the
result or not. It was before the nation when the anuouucement was made to the con-
stitutional bodies to bear attestation of the facts. There was no necessity of further
action ; and every attempt at it on a supposed contingency was unnecessary and im-
proper. 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 kiud, 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 verj' resolution is not known to the
Constitution, nor is it known to the laws of Congress, and it is therefore of itself revo-
lutionary. 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 revolu-
tionary in its character. You may say it is only a form ; but, sir, it is a form not
known to the Constitution, and I invoke this body not to adopt such forms, lest they
become substance. There is no evil arising from the insufficiency or illegality of the
vote of "Wisconsin in this case, and there is no necessity for adopting a resolution which
merely goes to a matter of form and has no validity, because it is not known to the
law or ihe Constitution. I maintain that the election is good, constitutional, and law-
ful. That is the anuouucement made in conformity with the Coiistitutiou aud the law,

PROCEEDINGS AND DEBATES IN CONGRESS. 123

and the electiou 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 Wiseonsiu vote. There is a constitu-
tional niaJDi ity without it, and no action of this body or of the House of Representa-
tives is recpiired. The President of the Senate has told the nation wliat is th(! result.
He is the organ for comniunicatiug the votes of the electoral college to this nation, and
bis announcement gives it all the validity that a thousand resolutions could do, with-
out law, without precedent, and, so far as I can see, without reason. I auj against such
resolutions.

Mr. Wellkh. I desire to terminate this debate. I regard it as a very unprofitable
one— the discussion of a mei'e abstraction. Nobody doubts the validity of this elec-
tion. The very inonient the announcenient 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 await for the arrival of the 4th of March to be inaugurated. All that
remains for the Senate to do, is simply to appoint aconunittee to inform the President
elect of his electiou. This resolution, however, is based on the assumption that our
action has been illegal or irregular ; that there is some iufornuility which may aft'ect
the result of the election. Now, suppose, in the preseut organization of the House of
Representatives, they do not choose to agree to that resolution ; what is the conse-
quence ? Does it not stand on the assumption that tliere is something irn'gular which
we endeavor to cure, and that it requires the action of the Senate and House of Rep-
resentatives to cure that irregularity ? They seem to have taken up the idea that
the President of this body had usur[)ed a power which properly did not belong to him.
In that they do him injustice. But in the present organization of that house the dis-
cussion may last for days. Ciii bono ? Who is to be benefited by that ?

I wish to move that this resolutiou lie on the table; giving notice that, if it be laid
on the table, I shall move for the appointment of a comuiittee 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. Rusk. Will the Senator withdraw that motion for a moment ?

Mr. Wef.leu. My object was to prevent discussion.

Mr. Rusk. I do not desire to discuss the question, but simply to read the Constitu-
tion.

Mr. Weller. If the Senator will renew my motion, I shall withdraw it for him.

Mr. Rusk. I shall renew it. The Constitution declares :

"Every order, resolutiou, or vote, to which the concurreuce of the Senate iind House
of Representatives may be necessary, (except on a question of adjournment,) shall be
presented to the President of the United States ; and before the same shall taice eifect,
shall he approved by him, or, being disapproved by him, shall be repassed hy two-
thirds of the Senate and House of Representatives, according to the rules and limita-
tions prescribed in the case of a bill."

I think we acted hastily in appointing tellers, because that was done by a resolutiou
concurred in by the House of Represeutntives. I agree that we should not i)ass this
resolution ; ancl I renew the motion that it be laid on the table.

Mr. Bell, of Tennessee. I hope, before that qnestion is taken, I shall be allowed to
say a word.

Mr. Rusk. I withdraw the motion for the accommodation of the honorable Senator.

Mr. Bkel, of Tennessee. If it is supposed that this resolutiou is necessary at all, I
think it should be modified.

Mr. Butler. To terminate this debate, as I see there is no disposition

The PisEsiUKNT jj/'o tempore. Does the Senator from Tennessee yield the floor?

Mr. BicLL, of Tennessee. No, sir.

Mr. Butler. I intended to withdraw the resolution.

Mr. Bkll, of Tennessee. I was going to say that, if the resolutiou 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 mj'self, as I have it.

Mr. Butler. Certainly.

Mr. Bell, of Teuuessee. 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 coin])rehension of it. It is due to him that I should
express my oi)inion on that point, if I deem it proper to 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 proi)er for some member of the House of Representatives or of the Sen-
ate to rai.se the question whether it should be counted ; liut the Presiding Officer had no
right to suggest or dictate such a course. His duty, under the Constitution, waste
open the votes in the presence of the two houses He discharged that daty. The
tellers rejioited that the vote of Wisconsin was cast on a day not provided by law^
and of course it was unconstitutional iu that respect.

124 COUNTING THE ELECTORAL VOTE.

If this resolntion is to be sustained, I snjjsest — an<l I think it will rpcn<rn'\ze the an-
uouiiceiiieuf of the Presideut of the Senate before tlie two lionses aud lei^alize it, and
render it entirely in conformity with the Constitntion — it should be amended so as to
be in the language of the Constitution. Tlie constitutional provision is :

"The])erson having the greatest number of votes for Pi esident shall be the Presi-
dent, if such number be a n)ajority of the whole number of electors appointed."

That is not the language of the resolntion now before us. It should, in conformity
with the Constitution, say that the Presiding Officer having announced that James
Buchanan rectived 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 declaration, of course, would include Wisconsin, if it was proper that
its vote should be included, Whether the vote cast in Wisconsin was cast, in conform-
ity with the law or not, makes no difference. According to the language of the Con-
stitution, the announcement of the President 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 tlie vote of Wis-
consin on this occasion ought not to be countetl; but that is not a material question
now. It nuikes no difference to the result in the present case. Electors were ap-
I)ointed 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 Wisconsin; and for this purpose it makes no
difference whether their votes be counted or not. The form of the announcement in
this case excludes the question of the legality of the vote in any particular State. As
neither house objected to the aunouuoemi'nt, and there was no sejuratiou of tho two
houses to deliberate upon the question whether the votes were all legally counted or
not, it seems to me to he unnecessary to pass this resolution; but if passed at all, it
should be amended as I have proposed.

Mr. Wki.i,ki{. I make the motion to lay the resolution on the table.

Mr. Chittenden, i wish to suggest an ameudmeut which I intend to offer to the
resolution.

The Phe.sident 2>ro tempore. The motion is to lay the resolution on the table.

Several Senatohs. It has been withdrawn.

The Pi;esident 2?ro tempore. The Chair is not aware of it.

Mr. Welleh. The Senator fiom South Carolina withdrew it. He could not do it at
that time, because there was another Senator on the floor.

The Phe.sident 2>ro tempore. The Chair will put the question on laying the resolution
on the table.

The motion was agreed to.

Mr. Wellbr. I now offei- this resolution, which I think will complete the business so
far as the Senate is concerned :

^^Besolred, That a committee of one member of the Senate be appointed by that body,
to join a committee of two Tuembers of the House of Repr<=seutatives, to be appointed
by the House, to wait on James Buchanan, of Pennsylvania, and notify hiui that he
has been duly elected Presid.ent of the United States for the constitutional term, to
counnence on the 4th day of M;ireh, l.^^oT; and also to wait on John C. Breckinridge, of
Kentucky, aud iuform him that he has l)eeu duly elected Vice President of the United
States for the constitutional term, to commence on the 4th day of March, 1857."

Mr. CiaTTENDEX. I nuiy 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
question that may be a most momentous one hereafter. 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 dependent on the vote of the State of Wisconsin. It was ruled, when the Sen-
ate was in thechamber of the House of Ri'iiresentatives, that no objection could be made
to it. It was ruled that the counting must proceed, and the counting did proceed, and the
result was announced. I am looking to the future. Suppose some future Presiding
Officer there, 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 f Suppose
he should declare the vote admitted, and the party to whoni it was given elected Presi-
dent of the United States, what could ever countervail that declaration ? How could
you ever (|uestion the election of a President thus announced according to the forms of
the Con.-titutiou, but in disregard of the substance of it, as [ think ? We could easily
see to-dny what would be the result: confusion aud nn'olutiou springing uji instanta-
neously in their worst form on the floor of that House, and scattered like wildfire
through the whole country. Such a question as tiiat ought to bi; met and settled. I
propose, therefore, as an amendment to this or any resolution offered on the subject :

" Bat it is rejoiced furthermore, That the vote of Wisconsin, l)eiiig given on a day dif-
ferent from that prescribed by law, ought not to have been included in the count of the
elector, il vote, aud that any member of either the Senate or House of R 'preseiifcatives
had the privilege aud right to object to the counting of said vote, and that it was com-

PROCEEDINGS AND DEBATES IN CONGRESS. 125

petent for the Senate and House of Representatives alone to decide upon tliat olyec-
tion."

I tliink the Senate is not in a condition to decide this question now. I do not tliinli
there is a qnornni, or anything like a<iiioruiii, present. We shall know tluit, however,
by the vote, for I shall call for the yeas and nays on the adoption of the resoUiiion.

Mr. Wkller. I hope the Senator from Kentucky will otfLH- that as an independent
proposition.

Mr. (JuiTTENDKy. If I do I shall never be able to tret it up.

Mr. Wellkk. It has no sort of connection with the ai)pointment of a committee to
wait on the President elect. I shall be compelled, perhaps, to vot(j for the resolution
of the Senator from Kentucky, but I do not see auy comuicCiou b itwcMi his pi-oi)osed
amendment and the resolution which I ottered I certainly feel every oisposition to
give the resolution of the Senator from Kentucky a hearinjr, and I sliould like to have
a vote on it, and, entertaining the opinions I do uow, I shall be compelled to vote in it'i
favor, although it would, in effect, disfranchise a State. It is one of the cases not ))r()-
vided for in the Constitution. Under the Constitution we have power to fix the day,
and it must be uniform. I think it doul)tful whether we can say that if they do not
meet on that particular day— if they are prevented by the act of Providence, or other-
wise, from assembling — they may assemble at some future time. I doubt that power,
but I think we ought to withhold this until we |)ass on the other resolution.

Mr. Chittenden. If my resolution be passed tirst I shall have uo objection ; but if
it is not, I shall never be able to get it considered hereafter.

Mr. VVeller. I really cannot see any reason why it should not receive the consider-
ation of the Senate at any time. I am sure tl»e Senate will have every disposition to
receive the resolution of the Senator from Kentucky, and pass upon it. I have no ob-
jection to acting on it tirst, 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 Kentucky wishes to obtain a vote on his resolu-
tion, it ought to be taken wheu the Senate is full, and therefore 1 move that the Sen-
ate adjourn.

The motion was agreed to ; and the Senate adjourned.

In Senate, February 12, 1857.

On motion of Mr. Wetxer, the Senate resumed the consideration of the following
resolution snbn)itted by him yesterday :

'•licnolred, That a committee of one meinber of the Senate be appointed bj' that body,
to join a committee of two members of tlie Hou-e of Representative's, 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, 1H,')7 ; aiul also to wait on ,IoIin C. Breckinridge,
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, b"^r>7."

The peiuling question being on the aineiulmeut offered by Mr. Chittenden, to add to
the resolution :

''But it is resolved furihcrmorc, That the vote of Wisconsin, being given on a day dif-
ferent from that prescribed by law, ought not to have been included in the count of the
electoral votes, and that any member "of either the Semite or the House of Ri'preseuta-
tives had the privilege and right to object to counting 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. President, it is with great reluctance and diffi-
dence that I express a legal opinion in reference to this matter. I, however, feel con-
strained to do so, because I believe there has been a confusiou of ideas, and a misunder-
staudiug in relation to it. So far as the resolution of my colleague 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 briedy 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:

"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."

I believe the State of Arkansas was particular 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 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 Goverumeut of the United States, directed to the President of

126 COUNTING THE ELECTORAL VOTE.

the Senate. The President of the Senate shall, iu the presence of the Senate and TTouse
of Ke|)reseiitatives, o]>eu all the certiticates, and the votes shall then be counted."

Now, sir, I apprehend the whole of this difficulty began in what was an orij^iual
error. The votes are sent here to the President of the Senate, who, as the ofiieer {)re-
sidiiitj; over the rc^jiresentatives of the States, is to open and count them. The Consti-
tution says it shall be done in the presence of the Senate and House of Representatives.
The House of Kei)n sentatives might have been invited to this chamber, or we might
luive 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 Re|n-esenta-
lives. T( is being a small chamber, we did not wish to bring the members of the House
of Representatives here, and seat them around in the ladies' galleries because they were
curious to see, or put them iu privileged seats, or niche-hole or pigeon-hole them in one
]tlace or another. As the Presiding Ofticer of the Senate, the direction of the Constitu-
tion is that yon, sir, shall open and count the votes — that is your duty — before the
Senate, and the members of the House of Representatives are to be present as witnesses.
In the conremplation of the framers of the Constitution, what could have been meant
by this f 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 d'elat, 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, bow these matters are generally arranged. Some person who is super-
oftieious and wishes to get placed at the bead of a committee, and get his name in
]M int — 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
h\)use, dressing up your Si^cretary of the Senate and the Scrgeant-at-Arms iu the ia-
s gnia of oflice, one man taking the right and the oiher the left, just as they do at an
English dinner.

The Constitution, in my judgment, is that these 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
niijesty, by their presence, representing the ix-.ojde in their integrity and in their
might, may overawe us and prevent us from acting unfairly. They are present to
know the result when it is declared. J suppose that the reason the House of Repre-
sentatives have never met in this chamber for this purpose, and have uOt been invited
here, was that we had no place in which to put them, and we wer^i compelled to goto
their chamber, becau.se 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 have the right to pass upon them.

The States return tlieir votes to our Presiding Officer. Because I speak of States, do
not suppose that I am going off on that second constitution, the resolutions of '9ri and
'99. 1 tlo not suppose what I have said is anything eliminated from the occult virtues
of tlio.se resolutions; they were passed by my own State, and I do not want to quarrel
vv'ith my grandfather. I say the votes were to be returned to the Senate, and counted
by the Senate. The Senate has to be in session as a body. I do not wish to be com-
mitted by anything I did or did not do yesterday; for when members of the other
house got up and commenced speaking, while this body was in session 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 im-
l)ioper. The votes must be counted, and counted as the votes of States. Why so
counttd? There are Ohio, New York, and Pennsylvania, which might, in the first
place, .send on a fraudulent list; and if you were to have a joint conventiou, as the
members of the other hon.se projiosed, what would be the result? 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 iden-
tical States, by their overpowering voice iu such a convention, could carry out the
fraud.

1 do not blame you, sir, under the novelty of the case, arising as it did, for having
listened 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 he a done-up job, unless they had a say in it. I do not believe they had a right
to say anything, or to interpose, or 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 witnesses that the proceedings might not be done clandestinely, nor

PROCEEDINGS AND DEBATES IN CONGRESS. 127

in a cnnoiis or ca^al. Tlipy lookinjif on in thah way, and yon having the votes, and
connrinj;- llieni, when you eanie to the retnrns iioni the State of Wisconsin yon niij^ht
have very properly said : " Gentlemen, un<ler the law of 1792, and under the Constitu-
tion, a certain day is prescribed for the lueetinir of the electors; this vote was not cast
on that day. Shall we count it?" Then any Senator inii>ht have moved that it should
be counted; but what right had a witness — a inember 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 of 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 prece-
dents are, though allusions have bdfn made to them. I do not consider myself com-
mitted by anything that transpired ; I do not commit any future Congress, much less
commit posterity, by what trai)Si)ired yesterday, because by the Cous'itution, the Sen-
ate, the re[)resentatives of the States, are to supervise the counting of the votes. The
members of the House of Representatives may be present, under such forms and cere-
nioni»-s as yon choose. Then, whenever the vote is counted out, and you have not a
constituridual miijority to elect a President, the House of Representatives ought to re-
tire to their own hall, and immediately proceed to elect, the Speaker beginning with
the statement that there has been a default of election under the Constitution, and
now we will proceed 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 corpn de reserve to vote after the pro))er day. The framers
of the Constitution may have had no more notion of the telegrajih which now p-uts the
country in instantanenns coinmunicatioa throughout all its bortlers, than Seipio Afri-
canus or Hannibal had of gunpowder or cannon. But when wo have siu;h an instru-
ment atiording a unmans of entering into combinations, it is wrong that a State should
stand as a reserved corps.

Under the Constitution, if you mean to cnrry it out and enforce it, whenever a State
does not come up to time — time being a material matter in this proceeding — her vote
ought to be excluded.

1 have, iierhaps, as much respect for, and confidence in, my colleague as one man
ought to liave in another; and, while I am willing to declare the fa(!t that the vote of
AVisconsin ought not to be counted, 1 am not willing that we should pass a resolution
conceding the idea of ajoint convention, and saying that any member of either house
had a right to i)ut in, or to call us to order, or to do anything else. It has been a cere-
mony siinctioned by time, for the two houses to meet in the Ri'presentatives' Hall. Sup-
pose it is sanctioned by time; if it is a bad precedent — mains usii sabolendutt est — the
sooner yon get back to the right course the better.

I have stated my view of the Constitution. The votes are to be sent to yon, sir, and
we are to count them. Resolutions are got up by superofficions men, who like to be
figuring in such matters, and get their names in the newspapers, that this, that, or the
other course takes place in arranging the ])roceediiig8; but when yon come down to the
real sense and understanding of tae matter, it is that we, as representatives of the States,
shall count the votes ; because at last there is to be some fiiml tribunal where justice, and
honor, and reliance, and confidence reside. The j)resnmprion is that we will act right :
but upon the predication that it was no harm to watch even ns, the framers of the Con-
stitution said that we should count these votes in the presence of the House of Repre-
sentatives. We may place them in our loliby, or in the reporters' seats, or anywhere
else, but they are to look over the proceedings. After the votes are connt<sd, and a
miijority 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 ttslimouiam re.i, as you would euter a foiinal writ in an action of ejectment or a chan-
cery suit. The votes are to be counted, and when counted, 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 material to the de-
cision of the election just now, for everybody knows that Buchanan is elected Presi-
dent 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 ns con it the votes in their presence; they
may lie witnesses ; they may look over it ; let us do it as a Senate in session, and let ns
regulate our own business, and not allow an interloping member (I mean no disrespect
to any member who spoke yesterday in the other House) 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 iiad the right to count the votes. When we found, in discharging that duty, that

128 COUNTING THE ELECTORAL VOTE.

the State of Wisconsin, under the requirements of tbe law passed to carry out the Con-
stitution, came up out of time, like a horse ruled out of tiiue and distanced in a race,
sheout^ht not to be counted. I will vote for the naked fact asserted in my colleasjiue'a
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 rake my polities from Wasliing-
ton and Marshall and that school of politicians, and I reckon that I never was as near
coming np to what are the hidden, occult virtues of the resolutions of '9o and '99 before
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 singular I never knew anybody that
■was always right except mj'self," [laughter,] I have an almighty confidence, at least
in this particular instance, that I am right. The^otes 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 proceed imme-
diately to an election. In all civility, 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 be 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 Wisconsin should not be counted. My poli-
tics— I will not say my Federal teachings, because that is an odious word — all lead me
theother way ; but my opinion, under the law and under the Constitution, is that wliich
I have stated as to the power of the Senate. I verily believe that is the simple, honest,
naked, straightforward view of the question. I say this without any reference to col-
lateral considerations and hypothetical cases that will occur to every geuthnuan in the
Senate without my suggesting them. We ought to stand by the Constitution, and l>y
the law, as far as the law intends 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 th*^ 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 going on, to see that the proceeding was done
riiiht. They could fall back on their parliamentary 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 humbuggery about the majesty of the representatives of the people being
there. The question comes before them in due time ; for if the States do nut elect by
proper electoral votes, it is remitted to the House of Representatives in tiieir State
capacity. Evidently the intention of the Constitution is that the votes are to be re-
turned 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 Mexico and swallow them all up. At her rate of
increase, if you had not got in a good many new States she would have swallowed a
great many of them, just as a shark swallows up minnows. She might get in a fiaml-
ulent 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 herself in any contingencj^. I feel confident
of that; but still she is concerned as to the fairness and propriety of this count. I
must say that this is the tirs^fc 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 what I think are the
sentiments and feelings of my Commonwealth.

Mr. Stuakt. Mr. President, I do not design to detain the Senate in a lengthy discus-
sion of this question. I occupied considerable time yesterday. 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 undertaking to declare any further result, or doing anything
more than had been done by the Presiding Officer in the presence of the two houses.
My view was aiul is that the duty of counting the votes devolves upon the President
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 Constitution declares, and the law of Con-
gress 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 gen-
tlemen that the counting is to be done by the two houses of Ci)ngre s, but that is im-
possible in itself; it is not, therefore, a fair construction of the Coustitutiou of the
United States.

I concede there is not that precise accuracy in language in this respect in the Con-
stitution of the United States which usually characterizes that instrument in all its
provisions. It would have been more strictly accnrat-e and definite to have said, " The
President of the Senate shall o^jen and count the vote in the presence of the two houses

• PKDCEEDINGS AND DEBATES IN CONGRESS. 129

of rongress," but. the Constitution does not say in express terms who shall count them.
Hiisiuif made the President of the Senate the custodian of the votes — li:i\'ii)i^ yiroliib-
itcd him from opening them until the arrival of a particular day, and then ])roviding
for its being in the presence of the two bouses of Congress — the law having provided
that Congress shall be in session on that <lay, it secures a certainty of actiou by the
President of the Senate — he being an oftieer always iu existence — because, if a vacancy
happens in any way, the law making it the duty of Congress to be in session on that
day, the Senate have the power to supply a vacancy, aud have a President of the
Senate.

It may be said that Congress onght by law to define more particularly what shall be
done on this subject. I yield to that opinion; I expressed it yesterday. I thiuk 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 Chancellor Kent :

"The President of the Senate, on the second Wednesday of February succeeding
every meeting of the electors, in the presence of the members of both houses of Con-
gress, opens all the certificates, and the votes are then to be counted. The Constitu-
tion does not expressly declare hii ichom the votes are to be counted and the result de-
clared. In the case of questionable votes and a closely-contested election, this j)ower
may be all-important; and I presume, in the absence of all legislative provisiou 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 aud ac-
curacy 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 dis-
agree, therefore, with the honorable Senator from Kentucky, (Mr. Thompson, )when he
supposes this is a count by the Senate. It is a couut by the President of the Senate.
To secure fairness and accuracy, it is a public count before two responsible organized
bodies under the Constitution. All that was done here in res])ect to the negotiation
between the two houses was simply done iu courtesy. It had no binding force as law.
If it were a concurrent vote of the two houses, it could only be binding l)y the appro-
bation of the President of the United States. It was good only as a matter of courtesy
for the purposes of convenience. When the President of the Senate 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 performed, 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, aud therefore I hope uo further actiou will be had
on the subject.

Mr. HuNTEi{. Mr. President, the Constitution evidently contemplated a provision to
be made by law to regulate the details aud the mode of counting tlie votes for Presi-
dent and Vice-President of the United States. "The Pre.'-ideiit of the Senate shall, iu
the presence of the Senate and House of Representatives, open all tlie certificates, and
the votes shall then be counted." By whom, and how to be counted, the Constitution
does not say. But Congress has power " to make all laws which shall be necessary and
proper for carrying into execution the foregoing powers, and all other powers vested
by this Constitution in the Government of the United States, or in any department or
officer thereof." Congress, therefore, has the power to regulate by law the details of
the mode iu which the votes are to be couuted. As yet, no such law has been found
necessary. The cases, happily, have been rare in which difficulties have occurred iu
the count of the electoral votes. All difficulties of this sort have been managed here-
tofore by the consent of the two houses — a consent either implied at the time or de-
cLired by joint resolutions adopted by the houses on the recommendation of the joint
committee which is usually raised to prescribe the mode iu which the count is to be
made. In tlie absence of law, the will of the two houses thus declared has prescribed
the rule under which the President of the Senate aud the tellers have acted. It was
by this authority, as I understand it, that the President of the Senate acted yesterday.
The joint resolution of the two houses jirescribed 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 uubroken usage
and established precedent.

Nor were the occurrences of yesterday without a parallel. Just such a difficulty
arose iu regard to the vote of Missouri when Mr. Monroe was elected ; aud the scene
in the House, to juf'ge from the report, must have been more tumultuous than that of
yesterday. The difference between that case and this was, that tlie joint committee
had provided, by a resolution adopted previously to the count, that tiie 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 iu which the result was to be declared.

130 COUNTING THE ELECTORAL VOTE. '

This precaution was taken upon the motion of Henry Clay, of Kentucky, fortunately
enough, as the sequel iMoved. When the votes were being couutefl,au(l the certificate
from Missouri was rcacheil, Mr. Liverniore, of New Hampshire, objected to the recep-
tion of her vote. Upon that debate arose: and the Senate, upon motion of Mr. Will-
iams, of Tennessee, returned to their own chamber. When they were gone, a debate
arose, and Mr. Chi.v said that, with deference to the President of the Senate, he thought
he ought to have declared the result, for " the moment the objection was made the rule
(i. e. the joint resolution) adopted thi-i morning took effect." He thought, therefore,
that the President of the Senate ought to have (lone 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 re-
marks of the genileman 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
iuterlo)»i[ig speakers, do not understand me as in the least way saying that he acted
improiierly, or wrong. He acted probably as most men would have acted, and possi-
bly as I miglit have done myself. I will not say that, in regard to that, there was any-
thing improper. I think he acted very discreetly aud prudently. But then, what is
the right of the matter ? When we are counting the votes, (for the President of the
Senate only counts them in his official capacity, and in the session of the Senate, be-
cause he cannot count them as a private individual,) it is improper for the House mem-
bers to be anything but listeners. When they commeuced speaking I retired as an
individual. I did not think that it was in order for them to speak.

Mr. HuNTEU. 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 an-
nounce the result, as ordered by the joint resolution, iu the midst of interruptions aud
nuirnuiiing ; and then, upon motion of a Seinitor, the Senate retired from the hall ;
which so much provoked i\Ir. Ramlolph, of Virginia, that he declared the election vi-
tiated, and offered resolutions alfirming the whole proceeding to have been illegal. In
the midst of a debate njion these the House adjourned ; and this seems to have closed
the procee<lings 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 C<uigress. It probably would be still better to regulate the whole mat-
ter 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 inasmuch 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 persons elected is valid. If anything further ought to be
done, it would seem to me that it would he to pass a resolution declaring that, as the
vote of Wisconsin could not atfect the result iu either way, it had not been reckoned
iu the count. Whether even that bd necessary now, it will be for the Senate to con-
sider. More than that cannot now be necessary, ami perhaps it will be sutticient to
order the result of the election to be announced to those persons who have been elected
as President and Vice-Presideut of the United States.,

Mr. CiUTrKNDEX. It is the furthest from my wish or purpose to embarrass the pro-
ceeding that gentlemen desire to take. Fortunately for us, this vote is of no conse-
quence as it regards tiie 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 judg-
ment which prevailed yesterday when we were in the other house, that, although ob-
jection was nuide to the counting of the vote of Wisconsin, there was, according to the
opinion of the Presiding Otticer, no way iu which that objection could be decdded. I
think it is very important that we should decide it in some form or other. We seethe
danger that may arise out of the uncertainty existing on this subject. We saw enough
yesterday to satisfy us that, it this presidential election had depended on the admission
or exclusion of the vote of Wisconsin, the result would have been little less than rev-
olutionary. Is it not wise to avail ourselves of this warning for the purpose of deter-
mining 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 aud House of Representativ^es should be expressed
on that question.

Other dithcuties may be removed by such legislation as the gentleman proposes ; but
whatever uuiy be your legislation on the subject, there must be electors, and you must
appoint the day when the electors shall be chosen, ami 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

PROCEEDINGS AND DEBATES IN CONGRESS. 131

tlie Constitution, be the same thronghont 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 mnst be chosen in all the States. Tlie same day on which
they meet and cast their votes must be the day for meeting in every State. That is a
coustitutioual provision.

As for tlie idea that it is in onr power, or that we ought to admit a vote under any
special circumstances not given on that day because of the weather, is to make the
construction of the Constitution depend on the state of the weather — is to make it
depend on any accident, or the pretext of any accident, or the pretext of any unavoid-
able detention of the electors from the place of voting. That caunot be. The Consti-
tution says it shall be on the same day thronghout the United States. You ought,
therefore, in your law, to fix that same dav for all the Union. Here is a vote tendered
ns from a State given on another day. We call it a vote in common parlance; bnt in
the constitutional sense is it a vote at all ? Is it not merely null? Un(]nestionahly,
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 declaring 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 he had the
privilege of voting at all. It is idle to talk about circumstances changing the Consti-
tution in this respect, or giving by accident validity to a vote which the Constitution
prohii)its. 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
ditficnlties which have resulted from the joint meeting as to the mode of procedure
may be remedied by legisla'imi, and I hope will be. We have nothing, in my jmlg-
nient, 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 ns — a warning which comes at a time when the question is compara-
tively of no consequence, and we can calmly apply our minds to the proper con-
stitutional consideration of the question. Bnt whatever legislation may take place,
electors mnst 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 willing
to confine our action now to that uiuivoidablo 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 tlay. No time before, no time after, will do. That is the Constitntion, and
we cannot change it. We cannot say that for the purpose of avoiding difficnUies of
this sort, and affording more time for the electors to meet, the election m ly take place
any time within three days after a given time. We cannot give more days than one,
and that one day mnst be the same throughout the Union; so that this (piestion may
occur in any and every presidential election. Now, is a vote given on a day difl'erent
from that prescribed, 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 obtaining a vote on this question, to disembarrass the object which genilemen have
in view by the additional resolaiion ; and, therefore, as I nndeistaiid that the gentle-
man from California, who offered the original resolution, is willing that a vote may
first be taken on my resolution, I withdraw it in the form of an amendment, and oti^r
a distinct resolntion embracing that single point.

Mr. WEtXEH. For the purpose of effecting tlie Senator's object, I can withdraw the
resolution I offered for the time being, and the Senator from Kentucky can offer his
proposition.

Mr. Ckittenden. Very well. I am willing to have them disconnected.

Mr. CoELA.MEK. I understaud that the resolntion of the Senator from Kentucky is
now offered. I wish it read.

The Phesident ;j)-o tempore. The resolution of the Senator from California is under-
stood to be withdrawn.

Mr. CiUTTENDEN. I now offer this resolntion :

Eesolved, 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 onglit not to have been admitted or included m the count of electoral votes
given in the late presidential election.

Mr. Benjamin. Permit me to make a question to the Senator from Kentuckv. I am
perfectly willing to vote for all the jiropositions contained in the resoht'ion ; I l)elieve
them to be founded in the Constitution and laws of the land ; bnt in the shape of a
resolution it will not avail so much as it would to pass a law now, directing that, here-
after, when the vote of a State presented for count shall appear to have lieen 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. If we pass a law declaring that, it will have effect for
all future time. If not, this will be merely an expression of opinion that does not

132 COUNTING THE ELECTORAL VOTE.

bind any one; and the difficulty to which the Senator refers will again occur. With a
law there can he no difficulty.

Mr. Weixf.r. The Senator from Kentucky, perhaps, can get at the question in this
waj': Let hiui otter his proposition in the shape of a resolution instructing the Judi-
ciary Committee to report a bill providing that in such a case, where a State fails to
give a vote at the time hxed 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. CiiiTTKNDKN. I prefer this mode. I hear the gentlemen's suggestions with great
kindness and all proper respect; but I do not know tliat a law may V>e passed. We
have been now seventy years and more without auy such law, and I do not know but
that, when this presidential election an<l the consequences which might have resulted
from it have been lost sight of, we shall go on without legislation. I wish to change
this resohitiou and make it a joint resolution of the Senate and House of Representa-
tives; and in that form I otter it:

litsohed by the Senate and House of Representatives of the United States of America in
Cougress ussmiblcd, Tliat the electoral vote of the State of Wisconsin in the late presi-
deniial election, being given on a day ditt'i-rent from that i)rescribed by law, was there-
fore null, and ought not to have been admitted or included in the count of electoral
votes given in the late presidential election.

Mr. Biggs. Is it in oriler to move to refer that resolution to the Judiciary Com-
mittee ?

The Phesioent pro tempore. It is perfectly in order.

Mr. BkjGS. I move that reference.

Mr. Chii'Iexden. 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 reference to the Judiciary Committee.

Mr. CoLLAMEK. It is obvious, Mr. President, in the first place, that the furm of this
resolulion is not the making of a law, Ijjit 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 etfee . The matter is over to which it relates — it is all done. There is no
practical ettect in the resolution when passed, uidess 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 Wis-
consin ought not to have been counted. That is gone by, and it makes no regulation
in relation to the future at all. My hrst objection to it is that it is entirely inopera-
tive.

But, Mr. President, I should not have risen on that account merely. Strange
as it may appear 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 frauiers of the Constitution ever ii} tended to leave the subject of the presi-
dential election to the House of Representatives, or the Senate, or either, or both of
them, rhere was a great deal of debate in the convention that framed the Constitu-
tion as to the manner ot choosing a Pi'esident of the United States. Various projects
were presented. Among others, it was very gravely debated whether he had not bet-
ter be elected by Congress. For souie considerable time that proposition was under
consideration. Various plans were put Ibrward, various 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 i-esulted 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 tnust 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 observaticm and experience, we shall tiud that there
is very little practical ditterence between leaving the i»residential election to Con-
gress and leaving Congress to decide that election. It will amount practically to about
thesame thing. Disguise it as we may, after all, the truth constrains us to acknowledge,
more or less, that, in deciding on tlie election of members of the two houses of Con-
gress, when the decision of the election of a proposed niemljer or a contested seat deter-
mines the state of political pa ties one way or the other, the vote is a political one.
When the question arises in such a contingency, in such a crisis, it re(iuires very little
acquaintance with mankind to know what will be the result. It will be simply a po-
litical 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 per-
8<mal respi>nsil»ility in that way. In deciding upon an election which has been had by
elector.-, th^ legality of that election is always a turning-point in politics. There are
always candidates of ditterent parties ; and deciding one way would be the triumph
of one party, and deciding another way the triumph of another. It will always pre-
sent that state of things.

Now, is it ditheult lo see that, if the question is to be subuiitted to Cougress as to
the pi<qjriety or legality of an election of President, it will always be a party decision ?
It will be so, as a matter of course. There is no difficulty, whenever you choose, in

PROCEEDINGS AND DEBATES IN CONGRESS. 133

creatii)*? questions of that kind ; for it is a coinniou cliarge of one party against another,
tnat votes are piociired by frand and liy corrnplion. In ])articuhir States, where there is
a close vote, each party charges the other with producing the result hy fraud, by vio-
lence, or trickery. Then, whenever the election of electors is close in a State, such as
Delaware or Louisiana, or one where the jjossibility 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 sliow that the
election in that State was procured by fraud or violeuce, and therefore that the votes of
its electors should be set aside. Such a question, I say, in any tolerably close election,
uuiy 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 Representatives, or the two houses, who are
to pass upon that ([Uestiou, stand, they know what will be the result always.

Uuder this view of the case it is, to' say the least, exceedingly questionable whether,
■when the Constitution said, not tliat Congress should decide the election of President,
but that it i-honld 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 deciiling the
presidential election. I very much doul>t whether, if we were now arranging the elec-
tion of President, we should ever think of resorting to such a means as that ; but I am
not fully settled in my own mind that that is so. If, however, we adopt this resolution, it
is not ujcrely an expression of our i>rivate()iiinion on the subject of the Wisconsin vote —
that is not all, by any means. If that were all, it would be of rather slight considera-
tiou ; but the truth is, that by the expressuin of our opinion in the form of this resolu-
tion in rehitiiMi to the electoral vote of the State of Wisconsin, we in fact take u[)on us
to say that we are judges of the election. We assume and exercise the i ight of judg-
ing on the legality of the vote of the dilferent electors. We actually assn ne and take
upon us the exercise of this exceediugly ([uestiouable power. Before we take this long
leap, and undertake to express this opinion in this way, ami thus assume this mucli
contested power, it seems to me we ought to have some occasion to demivu I it; and
there is iu)thing iu the present occasion that in the least demands it. The whole mat-
ter is setthi 1 .and ended.

I do not say that, iu my opinion, the House of Representatives and the Senate, or
the Senate alone, are not judges of the election. I do not say it is not so ; I do not say
it is so; but I tliink, by entertaining this resolution, we iu fact decule that it is so ;
and that is my great objection to entertaining it. I am unwilling to have the question
passed upon in tliis 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. W^ith
these views, my motion is to lay the resolution on the table.

Mr. Touci^Y. Will the Senator from Vermont withdraw that motion ?
Mr. Coi.r.AMKit. If the Senator will renew it, I have no objection to withdrawing it.
Mr. TouCKY. I will renew it. Mr. President, I should be very lotii to express an
opinion on this question in opposition to tliat which has been declared by the honorable
Seiuitor from Kentucky, that the vote given by the Srate of Wisconsin, or whicli ap-
)ears to have been given on the 4th of December by the gentlemen who were elected
y tlu- people of Wisconsin as electors, was a valid vote. It strikes me that it is not ia
the power of Congress 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 dilferent from that prescribed for all the Srates of
the Union, would, I apprehend, be null ami void to all intents and purposes; audit
•would lie very dillicult to show that Congress, by a joiut resolution, could have the
power to do what they could not by an express law.

But I do not inteud to express any definite opinion on that subject, because there is no
question arising in the present election. The only question tliat arose was, wh-th-u*
the President elect, James Buchanan, had a majority 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 appeareii that he had one huiulred and forty-nine v^otes, which svas a majority, every
other in(iuiry became perfectly irrelevant and immaterial; every inquiry in regard to
the electoral vote of Wisconsin was entirely immaterial ; and whei the Presiding Ofti-
cer of this body declared the result of the election, he did uot 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, aud 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 stooil 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 Senators what would then have been the condition of the case 1 Suppose
the rejection of the vote of Wiscousiu had left no choice by the presidential electors ;

134 COUNTING THE ELECTORAL VOTE.

if that vote was not an effective vote, the Hoase of Representatives wonkl have the
powei', without the assent or consent of this body, to elect a President of the United
States bv States. Who shall decide that question ? If I were a member of the House
of Representatives, and believed the state of the vote required me, as a member <)f that
house, to go into the election, I should act without any reference to the opinion of the
Senate. It would be a duty devolved by the Constitution on the House of Representa-
tives, 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 opin-
ion,'believiny that the vote of Wisconsin was a valid vote ; and the gentleman elected
President bv that vote should assume the office of President and undertake to dis-
charge its duties, and should send to this body his nomination 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 declare to be legal, but which the House of Representatives declare to be
ille<>al and void. We have then a contest between two Presidents, one recognized 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 tbat the House
of Representatives, in the case I have supposed, would be called upon to act and de-
cide, I doubt not ; because the Constitution 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 decide it ? Can the House of Represent-
atives 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 before the judicial tribunals of the country in any individual case ; and
any question that may arise may be carried to the Supreme Court aud adjudicated in
that particular case by that court ; and what can be done in one case can be done in
another case.

1 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 I'resi-lent or not to be President except in a single Ciise, where by the Constitu-
tion the power is devolved 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 <^ongress to change the result. The whole pro-
ceeding 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
President who is chosen by that vote is President, let Congress do what it may.

I say, then, sir, that any resolution of Congress 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 inspection of the facts, would, so far as it changed or varied the result,
be inoi)erative aud of no effect: and hence I say to-day,- as I said yesterday, 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 deliberative
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 delib-
eration, 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 rn all hands, without controversy, that a President and Vice-President have
been cho.sen ; aud the result having been ascertained and declared, neither house of
Congress has any control over it. I hope, therefore, that no resolution will be adopted
on this occasion, except only that which is proposed by the Senator from California,
appointing a committee to wait on the President and Vice-President elect, and give
them the usual notice of their election.

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 cir-
cumstances to make any decision in respect to the vote of Wisconsin. I say it was
the duty of the President 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 eiinally immaterial as to the vote of every other State ex-
cept those counted tor Mr. Buchanan. It was a question that should have been de-
cided. It was a question, in iny judgment, that should have been decided by the
Piesident of the Senate, and which could be decided by nobody else. There was no
appeal from the decision. As the Cimstitution and the law stand, it is the duty of
the President of the Senate, being the i>roper officer under them, to decide what he
conntH. and what he refuses to count, in every instance. This is all I designed to say,
aud I now renew the motion to lay the resolution on the table

PROCEEDINGS AND DEBATES IN CONGRESS. 135

Mr. PuGH. I roa« 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. Tlie Senator from Connecticut was under a pledge to renew the motion.

Mr. PuGH. But he did not renew it.

Mr. Stuakt. I canuot consider this as my motion. I renewed it, because I felt under
obligations to do so ; but I have a disposition to hear every Senator. As far as I am
concerned, I have no objection to withdrawing the motion.

Mr. PuGii. 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. Tbe provision of the Constitution is express, that every
order, or resolution, or vote to which the concurrence of both houses is necessary, except
on a question of adjournment, shall be submitted to the President. 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 amend-
ment I wish to submit is to strike out the words, " by the Senate and House of Repre-
sentatives of the United States of America in Congress assembled," so that it may be
a separate resolution of the Senate. Thou I shall move to add to it this further reso-
lution :

"That a copy of the foregoing resolution be sent to the House of Representatives,
together with a message 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 Missouri case, that after the Senate retired,
some debate occurred iu both houses; and having settled in their own minds the
proper course, a message was sent from the House of Representatives notifying the
Senate to return, and the Senate returned and completed the business.

The honorable Senator was interrupted by the delivery of the following message
from the House of Representatives, by Mr. CuUom, 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
C. Breckinridge, of Kentucky, that he has been elected to the office of Vice-President
for four years from the 4th of March next; and have appointed, on the part of the
House, Mr. Jones, of Tennessee, and Mr. Florence, of Pennsylvania.

Mr. Wki.lkk. I hope my resolution will now bo taken up by unanimous consent.

Mr. PuGii. I object to it. I have partly the same objection to this as to the resolu-
tion of the Senator from Kentucky.

It is in vain for us to resolve out of a question of this magnitude. It is in vain for
us to attempt to escape it. What are the fiicts 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 constructioM. 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, iu the presence of both houses of Congress, and reject votes,
or admit votes, by his single will, and thus make or unmake himself President. It is
a power higher than the veto. I am bound to say under my construction of the Con-
stitution of the United States, no such power is lodged in any individual, whatever may
be his station. The Constitution 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 ai'e the tellers? We heard
a great 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 Rep-
resentatives. This is the very language of the joint resolution, which was copied from
former precedents :

"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 I'csult shall be delivered to the President of the Senate j)ro tempore,
who siaall announce the state of the vote and the persons elected to the two houses
assembled."

It was fi)r 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 ac-
cordingly the Constitution says, " the votes shall then be counted." Who are to count
them? Congress. Wbat are we there for? My friend from Kentucky [Mr. Thomp-
son] supposed tliat the House of Representatives could be brought to our bar. I ad-

9 X

136 COUNTING THE ELECTORAL VOTE.

mit they may come here ; bnt why do we want them tor witnesses, or why are we to
be witnesses 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
proceeding, 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 members of the House of Representatives are present, looking on as witnesses, to
prevent any clandestine cabal or secret association, or any sort of — I will not say Cati-
line conspiration. The President of the Senate is to count, and do it under the regu-
lation of the Senate. The members of that 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 count-
ing, 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 courtesy 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 any-
thing 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 bad 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 matter. That is exactly what I think about it.

Mr. PuGii. 1 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.
Seward.] I consider it fortunate that the vote of Wisconsin is immaterial to the re-
sult, and I consider it fortunate, too, that the Presiding Officer of the joint convention
was not interested 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 yesterday in the joint convention, and that it
behooves us to remedy it by whatever means we can. It was the duty of the Presi-
dent 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 whenever 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 Vir-
ginia 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 rejjorted ; 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 Con-
stitution 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 further ? 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. Fre-
mont, of California." If the vote of Wisconsin was a nullity, no such number of votes
was given to Mr. Fr6mont; and in making that announcement, whether he designed
to do so or not — 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 C. 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, beginning with the first presentation of the
certificate, some one of the members of Congress objected to this vote, and he was told
that the proper time had not come, and the whole proceeding 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 the proper
time has not come yet, or that it has passed.

Mr. President, when is it to be settled f Suppose, as Senators have said, the vote of
Wisconsin would have led to a different result, we should have had anarchy in both halla

PEOCEEDINGS AND DEBATES IN CONGRESS. 137

of Congress. Bat now, when the question is here in the most favorable circumstances
for its settlement for the 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 circumstances, and resolve ourselves out of it by appointing 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 triliiug with the magai-
tude of the question. Let us understand what is our power.

I believed at the time, and I believe now, that when the Representative from the
State of Virginia objected to that vote, his objection was rightly made; it was made
at the right time and at the right place. I believe that the proceeding should have
stopped at that point— that all that passed beyond that was illegal. Here was a vote
proposed ; it was objected to by one of those whom the Constitution said should be pres-
ent 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 re-
jected it — then the result should have been ascertained and the declaration made. In-
stead of that it was passed over. I appeal to Senators, was there any step in the pro-
ceeding yesterday when any member of either house was allowed to put in an objec-
tion, or debate an objection, or state it in tlie joint convention ?

I say it is fortunate that our Presiding Officer had no interest in the result. I know
the Presiding Officer of this body will not suspect for a moment that I have any un-
kind feelings toward him ; I have none. But suppose the case had beeu otherwise.
Aaron Burr ouce sat in your chair, sir. Suppose he had undertaken, or another Aaron
Burr, if he should come here, in the face of both houses of Congress should undertake
to exercise this extraordinary 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 believe he did
not intend to exercise it, yet practically it came to that ; for how could we ascertain
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 avoided 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 impression ditfers from that of every Senator who
has spoken, except the Senator from Maine, [Mr. -Nourse.] I believe the two houses
together were the proper forum to settle the question. I do not consider that it is a
legislative 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 organ-
ized by the Constitution for the express purpose of counting these votes. The whole
number of Senators 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 believe, as I
said, that that was a board of canvassers organized for the purpose of counting the
votes for President and Vice-President.

Mr. Sewakd. Will the honorable Senator allow me to ask him a question for the pur-
pose of testing his position 1

Mr. PuGii. 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,
wonld the decision of the two houses liave been conclusive of the election f

Mr. PuGii. I think so. It would be like many a decision made by the courts. I have
known courts of last resort to decide wLiat 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 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 electoral col-
lege ; that it was the duty of the President of the Senate to open the votes ; that when
an 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 pur-
porting to be the vote of Wisconsin be received and recorded 1 " If it had been recorded,
although I should have deemed it unconstitutional, I should have felt bound, as a citi-
zen, to acquiesce in it as a decision made by the competent authority.

Mr. Mallohy. Allow me to ask my friend a question. Do I understand hira 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

138 COUNTING THE ELECTORAL VOTE.

counted f Is that tlae idea — that the Senate and House of Representatives, assembled
as they were yesterday, have the power to rule out or rule in the votes of any State ?

Mr. PuGii. Why not ? Do not gentlemen propose to do it by joint resolution ?

Mr. Maixoi;y. Then how are they to cast their votes — jyer capita, or otherwise ?

Mr. PuGH. Per capita. How do they cast their votes in the electoral college f The
Constitution says, for instance, that my State shall have twenty-three votes. Why?
Because she has twenty-one Representatives and two Senators. How many had she
there yesterday ? Twenty-three votes — no more, no less. W^hy adopt this number for
the electoral 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. MALT.ORY. Is not my friend, then, providing a third mode of electing President
and Vice-Pi'csident, unknown to the Constitution, 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 President and Vice-
President in this manner.

Mr. PuGH. I provide no method of electing. 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. Stuart,] 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 avenue ? It is no legislative act. If it is, it is subject to a
veto.

Suppose this case were to arise : that the vote of Wisconsin decided the whole con-
troversy, and the President of the Senate should decide to count that vote, and a ma-
jority 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
proposition to one in the proposition that I have suggested. The joint body is a gen-
eral assembly 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 gentleman from Maine [Mr. Nourse] yesterday.

The purpose of my amendment to this resolution now is that it shall be a resolution
expressing the sentiment of the Senate that the vote of Wisconsin cannot be counted ;
and that we notify the other House of the fact, and notify them that, having arrived
at that conclusion, if they, by a separate resolution, come to the same conclusion, the
two houses can reconvene and count the votes upon that basis, and announce the
result. At present, I confess, 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 consid-
ered 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. Trumbull] 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 subject drop. It makes no dilierence
to me. It is not denied in the resolution that Mr. Buchanan is elected President and
Mr. Breckinridge Vice-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 settle-
ment of this question, it will come back to plague us or our successors with a thousand
fold of its difficulties. This is the time for settling it when no person can be accused of
acting from interested motives, 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 is a purely
naked case of construction under the Constitution. We can give our deliberate judg-
ment; 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 collateral 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 ques-
tion, it is ready to proceed.

Mr. Benjamin. I move to lay the resolution, with the amendments, on the table. I
give notice that I will not withdraw my motion at the solicitation of any gentleman.

PROCEEDINGS AND DEBATES IN CONGRESS. 139

The motion was agreed to.

Mr. Weller. I hope the resolutioQ I offered this morning will nob be taken up. I
understand the House of Representatives has laid the whole subject on the table, and
appointed a committee on the part of that House to wait on the President elect. My
object can be accomplished, perhaps, by concurring in the resolutions sent from the
House of Representatives.

The Secretary then read the following resolutions of the House of Representatives :

" In the House of Repkesentatives, February 12, 1857.

"Resolved, That two members of the House be appointed by that body, to join a com-
mittee 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 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 Tennessee, and Mr. T. B. Florence, of Penn-
sylvania, be the committee on the part of the House."

Mr. Weller. I move that the President of the 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 jjro <emj^07'e. The Senate can have no committee until 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.

VOTES FOR president AND VICE-PRESIDENT OF THE UNITED STATES.

In the House of Representatives, February 12, 1857.

The Speaker stated the question to be on the following resolution submitted by the
gentleman from South Carolina, [Mr. Orr,] 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 con-
vention, in pursuance 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 yesterday, I have examined the Constitution and
the law of Congress passed to regulate the counting of the votes for President. The
count proceeded far enough to ascertain that Mr. Buchanan and Mr. Breckinridge had
each received for President and Vice-President one hundred and seventy-four undis-
puted electoral votes, which, under the Constitution, was " a majority of the whole
number of electors appointed," and they are declared by the Constitution "the Presi-
dent 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 irrade 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
Constitution says :

"The Congress may determine the time of choosing the electors and the day on
which they shall give their votes, which day shall he the same throughout 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. Letcher, objected very properly to the vote
of Wisconsin when the certificate was opened and was being handed to the tellers.
The objection was overruled or not entertained by the presiding officer, the President
of the Senate. One other certificate was afterward opened, which completed the
count. The objection might jierhaps 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 Breckin-
ridge constitutionally elected President and Vice-President. Was it not then too late
to make the question whether the vote of Wisconsin should be counted, the result
having been announced ? I think it was. I am of opinion that the gentleman from
Virginia, [Mr. Letcher,] as well as others of us who objected to the validity of that
vote, erred in permitting the count to proceed until the question was decided. W©
erred in not requiring its decision before the tellers reported, and the error reached a

140 COUNTING THE ELECTORAL VOTE.

point where it was irremediable when we permitted the result to be officially declared
by the President of the Senate. That officer, in my judgment, committed a mistake in
refusing to entertain the objection of the member from Virginia. He should have sub-
mitted 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 presence of the Senate and House of Rep-
resentatives, open all the certificates, and the votes 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
ajid registered ? If the convention or meeting have no power to object, and, if neces-
sary, 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, power-
less form ? If the joint meeting has no such power, then it would be a most useless
form. But " the voten shall then be counted." If that which is illegal, and only pur-
ports 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 Pennsylvania, being entitled to twenty-seven
votes in the electoral college, should elect tifty electors, and they should send fifty votes
for Mr. A, would the members of the joint meeting have to remain silent, like so many
automatons, and permit fifty votes to be registered for Mr. A, when every member knew
that the vote was illegal and void ? The Constitution devolves 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 incident to the
power of counting ?

Is the question to be determined concurrently, or by the joint decision of the two
houses ? If it is to be done concurrently, there could be no decision ou a contested
vote when the two houses should disagree — the one voting to count, the other to re-
ject ; and if the admission or rejection of the challenged votes should determine the
result of the election, by electing or defeating one of the candidates voted for, we
should then present the anomalous condition of having two Presidents elected, and
presenting 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 tlecided by the per capita votes of the joint conven-
tion, which would decide definitely for the one or the other.

Nor is the dignity of the Senate or the sovereignty of the States compromised or
endangered 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 col-
lege ; it is a proceediug having reference to the President of the United States. Sena-
torial electors in the several States possess no power or dignity superior to those repre-
senting the congressional districts; they all assemble together, and each one casts a, per
capiia vote. The Senate in joint meeting, in voting j^er capita on the question " Shall
the vote excepted to be counted f ' wields the same power, relatively and absolutely,
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 President, may object to the counting of any
particular vote upon what he may conceive sufficient 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 decided by ape?' capita vote of all
the members of each house, and the vote so contested received or rejected, as the ma-
jority of the joint meeting shall determine.

This is a legitimate construction of the Constitution ; the only one which can enable
tlie 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 fraudulent, have no power to arrest
its counting. The Constitution makes us the managers or canvassers to count the elec-
toral 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 practical consequence now. There were one
hundred and seventy-four uuimpeached votes counted for Mr. Buchanan and Mr. Breck-
inridge, which was a majority of all the electors appointed, and they are declared by
the Constitution elected President and Vice-President. No further action is necessary
in the joint meeting, and I withdraw my proposition ofl:ered yesterday.

Mr. Jones, of Tennessee. I wish to introduce a resolution which has been agreed
upon by the joint committee on the subject of counting the votes of President and
"Vice-President.

The resolution was read, as follows :

PKOCEEDINGS AND DEBATES IN CONGRESS. 141

Besolved, That two members of the House be appoiuted by that body to join a com-
mittee of one member of the Senate, to be appoiuted bj' that body, to wait on James
Buchanan, of Penusylvauia, and inform him that he has been duly elected Presideut
of the United States for four years, commencing on the 4th day of March, 1857 ; and
also to inform John C. lireckinridge, of Kentucky, that he has been duly elected Vice-
President of the United States for four years, from the 4th of March, 1857.

Mr. H. Marshall. 1 am o]>posedto the passage of the resolution.

Mr. Jones, of Tennessee, (interrupting.) I ask for the previous question on the reso-
lution.

The Speaker. The gentleman from Kentucky [Mr. H. Marshall] has the floor.

Mr. Jones, of Tennessee. Am I not entitled to it ?

The Speaker. The gentleman was entitled 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 re-
ception of the resolution offered by the gentleman 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 constitutionally required to perform in the
ascertainmout and declaration as to the persons elected to the Presidency and Vice-
Presidency by the electoral colleges.

Let me say here that, of course, I know and admit that Mr. Buchanan and Mr. Breck-
inridge 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 election declared. That is not the
point. The question presented here is as to the manner in which that fact shall be
consUtuUonallij ascertained 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 lie ordered it to he counted. When a member of this House de-
sired to object to a vote, the President of the Senate repulsed 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
being attempted, the President of the Senate declared a result, but afterward he said
repeatedly that the tellers had not entirely performed their duty, and be postponed a
motion of a Senator that the Senate retire, by saying that the tellers had not finished
their duty. As a first lesson, therefore, to us, we behold the result of the election pro-
claimed 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 par-
ticular 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 per-
fectly willing that the two houses, in the presence of one another, may make the
proclamation of that result. 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 position, 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 be made,
and the proclamation must be made, in the presence of the two houses.

The resolution of the gentleman from Tennessee does not come up to that question.
In other words, in my opinion, it takes a false direction. There is no gentleman of any
party in this House, I suppose, who does not want to reach the result which proclaims
Mr. JBachanan President, and Mr. Breckinridge Vice-President of the United States for
the next four years ; but there underlies ail this the question of how that thing is to
be done, and done properly, according to the Constitution. The question, in fact, on
this resolution, because this thing is to be hereafter looked back to as a precedent, is,
■what part are we to play ? Suppose a case. Tellers were appointed. As I remarked,
yesderday, who are these tellers ? They are not known to the Constitution. Who ap-
points them ? The House appointed two and the Senate appointed one. What are
they ? Mere instrumentalities, mere facilities, that we hold in our hands by which we
perform our constitutional duty. We were counting the votes, and, by our acquies-
cence, the tellers acted for us. There was no challenge. But suppose a vote is pro-

142 COUNTING THE ELECTORAL VOTE.

posed to be connted, 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 challenge 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 foculty does it involve? I say not only the faculty of enumerating,
but the faculty of judging whether it is a vote or not. Suppose a case. The Consti-
tution 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. Suppose
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
President and Vice-President, thereby clearly violating that provision of the Constitu-
tion. Suppose that vote will decide the election : the question is whether you will
count or exclude it? You are under oath to support the Constitution, and you can-
not count a vote which violates that instrument, and is a breach of the privileges
of the electoral colleges. I i^resent that as a case which might arise. I might multi-
ply 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 finally 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 Senate 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 certificates 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 respective 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 presence of the two houses.
After he has opened all of the certificates, the Constitution says, " and then the votes
shall be counted." He is to open all the certificates first. Now, yesterday, he opened
a certificate, and handed it down to the tellers. Who authorized them to count? Sir,
the count yesterday never commenced 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 jirogressed,
any Senator or Eepresentative 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 presence of the other, to say whether or not that rote should be counted.

You sit there, sir, as Speaker of this House, presiding over its deliberations. It was in
session and you were there because you were its Speaker. We were in session then as
much aswe 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 Constitution ; and whenever I objected to a vote being counted, instead of ad-
dressing, except by courtesy, the president of our joint meeting, I should have ad-
dressed myself to the Speaker of the House of Representatives, and have required the
action of the House of Representatives on my proposition to count or reject a vote.
This is a matter that ought to be guarded. Who gives the President of the Senate
the right to declare the result ? My opinion is, Mr. Speaker, that you ought to declare
the i-esult as well as the President of the Senate, and that the thing is not constitu-
tionally 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 be-
lieve that the Constitution ever intended that the President of the Senate might pro-
claim 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 unwilling to yield to the proposition that the President 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 every-
body is willing that the result shall be attained. All we want is, that as questions

PROCEEDINGS AND DEBATES IN CONGRESS. 143

have arisen, and as they may be important 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 choosing 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 :

Eesolved, 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 ses-
sion, the functions of the said Presiding Officer and joint session ceased, and that 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 j)revious question.

Mr. Campbell, of Ohio. I ask the gentleman from Tennessee to withdraw the pre-
vious question, to enable me to ofier as an amendment the resolution I introduced yes-
terday as an amendment to the proposition of the gentleman 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 gentleman 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 resolution is in order, as a necessary result from
that which appears upon the Journal of this day — that a declaration of the election of
President and Vice-President has been made.

Mr. Walbridge. I move to lay the resolution 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 167, as
follows :

Yeas — Messrs. Ball, Henry Bennett, Bishop, Buffinton, John P. Campbell, Lewis D.
Campbell, Caskie, Garuett, Haven, Humphrey Marshall, Millward, Moore, Morgan,
Powell, Pringle, Purviance, Sage, Sapp, Scott, Spinner, Stanton, Swope, Walbridge, and
Whitney— 24

Nays — Messrs. Aiken, Akers,Albright, Allen, Barbour, Barclay, Barksdale, Bell, Hend-
ley S. Bennett, Bingham, Bliss, Bocock, Bowie, Bradshaw, Branch, Brenton, Broom, Bur-
lingame, Burnett, Carlile, Bayard Clarke, Ezra Clark, Clawson, Clingman, Howell Cobb,
Williamson R. W. Cobb, Colfax, Comins, Covode, Cox, Cragin, Craige, Crawford, Cum-
back, Damrell, Davidson, Jacob C. Davis, Timothy Davis, Day, Dean, Denver, De Witt,
Dick, Dickson, Dodd, Dowdell, Dunn, Durfee, Edmundson, Elliott, Emrie, English, Eth-
eridge, Eustis, Faulkner, Flagler, Florence, Foster, Henry M. Fuller,Thomas J. D. Fuller,
Galloway, Gilbert, Goode, Granger, Greenwood, Augustus Hall, Robert B. Hall, Harlan,
J. Morrison Harris, Harrison, Herbert, Hickman, Hodges, Thomas R. Horton, Houston,
Howard, Hughston, Jewett, George W. Jones, J. Glancy Jones, Kelly, Kidwell, King,
Knapp, Knight, Knowlton, Knox, Kunkel, Lake, Leiter, Letcher, Lumpkin, Mace, Alex-
ander K. Marshall, Samuel S. Marshall, Maxwell, McMuUin, McQueen, Killian Miller,
Smith Miller, Millson, Morrill, Morrison, Mott, Murray, Nichols, Norton, Andrew Oliver,
Mordecai Oliver, Packer, Paine, Parker, Peck, Pelton, Perry, Pettit, Phelps, Pike, Pur-
year, Quitman, Reade, Ready, Ricaud, Robbins, Roberts, Robisou, Ruffiu, Sabin, San-
didge. Savage, Sherman, Simmons, Samuel A. Smith, William Smith, William R. Smith,
Sneed, Stewart, Stranahan, Talbott, Tappan, Taylor, Thorington, Thurston, Todd, Traf-
ton,Trippe, ry8on,Underwood,Vail,Wade,Wakeman,Walker,CadwaladerC.Washburne,
Ellihu B. Washburne, Israel Washburn, Watkins, Watson, Welch, Wheeler, Williams,
Winslow, Wood, Woodrufi", Woodworth, Daniel B. Wright, John V. Wright, and ZoUi-
coffer — 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 fur-
ther 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.

144 COUNTING THE ELECTORAL VOTE.

Mr. JoxES, of Tennessee. I move tliat 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
siich 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 mo-
tion to lay the report upon the table, upon which the House had ordered the yeas and
nays to be taken.

Mr. Duxx. 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. Duxx. 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. Duxx. I understand that this is a privileged question, and the House ought to
dispose of it definitely and tiually.

The Speaker. The resolution is jiroposed as a question of privilege, and it will be
read for information.

The resolutions were read, as follows:

^'Besolved, That, in accordance with the requirements of the laws relating thereto,
Congress being in session on the 11th day of February, A. D. 18.57, being the second
Wednesday of said month, the President of the Senate, in the presence of the Senate
and House of Representatives, 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 Peunsylvania, had been duly and legally elected
President of the United States for the term prescribed by the Constitution and laws,
to commence on the 4th day of March next; aud, 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
said State could not be counted for President aud Vice-President without a violation
of the second paragraph of the first section of the second article of the Constitution of
the United States."

The resolution was objected to, and the Speaker ruled that it could not be considered
without unanimous consent.

A subsequent motion to amend the'Journal, so[as to include the foregoing resolution
in the minutes of the previous day, was lost.

ELECTION FOR THE NINETEENTH TERM— 1861.

Abraham Lixcoln, President.
Haxxibal Hamlix, Vice-President.

Ix Sexate, Fthruary 1, 1861.

Mr. Trumbull submitted the following resolution :

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 Repre-
sentatives, to ascertain and report a mode for examining the votes for President and
Vice-President of the United States, and notify the persons chosen of their election.

Mr. BiGLER objected, and the resolution went over, under the rule.

On the following day (February 2, 1861) the resolution was called up by Mr. Trum-
bull, and Mr. Bigler explained that he had objected simi^ly because he desired to go on
with other business.

The resolution was adopted, and the Vice-President appointed Mr. Trumbull, Mr.
Foot, and Mr. Latham the committee on the part of the Senate.

Ix THE House of Represextatives, February 2, 1861.
Mr. Washburxe, of Illinois, arose to a privileged question, and moved to take up the
resolution of the Senate in relation to the mode of counting the votes for President and
Vice-President.

PROCEEDINGS AND DEBATES IN CONGRESS. 145

Mr. Garnett objected, for the reason that the Diotiou was in violation of the rules of
the House, and could not be made excqit by unanimous consent ; arguing, also, that
it was not a privileged question.

The Speaker decided that it was a privileged question.

Mr. Garnett appealed from the decision of the chair, and was sustained by Mr. Mc-
Clernand, who, however, stated that he had no objection to the passage of the resolu-
tion.

Mr. Garnett said he had no objection to the resolution or to coiauting the votes in a
perfectly regular way ; but was unwilling to afford any facilities against the rules of
the House for that purpose.

The a]>peal was laid on the table — yeas 106, noes 19.

Mr. Washburne, of Illinois, offered the following resolution, which was adopted :

Eesolved, That the House agree to the appointment of a committee, to consist of tive
members, to join said committee on the part of the Senate.

The Speaker appointed the following committee on the part of the House: Messrs.
Washburne of Illinois, Adrian, Craig of Missouri, Ely, and Anderson of Kentucky.

In Senate, February 5, 1861.

Mr. Trumbull, from the joint committee, reported in part the following resolution,
which was considered by unanimous consent and agreed to :

liesolved, That the two houses will assemble in the chamber of the House of Repre-
sentatives on Wednesday, the 13th day of February, 1861, at 12 o'clock, and the Presi-
dent 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 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 of the United States, and, together
with a list of the votes, be entered on the journals of the two liouses.

The Vice-President appointed Mr. Trumbull the teller on the part of the Senate.

In the House of Representatives, Ftbrnai-y 5, 1861.

Mr. Washburne, of Illinois, moved to take up the foregoing resolution of the joint
connuittee, which had just been received as a message from the Senate.

There being no objection, the message was taken from the Speaker's table and read.

Mr. Washburne moved to concur in the resolution, and that the Speaker be author-
ized to appoint two members as tellers.

The motion was agreed to, and the Speaker subsequently appointed Mr. Washburne,
of Illinois, and Mr. Phelps as tellers on the part of the House.

In the presence of the Senate and House of Representatives,

Ftbruary 13, 1361.

At twenty minutes after 12 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 Repre-
sentatives, 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
Washburne of Illinois, the two tellers appointed on the part of the House, took their
Seats at the Clerk's desk.

The Vice-President 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-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.

The votes having been opened and counted, the tellers, through Mr. Trumbull,
reported the following as the result of the count :

146

COUNTING THE ELECTORAL VOTE.

Statement of votes for President and Vice-President of the United States for four years from

the 4th of March, 1861.

states.

President.

Vice-President.

-S

o
o .

-§
M

.a
o

>-5

3 .

. a

Vl >

•-5

3
W

I-! ^

o
1-5

a
^^

I." o

f> ©

©^

8
5

13
4
6
5

35
4

8
5

13
4
6
5

35
4

10
8
10

12
12

Ohio

13
11

Illinois

Texas .

4
5
4
4
3

3n3

180

39 \ 180

"Whole number of votes SO''

Necessary to a choice 152

The Vice-President then said : Abraham Lincoln, of Illinois, having received a ma-
jority 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, hav-
ing received a majority of the whole number of electoral votes, is duly elected Vice-
President of the United States for four years, commencing the 4th of March, 1861.

The business for which the two houses were assembled having been finished, the
Senate will now return to its own chamber.

The Senate, headed by the Vice-President and its officers, then retired from the hall.

In Senate, (after the count.)

Mr. Trumbull, from the joint committee, reported the following resolution ; which
was considered and agreed to :

Besolved, 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 Abraham Lincoln, of Illinois, 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 the State of Maine,
that he has been duly elected Vice-President of the United States for four years, com-
mencing with the 4th day of March, 1861.

The Vice-President appointed Mr. Trumbull the committee on the part of the Senate.

PROCEEDINGS AND DEBATES IN CONGRESS. 147

Ix THE House op Representatives, (after the count.)

The Speaker called the House of Representatives to order.

Mr. SiiEHMAN. I desire to submit, as a privileged motion, the ordinary resolution for
the appointment of two members of this House, to join one member of the Senate, to be
appointed by that body, to wait on the President-elect, and inform him that he has
been elected President of the United States for four years, commencing 4th March,
1861.

Mr. Washburne, of Illinois. I would suggest to the gentleman from Ohio that that
resolution comes, ordinarily, from the Senate.

IMr. SnKKMAX. It came last time from the House. I am following the usual course.

Mr. HiNDMAN. I suggest that the same committee be directed to inform General
Scott that there is no further need for his janizaries about the Capitol, the votes being
counted and the result proclaimed.

Mr. Grow. Gentlemen seem to trouble themselves a good deal about General Scott
on all occasions.

The resolution was subsequently passed, and the Speaker appointed Mr. Elihu B.
Washburne and Mr. Burlingame the committee on the part of the House of Represent-
atives.

ELECTION FOR THE TWENTIETH TERM— 1865.

Abraham Lincoln, President.
Andrew Johnson, Vice-President.

In the House of Representatives, December 19, 1864.
Mr. Wilson introduced a joint resolution declaring certain States not entitled to
representation in the electoral college ; which was read a first and second time and
referred to the Committee on the Judiciary.

In Senate, January 27, 1865.

Mr. Trumbull submitted the following resolution ; which was considered and
agreed to :

Resolved, That a committee, consisting of three members, be appointed by the Presi-
dent of the Senate, to join such committee as may be appointed by the House of Rep-
resentatives, to ascertain and report a mode of examining the votes for President and
Vice-President of the United States, and of notifying the persons chosen of their
election.

The Vice-President appointed Mr. Trumbull, Mr. Conness, and Mr. Wright the com-
mittee on the part of the Senate.

In the House of Representatives, January 30, 1865.

Mr. Stevens moved to take up the message from the Senate requesting the House to
appoint a committee to meet a like committee of the Senate to make an arrangement
for counting the electoral votes,

The motion was agreed to.

Mr. Stevens moved to adopt the resolution [which is above given] and that a com-
mittee of five members be appointed as such committee on the part of the House.

The motion was agreed to.

The Speaker subsequently appointed as such committee Messrs. Stevens, Washburne
of Illinois, Mallory, Davis of Maryland, and Cox.

Mr. Wilson. I ask the 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 reso-
lution considered now.

The question was put ; and two-thirds voting in favor thereof, the rules were sus-
pended.

Mr. Wilson. I now report the joint resolution, and I ask the previous question
upon it.

The preamble to the joint resolution recites that the inhabitants and local authori-
ties of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Ala-
bama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee rebelled against the Gov-
ernment of the United States, and have continued in a state of armed rebellion for

148 COUNTING THE ELECTORAL VOTE.

more than tliree years, and were iu a state of armed rebellion on the Sth of November,
1864.

The joint resolution provides that the States mentioned in the preamble are not en-
titled to representation in the electoral collefi;e for the choice of President and Vice-
President of the United States for the term of office commencing on the 4th of March,
1865, and that no. electoral votes shall be received or counted from those States concern-
ing 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. Malloky. I would suggest to the gentleman from Iowa that the case provided
for by the joint resolution wljich he reports ought to be met by the two houses of Con-
gress when they meet in joint session to receive and count the votes of the various
States for President 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
Committee 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. WiLSOX. I have no objection to its being read.

The Clerk read as follows :

"Mesolved, (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 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 ap-
pointed 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, 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 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 announce-
ment 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, 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 question shall be
decided affirmatively, and no vote objected to shall be counted, except by the concur-
rent votes of the two houses, said votes of the two houses to be reported to and de-
clared 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 iu 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 the Senators,
in the body of the hall upon the right of the Presiding Officer ; for the Representa-
tives, in the body of the hail 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 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, upon motion made and submitted by its own Presiding Officer, to direct
a recess not beyond the next day at the hour of one 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 major-
ity 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 im-
portant that this question shall be determined at once, inasmuch as the opening and
counting of the electoral votes is to take place next Wednesday week, I think we had
better act on the joint resolution now, leaving the proposed amendment of the rules
to be reported and discussed at the proper time. I therefore move the previous ques-
tion.

PROCEEDINGS AND DEBATES IN CONGRESS. 149

Mr. Mallory. If the gentleman will allow me, 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 same hall. I therefore move the previous question on
the joint resolution.

Mr. Mallory. I hope the House will vote is down, and let the Senate have some-
thing to do with the settlement of the question.

The previous question was seconded and the main question ordered, and under its
operation the joint resolution was engrossed and read the third time.

Mr. Wilson moved the previous question 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
resolution. _

The previous question was seconded and the main question ordered, and under its
operation the preamble and joint resolution were passed.

Mr. Wilson moved to reconsider the vote by which the preamble and joint resolu-
tion were j)assed, and also moved to lay the motion to reconsider on the table.

The latter motion was agreed to.

In Senate, February 1, 1865.

Mr. Trumbull. The Committee on the Judiciary, to whom was referred the joint
resolution (H. R. No. 126) declaring certain States not entitled to representation in the
electoral college, have inste-ucted me to report 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 of the Whole, iiroceeded to
consider the joint resolution; which was read, as follows :

" Whereas the inhabitants and local authorities of the States of Virginia, North Car-
olina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Ar-
kansas, 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 rebellion on the 8th day of November, 1864: Therefore,

" Be it resolved by the Senate and House of Representatives of the United States of America
in Congress assembled, That the States mentioned in the preamble to this joint resolu-
tion are not entitled to representation in the electoral college for the choice of Presi-
dent 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 received 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 Sth 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. Tex Eyck. Is this a proper time to move an amendment to that amendment
as reported by the committee f

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 no 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 re-organized,
or at least attempted to do so, and in the opinion of many, and perhaps most, of the loyal
citizens of that State, has re-organized 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 convention and framed a new constitution for that State ; that that
legislature passed a law authorizing the election of electors for President and Vice-
President of the United States in the last presidential electiou, and that sucli 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

150 COUNTING THE ELECTORAL VOTE.

moving this amendmeut is, under this state of facts, that some opportunity may be
afforded to a loyal people who have suffered all the horrors of the rebelllou, 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. Trumbull. I now insist on proceeding with the unfiQished business.

The Senate, as in Committee of the Wliole, resumed the consideration of the joint
resolution (H. R. No. 126) declaring certain States not entitled to representation in the
electoral college, the pending question being on the amendment of Mr. Ten Eyck to
strike out the word " Louisiana," in the third line of the preamble 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 relation to the counting of votes for Presi-
dent and Vice-President was not considered by the Committee on the Judiciary. The
question there was as to the form of the resolution and as to the recitals in its preamble.
Since the discussion of this question in the committee, I have been led to donbt exceed-
ingly whether it is competent for Congress to legislate at all in reference to the count-
ing of the votes. The Constitution authorizes Congress to fix the time for choosing
electors. It also empowers Congress to specify the time when those electors shall per-
form the functions of their office, when they shall vote ; and, so far as I can find in
perusing tlie Constitution, that is the extent of the power of Congress over the sub-
ject. 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 Constitution 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 extreme 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 inexiiediency of exercising any such i^ower, 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 noD 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 authorities of all of those States
were in a state of armed rebellion on the 8th day of November, the day of the presi-
dential election, I am not prepared 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 ques-
tion prejudged by a recital in the preamble of this resolution. I am therefore opposed
to the resolution on both grounds. I think it inexpedient to pass any such resolution,
and I am not prepared 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
between Congress exercising the power of legislation by providing in advance in what
manner the electoral votes of President and Vice-President 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 tliat certain votes are null and void. The distinction is
as wide as the world ; it is as wide as the east is from the west. I concede that Con-
gress could pass a law, and I believe such a proposition was pending at the last session
of Congress, providing that certain States or certain people in a State of insurrection
should not have the legal power to cast electoral votes for President or for Vice-Presi-
dent ; but no such law was enacted. The laws as they existed were permitted to stand ;
and now, after it is said votes have been given, for Congress to assume to declare that
those votes are null and void and shall not be counted, is altogether a different thing ;
and the point which was taken by my colleague when this question was up yesterday
I think is fatal in that view of the case.

But, sir, I have very serious doubts whether Congress is clothed with any power
over the subject of the counting of these electoral votes. The Constitution prescribes
what powers Congress shall have :

PROCEEDINGS AND DEBATES IN CONGRESS. 151

"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."

In pursuance of that provision of the Constitution, 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, 184,5 :

" Be it enacted by the Senate and House of Representatives of the United States of America
in Congress assembled, That the electors of President and Vice-President shall be ap-
pointed in each State on the Tuesday next after the first Monday in the mouth of No-
vember 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 col-
lege of electors when such college meets to give its electoral vote: And provided 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 manner as the State shall by law provide."

Here by this act of January 23, 1845, Congress 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 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 President 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 whatever 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. Pitssibly you
might argue that because they are sent to the President of the Senate, the President of
the Senate presiding over the Senate, he might, in some measure, l)y appeal or other-
wise, be subjected to the decision of the Senate ; but certainly the House of Represent-
atives has no control over it. But then the Constitution provides :

"The President of the Senate shall, in presence of the Senate and House of Repre-
sentatives"—

The Senate and House of Representatives meet together in joint convention, the
President of the Senate presiding over the convention, 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 Repre-
sentatives, open all the certificates" —

Not open such as Congress trll 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 Constitution, one of the most grave questions
which, uuder certain circumstances, could p'>ssibly arise; and that is, wheiher the
President of the Senate, presiding over tbis joint convention of the House of Repre-
sentatives 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 joiut convention, he is
in some measure, by some kind of parliamentary law not expressed in theCoustituiion
itself, to be subject to the control ot that joint convention. Practicall the question
arose in 1856, on the vote of the State of Wise nsin. TUe law provided that the vote
should be given on a certain day. In consequence "f an extraordinary storm in that
State, it was impossible to cast the vote on tlie day prescril)ed ; the votes were not
given on tliat day. The question arose whether the votes of the State of Wisconsin
should h^. 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 vote of Wisconsin were valid or in-

10 X

152 COUNTING THE ELECTORAL VOTE.

valid ? Not at all. The Constitution says that the President of the Senate shall open
the votes and count them ; and upon the President, in the first instance, is the respon-
sibility. He, and he alone, is to decide. But then arises the other question, whether,
from his decision, there is an appeal to the body over vphich he presides? That ques-
tion arose in 1857. It was a grave question, and as it was not necessary that it should
then be decided in order to dispose of the result of that election, tlie question was
neither decided by the President nor by the joint convention over which he presided.
The question was waived, just as everybody and every judge and evei'y tribunal who
acts wisely will always waive a question when it is uuuecessary to be decided. If, in
the decision of the Dred Scott case, the court had only decided 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 oue end to the other by the dogmas 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 aft'ect 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 necessary 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 convention, we all know that whether the votes of certain States,
Louisiana and Tennessee, are counted or not counted, does not affect the result ; and it
is not necessary for Congress now to assert a doctrine which in some future time may
be the very destruction of the Government, namely, that a political majority in Con-
gress can decide that certain votes of certain States shall be canceled and others shall
be received. It will never do to set that precedent. We had better follow the Consti-
tution as it is written. Let the votes that are sent to the President of the Senate be
opened by the President 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 convention ; 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 iwwer under
the Constitution to regulate the manner in which these votes should be given, they
have no power under the Constitution in this mode to annul 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 expressed 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 dijection to the provisions of the Federal Constitu-
tion. It seems to me that ujion this question, if upon no other — a question upon which
depends the continuance of the Government — it is necessary to adhere to the Consti-
tution, and to look for it and see if we have any guide or direction in tljat instrument.
I foresaw this evil, and I introduced at the last session of Congress 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 business,) that res-
olution 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 consideration of Congress, and it was not then
without the range of possibility or probability that on that question might depend the
very continuance of this Government. No one could have known to the contrary of
that at the last session ; for let me suppose that the result of the presidential election
might have been determined by the votes of these States who have now proposed to
off^r 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 iiresent rebel-
lion ? Nothing at all in comparison with this.

My friend from W^isconsin [Mr. Doolittle] says that Congress has no power over this
subject. It would be oue of the strangest things that ever occurred on earth if it had
not the power. The provision of the Federal Constitution is that no member of Con-
gress 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 mem-
bers of Congress, has Congress no power to say that they shall not be counted?

But, sir, the Constitution is not so silent on this subject as my friend from Wisconsin

PROCEEDINGS AND DEBATES IN CONGRESS. 153

seems to iniaf^ine; for tlie election of President and the mode of counting tbe vote.s 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 Presi-
dent 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 conduct-
ing legally, tiie 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 was ever created without some provision of this sort, and accordingly I
find that the framers of the Constitution 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 Coustitutiou says that for carrying
into execution this power 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 the 10th 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 tbe votes are counted ? Is it to see as a matter of
curiosity how the thing is done ? Is it to go there to see the Constitution trampled
upon and not have the power to remedy it ? Is it when they see that there is danger
of the Constitution being violated, 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 Constitution
itself is a dead letter, inoperative, and of no foi'ce.

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 18137 on the counting of the votes. I remember that I was then utterly
astonished at the announcement made by some of the Senators who are not now mem-
bers 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 at-
tempt to settle anything in that joint meetiug. " State rights " reared up its hydra-
Lead, 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, I contend that it is the part of wisdom, before the emergency comes, to settle
this question. There never was a more favorable time for its settlement than the elec-
tion of 1856 presented, and there will be none more favorable than this election pre-
sents. 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 le less liable to the charge of any sinister influence, because it cannot change
the result, it cannot determine anything except to settle the principle ; and then when
an occasion 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, ma-
turely settled it, and settled it in such a manner that the influence of the decision will
be morally binding upon our successors, and will be preserved.

• Mr. President, suppose that some of our Territories had organized a State govern-
ment, and were not yet recognized by the Congress of the United States; suppose that
the young State of Nevada, which has lately done herself so much honor and the Sen-
ate 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 slie had gone through the forms of the Constitution 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 election.

I was not much struck by the suggestions made by the honorable Senator from New
York [Mr. Harris] that it would not be competent 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 President and Vice-President,
cast since the adoption of the Federal Constitution, he will find that at the first elec-
tion, when George Washington was elected President of the United States, the vote
of the State of New York was not counted ; she had uo voice in that election. The

154 COUNTING THE ELECTORAL VOTE.

precise manner in which that was done does not appear ; bat 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 terminating March 3, 179:3, and I find that th« States
■which voted were. New Hampshire, Massachnsetts, Connecticut, New Jersey, Pennsyl-
vania, Delaware, Maryland, Virginia, South Carolina, and Georgia. North Carolina and
Rhode 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 table, the tremendous occurrence
which the Senator from New York holds up to-day as such a bugbear actually occurred,
and in counting the votes on that occasion there were no votes counted from the State
of New Y^ork.

It is the dictate of the plainest common sense, independent of the constitutional
provision, that there must of necessity be a power residing somewhere to preside over,
rectify, and govern this whole transaction ; and although it would have been wise in
my humble judgment for Congress to have passed this resolution preceding the pres-
idential election, it by 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 pro-
posfs to say now is that these States being in a condition where no valid, no constitu-
tional election was held, their votes shall not be counted ; and if we cannot do that,
it seems to me that we are powerless to do anything.

Mr. Trumbull obtained the floor.

Mr. DooLiTTLK. 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. DooLiTTLE. 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 Congress had power over it, for the Constitution gives them certain powers
over the question of choosing electors, but it limits that power. The CoUvStitntion
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 Representa-
tives 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 Haraj) shire if he believes Con-
gress 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. Halk. Certainly not.

Mr. Doolittle. "Certainly not." The Senator agrees with me, then; there are
certain powers that Congress have not got over this subject ; but the Constituti m goes
on to say what power Congress shall have. "Congress m ly dotermine the time of
choosing the electors, and the day on wliich they shall givo tbeir votes" after they
are chosen, " which day shall be tlie same throughout the United States." It does say
in substance that Congress shall not do some tbiugs, because it provides thar the
States shall direct the manner of the ajjpointment of electors, whether they shall be
chosen by the people at large, or appointed by the legislature, or ch>sea 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
they shall give their votes. When C(mgress has done that it has passed laws to carry
into eftect this power under thei Constitution, and all the rest belongs to the States.

My honorable friend seems to condemn this doctrme for which I contend as if it
was a part aud parcel of that State-rights doctrine which has involved the country in
this civil war. I believe just as much in the rights of the States as they are secured
under the Constitution 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 futur-, for when this war is over and the
neceS'sity for the exercise of tremendous powers by the Government to defend its exist-
ence 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
popular doctrine and the necessary doctrine to save the liberties of this people aud of
this country.

Mr. President, I am for giving this Government all the power which is conferred
upon it by the Constitution, and not for giving it more. This crmutry is too large,
it covers too many and too varied interests, to endure the establishment of the doctrine
that this is one conscdidated empire, and that this Congress and this Government can
exercise unlimited power of legislation over all the interests of this great peof)le. But,
Mr. President, while I say this and assert it, I am just as much opposed to the State-

PROCEEDINGS AND DEBATES IN CONGRESS. 155

rights doctriue run mad to Calhounism, aud all the consequences that have followed
from it, as the Senator from New Hampshire is or can be. Under the Constitution as
it is I am for maintaining the rights of the States as they ai'e secured by it, with just
as much tenacity as I am for maintaining the rights of this Government against States
or individuals 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 ques-
tion 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 houses. 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
instauce to decide w^hether they are votes comiug 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 Terri-
tory 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 ( n an appeal from the decision
of the President to the joint body in convention ass!-i;! tied, the Senate and the House
of Representatives. There is the tribunal. Then- tli.; President of the Senate alone
counts the votes, or it is the body over which he ;)reside3, having a power over his
decision by appeal in the final resort to decide the question. That is what I have
contended for.

Mr. Tkumhui.l. I did not suppose when the Senator from Wisconsin insisted upon
taking 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. DOOLITTLK. I will say to my honorable friend that I had spoken on this question
and the Senator from New Hampshire went into a loug 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 trespass on my friend from Illinois.

Mr. Trumbull. I am sorry, Mr. President, to see any manifestation of feeling on the
part of any member of the Senate in reference 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 question, as a grave question, I do not deny. I take an interest in all these ques-
tions, and generally have feeling.

Mr. Trumbull. If the Senator from Wisconsin will allow me to go on, I shall say
nothing unkind of him, I am sure, aud I did not suppose that he had any personal feel-
ing in regard to any one. I thought he manifested a great deal of zeal, and I admit I
w-as 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 little surprised at the course taken by
my friend from New York, [Mr. Harris.] He is a member of the Committee on the
Judiciarj^ and I certainly understand him to agree to this resolution as reported by
that committee. However, he has a right to change his views, I suppose.; but the
matter was pretty thoroughly discussed in the committee, and I certainly did under-
stand that he was in favor of the resolution, 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 Senator 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 Sen-
ator from New York agreed to the resolution distinctly in committee. He objected to
the preamble. Does the Senator from New Jersey mean to controvert that ?

Mr. Tkn Evck. I do not.

The Vice-President. It is not in order to refer in debate in the Senate to the pro-
ceedings of committees.

Mr. Trumbull. I intended to state the matter as it was. I was taken a little by
surprise at the opposition manifested by the Senator from New York.

But, sir, both the Senator from New York aud the Senator from Wisconsin doubt the
power of Congress to pass this resolution, and they place themselves upon the Consti-
tution. 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 Government since

156 COUNTING THE ELECTORAL VOTE.

the days of Washington till this moment the Vice-President never has counted the v te
The Constitution says, "The President of the Senate shall, in presence of the Senate
and House of Representatives," do what ? " Open all the certiticates." That is what
he shall do. Then what follows ? "And the votes shall then be counted." By whom?
Another clause in the Coustitution already referred 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 another clause of the Con-
stitution says that Congress shall have power to provide by law for carrying into
effect every provision of this instrnment ; and here is a provision of this instrument
that these votes shall be counted; the manner of doing it is now determined by the
Constitution, and it is clearly constitutional and proper for Congress, in the exercise of
its authority to carry into effect the granted powers of the Constitution, to pass the
necessary laws to count the votes, and Congress has done it from the beginning of the
Government. If it were not so, we would have revolution at every presidential elec-
tion.

Why, sir, is the ground to be assumed here tliat South Carolina in a state of rebel-
lion against this Government, her people at war with us, and it being declared by acts
of Congress 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 Presi-
dent for us; and that we have no right to declare the mode of counting the votes so
as to exclude her vote ? Let me ask the Senators from New York and Wisconsin, is the
State of Louisiana to-dav in any different position legally from the State of South
Carolina, or are the inhabitants of Louisiana in any different position ?

I have before me the statute of 1861, which provides that the President in a certain
contingency shall be authorized to declare the inhabitants of a State in insurrection
against the United States, and what then ? "And thereupon all commercial inter-
course 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 going into that State shall be forfeited. And yet, for-
sooth, when the inhabitants of Louisiana have been declared to be in this state of in-
surrection, when goods taken there unless under a particular license are forfeited hy
the laws of the land, and when an individual trading 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 obtain, 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 re-
sult 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 tlie 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. DooLiTTi.K. That is what I complained of, that the law was not passed in advance.
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 in-
capable of voting, that is another thing.

Mr. TuuMBULT>. If the Senator admits that we can do that, he gives up the power;
that abandons the chief argument of the Senator from Wisconsin. If you could pro-
'vide for it in that way, you can provide, when the vote is offereil, 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 Wisconsin when the votes are
opened by the Presiding Officer of the Senate on Wednesday next in the presence of
the two houses, how is that question to be settled ? Does the Senator 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
Coustitution of the T'uited 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 Coristitution 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 ques-
tion could be settled in joint convention would be, if a question 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 concurring resolution.

But the Senator from New York thinks it inexpedient to settle this question.
It is because of the expediency and the necessity of having it settled in sid-
vance that I am urging it upon the consideration of the Senate at this time. How

PROCEEDINGS AND DKI5ATES I.\ CONGRESS, 157

will yon settle it when you get in joint convention ? The Senator from New York pro-
poses to connt 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 concurrent action in some shape
befoi-e the vote is opened ; and I hold that it is entirely competent and proper to settle
the question in advance; and it is not retroactive, it does not relate to the manner of
castinjT 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-President.
There has been no election of the people there voting for electors ; but a body of men
in Louisiana assuming to be the legislature of the State of Louisiana have appointed
these electors— a legishiture 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 Vice-President. There has been no vote of the people.

Mr. Hendricks. I wish to ask the Senator, for information, whether the legislature
of Louisiana w^as authorized by the constitution recently adopted there to select elect-
ors in that mode ?

Mr. Tkumbiill. I do not remember whether the constitution made a provision on
that subject or not, and I do not know that it would bo material.

Mr. Hkndiucks. It seems to me to be an important question.

Mr, TiJUAiBULL. I am unable to answer the Senator as to that (luestion. I do uot re-
member whether there is any provision in the constitution ado[)ted for Louisiana au-
thorizing the legislature to choose the electors.

Mr. Johnson. I do not think such a provision is to bo found in the constitution of
any of the States ; it is regulated by the Constitution of the United States.

Mr. Tkumhull. The fact would be immaterial. I do not think there is any im-
portance in the suggestion whether the constitution of the State of Louisiana provided
for it or uot. In fact, I do not think the constitution of a State could provide for that.
The electors in each State are to be chosen, according to my recollection of the Consti-
tution, 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 Louisiana, the whole ques-
tion is an unsettled one, npon w^hich at this time I do uot propose to express an opinion.
We have pending before us, as is known to the Senate, the application of two gentle-
men for seats in this body, claiming to have been elected Senators by the same legisla-
ture 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 resolution 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 November last. I was not exactly satisfied
with the preanihle, even as it now stands. I would have preferred it in a little differ-
ent form ; but a majority of the committee insisted upon it in the form in which it has
been amended. I am uot particular about it now, but prefer for myself that the pre-
amble 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 understand Ten-
nessee has sent a vote here as well as Louisiana. Whether the other rebellious States,
or the inhabitants of those States declared to be in insurrection, have attempted to
send up votes, I am not advised. The object 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. CoLLAMKR. Mr. President, it is no doubt true that we are oftan wedded to par-
ticular forms of expression, which we have premeditated, attaching importance even
to the forms, because w^e believe those forms are material to the substance which they
contain and represent. Now, sir, in relation to the geueral principle of the power of
Congress over this subject of voting for President and Vice-President, I do not know
any difierence between the provisions of the Constitution in regard to it and its pro-
visions on any other subject. I understand that Congress is clothed with power to
make all ueedful laws to carry into effect the powers granted by the Constitution to
this Government ; and when the Constitution provides a mode of electing Pi'esident
and Vice-President, I take it Congress have a right to make laws to carry those pro-
visions into eft'ect. I do not raeau laws to contradict 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 tbem into effect,

15S COUNTING THE ELECTORAL VOTE.

there would be grouDd of objection ; but I take it that any law not inconsistent 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
objections to the form in which it is. I have great objection to all particular legisla-
tion. I object 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 con-
tingency. Make your laws general for the United States, and provide 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
becomes 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 preamble declares that certain States, naming
them, or the inhabitants of tliose 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 concerning 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,"
whicli 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 provided :

"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 insurrections, 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 di-
rected 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 repudiated by the persons ex-
ercising 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 exists, 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 chat-
tels, 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 conveying the same, or conveying persons to and
from such State or section, be forfeited to the United States."

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 peo-
ple of a State are in insurrection and claim to act under the authority of the State, and
the State authorities do not repudiate it and do not stop it, then the President may de-
clare them to bo in insurrection and thereupon a state of war exists; and the Supreme
Court of the United States, differing about the blockade question before that, all de-
cided 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
already passed and that condition of things which exists, I propose to offer a substi-
txite for this resolution, which I shall presently send to the desk. The President's proc-
lamation 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 rec-
ord. We know what the proclamation is. We know that it was issued according to
law. It declared a state of war. The pi'oclamation 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 f Have any States declared by that
law and proclamation to be in this condition ever altered their condition ? The state
of war certainly still continues.

lu view of the statement which I have made, I propose in place of the resolution,
which seems to me obimxious to the objections I have made, to strike it all out, and
also the preamble, and to insert simply this :

"That the people of no State, the inhabitants whereof have been declared in a state
of insurrection by virture of the fifth section of the act entitled ' An act further to in'o-

PROCEEDINGS AND DEBATES IN CONGRESS. 159

vide for the eollectiou of duties on imports and for other purposes,' approved July 13,
1861, shall be regarded as empowered to elect electors of President and Vice-President
of the United States nntil 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 distinct i(m between particular States. It is simply
a law in pursuance of the act of IS ijl declaring what shall be the etiect which shall fol-
low 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 declaring that States
in such a condition have no power to vote for electors.

Mr. JoiiNtiOX. The Committee on the Judiciary, I suppose from what I collected of
their views, would have no objection to any change of phraseology of the resolution
which will accomplish 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 \;ote for Presi-
dent and Vice-President of the United States.

The honorable member from Vermont prefers his mode of accomplishing that end;
but virtually it is the same, provided his amendment covers the case now existing; but
I rather think the form of his amendment will be found to provide oulj' for subsequent
cases and not for an existing case. It seems to me to be prospective in its provisions,
and not retrospective. The case to be provided for is one which has already occurred.
Nor do I s.ee any material, difference or any ditt'erence in point of fact between the pre-
amble as it stands and the amendment proposed by the honorable member from Ver-
mont. 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 sub-
stance the particular case will not be ]irovided for by his amendment. He refers to the
act of July 13, 18(51, under the authority of which the President was authorized to de-
clare certain States to be in a condition of insurrection 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 dilierence between the resolution
as it stands in this particular and the resolution as proposed to be amended by the hon-
orable member from Vermont is that the States are mentioned in the resolution before
the Senate and will be found mentioned in the proclamation to which the amendment
and the Senator from Vermont refers.

But as I said in the beginning, as far as I urn individually concerned I have no ob-
jection to such a change of the phraseology of the resolution as will accomplish the
purpose, that purpose 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 accoiuplished by nam-
ing the States, or is to be accomplished by referring to the act of 18131 and what has
been done under that act, is to me perfectly immaterial, and, I think, makes no differ-
ence as to the effect of the resolution. But even if the amendment proposed by the
honorable member from Vermont shotild be preferred l)y 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 legis-
late 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 honorable member from Wisconsin and the honorable mem-
ber from New York. The Constitution of the United States does not provide in any
way a mode by which a contested election growing out of an alleged informality in
voting, or an alleged illegality upon the part of those who voted, or an alleged inca-
pacity on the part of those voted for, is to be decided. The hoaorable member from
Illinois is right in saying that if we are governed by the mere letter of the Constitu-
tion in this particular, there is no power existing by which anything more cau 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 authority 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; but the Constitu-
tion provides 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 Legislatures a number of electors
equal to their number of Senators and Representatives. Now, if a person not a native

160 COUNTING THE ELECTORAL VOTE.

citizen of the United States, or not a citizen in 1789, when the Constitution was
adopted, is voted for as President, or if a member of Congress of either branch or an
ofiftcer 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 clanse in the.Constitntion which
provides a mode by whicli these objections may be obviated. If the Vice-President is
to connt tlie vote, and he is to decide the result, and is merely to decide the resnlt,
according to the words of the instrnment 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 native 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 connt ;) 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 i-eferred — and there are others— there is the absence of any authoi'ity
given to the Vice-President or to tlie two Houses when meeting in convention to de-
cide 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 plaeed there by votes which there was no constitutional right to cast — that
there must be some mode by whicli those difficulties are to be obviated.

If there is under tlie Constitution no authority conferred upon the Vice-President,
or tipon either House acting separately, or upon the two Houses Avhen meeting in con-
vention— 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 department of the
Government, vested with authority to provide for the exigency : and when you go to the
legislative department of the Government yon find that all legislative power is vested
in the Congress of the United States, and yon 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 accom-
plished, 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
w.as doubted that it was within the province of Congress to provide for cases of this
description. The doubt was, and perhaps that doubt was well founded, wlietlier votes
could be excluded by either branch of Congress or by the two when they met in con-
vention. 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 contingency, as might
well happen because of tlie manner in which the constitutional provision was framed,
could not lie provided for by legislation. 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 Congress opens all the cer-
tificates, 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-
<lent 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 department of the Go\-ernnient or any
officer of the Government vested with power to count the votes and declare the resnlt;
and in relation to that he is only able to bring himself to state by way of opinion that
he presumes the President 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 admissible,
and of course within the power of Congress.

Now, Mr. President, the honorable member from New York — I do not understand my
friend from Wisconsiii as going to the extent of that objection — says that he denies to
Congress 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 rebellion 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 my friend from New 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, counting
them, to declare the result of the election consequent upon that count ; and it makes
no diil'erence that we know outside of tlie balloting that the result will be the same
whether those votes are counted or excluded ; the princi]ile is the same. We are not to
know, we do not ofhcially 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

PROCEEDINGS AND DEBATES IN CONGRESS. 161

■we know, a coutcsted election by the ballots, and the result of that contest may depeud
upon the counting or declining to count the votes from the rebel States. Everybody
will admit, I am sure nobody more cheerfully than the honorable member 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 auother is elected only by including 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 be-
cause 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 announce 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 some-
where, unless the Constitution of the United States vests in him the power, and ex-
clusively 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 eftbrts of those rebellions citi-
zens to take those several States out of the Union are legally imperfect ; that is to say,
in the contemplation of the Constitution they are still subject to the powers of the
Constitution, and the war is being carried on for the purpose of making 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, 18(51, all the States named in the preamlde 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 sense, but practically) out of the Union. Now, is it possible
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 En-
gland, 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 Su-
preme Court of the' United States, in consequence of being so held, to be a foi'eign coun-
try for the time. Would my honorable friend from New York have said, if the whole
State of Maine had been taken possession of by the enemy and held, that Maine, at a
presidential electi()n occurring during tlie time of that possession, could elect elector*
of President and Vice-President of the United States, and that Congress was divested
of all authority to exclude them ? I am sure he would not ; and what ditference 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 posses-
sion by force of arms, claiming to be independent of the authoritv of the United
States?

Mr. CowAX. I should like to hear the honorable Senator from Maryland speak to
this (luestiou, which is involved in the last clause of the amendment otfered 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. JoHXSOX. 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 prepared to say that I shall hereafter, wlien I come to examine the question
thoroughly, come to the same result. My own opinion has been throughout that the
States arenot 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, &c., hereafter, after the rebellion was entirely terminated,
perhaps they would be entitled to their seats ; but I am not prepared to say whether I
shall hold tliat opinion upon examination or not. All that I mean to say now is that
it is incun^bent upon us to provide by law for a contingency which ha'snow happened,
although it may never happen again, so far as the particular eftects are concerned ; and
it is now, above all, the best time to provide for it, because, although we do not know
officially that it will have the slightest effect upon the result, we do know that there
is invoU^ed in au exigency 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
future against the peril consequent upon this particular clause in the Constitution look-
ing 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 :

162 COUNTING THE ELECTORAL VOTE.

" Nor shall any vote cast by any such electors elected by the votes of the iuhabitauts
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 ac-
cording to law, we cannot recoguize a state of peace and reconciliation in any other
way but by declaring it by law, or authorizing the President to declare it by law.

Mr. HoWAno. Mr. President, I am unwilling to give a final vote upon this very im-
portant measure without expressing my views upon it. I certainly regard it as a meas-
ure of very great importance, especially as a precedent for the future, and as indicat-
ing 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 subject of the counting of the votes in the convention which is
required by the twelfth amendment of the Constitution. That provision declares 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 Eepre-
sentatives, 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 required to perform is the opening of the
certificates. That is an especial duty iutrusted 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 "presumption " of Chan-
cellor Kent, that the President of the Senate would have the right to count the votes
and declare the result. It is impossible 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
Congress, that the duty of counting the votes devolved upon the two Houses of Con-
gress thus assembled.

Why are they thus assembled ? It is a maxim that the law never requires a nugatory
act ; it never reqiiires the performance of an act which is in itself immaterial, useless,
or trifling ; and 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 Congress thus re-
quired to assemble in the same hall, sitting together, and composing, of course, one
body? Is it for the mere purpose of acting 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
proceed, 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 cere-
mony of counting the votes. Are the two Houses thus assembled to act as the mere
spectators and witnesses of the ceremony of opening the certificates by the President
of the Senate f 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 construction given to the Constitution by the Second Congress of
the United States, which j)assed the act of 1792.

Mr. Clark. I hope the Senator will permit 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 say-
ing they shall count so and so, or only so and so ? The Senator will get my point.

Mr. Howard. Yes, sir.

Mr. CoNNESS. ■ Suppose there be an objection made in the convention?

Mr. Howard. I may best answer that question by putting another. Suppose that
votes were found to be embraced in this certificate which were in reality void for fraud
or deception ; suppose they were a mere imposition upon the Vice-President, and that
the iiersons casting them were not really in existence, or that the certificate itself was
a forgery. Is there no way to prevent the counting of such forged and fraudulent
votes ? And if there be any such mode, is not thatquestion, ex vi termini, by the terms
of the Constitution referred to this convention thus assembled 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 ot such votes, and it would be in the conven-
tion ; but not in the two Houses of Cougress separately.

Mr. Howard. I am speaking of them sitting together in one and the same body.

PROCEEDINGS AND DEBATES IN CONGRESS. 163

Mr. Clark. The point I made was this : if it belongs to the convention, the two
Houses sitting togetlier, to deteriuine this (luestiou, how can it be limited or enlarged
by the two Houses sitting separately ?

Mr. Howard. Of course it cannot be limited or enlarged.

Mr. Clark. That is the point.

Mr. Howard. I consider that the power of counting the votes and of rejecting vote.s
which are void for fraud or illegality, is, under the Constitution, in the joint conven-
tion 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. The article proceeds :

" The person having the greatest number of votes for President, shall be the Presi-
dent, 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 Representa-
tives shall choose immediately, by ballot, the President."

Did my lionorable 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 witli it. It belongs exclusively to the House of Representa-
tives sitting, not in convention with the Senate, but in their own Hall as a distinct leg-
islative body.

Mr. President, I regret ver3'^ much that the Committee on the Judiciai-y 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 suliject. I do not wish to consume their
time unnecessai'ily, and will not ; but the question is in my judgment 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 anthorit ics of the States of Virginia, North Caro-
lina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas,
and Tennessee rebelled against the Government of the United States, and have contin-
ued 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, 18()4 : Therefore," «S:c.

It atfords me a little gratification, I confess, that my learned friend from Maryland
has at length found himself compelled to adoi)t the sentiment which I long since ex-
pressed upon this rtoor, that the United States, in the prosecution of this war against
the rebellion, have the same power and authority over the conf[uered 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 ditference between the two cases is this : that in the case of a conquest of a
rebel State l)y the arms of the United States the Government hold the territory thus
subdued in trust for a specific purpose, and that pur|)ose is to restore it ultimately and
in its own discretion to its original position in the Union, to the enjoyment of all the
privileges, and to the performance of all the functions pertaining to or required of a
State of the United States under the Constitution.

By the act of 1861, and the President's proclamation under that act, the eleven States
embraced in this preamble were declared to be in rebellion against the Government of
the United States, to be in insurrection. Upon the principles 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 rebellions 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. Tiiey are our enemies in every sense in which
a foreign foe would be our enemy. Have such peoi)le 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 riglat of being the enemy and at the satne time the friends of the United
States f Can they have their cake and eat their cake at the same time ? Can South
Carolina rightfully, if her peopl^were so disposed, proceed to elect electors of Presi-
dent and Vice-President of the United States and forward to this Government a certiti-
cate 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
rebellious States thus declared to be in insurrection ; 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. Col-
lamer,] peace is restored by an act of Congress revoking and annulling the proclama-
tion 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

164 COUNTING THE ELECTORAL VOTE

them those benefits ; and those benefits are conferred upon them and preserved to them
while the war shall last, by the jioints of our bayonets.

I look upon this measure as necessary, as one form in which the sense of Congress
ought to be expressed against auy hasty attempt to re-admit 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 consciously give myjvote far the re-admission, directly or indirectly, of one
of these rebellious States back into the Uuion, either by way of admitting her Senators
here or in any other form, until I ani perfectly satisfied, upon due evidence, that the
decided majority of the votiug population of such State has become loyal to the Gov-
ernment of the United States, is friendly to that Government, and willing and anxi(ras
to proceed in the discharge of the functions of a State of the Union, honestly and fairly,
a« required by the Ccmstitution of the United States.

Th» theory of our Government is dilferent from that of almost every other govern-
ment 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 system is based; and
that is a principle too often recognized by our public writers and i)ublic speakers,
too often recognized by our judicial tribunals, to need any discussion here. The mo-
ment 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 minority 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 proceed 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 principle upon which all our gov-
ernments. State and Federal, are organized to the wiuds ; we have given up the great
experiment of republican government.

Mr. President, I repeat (for I do not intend to consume the time of the Senate) that
I look upon it as the bounden duty of Congress, in every case, to keep out of the Union
every oiie of these eleven seceded States until, in pursuance of our laws, passed or to
be passed, it has become perfectly evident to us that there is in such State a clear, ab-
solute majority of its voting 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 sui-e, 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
Uuion a State a majority of whose people are hostile and unfriendly to the Govern-
ment of my country. I prefer to hold them in tutelage (for that is really the word)
cue year, five years, ten years, even twenty years, rather than run the risk of a repeti-
tion 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 Representatives. I hope that we shall
continue the language iu 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 'I Why shun the declara-
tion ? Were they not our enemies f

Mr. Sumner. 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
in Committee of the Whole. I shall call the yeas and nays ujjon 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 Eyck. 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 dilicr from him in any well-consideMd proposition that he submits to
the Senate. I understand his substitute to be basea upon the idea that under the act
of Congress 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 jiresupposes, iu 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 pro^iose to insist upon that. The main direction of the argu-
ment isj that inasmuch as the President has declared these States to be in a condition
of insurrection under an act of Congress 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

PROCEEDINGS AND DEBATES IN CONGRESS. 165

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 readin^f at large the statute of 1861, but 1 may
be permitted perhaps to refer to it for the purpose of showing the object, intent, and
scope of that enactment. It is entitled, not " An act to declare war against the States
of South Carolina, Virginia, and otliers," but " An act further to provide for the collec-
tion 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 jiower conferred upon him by the act of February 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 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 repudiiiited by the person.?
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 snj)pressed by said State
or States, then, and in such case, it may and shall be lawful for the President, by procla-
mation, to declai-e that the inhabitants of such State, or any section or part thereof,
where such insurrect-on exists" —

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 condition of hos-
tility 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 proclama-
tion declaring 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 continue."

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, un-
der which he derives the authority, and then i)roceeds to declare :

'•'Now, therefore, I, Abraham Lincoln, President of the United States, in pursuance
of an act of Congress 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 of
that part of the State of Virginia lying west of the Alleghany Mountains, and of such
other parts of that State and the other Stales hereinbefore named as may maintain a
loyal adhesion to the Union and the Constitution, or may be, from time to time, occu-
l)ied and controlled by forces of the United States engaged in the dispersion of said in-
surgents,) are in a state of insurrection against the United States, and that all com-
mercial intercourse between the same and the inhabitants thereof, with the exceptions
aforesaid, and the citizens of other States and otlier parts of the United States, is un-
lawful, and will remain unlawful until such insurrection shall cease or has been sup-
pressed."

The object, design, and intent of the act was to prohibit trade with these insurgents,
to prevent persons in the loyal jtart of the Union from carrying on commercial inter-
course with them, and for furnishing them with provisions and munitions of war with
which they might continue to prosecute this rebellion ; and then there was an excep-
tion from the scope and eiiect of the act in favor of the State of West Virginia and
such other States or parts of 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 dispersion of the insurgents.

Now, if it comes to the knowledge of the joint convention to be assembled on Wed-
nesday of next week tliat 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 govei'nnient, have re-organized a State constitution, have elected State
officers, and have put their civil government into full execution and operation, and that
fact comes before us attested and undisputed, I inciuire whether, under the provisions
of this law and the proclamation of the President, it is necessary that there should be
an act of Congress passed in order to establish the fact that these i)eoi)le have re-or-
ganized and re-assumed their ancient loyal functions ? I am as much opposed as any
other Senator can be to the admission 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, contrary
to all its ((redispositions toward rebellion, had resumed its loyal functions under the
ancient Union, and that there Avere a large body of loyal people there, sufficient for the
purpose of performing all their duties under the State government and under the Gov-

166 COUNTING THE ELECTORAL VOTE.

ernmeiit of the United States, even South Carolina, 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 expenditure of thousands of mill-
ions of dollars and of oceans of blood, was for the very purpose of restoring this Union
and bringing back these sbooting 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 re-
pudiate their heresies and return to their allegiauce, and that there was a sufficient body
of them to justify the proceeding, and to carry on all the essential, necessary opera-
tions 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 Arm determination of punishing in the most condign manner the guilty authors
and leaders and instigators of the rebellion. I do not believe 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 dependent solely
upon the wish and will of Congress.

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 drowning men struggling in
the midst of a storm, contending against their neighbors and their eflbrts to keep them
in rebellion, have seized hold of this offer or inducement held out to them by the Ex-
ecutive of ibis nation, and have proceeded in the common, legitimate, lawful, and or-
dinary mode, in the mode in accordance witli their ancient traditions, in accordance
generally with their constitutions and the lawi they had enacted in times past, to
perform all the duties which good, loyal, and true citizens should perform, to mani-
fest their devotion to the ancient Uni<m, 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 amendment yesterday from the opera-
tion of this joint resohition, considering it, from the knowledge I had of the situation
of these several States, as the strongest case that could be brought to the consuleration
of the Senate. It may not be so, but I so regard it.

I understood the Senator from Illinois t<>-day to take exception to the course pursued
by the people of Louisiana. He wished to know if it were possible th.at 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. 1 do not understaud the facts exactly as the
Senator from Illinois understands them. I will read from a paper furnished by a gen-
tleman who is familiar with these facts, and who has had something to do in attempt-
ing to set this new State government 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 candidates 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 at this election.

" 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 i)eriod 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 hun<lred and fourteen votes, taking into consideration the wast-
ing effect of war upon that people, and the fact that a large number of them had actu-
ally gone into the rebel army.

"Tl)e highest vote ever given [in these parishes] was in 1860, when the subject of
the rebellion was considered, and the people were represented by four presidential can-
didates. The vote in that year was twenty-one thousand."

So that the votes cast in the State elections of 1864 in these parishes amounted to
more than one-half the whole number of votes cast in the presidential election imme-
diately preceding when there were four candidates running, and when the question of
rebellion was being considered, and when it is fair to presume that every voter who
could be brought to the polls was brought and liis ticket deposited.

I desire now to give the statistics of the vote of the State generally for the purpose
of pritting the facts right before the Senate:

" The highest average vote of the State of Louisiana in ten years past was thirty-four
thousand.

" The highest vote ever given was about fifty-one thousand.

PROCEEDINGS AND DEBATES IN CONGRESS. 1G7

"In ten yeai's past the vote is even as low sometimes as twenty-two thonsand.

"The ordinaty vote of the city of New Orleans was six or seven thousand previous
to the revolution.

" The hijfhest 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, be-
cause 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 ho is au 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, 1 did not see fit to start that (juestion or to
discuss it, liecause 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 I 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 »
committal on the subject and to save the Senate from declaring its opinion beforehand
with respect to the eligibility of the Senators chosen by that State to occupy seats upon
this floor. The Senator from Illinois differs with me. He thinks by the passage of the
resolution that question will be avoided, that we shall not be committed upon it. I do
not think so. I do not say that that is a sufficient reason to regulate and rule the trans-
actions of this l)od3' 7 '^^^^ y^^ I think we ought not in advance to commit ourselves on
this subject. Why shall we commit ourselves on the question ? If we ])ass this reso-
lution declaring that the State of Louisiana was in such a state of rebellion during the
year 1SI)4 that no legal election could be held there, and even as late as tlie 8th of No-
vember of that year, then we declare that the Legislature of that State, elected in Feb-
ruary 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 electoial college on "Wednesday next,
on the ground that this Legislature was illegally elected, we preclude the (juestiou in
relation to the election of these Senators, because they were elected by the same Leg-
islature, in i)ursuance of a law enacted by tlicmselves, under the power conferred upon
them by the Constitution to enact a law i)roviding for the election of electors for Presi-
dent and Vice-President of the United States. So far from avoiding a decision on this
((uestion, we, by our vote, if we pass this joint resolution, ])rejudgc 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 l)e acknowl-
edged, and ratified, and carried out wlietlier the votes of these States are cast in the
electoral college or not. I should much rather prefer leaving this ([uestion 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 re])resentativesof the j)eoplein both Houses, than
to undertake to venture upon a doubtful power, claiming that the Congress, and the
Congress alone, have the power to determine this question, and at the same time settle
in a(lvance other questions which we shall be called upon to settle hereafter, and which
Senators on this floor declare it is their wish to avoid.

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 present^^'d. I do notsnjipose that States that are not rejiresented
in either House of Congress should have a representation in the electoral college.
There seems to be an improiiriety and an inconsistency in admitting their votes and
counting them; but this resolution as it is presented to lis goes on to state certain
things aliout some of these States which are so far from being true that they become
almost offensive. In the preamble of this resolution, it is .>-aid, of Arkansas, for in-
stance, 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 Kansas will allow me, those words to which he
refers have been stricken out. The amendment reported by the committee, striking
out all after the words " United States" in the preamble 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 in the first part of the preamble, to which, I
presume, the Senator from Kansas has no objection. It now reads, whereas the inhab-
itants and local authorities of the States of Virginia, North Carolina, South Carolina,
Arkansas, and others, rebelled against the Government of the United States. The
Senator does not deny that.

Mr. PoMEROY. No, sir.

11 X

168 COUNTING THE ELECTORAL VOTE.

Mr. Trumbull. The rest of the preamble is stricken ont, and a snbstitnte has been
ndopted, the very object of which was to avoid this statement upon which the Senator
is comiiientinji;.

Mr. PuMEiioY. I am very glad to learn that. I was not in myseat atthe time that
amendment was adopted. So far from the local authorities of the State of Arkansas
having 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 rebellion 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
understood that States not re|>resented in either branch of Congress would have no
right to vote at the presidential election. They returned to Arkansas and so rejjorted,
and they never had any election ; there are no votes heie from that State. They have
been in suspense awaiting the action of Congress, and while that state of things lasted,
of course they held no election. So far as this resolut ion is concerned, it does not afiect
that State one way or the other ; there are no votes to count from that State.

Ml'. COW'AX. I have but a word or two to say on this question. I suppose, as a gen-
eral proposition, all States have a right to be represented in this election of our Presi-
dent; but it a]i]»ears that there is a ditiiculty in regard to some of the States named
here. I am not sure that I know exactly the condition of this jtreamble. I understand
that Arkansas is stricken out.

Mr. TnuMHULL. No, sir.

Mr. Cowan. Do they all remain as they are here ?

Mr. Trumbull. Yes, sir.

Mr. CoWAX. And the question is on the motion of the Senator from New Jersey to
strike ont the word " Louisiana ? "'

Mr. Trumbull. Yes, sir.

Mr. CoWAX. The iJieamble states the fact of the rebellion prevailing in these States,
and the resolution declares that because of this fact stated in the preamble tliese
States ought not to vote. That is the proijosition from the committee. The amend-
ment of the honorable Senator from Veiinont, on the other hand, jiroposes to take the
(picstion in blank, and to declare that all the States which were lu'oclaimed to be in a
state of insurrection by the President oughtnot to votenntil thatinsurrectionhasbeen
declared by law to be suppressed. I am opposed to that amendment for divers reasons,
and I think if we come to examine this iiuestiou fairly we shall see that any action of
ours intended to ])revent Louisiana, for instance, and Arkansas from voting will be
perhaps a breach of faith on the part of this Covernment, 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, lHi(il, these States are
cut out from the Union ami debarred from all their luivih'ges as States, political as
well as others. I do not so read the act of July 13, lH(il ; nor do I conceive that that
was its purjiose, because in endeavoring to get at a fair construction of a law, it is
always necessary to ascertain what was the ])nrpose of the lawgiver. I apprehend, so
far from its being the])urpose of that law to ]iut these States out of the Union, it was its
intention to keep them in ; that is, it was intended to be a means to keep them in, al-
though for the pnr])ose of better achieving that end all commercial intercourse was
cut otf with them, but not political intercourse. They Avere 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
!(3, 18i)l, declared Louisiana in a state of insurrection. By the proclamation of .January
1, 18G3, he exempted thirteen parishes of the State from the operation of the emanci-
pation proclamation. 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 exist in those ])arishes.
.ind therefore he exempted them. We recognized the validity of that proclamation, I
believe; at least we have always treated it with that respect which is due to the act of
anoth" r 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
]>roi)er organization.

Now, as I understand the question here, it is simply this: in pursuance of that in-
vitation extended by the President, and upon the footing of his proclamation declaring
that those rights should be restored to them, and that they would be protected in the
exercise of them, the people of Louisiana, in numbers sufficient to bring them within

PROCEEDINGS AND DEBATES IN CONGRESS. ) 69

Hs terms, have orjjtanized a State goveminont, and have it now actually in operation
Ml the State of Louisiana. The question ssiinply is, whether we will carry out that ar-
rangement 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 l)een op-
pressed with the rebellion to go to work to re-organize their State governments, and has
))romised that he will extend, and this Government will extend, to them tlie ])rotec-
tion guaranteed by the Constitution ; and he goes so tar as to state that i»hraseof the
Constitution hi ha'v verba. Will wr 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 ditiliculty ; and this
one-tenth of the ])eople, 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 lit to ac-
cept those conditions.

I may here remark, Mr. President, that no member of the Senate has yet undertaken
to deterndne 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 corjioration, that if the otticers of the corporation refuse to do their duty, re-
fuse "to carry ont the laws of the franchise, that that does not destroy the corporation.
The corporation still remains, and a court would ai)point trustees for the piirjiose of
sustaining it, and for the purpose of c;irryiiig out the original intent with wjiich it
was created. If a portion of the jieojile of a State, say ten thousand, weie to drive
away the State otSeers, or even if the State otticers 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 government, and which exercised irs authority over them. Then if ten
thousand cannot do it, can twenty thousand, can thirty thousand, or can any number
of peojile in a State, being rebellious and disloyal, dciuive the lo;\al vt the privileges
granted to them under the Constitution ?

Those are questions which have not been set tied. Those are quest i(U)s upon which Ihavo
not heard an oi)iiaon. Can the majority of the people (d" a State destroy tiiat State f
They may derange and disorder its functions as sucli, but the moment they aie sup-
]ires'sed and jiut 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 enterprise?

I am not jjiejiared to say that these rights have all come back to these peojde in
Louisiana. I am not prepared by any means to determine tliat (luestion, simply be-
eause the Piesi<leut lias better means of asceitainiiig and determining it ; and I think
the question remains with him. It was his l)usiiiess as the aucnt, the Executive, in
fact, of tlie United States Government, to put down this rebellion, to relieve the peo-
ple from its oppression, and to restore them jirecisely to where they were when the re-
bellion found them. If that is done, in ten days after his proclamation, co iiif<tanli, tlie
people resume fheir rights and functions; and in this ca.se I understand they are not
only in ])Ossessioii of the right, but are actually in the enjoyment of it, having a regu-
larly-organized governmenV witli all the machinery necessary and proper to a. govern-
ment. Whether it is a government of so many ])eoph5 as will be enabled to maintain
its sui>reiiiacy over the whole State is a (luestion, but it is a (luestion which the Execu-
tive is to decide, because he is to sustain it there and make it able to be sui)reme within
the limits of that State; and if I understand it that is just exactly why we are now
giving him men and money, armies and navies. It is in order that lie may bring about
that desired result.

Mr. President, this involves a direct ciuiflict between the legislative and executive
bodies of this Government, and at this time I am of opinion that Ave cannot ati'ord to
enter into that conliict. We cannot artord to (luariel now, because the game wmild
not pay tor the candle. There is no practical value in the([uestion that is raised hero
at any rate, because it will not alter the result of the ]iresidential 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 (luestion, and mic upon which our peo-
ple will be likely to divide. Then why should we raise it when it is not necessary?
IJy not raising it we are left free to decide it when it shall be a material question be-
fore 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
question now. seeing that it can have no practical result, that the only possible conse-
• luenco which can follow it is to divide and distract the various departments of this
(jovernment. I am unwilling to do that. I am willing at the present time to submit
to anything that is not materially fatal. I am unwilling to raise any question which
does not cross our path distinctly and in front of us while this war is jiending, be-
cause—I have my owu notions about that— it is war, and I would devote the whole

170 COUNTING THE ELECTORAL VOTE.

energies 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 tliat all the
questions may he futile even if they are decided.

Mr. Davis. I believe the honorable Senator from Pennsjdvania is about through,
and with his permission I will occupy the floor for a few minutes. [Laughter.]

Mr. CoWAX. Very well.

Mr. POMEROY. I desire

Mr. Cowan. O, I hope the Senator from Kentucky will be allowed to make a speech.
I shall be exceedingly sorry to see him prevented from enjoying that rare privilege.
[Laughter.]

Mr. PoMKROY. I merely wish to make a single 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 modihcatiou 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, tlie 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 Oflicer 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 maybe performed? I think that they have. The
clause in the Constitution read flrst by the Senator from New Hampshire and subse-
quently by other Senators, seems to me to confer full and plenary power in relation to
the manner of counting 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 Congress or by a joint resolution ])ass('d previously for
the purpose of convenience and to prevent disorihn- in the matter of counting the vote.
The vote is to be counted in the presence of the two Houses, and would it not be com-
petent for Congress to pass a law directing that as the certiticates are opened by the
Presiding Officer of the Scuiate 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.
Wliatever vote is counted in that election decides tlie question of the election to the
Presidency. Who is to perform that office of counting the vote ? I maintain that it
is to be done by the two Houses or in tlie presence of anduuder the supervision of the
two Houses. The question now is whether the two Houses in their l('gislati\'e capac-
ity may lay down certain principles and regulations to prevent disorder and confusion
in the act of counting the presidential votes ? I think they may.

Where the Constitution directs an act to be done it invests all needful power to en-
able 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 ex-
ecuted under the Constitution. A general provision of the Constitution provides that
Congress may jiass all laws necessary and proper to carry into execution any power
vested by the Constitution in the Government of the United States or in any of the
departments or officers thereof. This power to count the presidential votes is cer-
tainly vested by the Constitution somewhere. It is vested in the two Hcmses. The
manner in which the count shall be made is not prescribed 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.

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 Constitu-

PROCEEDINGS AND DEBATES IN CONGRESS. 171

tion declares that no man sball be eligible to the office of President unless he be a
native-born citizen or a citizen of the United States at the adoption of the Constitu-
tion. Snjipose the State of Louisiana bad voted for a man who did not come up to
that qualilication, 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, wonl d 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 conllict with the
spirit and the letter of the Constitution ? It certainly would. Tlie vote nnist be
counted. How can it be counted until it is ascertained ? The vote must be identified.
It mnst be identified and ascertained in obedience to certain principles of the Consti-
tntiou. One of those principles is tliat tlie candidate voted for must be thirt y-five
years of a<;e ; another is that he must h.ive 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 opposition to these plain and palpable ])rovisions of the Constitution would be
null and void ; it would not be a vote for President in conformity 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, mnst 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 whetlier such votes have
been given or not, before they can make a constitutional count of the votes.

Now, sir, as I understand tlie etiect of this joint resolution, it is simply in a form to
do that duty ; that is, to ascertain whether the vote of certain States has been cast in
conformity to tlie Constitntion or not, and deciding that they have not been cast in
c<mforniity 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 ui)on what ground. The vote of the State is illegal. If I assume that it
is illegal on one reastui, and the Senator from Michigan [Mr. Howard] assumes that
it is illegal upon another reason, I shall not dispute with him about the grounds that
brought him to tlie conclusion to exclude the vote of Louisiana, but I will agree that
lie shall vote to exclude it upon his reason and I will vote to exclude it uixni mine.

But, sir, /hei)osition I intended to state and upon which I rely, is sim])ly this: that
Congress, for the convenience of the two bodies when they are in convention, and to
prevent disorder and confusion at thetime and i)lace of counting the presidential votes,
may previously by joint resolution declare certain princii>les upon whiili that count
shall take place; that the resolution now under consideration simply does that, and
therefore it becomes legitimately and properly within the exercise of an incidental
power of Congress to pass such laws as shall be necessary and ])r()perto enable any ex-
pressly granted ])<)wer in the instrument to be executed ; and it is simply for thatpur-
jtosetiiat tliis resolution was ottered, and it ought to ])ass.

Mr. Powell. I am opposed to the amendment of the honorable Senator from New
.Tersey to strike out "Louisiana" from the preamble, audi am also opposed to the
substitute olfercd by the honorable Senator from Vermont to the resolution reported by
the Committee on the Judiciary. The Senator from New Jersey yesterday, speaking of
ivouisiana, referred to a statement made by General Banks before the Judiciary Com-
mittee, in which he declared that the recent election in that State were conducted
without any interference from tlie 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 w.as 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 prob-
ably of any other State of the Union."

I'do not concur with General Banks in that statement, and the paper in which it is
contained entirely overthrows the position taken by General Banks about the non-in-
terference of the military authorities with the election in the State of Louisiana.
General Banks in this paper tells you that the military authorities prescribed the quali-
fications of voters in that State ; that they allowed persons to vote who were discjuali-
fied from voting by the constitution and laws of the State of Louisiana. Under the
constitntion and Ijiws of Louisiana persons in the Army and Navy are not legal voters.
General Banks tells you that he modified that provision and allowed those persons 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 prescribed 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 Con-
gress passed on the subject of slavery, but all the proclamations issued by tlie Presi-
dent on that subject or that he may hereafter issue. That was a condition-precedent

172 COUNTING THE ELECTORAL VOTE.

to anybody being qnalifiecl as a voter at tliese elections in Louisiana. Althongli tliese
facts all appear in tins very statement of General Banks he conies 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
Banlvs thiniv for a moment that the members of this body were &o grossly Ignorant of
public attairs as not to know that his statement was incorrect ?

I ask you, sir, wliat greater interference tliere could be by the governmental authorities
witli tli(^ eb-ctiuns ot a State than to prescribe (puilitications of voters ditterent from
those prescribed in tlie constitution and laws of the State? Will General Banks tell me
that HI any State of the Union (except in some parts of Kentucky, wheie tlie military
authorities did pretend to prescribe tlie qualitication of voters) the autliorities of this
Government have the power to prescribe those qualitications ? Has it been done in
any of the adhering States save in some localities in tlie border States ? Has the Gov-
ernment of the United States, by any or all of its departments, presumed to iirescribe
the (lualifications of a voter in the State of New Jersey, or the State of New York, or
the State of Oliio ? No, sir. And yet General Banks tells you in this paper, which is
relied upou by the Senator from New Jersey, that there was no governmental interfer-
euce witli tlie 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 tire very jiaper
tliJit he submits clearly and palpabl,y stani})s the statement as erroneous.

I am ojiposed to admitting on this floor persons who are elected under the bayonet
influence in any way whatever. I very well know that there was no free expression
of the jieople of Louisiana, in these elections. I know that they but obeyed the be-
hests of the military, w hatever commanders may say about it. General Banks tells
you in tiiis very statement that the military autJjorities there undertook to alter the
constitution and laws of the State of Louisiana, and by military i)roclaraatioiis and
orders to jtrescribe the qualifications of voters. Does any nuui tell rue that an election
held under such circumstances is a free election ? No, sir. My friend from Ohio [Mr.
Wade] siiys it is a farce, and but for its tragical resnltsupon republican liberty it would
be the greatest of farces. Itseflect upou the liberty of the people, and upouevery prin-
ciple of self-government, and every ])riiicip]e of republican government, is most tragic
and disastrous. While I hold a seat here or have a voice anywhere, never with my con-
sent 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 tight the
armed enemies of the country, and let the peo])le in their civil capacity go forward,
and, uninfluenced by anything else than their own good judgments, vote as they please.
Let tlie constituted authorities of the States prescribe, as they have a right to do, the
(lualifications of their voters and oftheir candidates for office. Whenever you depart
from that principle, you stab in the most vital part our system of government, you
overthrow the representative republican system, and you establish on its ruins a mil-
itary 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 resoluticm before the Senate. There is in his amendment a power given to the
President of the l-nited States which would enable hitn, if he had almost any strength,
to re-elect himself. That anieudnient declares that the vote of any State which ma\'
have been declared to be in rebelli(m by the proclamation of the President made in
pursuance of the act of July i:^, 1H61, shall not be counted. Now suppose — I will
merely suppose the case tor illustration — that at the next presidential election Mr.
Lincoln should be again a candidate; and suppose on a general survey of the political
held he should find that it was necessary that the votes of New York and Ohio, for
instance, should be ext-luded iu order to secure his re-election ; and then suppose that
in order to prevent their votes from being counted, which if counted woubl 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 ? Ac-
cordiiig to the amendment, their votes could not be counted, and that would insure
his re-election. It is a power which I will never by any vote of mine clothe the Ex-
ecutive with.

For the reasons which I have thus briefly stated, 1 cannot support either the amend-
ment ottered by the Senator from New Jersey, or that ottered by the Senator from Ver-
mont, but prefer to adhere to the resolution as it came from the Committee on the Ju-
diciary.

I believe that the States in revolt are still States of the Union. I believe they are
not out of the Union. I believe, furthermore, that when they choose to lay down their
arms, and to elect officers of their State governmeuts who acknowledge this Govern-
ment, 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 permit-
ted 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
resistance to the Government iu any State has sufficieutly ceased to entitle it to repre-

PROCEEDINGS AND DEBATES IN CONGRESS. 173

scntation lieres, and hence it is tliat each case must staiul upon its own merits as it is
presented here. For myself, I woukl 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, nnawed by the military power, niiintlnenced 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, whenever
they manifest such disposition to return, a majority of the people vill 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 themselves were elected by the free sntt'rages of those people, uuawed by the
military or any other i)ower.

Mr. (JowAX. Allow me to ask the honorable Senator what he would do if a majority
of the people of a State were to establish a monarchy ?

Mr. Powell. The Constitution guarantees 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 lieip the minority to preserve a republican form of gov-
ernment and control tlie monarchical majority?

Mr. PowKLL. I think it is the <luty of the United States, under the Constitution, to
see that every State has a republican form of governmont, and I would always do ray
duty as I understood it. But, sir, the question which the Senator ])uts is not one that
has anything to do with the subject which I am discussing. I am speaking of facts as
they are. I say, believing that these States are States in the Union, that they are not
out of the ITnion; whenever a majority of the peo))le in either one of these States shall
of their own free will cease to resist the aullioiities .and Government of the United
States, and shall elect of theirown free will Senators and Representatives to Congress,
I will only inquire as to the fact wlietiun-they have ceased their resistance and whether
a majority of the people have dt^termined to be loyal to the Constitution and Govern-
ment of the United States ; and that fact being establislied so as to leave no doubt upcm
my mind, I would then be ready to admit their Representatives as our e(]uals here.
That is my notion of the matter, and I believe the i)roposition presented from the
Judiciary Counnittee is about the best we can pass luider the circumstances. It does
not preclude us hereafter from deciding upon any of tlu; (luestious which have been in-
cidentally alluded to in debate. I supported the resolution in committee and I shall
vote for it here.

Mr. CowAX. The inquiry wliich I put to the Senator from Kentucky I think is one
which reaches to the very marrow of this ([uestion. 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 tlie other portion, say a majority, refuse, and insist upon secession.
We ate bound by the Constitution to preserve the Union and to preserve the rights of
the i>eople nndei- 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 i)eople, however small. What are
we to do ? A minority of the people come forward and say. " If you aid us for awhile
we can preserve this State and keep her in the Union." " But no," according to the
doctrine advanced here, ''there must l)e a majority of you before we can recognize you
as in tlie Union." Suppose they answer you, "The majority, by persisting in abandon-
ing the Union, can destroy forever the State and deprive us of our rights which were
guaranteed to us as a portion of tiie people of the State."

A i)ortion of the people of Louisiana come here and say. "We are loyal, we owe you
allegiance, we have a State government organized and in operation, and if yon will
aid and assist us we will keep it in oi-ganization and operation, and we will control
and domiuate 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
peo])le to reason, and it presumes another thing that never was true, that the peoi)le,
the masses of a country under circumstances like those which surround us, ever were
in rebellion. The masses of the people even in the Southern States never were in re-
l)ellion 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 leadei's, and the
masses are deluded away by falsehoods industriously circulated everywhere aiul in-
flammatory six'echcs made. It is impossible for them to get back unless we create
some such scali'ulding in the rebel States as these go^'ernments of Ai'kansas and L(Hii-
siaua will furnish. We ought to cultivate 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

174 COUNTING THE ELECTORAL VOTE.

wait without any State government, that we submit to this military rule antl dictation,
which is so much deprecated, until we can convert more than a majority of the peoijle
so 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 Seuatorfrom Kentucky, [Mr. Davis.] This question, I take
it, is here xirematnrcly. It onght not to be here at this ])resent time. It is not legiti-
mately raised now. it can only be raised, I take it, in the joint convention which will
meet on next Wednesday for the jiurpose of counting these votes. The Constitution
provides that the Presidentof the Senate shall, in the presence of the Senate and House
of Representatives, open all the certificates, and tiie votes shall then be counted, not
by the Vice-President, lor that does not follow, but shall be counted by that body
there assembled in joint convention. Arc we to undertake to decide beforehand 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 governors have returned them. We cannot
tell whether you have received them by mail or received tiiem 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. We cannot tell anything about that.
Then why raise the question?

Mr. SHEiniAN. 1 should like to trespass on the good nature of my friendfrom Pennsyl-
vania to ask him a question. As I saw an experiment of this kind once tried, I should like
to ask him, if this power of ours caii only be exercised after we have formed a joint con-
vention, what rules would regulate the conduct of that joint convention? I will tell
him a littlecirciinistance which occurred eight yearsago, when a somewhat distinguished
individual of his own State was elected Presiilent 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 Virginia, the arch-traitor,
at their head. He took his seat as President of the Seuiite by the side of Mr. Speaker
Banks. A question arose as to the vote of the State of Wisconsin. On account 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, com-
menced. ]Mr. Huniplirey Marshall wanted to make a speech and addressed •' Mr. I'res-
ident." Mr. Mason refused to recognize him, but Mr. Banks recognized him ; they were
both sitting side by side. Then some Senators wanted to say scmiethiug, and in five
minutes we were in such complete confusion that Mr. Mason left his place at the Speak-
er's desk, went out, some of the Senators followiiig 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 p'>rhai)s next week if we leave this ques-
tion open. As I hai)pened to be iireseut at that scene and saw it, I want to guard
against its I'ecnrrence.

Can the Senator tell me by what rules the joint convention is to be governed; how
they shall vote, whether ^>er 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 Representatives? because if the rules of the Senate prevail in the joint con-
vention, we never could get through until a. second President was elected. Surely
that would he 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 instance I put, when Mr. Humphrey
Marshall proposed to speak and the I^resident of the Senate would not recognize him,
and would not lecognize a Senator, and the Speaker of the House did recognize Mr.
Hum])hrey Marshall; and the consequence was we got into disorder and confusion, and
the joint convention broke up. It was one of the most ridiculous sjiectacles I have ever
seen in a legislative body, and I hope never to see another such.

Mr. CowAX. I am only to take the Constitution as I find it written; and it is no
argument to me that a general law has not been made by which to regulate the pro-
ceedings of ihis joint convention, if such a one is necessary. Perhaps the legislative
department in this case has not deemed it necessary that there should be a general law
to regnhite the action of t hat convention when it was in session. Yet they are perfectly
compfetent to nuike it. Perhaps they could not forsee that it would behave 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 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 Repre-
sentatives shall he adopted for its governance. If the disorder spoken of did occur,

PROCEEDINGS AND DEBATES IN CONGRESS. 175

why did it occur ? It did not occur because it was improper to clothe that body with
that power, bat it occurred because it was casus omissus, 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 tlie questitm as to what
votes shall be counted, I take to be indisputable from this provision of the Constitution.
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 usur[)ing- 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 or shall not 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
jjresent only as witnesses, idle spectators of a scene iu 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, magniticent 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 iu some capacity in which they have power and
authority to determine such questions as nmy arise while the counting, is going on ? I
take it they have the authority, and that if they did not adopt rules for their govern-
ance, if they did not appoint a President, if they only went there loosely as a mob, a
herd of men witliout organization, they could not expect to adjourn iu anything less
than the row which resulted upon that occasion.

I have only to repeat that I think this question is premature, that it is here improp-
erly, and that nothing but mischief will come of it if we entertain it in this shape;
that, no matter what we do with it, it will have no jn-actical bearing upon the great
end for wiiich the whole of this machinery was created, that is, the election of a Pres-
ident and Viee-J'resident. That election will not be influenced a hair's breadth one
way or the other by our determination, no matter what we may do, and, as to the mis-
chief of this thing, the mischief is just as much on one side as the other. If the Pres-
ident may fabricate fictitious States in order to give him votes, so, if we have the au-
thority ti) declare who shall and who shall not vote, we may destroy actual and loyal
States in order to carry out our party pur])oses. I hope neither of these propositions
Avill pass.

Mr. Wadk. Mr. President, about a year ago Congress, anticipating that such ques-
tions as this might arise, in my judgment very wisely framed a law and passed it through
both branches \vith the hope of settling this matter in advance. That law was made
upon great deliberation iu both bodies of Congress; it received a very large vote in
each House. It was very pnqier in n)y judgment that Congress should hx the matter
then, because everybody fonld anticipate that a ((Uestion of the mest serious danger
to the Republic might arise iu the then approaching presidential election which might
endanger the stability of our Union, and which miglit under certain circumstances pre-
cipitate these Northern States into a civil war. Api>vehendiug that such a ([uestion
might arise, Congress wisely, iu my judgment, provided against it, but the President
did not agree with tliem, and he vetoed thi'ir bill, leaving the question open with all
its dangers, which, tliank Cod, have not arisen.

What would be our condition now, if iu 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 recognized as part and parcel of the present Goverument ? 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 occasiiui to which my colleague has alluded. I saw
even there, when we were in joint conventicm and there was an irregularity 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 nuin present there who did not fear that even then that technicality, which
would not atfect the result whichever way it was decided, might lead to the setting up
of pretensions which were dangerous to the stability of the Government.

Now, sir, it is time that wesho'nld settle the question by somelegislation that will reach
the whole subject. In my judgment, the proposition of the Senator from Vermont is
the wisest, the most far-reaching, and the best adapted to settle the controversy for
the present 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 Pres-
ident because

Mr. Johnson and others. It was not vetoed.

Mr. Wauk. 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. Ho put the bill iu his pocket.

Mr. .Johnson. If he had vetoed it, it might have been passed over his head.

Mr. Wade. We might or might not have passed it over the veto. The President
prevented our nnikiug it a law, and he did so constitutionally. He did not transcend,
iu that respect, the powers which the Constitution vested iu him. We passed the bill

176 COUNTING THE ELECTORAL VOTE.

less than ten days before the session expired, and tlicrefore be bad a perfect right to
•withoUl his assent from it, and give ns no reasons for so doing. He chose to do that,
and, as I suppose, he did it in defense of the proclamation whicli be had put forth,
declaring that whenever a tenth part of the people of a State would come back he
would recognize (hem as the State and as part and parcel of this Government— a
propositionwhieh, with all my respect fm- the Chief Magistrate, I am bound to say is
the most absurd and imi)racticable that ever haunted the imagination of a statesman.
A man imbued with republican principles must know that the foundation of all free
goverinnent depends up(Ui the elective franchise. The ingenuity of man has failed to
devise any other way wliereby people can govern themselves except submission for the
time being to the will of the majority, constitutionally and legally expressed. If yoxi
cut loose from that principle yon Jiave 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 princi])le 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 contentidus, the most anarchical, the most dangerous pn)position that was ever
put forth for the government of a free people.

What, sir, one-tenth i)art of the people of a State govern the rest ? The thing is impos-
sible, imjtratticablc ; it cannot bis doiu\ Take away ytmr military power from those
States, withdraw your Army, and lea vet be one-tenth to govern the remaining nine-tenths
in the State, and where would they be, ? Thercsult would he to saeiitiee every Union man
in the Southern 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? 1 had a conversation with the now Vice-President-elect of the United
States on that subject and witli 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 appn^hen-
sion that if this principle should [uevail they would be annihilated by the nine-tenths.

Can auy 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 <lestinies of all the rot of
that State? If you have by military authority within the lines of your encampment
a great city or a portiim of a State where there is a population, is it very ditbcnlt for
the President or for the cmnnianding oflicers there to gc^t up all the paraphernalia of
a State upon a ten-acre piece of huul'/ When you have done that, and under thesliad-
ows of your armies atteni[)t to elect all the magistrates and all the officers necessaiy to
perfect the machinery of your government and put it in o])eration, can you be so blind
as to stippose that when you have by military power, for it is nothing else, clothed
these men with antliority to govern, it is a republican government? Sir, it is just as
much a military government as it was before you went through the farce of selecting
those officers. There is your military governor ; has be ever been withdrawn from
Louisiana; or if another governor has been substituted, by whom was be substituted?
By the Commander-in-Chief of all the armies of the United States. When the man-
date went forth from the President to Mr. Hahn, "Be governor of that State," ho did
not consult the Senate, he did not consult anybody in particular; but the mandate
issued from the Pi-esident of the United States unaided, unknown, unconnseled by any-
body, "Mr. TIahn, be governor of that State, call a convention, declare what youf
status shall be in the Kepnblic, elect your representatives, organize in form the shadow
of a State governnn^nt, and you shall be a State government." They could make out
the semblance, but it lacks all the reality of a government, because it does not repre-
sent the will of the i)eople, 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 rebellious people who are determined that
they will not submit to the laws and authority of the General Government, if the ma-
jority 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 Senatiu' 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 readest thon ;" is there any
principle of free government that has decided that anything less than a majority of
the ])eople of a State, or of the voters of a State, can govern its destinies ? I mean upon
republican, democratic principles. I s])eak not of the farce of a civil government over-
shadowed by a military governor, a wheel within a wheel, a military governcn- domi-
nating your whole political community, and inside of that and uiuler it and snlxudi-
nate to it, a civil government pretending to be a free government ! I say it is a farce ;
it is unworthy of the American Semite 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 goAcrnment, yon can have nothing but the shadow and semblance of one, until
the majority of the ])eople 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 wouhl be its condition ? Have you any evidence as tc rthat that peojde would
do to-morrow if you withdrew all your military force froui there? Have they voted,
have they given any evidence to show that they are loyal to the Government of the

PROCEEDINGS AND DEBATES IN CONGRESS. 177

United States ? Not a lisp of it, not a word of it. More than fonr-fiftlis of the terri-
tory of tliat State now is trampled down beneath the feet ef military power, just where
it oiii>ht to be for its rebellion, and you dare not withdraw yonr armies from there ;
and yet you talk of free republican State government there ! Sir, you cannot have it.
Mr. DooLini.E. If the Senator will allow me, I sbould like to ask liini a (piestion on
tbat point. Me scemsto think the presence of an army is opposed to all free jiovernment.
Wliere would the Senate and House of llepresentarives be if you withdrew tlie Army of
the Potomac ? Where would they have been any time these last three years "? Is there
no army bcr(^ '!

Mr. Waok. We have not, thank God, been captured yet. This capital lias not been
overrun yet by tlie enemy. If if bad been, and Mr. Davis's army were ]iredomiin»ting
in this capital. I think our legislation would lie a. mere sham. Docs the jiciitlemau
suppose that our le.i;isl;ition would be endured. ]irovided the armies of ]Mr. Davis pre-
dominated in the ciipital ? That would l»e like Louisiana now beneath the feet of the
Federal Governnu'nt. They cannot act freely. That is what I contend for. Neither
could we if we were in like condition, and if we pretended to be a free))eople it would be
the merest mockery and farce. These armies s<nnehow must be got rid of before legis-
lation can take ]»lace. Where armies are the law is silent.

But I do not wisii to argue this (|uestion ; I have argued it; the Senate ami House of
Representatives have argued it, and we have sent forth our will on this subject. I ani
astonislu'd to hml now any considerabk' ditl'ercnce of opinion in a body that so unani-
mously 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 ettbrt in
Louisia-ia to get uji a delegation, and they have come here. How mucli of the State do
they claim to ie)iresent? How much of it was iih\e to hold a free election ? Can you
really claim that that portion of it was free even where your Army was? The Senator
from' Keutiud^y [Mr. Fowkll] has already told you that you did not govern according
to the hiws of that State ; you did not even found the basis of your government upon
the laws of the (State, but your military authorities regulated the elective franchise
there. Is there any freedom in that f No, sir.

I make these observations because I am exceedingly jealous of military jiower, and I
never will c(Hisent that a peopk' ))redoniinated over by a hostile military jiower shall
found an American republican State. They cannot do it. To do it they must b(^ 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 doomsday; but every man
imbued with American principles of democracy knows it is a falsehood, a mere sem-
blance, and ii()t a fact.

We are asked if the loyal men in the State ouu,ht not to govern it, whatever their
numbers may be. I know it is very unfortunate? for a man to locate himself in a com-
munity 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 misfor-
tune thlit he has fallen into such a den of thieves. Statesmen ])roceeding 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 of
men who outvote him, who (h'claie that the (Jovernment under which he has lived is all
wrong. Ihev have declared war against the old Government. He may not concur
with them, but if they outvote him and outlight him, and establish another govern-
ment, what remedy iiave you but that of force ? You cannot select him out and iirotect
him. If he cannot'live there he must makehis way asbest hecan out of thecommunity,
and yim cannot make laws to reach his individual case when there is a majority of his
ueiglibors against him. How can yon prosecute a man for treason there?

How can a man who is injured in that State because he is a loyal man, a man who
is trespassed upon, whose person is violale(l by those who are in llagrant 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 con-
tend that because there are a few Union men scattered through these communities 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 niaj(uity of the people where I live and from which I ccmie — provided the sup-
position ('an be entertained for a moment— or a controlling 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
imprisonment or death, and I, standing by the old Constitution, should be amenalde to
this vile law of theirs. Could you rescue me? Could you say that there v,as a good
government there? Could I appeal to the courts administered by traitors and get my
rights there as a Union man ? The thing is impossible. Why do you struggle to main-
tain inipossil)ilities?

Sir, these States must remain under military dominion, but I hope with all theequi-

178 COUNTING THE ELECTORAL VOTE.

ties tliat can be extended to a people thus nnfoitnnate, until such time as they mani-
fest to the people of 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 nmintain a loyal State government, because
we knew of no rule except that of proceeding liy majorities, and therefore we pro-
vided in the bill that whenever the provisional governor believed there was such a
majority, it should be his duty to appoint commissioners to take a census of the State
and ascertain the number of the peojile; and if there was a majority who were willing
and anxious to submit to the General Government, a convention should be called and
should be invested with immediate power to frame a government upon democratic
principles in their own way. That is the just and equitable bill which the President
vetoeil in order to vindicate his anarchical principle of 10 per cent, of loyalty.

This res(dution, if amended as proposed by the Senator from Vermont, meets my ap-
probation more fully than any proposition which has been otfered, and therefore 1 shall
vote for it. Gentlemen have spoken of South Carolina, and said they cannot recognize
her now, and they would not count her votes. I think the Senator from Pennsylvania
said he would not ctmnt the votes of South Carolina if she sent them here. AVhy not ?
What is the ditference between this case and that of South Carolina ? Can anybody
tell me ? There is territory enough under the flag of the United States in South Cnr-
olina to get up a State Legislature just as good as that of Louisiana. We have nearly
as much of South Carolina under ihe dominion of our Hag as there is of Louisiana.
Why then reject the one and admit the other 1 They both stand upon like jjrinciples.
If you only measure by acres what dominion we have, what difference is there ?

in my judgment, the only sensible plan is to leave these communities unlil in some
way we can have at least reaso;iabk' evidence to show that a ninjoiitv of them are
loyal and in a condition to maintain a free republican governmentof thcirown. Then
I slmll be the first man to re-invest them with the jjower. Let them have it so. No-
body regrets more than I do that any State of this Union has placed herself in a con-
dition where we cannot trust her with the jiower to govern herself. I wish to God wc
could. Whenever it can be done I shall be the very first man to claim, as I have always
<daimed, that the i)eople shall govern themselves, wherever they can do it; nor will I
yield to military despotism or to outside domination and]n-essure, getting \\\^ the sem-
blance of a l>('gislature and callii;g it a fact. It is not a fact, ami your legislative ac-
tion cannot make it so. I thank Goil that in tlie last i)residential election we were
strong enough to carry onr principles through, so as not to involve 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 President of the United
States cannot in times of civil war, wherever he happens to have an army in a State,
improvise by military f(uce a Legislature, and call it the power of a State in such sort
as to count that semi)lance in his favcu- as a fact. If it were attempted I know for one
that I would not put up with it. I ask any Union nmn on this floor, suppose the States
which now claim to be represented here bad chosen electors in favor of General McClel-
lau, 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 Avonld.
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, "Tliese connnunities were inqirovised ;
these powers were conferred on them by the military powerof the United States; they
do not represent the peoi)le, 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 opposition.

Mr. Wade. .Inst 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 Presidency, 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 have had the position, and that would be the feeling of every Sena-
tor 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
have yielded to such 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 Govern-
ment, to select a President for ns. I say they have declared war against the General
Government and they have never revoked that declaration of war, for 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 tliat fact is. Have the people that claim to be repre-
sented in this body as a State by any vote repealed their act of secessi(m and war?
Are gentlemen here contending that men in flagrant war against the United States
shallsend a delegation here to represent them? Is that so? If nobody can answer
my question I will apply to the case a well-known principle of law. The last we heard

PROCEEDINGS AND DEBATES IN CONGRESS. 179

from them was that tlicy had (leclarcd themselves out of the Union, and in flagrant
war with the Union, and if nobody can show the contrary, that state of tliinj^s exists
to-day, for whoever contends that a state of thin<;s once proved to exist has been
changed must submit to the fact that it exists now, unless he produces i)roof to the
contrary.

Mr. HuxDERSON. 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 ordinance repealing the ordinance of secession. By stating that fact I am not at-
tempting to confute the argument of the Senatm-, but I merely state the fact as a fact.

My recollection is that all three of them have done so.

Mr. Wadk. I do not know whether it is so or not, but it is a mere sham if they have
done so. They miglit as well have done that as any other part of this business, be-
cause all that was done was done by such voters as your military power prescribed,
ami they would have voted precisely as they were wanted to vote, whether 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 tliey are here by the assent of a majority of that people fairly exjiressed. 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 eijual terms with me, who claim to be
here by the voice of a nnijority ot the State to which I belong. I will have no such
company if I can help it, nor shall they ever be reco<j;nized by me. Sir, this great
question should be settled now and forever before we meet in joint couveutiou.

Mr. DooLiTTLK and Mr. Wuiciir sought the tloor.

The YicK-riiKsiDKNT. The Chair will award the floor to the Senator from New
Jersey, l)otli he and tlie Senator from ^Visconsin rising at the same time, and the Sen-
ator fiom Wisconsin having already sjtoken upon the (juestion.

Mr. Wi;i(iHT. I move that the Senate do now adjourn.

Mr. TuuMiJUix. I ask the Senator from New Jersey to withdraw his motion for a
moment to allow me to say one word.

Mr. Witicur. Certainly.

Mr. TurMUULL. I trust that w^e shall not now ailjourn. This question ought to be
settled. Ia'.I us sit here and dispose of it. If gentlemen wish to make remarks let \is
go on until we i-tin g(^t a vote. I think we had better hold on. I hope the Senator
will not ])eisist in his motion.

Mr. WitKJiiT. I renew the motion to adjourn.

Mr. Tui'MnrLi. called for the yeas and nays, and they were ordered; and being
taken, resulted — yeas 10, nays 25; as follows:

Ye.\.s— Messrs. Anthony, Chandler, Dixon, Doolittle, Grimes, Harlan, Harris. Hen-
derson, Hendricks, Howard, Howe, Nesmith, IVnnerov, Ramsey, Sumner, and Wright
— 16.

Nays — Messrs. Buckalew, Clark, Collamer, Conness, Cowan, Davis, Farwell, Foster,
.Johnson, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Powell, Sherman,
Sprague, Stewart, Ten Eyck, Trumbull, Van Winkle, Wade, Wilkinson, Willey, and
Wilson — '25.

Ar.sKNT— Messrs. Brown, Carlile, Foot, Hale, Harding, Hicks, McDougall, Richard-
son, Riddle, and Saulsbury — 11'.

So the Senate refused to adjourn.

Mr. CoWAX. The honorable Senator from Ohio is mistaken when ho supposes that
I said I would not count the vote oC South Carolina in the coming convention.

Mr. Wadio. Some gentlemen on that side of the question said so; I thought it was
the Senator from Pennsylvania.

Mr. CoWAX. It is not very material ; I merely wished the correction to be made. I
have only to say that if South Carolina was in tiie condition of Louisiana and Arkan-
sas, if her cai)ital, as I hope it will be shortly, was in the possessi(ui 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 ))roclamation in the flrst 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 stipulations 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 nu?u are to gather, an<l clothed with the au-
thority which is so potent among men, and which is so well calculated to bring them
to any co-operation, I think thej' ought to be encouraged, and encouraged by all means.

Mr. Wade. Will the Senator i^ermit me to ask him a question ?

180 COUNTING THE ELECTORAL VOTE.

Mr. Cowan. Certainly.

Mr. Wade. The Senator says lie would permit one-tenth of the people to fforern
the State. Now 1 want to kuow ot the Senator what protection tiiat one-tenth will
have when you withdraw all external i)ower t'nmi tliem, and leave them to themselves ?
What chance will they have with the nitie-tenth^opposed to them 1

Mr. Cowan. That is the very question that we must now meet. It is the question
now whether we will maintain State governments there in conuecticni with the Union
or whether we will treat these people as a eonqueied people, as conquered provinces;
whether we will assume the task of <;()verniii<^ them entirely or whether we will do
that which the President is endeavor! n;i^ to do now. I am very free to say that I am
in favor of his i)lan ; I very much jirelVr it; and I have no doubt that tlu' one-tenth of
the people of a State organized with tht^ reiiis of State goverument in their hands, the
means of enforcing its authority, aided hy the General Governmeut, will finally bring
back all these States to obedience, allegiance. I have no doubt about it. liut repulse
this one-tenth, rejiulse the loyal people of the States who are endeavoring to bring them
back, drive them away iut(j rebellion, what then ? If you have not the one-tenth, you
have nothing. If you have not these people 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 endeavor to establish
themselves in such form that the Union may be restored? To state the question, in
uiy 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, Imt they repi-eseiit the loyal people,
and it is the loyal peojile of these States lor whom we have made this tremendous
struggle. Is there a Senator on this lloor who would have embarked on this war if
it were not to rescue the loyal people of these States from the usurpation which op-
pressed them ? Certainly not. What right should we have had to do so 1 If the
wlnde of this people had gone away into secession, what right should we have had to
restrain and contr(d them ?

We began with the belief that this was a conspiracy on thtf part of a few to lead
away the masses, and that the masses, solar as they had an oppoitunity of expressing
their preferences and giving their opinions by their votes, were loyal, and it was a
contrivance and consi)iracy that led them away into rc^bellion ; and now, when that is
broken u]), wheu they are willing to come back, I am willing to receive them as they
couie, and I am not disposed to cavil upon the ninth ])art of a hair as to whether they
constitutti a majority or not. It is enough for me to know that they are loyal people
and that they desire the restoration of tht' Union ; they desire to be reunited to the great
body-politic as members, part and i)arcel of it ; and if they represent the loyal people,
it is enough.

Mr. Shi;i;max. 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 lixing the duty on i)rinting-paper
and the legislative, executive, and jndiciil appropriation bill to be now taken up and
made the special oider for to-morrow at. one o'clock.

Mr. WiLSOX. Let us vote on this (iiiesti<m.

Mr. SiiKKMAX. 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 ni ordin-.iry legislative Inisiuess. I am
Avilling to have it go over and oceui)y the inoriiing hour t<»-uiorrow, but I want an
arranginient made by which the bills that I have icferrcd to may be considered.

Mr. TuUMBULL. I cannot consent, to the [)roposition of the Senator from Ohio that
this rcsolutn)n shall go over and occupy the morning hour to-nu)rrow. Every ])erson
who has spoken cm 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 appointcilto
devisee the mode of canvassing the votes for President and Vice-President on Wednes-
day next, the tinu' lixed by law for that canvass. That committee cannot act very well
while this proposition is pending; and if they do act they will have to report some
way to canvass the votes, and then this difliculty will be upon us dgain. 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 adoi)ted,
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 Vill
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. SiiicuMAX. 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
I'ccent experience on a resolution on the jiassage of which not even the yeas and nays
were called for, but which was del)at(d here for ten days, my impression is that this
resolution will be pending on next Wednesday, when we are ready to form in proces-
sion to march to tiie House of Representatives to count this vote.

PROCEEDINGS AND DEBATES IN CONGRESS. 181

Mr. JoiiNSOX. Hardly.

Mr. Sherman. It looks very mucli like it; and therefore I think we had bettor pro-
ceed vvitli other bnsiness.

The ViCE-PiiESiDP^NT. The Senator from Ohio asks the nnanimons consent of the
Senate to i)roceed to the consideration of the bill named by him for the purpose of mak-
ing it a special order.

Mr. TitUMiJULL. I object.

The ViCK-PitEsiDEN'T. Objection Tieing made, the bills cannot tiow be taken np.

Mr. Shekmax. Can I make a motion at this time to postpone all other orders for the
purpose of proceeding to the consideration of th:it bill ? If I can, I make that motion.

Tne Vice President. The Senator from Ohio moves to postpone t lie further con-
sideration of the pendingbill for the jmrpose of jtroceeding to the consideration of the
joint resolution relating to the duty on pajjcr, and that is the (question now before the
Senate.

Mr. Trumbull. I hope the Senate will not agree to tlwit motion.

Mr. CONNESS. I feel a great interest in the settlement of the question now pi'oposed
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 ni)on it. It
is certainly a (piestion of no secomlary imiiortance, but on the contrary a (juestion of
the finst consequence, and I cannot vote as I usually do with the honorable Senator to
take U]) measures from the Committee on Finance.

I desire, witli the leave of the Senati', for a reason that will be apparent, to ask leave
to be excused before I take my seat from serving further upon the Select Conunittee
on Slavery and Freedmeu. There are other Senators that have arrived here who liave
Tiot a place on committees, and I do it with that view. I hope tlie place will be tilled
liy motion from some Senators. I asked to be excused from serving on that committee.

Tlie Vici>President. Is there any objection to receiving that motion ? The Chair
hears none.

The motion to excnse the Senator from California was agreed to.

Mr. Sumner. I move that the Chair be authorized to till the Aacaney.

The motion was agreed to by unaniuu)ns consent, and the Vice-President apjiointed
Mr. Nye to till the vacancy on the Committee on Slavery and Freedmen ; he also ap-
pointed Mr. Stewart to fill the vacancy on tiie Committee on Public Lands occasioned
by the absence of Mr. Harding, who in conse(iutMU-e of the state of his health has re-
ceived leave of absence for the residue of the session.

]\Ir. Farwell. I suggest to the Senate that a recess for one hour be taken. [" Oh,
no!"]

The Vice-President. Tlie question before 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. SiiHRMAN. 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 tlui motion in the ho[)e 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 uixm this
subject at tliis time. The riglit of a ])eoplB of a State to vote for President is a consti-
tutional right, ami cannot be restricte<l or modified by any joint resolution of Con-
gress. Tli(! right to count the vote iu joint convention is devolved on that joint con-
vention, and not upon this CNuigress. I do not believe that Congress has the constitu-
tional power to say in advance what States shall be counted and what not. I will
trust tlie 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 contnd the
counting of the votes iu joint convention. I therefore move the indefinite x>ostpono-
ment of the rescdution and pending amendments.

Mr. Henderson. I move that the Senate adjourn.

Mr. Trumbull. If the Senator will withdraw his motion and let us take a vote on
the indefinite ])ostponement of the (juesfion, we may settle it.

Mr. Henderson. I am perfectly well satisfied we cannot get through with this
•luestion 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 yeasand nays, and they were ordered ; and being taken,
resulted — yeas 1.5, nays 21 ; as follows :

Yeas— Messrs. Anthony, Collanier, Cowan, Dixon, Doolittle, Farwell, Harlan, Harris,
Henderson, Howard, Howe, Powell, Spragne, Sumner, and Wilkinson — Ui.

Nays — Messrs. Buckalew, Clark, Couness, Davis, Foster, Hale, Johnson, Lane of In-

182 COUNTING THE ELECTOEAL VOTE.

diann. Lane of Kansas, Morgan, Morrill, Nesniitli, Nyp, Sherman, Stewart, Ten Eyck,
Trumbull, Van Winkle, Wade, Willey, and Wilson — 21.

Absent — Messrs. Brown, Carlile, Chandler, Foot, Grimes, Harding, Hendricks, Hicks,
McDongall, Pomeroy, Ramsey, Kichardson, 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 In-
diana to postpone the joint resolution indefiuitely.

Mr. Lane, of Indiana, culled for the yeas and nays, and they were ordered.

The Secretary proceeded to call the roll.

Mr. Haklan (when Mr. Grimes's name was called) said: As this is in the nature of
a test vote. I am authorized to state that my colleague is paired with the Senator from
Kansas, Mr. Pomeroy, and that if my colleague were here he would vote for a resolu-
tion similar to the amendment proposed by the Senator from Vermont.

Mr. Lane, of Kansas, (when Mr. Pomei:oy's name was called) said: My colleague is
absent, having been paired oft' with Mr. Grimes.

The result was announced — yeas 11, nays 26; as follows:

Yeas — Messrs. Cowan, Doolittle, Farwell, Harlan, Harris, Howe, Lane of Indiana,
Nesmith, Ten Eyck, Van Winkle, and Willie— 11.

Nays — Messrs. Anthony, Buckalew, Clark, CoUamer, Conness, Davis, Dixon, Foster,
Hale, Henderson, Howard, Johnson, Lane of Kansas, Morgan, Morrill, Nye, Powell,
Sherman, Sprague, Stewart, Sumner,;^ Trumbull, Wade, Wilkinson, Wilson, and
Wright- 26.

Absent— Messrs. Brown, Carlile, Chandler, Foot, Grimes, Harding, Hendricks, Hicks,
McDougall, Pomeroy, Ramsey, Richardson, Riddle, and Saulsbury — 14.

So the motion was not agreed to.

Mr. Wilkinson. I mov^e that the Senate adjourn.

The motion was agreed to, there being, on a division — ayes 20, noes 16; and the
Senate adjourned.

In Senate, Fthruary 3, 1865.

The Vice-President. The hour of one o'clock having arrived, the unfinished busi-
ness of yesterday now comes up. The joint resolution (II. R. No. 126) declaring cer-
tain States not entitled to representation in the electoral college is before the Senate
as in Committee of the Whole, the pending question being on the amendment of the
Senator from New Jersey [Mr. Ten Eyck]' to strike out the word "Louisiana" from
the pieamble.

Mr. Doolittle. Mr. President, the question pending before the Senate will have no
pract ical effect whatever in d isposing 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 a t all, the result is not to be changed. So far, therefore, as that ques-
tion is concerned, this whole discussion is perfectly innnaterial. The action of the Sen-
ate one way or the other has notliing 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 ha\e el't'ect 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 cannot l)e another ]>resi(iential canvass until four years from last
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. Sherman] says that for the good order of the
convention when the Senate and House of Representatives meet together to canvass
these votes, he thinks some legislation is necessary, for he says that in 1857, when the
Senate of the United States, under the presidency of Mason, of Virginia, went into the
House of Representatives, 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 marched out at the head of some Senators, they
following him two and two, presenting a ridiculous aspect to the country and the civ-
ilized world. They went out amid the jeers of all who were present, my friend says.

But 1857 was an exceptional case. W'e have had eighteen joint conventions of the
Senate and House of Representatives: did my friend from Ohio ever hear of any dis-
creditable proceedings on any other occasion than in 1>^57? Never. Have we no con-
fidence 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,

PROCEEDINGS AND DEBATES IN CONGRESS. 183

or iu any presidiDj; oflicers of either of the two bodies from tlie berriniiing of the Gov-
orumeut. I have as much confidence in the present presiding ohicers to keep^order
and decorum in these proceedings as I have iu auy of the presiding oJiicers of these
two Houses from the 1)egimiing of tlie Government to the present time.

Mr. President, I said yesterday that iu my opinion Congress has no power iu its legis-
hitive capacity, acting as we are uow acting, to dechire, iu relation to votes that have
ali'eady been given, that those votes are null and void. Sir, the question is not before
us: the votes are not before us; audwe cauuot act ou those votes to ratify or to annul
them. The votes were given by the electors of tlie several States, sealed np under the
provisions of the Coustitutiou, aud sent to the President of the Senate, the seals un-
broken, and there is uo 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 iu their presence, aud I say that it is usurpation ou the part of Congress
to uudertake to act apou those votes which are sealed up from them, aud which they
have no ))ower to look at, either to affirm their validity or to declare them null.

I mainlaiii, too, sir, that it is a most dangerons precedent for Congress to uudertake
to speak of votes that have already been giveu, declaring them to be null aud void. It
is possible, as I said before, that by some legislation in advance of the giving of those
votes Congress might make provision by law ou this subject. I have some doubts, how-
ever, iu relation to that; but upon that questiou I shall not occupy the attention of
the Senate. I said yesterday all I desired to say in regard to it. But, sir, I shall come
now to the immediate questiou, the one pending, the <iuestiou of Louisiana, which the
Senator from New Jersey moves as an exceiition to the other States that are mentioned
iu this resolution.

And tirst of all, the interest which I feel iu this questiou is because, iu my judgment,
the resolution of tlje Seuate upon this incidental question expresses its 0]jiniou upon
the validity or the invalidity of the constitution adopted by the people of Louisiana.
Believing, as I do, that that is a most important question ; believing, 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 unwise to press this resolution at the present
moment. But, sir, the questicm 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 iu
it and to some of the facts bearing on the validity of this present constitution of
Louisiana. And Avbat are the facts ' The Senator from Kentucky [Mr. Powell] de-
clares that this election of the people of Louisiaim was carried by military power, by
military authority, aud is the result of military dictation aiul military desjjotism over
the ]>eoplo of Louisiana. The Senator from Ohio [Mr. Wade] responds to this with
all his heart. He says it is a mere military dictation, a military election, aud, more
than all, he says it is a miserable farce.

Mr. President, we look upon a* strange spectacle here when the two extremes in this
body come together in this way. One would suppose that Pilate and Herod had joined
hands both to attack the Administration in its policy on this subject, and to see if thej'
could crucify the free State of Louisiana. Sir, let us look at the facts of this case,
strip otf a little of this passionate declamation, and come dowu 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 coustituticm of Louisiana.
But the Senator from Kentucky and the Senator from Ohio say it was the military au-
thorities that controlled this election in Louisiana. Sir, I take issue with them upon
the fact. It is nottrue that the military authorities controlled the election. The elec-
tion was fixed for the 22d day of February, says General Banks.

Mr. Wade. Will the Senator tell me who authorized the election for a couveutiou;
who initiated it f

Mr. DooLiTTLE. General Banks issued his order notifying the people of the State
of Louisiaiui to hold an election. I am speaking of that election.

Mr. Wade. Let me inquire if the request of a military commander is such a case
is not just about equal to a command. Is there any real ditierence ?

Mr. DOOLITTLE. I shall have occasion before I finish 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, although it is a great under-
taking to do it, that the only possible mode iu which a military government can be
surrendered to the civil administration of the people of a State must be that the initi-
ative shall be taken in the first instance by the governor in military command inviting
the people iu their civil capacity to enter upon the election.

]\Ir. Powell. If the Senator will allow me, I Avould like to ask him a question.

Mr. DOOLITTLE. If it is a question bearing 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. I'owELL. The Senator has indicated that the Senator from Ohio and the Sen-
ator from Kentucky were incorrect iu saying that there was military interference. I
ask the Senator whether the military authorities did uot prescribe the qualification of

12 X

184 COUNTING THE ELECTORAL VOTE.

voters ? Did they not assume by military orders to alter the constitution of Louisiana
and prescribe different qualifications for voters from those fixed by that instrument ?

Mr. DooLiTTLE. On that point the constitution of Louisiana was adopted as the
rule prescribing the qiialificatious 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 citizens 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 attention to the fact that General Banks states in
this pajjer that they were required to take the oath prescribed in the President's am-
nesty proclamation of December 8, 1863, and that of itself was prescribing a qualifica-
tion of voters different from the prescription made by the constitution and laws of
Louisiana.

Mr. DooLiTTLE. I will read what General Banks says :

" The order relating to the election is herewith inclosed. It was fixed for the 22d
day of February. There candidates were presented, and the canvass was geuei-al and
spirited, each party sustaining its candidates 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 at this election.

" The average vote for ten years previous to the rebellion in these parishes was fif-
teen to sixteen thousand."

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 Louis-
iana a voter, excej)t 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 who 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 suffrage. It wasthoughtthat any Legislature of the State would change
that provision, and the order of election directed the change upou this principle."

That was the only change that was made by military authority, a change author-
izing citizens of Louisiana who had enlisted in the Army of the United States in Lou-
isiana to vote. We have done the same thing in Wisconsin, in Ohio, in Pennsylvania,
in New York, all growing out of exigencies which have occurred 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 theie
was nothing wrong in this. But even if it were Avrong, it did not affect the result in
the slightest degree, for there Avere only eight hundred and eight of all the soldiers
who voted. Out of eleven thousand four hundred and fourteen voters, I say to the
Senator from Ohio, but eight hundred and eight soldiers voted; and do you complain
of this as a military election and held under military dictation ? Was the election car-
ried by soldiers' votes or by militarj^ 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, Avithout any restraint or con-
straint whatever. There are nearly ten thousaiul 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 difierent military posts.

"A separate registry is made of their A'otes, a copy of which is Avith the Committee
of Elections of the House of EepresentatiA'es."

He says further :

"I do not believe that fiA'e hundred persons A'oted in this election of the 22;1 of Feb-
ruary who were not citizens of the State previous to the rebellion, and CA'ery candi-
date for office Avas either a native of the 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 sol-
diers or sailors who were imder the authority of any military commander imported into
the State of Louisiana. It was only the people of Louisiana and the soldiers of Lou-
isiana Avho were voting upon the adojition of a constitution for themselves. All these
charges of a military usurpation and military dictation, and that it Avas a mere farce,
fall to the ground together. They are not true.

Nor was it an election controlled bv Federal oflice-holdcrs. What General Banks

PROCEEDINGS AND DEBATES IN CONGRESS. 185

says is true, that tlie Federal office-holders of Louisiana, civil and military, did not
assume to exercise so much iiiliueuce upon the result of the election in Louisiana as
they do in New Yoik, Massachusetts, and every other State in the Union where Fed-
eral officers arc appointed. Allow me to read from his statement again on that sub-
ject :

"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 Government, both
civil and military, was inditierent, 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,
and accordingly we find that —

"The registrar of voters states that of one hundred and twenty persons employed
in one department of the Treasury offices, only twenty-five voted for or against the
abolition of slavery in the election of the 5th of September."

How much interest did the office-holders in the State of Louisiana take in attempt-
ing to get up this State organization, which the Senator 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 in-
clinations, 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 cer-
tain 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 indiffer-
ently, following their own inclination, without the slightest intimation 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 the military commanders of Louisiana
coming from the commander-in-chief of the department requiring votes to be given or
a certain constitution to be adopted. There was no concert, no conspiracy, no domi-
nation. 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 unimi^eachable as that of any gentleman who sits on this
floor. Genei'al 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
jjrobably of any other State of the Union, and that the officers representing the Gov-
ernment, 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 organi-
zation of the government."

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 tbatthere was no
influence undertalcen to be exercised by the military 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 dictation 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 repre-
sentation 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 declama-
tion that we have heard on this subject. W^hat 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 jjari pas-sii. I refer now to the white population of that State.
We know that our voting population in the free States and our fighting population are
very nearly the same. Fifty-one thousand was the highest voting jjopulation 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 conscription of the rebels, wherever they have had
the opportunity to do it, has been almost universal, taking every able-bodied man in

186 COUNTING THE ELECTORAL VOTE.

whole counlitH and townsLiLi)s and parishes into the ai'my of the rebellion. If yon de-
duct from fitty-one 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 thoiisand four hundred and fourteen freely
gave their votes at the election which occurred on the 2'2d day of February, 1864.
Does the Senator from Ohio stand up here denouncing this as a miseralde sham, when
a vote has been given equal to the difference between the rebel population enlisting
into the rebel armies and the whole voting population of Louisiana during tlie 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. IlENDiMCKS. If the Senator will permit me

Mr. DooLiTTLE. 1 hope the Senator will allow me to finish my remarks. I do not
desire to take itp a great deal of iiine, and I prefer to go througli with what I have to
say ; and then 1 will answer any (jucsi ion the Senate desires.

Mr. President, 1 do not assume that in all cases the voting populaticn and the fight-
ing population are the same, but they ruit along nearly the same, and it is but fair to
count the one as about equal to the other. But sui)pose there is a considerable differ^
ence. In my opinion, the vote of 11,414, 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 sitppose, of the real territorial
extent of the State of Louisiana; we c;'ptured and took possession of the rivers; and
from the very conformation of Louisiana, it is uywn the banks of the rivers that her
good lands all lie, and when 'yoix go back from the rivers, you go into those intermin-
able morasses and swamps where n:en can hardly live at all ; so that, although we do
not cover the whole of the State of Louisiana by our military lines, Ave do cover and
do hold by far the greater portion in value and the greater portion v/hich is capable of
being cultivated and inhabited as a State.

Mr. Presiilent, I wrs observing that men seem t5 xcrget tht t.embie destruction of
the population in these States, both black and wliite, caused by the war. I have no
doubt that if you could at this day take the census of both the living and the dead, it
would be found that one-half of the whole pojiulation of Louisiana, white and black,
is beneath the sod, growing out of the terrible convulsions which this war has pro-
duced, and the terrible sacrifices and sutieriugs and deaths that have followed in its
train. General Banks estimates it at very nearly the same figure. He says the whole
population of Louisiana now existing does not exceed four hundred and fifty thou-
sand, 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 re-organization of civil
government and civil institutions in the States where the insurrection had prevailed.
Therfe 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 x^roposition.

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 mili-
tary power, some form of government must be established — military, of course, in the
first instance. 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, iuier arma
silent leges. When the people of a district become so far obedient to their obligations
of loyalty to the Government 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 government
may be, to a certain extent, a mixed form, both of civil and military power, each lean-
ing upon the other. As the thing progresses and grows still further, the military power
may be more and more withdr.awn, 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 captured 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 satis-
fied of the great mistake of going into rebellion against the Government of the United
States and of the necessity of submitting to its authority auditsjjLirisdictiou, that they

PROCEEDINGS AND DEBATES IN CONGRESS. 187

began to come hack totlieir allegiance to this Government, and were wiliiug to join in
the organization of the civil government of the State, and resnme their relations to the
Government of the United States. Accordingly 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 bj' virtue of it, and the whole ma-
chinery 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 Legis-
lature, they are making municipal laws and regulations for themselves. Their courts
are sitting every day in judgment ui)ou the rights of individuals. Under the authority
of this new constitution all the relations of life are now being regulated. LTuder the
authority of this new constitution, I tell my friend from Ohio that nearly ninety thou-
sand 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 Louisiana presents herself in this atti-
tude as a free State, knocking olf the chains from ninetj^ thousand of her slaves whom
the emancipation proclamation did not reach, (for they were excepted,) 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 amendnieut which
we have submitted to the States for their ratificatiou ?

Mr. Wade. Does tlic Senator

Mr. DoOLiTTLK. I shall soon be thrnngb, and I will then hear the gentleman from
Ohio at length.

Mr. Wadk. 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 Keutucky [Mr.
Powell] is opposed to recognizing this free constitution 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 tioor, would take the free States by the hand, one after
another, as they presented themselves here, and welcome them into the family of free
States. I did uot expect opposition from the Senator from Ohio as I did from the Sen-
ator from Kentucky. He could consistently oppose it ; for he is opposed to emancipa-
tion, opposed to the adoption of the free constitution of Louisiana, opi)osed to allowing
Louisiana to vote on the coustitutional amendment which we have just submitted to
the States, aud whose vote may bo necessary to its ratification. It requires, as I am
informed, twenty-seven votes, or the votes of twenty-seven Legislatures of the differ-
ent 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 pre-
pared to prevent that ? Go tell it to the free people of this country that upon tlie lioor
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 de-
nounce as a military usurpation and as a miserable farce the adoption of a free consti-
tution by the people of Louisiana.

But, sir, to return once more to this much-denounced ])olicy of the President. It is
denounced as a military usurpation. It is directly 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 the population equal
to one-tenth of the whole voting population of the district or the State before the re-
bellion began are willing voluntarily to undertake the business of administering civil
government, I, as President of the United States and Commander-in-Chief 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 at-
tempt 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 gentlemen who are denouncing with so much
glibuess the policy of the President had better point out some better policy. How can
you lay down your military power without building up a civil power to take posses-
sion 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 mxist begin with what loyal
people there are in the State ; and if you can get as many as one-tenth of those who
are thei'e, or a number equal to one-tenth of the voters of the State who are willing to

188 COUNTING THE ELECTORAL VOTE.

join in the attempt, is it not tbe duty, and the bonnden 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 de-
sire to get rid of military 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 Representatives ought to be admitted to seats in
Congress. The President does not recommend anything like that. But this case of
Louisiana does not go upon theljasis of one-tenth. I have demonstrated to the Senate,
and I defy the Senator from Ohio or any other Senator to show to thecontrary, that at
least two-thirds of all the loyal people of Louisiana, and more than two-thirds of the
diHerence 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 consti-
tution for the free State of Louisiana.

But, Mr. President, in relation to that recommendation made by the Executive, he
made it as a suggestion. He did not commit himself to it as if that was the policy to
be pursued and he would not pursue any other. He is willing to join hands with any-
body who will propose any better policy for the re-organization of these States ; but he
is willing to begin even with one-tenth to attempt to build up something like civil gov-
ernment 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 electing the delegates to this convention and in adopting
this constitution. Does my friend from Ohio propose to allow the rebels of Louisi-
ana to take part in the government of that State I Have we not already provided
by laAv that they cannot vote unless they take the oath of allegiance, and swear to sup-
port the Constitution of the United States, and renounce all allegiance to any other or
pretended government ? It is the loyal peojjlo of a State alone that have a right to
vote.

Sir, I believe that each dep.artment of this Government takes part in the recognition
of the authorities of the several States. The Supreme Court takes its part in that rec-
ognition. l''or 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 decision of that court
to the Supreme Court here. Some lawyer rises up in the Supreme Court of the 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
military usurpation ; you must not hear an ajipeal from that court ; I move that it be
dismissed." The Supreme Court look into the question, pass on the case, and they de-
cide 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 rec-
ognizing the judicial jiower of the State of Louisiana.

So, too, the ExeciTt i ve has his office to perform in recognizing the power of the States of
the Union. When you look into the Constitution 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 insurrection breaks out in one of the States.
There are two parties, and you may s.iy they are nearly equally balanced, one for one
government, one for another. Each chooses its governor ; each chooses its Legisla-
ture ; each chooses their various officers of administration ; and they commence a con-
flict, 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 rebell-
ion, 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 govern-
ment of the State where the rebellion exists. The President decides that question,
and from his decision 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 executives, and were ready to enter into a conflict of arms and the shed-
ding 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 jjower of the Government was thrown in upon one side.

Here is a power of the Executive in recogiiizing the existing jjower of a State,
whether it be the true State government or the insurrectionary 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 insurrection in a State. It is made

PROCEEDINGS AND DEBATES IN CONGRESS. 189

to the President, and the President alone can deride that question. The Sopreme Court,
in that case from Rhode Ishmd, expressly decided that it was a political question over
"which the court had no control, nor C'onyrcss either, but which belonged to the Exec-
utive, and the Executive alone ; and the Executive having decided which party con-
stituted the rebellion and which party constituted the true government of Rhode
Island, 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 govern-
ment.

But, Mr. President, I do not deny that Congress 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 present themselves for admission
to this floor as Senators from Louisiana. The question is at once raised. One gentle-
man says there is no State of Louisiana; it is a mere Territorj' ; it is a mere farce to
call it a State.

Mr. Wadk. Do you say that I said that ?

Mr. DooLiTTLE. You did not say that ; but yon 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 Louisiana who could elect Senators ? And
thirdly, do these men jiossess the requisite qxialifications to become Senators of the
United States ? Those questions are raised here, discussed here, and the Senate act
upon those questions and decide them, and from our decision there is no appeal.

Mr. CoNNESS. Will the Senator permit me to ask him a question?

Mr. DOOLITTLE. Is it on this point ?

Mr. CoNNESS. Yes, sir ; it would not be pertinent otherwise, I apprehend.

Mr. DOOLITTLE. I will hear the Senator.

Mr. CoxNESS. With the Senator's consent, I ask him if he holds that the right of
Congress to act upon tho question of the organization 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 tho information, because it islmportant.

Mr. DOOLITTLE. My opinion is very clear that we act upon the question when it is
presented 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 representatives ; and, thirdly, whether the men who appear here have the consti-
tutional qualifications ; 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. CoxNESS. Will the Senator again permit me to ask him a question? I do not
■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 different question from the one I am now
discussing, and I do not intend to go into a discussion of it now. Possibly on some
other occasion it may come up, and I may discuss that question ; but I understand it
is a very difterent one from that I am now arguing.

Mr. CoNXESS. 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 riglit to act on the question occur or come up ; and therefore I asked the
Senator if he held tho opinion that Congress has no right and no power to act upon
the question of whether those States should be re-organized or not ; because, although
the Senator may not believe that the latter question is involved in the proposition now
before the Senate, I differ with him, and believe 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 Constitution 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 decision on that question of the admission of
Senators is without any appeal, and whatever law might be passed by Congress would
not in any way whatever abridge our supreme jurisdiction over the question of the ad-
mission or rejection 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 refused Virginia any
representation in that body. We act upon onr 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

190 COUNTIXG THE ELECTORAL VOTE,

Ave assume to say, as is conteuded for by the Senator from Michigan, [Mr. Howard.] I
believe, that these seYeral States which have been declared to be in insurrection have
ceased to be States of the United States, and are to be regarded as mere subjugated
provinces or Territories, 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 honorable 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. AYhat 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 conqueror 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 Con-
stitution of the United States, 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 con-
dition of a State by the action of Congress at some time and according to the discre-
tion of Congress, carrying out honestly and fairly the obligation of the Constitution ;
but in the mean time, understand 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 tit 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 apply 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 understood the Senator to make the other day, and
I am not quite clear now whether I un<lerstand 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 insiirrection, as they have been pionounced to
be by the constituted authorities of the United States, then as States, as political com-
munities, 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 answer it. Dc favto 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 Sen-
ator from Michigan. I understand him now to say that they are out of the Union.

Mr. Howard. De facto.

Mr. DooLiTTLE. l)e facto out of the Union.

Mr. Howard. Undoubtedly.

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 been advocated in certain other quarters that those States, by virtue of their
insurrection, have ceased to exist as States, are no longer States of .tbe Union ; that
they are not only out of the Union, but have ceased to be States at all. I do not un-
derstand precisely whether the Senator believes in that or not. He perhaps raises a
distinction between States de facto and States de jure. Perhaps he admits that de jure
they are States in the Union, but de facto they are States out of the Union. But 1 do
not wish to go into an argument with him as to his views on that^subject. I simply
wish not to misunderstand him.

Now, I understand the Senator from Michigan 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. Undoul)tedly
that is a State in the Union. We have also elected Andrew Johnson 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 tipou 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 posi-

PROCEEDINGS AND DEBATES IN CONGRESS. 191

tion — but the doctrine that says these States are no longer States of the United States
is one huge, infernal, constitutional lie, that would stamp all our conduct from the
beginning as murder and cover us all over with blood. When it comes to be discussed,
it is the most abhorrent doctrine that can be ]iresented to the American people. And
I tell you that whatever tine-spun theories politicians may adopt here at Washington
or elsewhere, 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 Andrew Johnson, of Tennessee, as Vice-President of the United States —
Tennessee still a State of the United States, although its i)eople have been driven into
insurrection and i-ebellion.

Mr. Sumner. Will my friend allow me to interrupt hinrright there ?

Mr. DoOLiTTLE. I am nearly through.

Mr. SuMXER. I understood the Senator a few moments ago to say that the Consti-
tution required that the President and Vice-President should come from two dittereut
States.

Mr. DoOLiTTLE. Not be residents of the same State.

Mr. S r:\iXER. 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-born citizen or a citizen of the United States at the time
of the adoption of this Constitution sliall be eligible to the otitice of President."

And there is another provision in the Constitution 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 dithculty 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 debated here and urged as the foundation for the adoption
of this resolution. There is no necessity 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 influence and its power with the people of the
country. There is no necessity to make this onslaught 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 ihat it is unnecessary,
unfounded, and unjust. 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 Ken-
tucky. I understand the Senator from Illinois who introduces the resolution to express
the wish to avoid the question of the validity of the constitution of Louisiana. 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 Kentucky
and the Senator from Ohio, where the two extremes are meeting in one common purpose
to attack the administration and to crucify the free State of Louisiana.

Mr. Shermax. Mr. President, I shall detain 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 L^nion 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 rules shall govern the convention when it meets ? Shall the
whole thing be postponed until the two Houses get together without any rules or or-
ganization, so that confusion 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 question now, we know that any mem-
ber of either House may present it to us in the joint convention. We know that the
Senator from Wisconsin, or any other Senator who believes that the vote of Louisiana
ought to be counted, may demand that that vote shall be counted. Suppose the Vice-
President should decide that Louisiana, having been declared in a state of insurrec-
tion, 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

192 COUNTING THE ELECTORAL VOTE.

States, and his decisiou be final ? Is there no appeal ? If there is au appeal, how can
it be taken? Snppose the Vice-President should reject the vote of the State of Ohio,
and I, a representative from that State, should demand that his decisiou should be re-
versed ; 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 pre-
scribe the mode and manner in which these questions shall be decided before the meet-
ing 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 Repre-
sentatives vote jjer capita ? Shall they vote by concurrent resolution ? If so, then the
right of debate grows up. Shall Senators debate? If so, must they debate iu 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 ; bvrt that is not the point. The difficulties are insuperable : and any man, what-
ever may be his political tenets, may raise the question of difficulty 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 Wisconsin was pre-
vented from voting by au unforeseen event, the happening of a great snow-storm in
the Northwest, and when objection was made to counting the vote of the State of Wis-
consin, 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 recognized one person and the other gentleman another, without any pre-
liminary understandiug as to the form of putting the question, without any prelimi-
nary understanding as to who should preside over the joint convention, without any
rules for its government.

I say, these same questions of dittculty will present themselves again, and they will
be presented by the counting of the vote of the State of Louisiana. Suppose in the
joint convention the Vice-President shall take \\\\ 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 rebell-
ion against the Goverument ; that by the proclamation of the President it is declared
to be in a state of insurrection, and that that condition of aflTairs has been recognized
by both Houses of Congress ; " I therefore will not allow the vote of Louisiana to be
counted iu the electoral vote." Suppose he should so decide. The Senator from Wis-
consin would object at once.

Mr. DooLiTTLE. Not at all. 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. Shermax. 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 decisiou be final ? I say not. There
must be

Mr. COLLAMER. Some member of the convention would object to the counting of
au illegal vote, because they do not know, officially, what the other votes are.

Mr. SiiERMAX. Certainly not. They cannot tell that until the votes are counted.
Suppose 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
McClellan, a scarcely possible event. We are now prescribing rules and making prec-
edents for history. We cauuot expect to travel through many presidential elections
iu the history of our country with so iinauimous a result as at the last, and we are now
making a precedent

Mr. Farwell. If the Senator will allow me

Mr. SiiERMAX. I would prefer to go on and finish what I have to say.

Mr. Farwell. I was going to ask a single 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 conventiou ?

Mr. Shermax. I do not suppose this resolution will settle all the questions that may
arise. Suppose, on the other hand, the Vice-President should believe that Louisiana is
a State iu 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 iu the House that would ; and how is the qnestiou

PROCEEDINGS AND DEBATES IN CONGRESS. 193

to be decided? Then the joint couveiitioii assembled nudcrtbe Constitution to do the
highest act of perpetuating the Government of tlie United States may find itself m a
wrangle; and it is iu just such scenes as these that revolutions are born. It was in
snch scenes as these that Poland witnessed 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 solne
decisive vote ; and therefore it is that I am iu favor of having this matter decided now. -

But I have said that I believed Louisiana was a State in the Union. I have no donbt
of it. My views upon that point concur with those of the honorable Senator from
"Wisconsin ; but the question is not whether Louisiana is a State in the Union, but
whether Louisiana can uow vote in the electoral college. What is the record ? By the
proclamation of the President, Louisiana is declared to be iu a state of insurrection ;
by the votes of both Houses of Congress that condition is recognized ; all the loyal, legal
authority of Louisiana is overthrown, and we have now a provisional governor; we
have had military governors iu 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 re-organize the State of Louisiana ; that there is a local government now there
representing the loyal people of Louisiana. Suppose I admit 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 de-
cide 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
Congress and by the President, that moment she will have a right to vote in the elect-
oral college ; 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 recognize 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 college. That is my judgment ;
and in saying this I do not assail the President. I think my friend from W^isconsin
stated the point too strongly when he said that in voting for this joint resolution we
sought to cast censure upon the President.

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 advanced, and the Senator from Kentucky
[Mr. Powell] by responding to him, may join handstogether to attack the Administra-
tion. 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. Shermax. 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 ])ortiou of the people of Louisiana are
in a condition to conduct a free government, to foundand re-organize or re-establish 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 condition is fixed
by the proclamation of the President, sanctioned by Congress ; and that is, that Lou-
isiana is in a state of insurrection, and until that insurrection is so far overcome as to
enable a portion of her people to establish a form of government and the right of suf-
frage may be protected, she has not a right to reiiresentation 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 organ-
ization, that they have had an opportimity 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 record before us, that Louisiana is declared by law to be in a state of insur-
rection, and that we have no official decision that she has resumed her place in the
Union. We have evidence 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

194 COUNTING THE ELECTORAL VOTE.

the resolution of the House of Eepresentatives — which, I believe, passed there without
much objcctiou — wheu it came here, and was reported from the Committee on tlie Judi-
ciary, was a wise measure to avoid contention and strife, to avoid raising i^rematurely
a question of great difficulty, which ought to be settled so far as the action of the con-
vention was concerned hj the deliberate vote of Congress. 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 perfectly clear that the vote of
Louisiana, no matter 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 trouble the Vice-
President of the United States when he comes to count this vote. If this resolutijn is
jiassed, the Vice-President, when he comes to these papers, as he must present them to
the body, will say, that by the concurrent action of Congress, or of both Houses, which
must pass upon the condition of Louisiana, 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 ^thau to throAv it upon the Vice-Presi-
dent.

Mr. Harkis. 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 heretofore expressed in relation to this subject, w^hich 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 amendment, it will be in order if he shoiild withdraw his propo-
sition to strike out the State of Louisiaiui. I will read the proposition, which I intend
to submit at the proper time :

"Whereas in pursuance of an act of Congress, approved on the 13th of July, 1861,
the President did, on the IGthof August, 1861, declare the inhabitants of certainStates,
and among others the State of Tennessee and Louisiana, to be in a state of insurrec-
tion 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 re-inaugurate loyal
State governments, the President did, on the 8th of December, 1863, issue his procla-
mation whereby it Avas 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 he 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 said State governments
loyal to the United States, or attemiited 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 Avhereas doubta 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 ]iresidential election could in no way be af-
fected by the votes of said States,whether the same shall be counted ornot: Therefore,

"Be it resolved, t$'-c.. That it is inexpedient to determine the question as to the validity
of the election of electors in the said States of Tennessee and Louisiana, 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 staled if
the votes of said States were excluded, such result being the same in either caseJ'

It seems to me that this covers the whole ground ; it recites the whole triith in rela-
tion 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 pi'oposition is to vote for the
merest abstraction in the world. It is to anticipate a question which may possibly
arise, but w^hich 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. PoAVELL. 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 myself to Herod and Pontius Pilate,
and about the center of his speech he repeated the comparison, 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 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 Sen-
ator from Wisconsin but resorts to one of the artful dodges that are sometimes resorted
to by some speakers who have been not inaptly 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 Senator 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 conserva-
tives that are here — can be driven from what he conceives to be his duty because ho

PROCEEDINGS AND DEBATES IN CONGRESS. 195

has the assistance of the Senator from Ohio ; and I am certain that there is no Senator
ou t he other side whose intelligence is so low, whose mind could be so governed l>y his
prejudices, that he will he driven from his position because some members on this side
advocate a proposition of which he is in favor.

I do not know whether the honorable Senator 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
v.as not aware before that Herod had much to do with the crucifixion. I knew that
Pontius Pilate judged o]i 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, aud
is fully able to defend hiuiself. Put, sir, if the comparison should be ajiplied to any-
Itody, the Senator from V>'isconsiu ought to apply it to the Executive and to General
l>anks. It is they, if anybody; and I v>'ill not charge that they desire to crucify the
free State of Louisiana.

Herod and Pontius Pilate were wicked aud cruel aggressors ujjou the civil and divine
rights of the peo])le. I, sir, resist the aggressions of usurping oHicials; the Senator is
their advocate. Had I lived in Judea in the day of Herod, I would have denounced
the cruel and liloody decrees of that wicked king as I do here arraign the President for
his usurpations, his Aiolations of the Constitution, and his assaults upon the civil lib-
erties of the people. I would have denounced in the harshest language the infamous
judgments of Pontius Pilate, the governor, as I do the unlawful, wicked, and uncon-
stitutional military orders of General Banks. Judging from the Senator's course here,
liad he lived in the day of Herod aud 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 honor-
able Senator from Wisconsin. I regard a State free that is governed by the laws made
by the sovereign people of that State without the dictation of presidents or major-gen-
erals. I regard that State as a free State which is governed by law, knowing that
there is no freedom save in the supremacy of the law. The honovable Senator from
Wisconsin in his contracted view seems to suppose a State is free, provided no African
is held in slavery. Rlay not white men in Louisiana be kept in chains as well as black
men ? I confess I have more sympathy for the white than I have for the black race.
Not so with the honorable Senator. He is willing that the decrees of the Executive
and the orders of General Banks shall go forth to alter the constitution of the people
of Louisiana, and prescribe the qualiiiciitious of their electors and of candidates for
office, and to hold the white men of Louisiana in slavish submission to those decrees ;
and he calls a State so formed and so conducted a free State, merely because its consti-
tution indicates that involuntary servitude shall not exist there. Away, sir, with such
a free State! It is the veriest slavery, slavery of your own race, slavery oiyour own
kith, slavery of your own kin. It is a striking down of every jirinciple of rex^ublicau
liberty for the y)urpose of elevating a few miserable Africans.

The Senator from Ohio and myself are in accord on this matter. He desires to vin-
dicate the right of the people of Louisiana, in the exercise of their own sovereign
power, to decree their own form of government, unbiased, uninfluenced by outside dic-
tation, whether from the Executive Mansion or from the headquarters of a major-gen-
eral. The Senator from Wisconsin takes the very converse of that position. He is
amazed that the Senator from Ohio should advocate these propositions, but he is
not at all astonished at the course of the Senator from Kentucky, because the Senator
from Ohio is for freedom and the Senator from Kentucky is opposed to emancipa-
tion. I do not know what right he has to say that I am opposed to emancipation by
those who have the power to decree emancipation. I am not opposed to the people of
the State of Louisiana or Georgia or any other State of this Union declaring, if in their
sovereign capacity they choose in a legal aud formal manner to decree, that they will
have no slavery existing there. Nor should I be opposed to the people of the State of
Wisconsin, if they choose so to decree in the exercise of their sovereign power, declar-
ing that slavery should exist there. These are matters that are left by our funda-
mental law to thepeoijle of each State ; and, wheu they exercise the power in the man-
ner iirescribed by their constitution and laws, it is a matter of their own concernment,
aud will receive no opposition from me.

If, however, the Senator means that I am opposed to the amendment of the Consti-
tution of the United States on that stxbject. he is right. I was opj^osed to that amend-
ment of the Constitution when it was pending in this body. I spoke against it and I
voted against it; and I think the day will come wheu 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 by 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. Regarding it as I do, I am opposed to it. I hold that by that amendment you
upturn the whole system of our Federal Government, because if there is one charac-
teristic feature of fShis form of government it is that the States are at liberty to form

196 COUNTING THE ELECTORAL VOTE.

and regulate their domestic institutious in tlieir own way, and you have as much right
to amend the Constitution so as to regulate the condition of master and shive as you
have to amend it in regard to the regulation of the relation of husband and wife, guar-
dian and ward, parent and child, and no more. If you have a right to pass that con-
stitutional amendment, you have a right to decree that this shall he an empire or a
kingly form of government. It is destructive of the system, in my judgment. I think
it is in had 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 dema-
gogues will desire to repudiate 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 enact-
ment, by constitutional amendment this vast amount of property was destroyed in the
slave States without compensation to the owners, 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 slavery in their own way, it is
their matter, not mine. I have a right to speak on that subject in no State of this
Uniou but one, and that is the Commonwealth of Kentucky, and there I have been op-
posed 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 myself, that there was military inter-
ference with the election, has no foundation in truth. Let us bring the honorable Sen-
ator to the facts on that point, and see who is in error. Who has the right to iirescribe
the qualifications of voters 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-Geueral Banks, to prescribe the qualifications of avoter in Lou-
isiana? Tell me not, sir, that there has been no military interference with the elec-
tions in that State, when the Executive and the military commander of that department
have prescribed the qualifications of voters. Make me a major-general and clothe me
with the power to prescribe the qualifications of voters, and if I had a hundred follow-
ers in the State of New York I could carry that Empire State by prescribing such qual-
ifications 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 interference. I was aston-
ished 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 moment that there
had been no military interference with the elections in Louisiana.

Mr. DooLiTTLE. With the Senator's permission, I will say that I stated precisely
wherein and to what extent I understood the order of General Banks to have altected
the elective franchise^ by directing, what the constitution of Louisiana did not direct,
that the soldiers who were citizens of Louisiana enlisted in the Army might be per-
mitted 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 hundred and fourteen.

Mr. Powell. So far as the princii)le is concerned it does not matter if there was but
one ; it was an infamous usurpation ; and I sjieak 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 ;
hut he seems to express the idea that I had maintained 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 qualifica-
tion of electors : " The House of Eepresentatives 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 electoi's of the most numerous branch of the
State Legislature." That is the only clause of the Constitution on the subject. Was
that constitutional test applied 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 qualifications 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 consti-
tution of the State of Louisiana ? AVhen he did it he committed a usurpation and
violated the law, and so far from being lauded he should be censured in the harshest
possible terms.

But that is not all. General Banks says, in this paper, that everybody who was reg-
istered and voted in Louisiana took the oath prescribed in the President's amnesty
proclamation of December 8, 1863. Now, let us see what was the oath contained in
that amnesty proclamation :

"T, do solemnly swear, in the presence of Almighty God, that I will hence-
forth faithfully sujiport, iirotect, and defend the Constitution of the United States, and.

PROCEEDINGS AND DEBATES IN CONGRESS. 197

the Union of the States thereunder; and 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 faith-
fully support all proclamations of the President made during the existing rebellion
having reference to slaves, so long and so far as not moditied or declared void by deci-
sion of the Supreme Court. So help me God."

After having prescribed the oath, that proclamation goes on to declare :

" And I do further proclaim, declare, and make known that whenever, in any of the
States of Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Flor-
ida, 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 1S60, each having taken the oath aforesaid and not having since violated it,
and beiug a qualified voter by the election law of the State existing immediately be-
fore the so-called act of secession, and excluding all othei's, shall re-establish a State
government which shall be republican, and in nowise contravening 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 guarantee to every State in this Union a republican form of government,
and shall protect each of them against invasion, and, on application of the Legisla-
ture, or the Executive, (when the Legislature cannot be convened,) against domestic
violence.' "

The President in his proclamation says that if one-tenth of the voters shall take the
amnesty oath they may form a State government, and those taking the oath shall be
qualified voters, and that they alone shall be voters who were qualified voters under
the constitution and laws of Louisiana as they existed before the rebellion. General
Panks in his order has violated the proclamation of the President. The President's
proclamation says that the government may be formed by persons " each having taken
the oath aforesaid, and not having since violated it, and Ijeing a qualified voter by
the election law of the State existing immediatelj' before the so-called act of seces-
sion, and excluding all others."

Does General Banks exclude all others? Does he not allow soldiers and sailors to
vote ? Ho does. He extends and adds to the President's proclamation prescribing
tlie 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 un-
der tlic ^aws of Louisiana. I admit that the re([uisition of this oath was usurpation ;
but General Panks enlarges e^-eu upon that. The President says that this oath shall
be sufficient ; but Ge;;er;il Banks goes further and says that tlje soldiers and sailors
may vote. Under the President's proclamation they could not vote, being prohibited,
by the constitution of Louisiana, but Geueral 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 oath which would degrade them in
many respects, shall legislate for the nine-tenths ? The one-tenth fixed by the Presi-
dent is one-tenth of the qualified voters as they were by the State constitution 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 tlie State, excluding Sambo. The
population of the State of Louisiana is aboiit equally divided between whites and
blacks, and the Senator advocates tlie proposition 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 antirepublican 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 S,tate. Was there ever such a monstrous iitterauce f

I suppose that if the Senator from Ohio and I were to oppose the admission or rec-
ognition of a State formed by OTie-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 cru-
cifixion complete; there is nothing left for the Senator from Ohio and myself to cru-
cify. The Senator from Wisconsin has crucified and utterly destroyed the great prin-
ciples that underlie 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 qualifications
of voters in the States and declaring that if one-tenth of them take the oath he pre-
scribes they shall have power to establish a government to rule over the nine-tentbs.
The Senator is the advocate of those who commit these usurpations, and he denounces
those who oppose them as Pilates and Herods.

lu my judgment the decree of Pontius Pilate was a great wrong, that of Herod was
cruel. The latter was that all the children of Bethlehem under two vears of age should

198 COUNTING THIO ELECTORAL VOTE.

1)6 destroyed ; but infamous as the decree of Herod was, it is not half so infamous as
the x^rinciples advocated by the Senator from Wisconsin, for that afi'ected but individ-
uals ; 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 underlies a free Commonwealth; and
after murdering those principles he denounces those of us who in onr humble way resist,
as Pilates and Herods. He, in my judgment — I say it with great deference — has out-
Heroded 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 po]iulaiio!i of Louisiana at the time the war began, whites and
blacks, haAC gone under the sod — are dead. The population of the State of Louisiana
in 1860 was about seven hundred thousand souls. Under the loolicy of these rulers you
liave killed about four hundred thousand of those i)eople. 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 peoideof that State
under the sod. The decree of H,erod was not half so cruel as that, because it onlj^ took
the children under two years of age; and here you take not only them, but you take
Ijlooming virgins and the young men in stalwart youth, and the aged, decrepit, and
infirm, and you sweep them all away with one remorseless blow.

Now, sir, I think I have disposed of King Herod, and I come to look at the Pontius
Pilate 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 Senator from Ohio and
myself have been likened to Pontius Pilate sitting in j udgmeut 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 Major-Geueral
Banks. It was they viho 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 proclarua-
tious that had been issued by the President on the subject of slavery since the begin-
ning 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
Wisconsin, would he so lower his manhood, would he so far debase himself as to go and
crouch at the foot.stool 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 in-oclamations
w4iich 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 Presi-
dent. 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 foundthat the President
had not carried the thing far enough, and he, too, must not only carry out the uncon-
stitutional edicts of the White House, but he must make an unconstitutional edict of
Ms own, which he did, by proclaiming that soldiers and sailors, who were not qualified
voters by the constitution of Louisiana, should be qualified voters.

That is the attitude in which General Banks and the President stand, and the Sen-
ator from W^iscousin is their advocate. He denounces the Senator from Ohio and my-
self because we resist this usurpation. I am willing for myself to receive the fulmi-
nationsof the Senator from now until doomsday. W^hile I am so intrenched 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 states-
man and, as I have no doubt the honorable Senator from Wisconsin would say, able
general. He issued a iiroclamation concerning this subject. I regret that I have not
that proclamation here ; but I have an extract from it, which I will read to the Senate :

"Opinion is free and candidates are numerous. Open hostilities cannot be permit-
ted. Indifference will be treated as 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

PROCEEDINGS AND DEBATES IN CONGRESS. 199

himself to these humiliating conditions ami having taken his oath, refuses to vote, Gen-
eral Banks says he will treat that as a crime. Was there ever a more atrocious senti-
ment uttered in a free Government ? Tlie 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 qualitied
shall vote, and if you do not vote, yonr indifference will be treated as a crime. A more
atrocious sentiment was never uttered, and yet the Semitor from Wisconsin says that
is a free election where the major-general conunanding 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 freedom of election ? There was not a scintilla of
freed<nn in the whole matter; and when General Banks announces, in the statement
which has been read, that there was less interference by Government authority in that
election than perhaps 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 under-
take to prescribe the (luallfications of voters in Wisconsin, and the qnaliticatioiissoes-
tal)lished by him were different from those prescribed by tlie 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 Avas nuich freedom of election there ?

General Banks thought he would make a great repatation by bringing back Louisiana
into the Union, and giving his friend, the Senator from Wisconsin, a chance to make
assaults on others for their attempts to crucify the young, free State of Louisiana.
Tbe gener.al had made several eft'orts, in a military point of view, without winning
many laurels. I believe that, if General Banks had devoted himself as assiduously to
his military duties and to iigliting armed rebels as he did to controlling elections and
issuing ukases on that subject, he would not have met wirli the disaster which he en-
countered on Red River. I hoj)e 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
disgracefully defeated as he was on the Red River. His vocation, it seems, was two-
fold. Being a politician of some success, he thought he could run tj^e political machine
best ; and he did run it, and he ran it with a vengeance. He ran it over, and destroyed
every principh- of republican liberty.

Let me tell the Senator tli;it we are not to be driven from our advocacy of the right
by being likened to Pontius I'ilate 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 sys-
tem 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 tbe
functious of their offices in violation of law. It was a maxim of the Athenians, the
Avisest of the ancient commonwealths, that all who administered the functions of their
office in violation of law were usurpers. It is in that sense that I use the term. How-
ever good their intentions may have been, I say that in their exercise of power in
Louisiana they overthrew 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 j)ositiou, I think nobody is going to be dis-
mayed or deterred from doing their duty by the Senator anuouneing here that extremes
have met. I would to God that we could have more frequent meetings of the extremes.
The Senator from Ohio and myself are regarded as on the extreme verge of opposite
oi)inions 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 liberty of the citizen, to tight under his banner; and, sir,
he is a sturdy old leader.

I was gratitied when the Senator from Ohio made his manly speech on this subject.
I am willing to tight under his banner, and I will follow him to the tight when the
Senator from Wisconsin and the Executive and major-generals make crusades against
the civil liberties of the people. I differ from the Senator from Ohio upon many sub-
jects; but there is a blunt honesty and manhood and candor about him which I ad-
mire. He is unlike the Senator from Wisconsin in one thing. Wliile his philanthropy
and his love of freedom are most expansive, I believe more so than my own, for I do
not tliink the negroes are going to be near as well ott 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 tight for the liberties of the white man. Just at that point, however,
the Senator from Wisconsin falls off, and goes off' with a sickly sentimentality for the
woolly-headed negro, and cares nothing for "the poor white trash" of Louisiana. The

13 X

200 COUNTING THE ELECTORAL VOTE-

Senator from Ohio stands manfully in the hreach when their rights are assailed.
When he defends the poor down-trodden ^Yhite man of Louisiana, he defends the people
of the ^\'hole land. It is their common defense against those who assail the great jjriu-
ciples of constitutional and civil liherty. We will stand to our guns on that point,
notwithstanding the dennnciations of the Senator fiom Wisconsin, and we will fight
the battle out and will not surrender. As I have enlisted nnder the Senator from Oliio
in this light, I am not for yielding, and I do not think he is for yielding, and we
hoth, I believe, are animated by honest convictions to defend the white people of the
country against those Avho 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 overthrow all the enemies of constitutional and civil liberty. So long as the Sen-
ator from Ohio is engaged defending the constitutional and civil liberties of the white
man, he will iind me a faithful ally.

Mr. TiM'MiiULL. Mr. I'resident, 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. PontiusPilate and Herod have been as-
sailed and defended. We have had a general discussion about reconstruction, and an
excited debate upon a (juestion which it seems to me should have called for no excite-
ment ; and all I have to say to the Senate now is to apiieal to its members that, how-
ever much they may be disposed to cruelly over again filate or Herod or the free State
of Louisiana, they will not crucify us here by bringing in all these extraneous circum-
stances and prolonging this debate. I think every Senator understands the question.
All we wish to settle is to determine 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 rebelliou against the Government, into
which goods are not permitted to go, with whom we have no friendly intercourse, shall
be counted as votes cast for President and Vice-President of the United States. We
neither determine that those States are in the Union or out of the Union.

That is the question; and I appeal to Senators to let us vote upon it. Business is
pressing ; the chairman of the Committee on Finance is urgent with his bills. I think
every Senator understands this question. Although I have no doubt every Seinitor
could reply to all that has been said inconsistent with the views he himself entertaius,
if all will forego the uuiking of those replies, we may have the vote, and settle the
question. I trust that course will be adojjted.

The ViCE-Pi?ESiDENT. 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. Hicks] is confined to his
room by sickness, and has been for the last two or three days.

The question being taken bj- yeas and nays, resulted— yeas 16, nays 22; as follows:

Yeas — Messrs. Cowan, Dixon, Doolittle, P^arwell, Harlan, Harris, Howe, Lane of
Indiana, Lane of Kansas, Nesmith, Pomeroy, Ramsey, Ten Eyck, Van Winkle, and
Willey— 15.

Nays — Messrs. Brown, Buckalew, Clark, Collamer, Conness, Davis, Foster, Hender-
son, Hendricks, Howard, Johnson, Morgan, Morrill, Powell, Saulsbury, Sherman, Sprague,
Sumner, Trumbull, Wade. Wilkinson, and Wright — 22.

Absent — Messrs. Anthony, Carlile, Chandler, Foot, Grimes, Hale, Hardiug, 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. Tkumbull. The Senator from Kansas will observe that if the preamble is
stricken out the resolution will Ite unmeaning, and we shall then have to put into the
resolution the names of the States. To strike out the preamble and do no more would
leave the resolution unmeaning.

Mr. Lane, of Kansas. I should like to have the preamble and resolution read.

Mr. Pomeroy. If the Senator from Illiuois 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. Trujibull. I have no objection to that if the Senator makes the motion: but
I have no authority to make the moditication.

Mr. Pomeroy. As it is in order to unKlify the preamble before the question is taken
on striking it out, I move to amend it by substituting the words "such a condition"
instead of "state of rebelliou."

Mr. Tru.mbull. That is in the part of the preamble which was amended on the re-
port of the Judiciary Committee.

PROCEEDINGS AND DEBATES IN CONGRESS. 201

Mr. SuMXER. As I understand it, the amendment of the Senator from Kansas is not
now in order; he i))-op()ses to amend words wliich have been voted into the preamble
on the nmtion of the Committee on the Judiciary.
The VickPresident. If that be the case the amendment ia not in order.
Mr. Sumner. The Senator may make his motion at another stage.
Mr. Lane, of Kansas. I asked the Chair if my motioa was not in order, and he
announced that it was.

The Vice-President. The motion of 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. LAXEjOf Kansas. I supjiose I can make my motion at a future time.

The Vice-President. The Senator's mo:ioii 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 yon will find that it
refers to the preamble, and if you strike out the preamble 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 preaaible 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," &c., instead of the words ''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 resolution. I presume he himself would not desii-e that.

Mr. Lane, of Kansas. " Suthcient 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. Sx'MXER. I will simply observe that the motion of the Senator from Kansas, if
it prevailed, would make nonsense of the resolution. I think, therefore, we had better
vote against it.

Mr. Lane, of Kansas. Will not the resolution be in the hands of the Senate for
amendment, 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,
resulted — yeas 12, nays 30 ; as follows :

Yeas — Messrs. Cowan, Doolittle, Harlan, Harris, Howe, Lane of Indiana, Lane of
Kansas, Nesmith, Poineroy, Ten Eyck, Van Winkle, and Willey — 1'2.

Nays — Messrs. Brown, Buckalew, Chandler, Clark, Conness, Davis, Dixon, Farwell,
Foster, Grimes, Hale, Henderson, Hendricks, Howard, Johnson, Morgan, Morrill, Nye,
Powell, Ramsey, Sanlsbury, Sherman, Sprague, Stewart, Sumner, Trumbull, Wade,
Wilkinson, Wilson, and Wright — 30.

Absent — Messrs. Anthony, Carlile, Collamer, Foot, Harding, Hicks, McDougall,
Richardscm, and Riddle— 9. '

So the Senate refused to strike out the preamble.

Mr. Collamer. I now otter my amendment 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 pro-
vide for the collection of duties on imports, and for other purposes,' a])]iroved July 13,
1861, shall be regarded as emjjowered 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 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 received 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 suggestion of the Senator from Oliio, [Mr. Sher-
man,] by inserting the words "or until they shall be represented in both Houses of
Congress," after the clause 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. Harris were read, as follows :

" Whereas in pursuance of an act of Congress approved on the 13th day of July, 1861,
the President did, on the 16th day of August, 1861, declare the inhabitants of certain

202 COUNTING THE ELECTORAL VOTE.

States, and among; others the States of Tennessee and Louisiana, to he in a state of
insnrrection ajiaiiist the United States; and whereas, ^vith a view to encourage the
iuhahitants of such States to resume their allegiance to tlie United States and to re-iu-
augurate loyal State governuients, the President, on the 8th day of Decemher, 18G3,
issued his proclamation, whereby it ^^ aS declared, among other things, that in case a
State goveruuient should be re-established in any of said States, in a manner therein
specified, such government should be recognized as the true government of the State ;
and whereas the loyal iidialntants of the States of Tennessee and Louisiana, invited
so to do by the said last-mentioned proclamation, have in good faith established State
goverumeuts loyal to the United States, or attempted so to do ; and whereas such loyal
inhabitants at the recent presidential election have chosen electors of President and
Vice-President, who have, in pursmince of the requirement of the Constitution, cast
their votes for the President and Vice-President ; and whereas doiibts exist as to the
A-alidity of such election of presidential electors in the said States of Tennessee and
Louisiana; and whereas it is well understood tliat the result of the presidential elec-
tion could in no way be aifected by the votes of the said States, whether the same be
counted or not : Therefore,

" Be it resoJi'i'd 4'c., That it is inexpedient to determine the question as to the validity
of the election of electors in the said States of Tennessee and Louisiana, and that in
counting the votes for President and Vice-President the result be declared as it would
stand it 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 established a loyal State govern-
ment. There has been no State government established there, though I am told one
will go into operation on the 4th of March.

Mi\ Ti!UMi5ULL. We all understand the question. Let her vote.
]Mr. Harkis. I ask for the yeas and nays on my amendment to the amendment.
The yeas and nays were ordered ; and being taken, resulted — yeas 12, nays 31 ; as
follows :

Yeas — Messrs. Cowan, Doolittle, Farwell, Harris, Howe, Lane of Indiana, Lane of
Kansas, Nesmith, Pomeroy, Ten Eyck, Van Winkle, and Willey — 12.

Nays— Messrs. Brown, IJuckalew, Chaudler, Clark, Collamer, Conness, Davis, Dixon,
Foster, Grimes. Hale, Harlan, Henderson, Hendricks, Howard, Johnson, Morgan, Mor-
rill, Nve, Powell, Ramsey, Saulsbury, Sherman, Sprague, Stewart, Sumner, Trumbull,
Wade,' Wilkinson, Wilson, and Wright— 31.

Abskxt— Messrs. Anthony, Carlile, Foot, Harding, Hicks, McDougall, Richardson,
and Riddle~8.

So the amendment to the amendment was rejected.

Mr. TjJUMBULL. 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 Repre-
sentatives. 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 diifer-
ence between them as to the eftect in canvassing the votes on Wednesday next. The
Senator's amendnuMit, however, goes a little further; it has the advantage of being a
general pro])<)siti(>n, as tlie Senator thinks; bnt when you cimie to scan it, it has no ad-
vantage in that respect, because you have to look to the i>roclamati(m to construe 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 pro])ositious: 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 proclama-
tion, to declare any State in the Union to be in a state of insurrection, and to prevent
its voting at a presidential election. He could issue his proclamation and declare the
State of New York, or any other State, to be in a state of insurrection ; and under the
amendment her vote could not be counted. I do not think it Avell to go further than
the occasion requires. That is one suggestion that I make in reference to it.

Another is this : the House of Representatives have originated and passed this resolu-
tion ; and unless something is to he gained by a change of its language it isnot desirable to
change it. The Committee on the Judiciary had this resolution before them, and although
perhajis they would have preferred some change in it, they made none. The committee
considered it carefully and recommended the Senate to adopt the resolution as it came
from the House. They did propose a change in the preamble because they thought it
would commit the Senate to a fact which some members of the committee desired not
to be committed to. As it passed the House of Representatives, the preamble stated
that these States, naming them, continued in a state of armed rebellion for three years,
and were in such condition 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 por-

PROCEEDINGS AND DEBATES IN CONGRESS. 203

tiou of the preamble was recomniended 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 iiractical eftect of the amendment offered l)y the Senator from Vermont will be pre-
cisely the same as that of the resolution the House 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 preferred to take that. As
the question is now before us, and there is one objection that may properly lie aojaiust
the substitute, I think we had best adhere to the report of the committee on the House
resolution.

Mr. Johnson. I have an objection to the amendment proposed by the honorable
member from Vermont, and I do not think I could vote for it if tlie proposition had
come in that form from the House of Representatives. The act of July, 1861, does not
state that there are any particular States in rebellion ; it names no State at all. It
only provides that when the President shall think that a state of insurrection exists
ho may proceed under the act of 1795 and declare that State to be in a state of rebell-
ion. *

Mr. CoLLAMER. That is not it.

Mr. Johnson. I think that is it substantially. I do not think I can be mistaken
about it; but if am mistaken as to that, I am certainly ritjht in saying that that act
does not name any particular State in rebellion. [Mr. Collamer nodded assent.] So
far, the honorable member admits that I am correct in my recollection. Then they
have been yilaced in the condition which the honorable meml)er supposes would deprive
them of the right of electing electors, by virtue of the President's pmchunation issued
under the authority of that act. We have left it to liini, therefore, to say what States
are to be considered as States in rebellion ; and the ]iroposition of the honorable mem-
ber is that any States which he may have declared to be in a state of rebellion are to
be considered, with reference to the power of electing electors, as remaiuing in rebell-
ion until 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 understand.

Now, as I think — and I believe that is the opinion of the honorable member himself
— these States have never been, in a constitutional sense, out of the Union ; and
tliey are to be considered, therefore, with reference to our power over them, as
States in the Union. My idea is that if the President, by his proclamation issued in pur-
suance of the act of 1861, can deprive them of the right of electing electors, it is only
because 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 rebellion 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 authority to
elect at any time afterward would depend upon tlie happening of one or two facts :
either that Congress should have passed a law admitting Tennessee into the Union or
declaring that the rebellion in Tennessee was ternunated, or upon the fact that, in the
absence of such act of Congress, Tennessee had elected Representatives and Senators,
and each branch liad received the members elected to tliat branch.

Now, Mr. President, suppose the President of the United States had declared that
the rebellion in Tennessee was at an end, or, to ]iut it stronger, suppose he had issued
a proclamation before the 8th of November stating, and the fact was so, that .the war
had ceased in each one of those States which were declared by his proclamation, issued
under the authority of the act of 1861, to be in a state of rebellion ; suppose we all
knew that ; suppose every Senator here was satisfied that the President's proclama-
tion was true in point of fact, that 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 prepared 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 entitle 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 terminated, and that peace should have been re-
stored, the authority of the Constitution re-instated.

If I am not right as to that, it is l)ecaase 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

204 COUNTING THE ELECTORAL VOTE.

still in the Uuioii, just as much a part of the United States as they ever were — a posi-
tion demonstrated bj- the fact that we are carrying on the war in order to force them
to yield upon the hypothesis that they are in the Union— if that proposition is right,
that tlie 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 au-
thority to elect ; tliat 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 Sth
of November ; all the courts of the United States may have been again organized ; the
whole authority may have been re-instated; and yet she would not be entitled to ap-
point Senators or to elect Ri-preseutatives until Congress should declare that the rebellion
was ended as to her, or until both Houses should agree to receive Senators and Repre-
sentatives. 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
ill conflict with that opinion ; and I hope, therefore, with due deference to the better
judgment 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 Com-
mittee of the Senate.

Mr. CoLLAMER. Mr. President, 1 understand that this resolution, as passed by the
House of Representatives, has already been amendfed in the Senate on the recommenda-
tion of the Committee on the Judiciary. Then it must go back to the House of Repre-
seutatives for action. Having alreadj^ beeji amended by the Senate, it will have to
receive action again in the other House, and the amendment which 1 i)ropose, if adopted,
will not alter that condition. There is, therefore, no objection to my amendment on
that ground.

In the act of 1861 Congress did not attempt to declare any particular State to be in
a condition of war or insurrection. Tha* 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 proclama-
tion declaring the inhabitants of that State to be in a condition of insurrection, and
tbereupon the consequences are to ensue which are stated in tlie 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 wliat shall be a condition of war with any
of our own States. lu fact, there may be a war of our own States against the Gov-
ernment, 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 iu the act of 18(51.

I dislike the proposition contained iu this House resolution, because by it Congress
undertakes to exercise the power of declaring now, and iu relation to a i)ending elec-
tion, that the votes of particular States, by name, shall not be counted, because those
States are in a condition of insurrection. I dislike to undertake to legislate for a State
by name particularly, as I have before stated to the Senate. I want a general law on
•the subject. The act of 18t)l was a general law by which all States were subjected to
its operation iu 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 de-
cide upon that condition of things which shall restore a State to its allegiance. The
decision 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 Con-
gress, the legislative department. But it seems that some gentlemen imagine that
when we have made a law declaring the circumstances and contingencies which shall
create 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 ])eace cannot be made with the insurrectionary States. The President can-
not negotiate a treaty of ]ieace with Mr. Davis or anybody iu 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 ]iower. No such
treaty ever can be made. The declaration made by the act of 1861, which the Supreme
Court of tlie United States has decided amounted to a declaration of war, was an act
of the Legislature; 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, iu declaring when, in the judgment of Con-
gress, 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 etiect that the condition of war has ceased ; but, in the mean

PROCEEDINGS AND DEBATES IN CONGRESS. 205

time, until tliat does take place,'I think the people in sncli a State should not be exer-
cising the powers of the inhabitants of an independent State of the Union.

I propose to do this thing by the exercise of the same power which created the ex-
isting condition of atfairs iii 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 unty-
ing the knot in the manner 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 ])re-
seuted. The suggestion of the honorable Senator from Illinois, that the President
might declare a State to bo in a condition of insurrection in order to prevent her vot-
ing 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 be-
fore doing so I will make a statement. It is my purpose to recognize the State gov-
ernment 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 Senator from Vermont to-day, and Senators from those three States
present themselves to-morrow for reception here, and the members of the other House
liresent theuiselves to that House, is there anything in this amendment to })reclude
such action ? Will the reception of those Senators and Representatives re-instate those
States in the Union as they were before they rebelled ?

Mr. CoLLAMER. The gentleman has put this question very candidly and he is en-
titled to .as much of an answer as I aui prepared to make. The adoption of my amend-
ment would in no way in my estimation cuibarrass the question which the gentleman
puts, or any action wliich 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 here-
tofore in the uf^en'oi; that is all.

I will say, further, that in deciding upon receiving Senators from any State which
has been in a condition of insurrection,! do not think it is necessary that there should
be a law like that wliich is ordiiuirily passed, called an "enabling act," to enable a
Territory to form a State government. I do not think it needs any new law of Con-
gress to "enable the people of any one of the States which are in insurrection to lay
down their arms, go home, and submit to the operations of the General Goverinnent,
re-organize their State government, and present their Representatives for admission
here. I say it requires no previous law of Congress to enable them to do that. In-
deed we have decided repeatedly in Congress 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 coiistitnrion, republican in its form, and actually elect their members and Sen-
ators under it. Congress has recognized such States and received those Senators and
members elected before any act was ]iassed on the subject by Congress. No doubt in
my mind the same thing may be done here. If we are satisfied that the re- organization
is substantial and abiding, that it has been fairly made, and that it will answer the
ends of re-organization, undoubtedly we may admit, by our act here, the Senators, and
the other House may admit the Representatives, without any previous action of Con-
gress about it. I think the gentleman 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 Representa-
tives, then would the electoral votes be counted in elections held hereafter unless Con-
gress should ]>ass a law preventing it ?

Mr. COLLAiiER. Certainly. And I have put in my amendment the very words that
they shall not cast electoral votes until either their comlition of rebellion has been
declared to cease by virtue of a law of Congress, or their members 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 modification.

Mr. Powell. Was it proposed to-day ?

Mr. CoLLAMER. Yes, sir.

Mr. Powell. 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 consistently with the laws we have hereto-
fore enacted. And I wish it to stand in a shape requiring that the members shall have
been adnntted in both Houses. I do not want a quarrel and controversy got up by a
possible snpi>osition of the two H(mses diftering on the question.

Mr. P( )MEi:oY. I do not yet understand the Senator from Vermont to have answered
the question whether he would receive members from States declared to be in insur-
rection, and admit them here, unless there was a previous act of Congress or proclama-
tion of the President removing the restriction. Would he receive Senators while there
was non-intercourse between the States they represented and the other States ?

206 COUNTING THE ELECTORAL VOTE.

Mr. COLLAMER. I tlionglit I had auswered tliat, and I think if I had been listened
to attentively it would be found that I had answered.
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 government and sent representatives here.
Mr. POMEROY. There is no non-intercourse proclaimed with Territories.
Mr. CoLLAMER. That makes no difference 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 mentioned, 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 Con-
gress afterward by law ratify what they have done, it is all well enough. Just so
here ; though these States have not by any i)revious legislation of Congress been de-
clared to be out of the condition of insurrection, yet if they are so in point of fact, and
it turns out that they have regularly re-organized 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 government they have formed will
answer all the x'nrposes of a State government and can be perpetuated, and Congress
then admits their representatives, tbat is the end of it. My amendment is that wlien
their re])resentatives 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 proclama-
tion to cut off all couimercial intercourse with the rebellious States, whether the Presi-
dent himself, without any further act ftf Congress, cannot i-estore that commercial in-
tercourse ; wliether, as fast as the rebellion disappears before the advance of our armies,
this intercourse is not restored in the same projjortion ? I think the honorable Sena-
tor's view of it involves a non sequitur. Because we have authorized the President to
cut oft" intercourse with these States, itdoesnot follow that it will require another law
to restore it. It restores itself, of itself, the moment the rebellion has been put down.
It comes back of itself; it is the natural condition Avhich was disturbed and deranged
by this alniormal state of affairs which the rebellion introduced; it is not necessary
that tlicre should l)e<iny further legislation in order to bring it back to the healthful
and ordinary 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
entirely inconsistent with the proposition which his amendment includes. I understand
his amendment to be that no votes, either cast now or cast hereafter for electoi's of
President and Vice-President, are to be counted until either Congress shall by law de-
clare 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 procla-
mation whicli the Presid<>nt was authorized to issue under the authority of the fifth
section of tlie act of July lo, 1861.

A majority of the Supreme Court decided that war existed between the United States
and the rebellious States just as efficiently before the act of July 13, 1861, was passed,
as afterward. The only difference between the judges was whether it was to bo con-
sidered as existing until the act of July 13 was passed ; but the court decided that it
woiild have been perfectly innuaterial whether the act of July 13 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 recognized a state of
war. The minority of the court was of opinion that until the act of July 13 was
passed, it was to be considered merely as an iusuiTection, not affecting at all the poli-
tical relation existing between the States in rebellion and the rest of the States. The
act of July 13, in the section which alone applies to the case, merely says:

" 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 insurrections and repel invasions, and to repeal the act now in
force for that purpose,' approved February 28, 17'J5, shall have called forth the militia
to suppress combinati(ms 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 repudiated by the persons exercis-
ing 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 proclama-
tion to declare that the inhabitants of such State, or any section or part thereof, where
such insurrection exists, 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."

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—

PEOCEEDINGS AND DEBATES IN CONGRESS. 207

" Shall cease and be unlawful so long as such condition of hostility shall continue."

So that, looking to the mere words of the act, and looking to the constitutional au-
thority of Congress, and consequently the duty of Congress, the moment the insurrec-
tion ends, or, to use the language of the act, the moment the hostility ceases, then
the conmicrcial intercourse 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
reference to the provisions contained in the tifth section, does not expire upon the
happening of the contingency of the cessation of hostilities. How would that be in
a certain state of things that can well be imagined f

That act Avas passed on the D^th 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, Cougress 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 declare hos-
tilities to have terminated, or until the two branches should have received the mem-
bers f

I submit — of course with due deference, because my friend from Vermont entertains
a different opinion — that the moment that in point of fact hostilities have ended, the
rebellion is at an end; and the moment the rebellion 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 properly commenced, it cannot be terminated by any treaty which does not re-
ceive 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.

Supijose that during the last war with England she had withdrawn all her armies,
had pronounced her determination through her Parliament that as far as she was con-
cerned she wished to be considered at peace with the United States, would not the war
in point of fact have terminated, altliough there was no treaty of peace? The Con-
stitution provides that Congress shall declare war. Suppose they 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 happening of
hostilities in point of. fact, and be accepted by the President in defending the nation
under his authority to see. that the Constitution and laws are faithfully executed, why
cannot the war be terminated in point of fact, even an international war ? But in re-
lation to a war of this description, as I stated jiist now, there can be no doubt on that
point. Congress has no constitutional right to carry on a war against States. If my
friend will look at the decision in the p'rize cases he will find that the majority and
minority both admitted that there is not in Congress or in any department of the Gov-
ernment, 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 supi)ressing insurrection the insurrection
may culminate to such a point as to amount to war in the meaning of the prize law, is
another ([uestion ; but so far as the declaration of war is concerned, there is no author-
ity 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 f Only so long
as that insurrection continues. That must be very clear. How was it with what is
called the whisky 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 Penn-
sylvania and the United States. Congress did not declare that the insurrection was at
an end ; nothing like it. The President declared it. It ended itself. The insurrec-
tionists laid down their arms, expressed willingness to yield obedience to the authority
of the United States, and that ended the insurrection and disbanded our forces, and
that happening, the State of Pennsylvania, every part of it, stood exactly in the rela-
tion, for all purposes, in which the State and every part of it stood before the insur-
rection was commenced. 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 proposed
in the convention, bat it was objected to upon the ground that a provision of that descrip-
tion would place ti)e United States in their relation to the State against which war was
declared as a foreign nation for all purposes, and carry the State out of the Union. The
answer was that all that was necessary to have acc(<mplished what could be accom-
jilished 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 opjio-

208 COUNTING THE ELECTOEAL VOTE.

site opioiou entertained by the honorable member from Vermont,) that if these men
were to throw down their arms to-morrow they wonld be in tlie Union, and we have
no anthority to keep them ont. The authority to keep them ont now is becanse of the
insnrrectiou, and because of our authority by foi-ce of arms to put down that insurrec-
tion ; but, the insurrection terminating, they stand as they stood before.

Mr. Clark. I suppose the Senator woukl not insist that this vote should be counted
even if they did throw down their arms.

Mr. JoHXsox. Not at all; by no manner of means.

Now, jMr. 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 insurrection, and we have hundreds of thousands
of men upon the held of battle. What is said to be the case ? Officially or unofficially
he sends or autliorizes to go to Richmond a A'ery respectable gentleman, as it is sup-
posed to ascertain upon what terms this war can terminate, or, to state it in different
words, on what terms or conditions this insurrection can terminate. He goes. He is
said to have returned. While there he had an interview with these rebel au^hojities.
He returns. He goes back again in a Government vessel. Did he, after his rtfni^u,
and before he went back to Richmond, have an interview with the President 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. Supi)ose that in that interview, acting under
an express authority from the confederate 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 abol-
ished 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 jior-
tion of the slaves as have not come within the possession of the military authorities 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 to coming
back to the Union to be governed by any constitutional amendment which maybe now
in progress, or which may be started hereafter, abolishing slavery throughout the
United States;" and the President says, (for no treaty is necessary,) " I agree ; I am
warring against you exclusively under the authority of the act of the liitli 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 continu-
ance of slavery, if you will not claim the right to have restored to slavery those who
have enjoyed even for a moment the blessings of freedom, and you are willing to stand
by any constitutional amendment upon that su1).ject which may be adopted by there-
quired number of States, come back, come back, for I have no right to carry on the
war further ; the war ends of itself." It wonld 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 conditiou if we are to have peace, and I pray to
God we may have it— these gentlemen should sa\ further that there is one condition which
must be understood between lis. Suppose they should say (and I believe it is true of
some of them) they have honestly believed that the right of secession exists. Gentle-
men 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 184.5 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 expression 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 inhabit-
ants of the South to a great extent, and i)articularly the young and ardent who
thought they were the salt of the earth, becanse of the existence of the institution of
slavery, ami 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
ought to have seen it. They see it now in its recognition in their own constitution.
They are threatened now with destruction, with dissolution, because they have incor-
porated 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 de-
votion to the Union is so absolute, that, hapjien 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.

PROCEEDINGS AND DEBATES IN CONGRESS. 209

Now, suppose that these commissioners who are said to be with the President —
Stephens, wlio 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 member of the Supreme Court and it was his duty to study the decis-
ions of that tribunal to make himself fit to discharge its eminent duties, and after he
became eminently capable thought it was the vilest heresy that ever entered into the
imagination of man, but was carried away by circumstances surrounding him — suppose
they come and say to the President 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 committed
the error of our lives and sinned against the God of justice, whose judgment it has been
to visit us 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 of-
fenders 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-morrow, announces that the rebellicm is ended, the insurrection terminated, and ujion
terms honorable to the United States. The plea upon which it rested for its justifica-
tion constitutionally 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 exercise it. He turns to the
act of 13th July, I'^Hl, 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 ns ; 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 sujjpose he comes back and issues a proclamation such as I have indicated — and
God grant that he may, provided the terms be honorable and fair — and commnnicates
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 dema-
gogue, no length of time will be suiticieut to exclude from the bosom of Americans the
afiection which they hold toward each other and toward their country. These com-
missioners it was known had left Richmond on their way here upon some mission of
])eace. They first went through the lines of their troops. How did they go through?
Amidst the huzzas and gladdened shouts of the thousands and thousands of men who
are there in battle-array against the opposite 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 univeisally 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 embrace each other as brethren and as American citizens.

Mr. CoxNESS. Will the Senator permit me to ask a question ?

Mr. JoHXSON. Certainly.

Mr. CoNXESS. How does the Senator know but that the southern army, so called,
cheered because they believed that those commissioners 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 commissioners were going to acknowl-
edge 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
anything about it. But how does the honorable member know that they did not ? If
both sides cheered, the iirobability is that they were cheering for the same i)urj)Ose.
But let me answer the honorable member. The southern soldiers, and particularly the
officers, are not so besotted as to believe that this Avar is to terminate by the i-ecogni-
tion of their independence, jiarticularly at this time. The armies of the Union and
the navies of the Union are triumphant everywhere. Victory perches upon our stand-
ard in every battle-field and upon every naval encounter, and these men know that.
Jefferson Davis, or those in authority, never would have authorized commissioners
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

Mr. Johnson. I would rather not be interrupted now.

Mr. Howard. Very well ; I merely rose to ask the Senator a question for informa-
tion.

210 COUNTING THE ELECTORAL VOTE.

Mr. Johnson. I have only a word or two more to say.

Mr. CONNESS. I ask the Senator's pardon 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 because I was about to close. I will uot postpone any question put to
me for anj^ length of time.

But suppose we do not know for what they wei-e 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 cheering 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 declares by his proc-
lamation 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 uot get a man. Thehearts of the people would rebel
at carrying on an unnecessary conflict with those who have stood shoulder to shoulder
with us in some of the most trying periods of our history, carrying with us the stand-
ard 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 thjit they should, to carry
on the war a moment after, in point of fact, obedience 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 hon-
orable 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 insurrection is declared to bo
terminated by Congress, 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 rrcsident 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
Navy has terminated. Once terminated, for all the consequences he is respousible to
the country.

In Senate, Fehruary 4, 1865.

The Senate, as in Committee of the Whole, resumed the consideration of the joint
resolution (H. R. No. 126) declaring certain States not entitled to representation in the
electoral college.

The Vice-Pkesident. The pending question is on the amendment proposed by the
Senator from Vermont, [Mr. Collamer,] and upon that question the Senator from Ver-
mont is entitled to the floor.

Mr. Lane, of Kansas. Before the Senator from Vermont proceeds, I desire to ask for
the yeas and nays upon his amendment.

The yeas and nays were ordered.

Mr. Collamer. Mr. President,! think any man must be exceedingly dull who would
not have understood from the hints and remarks made this morning in relation to this
topic that the Senate are very impatient for a vote. I do not blame them for being
impatient. But, rising as I do to reply to the speech of the honorable Senator from
Maryland, [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 subject.

In the first place, Mr. President, there perhaps is due from me to that honorable
Senator some little notice that I am not entirely insensible to what he has on this and
other occasions permitted himself to indulge in in his remarks with respect to my pro-
fessional ability and discernment. I have never made any reply to them, but at the
same time I wish it to be understood that I am not entirely ungrateful or insensible to
such remarks. I will merely say that the opportunities I have had to inform myself in re-
lation to the honorable Senator's high acquirements in his profession, in 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 reciprocate the sentiments he has expressed, aud entertain a
sincere res]iect for his professional superiority as high as he entertains of mine, he
might consider it at least but a questionable compliment ; but 1 will add to it that I
have as high an estimation, and even higher, of him than he has thought proper to
express in relation to me. I think that ought to be satisfactory.

But, sir, after all, I could uot but observe that the honorable Senator, when speak-

PROCEEDINGS AND DEBATES IN CONGRESS. 211

ing in that manner, very conrteonsly and very kindly, always accompanied it with an
aroinnent 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 ai'gument, he and other gentlemen can an-
swer for themselves.

Mr. President, the amendment which I have proposed has in it cue 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 situation, 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 i)oint : wliether Congress have anything to do in the matter in relation to the re-
organization and re-establishment 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 sub-
stance of them is that they are States in the Unjon — 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 tlieir rights, and may exercise all their functions as integral parts of this Gov-
ernment witliout the consent of this Government one way or the other. There I dis-
sent.

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 war 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. He then says that if they shoiild upon the whole surcease that war, with-
draw their military 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 tliat Avar.
There is exactly the point where we differ. That is exactly the point where we sepa-
rate. I know that one party between two or more nations may make a war, but I say
that both ])artie8 are required to make peace. .If Great Britain were to actually levy
war upon this country, besiege our citif*s, 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 in-
sist upon indemnity for the past and security for the future. If one party can make a
war and make a peace when tliey 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 ui)on us,
we would not be obliged to surcease our hostilities in defense of ourselves and the
captun? of their vessels because they ceased, until we had made a treaty which gives
ns indemnity for their having made that unjustifiable war u])on 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 Ave dititer 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 cannot prosecute the war. I am not iusist-
iug tliat if these people lay doAvn their arms and return peaceably to their habitations,
the President can carry the war into their liouses. That is not Avhat 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 the right to make war
in this country consists in the right of the States to make war upon the General Gov-
ernment, but the United States cannot make war upon them ? Is it their peculiar priv-
ilege and exclusive right to make war upon the General Government ? Cannot we do
anything about it ? Cannot we prosecute 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
become 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 noth-
ing to do with it ? I cannot agree to any doctrine of tliat 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. Jefterson Davis in the Senate,
for not correcting him. He qm)ted from the remarks of Mr. Sherman, Mr. Madison,
and several other members of the convention that formed the Constitution 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 conununity, and perhaps never reach the Senate. The remarks I am now
making not only will never be read and understood by the comnninity, but will never
be read and understood by half the Senate. But still I feel it my duty at this time

212 COUNTING THE ELECTORAL VOTE.

as that doctrine is repeated aud those quotatious are agaiu alluded to, to make some
explanation on that point.

Mr. President, yon will observe, and any gentleman who chooses to examine into it
will lind, that Mr. Bnchanan pnt into his last message that same doctrine, and allnded
to the v'ery quotations made by Mr. Davis. If jon will read that message it will be
perfectly apparent that that portion of it which says you cannot make war upon the
States was interpolated into the message after it was drawn up. I do not mean clan-
destinely; I mean interpohited by the President. It is obvious from its connection
that it is so. I know that wliile that message must have been in a ]ieriod of prepara-
tion Mr. Davis returned from his excursicm to Maine, where ,he had spent that summer;
aud 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 Articles of Con federation were never adopted
by the people. They never were a constitution ; they were a league ; and it was de-
clared in them that the States should retain and continue their sovereignty ; that it
was a league for the mutual defense of tlie States against foreign powers. The States
were represented in the Congress under the Confederation by their Legislatures ap-
pointing the delegates, and withdrawing them when they pleased; and that body had
no power of making laws except on the single subject relating to piracy ou 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 funiish 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 desirious of i^reserv-
ing the Articles of Confederation ; of having a mere league ; a mere treaty. They
were unwilling to give up the weight wliich tliey had under the Articles of Confeder-
ation ; and they therefore proposed that they should be amended so as to oblige the
States to furnish their quotas. The question whetlier tliey should mend up the old
Articles of Confederation, or form a government with all the functions of government,
executive, legislative, and judicial, was the first great question before that couventiou.
Even the State of New York, then counted a small State, was very persistent in favor
of having the Articles of Confederation amended nuirely, and when it was finally re-
solved to aba!ulon that jiroject and form a government, two out of three of those dele-
gates from New York, Mr. Lansing and Mr. Yates, went home aud never returned
again.

It was when the convention were debating that question that these remarks by
Mr. Sherman, Mr. Madison, and others, which have been so often quoted, were made
about making war upon the States. They said, "You cannot 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 between the members of one treaty always puts an end to
all the treaty stipulation's existing; and, therefore, if you make Avar upon one of these
States under the Articles of Confederation to coerce them, that moment you end your
Confederation, because it is war, aud 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 aud 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 apjilicable 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, aud
therefore the nuxking of a war would eu<l that league. They thei'efore are not incon-
sistent in it; but no man who views this as a government, with all the functions of
government attached to it, and not a league, cau quote with propriety those expres-
sions as a)>plicable 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 ]iassed. I know a ma-
jority of the Supreme Court decided that in relation to laying a blockade and the nuik-
ing of prizes, &c., that a war existed before that act of 18i)l was passed ; but all agree
that after the act of 1861 was passed it took the character of war. What shape was
it tbat it took ? It Avas this : Congress declared that where there was an insurrection
existing in a State claiming to act under the authority of the State, and the authori-
ties 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 inter-
course between the inhabitants of that State and the inhabitants of the rest of the
United States shoiild cease. Observe, sir, they did not declare that the war was to be
against men who Avere insurgents. It included all the people of a State whose author-
ities sustained the insurgency, whether they were loyal or disloyal people. That is the
condition of things in a state of Avar in every country. It may be the misfortune of

PROCEEDINGS AND DEBATES IN CONGRESS. 213

the minority, Imt that is their nnavoidahle cniulitiou in time of war. Tliis was de-
chircd to be'a war with the whole inhabitants of tliat State. Then it was tliat it took,
in relation to our inhabitants, its true character and condition of a war, and a war be-
tween those States, made by them through their functionaries and the body of their
peoi)le against the General Government.

Such being the state of war, the question presents itself. When and how is that war
to cease, antl when and how is the formal political status of the States which are en-
gaged in it, or the inhabitants of those States, to be restored, and who is to declare it ?
The gentleuian from Maryland has argued at much length to show that under the act
of 18G1, if the hostilities 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 ofi" 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, includiug treason. That is his power. But, sir, does that alter the con-
dition of the political status of those States in their relationships to this General Gov-
ernment ? 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 function-
aries of their government, their governors, their legislatures, all organizedin this revo-
lutionary operation and carrying it on ; and is it true that they then have the right to
send meinbers to the Seuateantl House of Representatives, and if they have a right
to send them, to denumd 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 orresolution and start again, and we cannothelp ourselves?
Sir, are there not two sides and two parties to this war ? It is the strangest war meu
ever 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 niustpar-
ticipate in the restoration of peace and (piietness, and their restoration to their former
condition, or a condition where they can perform their functions within the Govern-
ment as integral parts of the Union. It isfor Congress to say when that state of things
exists. Congress is not bound to receive their members, or to treat them as Ijeing regu-
lar, 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 oliedience
to their allegiance and the performance of their fealty, a true restoration of themselves
to their former coudition 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 nor-
mal condition ? When they see that they furnish evidence of it. It is not enough that
they stop their hostility and are repentant. They should present fruits meet for re-
pentance. They shouhl furnish to us by their actions some evidence that the condi-
tion of loyalty and obedience is their true condition again, and Congress must pass upon
it; otherwise' we have no securities. It is not enough that they lay down their arms.
Our courts should be established, our taxes should be gathered, onrduties should be col-
lected in those States; and before they come here to perform their duties or privileges
again as members of this Union, they should place themselves in an attitude shoAving
to us that they have truly taken that posititm, and we should pass upon it; and I in-
sist that the President, making peace with them, if you please, by surceasing military
operations, does not alter theii" 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 doul)t about our power over the sub-
ject. Indeed 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 occujiy very much tiiue with that; but one thing I
have to say : I believe that when re-establishing the condition of peace with that peo-
ple, Congress, representing the Iluited States, has power, in ending this war as any
other war, to get some security for the future. It would be a strange thing if it were
not true that this naticm, in ending a civil as well as a foreign war, could close it and
make peace by securing, if not indemnity for the past, at least some security for future
peace. I do 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 undertaking to assert the
existence of such a power without some warrant in the Constitution.

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 govern-
ment. 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
Avithin 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.

214

COUNTING THE ELECTOEAL VOTE.

In tLe next place that guarantee is to the States as States. It is a guarantee to tlie
State of North Carolina, for instance, that Nortli Carolina, as a State, sliall have a re-
publican form of government within this Union ; not to be taken and split up and
made into different States, but it is a guarautee to that State as a whole State.

Another thing is implied. That is a guarantee 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 iu a State can shape their form
of government as they please without any help from Congress; but the provision was
inserted fi-oni a fear that the minority might be overborne, especially, said Mr. Madison,
in a slaveholdiiig State. The guarantee was therefore inserted for tlie 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 guarautee 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 keei) North Carolina iu the Union; we formed it with
her in it; Ave 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 pub-
lic faith which we are bound to keep, let me put a case. Suppose in all candor that
Congress had 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, allow-
ing them to keep their slaves, and they had repeated their rebellion over and over
until every man became convinced that it was utterly impracticable and impossible to
have a republican form of government under such an aristocracy as that engendered
and sustained ; and suppose Congress in all candor and seriousness became convinced
that we could not keep this guarantee in relation to those States that hold slaves, and
they, lieing at war with us, choose to lay down their arms or we beat them, disperse
their forces, and a (juestion arises about lixing the status of those States again, their
political condition in relation to this (jlovernment, that is, making peace; 1 say that
Congress has a right, if so convinced in all candor, to say that in orderto preserve our
plighted public faith contained in that guarantee we will destroy aud abolish that in-
stitution ; for we cannot keep our guarautee without doing it. Cannot Congress under
the general provision of the Constitution make all laws proper and necessary to carry
into etiect the powers granted iu the C(mstituti()n? Clearly. If that is so then Con-
gress may, in fixing the status of these States, if they are convinced of the proposi-
tion I have just stated, make it one of the conditions of their again exercising their
franchise as integral members of this Union, that they shall be placed iu a position
which will enable the Union to continue ^nd 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 ])robability 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 umch as scmie members of the Cabinet,
[laughter,] and you know a Yankee is allowed to "guess." I have but little ex]>ecta-
tion 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 I think
the political status of these States is thereby re-established. 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 confiscation act, I do not
know. I had but very little to do with that act, but I believe it provides for making
confiscations by proceeding in rem, and trying a man without notice to him. I do not
understand much about such proceedings or exactly know how far they may go. But
it seems to me that, before the President can re-establish 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 confisca-
tion law by any action of his own? I surely do not know. Then a law hasbeeu
passed with his approval declaring that persons who have been engaged iu this rebell-
ion are ineligible to appointments to office in this Government. 1 do not know l)ut
that perhai^s he may get them in without having that hiAV repealed by Congress, but
I caiHiot tell how. So in whatever aspect you look at the case it is evident that no
re-establishment 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 Presi-
dent. Put an end to the hostilities, and there, he says, is the end : the States are in,

PROCEEDINGS AND DEBATES IN CONGRESS. 215

and we have notliiiig 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 iu
the war, and I think we must participate in there-establishment of peaceful relations.

The power existing iu Congress in the re-establishment of peaceful relations to annex
3uch 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 exer-
cise it at all ? Will you ever annex any such conditions ? We are told by the papers,
which seem to be very hungry 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 aud House of Representatives have passed
,1 coustitutioual amendment, and that will accomplish the purpose. If I were entirely
convinced that we could not sustain a republican government in these States aud keep
them within this Union in any other way than by having the institution of slavery
abolished, and I was iuciuired of whether I would insist upon that as a prerequisite
and condition-i)recedeut to their re-establishment, I would say this : if I was perfectly
convinced, fully satisfied 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 an j'^ such power on the part of Congress ; but I do not know
how that will be. That is a matter whioh 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 iu the extreme Congress con-
stitutionally possesses. In what manner I shall exercise it will depend upon the occa-
sion as it shall present itself. It will depend upon their desire to restoi'e their former
condition, how far they have returned to loyalty and allegiance, how far they have so
shaped their iustitutions as to furnish security for the future that the peace would be
kept. All these matters would have to be examined into in each case as it presented
itself.

Mr. Davis. I move to amend the amendment 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 Teunessee are not entitled to representa-
tion iu the electoral college for the choice of President and Vice-President for the
term of office commencing on the 4l:h daj' of March, iy65 ; aud 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 theameudment 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 origin-
ated out of the preamble. I think that there is a clear, indicated majority of the Sen-
ate in favor of the resolution, aud that the Senate are ready to vote simply on the reso-
lution. I do not intend to prolong the debate. I merely rise to announce what will
be the etlect of the amendment. 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 discus-
sion 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 amendment is a substitute for the original resolu-
tion and preamble.

Mr. Davis. My amendment is an amendment 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, aud it seems to me we had better adhere
to the resolution as the Committee 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 voting for the proposition as it is. Per-
haps it is not in the very best form. As an original proposition 1 cared nothing about
the preamble, nor do I now, but still I think we shall the soonest get through by not
offering amendments. 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 farther 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 " 18G5 " the words " for the ^aason
14 X

216 COUNTING THE ELECTORAL VOTE.

that there has been no valid election or appointment of electors of President aad Vice-
President in any of those States."

Mr. Trumbull. The Senator from Delaware 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. Tkumbull. If the Senator will have the preamble read as it was concurred in in
Committee of the Whole, I think it will satisfy him.

Mr. Johnson. I am not about to continue rhe debate, but only to refer to a sentence
or two in two of the books I have on my table. My friend from Vermont seems to
suppose 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
nuder the Articles of Confederation. He will find that Mr. Madison — I read from hie
Debates — in that convention, in speaking to what was proposed as a clause to be in-
serted in the Constitution, authorizing 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 efBcacy of it when applied to people collectively
and not individually. A union of the States containing such an ingredient seemed to
provide for its own destruction. The use of force agamst a State would look more
like a declaration of war than an infliction of punishment, and would probably be con-
sidered 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 proposed power in the Constitution of the
Union, as we have it, to anthorize 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 convention 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 negatived the idea of any authority to can-y on a
war or declare a war against any State of the Union. That will be seen first in the
oi)iuion 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 power 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 ex-
ecutive power. He is bound to take care that the laws be faitlifully 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 i)ower to initiate or declare war against a foreign nation or a domestic State. But
by the acts of Congress of February 28, 179.5, and 3d of March, 1807. lie 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 profess to act exclusively under the
clause of the Constitution which authorizes the emi^loyment of force to suppress an in-
surrection.

The subject has been fully discussed in Congress; on the questions in issue between
my friend from Vermont he has said all that can be said on his side, and I have en-
deavored to say what I could on the other. I shall not, therefore, detain the Senate
by any further discussion.

The Presiding Officer. The question is on the amendment of the Senator from
Vermont, [Mr. CoUamer.]

The amendment was read, as follows :

"Strike out the preamble and resolution and insert the following:
" 'Besohrd, <fc.. That the people of no State, the inhabitants whereof have been de-
clared 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," ap-
proved July 13, 1861, shall be regarded as empowered 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 the law of the United States, or until they shall be repre-
sented 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.'"

PROCEEDINGS AND DEBATES IN CONGRESS. 217

The questiou being taken by the yeas and nays, resulted — yeas 13, nays 27 ; as fol-
lows :

Yeas — Messrs. Anthony, Brown, Clark, CoUainer, Dixon, f'arwell, Foot, Harlan,
Howard, Lane of Kansas, Ramsay, Sumner, and Wilson— 13.

Nays— Messrs. Bnckalew, Chandler, Couuess, Co .van, Davis, Doolittle, Foster, Hale,
Harris, Henderson, Hendricks, Howe, Johnson, Lane of Indiana, ilorgan, Morrill, Nye,
Pomerov, Powell, Saulsbary, Sherman, Stewart, Ten Eyck, Trumbull, Van Winkle,
Willey, and Wright— 27.

Absent— Messrs. Carlile, Grimes, Harding, Hicks, McDougall, Nesmith, Richardson,
Riddle, Sprague, Wade, and Wilkinson — 11.

So the amendment was rejected.

The joint resolution was reported to the Senate 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 bo read.

The Secretary read the amendment, which was to strike out from the preamble the
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, 1H64 ; " and in
lieu of them to insert, "and were in such state of rebellion on the 8th day of Novem-
ber, 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;" so as to make the preamble read as follows:

"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 elec-
tion for electors of President and Vice-President of the United States, according to
the Constitution and laws thereof, was held therein on said day."

Mr. PoMKROY. 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 questiou is
not on striking out the whole preamble.

Mr. PoMEROY. I propose to offer an amendment to which I tliink the chairman of
the committee will not object; and that is, instead of saying that these States contin-
ued up to the Sth 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 " condition." 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 preamble, and not to substitute anything in its place. I perceive that in that
respect I was mistaken, and that there is a substitution of other words which satisfy
me. I shall therefore vote for the amendment of the committee.

Mr. Trumbull. I have no right to accept the amendment of the Senator from Kan-
sas, which is only to insert the word " condition " in place of the words " state of rebel-
lion," 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 sat-
isfactory to some members of the Senate, and does not alter the meaning of the reso-
lution or preamble, I shall not object to it. The preamble, if thus amended, will then
read that certain States rebelled 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 propriety of this change. It says they rebelled at
such a time and were in a bad condition on the Sth of November. What the condition
was it does not state. Was it a bad condition of health 1

Mr. Hale. I think the history of the Senat j affords a precedent for the phraseology
that is to be used here. It was once stated in a certain case on the floor of the Senate
that certain members did not belong to a kealthy political organization. [Laughter.]

Mr. PoMEUOY. 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 Gi)vernnient four years a^o 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 pear. Then how could they have been in rebellion in that State
on the Sth day of November last f The progress of our armies has been such that they

218

COUNTING THE ELECTORAL VOTE,

were not there; and for us to say in this preamble that they continued iu a state of
rebellion up to that time is not true. I am -willing to say that the disorganized condi-
tion 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 expedient to hold an elec-
tion. 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 Pkesiding Officek. The question is on the amendment of the Senator from
Kansas 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 Arkansas, that they are not iua state of i-ebelliou. 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. PoMEKOY. 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. PoMEi;oY. They were not driven out as local authorities, but as individuals.

Mr. Johnson. They could not have been driven out otherwise. Slill, iu 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
rebellion ; that is to say, they were warring against the United States, either collect-
ively 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 iu 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 iu the act of July 13, 1861, and as the President has said iu his proclama-
tion issued 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 insurrection ; and then the qucistion
comes back whether a State whose inhabitants are collectively for the most part in a
state of insurrection (that is to say, are opposing the laws of the United States, and
who are supported iu that opposition by the local authorities, such as they are) can
elect electors.

Mr. PoMEKOY. 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 Uuiou men ;
and for us to say that the real local authorities of that State were in rebellion on the .
8th day of last November will be saying what is not true. In the first place, the term
of ofHce of the old local authorities had expired by limitatiou ; and in the second place,
the chief men in that government were not 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 November, or were iu a condition to do so, is saying what caunot be true ; and
that our local authorities made war on the Government is equally untrue. I am will-
ing to say that these parties, not having been recognized or countenanced by the
Government, were in such a condition that they could not hold an election, and with
that amendment I propose to sustain the resolution. I ask for the yeas aud 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
nie, to avoid any trouble about the recitals iu the preamble, 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. Trumbvll. We have had a direct vote on that, and now we are having a contro-
versy .about a matter which I am sure if the resolution was printed and laid before
Senators there would be no controversy in regard to it. The question now pending is
simply whether the word "condition" shall be used in place of the words "state of
rebellion." The Senator from Vermont thinks it very objectionable because he sup-
poses 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 previous language of
the preamble explains it. It seems to me nobody can misunderstand it who does not
want to misunderstand it, wilh the resolution before him. The preamble now recites
that the States of Arkansas, Temiessee, and others rebelled against the Government of
the United States, and were in such state of rebellion that no valid election was held
iu 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

PROCEEDINGS AND DEBATES IN CONGRESS. 219

that the condition of things was such that uo valid election conld be held, and he
wants to change the words "state of rebellion'' to the word " condition." Does that
alter the effect of the resolntion, 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 cau
see no possible objection to adopting his amendment, and then we shall be done with
the coutrov^ersy.
The question being taken by yeas and nays resulted — yeas 26, nays i:? ; as follows :
Ykas — Messrs. Anthony, Brown, Buckalew, Chandler, Clark, Cunness, D.ivis, Dixon,
Doolittle, Farwell, Foot, Harlan, Harris, Henderson, Hendricks, Lane of Kansas. Mor-
gan, Pomeroy, Powell, Ramsey, Saulsbary, Sherman, Trumbull, Van Winkle, Willey,
and Wilson — 2B.

Nays — Messrs. Collamer, Cowan, Foster, Grimes, Hale, Howard, Johnson, Morrill,
Nye, Stewart, Ten Eyck, Wade, and Wright — 13.

Absent — Messrs. Carlile, Harding, Hicks, Howe. Lane of Indiana, McDougall, Nes-
mith, Richardson, Riddle, 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 Pkesiding Officer. The first question is on concurring iu the amendment made
as iu Committee of the Whole as it has been amended.

Mr. Doolittle. It is true that yesterdaj'^ the Senator from Kansas made a motion to
strike out the names of those States from the preamble ; but he did not move to sub-
stitute for the whole resolntion and preamble the resolution as it wonld read with the
names of the States in. Merely striking out the names from tlie preamble, as the Sen-
ator from Illinois remarked, left the resolution with no meaning, and therefore some
Senatoi-s 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 col-
lege, leaving out the preamble ; for there seems to be some difficulty about the recitals
in the preamble. This presents the question in a different point of view from that iu
which it was presented yesterday.

Mr. Tkuimbitll. 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 preamble and put them into the re.solntiou.
Will it be any better then ? It is just taking up time. I hope the Senate will adhere
to The resolntion as it is, and vote down all amendments which are proposed.

Mr. COLLAMEH. Without this preamble I do not understand that the resolution
states the condition of the 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 re-
ception of Arkansas, Louisiana, and Tennessee, and that there is or will be a clear ma-
jority in this body iu favor of that proposition. It is not true, .as stated in this pream-
ble, that the local authorities of the States of Arkansas and Louisiana were not iu a
situation to cast their votes for President and Vice-President either by being in rebel-
lion or by being iu "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 inserting the names of the States in the resolution,
as I have suggested, we reach the object desired by the Senator from Illinois, and re-
lieve 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 amended.
The question being taken by yeas and nays resulted — yeas :52, nays 6; as follows;
Yeas— Messrs. Anthony, Brown, Buckalew, Clark, Collamer, Conness, Davis, Dixon,
Doolittle, Farwell, Foster, Grimes, Hale, Harlan, Harris, Henderson, Hendricks, How-
ard, Lane of Kansas, Morgan, Morrill, Nesmith, Nye, Pomeroy, Ramsey, Sherman,
Stewart, Sumner, Trumbull, Wade, Wilson, and Wright — 32.

Nays — Messrs. Cowan, Foot, Johnson, Ten Eyck, Van Winkle, and Willey — 6.
Absent — Messrs. Carlile, Chandler, Harding, Hicks, Howe, Lane of Indiana, McDou-
gall, Powell, Richardson, Riddle, Sanlsbury, Sprague, and Wilkinson — 13.
So the amendment as amended was concurred in.

Mr. Lank, of Kansas. I now move to strike out the preamble, and to strike out after
the word "States," iu the third line of the resolution, the words " mentioned in the
])reamb]e," and to insert in lieu of thorn "Virginia, North Carolina, South Carolina,
Ge )rgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee,"
and on this amendment I ask for the yeas and nays.
The yeas and nays wore ordered.

Mr. JoiiNSOX. As far as the mere object is concerned, which is to exclude the votes
of these States, whether the resolution pass in its present fonn or in the form now pro-
posed makes uo difference; but it seems to me singular legislation to resolve that

220 COUNTING THE ELECTORAL VOTE.

the votes of certain States shall not be counted, -without assigniuo- any reason why
they shall not be counted. How is the President to know w by they should not be
counted ? How is the House of Representatives to know^ why they should not be
counted? How 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 rae iudividually, 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 votiug we ought to state why we exclude them. For that reason
I shall vote against this amendment.

Mr. Cowan. The objection of tlie honorable 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 sutMcient to
show ustlie 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 legisla-
tive in its character.

Mr. Lane, of Kansas. We have spent several days here trying to satisfy onrselves
that a rule should be adoi)ted for the control of the joint convention that is to meet
next Wednesday. 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 legis-
lative body. We desire to say that certain States shall not be entitled 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 dis-
tinguished 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, wo drove their Senators from our doors last
session. I am one oftlie 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 oi' any of the seceded States into the Union does more to demoralize
our opponents and U> close cut this rebellion than any other act that we can accom-
plish. It is worth more than all the victories which can be gained in the field. I want
these States brought back ; 1 want to encourage the Union men in all the .seceded
States when they evince that tiiere is any Union feeling within their borders.

Mr. JoiiN.soN. The honorable member is mistaken in supposing that this is a mere
rule. A rule may be determined perhaps by the convention, or certainly by the con-
current action of the two bodies that constitute the convention. What we propose to
do uow^ is to pass a law, to which the President's assent is necessary 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 authority — when it is passed by both bodies and approved by
the President, it is binding on the members of the convention when they meet to-
gether. It is, therefore, no rule; nor is it a decision, as tlie honorable member from
Pennsylvania supposes. A decision of what ? It is a dechiratiou 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 operates as a law. Then the
only question with me is whether it is proper in Congress, having authority in certain
cases, as I think, to exclude votes of electors, to declare that the votes of any particu-
lar 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
convention would be as potent as this law for this purpose.

Mr. DoOLiTTLE. This preamble contains a recital which meets the views of some
gentlemen 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 Louisiana upon this oilier ground, that Louisiana has no representation in
Congress, and not having any representation in Congress should not be represented in
the electoral college The fearned Senator from Ohio [Mr. Sherman] based his argu-
ment entirely on tbat 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 votiug for the proposition, that the
votes of these States shall not be counted in the electoral college ; and then the pre-
amble wonld have no embarrassing effect or entanglement 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 adnutted or not. It

PEOCEEDINGS AND DEBATES IN CONGRESS. 221

seems to me that it is wise to strike out tlie preamble and leave the proposition 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 sub-
mitted to-day for the amendment of the preamble, although some of them, I believe,
aie improvements upon the preamble as originally reported. Being opposed to the
preamble and to the resolution itself, so far as it atfects certain of the States mentioned,
it might, perhaps, according to the ordinary method of parliamentary proceedings,
have been esteemed excusable or proper in me to have voted "yea" on several of these
propositions looliing toward an amelioration 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 amendments.

Now, sir, if I were not prepared to say tiiat the States of Louisiana or Tennessee were
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 1 be prepared to say that, in consequence of this
rebellion, on the 8tli day of November last they were in such a condition that they
could not vote ? I would much rather meet the ((uestion 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 bold-
ness to assign a cause.

That consideration regulates and controls my action in my vote on the amendment
now proposed by the Senator from Kansas. I am not pre[)ared to vote barely and
squarely that these States shall not be counted in the electoral college, without as-
signing anj' reason under heaven for my actiou. I think it is due to the people tliere,
if there be a corporal's guard of loyal men, that we should assign here the reason why
we will not allow theni to have an electoral 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 proprsition from beginning to end, and I have voted, and shall vote, consist-
ently I think, " nay " throughout.

Mr. Howe. Mr. President, I have not taken much part in this discussion, and I do
not propose to take much ; but 1 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 tiie resolution or not, but what reason
we shall assign for passing it. Ordinarily, when you are agreed as to what law you
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 extniovdinary thing, and therefore they felt it incumbent on
them to assign the reasons upon which they acted with a great deal of care and accu-
racy, and hence yon have been debating for fonr days as to the question what reason you
shall assign for enacting this law. I do not thinlc 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,
declaring 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 Represent-
atives 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 before,
I swear it now.

Mr. Pz-esident, 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
November 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 of Con-
gress I had occasion to call attention to this very subject, and to say then that it
seemed to me the littiug time to fix the relations of these communities before the elec-
tion was held, before we knew what would be the significance 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

222 COUNTING THE ELECTORAL VOTE.

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 tlie judge of what is a valid election of presidential
electors? "Each State shall appoint, in such manner as the legislature 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. TLe 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
reason ? 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 reason why a valid election could
not beheld; 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 rebellion 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 con-
cede that the law you are about to pass depends for its validity on the reasons you
assign for it, when in assigning reasons you dilfer 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 remarkable debate we have had. The com-
mittee recite these facts as the ground upon which you shall proceed to disfranchise
eleven States. They recite them as fixcts, present them as reasons why you should do
it. The amendment which has created more debate than any other was the amend-
ment moved by the Senator from Vermont, tlie effect of which was mainly to jn-esent
as a reason for enacting this law, not anything that we affirmed to be a fact, but some-
thing that the President has affirmed to be a fact. The committee say, disfranchise
those States because their i)eople were in November in a state of rebellion ; the amend-
ment moved by the Senator from Vernumt asked us to disfraiichise 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 yon and I agree upon the fact fur which we do it, or
whether we act upon something that the President or some other agent of the Govern-
ment 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
VFell declare that they should not marry. I think you can declare it just as well of
the i^eople 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 com-
mits 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 committed treason or engaged in rebellion ?

But you do not rely upon that; the fact of rebellion you do not insist upon as a
sufficient reason for passing this law, and therefore 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 reason why a valid election was not held? If you are made the
judges of Avhat is and what is not a valid election, why do you not say 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 political relations of these communities, and if yon 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 yon. When you establish that, you 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, Chandler, Clark, Collamer, Conness,
Davis, Dixon, Farwell, Foster, Grimes, Hale, Harlan, Henderson, Hendricks, Howard,
Johnson, Morgan, Merrill, Nye, Powell, Eamsey, Saulsbury, Sherman, Sumner, Ten
Eyck, Trumbull, Wade, and Wright— :50.

Absent — Messrs. Carlile, Foot, Harding, Hicks, Howe, Lane of Indiana, McDougall,
Pomeroy, Richardson, Riddle, Sprague. Stewart, Wilkinson, and Wilson — 14.

So the amendment was rejected.

PROCEEDINGS AND DEBATES IN CONGRESS. 223

The ameudruent 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, Collaraer, Conness,
Davis, Dixon, Farwell, Foster, Grimes, Hale, Harlan, Henderson, Hendricks, Howard,
Johnson, Morgan, Morrill, Nye, Powell, Ramsey, Sherman, Stewart, Sumner, Trumbull,
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, Pom-
eroy, Richardson, Riddle, Sprague, Wilkinson, and Wilson — 12.

So the joint resolution was passed.

Ix THE House of Representatives, February 4, 1865.

Mr. Wilson. I ask unanimous consent to take from the Speaker's table the joint
resolution (H. R. No. 126) declaiming 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 np, and the amendment was
read, as follows :

"Strike out of the preamble the words 'and were in such condition of armed rebel-
lion 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 election for electors of President and
Vice-President, according to the Constitution and laws thereof, was held therein on
said day: Therefore.'"

Mr. Yeaman. I desire to offer a substitute for the joint resolution.

Mr. Wilson. I desired to demand the previous question on the amendment.

Mr. Yeaman. I object if I am not allowed to offer a substitute.

Mr. Stevens. Then I move to go to business on the Speaker's table.

Mr. Yeaman. I withdraw my objection andotier the following substitute for the joint
resolution :

" Be it resolved &i/ the Senate and House of Bepresentatives 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 immaterialfor Congress to go behind 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
gentleman from Kentucky would be in order to the original bill, but is not in order
to the Senate amendment.

Mr. Yeaman. 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 auu^.ndnient, 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 question.

The demand for the previous question was seconded.

Mr. Cox moved that the House do now adjourn.

The question was taken ; and the motion to adjourn was not agreed to.

The question recurred ujiou ordering the main question ; and being taken, the main
question was ordered.

The question was then taken upon concurring 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
amendment of the Senate ; and also moved that the motion to reconsider be laid on
the table.

The latter motion was agreed to.

In Senate, February 6.

Twenty-second joint rule.

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 Vice-President of the
United States have instructed me to report the following joint rule in part in the dis-
charge of their duty :

224 COUNTING THE ELECTORAL VOTE.

" Besolved hy the Senate, (the House of Representatives concurring therein,) That the
following be added to the joint rules of the two houses, namely :

" 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 suc-
ceeding 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 Presi-
dent of the Senate, the certificates of the electoral votes ; and said tellers having
read the same in the i^resence 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 of the same shall be delivered to the President
of the Senate, who shall thereupou anuounce the state of the vote and the names of
the persons, if any, elected, which aunouucemeut shall be deemed a sufficient daclara-
tionof the persons elected President and Vice-President of the United States, and, to-
gether with the list of the votes, be entered on the journals of the two houses."

That is the usual form, as far as 1 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 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 manner state the 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 concurring vote of the two houses, which being obtained, the two
houses shall immediately re-assemble, and the Presiding Officer shall then announce the
decision of the question submitted ; and upon an^' such question there shall be no de-
bate in either house. And any other question pertinent to the object for which the
two houses are assembled may be submitted and determined iu 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 Senators, the body of the hall on the right of the Presiding Officer ; for Representa-
tives, the body of the hall not occupied by Senators ; for the tellers, Secretary of the
Senate, and Clerk of the House of Representatives, at the Clerk's desk; for other offi-
cers of the two houses, iu front of the Clerk's desk and upon either side of the Speak-
er's platform.

" Such joint convention shall not be dissolved until the electoral votes are all counted
auyd the result declared, afld 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 iu 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 understood the Senator from Illinois to say that the latter part of
the report is not to be found iu the reports heretofoi'e made by which these conven-
tions 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
qitestion 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 understand it so.

Mr. Tkumbull It so reads.

Mr. Cowan. There is one difficulty I would suggest to the honorable Senator from
Illinois. It is provided that when questions shall arise iu the joint convention, the
houses shall se])arate and consider the matter separately. Now, suppose there is a
question there whether the vote of Louisiana shall be counted. The Senate retires to
its chamber and decides that it shall; the House of Representatives organize and
decides that it shal^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 fundamental mistake at the bottom of this provision.
I think it belongs to the houses in joint convention 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 spectators, because otherwise
the votes might be counted separatelj^ in the separate chambers. Therefore I think
that provision is objectionable. Any one of the houses, then, could disfranchise a State
according to the construction that is to be put upon it.

Mr. Tkumbull. 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 sup-
pose that you must take a vote ^er capita, the Constitution provides no means for any

PROCEEDINGS AND DEBATES IN CONGRESS. 225

sucli actiou. 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 a public meeting. That question was very elaborately dis-
cussed the other day. I hope no discussion is to spring up on this report, because it is
important that we have action upon it at once.

Mr. CoWAX. 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 action as a joint body. They go there to see the votes opened, and then Con-
gress 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 i)C)\ver 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
governance of this convention itself; and to show that it is a convention, and to show
it conclusively, the resolution ofi:ered by the committee to-day provides for its organ-
ization, provides that it shall have a Presiding Otiicer, provides some rules at least for
its governance, provides for the appointment of tellers.

Mr. Trumbull. Each house appoints the tellers, not the joint convention.

Mr. Cowan. Then I think the joint convention should appoint the tellers.

Mr. Trumbull. It never was done since the Government was formed. That part of
the resolution is similar to the one we have always acted under since Washington was
elected President.

Mr. Cowan. Then we encounter the mischief I suggested a moment ago. If there
was a partisan majority in the Senate opposed to the counting of the votes of a par-
ticular State, all it had to do would be to stand firmly upon its resolve that they should
not bo 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 contemplated ?

Mr. Trumbull. If the Senator from Pennsylvania will allow me to j)ut a question to
him lie will see that there is nothing in the question 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 Gov-
ernment, they will not meet at all. Yon 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
18 a tacit admission that the Senate may do that thing. There is no presumption that
tlie 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 means they can gain an advantage from the country when they are overthrowiog
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 be deter-
mined.

The Vice President. The question is on agreeing to the report of the committee.

The report was agreed to.

In the House of Representatives, February 6, 1865.

Mr. Stevens. I ask unanimous consent to take from the Speaker's table and put upon
its passage a concurrent resolution sent to us from the Senate to-day in reference to
counting the electoral votes.

No objection being made, the resolution was taken up, considered, and agreed to ; as
follows :

[The resolution is here given literally as already quoted in the Senate proceedings of
the same date.]

Mr. Stevens moved that the vote by which the resolution was agreed to be recon-
sidered ; and also moved that the motion to reconsider be laid on the table.

The latter motion was agreed to.

In Senate, February 7, 186.5.

Mr. Trumbull. The joint rule which has been adopted by the two houses in regai'd
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 President of the Senate appoint the teller on the part of the Senate.

The motion was agreed to, and the Vice-President appointed Mr. Trumbull.

226 COUNTING THE ELECTORAL VOTE.

In the House of Representatives, February 7, 1865.
The Speaker appointed Messrs. Wilson of Iowa, and Dawson of Pennsylvania, as
tellers on the part of the House to count the electoral votes for President and Vice-
President of the United States.

In Senate, Fehruary 8, 186.5.

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 Repre-
sentatives for the purpose of opening, counting, and declaring the votes for President
and Vice-President of the United States for the term couimencing ou the 4th of March,
1865.

The Senate accordingly proceeded to the hall of the House of Representatives, 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.

In the presence or the Senate and House of Repkesentatives,

Februarn 8, 1865.

At five minutes past 1 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 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 Presiding Officer of the joint convention of the
two houses, the Speaker occupying a chair on the left of the Vice-President.

Senator Trumbull, 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 ofthe 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 purpose of opening, determining, aiul declar-
ing the votes for the offices 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, iu
the presence of both houses thus convened, to open the votes, I now proceed to dis-
charge 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 Tkuaiuull, one of the tellers, read in full the certificate of the vote of the
State of Maine, giving seven votes for Abraham Lincoln, of Illinois, for President of
the United States, and seven votes for Andrew Johnson, of Tennessee, for Vice-Presi-
dent of the United States.

Senator Wade. Mr. President, I move to dispense with the reading of everything in
the certificate except the result ofthe 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 iu 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 i^esults.

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 St.ate of New Hampshire.

The tellers reported, through Senator Trumbull, that they had ex.nuiined the vote of
the State of New Hampshire, that they found it in due form, that all the votes given
for President of the United States were five, all of which were for Abraham Lincoln,
of the State of Illinois, and that all the votes given for Vice-President of the United
States were five, all of which were for Andrew Johnson, of the State of Tennessee.
The same form was observed iu announcing the votes of the other States.
The tellers having read, through Mr. Wilson, the certificate from the Stafe of Nevada,
showing that two votes had been given for Abraham Lincoln, of Illinois, for President,
and two votes for Andrew Johnson, of Tennessee, 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 Vice-President.
The vote of the State of Nevada having been recorded.

Senator Cowan said : Mr. President, I inquire whether there are any further returns
to be counted ?

PROCEEDINGS AND DEBATES IN CONGRESS. 227

The ViCE-PuESiDENT. There are not.

Senator Cowan. And if there be, I would inquire why they are not submitted to this
body iu joint couveutiou, which is alone capable of deteruiining whether they should
be counted or not?

The Vici:-Pi!KSiDENT. Tiie Chair has in his possession returns from the States oi
Louisiana 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 President of the Uuited States?

The Vice-Pkk8ident. The Chair believes that the official communication of its ap-
proval by the Piesideut has not been received 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 suogest 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
determined.

The Vick-Pkesident. The Secretary will read the joint resolution uuder which the
House and Senate are now acting.

The Secretary of the Senate then read as follows :
[Here the joint rule quoted above was read.]

Mr. Stevens. I do not think any question has arisen which requires the two houses
to separate. That, according to the wording of the joint resolution, can only be upon
tlie reading of the returns which have been opened by the President of tlie convention.
Senator (JoWAN. I merely wish to say that, believing as I do that it rests with this
joint convention, in its joint capacity, to determine all questions which ought to arise
here, I have done what I have thought to be my duty in bringing to the attention of
the convention the question which 1 have raised. Having done so, I now beg leave to
withdraw it.

The Vice-Pkesident. The Chair did not understand the Senator from Pennsylvania
[Mr. Cowan] as nial^iug any ilistinct motion, but merely a simple suggestion.

Senator Cowan. I understood that no motion could be entertained iu this conven-
tion.

The Vice-Prp:sident. Motions can be entertained upon any matters pertinent to the
purpose for which the convention has assembled. The decision of those motions must
be determined by the two houses separately, after the Seuate shall have withdrawn
from the convention.

Mr. Yeaman. Mr. President, if it requires a distinct motion to determine the question,
I will move that all the returns betore 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. Yeaman] is in order, being pertinent to the object ibr 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 possession of the Senate
when it shall retire for the determiuatioii of the question presented for the considera-
tion of the convention.

Mr. Piu'YN. I wish to inquire whether a second proposition, one in regard to the
counting of the votes, can be entertained before the two houses shall sei)arate. If so,
I desire to move that the tellers be instructed not to count the vote of the so-called
State of West Virginia.

The Vice-President. In the opinion of the Chair the motion of the member from
New York [Mr. Pinyn] is made too late, the vote of the State of West Virginia hav-
ing been already announced and declared.

Mr. PuuvN. 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
oiieued, 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. W^iiALKY. If it be in order, I would ask the gentleman from New York [Mr.
Pruyn] to state his reasons for his motion.

The Vice-Pkesident. The language of the rule under which the two houses are now
acting is as follows :

" If upon the readirg of any such certificate by the tellers, any question shall arise
as to the counting of the votes therein certified," &c.

The question must be raised when the vote is announced. In the opinion of the
Chair the member from New York [Mr. Pruyn] 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

228 COUNTING THE ELECTORAL VOTE.

that the gentleman from Kentucky [Mr. Yeaman] can submit his motion before the
Vice-President shall have opened, and the tellers shall have announced, the votes of
the States of Louisiana and Tennessee ?

The ViCP>PiiE.siDENT. In the opinion of the Chair the motion of the member from
Kentucky [Mr. Yeaman] is iu order. It does not apply to a return where objection is
made, but it applies to a return which has not been submitted to the convention. It is
a distinct motion 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 Farwell. I would suggest that the question raised by the member from
Kentucky [Mr. Yeaman] 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, there-
fore, 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. Farwell] raise a question
of order upon the ruling of the Chair?

Senator Farwell. I raise the question of order that this question has already been
decided by the two houses of Congress in passing the joint resolution under which
this convention is acting, which joint resolution has been approved by the President.

The ViCE-PirESiDENT. The fact of that approval of the President is within the knowl-
edge of the Chair, and iu consequence of that knowledge the Chair has seen fit to
withhold the returns of the States in question. There has been no ofticial promulgation
of that approval 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 power to do so. The reading of the returns "would be one thing ; then
would arise another question, whether the vote iu the return so read should be added
to the count of the tellers. In the opinion of the Chair, the motion of the member
from Kentucky [Mr. Yeaman] is in order.

Mr. Yeaman. Before I submit my motion in writing, I would inquire whether tlie
submission of that motion would require the temporary 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
determination of the other.

Mr. Yeaman. Then I desire to submit another suggestion.

Mr. Washhurnk, 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. Yeaman. Then I withdraw my motion, if it requires the separation of the con
ventiou into the two houses.

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 :

PROCEEDINGS AND DEBATES IN CONGRESS.

229

List of rotes for President and Vice-President of lite United States for the conslitational term
to commence on the ith day of March, 1865.

States.

Maine

New Haiiipsliiie

Massachusetts

Khode Island and Providence Plantations.

Connecticut

Vermont

New York

New Jersey

Pennsylvania

Delaware

Maryland

Kentucky

Ohio

Indiana

Illinois

Missouri

Michigan

Wisconsin

Iowa

California

Minnesota

Oregon

Kansas

"West Virginia.
Nevada

Total .

President.

S-!^

'=!•+-

Vice-President.

W=s

The Vice-Pkesioent. Tlie tellers report that the whole number of votes cast for
I'resident and ^^ice-PresideDt of the Uuitecl States is 233; necessary to a choice, 117.
For President of the United States, the tellers report 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 anuouuce that Andrew Johnson, of
Tennessee, has received 212 votes, and George H. Pendleton, of Ohio, has received 21
votes :

Wherefore, I do declare that Abraham Lincoln, of the State of Illinois, having re-
ceived 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 Marcli, 1865; and
that Andrew Johnson, 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
door and in the galleries.]

The Vice-Pkesidext. 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.

In Senate, Fehriiari/ 10, 1875.
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 Representaiires :

"The joint resolution entitled 'Joint resolution declaring certain States not entitled
to representation in the electoral college' has been signed by the Executive in defer-
ence 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 Constitution, have complete power to exclude from couuting ail electoral votes

230 COUNTING THE ELECTORAL VOTE.

deemed by them to be illegal ; and it is not competent for the Executive to defeat or
f.bstruct that i^ower by a veto, as would be the case if his action were at all essential
D the matter. He disclaims all right of the Executive to interfere in any way in the
jaatter of canvassing or counting electoral votes, and he also disclaims that, by signing
said resolution, he has expressed any opinion on the recitals of the preamble or any
judgment of his own upon the subject of the resolution.

"ABRAHAM LINCOLN.
" Executive Mansion, Fehruary 8, 1865."

Mr. Johnson. That to me is a very extraordinary course for the President to pur-
sue. I have no doubt his motives are perfectly coirect and patriotic ; but if his ap-
proval is necessary to give effect to the joint resolution, accom^ianying that approval
with a disclaimer of any belief in the doctrines of the resolution is wholly inconsistent
with his duty of approving 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 ap-
proved it without saying a word on the subject.

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 absence of any leg-
islation the two houses of Congress, either acting in convention or acting separately,
might establish for themselves rules by which they would be governed in admitting
or excluding votes. But it is equally true, in my judgment, (and I speak it with all
the deference that 1 can feel for the opposite opinion 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 legis
latiou to be disposed of by the convention.

This is not the lirst time in which it has been done. The bill for the reconstruc-
tion of the seceded States was passed by an overwhelming vote in both houses at
the last session. The President, to be sure, did not return it with a qualified veto, or
with any veto, or with any ai)proval. 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, aud by
not acting he put it out of the power of Congress to pass it ; but immediately after
Congress adjourned he issued a manifesto or a proclamation, in which he said that,
according to his view, there were some good things in the bill passed by Congress, aud
some bad things ; as far as they were good, he would act upon them ; as far as he cou
8idere<lthem 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 ap-
proval and in part by way of disapproval. He rea<ls us a lecture, virtually, in this paper.
He says we have legislated 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 de-
cided. In the exercise of his constitutional jiower of acting upou 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 which 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.

ELECTION FOR THE TWENTY-FIRST TERM— 1869,

Ulysses S. Grant, President.
Schuyler Colfax, Vice-President.

In Senate, Jamiary 13, 1869.
Mr. Coukling submitted the following resolution ; which was considered and
agreed to :

'■^Resolved, That the President of the Senate be authorized to appoint the teller on the
part of the Senate, provided for in the twenty-second joint rule of the two Houses, to
receive and count the votes for President and Vice-President.''

February 5, 1869.

The Vice-President appointed Mr. Coukling the teller on the part of the Senate to
receive and count the votes for President and Vice-President, as provided for in the
twenty -second joint rule.

PROCEEDINGS AND DEBATES IN CONGEESS. 231

In the House of Eepresentatives, February 4, 1869.
Mr. ScTiEXCic. I rise to offer a resolution iu reference to the counting of electoral
votes for President and Vice-President, which I ask the Clerk to read.
Tlie Clerk read ns follows:

"Bcsolved, That James F. Wilson, of Iowa, and John V. L. Prnyn, of New York, be
appointed tellers on the jiart of the House of Eepresentatives to count the electoral
votes for President and Vice-President."
The resolution was agreed to.

In Senate, Felruarij 8, 1869.

ELECTORAL VOTE OF GEORGIA.

Mr. Edmunds. If there are no further bills or resolutions, I move that the Senate
now proceed to the consideration of the resolution named by me.

Tlie motion was agreed to; and the Senate proceeded to consider the following reso-
lution, submitted by Mr. Edmunds on Saturday 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 undetermined ; and
whereas by the joint resolution of Congress, passed Jnly 2U, 186S, entitled 'A resolu-
tion excluding from the electoral college votes of States lately in rebellion which shall
not have been re-organized,' 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 behalf: Therefore,

'■'ItemJved bi/ the Senate, (the House of Keprenentafircs concurring,) That on the as-
sembling of ithe two houses on the second Wednesday of February, 18G9, for the
counting of the electoral votes for President and Vice-President, as provided by law
and the joint rules, if the connting or omitting to count the electoral 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 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 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 created after the difticnlty of 1857 about
counting tlie vote of Wisconsin, if the vote of Georgia shonld be ol)jected to in the
joint convention, if I may so style it, next Wednesday, it will be necessary for the
Senate to retire immediately, and to consider without debate the cpiestion whether
(reorgia had complied with the reconstruction acts of Congress and the resolution of
the 2Utli of 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 con-
dition of Georgia, whether she has become entitled to admission into this chamber and
into Congress, and has complied with the conditions 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 onght to leave the
(luestion where it stands now, for fair discussion and deliberate action. This resolu-
tion, therefore, provides that if the vote of Georgia shall make no difference in the re-
sult, the Presiding Officer shall annonuce it hy pot hetically, which obviates all difficulty ;
and I may say it is precisely the course that the two laouses took in 1821, under a
similar resolution, in the case of Missouri. That State claimed to have complied with
the act admitting her into the Union, and voted for President 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 bo 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,
althongh 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 j)resented. 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
immateiial 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 f It would seem to be very clear that

15 X

232 COUNTING THE ELECTORAL VOTE.

Georgia was entitled to vote 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-Presi-
dent of the United States, nor shall any electoral votes be received or counted from
any of sncii States, unless at the time prescribed by law for the choice of electors the
people of sncii States, pursuant to the acts of Congress in that behalf, shall have, since
the 4th day of March, l.^(i7. 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 constitution
and government, and such State shall have also become entitled to representation in
Congress pursuant to the acts of Congress in that behalf"

Now, sir, we all know that since the 4tih of March, 18G7, 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 beheld under the authority of such consti-
tution and government." It is not denied that the election in Georgia was under the
constituti(m and government organized since March, 18G7. "And snch State shall have
also become entitled to representation in Congress;" not that it shall be represented
in Congress, but that it shall have become " entitled to representation in Congress
pursuant to the acts of Congress in that behalf." Now, by turning to another act of
Congress, passed on the 2otli of June, 1S6S, we find that Georgia is declared to be
entitled to representation in Congress. Tiiat act is in these words :

"That each of the States of North Carolina, South Caroliaua, Louisiana, Georgia,
Alabama, and Florida shall be entitled and admitted to representation in Congress as
a State of the Union, when the legislature of such State shall have duly ratified the
amendment to the Constitution of the United States,"

known as article 14, and also in the case of Georgia having stricken out a provision of
her relief clauses, so called. We have the evidence 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 proclamation in pursuance of this act of Congress, declaring the ratiiicatiou
of the fourteenth amendment by the legislature of Georgia in the same manner that it
bas been ratified by the otiier States. We have also the evidence that Georgia com-
plied with the other condition required of her by striking out a certain provision in
her constitution known as the relief clauses — clauses inserted for the jiurpose of pre-
venting the collection of debts. Prima facie it would seem that Georgia was entitled
to representation and entitled to vote for President. Congress has not yet set aside
these proceedings. The question will arise hereafter whether Cong! ess can set them
aside, and upon that there will be some difference of opinion, I apprehend. It is known
that there is a difference of opinion ; but at this time, ^;/'i*«a/at'(e she is entitled to have
her vote counted. But, as has been said by the Senauir from Vermont, 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 involve this country in civil war.
It is a very delicate matter to undertake to determine 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 anj' way that they are not entitled to vote, and to do it by resolu-
tion in this way, seems to me a dangerous precedent.

My only object in rising was to call attention 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. 1 do not wish to occuiiy 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 jirima facie state of the case. I believe it is capable
of demonstration not only that Georgia is not prima facie i:utitled to have her vote
counted or to be represented as a State in this Union, but that the evidence is conclu-
sive the other way. But this is not the time to discuss that, because, as I said before,
it is a grave question, that recpiires calm discussion and time for deliberation. I only
propose this to avoid the difficulty that mj friend sees will arise unless we agree to
this resolution.

Mr. HKNDiacKS. I wish to submit to the Senate whether the two liouses ought, in
advance 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. Hendiucks. The Senator from Vermont says they do not assume to know that.

TROCEEDINGS AND DEBATES IN CONGRESS. 233

Then I do not unclcrstaml the resolution. The resolution is that the President of the
Senate shall announce as follows:

" Were the votes presented as of the State of Georgia to be counted, the result would

l)e, 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 tlie United States."

Mr. Edmunds. My friend has omitted to cast his eye on the four or five precedinj;
lines, which state that, if in the counting, the result shall not be changed, he shall
announce it in this way. If it turns out to be otherwise, we shall be obliged to meet
the ((uestion, of course.

Mr. HKNDincKS. This is the announcement 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. Hen'duicks. 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. Hkxdu.icks. I understand from the Senator from Vermont that -when Georgia
is readied in the call of States, the vote of Georgia is not to be announced as counted.

Mr. Edmunds. My friend from Indiana does not quite understand the purport of
this resolution, I tiiink. It merely directs the President of the Senate that in making
his announcement, (and he announces the final result all at once of the whole vote, as
the practice has always been,) if the vote of Georgia makes no difference he shall so
announce it.

Mr. Henduicks. 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 nuikes 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 re-
sult, 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 lUiuois
alludes to, without debate and without consideration.

Mr. Hendkicks. Then, for a while, Georgia is to be counted, and finall.v 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
announce substantially that Georgia is not counted. That is the substance of it, be-
cause he is simply to announce that if it were counted then the result would be thus ;
if Georgia were not counted, then it would be thus ; so that if the a-nuonncement of tho
Chair is any part of the proceeding, and of its substance, Georgia is not to be counted.
This resolution is to that effect.

Mr. Edaiunds. Not at all.

Mr. Hendimcks. Is such an announcement to be made upon tho ground that the
counting or not counting of that vote will make no difference in the result ? Is the
Senate 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 represen-
tation 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 tho evidence,
which is regarded as conclusive on that subject I believe, of the x)roclamation of tho
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 upou the conditions
prescribed by Congi'ess in the law there is no question of fact in the case of Georgia.
I understand that the objections to the admission of Georgia to representation in this
body are not based upon her non-compliance 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 Com-
mittee 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 legisla-
ture has failed to comply with either of the conditions. The legislature having coni-
])lied 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, although it would not change
the result. We could not consent to a resolution like this, because, for the time being,
t would be stripping her of one of her rights under the Constitution. If Georgia is a

234 COUNTING THE ELECTORAL VOTE.

State in the Union, then wc cannot pass such a resolution as this. I cannot vote for
it, whatever its effect may be upon the result.

Mr. WiiYTE. I flo not see witli what propriety the Senate could adopt a resolution
with such a recital in it as is contained in the resolution now under consideration
in the Senate. It starts with an allegation which, in luy humble judgment, is wholly
incorrect, and one which could not receive m\' support:

"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 undetermined."

I do not understand that question to be pending and undetermined anywhere but in
the Senate. So far from there being any question as to the representation of Georgia
in the two 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 Chamber.

Mr. CoxKLiNO. Will the honorable Senator allow me to make a remark ?

Mr. WiiYTE. Yes, sir. ^

Mr. CONKLIXG. 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 impiire into the right of
Georgia to be represented for the present or the future in that body. Therefore, I re-
mind the Senator that the question has been made not only here, but in the other
house.

Mr. WiiYTE. May I ask the Senator from New York to tell me whether those Repre-
sentatives from, Georgia have not been admitted into the House of Representatives
since the announcement of the acquiescence by Georgia in the requirements set down
by Congress ?

jMr. CoNKLixG. 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 conven-
ing of the legislature, and therefore before all of the things which constitute the im-
pediments, if in truth impediments exist, to the right of Georgia to representation.

Mr. WiiYTE. 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 admit-
ted as Representatives from Georgia since the, requirement by Congress of the adoption
of the fourteenth constitutional amendment. I venture to affirm that they have been
adoMtted since that period of time, and the Senators iireseuted 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 credentials 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 acquiescence by Georgia in the constitutional
amendment, her right to representation in the other house was acquiesced in and set-
tled. 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 ad-
mitted to representation, recognized as entitled to representation, and consequently
entitled to vote at the presidential election, there can be uo doubt.

ELECTORAL VOTE OF GEORGIA.

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 follow-
ing resolution :

" Whereas the question whether the State of Georgia has become and is entitled to
representation in the two houses of Congress is now ))ending and undetermined ; and
whereas by the joint resolution of Congress passed July 20, 18(38, entitled 'A resolu-
tion excluding from the electoral college votes of States lately in rebellion which
shall not have been re-organized,' it was provided that no electoral votes from any of
the States lately in rebellion should be received or counted for President or Vice-Pres-
ident 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 behalf:
Therefore,

^^ Besolred hy the Senate, (the House of Representalives concurring,) That on the as-
sembling of the two houses on the second Wednesday of February, 18G9, for the count-
ing of the electoral votes fjr 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 bo 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,
tor for President of the United States, votes; if not counted, for for

PROCEEDINGS AND DEBATES IN CONGRESS. 235

President of the United States, votes ; but in either case is elected Presi-
dent ot the United States ; and in the same manner for Vice-President."

Tiie President j9ro ttmjyore. The question is ou the adoption of the concurrent res-
olution.

TLe question being put, there were, on a division, ayes, 33 ; noes, 8.

Mr. HicxDiiiCKS. I think this is an important 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 Sexatoks. What is the question '?

Mr. Hkxdiucks. I am told the question is on taking up the resolution of the Sena-
tor 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 Pjsesident jjro lempore. The question 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, Cattell, Cole, Conkling, Corbett, Cragin,
Drake, Edmunds, Frelinghnysen,'Howard, McDonald, Morgan, Morrill of Maine, Morrill
of Vermont, Morton, Nye, Pool, Ramsey, Rice, Robertson, Ross, Sherman, Stewart, Sum-
ner, Thayer, Tipton, Warner, Welch, Wiliey, Williams, Wilson, and Yates — 34.

Nays— Messrs. Buckalew, Davis, Fowler, Hendricks, McCreery, Norton, Patterson of
Tennessee, Saulsbury, Trumbull, Vickers, and Whyte — 11.

AiJSENT-Messrs. Bayard, Chandler, Conness, Dixon, Doolittle, Ferry, Fessenden,
Grimes, Harlan, Harris, Henderson, Howe, Kellogg, Osborn, Patterson of New Hamp-
shire, Pomeroy, Sawyer, Spencer, Sprague, Van Wrinkle, and Wade — 21.

So the resolution was agreed to.

In the House of Representatives, Fthruary 8, 1869.

ELECTORAL VOTE OF GEORGIA.

Mr. WiLSOX, 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 Goorgia, may be
taken from the Si)eaker's table and agreed to.

Mr. Woiidward. I ask the yeas and nays on that motion.

Mr. Far xs 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 the two houses of Congress, is now pending and undetermined; and
whereas by the joint resolution of Congress passed July 20, IHlH, entitled 'A resolu-
tion excluding from the electoral college votes of States lately in rebellion, which
.shall not have been re-organized,' it was provided that no electoral votes from any of
the States lately in rebellion should be received or counted for President or Vice-Pres-
ident 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,

" Btsolred h/ the Senate, (the House of Eenrenentatlres concurring,) That on the as-
sembling of the two houses on the second Wednesday of February, IS'i'J, for the count-
ing 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 presented as of the State of Georgia shall not essentially change the result,
in that case tbey 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 re-
sult 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. Woodward. I ask unanimous consent that the yeas and nays be taken ou the
motion to suspend the rules.

There was no olyection.

So the yeas and nays were ordered.

The question was taken, and it was decided in the affirmative — yeas 93, nays 17, not
voting 107 ; as follows :

Yeas— Messrs. Allison, Ames, Banks, Baaman, Beatty, Benjamin, Benton, Blaine,
Blair, Boles, Bowen, Boyden, Broomall, Bucklaud, Benjamin F. Butler, Roderick R.
Butler, Churchill, Clift, Cobb, Coburn, Corley, CuUom, Dawes, Delano, Deweese,
Dickey, Dixon, Dodge, Eckley, Ela, Ferriss, Ferry, Garfield, Halsey, Harding, Heaton,
Higby, Hill, Hooper, Hopkins, Chester D. Hubbard, Hulburd, Jenckes, Julian, Kelley,
Kellogg, Kelsey, Koontz, Laflin, William Lawrence, Loan, Logan, Loughridge, Mar-
vin, Mayuard, McCarthy, McKee, Miller, Moore, Moorhead, MullLus, Norris, Paine, Per-

236 COUNTING THE ELECTORAL VOTE.

ham, Peters, Pierce, Pile, Plants, Price, Prince, Eaum, Roots, Sawyer, Schenclc, Sco-
tield, Slianlis, Sbellabar<i;er, Starkweather, Stevens, Stewart, Stokes, Stover. Sypher,
Taylor, Thoraas. Trowbriilge, Twichell, Uyison, Robert T. Van Horn, Vidal, Henry D.
Waslibnrn, Welker, Whitteuiore, William Williams, James F. Wilson, John T. Wilson,
and Windom — 98.

Nays — Messrs. Baker, Boyer, Farnsworth, Getz, Holman, Hotchkiss, Johnson,
Thomas L. Jones, Niblack, Phelps, Randall, Ross, Taber, Van Ankeu, Van Trump,
Woodward, and Yonuj; — 17.

Not voting — Messrs. Adams, Anderson, Archer, Arnell, Delos R. Ashley, James M.
Ashley, Axtell, Bailey, Baldwin, Burnes, Barnnn), Beck, Bin<;ham, Blackbnru, Boiit-
Vy-ell, Bromwell, Brooks, Buckley, Burr, Cake, Callis, Cary, Cbanler, Reader W. Clarke,
Sidney Clarke, Cook, Cornell, Covode, Dockeiy, Donnelly, Drigjjs, Edwards, Eguleston,
Eldiidge, Thomas D. Eliot, James X- Elliott, Fields, Fox, French, Glosshrenner, GoUa-
day, Goss, Gove, Gravely, Griswold, Grover, Hai<;ht, Hamilton, Hanghey, Hawkins,
Asahel W. Hubbard, Richard D. Hubbard, Humphrey, Hunter. IngersoU, Alexander
H. Jones. Judd, Kerr, Kelchani, Kitchen, Knott, Lash, George V. Lawrence, Lincoln,
Lynch, Mallory, Marshall, McCormick, ilcCullough. Mercur, Morrell, Morrissey, Mun-
gen, Myers, Newcomb, Newsham, Nicholson, Nuun, O'Neill, Orth, Pettis, Pike, Poland,
Polsley, Pomeroy, Pruyn, Robertson, Robinson, Selye, Sitgreaves, Smith, Spalding,
Stone, Tatie, Tift, John Trimble, Lawrence S. Trimble, Van Aernani, Burt Van Horn,
Van Wyck, Ward, Cadwalader C. Washburn, Elihu B. Washburne, Thomas Williams,
Stephen F. Wilson, Wood, and Woodbridge — 107.

So the motion to susi^end the rules was agreed to, and the concurrent resolution wa^
adopted.

Mr. Wilson, of Iowa, moved to reconsider the vote just taken ; and also moved
that the motion to reconsider be laid ou the table.

'I he latter motion was agreed to.

In the House of Representatives, February 10, 1869.

Mr. Schenck introduced the following resolution ; which was read, considered, and
agreed (o:

" L'cfiolraJ, That the Cleik inform the Senate that this House is now ready to receive
that body for the i)urpose of proceeding to open and count the votes of the electors of
the several States for President and Vice-President of the United States."

In Senate, February 10, 1869.

Mr. McPnERSON, the Clerk of the House of Representatives, appeared at the bar of
the Senate, and delivered the following message :

Mv. President, I am directed to inform the Senate that the Honse of Representatives
is now ready to receive the Senate for the purpose of proceeding to open and count the
A'otes of the electors of the several States for President and Vice-President of tho United
States.

Mr. Morton. I move that the Senate now proceed to the hall of the House of Repre-
sentatives.

The motion was agreed to.

Tiie President jn-o iempore. The Senate will now proceed to the hall of the House
of Representatives for the purpose of counting the votes for President and Vice-Pres-
ident of the United States.

The Senate, jireceded by tho Sergeant-at-Arms and Secretary, proceeded to the hall
of the House of Representatives.

In the presence of the Senate and House of Representatives,

February 10, 1869.
counting the electoral votes.

At 1 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
President j>/o tempore and the Secretary of the Senate, the members and otticers of the
Honse 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 ofHcer of the joint convention
of the two houses, the Speaker occupying a chair ou the left of the President of the
Senate.

Senator Conkling, the teller appointed on the part of the Senate, and Messrs. Wil-
son of Iowa, and Pruyn, 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.

The President pro tempore of the Senate. The Senate and House of Representatives
having met under the provisions of the Constitution for the purpose of opening.

PKOCEEDINGS AND DEBATES IN CONGRESS. 237

(letorniiniiij^, and declaring the votes for the offices of President and Vice-President
of the United States for tlie term of four years coumiencing on tlie 4th of March next,
and it being my duty, in the presence of both houses thus convened, to open the votes,
I now jiroceed to discharge that duty.

The Prcsi(h'nt jno Uinpure then pi-oceeded to open and hand to the tellers the votes
of the scv<'ra] States for President and Vice-President of the United States, commenc-
ing with the State of New Hampshire.

Senator Conkling, one of the tellers, read in full the certificate of the vote of the
State of New Hampshire, giving live votes for Ulysses S. Grant, of Hlinois, for Presi-
dent of the United States, and tivo votes for Schuyler Colfax, of Indiana, for Vice-
President of the United States.

The Pkesidknt. 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 certificate in full shall be called for by any member.

The tellers reported, through Senator Conkling, that they had examined the vote ot
the State of Massachusetts ; that they found it in due form ; that all the votes given for
President df 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 tlie United
States were twelve, all of which were for Schuyler Colfax, of the State of Indiana.

The same form was observed in announcing the votes of the other States until the
State of Louisiana was announct'd, when

jMr. Mci.LiNs said: Mr. President, I call for the reading in full of the certificate
acconipanying the return of the vote of Louisiana.

The certificate was read ; after which

Mr. MuLLLixs said : I object to the counting of the vote from the State of Louis-
iana.

The Pkksidknt. The rule in this case will be read.

The rule was 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
I'residing Officer, the Senate shall thertupon withdraw, and said (iuestiou shall bo sub-
mitted to that body for its decision ; and the Speaker of the House of Representatives
shall in like niauuer submit said (piestion to the House of Representatives for its de-
cision ; and no question shall be decided attirmatively, 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 re-assemble, and the Presiding Otificer shall then iu-
nouuce the decision of the question submitted ; and upon any suclf question there suall
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 man-
ner."

The Pkksident. Objection has been made to counting the vote of the State of
Louisiana.

Mr. Eldridge. I rise to a question of order. I insist that the rule which has just
been read is in direct contravention of the terms of the Constitution. I call attentiou
to the following clause of the twelfth amendment to the Constitution, which is as
follows :

"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 PiJESiDEXT. 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. WooDWAin). I rise to a question of order, which I think will be entertained by
the Chair. I submit that the objection nnule by the gentleman from Tennessee [Mr.
Mullins] does not raise the question contemplated by the rule which has been read.
To bring the case within the rule there must be specific objection, and until such
specific objection shall be urged there is no occasion ibr the Senate to retire.

The President. It will be observed that the rule says:

"If, npnn the reading of any such certificate by the tellers, any question shall arise
in regard to counting the votes therein certified," &c.

The stating an objection without assigning any reason therefor, in the opinion of
the Chair, is hardly "raising a (juestiou," within the meaning of the rule. The gen-
tleman from Tennessee [Mr. Mullins] will therefore state in writing the reason for his
objection.

Mr. Washuukne, of Illinois. I hope the gentleman from Tennessee [Mr. Mullins]
will withdraw his objection and let this matter proceed.

Senator Su.mxeu. I would inquire whether we might not pass over the case of Louis-
iana iufornurlly and proceed with the rest of the count ?

Mr. Wood. I object to that, Mr. President. Let us go on regularly.

238 COUNTING THE ELECTOEAL VOTE.

Senator Saulsbuky. I would like to kuow the objection that the Senate of the
United States is to consider.

The Pkesxdent. No debate is in order till the reason of this objection shall be pre-
sented.

Senator Saulsbury. I call for the reading of the objection.

The President. The reason for the objection will be read.

Mr. WiLSOX, of Iowa, (one of the tellers,) read the objection of Mr. MuUins, as re-
duced 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 President and
Vice-President of tlte 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 to the rule, retire to their chamber
to (lelibeiate upon the objection.

The Senate accordingly retired from the hall.

In Senate, February 10, 1869.

VOTE OF LOUISIANA.

The Senate returned to its chamber at twenty-five minutes past one o'clock.

The Pre;sident j>?-o itmpore. The Senate 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 question was raised in regard to them that no valid election of electors for
President and Vice-President has been held in said State."

Mr. Hendricks. Mr. Presideut,I move that it is the judgment of the Senate that the
vote be counted.

The President j)j-o tempore. It is moved and seconded that it is the judgment of the
Senate that the vote be counted.

Mr. Trumruix. It had better be in the form of a resolution, I suppose.

Mr. Hendricks. I suppose the Secretary will put it iu the form of a resolution.

Mr. Trumbull. I have prepared this resolution :

'■^Resolved, That iu the opinion of the Senate the vote of Louisiana ought to be
counted."

Mr. Hendricks. I withdraw my proposition.

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 send to the Chair.

Mr. Howard. I beg to inquire whether the Senate proceeds to act upon this question
of the validity of an election svithout any proof, discussion, or debate?

The President pro tempore. No debate is admissible.

Mr. CoNNESS. I ask for the reading of my amendment.

Mr. Howard. I ask for the reading of the objection of the member of the conven-
tion which was read before.

The President jwo tempore. Let it be read again.

The Chief Clerk. The objectiim was to any count of the votes certified from the
State of J^ouisiana, and the question 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. 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 in-
sert the word " shall."

Several Senators 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 amendnieut, which has not been read.

The President j;?-o tempore. The amendment will be read.

The Chief Clerk. The resolution submitted by Mr. Trumbull is :

"Resolved, That in the opinion of the Senate the vote of Louisiana ought to be
counted."

Mr. CoNNESS moves to amend by striking out all after the word " resolved " aud
inserting :

" That in the opinion of the Senate the election for President and Vice-President iu
the State of Louisiana was valid, and that the vote shall be counted."

Mr. Trumbull. I think we need not decide auything more than is before us. It is
simply whether the vote ought to be counted.

Mr. Edmunds. That is debate.

PEOCEEDINGS AND DEBATES IN CONGRESS. 239

The President jjro tempore. The questiou is ou the amendment of the Senator from
California.

The amendment was rejected.

The PiJESiDENT jjro tempore. The questiou now is on the resolution of the Senator
from Illinois.

Mr. Wilson. I ask for the yeas and nays 011 that.

Mr. Waknei!. I offer my amendment now.

Tlie Pkesident pro tempore. The Senator from Alabama offers an amendment to
strike out the words "ought to" and insert "shall."

Mr. Edmunds. Let it be read as it will stand if amended.

The Chief Ci.EiiK. If the resolution be amended as now proposed it will read :

" Besolred, 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. Wai;neu. 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 j^ro <CT?ijJ0?'e. The question is ou the resolution of the Senator from
Illinois.

Mr. Wilson. I ask for the yeas and nays ou its adoiition.

Mr. CoNNESS. I call for the reading of the resolution again.

The Chief Clerk. It is as follows:

" liesolred, 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."

The President jyro tempore. It will be so modified.

Mr. Morton. Is it competent to offer an amendment to that now?

The President 2)ro tempore. It is competent to offer an amendment, but debate is not
in order.

Mr. Morton. I offer the following amendment, which I will ask the Clerk to take
down, to come in immediately after the word " resolved : "

"That while there is reason to believe fiom common report and information that the
late presidential election in Louisiana was carried on by i'orce and fraud, still there be-
ing no legal evidence before the Senate on that subject, therefore the electoral vote of
Louisiana ought to be counted."

Mr. Hendricks. 5Ir. President, I submit that that recital is not in order. I submit
as a (luestiou of order that under the joint rule we have to decide the questiou made
by the objection, aud that we are not to recite a state of facts, but to decide the ques-
tion that comes up, and that questiou is simply and nakedly whether the vote bo
counted.

Mr. Williams. I object to debate.

The PirESiDENT pro tempore. The Chair is of opinion that nothing else is iu order
except tJie decision of the question made.

Mr. Haklan. I inquire whether it would be iu order to call for the reading of the
official papers that accompany the vote f

]\Ir. Wilson and Mr. Trumrull. They were read.

Mr. Harlan. They were read iu the joint meeting, but they have not been read be-
fore the Seuate.

Mr. Trumbull. There is no irregularity iu the papers.

The Pi{ESiDEXT pro tempore. The papers are not in the possession of the Senate.

Mr. NvE. 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 questiou that they already possess.

The Pi'.ESiDEXT 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 aud
presented.

Mr. Edmunds. I call for the reading of the resolution as it now stands, as modified.

The President pro tempore. It ■vyill be read.

The Chief Clerk. It is as follows :

"Iicsolved, That iu the opinion of the Senate the vote of the electors of the State of
Louisiana ought to be counted."

Mr. Davis. I move to amend by striking out the term " ought to" aud inserting
" should."

The amendment was rejected ; there being, on a division — 11 ayes aud 30 noes.

Mr. Sprague. I move to amend the resolution by striking out all after the word " re-
solved" and inserting:

" That the votes of the electors of the State of Louisiana for President aud Vice-
President be counted."

Mr. Hendricks. I think that is exactly right.

Mr. Edmunds. I object to debate.

The President j);'o tempore. No debate is in order.

240 COUNTING THE ELECTORAL VOTE.

Mr. Sumner. I send to the Chair a snhstitnte.

The Ph'ESiDENT pro tempore. An amendment to the amendment ?

Mr. SuMXEH. An amendment to the amendment by way of snbstitnte.

The Pkesident pro tempore. The proposition of the Senator from Massacliusetts Avill
be read.

The Chief Clerk. The Senator from Massachusetts proposes to strike out of the
proposed amendment the words "votes of the electors of the State of Louisiana for
President and Vice-President be counted," and in lieu thereof to insert :

''The electoral vote of Louisiana shall be reported in the foUowin.;^ 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 ijresent state of the (luestion.

The PitESiDENT 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 maile.

Mr. Sumner. Do I understand that the Chair rules the substitute which I oftered to
be out of order ?

The President pro tempore. The Chair thinks it is out of order. Ifc 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.

The President j^ro tempore. The question is on the amendment of the Senator from
Rhode Island.

Mr. Williams. Let it be read again.

The Chief Clerk. The amendment is to strikeout all after the word "resolved"
and insert:

" That the votes of the electors of the State of Louisiana for President and Vice-Pres-
ident 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."

Mr. Sprague. We do not want any "judgment ; " we express our opinion.

The President j)j'o tempore. Does the Senator move that amendment to the amend-
ment ?

Mr. Warner. Yes, sir.

The President pro tempore. The question is on the amendment to the amendment.

The amendment to the amendment was rejected.

The President pro tempore. The question now is on the amendment of the Senator
from Rhode Island, [Mr. Sprague.]

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 sustained by
the evidence before the Senate, and therefore said votes be counted."

The amendment to the amendment was rejected.

The President pro tempore. The question recurs on the amendment of the Senator
from Rhode Island, [Mr. Sprague.]

Mr. CONKLiNc; and Mr. Conness. Let that be read again.

The Chief Clerk. The amendment is to strike out all after the word "resolved"
and insert:

" That the votes of tlie electors of the State of Louisiana for President and Vice-
President be counted."

The amendment Avas agreed to — ayes 46, noes not counted.

The President pro tempore. The question is on the resolution as amended.

Mr. Sumner and Mr. Edmunds called for the yeas and nays; and they were ordered.

The President j>ro tempore. The Chair will suggest to the Senate whether this ought
not to be a concurrent resolution. The twenty-second joint rule, under which we are
acting, 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 Representatives
shall in like manner submit said question to the House of Representatives for its de-
cision ; 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

PROCEEDINGS AND DEBATES IN CONGRESS. 241

two Iionses shall immediately re-assemble, and the Presiding Officer shall then annonnco
the decision of the (jnestiou submitted, and upon any such qnostiou there shall be uo
debate in either house."

Mr. Fhklinghuvswn. It says "cnncurreut vote."

Mr. Edmunds. That means the vote of each house the same way.

Mr. IlEXDincKS. I submit that does not mean a concurrent resolution, but simply that
the two hous(!S shall unite.

Mr. SiiEitMAN. According to the rule, "we send this resolution to the House of Repre-
sentatives, they concur in it, and then we go back.

Mr. Tkumbuix. That is all. We pass our resolution expressing our judgment on
the question raised.

Mr. DoOLiTTLK. It should be "resolved, (the House of Representatives concurring.)"

The President pro tempore. The question is on the resolution as amended, upon
which the yeas and nays are demanded.

The yeas and nays were ordered.

Mr. DooLjTTLE. I suggest that after the word "resolved" there should be inserted
"the House of Represonh^tives concurring."

Mr. Hendkicks. I object to that.

Mr. Fessendkn. Let us see how it stands.

The Chief Clerk. The resolution, as amended, is as follows:

" Bexolred, That the votes of the electors of the State of Louisiana for President and
Vicp-Pi'esident be counted."

Mr. Edmunds. I think it is better to say " the House of Representatives concurring,"
because we cannot re-assemble till there is concurrent action.

The President pro tempore. Would it not bo better to say " in the opinion of the
Senate" these votes ought to be counted ?

Mr. Trumbull. Our resolutiou expresses our opinion. Wo 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 i.s the end of it.

Mr. Edmunds. I ask unanimous consent to read that part of the rule:

" No question shall be decided affirnuitively, 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 re-assemble, and the Presiding Officer shall then announce
the decision."

If I am permitted to say by unanimous consent

Mr. Grimes. I object.

Mr. Edmunds. Then I do not want to say anything. I move to insert the words
" the House of Re})resentatives concurring" after the word "resolved."

The Presii>ent pro tempore. Is there any objection to that amendment?

Mr. Saulshury. I rise to make an objection. I have a right to make an objection,
though I cannot argue it. I say that amendment cannot be entertained for the reason
that the rule under which we are acting does not require a concurrent resolutiou, but
only a concurrent vote of the respective houses.

Mr. Morton. I ottered an amendment to the original resolution, and I think I am
entitled to have a vote upon it.

The Pi!i:sii)ENT pro tempore. The Chair thought it was a i^reamble suggesting other
reasons than those raised by the objection.

Mr. ]MORTON. I did not otter it as a preamble.

Mr. Edmunds. I ask to have the question put on the motion I made to amend by
inserting after " resolved" the words " the House of Representatives concurring," to
make it conform to the rule.

The amendment was agreed to — ayes 30, noes not counted.

Mr. MoiiToN. I move to amend the resolution so as to make it read :

" That while there is reason to believe from common report and information that the
late presidential election 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 Lou-
isiana ought to be counted."

On that question I ask for the yeas and nays.

Mr. Trumbull. I object to it on the question of order.

The President ji^'o tempore. The Cbair was of o[)inion at first that it w,as out of
order; but it is now oifered as an amendment to the resolutiou, and perhaps it is in
order. The Chair before thought it was ottered as a preamble ; but now, Iteiug offered
as an amendment, the Chair cannot rule it to be out of order. Tlie question is on the
amendment ottered 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 questioa without discussion ?

The President pro temjiore. The rule is express. The question must be decided with-
out debate.

242 COUNTING THE ELECTORAL VOTE.

Mr. WiLT.TA^is. I have uot examined the subject.

The PjtE.siDKNT^^ro tempore. The question is on the amendment of the Senator from
Indiana, [Mr. Morion.]

The question beinj^ taken by yeas and nays, resulted— yeas 24, nays 35, as follows:

Ykas — Messrs. Cameron, Cattell, Chandler, Conkling, Harris, Howard, Kellogjg,
McDonald, Morgan, Morrill of Vermont, Morton, Nye, Osborn, Pool. Ramsey, Rice,
Robertson, Spencer, Stewart, Sumner, Thayer, Tipton, Warner, and Wilson— 24.

Nays— Messrs. Abbott, Anthony, Buckalew, Cole, Conness, Corbett, Cragiu, Davis,
Dixon, Doolittle, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghujsen, Grimes,
Harlan, Hendricks, Howe, McCreery, Patterson of New Hampshire, Patterson of Ten-
nessee, Ross, Saulsbury, SaAvyer, Sliermau, Spragne, Trumbull, Van Winkle, Vickers,
"Whyte, Willey, 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
delivered the following message :

Mr. President, I am directed to inform the Senate that the House of Representatives,
on the objection made in joint convention against counting the electoral 'vote of the
State of Louisiana 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 resolution corresponding to that just sent to us
from The House of Representatives, substituting the word "Senate" for " Honse " at
the projjcr place, so that it -will read that the Senate have determined in the same way.

Mr. Anthony. That will not be a concurrent resolution.

Mr. Conkling. This is uot a concurrent resolution.

Mr. Anthony. Yes ; 1 believe the form is " the House concurring," which goes in as
a matter of course.

Mr. Conkling. 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 lan-
guage of the resolution just received from the House.

The President ;»-o tempore. Will the Senator put his motion in writing ?

Mr. Conkling. 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
transpose the word " House " to " Senate."

Mr. DiiAKE. 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 Sanator
from New York cannot be entertained except by unanimuus consent.

Mr. Drake. I object until we vote ou the pending resolution and decide the question.

The President pro tempore. The question is on the resolution, upon which the yeas
and nays h.ave been ordered. The Clerk will call the roll.

The Chief Clerk called the nauie of Mr. Abbott ; and he responded.

Mr. Warner. Is it in order to move to lay the pending proposition on the table ? .

Mr. Anthony. There has been an answer ou 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. AnnoTT. I had answered to my name.

The call of the roll being concluded, the result was— yeas 51, nays 7 ; as follows :

Yeas— Messrs. Abbott, Anthony, Buckalew, Cameron, Cattell, Cole, Conkling, Con-
ness, Corbett, Cragiu, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry, Fessenden, Fow-
ler, Frelinghuyseu, Grimes, Harlan, Harris, Hendricks, Howe, Kellogg, McCreery, Mc-
Donald, Morgan, Morrill of Vermont, Osborn, Patterson of New Hampshire, Patterson
of Tennessee, Pool, Ramsey, Rice, Ross, Saulsbury, Sawyer, Sherman, Spencer. Spragne,
Stewart, Tipton, Trumbull, Van Winkle, Vickers, Warner, W^hite, WiUey, Williams, and
Yates — 51.

Nays— Messrs. Chandler, Howard, Nye, Robertson, Sumner, Thayer, and Wilson- 7.

Absent— Messrs. Bayard, Henderson, Morrill of Maine, Morton, Norton, Pomeroy,
Wade, and Welch — S.

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," be struck out of the resolution just
adopted, by unanimous consent. Those words had better be stricken out; otherwise
the House of Representatives may think it is necessary again to act on the subject.

Mr. Edmunds. I have no objection to that course to save 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 objec-
tion. 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.

PROCEEDINGS AND DEBATES IN CONGRESS. 243

The Prksident pro tempore. The House will be notified, of course.

Mr. Shkrmax. I presume ifc is uot necessary for the Senate to wait until the message
has been sent. Actual concnrrence has now taken place.

Mr. Grimes. We can follow right after tiie Clerk, and we need not enter the House
hall until he has delivered his message. 1 move that the Senate proceed to the hall of
the House of Representatives.

The motion was agreed to.

In the House of Repuesextatives, Fcbruari/ 10, 18G9.

VOTE OF LOUISIANA.

The House was again called to order.

The Srr.AKEi;. Under the twenty-second Joint rule the Chair submits to the House,
to be decided upon without debate, the ohjuctiou made by the gentleman from Ten-
nessee [Mr. Mnllin.s] in joint convention to tiie counting of the votes certified from
the State nt Louisiana. The Clerk will report the objection, and the House will decide
upon it without debate.

The olijection wns again read.

Mr. Wasiiburnk, of Illinois. Will it be in order to move to lay that on the table?

The SrEAKKi:. It will not be. The question must be decided by the House.

Mr. Niiu.ACK. Is it in order, Mr. Speaker, to have the certificate of the governor of
the State of Lonisiann again read ?

Several Memueiis. 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.
Theobjcction which has been made by a member of the House mast be decided upon
without debate.#

Mr. Jones, of Kentucky. I call for the j'eas and nays.

The yeas and nays were ordered.

The Speaker. The language of the twenty-second joint rule with respect to the pro-
ceedings of the joint convention is that —

"No vote objected ti shall be counted, except by the concurrent votes of the two
houses; which, being obtained, the two houses shall innnediately re-assemble."

The question is, Sliall 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,
uot voting 22 ; as follows :

Yeas — Messrs. Allison, Ames, Axtell, Baker. Barnes, Barnum. Beaman, Beatty. Beck,
Benjamin, Bingham, Blaine, Blair, Boyden, Boyer, Bromwell, Brooks, Broomall, Buck-
laud, Burr, Roderick E. Butler, Cary, Clianler, Chnrchill, Cobnrn, Cullom, Delano, De-
■weese, Diekey, Dixon, Dockery, Dotlge, Eggleston, Eldridge, Farnsworth, Ferriss, Ferry,
Garfield, Getz, G4ossbrenner, GoUaday, Gove, Gravely, G rover, Ilaight, Halsey, Haw-
kins, Ilea ton, Higby, Hill, Holman, Hooper, Hopkins, Hotchkiss, Asahel W. Hubbard,
Humphrey. Ingersoll, Jenckcs, Johnson, Alexander H. Jones, Thomas L. Jones, Judd,
Kelley, Kellogg, Kerr, Ketcham, Kitchen, Knott, Koontz, Laflin, Lash, George V. Law-
rence, Willi;ini Lawreuce, Lincoln, LogHu, Loughridge, Mallory, Marshall, Marvin,
McCarthy, McCormick, McCnllough, Miller, Moore, Mooihead, Mungen, Newcomb,
Niblack, Nicholson, Norris, Nnnn, Peters, Phelps, Pike, Pile, Plants, Poland, Polsley,
Price, Pruyn, Randall, Ranm, Robertson, Ross, Sawyer, Schenck, Schoiield, Selye,
Shellabarger, Sifgreaves, Smith, Spalding, Starkweather, Stewart, Stokes, Stone,
Taber, Tatfe, Taylor, Thomas, Tift, John Trimble, Trowbridge, Twichell, Van Auken,
Burt Van Horn,' Van Trnmp, Elihu B. Washbnrue, William B. Waslihurn, Welker,
James F. Wilson, John T. Wilson, Windom, Wood, Woodbridge, Woodward, and
Young— 137.

Nays— Messrs. Delos R. Ashley, James M. Ashley, Banks, Benton, Blackburn, Boles,
Boutwell, Bowen, Buckley, Benjamin F. Butler, Cake, Callis, Reader W. Clarke, Sid-
ney Clarke, Clift, Cobb, Corley, Covode, Dawes, Donnelly, Driggs. Eckley, Edwards,
Ela, Thomas D. Eliot, James T. Elliott, Fields, French, Hamilton, Harding, Haughey,
Chester D. HnUbard, HuHiurd, Hunter, Jnlian, Kelsey, Loan, Maynard, McKee, Mor-
rell, Mullins, Newsham, O'Neill, Orth, Paine, Perham, Pettis, Pierce, Prince, Roots,
Shanks, Stevens, Stover, Upson, Van Aeruam, Robert T..Van Horn, Van Wyck, Vidal,
Ward, Henry D. W^ashburn, Whittemore, Thomas Williams, and William Wil-
liams— 63.

Not votixg — Messrs. Adams, Anderson, Archer, Arnell, Bailey, Baldwin, Cook, Cor-
nell, Fox, Goss, Griswold, Richard D. Hubbard, Lynch, Merc'ur, Morrissey, Myers,
Pomeroy, Rol)insou, Sypher, Lawrence S. Trimble, Cadwalader C. Washburn, and
Stephen F. Wilson — 22.

244 COUNTING THE ELECTORAL VOTE.

During tlici roll-call,

Mr. Baknks said : My colleagne, Mr. Robinson, is defained from the House on account
of important business; I think he was excused. Had he been here ho would have
voted " ay."

On the conclusion of the roll-call,

Mr. Lawi:kxck, of Ohio, said : I desire to make objection to any announcement of
the result of this vote.

The Speaker. The Chair declines to entertain it. The objection made by the gen-
tleman from Tennessee [Mr. Miilliris] in the joint meeting of the two houses to the
vote of Louisiana being counted having been submitted by the Speaker of tlie House
of Rei)reseutatives, under tlie twenty-second joint rule, to the House for its decision
upon the question "Shall the vote of that State be counted notwithstanding the objec-
tion of the gentleman from Tennessee f" the result is 137 yeas and 63 nays. The House
theiefore decides that it shall be counted ; and a message to that effect will be com-
municated to the Senate of the United States.

Mr. Jones, of Kentucky. I move to reconsider the last vote ; and to lay the motion
to reconsider on the table. Is not that a proper motion T

The Speaker. The Chair thinks not under the joint rule.

Mr. Jones, of Kentucky. This is a vote in the House, and by tlie House alone. I
therefore think it is in order.

The Speaker. The Chair thinks the motion 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 Kentucky, to lay the motion to reconsider on the
table, was agreed to.

Mr. ScHEXCK. Mr. Speaker, having voted to admit the counting of the electoral
vote of Louisiana, I ask unanimous consent to offer the following resolution :

"liesohed hi/ the House of Hepresenfatives, That no proof being formally submitted to
sustain the objection nuide to the counting of the vote of the electors of the State of
Louisiana for President and Vice-President, this House, without atlitming or denying
anything in regard to the manner in which the election for said electors was con-
ducted, decide that uo 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. Eldridge and INIr. Wood objected.

Mr. Shanks. I ask unanimous consent to offer the following resolution:

^' Hesolred, That in the opinion of this House the acceptance of the vote of Louisiana
for President and Vice-President will eucourage the criminal practice of enforcing
elections in the States lately in rebellion, and involves the murder of thousands of
loyal peoi)le."

Mr. Glossp>renner and others objected.

Mr. Law liENCE, of Ohio. I ask unanimous 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 Speakei!. There is no regular order but to wait for a message from the Senate
announcing the action of that body on the subject.

Mr. MuLLiNS. I ask leave of the House for hve minutes to give a personal explana-
tion.

Mr. Getz. I object.

A message from the Senate was communicated by Mr. Gorham,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. SciiENCic. 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 meet-

The motion was agreed to; and a message to that effect was accordingly communi-
cated to the Senate.
At a quarter past two o'cldck p, m. the Senate in a body re-entered the ball.

In the PRESENCE OF THE SENATE AND HOUSE OF REPRESENTATIVES,

February 10, 1869,

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 announce the vote of the State of Louisiana,
and of the remaining States nntil the State of Georgia was reached.

Mr. Butler, of Massachusetts. I ask for the reading of the certificate.

PROCEEDINGS AND DEBATES IN CONGRESS. 245

The President. Let the certificate he read.

Mr. PiiUYN accordiugly read the certilicate, as follows :

" State of Georgia,
"Atlanta, IVednesdaii, December d, 1868.
" The rnemhers of the electoral collp.c;e of the State of Geor<i;ia conveued this day at
twelve o'clock in., at the capitol of said State, in the city of Atlanta.

"A coniniiinication was received from his excellency Riifus 13. Bulloclc, governor of
said State, iuclosinj; certificates in triidicate of the persons elected electors of said
State to vote for a President and Vice President of the United States for a term of
fonr years from the 4th day of March, 1869, of which certificates the following is a
copy, and one of the ori>;inal3 of which is hereto annexed:

" Executive Department State of Georgia.

''Atlanta, December 9, 1868.
" This may certify that it appears from the official retnrns received at this depart-
ment of an election held in this State on Tuesday, the :>d day of Novemher, 1868, for
nine electors to vote for President and Vice-President of the United States:

" That John B. Gordon, John T. Clarke, John C. Nicliolls, Charles I. Goode, Raphael
J. Moses, Augustus O. Bacon, J. P. Cummiug, H. P. Bell, aud James D. Waddell wero
elected.

" Given under my hand and the seal of the executive department, at the capitol iu
the city of Atlanta, this the 9th dav of December, 18'o8.

"RUFUS B. BULLOCK,

" Governor.
[Seal of executive department attached.]
" By the governor :

" B. B. De GRAFFENREID,
"Secretary of Executive Department,

''for the Governor.

" Whereby it appears that John B. Gordon, John T. Clarke, John C. Nicholls, Charles
T. Goode, Rapbaei J. Moses, Augustus O. Bacon, J. P. Cninming, H. P. Bell, aud James
D. Waddell, were duly elected such electors at the election held in said State ou Tues-
day, the 3d day of November, 1868.

'• Tbey, the said electors, being assembled as above mentioned, and all present, pro-
ceeded TO vote by ballot for 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 Horatio Seymour, of the State of New York, had received nine votes,
tliis being the whole number of votes given by the electoral college.

" l;i testimony whereof the said electors do hereunto set their hands, at Atlanta, Ga.,
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. GUMMING.

"H. P. BELL.

"JAMES D. WADDELL.

"The said electors then proceeded in like mnnner to vote by distinct ballots for a
Vice-President of the United States for a term of four years from the 4th day of Alarch,
18()9. W'hen all the ballots were cast and votes counted ic appeared that Frank P.
Blair, of the State of Missouri, had received nine votes, t'lis being the whole uumber of
votes given by the electoral college.

" In testimony whereof the said electors do hereunto set their hands, at Atlanta, Ga.,
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. GUMMING.

"H. P. BELL.

"JAMES D. WADDELL.

246 COUNTING THE ELECTORAL VOTE,

" Executive Department, State of Georgia,

^'Atlanta, December 9, 1868.
" Tliis mny certify that it appears from tlie official returns received at this departuieiit
of au election held in this State on Tuesday, the 3d day of November, 1868, for nine
electors to vote for President and Vice-President of the United States :

" That John B. Gordon, John T. Clarke, John C. NichoUs, Charles T. Gf>ode, Raphael
J. Moses, Augustus O. Bacon, J. P. Cummin<j, H. P. Bell, and James D. Waddell, were
elected.

" Given under my hand and the seal of the executive department, at the capitol in the
city of Atlanta, this 9th day of December, 1868.

[L. s.] " RUFUS B. BULLOCK,

'• Governor.
" By the governor :

" B. B. De GRAFFENREID,
" Secretary Executive Department,

'^for the Governor."

Mr. Butler, of Massachusetts. I object to the vote of the State of Georgia being
counted, and send my objections in writing to the Chair.

Mr. Pkuvx (one of the tellers) read the olijectious, as follows :

" I object, under the joint rnle, that the vote of the State of Georgia for President and
Vice-President ought imt 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 jusiitication for
the omission nf 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 admitted 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 recon-
struction 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 Tuesday of November last past was not a free, just, equal, and fair election ;
but the peojde of the State were deprived of their just rights therein by force and
fraud."

The President. The concurrent resolution of the two houses will be read on the
subject.

Senator Drake. As this objection requires the retirement of the Senate, I send up an
objection 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 PitESiDENT. It is too late. The objection 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 Drake :

" I object to the counting of the votes of the electors of the State of Nevada, because
it does nor 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 Georgia 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, whicli
shall not have been re-organized,' it was provided that no electoral votes from any of
the States lately in rebellion should be received or counted for President or Vice-Pres-
ident of the United States until, ainoug other thiijgs, such State should have become
entitled to representation in Congress ijursuant to the acts of Congress in that behalf:
Therefore,

'^Eesolved iy the Senate, (the House of Represent alires 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 auy, which may be
presented, as of the State of Georgia, shall not essentially change the result, in that
case the.v shall be reported by the President of the Senate in the following manner:
Were the votes i)resente(l, as of the State of Georgia, to be counted, the result would be,
ior for President of the United States, votes ; if not counted, for for

PROCEEDINGS AND DEBATES IN CONGRESS. 247

President of the United States, votes ; but in either case is elected Presi-
dent of tlic United States; and in the same manner for Vice-PrestdeuC."

Senator Edmunds. I rise to a point of order. The objection of tiie gentleman from
Massachusetts is not in order, the two honseshavint?, by special rule for this case, made
a snbstantial change in the standing joint rnle.

Mr. BuTi.Eii. of Massachusetts. I desire to call the attention of the Pr^sidenr, to th)
law that tlie 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 rlie c in-
vention, hut the convention may act after they get together as they choose to do.
Mr. CiiAxr.KR, Mr. G.vkfiki.d, "and Mr. Wood. Debate is not in order.

Tlie Pkksident. Debate is not in order.

Mr. BaxLEU, of Massachusetts. I have the right to state my question.

The President. The gentleman has stated his objection in writing.

Mr. BuTLEK, 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 froni Vermont is not well talien, and I desire that to be decided by the two
houses.

The President. The Chair is very ranch disposed to hold the Senate and Hinse of
Representatives to their own concurrent resolution. The purport of the resolution, as
we understand it, is thit if the votes of the State of Georgia do not change the res:ilt
of the election, they may be counted, but if they did alter the resulo they shanld not
be counted. [Laughter.]

Senator Drake. I submit a point of order that the ground stated in the concurrent
resolution of the two houses, upon which the proposed disposition of the electoral
votes of Georgia was to be made, does not dispose of the first objection of the gentle-
man from Massachusetts, 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 Iiouses declared that the vote of Georgia
should be announced by the Vice-President ^jro tempore in a certain special way, and
stated how that announcement should be maile. The Chair is very much disposed to
obey the directions of both branches of Congress 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. Farmsworth. The gentleman cannot appeal from the President of the joint
convention to the House of Representatives.

Mr. .loxES, of Kentucky. I rise to a point of order. I object to the counting of the
vote of Georgia in the manner indicated by tlie Senate and the House. I submit that
I have the riglit to object in that form under the joint rnle. It is there provided:

" If npon the reading of any such certilicate by the tellers any question shall arise
in regard to counting the votes therein certihed, 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."

Under that rule I have the right now to object to any decision made by the Housj
or Senate in regard to counting these votes, and especially made previous to thisques-
tion. 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
deliberate, under the rules.

Mr. Washburne, of Illinois. On what ?

The President. On the objection that has been raised by the gentleman from Mas-
sachusetts.

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.

In Senate, Fcbniarij 10, 1S69.

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 order 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 j)ro tempore. The objections will be read first of all.

The Chiek Clerk. This is the wording of the objection made in the convention by
a member of the House of Representatives :

" 1 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 couuting thereof, be-
cause, among other things —

" 1. The vote of the electors in the electoral college was not given on the first
16 X

248 COUNTING THE ELECTORAL VOTE.

Wednesday of December, as required by law, and no excuse or justification for the
omission of such legal duty is set forth iu the certificate of the actiou of the electors.

"2. Because at the date of the election of such electors the State of Georgia had not
beeu admitted to representation as a State iu Congress since the rebellion of her people,
or become entitled thereto.

" 3. That at said date said State of Georgia had not fulfilled iu due form all the re-
quirements of the Constitution and laws of the United States, known as tlie recon-
stiuction acts, so as to eutitle said State of Georgia to be represented as a State in the
Union iu the electoral vote of the several States in the choice of Presideut aud Vice-
Presideut.

"4. Tiiat the election pretended to have been held in the State of Georgia on the first
Tuesday of November last past was not a free, just, equal, aud fair election ; but the
peo)>lH of the State were deprived of their just rights therein by force aud fraud."

Mr. SiiKHMAX. I ask for the reading of the resolution I submitted.

The ri;i;siL)i:NT^>ro tempo) e. The resolution of the Senator trom Ohio will be read.

Tlie resolution was read, as follows:

JKesulrcd, That the vote of the electors of the State of Georgia be counted and an-
nounced iu the mode prescribed in the coucurreut 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 api>eal taken by the gentleman from Mas-
sachusetts to the decision of tlie Chair, that the special role made by the two houses
in the case of Georgia was to govern the proceedings in her case?

The Pkksidknt jfro tempore. The Chair will state that the gentleman from Massa-
chusetts took exception to the counting ot the vote for a different reason fioiu any
covered by the cimcurrent resolution. It was because the vote was not cast upon the
diiy i-e(iuired by law, which goes behind the concurrent resolution, as it seemeil to the
Chair, for which reason it was thought best to retire aud deliberate upon that. It was
a different (juestiou, not involved iu the concurrent resolution, perhaps lying back of
that, based on the ground that the vote was informal and not to be connted at all.
The Chair cannot decide the efi'ect of casting a vote on a different day from that
required by law, which 1 believe Avas the objection made by the gentleman from Mas-
sachusetts.

Mr. FowLEK. I call for the reading of the concurrent resolution.

Mr. D(.)OLiTrLE. 1 inquire, for inlormation, whether the votes of the State of Wiscon-
sin in 185() for President aud Vice-President were or w^ere not counted by the joint
convention ?

The Pkesident pro tempore. My recollection is that they were counted after consid-
erable debate.

Mr. TiiUMBULL. It was not decided whether they should be counted or not. It did
not atfect the result.

Mr. Shekman. They were announced in some such way as this.

Mr. Edmunds. They wcue not announced at all.

Mr. Tkumbuix. If the Chair will pardon me, I will make a statement in regard to
that case. A controversy arose in the joint convention as to what shonld be done aud
whether a question that arose there coulil be decided by the joint convention assem-
bled together. A debate occurred when the two houses were assembled, aud some
Seiuit(as insisted tiiat it was iiuproi>er to take anj" vote when the two houses were
together, as the Senate thereliy lost its character, the House being more numerous, and
although the Senate voted'all one way they might be voted down by the House. Sen-
ators insisted that no actiou 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; aiul that
gave rise to this joint rule, which was adopted afterward to avoid those questions.

Mr. Fehkv. What became of the votes of Wisconsin ?

Mr. TuuMBULL. It was never decided whether they should be counted or not.

Mr. Fekhy. What was done in point of fact?

Mr. Thumuull. The fact was announced that Mr. Buchanau 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. TuuAimiLL. Tliis 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. Tkumbull. It never has been decided whether it should be counted or not.

Mr. Frelinghuysen. I offer a resolution.

The Phesident pro tempore. There is a resolution pending offered by the Senator
from Ohio.

Mr. CoNKi.iNG. If it is in order — I do not wish to debate it— I wish to read what was
done in the Wisconsin ease. I have here the Globe, showing precisely the form of the

PROCEEDINGS AND DEBATES IN CONGRESS. 249

announceinonr in the instance referrerl to. I will read it or send it to the Secretary to
be read, if it lie the pleasure of the Senate.

Mr. Door.iTTu:. I hope by iiuaiiiiuons consent the Senator will ^^ permitted to read it.

Mr. CoNKLiNG. I read from page G.5'2 of the Congressional Globe, Thirty-fourth Con-
gress, thiid session:

"Mr. Jones, of Tennessee, one of the tellers, reported. He said: Mr. President, the
tellers apiniinted on the part of tlie 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 recpiired by law, except in the case of the votes cast by the electors of the State
of Wise nsin. Their returns show that tiiey cast their electoral vote in thac State on
the 4tli of December iusteiul of on the first Wednesday of December (which was the
3d) as required bylaw. All the returns show tliat .James Buchanan, of the State of
Penusylvan a, received 174 votes for President of the United States; that John C.
FremiMit, nf tlie State of California, received — including the votes of Wisconsin — 114
votes for I'resident of the United States; that Millard Fillmore, of the State of New
York, received 8 vo es 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
live 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."

Tiieii follows a full recapitulation of the votes in tabular form, in which Wisconsin
appt-ars :

'■Mr. Lktcher. Is it in order now to move to exclude the vote of Wisconsin from
that count f

" The PrivSiding Officer. No debate is in order, in the opinion of the Presiding
Otiicer.

" Senator CuiTTENDEN. Do I understand the Chair to decide that Congress in no
form has power to decide upon the validity or invalidity of a vote f

" The Presiding Officer proceeded to recapitulate the vote as announced to the
joint conveutiou 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
29(i, of which 149 make a majority. The state of the vote for President of the United
States, as delivered by the tellers, is — for Janscs Buch.nian, of Pennsylvania, 174 votes;
for John C. Fremont, of California, 114 votes; for Millard Fillmore, of New York, 8
votes; aud the state of the vote for Vice-President of the United States, as delivered
by the tellers, is — for John C. Breckinridge, of Kentm^ky, 174 votes; for William L.
Dayton, of New Jersey, 114 votes; and for Andrew J. Donelson, of Tennessee, 8 votes."

Mr. GuiMES. Does that include Wisconsin I

Mr. Conk LI NO. Yes, sir. •

" In further execution of the concurrent order of the two houses, the Presiding Officer
therefore declares that James Buchanan, of the State of Pennsylvania, 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
prescrilted by the Constitution, to commence on the 4th of March, 18.'37. 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 pre-
scribed ny the Constitution, to commence on the 4th ilay of March, 1857."

AikI then what followed ?

" Mr. H. Makshall. Mr. President, I think that it is a mabter of public importance,
not tor this occasion, but for some occasion which may arise hereafter, that the ruling of
the Chair upon this occasion should be pul)licly 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, thereby giving to the President of the Senate the function 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 Wisconsin, and the vote of Wisconsin
is therefore counted upon yonr decision. Whether that is a vote or not must depend
upon the determination of this convention ; aud, if you will regard the verbiage of the
Constitution, you will find that your functio.i goes no further than to open the certifi-
cates. The language of the Constitution is that ' the President of the Senate, in the
presence of the House of R •presentative-', sh ill ope.a all the certificates;' aud then
the phraseology changes and proceeds : ' aud the votes shall ha 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 cau be formed whether it is a vote. I merely want to

250 COUNTING THE ELECTORAL VOTE.

raise tlie point, as we aH know it makes no fliifereiice in the result in this case, but a
Ciise niifiht arise in which it niifrbt 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 some-
what 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. Tku.mbull. I have the Senate Journal before me, by which it will appear what
officially took place as recorded upon the journals of the two houses :

"Mr. Bigler, on the part of the tellers of the two houses, submitted the following
report, which was 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, 1*:<57, and find
that on the first Wednesday in December, 1H56, the electors of nil 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 December, 1856, Jaines 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 ofhce ; that for Vice-President of the United States, John C. Breck-
inridge, of Kentucky, received 174 votes; William L. Dayton, of New Jersey, received
109 votes, and Andrew J. Doiielsou, of Tennessee, received 8 votes; that from the re-
port of the electors of the State of Wisconsin it appears that the electors for 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 Will-
iam L. Dayton, of New Jersey, for Vice-President of tlie United States.

"WILLIAM BIGLER,

'■'■Teller on the jyari of the Senate.
"GEORGE W. JONES, o/- Tenimsee,
"WILLIAM A. HOWARD, of Michigan,
"Tellers on the part of the Rouse of liepresentatives."

From which it ajtpears that they did not include the vote of Wisconsin, but re-
ported 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 receive

Mr. TnUMBUi.L. He announced that Mr. Buchanan had, of those assembled on the
proper day, 174 electoral votes for President and John C. Fr(^nitmt 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 *'as present, and this is in accorfi-i-'- . ^i
with my recollection. This report is in the Senate Journal, reqi-.toi l^ oe mere.

Mr. COKKLiNG. Was it a report made to the Senate?

Mr. TjU'MiiULL. It was the report, made by the tellers to the joint meeting of the
two houses of Congress, signed by them, and recorded here.

Mr. CoNKLiNG. I, of course, know nothing about this except what appears in the
•Globe. Here is the report of the tellei-s 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 declaration of the votes as well as in the count.

Mr. ThUMBULL. This is the official report signed by the tellers.

Mr. Frelixghuysen. 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 i)roposes 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 pro-
vision 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 pro-
vision. 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 resolution of the Senator from Ohio will first be read.

The Chief Clerk. The resolution of the Senator from Ohio is :

PROCEEDINGS AND DEBATES IN CONGRESS. 251

" Resolved, That the vote of electors of the State of Georgia be counted and announced
in the mode (provided by the concurrent resolution of the 8th of February iubtaut."

Mr. Dkakk. Now I ask for the readiug- of my amendnu'Ut.

The Chiei-' Clekk. It is proposed to strike out all alter 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 the said vote should nob
be counted."

Mr. Dkake. Upon that I ask for the yeas and nays.

Mr. Con KM NO. What is the first ground— that they voted on the wrong day?

Mr. Drake. Yes, sir.

Mr. Mcl'iiEitsoN, Clerk of the House of Representatives, appeared at the bar of the
Senate, and d(divered the following message:

" Mr. President, I am directed to inform the Senate that the House of Representa-
tives, upon the question, ' Shall the electoral vote of the State of Georgia be counted
notwithstanding the objections thereto?' have voted in the negative."

Mr. Howe. Is the resolution pending subject to amendment '!

The President pro tempore. An amendujent to the amendment may be ofi^ered.

Mr. Howe. My amendment is to strike out the words "upon the tirst grouud of ob-
jection" froiu the amendnient of the Senator from Missouri.

Mr. Dkake. I think it is better to state the exact grounds of objection.

Mr. Howe. There might be ditt'erences of opiuiou.

Mr. CoNNESS I object to debate. Let us vote.

The Pi; ESI DENT pro tempore. The resolution as it would stand if the pending amend-
ment should be adopted will be read.

The Chief Clerk. The Senator from Wisconsin [Mr. Howe] proposes to amend the
amendment of the Senator frdin Missouri [Mr. Drake] so as to make it read, " that the
electoral vote of the State of Georgia, in the judgment 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 concurrent resolution adopted the other day ?
Tliere 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 Senate, 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
Bubmit. as a question of order, that it is not allowable.

The President /*ro tempore. The Chair supposes that that concurrent resolution has
no higher authority than any other resolution, and is sul))ect to modifiuatiou by l)()th
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 PuEsiDENT pro tempore. It is a special order in the nature of a resolution. It
has no higher authority than any other resolution.

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 |>ro 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 I'esolution 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 m>w stand, if adopted,
it would seem to be the judgment of the Senate that the vote of a State ought to be
rejected because 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. Camerox. No; but you are getting ready.
Mr. Edmunds. You do not know that.
Mr. Cameron. I say I object to any debate.

Mr. Edmunds. Mr. President, I suppose it is in order to a"k what is the pending
question. [Laughter.]

The President p/'o tem/wre. The pending question is the amendment moved by the
Senator from Wisconsin [Mr. Howe] to the amendment ottered by the Senator from
W^isconsin, [Mr. Drake.]

Mr. Williams. I move to lay the resolution and all the proposed amendments up(m
the table, and that the action of the Senate be communicated to the House of Repre-
sentatives. That will make some result.
Mr. DiJAKE. That is no result at all.

252 COUNTING THE ELECTORAL VOTE,

Mr. WiLTJAMS. I make that motion.

The PnEsiDENT jjro 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
not cover the whole case ?

The President pro tempore. The Chair believes it covers the whole case except the
objection made by the member from Massachusetts in the joint convention, goinji; 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. Gkimks. 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 concurrent 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 con-
sider, and I understood 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 determining
that question of order. That is the only thing we could determine. I siuiply desire
to say that if we adopt this resolution which is now pending, proposed by the Senator
from Missouri, [Mr. Drake,] 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 tipon 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 Representatives.

Mr. Edmunds. It is not in order now, tor we have another question up.

The Pi.ESiDKNT ^jro tempore. That cannot 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. f

The Chiek Clerk. It is proposed to amend the amendment so that, if amended, the
amendriient to the resolution will iea<l

Mr. Drake. Let what is stricken out be read.

Mr. Trumbull. Read the whole resolution.

The Chief Clerk. The amendment lirst proposed reads as follows:

Strike out all after the word " resolved " in 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 :

" Kcsohed, That the electoral vote of the State of Georgia, in the judgment of the
Senate, should not be counted."

The President j>ro tempore. Tiie question is on the amendment to the ameiulment.

Mr. Trumhull. 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 nays were ordered.

Mr. MoiiTON. I am satisfied the question is not understood. I call for the reading of
the amendment of the Senator from Missouii 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
Wisconsin moves to strike out.

The President j;ro tempore. 'Vhe Clerk is endeavoring to do that very thing.

Mr. Drake. He has not done it yet.

The Chief Clerk. Mr. Sherman submitted the following resolution :

"L'esolred, That the vote of the elecjtors of the State of Georgia be counted and an-
nounced in the mode provided by the concurrent resolnticm of the 8th of February
instant."

Mr. Drake proposed to amend that resolution by striking out all after the word
" resolved " and inserting :

"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 tlie 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," aud striking out the words " it is,"
and inserting "in;" and striking out also after the word '"Siiate" the words "that
the said vote;" so that, if so amended, the amendment will read: " that the electoral
vote of the State of Georgia, in the judgment of tlie Senate, should not brt coiinte I."

Mr. Hendricks. I make the point of order that the amendment proposed by the

PROCEEDINGS AND DEBATES IN CONGRESS. 253

Senator from Wisconsin is inconsistent with the conoiiiTent rain adopt'^d by V) »th
bouses for t.llis business, wliioh is binding ui)on the 8 mate ; and tiiat the amt^ndiuiMit,
therefore, is out of order, it covering a ground that, tiie two h )uses, by jiiiit a-tioo,
have already decided. I ask the ruling of the Cliair on th.it question of order. I sui)-
ruit to the Chair that this is a resolution of the Seiiate. Tiiis iiovv is not pr > losed as a
concurrent resolution or a nioditication, by the action of both houses, of their former
order, but a separate resolution of the Senate. It cannot be done.

Mr. Fdwleh. I submit again that this is out of order. The concurrent resolution
covers the whole case. If the Chair will examine it he will find it is. I will road the
concurrent resolution, with permission, or send it to the Secretary to be read.

The President jjro tempore. The Clerk has that resolution.

Mr. Hendricks. Let the concurrent resolution 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 con-
current resolution. The other was a concurrent res(dution that was sent to the House.
If this is a concurrent resolution, the Senate has the power to modify the former con-
current resolution with the concurrence of the House, as they passed the original reso-
lution.

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. CORRETT. I call for the reading of the former concurrent resolution, the one we
passed on the 8th of February, for the information of the Senate.

The President 2»'0 tempore. The Chair is perfectly aware that the concurrent reso-
lution adopted the other day by both branches of Congress covers the whole ground,
except it be the first objection raised by the member from Massaciiusetts ; and he sup-
posed that the reason why the Senate retired was because that was a ground inde-
pendent of the concurrent resolution ; back of it.

Mr. Williams. I ask the Chair if he will decide the question whether the amend-
ment 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 ruling in the joint convention had it
not been for some doubt whether the first objection made by the member from Massa-
chusetts was not an independent objection going back of the concurrent resolution
and demanding a decision.

Mr. FowLEK. Do I understand the Chair has decided that that is au independent
objection going back of the concurrent resolution ?

Mr. Williams. What is the decision of the Chair upon the question ?

The President j[)»'o 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 can-
Dot be done, in our judgment. The only question in the mind of the Chair is whether
the proposition now jiending is a concurrent resolution or a resolution of the Senate.
If it is a concurrent resolution, the Senate has the same power that it had when it
passed the original measure, and can modify, change, or repeal tuat caucurrent resolu-
tion. It is not a rule, but simply a resolution.

Mr. HendricivS. 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 thac can be considered by the Senate.

Tlie Pi{esident pro tempore. Yes,

Mr. Hendricks. And the Senate cannot modify rules, or take up any business except
the exact business that is before the two bodies.

Mr. Williams. I ask for a decision. '

Mr. Hendricks. I wish to finish my remarks.

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 Senator 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 busi-
ness of tlu< count of the vote for President and Vice-President.

Mr. Doolittlk. Mr. President

The President jjro tempore. As a decision 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 jjro tempore. The objection is not well taken.

Mr. DooLiTTLE. I am stating my point of order.

254 COUNTING THE ELECTORAL VOTE.

The President pro Itmpore. Tte Senator from Wisconsin will state his point of
Older.

Mr. DOOMTTLE. The Chair has stated himself that he acted from a doubt in his own
mind whether he should execute the concurrent resolution or not ; that that Avas the
occasion of his ilirectiug the Senate to withdraw, the doubt in his own mind on that
subject.

'J he P]iEsir)ENT7)?-o tewpore. Not precisely, the Chair would state.

Mr. Dooi.i'i'iLK. I so understood the Chair.

The Phesidknt jjjo leynpore. If a question was raised involving the concurrent reso-
lution, the Cliair would have had no doubt about it; but an objection was made going
back of that and resting on ditferent grounds, not covered by that resolution. The
Chair had no doubt in joint convention that the concurrent resolutiou must be adhered
to at all events until it should be reijeahd, and he would count the vote according to
the terms of that resolution; but there is an objection written out formally here to
counting the vote at all, because it is said that it was not cast upon the day required
by law ; and that was the question that the Chair supposed was to be disposed of
here.

Mr. DooEiTTLE. The point of order which I desire to state is this: that the concur-
rent resolution does cover every objection to the vote of Geoigia, and the Chair
ought to have es^ecuted the order. I'hat is the ])oint of order wbicli I make.

Ml-. CoNNK.ss. Mr. President, there is a question of order before the Senate, raised by
the Senatoi- ironi Indiana, [Mr. Hendricks.] I ask a decision of the Chair on that
question tiist, before any other question is received.

The Pkesideist pro limpore. 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. I)|{.\KE. Then the question is on my amendment.

Mr. Howe. I do not comjdain of the ruling of the Chair, and am inclined to think
it is right ; but the Senator from Indiana makes the })oint of order on a motion to
amend the rest)lu1ion, and if his point of order is good, it is good against the resolution,
at'd not against the amendment pro])osed by me. If we can entertain the resolution,
we can amend it. That 1 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. CoNNKSS. I object to this.

Mr. Hundricks. The Chair's point was that the first objection made by the member
fr< in Massachusetts is not within the concurrent resolution, and that is the only ques-
tion the Senate can now consider in separate session. We have got to decide that one
question, and nothing else.

Mr. CoNNESS. I ask for the question before 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 Massachu-
setts. Does that go back of the concurrent resolution ? Is it outside of that resolu-
tion 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 :

^^Beaolred, That under the special order of the two houses respecting the electoral
vote from the State of Geoigia, the objections made to the counting of the vote of the
electois for the State of Georgia are not in order."

I offer that upon the ground that the concurrent resolution, saying nothing about
its preamble, directs absolutely what treatment shall be given to those votes, reasons
or no reasons.

Several Senators. 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 result, take either.

Mr. Drake. I ask for information whether the decision of the Chair rules out my
amendment and the original resolution of the Senator from Ohio?

Mr. Grimes. Of course it does.

The President -pro Uwpore. 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 direc-
tion to stand by the concurrent resolution ; but that is unnecessary, as the Chair will
stand Ity that anyhow, unless it is modified. The only difticulty is as to the point
whether it covers the objection raised by the member from Massacluisetts.

Mr. Grimes. 1 wish to inquire whether, if we adopt the j)ropositiou of the Senator

PROCEEDINGS AND DEBATES IN CONGRESS. 255

from Vermont or of the Senator from Ohio, the other house having decided as it has,
the result is that tlie vote of Georj-ia cannot be counted anyhow ?

Mr. CoKNKSS. We do not know that. We cannot tell.

Mr. Gkimes. According to our rule it cannot he counted.

Mr. Williams. It cannot be counted. All we have to do is to get out of this scrape.

Mr. GiUMEs. All we have to do is to preserve our own consistency and vindicate it
on the record. The vote of Georgia is thrown aside anyhow.

Mr. CoMNKSS. Then let us get to a vote.

Mr. GisiMKS. That is what I want.

The PuKSiDENTjT^ro 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 resolu-
tion of the two houses.

Mr. Edmunds. Then I offer the resolution which I read.

Mr. Fehhy. That will cover the whole thing.

The PiiKsiDENT j>ro tempove. That will be read.

The Chief Clerk read Mr. Edmunds's resolution, as follows:

^'liesolred, That under the special order of the two housesVespecting the electoral
vote from tlie 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. CoKiJETT. Now I call for the reading 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 concurrent resolution of the two houses :

"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 undetermined; and
whereas by the joint resolution of Congress passed .July '2U, 1868, entitled 'A resolu-
tion excluding from the electoral college votes of States lately in rebellion which
shall not have been re-organized,' 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
hec me entitled to representation in Congress pursuant to acts of Congress in- that
behalt: Tliereiore,

''Eesoh-ed, 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-Presi-
dent, 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 tlie 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 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. NvK. I want to ask a question. Is it at all material, after the resolution we
have received from the House of Representatives, what the action of this body is ?

Mr. GuiAiES. Not at all.

Mr. NvE. The vote of Georgia cannot he counted. That is settled.

Mr. Edmunds. Let us have the cjuestiou.

Mr. Tkumiujll. I ask the Senate to permit 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 Ccmgress of the United States iu both of its
branches It would relieve us of any dit'ticulty if we adopted the same course that
was adoi)ted when Mr. Buchanan was elected. The President pro tempore of the Senate
then announced that "James Buchanan, of the State of Pennsylvania, having received
the greatest number of votes for President, aud that number being a nuijority of the
whole number of electors, has been duly elected." It is not necessary lo say how
many votes he received.

Mr. Edmunds. That is changing the rule.

Mr. Tkumhulu. No; it is not changing the rule. The rule provides what is to be
done with Georgia— that her vote shall be ueither rejected nor received. The Senator
from Nevada asks if the vote of Georgia can be counted when the ot.her house has
decided against it. Certainly. The Senate will never admit that the House of Rep-
resentatives 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. TiuiMiiULL. We must concur with the House of Representatives.

Mr. NvE. Not at all. If the other house says it shall not be counted, it cannot be.

Mr. Tkumiujll. C+n the Senate or the House by itself throw out any votes ?

Mr. Edmunds. I object to any furiher debate. Let us terminate this.

256 COUNTING THE ELECTORAL VOTE.

The Prksidrxt p)'o tempore. The question is oa the resolutiou offered by the Senator
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 off.^.red out of order.

The Pkesiuent pro tempore. The Chair did rule that to be out of order, as it was an
attempt to overthrow the concurrent resolution. Perhaps it was not altoofetiier so.

Mr. Sherman. I will vote for the resolution of the honorable Senator from Vermont,
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 lirst 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 sutiduieiit to ore-
vent its being counted to-day? If it was a clear proposition that that vote should be
counted now, would the concurrent resolutiou prevent it?

Mr. Edmunds. It directs just what shall be done in literal terms.

Several Srnators. " Question ! " " Question ! "

The President pro tempore. The Clerk will call the roll on the resolution of the Sen-
ator from Veimont.

Mr. Abbott's name was called ; and he responded.

Mr. Davis. I should like to hear the resolution read.

Several Senators. It is too late. The call of the roll has commenced.

The President pro tempore. If the Senator from Kentucky wishes to hear the reso-
lution read, the Chair will direct it to be read.

The Chief Clerk read the resolution, 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.

The question having been taken by yeas and nays, resulted — yeas 32, nays 27; aa
follows :

Yeas — Messrs. Abbott, Anthony, Buckalew, Cattell, Conness, Corbett, Cragin, Davis,
Dixon, Doolittle, Edmunds, Fowler, Frelinghuysen, Grimes, Hendricks, Kellogg, Mc-
Creery, Morrill of Maine, Morrill of Vermont, Morton, Patters )n of Now Hamp-ihire,
Patterson of Tennessee, Ross, Saulsbnry, Sawyer, Sherman, Sprague, Stewart, Tipton,
Vickers, Wliyte, and Williams — ',VZ.

Nays — Messrs. Cameron, Chandler, Cole, Conkling, Drake, Ferry. Fessenden, Harlan,
Harris, Howe, McDonald, Morgan. Nye, Pool, Ramsey, Rice, Robertson, Spencer, Sumner,
Thayer, Trumbull, Van Winkle, Wade, Warner, Willey, Wilson, and Yates — 27.

Absent — Messrs. Bayard, Henderson, Howard, Norton, Osborn, Pomeroy, 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 announce 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
inconsistent 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, inform-
ing that body of the action of the Senate.

Mr. Sherman. I think the question made and presented is the gravest one I have
ever 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 pro-
position that the House of Representatives, or the Senate either, can defeat an election.

Mr. Edmunds. We cannot debate that now.

The President pro tempore. Will the Senate direct the Secretary to carry the reso-
lution just passed to the House of Representatives ?

Mr. Hendricks. I move to add to the resolution just adopted the resolution pro-
posed 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 anything about it.

Mr. Nye. If this indorses the resolution of the 8th, we do. The House of Repre-
sentatives have declared that the vote shall not be counted. Where does that leave

PROCEEDINGS AND DEBATES IN CONGRESS. 257

ns? After one house has declared that it shall not be counted I claim that it is quite
iinniaterial what course the other house take ; the vote cannot be counted.

Mr. CoxxESS. 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 sepa-
rately nor the Senate separately.

Mr. EoMUXDS. That is true.

Mr. Wakxeh. 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 iu
joint convention.

The President ^Jro tempore. There is nothing before the Senate, except

Mr. Hexdhicks. My motion.

Mr. Edmuxds. My motion that the Secretary inform the House of Representatives of
the action of the Senate.

The Pkesidext j>?'o tempore. The latter motion is agreed to, the Chair understands.

Mr. TuuMiuiLL. As a relief from the difficulty 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 alreadj' 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 thereupon deciared 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 iu.

The President pro tempore. The Chair would ask what would become of the concur-
rent resolution then I

Mr. Edmunds. I hope the Chair will obey the joint order of the two houses, and an-
nounce 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 iu either event so and so is elected.
That is what we have directed you to do.

Mr. Conxess and others. That is it exactly.

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 presence of the Senate and House of Rep-
resentatives, opeu 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 happen, and that we do not do it either way. That is my trouble.

Mr. Howard. Mr. President, I offer the following resolution.'

The President jjj'o tempore. It will be read.

Mr. Hendricks. I moved to add the resolution offered by the Senator from Ohio to
the one just ado[)ted.

The Pkesidext pro tempore. The resolution 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 j>ro tempore. That was to a resolution before adopted.

Mr. Hendricks. Of course it was. It was calling up the resolutiou of the Senator
from Ohio for action.

The PRESiDEXT^ra tempore. This will be read.

The Chief Clerk. The Senator from Michigan [Mr. Howard] offers the following
resolution :

''Resolved, That the electoral vote of Georgia ought not to be counted."

Mr. Williams. I make a point of order on that resolutiou. It is out of order accord-
ing to the ruling of the Chair.

Mr. Edmunds. And accor<ling to the vote of the Senate.

Mr. H()\VARD. Does the Chair rule it to be out of order ?

The President pro tempore. It is not out of order for the Senate to pass any resolu-
tion they see fit to pass.

Mr. EnMUXDS. 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 Presidext ;}ro tempore. It will be satisfactory to the Chair to know what is to
he done when we get back.

Mr. Howard. I did not understand the Chair to say that my resolutiou was out of
order.

The Presidext jjro tempore. The Chair did not say that it was out of order. The
question is on the resolutiou of the Senator from Michigan.

258 COUNTING THE ELECTORAL VOTE.

Mr. Williams. I made a point of order oa that resolution, that it was out of order
accoidinf; to the recent ruliut;; of the Chair.

Mr. Feuhy. The Chair has decided it to he iu order. The Senator can take an ap-
peal if he wishi-s.

The Phksident^jco tempore. The Chair does not understand that this question has
beeuacted ujion at all.

Mi. Williams. I will ask the Chair to decide whether the resolution of the Senator
from Michigan is or is not in or<ler ?

ThePKESiDKXT pro tempore. The Chair thinks it is in order, and has so stated.

Mr. Williams. Then I respecffully appeal from the decision of the Chair.

The President pro tempore. The Senator appeals from the decision of the Chair.
Tile question is, " Shall the rulino- of the Chair stand as the jado;meuG of the Senate % "

Mr. MoKTON. I ask that the resolution of the Senator from Michigan be read.

The resolution of Mr. Howard was read.

Mr. MoKTOX. I make a p.)int of order on that resolution that it is in direct conflict
"with tlie resiiluti<iii jnst adopted, which was offered by the Senator from Vermont.

The Presidext pro tempore. That is a question which the Chair cannot decide. It is
for the Senate to decide. There is now an appeal pendin<f from the decision of the
Chair.

Mr. CONKLIXG. What is the decision of the Chair?

The Pkesident pro tempore. The decision t>f the Chair was that the resolution of the
Senator trom Michij;au was iu 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 Presidext pro tempore. It is not debatable.

Mr. Hendricks. I wish to submit that the resolution of the Seuator from Michigan
is d*'batable.

Mr. Edmunds. No, sir; it is not. Anyhow, the point of order is not debatable.

The President pro tempore. The question is, " Shall the decision of the Chair stand
as the jiidgmi'iit 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, Howard, Howe, McDonald, Nye, Osliorn, Patterson of New Hampshire,
Ramsey, Rice, Robertson, Sawyer, Sherman, Spencer, Stewart, Sumuei", Thayer, Van
Winkle, Warner, and Yates — 28.

Nays — Messrs Bnckalew, Conness,Corbett,Cragin, Davis, Dixon, Doolittle, Edmunds,
Fessenden, Fowler, Hendricks, McCreery, Morgan, Morrill of Maine, Morrill of Vermont,
Patterson of Tennessee, Pool, Ross, Sprague, Tipton, Vickers, Whyte, Willey, Williams,
and Wilson — 25.

AiiSENT — Messrs. Anthony, Bayard, Cattell, Frelinghuysen, Henderson, Kellogg, Mor-
ton. Norton, Pomeroy, Saulsbury, Trumbull, Wade, and Welch — 13.

The President /;ro tempore. The decision of the Chair is sustained. The resolution
of the Senator from Michigan [Mr. Howard] is in order, and the question is on agree-
ing to that resolution.

Mr. Hendkicks. Mr. President, I claim that this resolution is debatable. ["No!"
"No!"] I will state my point.

Mr. Chandler. I object. I call the Senator to order.

The Phk!^iuy.^t j}ro tempore. The Senator from Indiana maj' state his point of order ;
but of course he cannot debate the question.

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 iu the Senate
upon any objection made in the joint convention, but that it is an independent reso-
lution of the Senate, and is therefore not controlled by the joint rule which prohibits
debate upon a question made in joint convention. The Senate has decided, in support
of the ruling of the Chair, that the objection made in the House is not iu order, and
the Senate has informed the House of that fact. Therefore this resolution does not
rest upon that objection.

The President jjro tempore. Debate is not in order.

Mr. Hendricks. Uj)on the ground I have just stated I claim the right to debate the
resolution.

The President 2J»"o 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 jjro tempore. The question is on the appeal.

Mr. Ferry. One thing at a time.

The PitESiDENT pi-o tempore. The Seuator from Indiana [Mr. Hendricks] appeals

PROCEEDINGS AND DEBATES IN CONGRESS. 259

from the flecision of the Chair, and the question is, " Shall the decision of the Chair
stand as the judi^meiit of the Senate ?"

Mr. Hendhicks. 1 do not care euoii<;h about it ; lam not going to press an appeal
on a question ot this sort.

The Pkesident jjro tempore. The appeal is withdrawn.

Mr. MoKTiiN. I desire to ask a qnestion. I hold in my hand the resolution just
passed, ottered by the Senator from Vermont, which declares that the objections made
to counting the vote in joint convention a little wliile ago were out of order, and could
not be entertained ; and now if we pass the resolution offered by the Senator from
Michigan, that the electoraljvote of Georgia shall not be received, which one shall be
reported to the joiut couveution ?

The Phesidknt pro tempore. The question is ou 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 cliief clerk read the resolution of Mr. Howard.

Mr. Williams. I call for the reading of the other resolution that has just been
adopted.

The chief clerk read as follows :

'^liesolred, That under the special order of the two houses respecting the electoral vote
from the State of Georgia, the objections nuide to the counting of the vote of the elect-
ors for the State of Georgia are not in order."

The question being taken by yeas and nays, resulted — yeas 2.^, 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, Thayer, Wade, Wilson, and Yates — 25.

Nays — Messrs. Buckalew, Conness, Corhett, Cragin, Davis, Dixon, Doolittle, Edmunds,
Ferry, Fesseud(^n, Fowler, Frelinghuysen, Grimes, Hendricks, McCreery, Morgan, Mor-
rill of Maine, Morrill of Vermont, Morton, Patterson of New Hami)shire, Patterson of
Tennessee, Pool, Ross, Saulsbury, Sherman, Sprague, Tipton, Trumbull, Van Winkle,
Vickers, Warner, Whyte, Willey, an<l Williams — 34.

AusENT — Messrs. Anthony, I3ayard, Cattell, Henderson, Norton, Pomeroy, and
Welch— 7.

So the resolution of Mr. Howard was rejected.

Mr. Edmunds. Mr. President

The Phesidknt jjro tempore. One moment; shall the Secretary send the vote already
taken to the House of Representatives ? [" Certainly."]

Mr. Edmunds. I made that motion loug ago, and the President declared it carried,
I understood.

The PuKsiDENT p'/'O 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 President 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 Secretary, proceeded to the hall of the House of Representatives.

The Senate returned to the Senate chamber at four o'clock aud forty-iive min-
utes p. m.

NOTIFICATION OF ELECTION.

Mr. Morton. I offer the following 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 notif^y 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 Colfax, of Indiana, that he has
been duly elected Vice-President of the United States for four years, commeucing 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 the House of RErRESENTATiVES, February 10, 1869.

The Speaker having resumed the chair and called the House to order, said : In the
joiut meeting of the two houses when the certificate of the electoral vote of Georgia
was read the gentleman from Massachusetts [Mr. Butler] objected to counting that
vote, for reasons which will be read by the Clerk.

The Clerk read as follows:

260 COUNTING THE ELECTORAL VOTE.

"I oliject, under the joint rule, that the vote of the State of Georgia for Pi esident and
Vice-President onght not to be counted, and object to the counting thereof, Ijecause,
among otlier tilings, the vote of the electors in the electoral college was not given on
the first Wednesday in December, as required by law, aud no excuse or justiticatiou
for the omission of such legal duty is set forth in the certidcate of the actiou of the
electors.

" Secondly. Because at the date of the election of said electors the State of Georgia
had not been admitted 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 t)f the Constitution and laws of the United States, known as the recon-
struction 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 Tuesday of November last past wiis not a free, just, equal, and fair election ;
but the people of the State were deprived of their just rights thei'ein by force aud
fraud."

The Speaker. The question is, " Shall the vote of Georgia be counted, notwith-
stjinding the objection of the gentleman from Massachusetts f "

Mr. Ei.iMiiDGE. I rise to a question of order. The Presiding Officer of the joint con-
vention of tlie two houses twice decided not to entertain the objection, but to hold the
convention 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 Si'EAKER. 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 otficer when occnj>ying the chair in that capacity. The point upon which the two
houses separated was the objection of tlie gentleman from Massachusetts.

Mr. Kkur I demand the yeas and nays upon the (|uestiou in reference to the objec-
tion of the gentleman from Massachusetts.

Mr. MuNfJEN. I rise to a point of order. My point of order is that the second and
tliird objections of the gentleman from Massachusetts [Mr. Butler] are not well taken.
[Laughter.] I want to give mj' reasons. [Cries of " Order !"]

The Si'EAKEit. The gentleman cannot give his reasons. That would be debate. The
Chair cauiMt hear reasons.

Mr. MiiNGKN. Let me state my point of order in another way. [Cries of " Order!"]

The Sim;aker. The Chair would be glad to hear the gentleman from Ohio if it was
in order, but it is not in order.

Mr. MuMiEX. I want to state my point of order in another form. [Cries of" Order!"
"Order!"]

The Speaker. That would be in the nature of debate. The Chair could not hear the
gentleman from Massachusetts [Mr. Butler] explain his reasons, nor can he hea" any
other gentleman give reasons. The question is to be decided by a vote of the House
without debate.

Mr. MoNtiEN. I do not wish to debate. I merely want to state my point of order.

The Si'KAKER. The Chair cannot entertain the point of order.

Mr. FARN.swoi{Ttt. I desire to make a parliamentary inqiiry of the Chair. I desire
to know whether the H(juse is to vote u^jou 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 concurrent resolution of the two houses.

The Spkakkk. The Chair submits the question to the House, as the rule reciuires
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, under that concurrent resolution. The (luestion before the House as a house
is, " Shall the vote of Georgia be counted, notwithstanding the objections of the gen-
tleman from Massachusetts?" [Mr. Butler,]and upon the question the gentleman from
Indiana [Mr. Kerr] demands the yeas and nays.

JNlr. Fai{Nswortii. I make the point of oriler that the joint resolution of the two
houses is of higher authority and is a later rule thau the one which orders that ques-
tion t.i be jiut to the House.

The Speaker. The Chair overrules the point of order on the ground that the con-
current I'esohuion devolves no duty on the Si)eaker 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 gentleman will read the test of tlie concurrent resolution he will see
that it devolves no duty on the Speaker or upon the House of Representatives in its
capacity as the House.

Mr. Kerr. I desire to makean inquiry of the Chair. Are the propositions submitted
by the gentleman from Massachusetts [Mr. Butler] susceptible of division aud separate
votes ?

PROCEEDINGS AND DEBATES IN CONGRESS. 261

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 Massa-
chnsetts, the Chair added, " notwithstanding the objection of the geuileman from
Massachnsetts."

Mr. Shellabarger. Before the A^ote is taken, I ask that the certiticate of the State
of Georgia be again read.

The Speaker. It is not in the possession of either house officially,, but is in the pos-
session of the couveution 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, Bnrr, Cary,
Clianler, Ehhiilge, Farusworth, Getz, Glossbrenuer, Golluday,Grover, Haighf, Hawkins,
Holman, Hotchkiss, Humphrey, Johnson, Thomas L. Jones, Kerr, Knott, Marshall, Mc-
Cormick, Miuigen, Nicholson, Phelps, Priiyn, Randall, Ross, Sitgreaves, Taber, Tift, Van
Auken, Van Tniuip, Wood, Woodward, aiul Young — 41.

Nays— Messrs. Allison, Delos R. Ashley, Jame.s M. Ashley, Baldwin, Banks, Beaman,
Beatty, Benjanun, Benton, Bingham, Blaine, Blair, Boles, Boutwell, Boweu. Boyden,
BromWell, Broomall, Buckland, Buckley, Benjamin F. Butler, Roderick R. Butler, Cake,
Callis, Churchill, Reader W. Clarke, Sidney Cl.irke, Clift, Cobb. Coburn, Corley, Covode,
Cullum, Dawes, Deweese, Dickey, Dixon, Dodge, Donnelly, Driggs, Ecklcy, Edwards,
Egglestou, Ela, Thomas D. Eliot, James T. Elliott, Ferriss, Ferry, Fields, French, Gar-
field, Goss, Gove, Gravely, Halsey, Hamilton, Harding, Haughey, Heaton, lligby. Hill,
Hooper, Hopkins, Chester D. Hubbard, Hulburd, Hunter, IngersoU, Jenckes, Alexander
H. Jones, Judd, Julian, Keliey, Kellogg, Kelsey, Ketcham, Kitchen, Koonrz, Lallin, Lash,
George V. Lawrence, William Lawrence, Lincoln, Loan, Logan, Lough' idgc, Mallory,
Marvin, Maynard, McCarthy, McKee, Miller, Moore, Moorhead, Morrell, Mulliiis, New-
comb, Newsham, Norris, O'Neill, Orth, Paine, Perham, Peters, Pettis, Pierce, Pike, Pile,
Plants, Poland, Polsley, Price, Prince, Raum. Robertson, Roots, Sawyer, Schenck, Sco-
tield, Selye, Saanks, Shellabarger, StJirk weather, Stevens, Stewart, Stokes, Stover,
Syi)her, Tatfe, Taylor, Thomas, John Trimble, Trowbridge, Tvvichell, Ui)son, Van
Aernam, Burt Van Horn, RobertT. Van Horn, Van Wyck, Viiial, Ward, Elihu B. VVash-
burne, Henry D. Washburn, William B. Washburu, Welker, Whittemore, Thomas Will-
iams, James' F. Wilson, John T. Wilson, Stephen F. Wilson, and Windom — l.^'iO.

Not voTiNd — Messrs. Adams, Ames, Anderson, Archer, Aruell, Bailey, Blackburn,
Cook, Cornell, Delano, Dockery, Fox, Griswold, Asaliel W. Hnbbard, Richard D. Hub-
bard, Lynch, McCuUough, Mercur, Morrissey, Myers, Niblack, Nunn, Pomeroy, Robin-
son, Smith, Spalding, Stone. Lawrence S. Trimble, Cadwalader C. Washburu, Will-
iam Williams, and Woodbridge — 31.

The Speaker. On the question, "Shall the vote of Georgia be counted, notwith-
standing the objection of the gentleman from Massachusetts?" the yeas are 41, nays
inO. The nays have it ; and the House of Representatives have decided that the vote
of Georgia shall not be counted. A message will be sent to the Senate informing that
body of this action 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. Er.Di;iDGE. 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. 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 waiting for the re-assembling of the joint convention !

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 Sen-
ate, that that body has adopted a resolution that the objection was not in order under
the joint rule That action will be communicated to tlie House for its consideration.

Mr. Eedridge. I would bke to inquire of the Speaker whether he is now ready to
announce 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. FaRNSWorth. I desire, in view of the statement of the Chair in regard to the
action of the Senate, to make one or two inquiries of the Chair, that the House may
understand this matter.

The Speaker. The Chair cannot answer any such inquiries until the action of i;he
Setuvte has been officially communicated. The' Chair merely stated his informal in-
formation.

Mr. FaRNSWORTH. I desire to inquire whether

262 COUNTING THE ELECTORAL VOTE.

The Spkaker. The Chair will decline to answer all inquiries with regard to the
action of the Senate until that action has been officially communicated.

Mr. Fahnswokth. The point upon which I desire to get the opinion of the Ciiair 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 concur-
rent resolution on this subject.

The Speaker. The Chair declines to answer 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 respectful toward that body. The Sen-
ate will communicate its action to the House in its own time.

Mr. Thomas. Mr. Speaker, as other gentlemen seem reluctant as to how tliey will
extract the House from a very unnecessary entanglement, although unaccustomed to
take much part in its proceedings, I have determined to submit a proposition. I move
to reconsider the vote given by the House touching the question mooted by the gentle-
man 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 Speakei{. The question is not debatable under the concurrent resolution of the
two houses.

Several Members. Can we not grant nnanimous consent?

The Speaker. No unanimous consent can waive the action of the two houses.

Mr. Bingham. I desire to make a parliamentary 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
Representatives by a vote of this character to supersede the resolution adoi)ted by the
Senate and House concurrently. That resolution fixed the mode of action and pre-
scribed 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
projjerly transpiring in joint convention of the two houses, over which the Speaker of
this House has no power.

Mr. Thomas. I submit the motion to reconsider, and each member can act upon his
own i-esponsibility.

Mr. l^iCKEY. I move that the motion to reconsider be laid upon the table.

Mr. Benmamin. The gentleman from Massachusetts made the motion to reconsider,
and it was laid upon the table.

The Speaker. The gentleman from Wisconsin [Mr. Eldridge] having demanded
the yeas and nays, the motion was withdrawn.

Mr. ScHEXCK. Has any message been received from the Senate ?

The Speaker. None as yet.

Mr. Butler, of Massachusetts. I demand the yeas and nays.

The yeas and nays were ordered.

The question was taken ; and it was decided iu the affirmative — yeas 117, nays 57,
not voting 48 ; as follows :

Yeas — ^Slessrs. Allison, Delos R. Ashley, Baldwin, Banks, Benjamin, Benton, Blaine,
Blair, Boles, Boutwell, Bromwell, Broomall, 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, Dounelly, Driggs,
Eckley, Eggleston, Ela, Thomas D. Eliot, James T. Elliott, Ferris, Ferry, French, Goss,
Gove, Gravely, Halsey, Hamilton, Harding, Haughey, Higby, Hill, Hooper, Hopkins,
Hulburd, Hunter, Ingersoll, Alexander H. Jones, Judd, Julian, Kclsey, Kitchen, Lash,
Lincoln, Loan, Logan, Loughridge, Mallory, Maynard, McCarthy, McKee, Miller, Moore,
Morrell, Mullins, Newcomb, Newsham, Norris, O'Neill, Orth, Paine, Perham, Pettis,
Pierce, Pike, Poland, Polsley, Prince, Raum, Robertson, Roots, Sawyer, Schenck, Scofield,
Selye, Shanks, Starkweather, Stevens, Stewart, Stokes, Stover, Sypher, Taffe, Taylor,
Trowbridge, Twichell, Upson, Van Aeruani, Burt Van Horn, Robert T. Van Horn, Van
Wyck, Ward, Henry D. Washburn, William B. Washburn, VVelker, Whittemore, Thomas
Williams, Stephen F. Wilson, and Woodbridge — 117.

Nays — Messrs. Axtell, Baker, Barnes, Barnum, Beaman, Beatty, Beck, Bingham,
Boydeu, Boyer, Brooks, Burr, Cary, Chanler, Eldridge, Farnsworth, Getz, Glossbrenner,
Golladay, Grover, Haight, Hawkins, Holman, Hotchkiss, Chester D. Hubbard, Hum-
phrey, Jenckes, Johnson, Thomas L. Jones, Ketcbam, Knott, Koontz, Laliin, George V.
Lawrence, Marshall, Moorhead, Mungen, Niblack, Nicholson, Phelps, Pile, Pruyn, Ran-
dall, Ross, 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, Anderson, Archer, Arnell, James M. Ashley,
Bailey, Blackburn, Bowen, Buckland, Cook, Cornell, Delano, Dockery, Edwards, Fields,

PROCEEDINGS AND DEBATES IN CONGRESS. 263

Fox, Garfielil, Griswolcl, Heaton, Asahel W. Hubbard, Richard D. Hubbard, Kelley,
Kellof^g, Kerr, William Lawreuce, Lj'uch, Marviu, McCorniick, McCullough, Mercur,
Morrissey, Myers, Nuuu, Peters, Plauts, Pomeroy, Price, Robiusou, Sheliabarger, Spakl-
iug, Thomas, Lawrence S. Trimble, Vidal, Cadwalader C. Washburn, Elihu B. Wash-
burue, 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 Senate 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 ob-
jections made to the counting of the electoral votes of that State are not in order.

Mr. Wood moved that the roll-call be suspended 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 in-
terrupt 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 re-entered the hall.

IX THE PliESEXCE OF THE SeXATE AXD HOUSE OF RePRESEXTATIVES,

Fehruari/ 10, IS69.

The PRESfi>ENT 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 objec-
tion of " the gentleman from Massachusetts." [Laughter.] I now submit the follow-
ing resolution. I do not understand that we are to be overruled by the Senate in that
way. [Laughter.]

Mr. Wood. I rise to a question of order.

The Presidext. The Chair declines to receive the resolution. The tellers will make
out the statement of the vote as directed.

Mr. BuTLEK, of Massachusetts. I appeal from the decision of the Chair to the con-
vention.

Mr. Wood. Order!

I\Ir. Butler, of Massachusetts. Let us see whether we have any rights in the House
or not.

The Presidext. The tellers will make out the statement under the concurrent reso-
lution as directed.

Mr. Butler, of Massachusetts. Does the Chair entertain my resolution ?

The Presidext. T do not.

Mr. BuTLKR, of Massachusetts. Does the Chair entertain the appeal ?

The PitEsiDKXT. No, sir; he does not entertain the appeal. [Laughter.]

Mr. BuTLKR, of Massacliusetts. Does the Chair hold, as a matter of order, that the
Senate can overrule this House ?

Many Members. "Order!" "Order!"

Mr. iiuTLKR, of Massachusetts. I do not understand that the representatives of the
people who have elected a President can be overruled.

Many Members. "Order!" "Order!"

Mr. ijUTLER, of Massachusetts. The question 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. Njw, then, shall we have this unseemly scene

Calls to order.

The Presidext. No debate is admissible.

Mr. Butler, of Massachusetts. I am not debating; and neither calls to order nor
arbitrary proceedings can override the privileges of this House.

The President. If the gentleman is not debating he will resume his seat. [Laugh-
ter.]

Mr. Butler, of Jlassachusetts. I appeal from the decision of tlie Chair.

The Presidext. The Chair will not entertain the appeal,

Mr. Butler, of Massachusetts. I appeal from that decision.

The President. Nothing is in order but the statement of the vote.

Mr. AVooD. Have we a Sergeant-at-Arms attached to this body f

Mr. Shaxks. Will it be in order to ask for the reading of the rule governing this
body ?

The Presidext. It would not be in order.

Mr. IxGERSOLL. I object to any further proceeding on the part of this body until that
appeal is t-utertained and action is had upon it by this body. [Loud shouts of " Order!
" Order ! " and great confusion.]

17 X

264 COUNTING THE ELECTORAL VOTE.

Mr. Callis. 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 undigaified

Cries of " Order ! " " Order ! "

Mr. Callis. If it l^e in order, I move that this convention now adjourn.

The President. That motion is not in order.

Mr. F^RXSWORTH. I rise to a point of order.

Mr. Ingersoll. I call my colleague to order.

Mr. Farxsworth. I make the point of order that an appeal cannot be taken from
the decision of the President of this body. [Renewed shouts of " Order ! "]

The President. There is no appeal entertained. The geutlemau from Massachu-
setts [Mr. Butler] will resume his seat.

Mr. Butler, of Massachusetts, [amid great uproar.] I am in order. I desire the
readingof the joint rule ujion the subject of couutiug the votes, which expressly states
that a vote cannot be counted unless both houses concur. I do not know of any
]iower which the President has to override the rules. [Loud cries of '' Order ! "]

The President. The tellers will perform their duty under the concurrent resolution
as directed.

Mr. Ingersoll. I object.

The President. The Chair understauds that. [Laughter.]

Mr. Ingersoll. Now the Senate can retire and consider that objection. [Laughter
and cries of " Order ! "]

The President. Order! order!

Mr. Eldridgf;. 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 ob-
jection of the gentleman from Massachusetts [Mr. Butler] there has heeu no report
made of the action of both houses uj>ou 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 convention 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. [Re-
newed laughter and applause in the galleries.]

Senator Doolittle. I rise to a point of order. It is that everything except the exe-
cution of the joint order of both houses is out of order, and I d(!mand that that order
sliall now be executed. [Loud shouts of " Order 1" " 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 eutertaiued.

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 position 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 i^roceed. [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 aj^peal in this convention from the decision of the Chair.

The President. We are proceeding under a concurrent resolution of both bodies,
which has declared how the counting and announcement of the vote shall be proceeded
with.

Mr. Bromwell. But does the concurrent resolution of both bodies prescribe who
shall determine when that order is executed in order ? [Cries of " Order! "]

Mr. Banks. I ask leave of the convention 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!"]

PROCEEDINGS AND DEBATES IN CONGRESS.

265

Mr. Eldridge. We want a fair fight. If anybody is going to i^itch in let us all have
a chance. [Laughter.] I object.

The President. Objection being made, no debate is in order, and the vote will be
announced. 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 nproar.]

Mr. Wood. I hope the Chair will do his duty. I demand a count of the votes.

Mr. Butler, of INIassachusetts. I move that this convention now be dissolved, and
that the Senate have leave to retire. [Continued cries of " Order!" " Order ! "] And.
on that motion I demand a vote. [Cries of " Order! " "Order! " from various parts
of the hall.] We certainly have the right to clear the hall of interlopers.

The President. The tellers will now declare the result.

Senator Coxkling (one of the tellers) then proceeded to declare the result, amid
great noise and disorder, the President endeavoring to maintain order by repeated
raps of the gavel.

The nproar 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 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 4</t of March, 1869.

States.

For President.

For Vice-Presi-
deat.

C'S

.2 ®

«o

Maiue

!New Hampshire.. .

Vermont

Massachnsetts

Rhode Island

Connecticut

Kew York

New Jersey

Pennsylvania

Dehaware

Maryland

North Carolina

South Carolina

Georpa

Alabama

Louisiana

Ohio

Kentucky

Tennessee

Indiana

Illinois

Missouri

Arkansas

Michigan

Florida

Iowa

Wisconsin

California

Minnesota

Oregon

Kansas

West Virginia

Nevada

Nebraska

Including Georgia.
Excluding Georgia

294
285

214
214

The President. The tellers report that the whole number of votes cast for Presi-
dent and Vice-President of the United States, including the votes of the State of

266 COUNTING THE ELECTORAL VOTE,

Georgia, is 294, of whicli the majority is 148; excluding the votes of the State of
Georgia, it is 285, of wliiGh tlie uiajority is 14?.. Tlie 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 Ne^v VOrK, 8U vnifs.
Excluding the State of Georgia, the result of the vote is — for Ulysses S. Grant, of Illi-
nois, 214 votes; for Horatio Seymour, of New York, 71 votes. The result of the vote,
as reported by tlie tellers, for Vice-President of the United States, including the State
of Georgia, is — for Schuyler Colfax, 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 Colfax, of Indiana, 214 votes; and for Francis P. Blair, of Missouri, 71
votes.

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, 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, 1869 ; and that
Schuyler Colfax, of the State of Indiana, having received a majority of the whole
' Dumber 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 daj' of March,
1869.

The object for which the House and Senate have assembled in joint couventiou hav-
ing transpired, the Senate will retire to its chamber.

Ix THE HousK OF Repxjesentatives, Fvlruary 10, 1869.

QUESTIOX OF PRIVILEGE.

Mr. Butler, of Massachusetts, said: I rise to a question of privilege, and offer the
following resolution :

^'Ix.esolfed, That the House protest that the counting of the vote of Georgia by the
order of the Vice-President pro ttmpore was a gross act of oppression and an invasion
of the rights and privileges of the House."

Mr. HoLMAN. I object to the introduction of that resolution.

The Speaker. The gentleman from Massachusetts [Mr. Butler] claims this to be 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. Ramdall. 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 tiiat its rights and privileges 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 Speakp:r. The Chair desires to submit the history of the joint rules, the appar-
ent 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 convention when the electoral votes are counted. The Constitution ])roceed3 no
further ; it simply provides that —

"The President of the Senate shall, in the presence of the Senate and House of Rep-
resentatives, open all the certiticates, 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 tlie whole number of electors appointed."

On the 6th day of February, 1865, the two houses of Congress adopted the twenty-
second joint rule, in order, so far as possible, to prevent scenes like tLiose 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 (piestion 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 ([uestion shall be submitted to tliat 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 ( f the two
houses; which being obtained, the two houses shall immediately re-assemble, and the
Presiding Officer shall then announce the decision of the question submitted ; and n]}on
any such question there shall be no debate in either house."

PROCEEDINGS AND DEBATES IN CONGRESS. 267

If this rule stood alone it would follow necessarily that if any olijeotion were made
to the counting of any vote from any State of the Union, whether that vote was uncon-
tested or contested, the two houses must meet in their respective chambers and with-
out debate decide the question. A few days since, however, the same legislative
power that enacted this joint rule saw fit to euact 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 hasjust beenheld. The Chair, thougii notalawyer, supposesil to be
one of the fundamental principles 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 resolution, the preamble to which has been over-
looked amid the feeling which has grown up in the joint convention. The twenty-
second joint rule provides that "if upon the reading of any snch certificate," that is
the certificate from any State, '' any question shall arise in regard to counting the votes
therein certified," a certain procedure shall then follow. The concurrent resolution,
however, adopted within 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 oper-
ation of the twenty-second rule. The Cliair 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 tweuty-.second joint rnle ; 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 Georgia 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, 18G8, entitled 'A res-
olution excluding from the electoral college votes of States lately in rebellion, which
shall not have been re-organized,' it was provided that no electoral votes from any of
the States lately in rebellion should be received or counted for President or Vice-Pres-
ident 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 hy Ike Senate, {Ihe Uouse of Bepreseniatlves concurring,) That on tlie assem-
bling of the two houses on the second Wednesday of February, 1«69, for the count-
ing of the electoral votes for President and Vice-President, as ])rovide(l 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 bo reported by the President of the Senate ia the fol-
lowing 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 Georgia, to be counted, the resnlt 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 Pres-
ident of the United States ; and in the same manner for Vice-President."

This concurrent resolution, adopted by the same legal authority which alopted the
joint rule, declares in its preamble that it is a fact ai>parent to Congress that it is
a grave question whether the State of Georgia is entitled to representation ; that that
question is undetermined ; and that therefore, when the two houses shall assemble,
" as proridrd hy law and by ihe 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 imperatively required
to adopt. The President of the Senate has complied with the law which the two
bouses laid down for him. In the opinion of the Chair, he would have bean 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
entertained 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 Senate 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. BuTLEi?, 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. Spaldixg. I hope the gentleman from Massachusetts will yield for a motion to
adjourn.

268 COUNTING THE ELECTORAL VOTE.

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. Butli<;r. of Massachusetts. No, sir ; I do not yield for that motion.

Mr. Dhiggs. I hope the resolution which the geutlemau from Massachusetts has
offered will be agaiu read, so that we may see what is before the House.

The resolution was again read.

Mr. Faunswokth. 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
privilege or not.

The SvKAKEU. It was, if the Chair had submitted it to the House ; but it has already
been decided to be a question of privilege.

Mr. Eldkidge. I appeal from that decision of the Chair.

The Spkakei:. TJje Chair decliues to entertain the appeal on the well-known groiind
that when a point of order is ouce decided it caunot be again reuewed. When a point
of order is ouce decided it cannot be again reuewed, although additional reasons may
be assigned for it.

Mr. Fahnsworth. I withdraw 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 Massachusetts deprived of the privilege of
replying to them.

Mr. But!,er, of Massachusetts. I ask the privilege of the House, Mr. Speaker, that
during 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 oi)pression, 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 dis])assJouately
to see tlic 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, ^vci are without redress, and if he were wrong it was the greatest outrage upon
the rights and privileges of this House.

Now, Mr. Spcalcer, 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, aud they shall be therein counted, and it is as impossible
for this House or the Senate, eitlier jointly or separately, in concurrence 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 House and tlie Senate cau determine who is
and wlio is not to be the President of the United States, aud 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.

MESSAGE FROM THE SENATE.

A message was received from the Senate, by Mr. McDonald, 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 appointed on the part of the House
to wait upon U. S. Grant, President-elect of the United States, aud also upon Schuyler
Colfax, Vice President-elect of the United States, and inform them of their election,
and have appointed Mr. Morton, of Indiana, as such committee on its part.

QUESTION OF PRIVILEGE— AGAIN.

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
1)6 counted, it is within the power of the House and the Senate to say who shall be
President aud who shall not be Presideut. Nay, more; if it is in the power of the
House of Eepreseutatives 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 this day
henceforth tljere can be no election whenever the House and Senate are opposed to
each other. Tliink of it a moment, gentlemen. Suppose a case of a presidential elec-
tion when the House is one way and the Senate another. Under that joint rule, which

PROCEEDINGS AND DEBATES IN CONGRESS. 269

is constitutional and operating, tlie House will say, " We will not have the republican
votes counted," and the Senate will say, " We will not have the democratic votes
counted," and there is an end to the proceeding of the election. Now, then, what did
the Constitution mean ? It meant that a convention should come together of the two
houses. Wbat is meant by that convention ? It is claimed on the part of the Senate
that they sit in the convention as an independent body, and, in deference to their claim
of privilege — because they are a small body, and by practice their votes would be over-
thrown— we have permitted heretofore by the rule that all questions should be con-
sidered in the separate bodies.

The Speaker j>»7> tempore, (Mr. Dawes in the chair.) The House will preserve order.

Mr. Butler, of Massachusetts. I am sorry to speak when gentlemen have so little
disposition to hear; but still I must do my duty, whatever it is.

Mr. Jones, of Kentucky. Is it in order to raise a question of order ?

The Speaker jjro tempore. It is.

Mr. Jones, of Kentucky. I protest that this is not a question of privilege. Every
member in this House will have a right to discuss the matter the gentleman is dis-
cussing.

The Speaker j^ro 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 discussing the question whether the electoral
vote of Georgia ought to be counted or not.

The Speaker j)ro tempore. The gentleman from Massachusetts will proceed.

Mr. Spalding. Mr. Speaker, is it in order to move to go to business on the Speakers
table f If so, I make that motion.

The Speaker jjro tempore. The gentleman from Massachusetts is entitled to the floor,
and declines to yield to any one.

Mr. Spalding. I supposed as he took me off the Ooor 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 ^)ro tempore. It is only after the morning hour that that rule prevails.

Mr. Farnswortii. I want to get the permission of the House that there shall be no
further business transacted to-night.

The Speaker j)co tempore. Does the gentleman from Massachusetts yield for that
motion ?

Mr. Butler, of Massachusetts. I have asked that I may not be interrupted.

Mr. Farnswoi{TII. Then the gentleman can speak without interruption.

The Speaker ^jro tempore. Does the gentleman decline to yield to take the sense of
the House whether there shall be any further business 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. Farnswortii. 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 believe 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 down of the representatives of the people ;
the same — I do not want to use an unparliamentary word — the same exercise of arbi-
trary, despotic, 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
everybody else until he had declared that by all the votes counted Horatio Seymour
was elected President of the United States, and whenever you get a Senate opposed to
the House, and opposed to the action of the people, when there can be any pretest
whatever for doing it, from that moment, under this precedent, unless the House asserts
its privileges, our lil)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 ciill
attention to it because I saw an act on the part of the Speaker which, while well in-
tended, and which I have no doubt proceeded from his convictions of duty, and which.

270 COUNTING THE ELECTORAL VOTE.

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 tliat a Vice-
President is elected who is not really elected, and that Vice-President shall happen to
he the Speaker of the House, he then orders the Seroeant-at-Arms to stille the voice of
the people's Representatives in order to secure his own election !

Mr. Colfax, (the Speaker.) Does the gentleman desire a reply ?

Mr. BuTLEiJ, of Massachusetts. No, sir.

Mr. Colfax. He does not.

Mr. Butler, of Massachusetts. I am only putting a question, not in any manner
criticising, and the reason why I do not desire a reply is that I do not w^ant to be mis-
understood by admitting that my words need a personal reply. I said at the begin-
ning that the Speaker did exactly what he believed to be his duty, and I do not think
that he was inliaenced one hair, because he could not doubt that he was the choice of the
people, and that under no circiimstances would the people permit that choice of theirs
to be overridden ; and, therefore, he had not a single personal thonght 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 moment to be attacking his position. But I put it to his own
good sense — and I would as lief argue to that than to any other judge on earth — sup-
^ose we had had a man who was doubtful whether he was elected by the voice of the
]>eople — for it may be that next time our then Speaker is the man who is to be Presi-
dent— and he can by the (jcns (Varmerie of the House, by the constabulary of the House,
check the voice of the people through their Representatives, 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, because he did, I have no doubt, what
he thought was right to be done. And I call his attentiou to the fact that the mouieut
he made that decision — 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 moineuC
1 took my seat and did not interfere with the proceedings, because I yielded to his au-
thority as [ always have done and always have been bappy to do. But I am only
showing the danger and showing the necessity tiiat there is that this House should as-
sert 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 thonght to
be necessary on the ])art of the Senate a' resolution that the vote of Georgia should not
he counted because of its want of capacity as a State ; that being put in a ])reamble.
It was agreed to for that reason and provided that the State of Georgia shouhl not be
counted except in a given way. I say I think it wholly unparliamentary and wholly
unconstitutional. I think that concurrent resolution had not any more force anil 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. Eldhidge. 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 couvtmtion, and in the first i)lace an objectiou was n)ade to count-
ing the vote of Georgia for reasons that were wholly outside of that stated in the con-
current resolution. The lirst and last grounds of the reasons which I assignetl for that
objection are wholly outside of that concurrent resolutiou. 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 riglit under the
rule to consider any other question. After the Senate had retired the Speaker took the
chair, and very properly i>ut befi>re the House the objection whifch 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 con-
sider 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
uuregenerated and unpurged of every crime known to the Decalogue." 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 *o-
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 he said to be where order there was none. The State of New Hampshire

PROCEEDINGS AND DEBATES IN CONGRESS. 271

was called before Maine, Maine before Minnesota, anil 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 ditterence in the result. No man could know
officially and legally the fact we were here otBcially 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 meuiber 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 Colfax, I would not have counted it as soon as when it was
given for the other 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 concurrent resolution is right, then the joint rule is
right; which says that the vote of no State cau be counted if it is objected to by
either house. The Speaker has told us that the President of the conveutiou was
right in counting the vote of Georgia, although the House protested against it, because
the concurrent resolution of the two houses directed him so to do. Now, what is the
force of a concurrent i-esolntion? It is a declaration that the two houses, at the time
ot its passage, concurred in a certain act or declaration. Now, after we have con-
curred in a resolution, cannot we non-concur and rescind it, at least so far as we are
concerned? And did we not uon-concur and rescind that concurrent resolution wheu
we voted that the vote of the State of Georgia should not be counted f I put that as
a question of i)arliameutary law to the Speaker. We tirst concurred Avith the Senate
that the vote of Georgia should be counted in a certain way. After a time, while act-
ing as part of the convention, we changed our opinion, aud told the Senate that we
had non-concurred in that resolution, and had voted, three to one, to reverse 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 con-
current 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 object, without leave of
the Senate. Now, I have here a resolution that that joint rule, so far as this House is
concerned, shall be rescinded ; but if the ruling is correct, then we never can rescind it.
As a i^art of the convention we resciuded the concurrent resolution when we said that
the vote of Georgia ought not to bo counted under any circumstauces.

Mr. Fahx.swokth. Will the gentleman allow me to ask him a question ?

Mr. BuTLEH, of Massachusetts. No, sir. I cannot permit myself to be interrupted
just now.

]\Ir. pARXswoian. I advise the gentleman not to do so.

Mr. Butler, of Massachusetts. I take the gentleman's advice for what it is worth —
nothing more.

Mr. Faknswortii. My question might expose the fallacy of the gentleman's argu-
ment.

Mr. BuTEER, of Massachusetts. The gentleman shall have ample time to do that.

Mr. Speaker, as I was saying, if we cannot rescind that resolution, there it stands.
If the Seuate 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
wheu he comes here he takes the gavel and stands there, and we cannot appeal from
his decision. We cannot eveu clear out our House so as to proceed with our delibera-
tious by ourselves. He must remain there shouting "Order !" until they shut us up.
The Senate, having got iuto our hall, hold themselves here, aud a motion is not even
entertained to dissolve the convention. In other words, the convention cau be dis-
solved only l)y the order of the Senate, and not by the ofder of the House, because the
convention happens to be held in the hall of the House. The Senate can retire when-
ever 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 ?

Wheu the President of the Senate refused to entertain my motion, that the Senate
have permission 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 hei'e than we have, and I think it was the duty of the Presiding Offi-
cer to put the motion. The Seuate had no business here any longer when we of the
House desired the use of our hall for the purpose of consultation. If the President of
the Seuate 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 Speaker will not turn them out, how are we ever
to get rid of them ? Aud there is no appeal ; there is nothing to be said !

Thus there has been brought about this shameful sxjectacle — that when we have a

272 COUNTING THE ELECTORAL VOTE.

President and Vice-Presideut elected -with more unanimity than almost any of their
piedecessoi's, instead of the result being announced amid the paeans 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 personal 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 Parlia-
ment in olden times. When they had a speaker who, at the command of the court, in-
sisted that he would adjourn by leaving the chair, how did they prevent it ? They
l>]aced their strong men there to hold him down, so that he should not get out. We in
this case had otilj' to reverse the process. We had our strong men ; and why should
we not have followed that old precedent of parliamentary history ? Who is respoiisi-
ble for all this ? I will tell you. It was the Presidiug Otiicer of the Senate, and the
Senate sustaining him, who were tramjiling 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. J If I cannot speak in an orderly and proper manner, I will
speak iu a disorderly and improper manner. I will speak .somehow ; I will not be
silenced. And I ask that this House shall now ex.press its sense of this breach of its
privileges.

Mr. Speaker, I trust I have not given even a strained version of this affair. Now,
what is our remedj' ? I have not offered this resolution with the expectation of
passing it to-night, 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 weni. coH. that this'w^as a gross outrage on the privileges of the House. Piut
what do I propose by this resolution and by another which I hold in my hand, provid-
ing that the joint rule be abrogated ? I propose that the subject shall be referred to a
select committee of live or seven, as the House may please, that they may at once pro-
ceed 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 responsible for it) may never be repeated iu this joint convention of the two houses.

Mr. Speaker, I wish to modify my resolution by adding the following additional res-
olutions :

Besolved, 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 gentleman from Ohio, who, I under-
stand, wishes to be heard on this question.

Mr. CoLi'AX, (Speaker of the House.) I ask the gentleman from Ohio to yield to me
for a short time.

Mr. SnELLABAKGER. Certainly, with pleasure.

Mr. Colfax. I acknowledge, Mr. Speaker, my surprise when directly referred to by
the gentleman from Massachusetts in the case which he propounded as a hypothetical
case, and when I asked of him the poor courtesy of replying at the moment, he declined
to yield me the floor.

Mr. BuTLEit, of Massachusetts. And he gave the reasons for so declining.

Mr. Colfax. Now, sir, there are various ways of attacking a person. It may some-
times be by the charge direct, and sometimes by charging what might be done by him
iu 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 iu the morn-
ing he did not allude hypothetically to what might occur, when as Vice-Presideut of
the 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. BiTTLER, of Massachusetts. I told the gentleman I did not refer to him hypothet-
ically. I had not the gentleman iu my mind at all, as I now a(ssure him upon my
honor.

Mr. Colfax. 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 similies.

A word in reference to the question which has arisen between the two houses. It
will not be long before I must leave this hall, and the earnest warning which I would
now address to my fellow-members is to avoid, as far as possible, any conflict between
the two branches of Congress, in whose hands have been confided, by the Constitution
and the jjeople, the legislative power of this Government. If it be apparent that duties
have been performed 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 com-
ing generations of the future as voting in favor of an unjust resolution of condemnation.

PROCEEDINGS AND DEBATES IN CONGRESS. 273

Now, sir, this case is all in a nntsliell. The Constitution of the United States declares
that the President of the Senate, in presence of the Senate and House of Representa-
tives, 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. lu that case the electors were prevented
from meeting on the day fixed by law by a severe suow-storm, but they met on the suc-
ceeding day and cast their votes. I remember the scene well which took place in the old
hall, but I will not take up the time of the House by describing it. Snbs'queutly, in
1865, in consequence of the troublous condition of the country and the disorganized
condition of many of the States, and in order that there might be no difficulty in refer-
ence 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 constitutional
and wise. Subsequently to this, within two or three days of the time we are sitting
here in this brilliantly lit hall. Congress thought the case of Georgia was an exception
to the cases covf red by the twenty-second rule, and it deliberately declared that Geor-
gia was ou a different footing, and passed a concurrent resolution — for which I believe
the gentleman himself voted — by which the President of the Senate is commanded to
do certain things, and the very words which are to be used are placed in his mouth.
And it declares in that concurrent resolution which was adopted, with the vote of the
gentleman himself in favor of it, if I am not mistaken

Mr. BuTLEH, of Massachusetts. I voted only for the suspension of the rules.

Mr. Woodward. If the geutleman from Massachusetts was not here when that vote
was taken, he ought to have beeu.so as to have made the argument he has made
to-day. [ Laughter. ]

Mr. Colfax. 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 alfect 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 wheu I heard the supplemental argument
of the gentleman from Massachusetts, in which he said that 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 made by both houses.

Mr. Woodward. I beg leave, with the permission of the gentleman, to correct a
mistake into which I have fallen. The yeas and nays do show that the vote of the
gentleman from Massachusetts was given ou the question referred to.

Mr. Colfax. The geutleman says he did vote. That is immaterial.

Mr. Bkomwell. 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 oue further remark. It is impossible in a joint convention that there should
be au appeal from the ruling of the Chair, because it could not be entertained by the
Pi'esidiug Officer. There never has been au appeal in auj' joint convention of Congress.
It might Lave 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 knowl-
edge of that rule, by a deliberate 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 accord-
ingly withheld until the last, so that the concurrent resolution, which was a command
to the President of the Senate, should be carried 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,
representing the States, and the House of Representatives, representing the people of
the United States, the convention is made up of different persous, each body repre-
senting the same number of people, but by different numbers and in different ways.

Mr. Butler, of Massachusetts. Will the geutleman 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 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 occupied the time of the House. It is prob-
ably the last time I shall have occasion to do so until I shall, ou leaving the chair,
make my brief valedictory remarks. The electoral vote has been counted in accordance
with the requirement 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 exactly what both
branches of Congress ordered him to declare. I appeal to you, Representatives, ou no

274 COUNTING THE ELECTORAL VOTE.

sudden excitement as this, to put upon your Journal a record tliat 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. Shellabahger resumed the floor.

Mr. Wood. Will the gentleman yield to me to move that the House adjourn ?

Mr. SiiELLABARGKH. I decline to yield.

Mr. Alijsox. 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 adjournment, provided I do not lose my opportunity
to have the floor.

The Speaker j))-o tempore. The gentleman does not lose his right to the iioor.

Mr. Allison. I move that the House do now adjourn.

The question being put, there were — ayes 83, noes &2.

Mr. Farnswortii. I demand the yeas and nays.

The yeas and nays were ordered.

Several Members. Withdraw the motion.

Mr. Allison. I do not propose to withdraw 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 question of order. It is this: The gentleman
from Massachusetts [Mr. Butler] took tlie floor upon a question of privilege, and the
gentleman from Ohio [Mr. Shellabarger] has no right to the floor unless he takes it, as
the gentleman from Massachusetts did, on a question of privilege.

The Speaker jj)'o tempore. The Ciiair overrules the point of order.

The question was t;iken on Mr. Allison's motion ; and it was decided in the affirma-
tive— yeas, 104 ; nays, 42 ; not voting, 7fi ; as follows :

Yeas — Messrs. Allison, Ames, Delos R. Ashley, James M. Ashley, Baker, Barnes,
Barnum, Beatty, Bingham, Blair, Boles, Boutwell, Boyer, Bromwell, Brooks, Broomall,
Bnckland, Buckley, Roderick R. Butler, Chanler, Churchill, Sidney Clarke, Cobb, Coburn,
CuUom, Dawes, DixoG, Dackery, Dodge, Eckley, Edwards, Eldridge, Thonuis D. Eliot,
Ferriss, Garfield, Golladay, Gove, Haight, Haughey, Hawkins, Higby, Hill, Hopkins,
Hotchkiss, Jeuckes, Johnson, Thomas L.Jones, Kelley, Kerr, Ketcliam, Koontz, Laflin,
Lash, George V. Lawrence, William Lawrence, Loan, Mallory, Maynard, McCarthy,
Morrell, Mungen, Niblack, Nicholson, Norris, O'Neill, Orth, Pettis, Phelps, Pike, Pile,
Poland, Polsley, Pruyn, Randall, Ranm, Ross, Schenck, Scotield, Selye, Shellabarger,
Smith, Stewart, Stokes, Stone, Stover, Taber, Taylor, Thomas, Tift, Trowbridge, Twich-
ell, Upson, Van Trump, Henry D. Washburn, William B. Washburn, Welker, Whitte-
more, Thomas Williams, Stephen F. Wilson, Wiudom, Wood, Woodbridge, Woodward
and Young — 104.

Nays — Messrs. Banks, Beaman, Benton, Blaine, Burr, Cake, Clift, Covode, Deweese,
Dickey, Donnelly, Driggs, Ela, Farnsworth, Ferry, Fields, French, Getz, Gravely,Halsey,
Hamilton, Heaton, Holman, Humphrey, Hunter, logersoll, Alexander H. Jones, Julian,
Miller, Mullins, Perham, Peters, Robertson, Roots, Sawyer, Shanks, Stark vreather,
Stevens, Tatfe, S'an Auken, Burt Van Horn, and Robert T. Van Horn — 42.

Not voting — Messrs. Adams, Anderson, Archer, Arnell, Axtell, Bailey, Baldwin, Beck,
Benjamin, Blackburn, Bowen, Boyden, Benjamin F. Butler, Callis, Cary, Reader W.
Clarke, Cook, Corley, Cornell Dohino, Egglestou, James T. Elliott, Fox, Glossbrenner,
Goss, Griswold, Grover, Harding, Hooper, Asahel W. Hubbard, Chester D. Hubbard,
Richard D. Hubbard, Hulburd, Judd, Kellogg, Kelsey, Kitchen, Knott, Lincoln, Logan,
Longhridge, Lynch, Marshall, Marvin, McCormick, McCuUongh, AlcKee, Mercur, Moore,
Morehead, Morrissey, Myers, Newcomb, Newsham, Nunn, Paine, Pierce, Plants, Pome-
roy. Price, Prince, Robinson, Sitgreaves, Spalding, Sypber, John Trimble, Lawrence S.
Trimble, Van Aernam, Van Wyck, Vidal, Ward, Cadwalader C. Washburn, Elibu B.
Washburne, William Williams, James F. Wilson, and John T. Wilson — 76.

So the motion was agreed to; and thereupon (at Ave o'clock and fifty minutes p. m.)
the House adjourned.

In the House of Representatives, Fchruary 11, 1869.

Mr. Shellabarger said :

Mr. Speaker, I desire to state that in all that I shall say I shall accord most sin-
cerely and fullj^ to every gentleman upon the floor all that integrity of purpose and
desire fairly and properly to dispose of the important matter 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
aa extent unaided by precedent furnishing to us a guide. I shall aim at making my
utterances to-day practical and as intelligible as my feeble abilities will enable me to
do. The resolution the gentleman from Massachusetts has submitted for our approval
reads as follows :

J' The House protests that the counting of the vote of Georgia by the order of the

PROCEEDINGS AND DEBATES IN CONGRESS. 275

Vice-President jyro tempore was a gross act of oppression aud an invasion of the privi-
lejjes of tbe 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 justice 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 concurrent resolution of
the two' houses of the date of February'6, 1869, are alike unconstitutional, alike with-
out legal significance and force, and, to adopt his words, equivalent to waste paper.
From this stand-point of the gentleman from Massachusetts I proceed to consider the
resolution which he has seen fit to introduce.

Mr. Butler, of Massachusetts. The gentleman will permit me to say that in the lan-
guage to which ho refers I was not characterizing the joint rule, but the concurrent
resolution recently adoi)ted.

Mr. Sheixaijakger. 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 nest election the House of Rep-
resentatives is one way and the Senate is another. Under that joint rule, if it is consti-
tutional 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,' aud
there is an end to presidential elections."

Let me now bring together some very familiar things, but things which dispose of
this resolution. Let it first be remarked and kept iu mind that the Constitution pro-
vides that the legislatures of the several States shall fix the manner of choosing the
electors. In the next place, Congress is authorized by the Constitution to fix the time
of casting the vote of the presidential electors. The language is :

"Congress may determine the time of choosing the electors, aud 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 importance of this provision of the Constitution
shall be kept in ujind. It requires that the day of voting in the several States shall
be the same. With reference to the importance of this constitutional provision, Justice
Story, in his Commentaries, 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 elect-
oral votes, and that it should be the same throughout the Union. Such a measure is
calculated to repress political intrigues and speculations by rendering a combination
among the electoral colleges as to their votes, if not utterly impracticable, at least
very difficult, and thus secures the people against those ready expedients which cor-
ruption never fails to employ to accomplish its designs."

Next, I invite the attention of the House to the legislation of Congress, carrying
into effect aud providing for the things covered by these provisions of the Constitu-
tion. The act of Congress of 1792 fixes the time in accordance with the constitu-
tional requirement ui)ou the same day throughout the Union. The fifth section of
that act provides, in substance, the same thing that it provided in the terms of the
twelfth amendment itself, aud I shall presently read it.

It will be seen that this act of 179'2 furnishes no additional guide for the counting
of the electoral votes beyond what the Constitution furnishes.

I shall now proceed to consider the resolution before the House as if there was no
twentj -second rule nor any concurrent resolution of this Congress upon the subject ;
and I am inquiring whether the resolution ought to be i)assed, assuming that we
have no other guide than the guides furnished us by the statute and the Constitution.
That article of the Constitution, 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 presence of the Senate and the House of
Representatives, 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, aud by whom it shall be made. The thing, it will be observed, to be done iu
express terms by the Presideut of the Senate, is to open the certificates. The count is
to be made then, but by whom is not expressly stated.

Now, Mr. Speaker, 1 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 experience regretted at its first
occurrence with the most intense feeling of anxiety and alarm by all the country, aud
pointed to as an indication of weakness and of danger iu the very framework and
structure of your Government. To that danger Mr. Story points in exceedingly sug-
gestive words, to which I will now call the attention of the House. He says :

'•In the original plan as well as in the amendment uo provision is made for the dis-

276 COUNTING THE ELECTORAL VOTE.

cnssion or the decision of any questions which may arise as to the reguhirity and au-
thenticity of the returns of the electoral votes" —

The very difficulty we on yesterday, under circumstances so painful, were brought
again to encounter. He proceeds :

"or the right of the persons who gave the votes or the manner or circumstances in which
they ought to be counted. It seems to have been taken for granted that no question
could ever arise upon the subject, and that nothing more was necessary than to open
the certificates which were produced in 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 maj' occur, fit to be debated and decided by some deliberative
body. In fact a question did occur upon the counting of the votes for the Presidency
in 1821 upon the re-election 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 re-election, the Senate immediately withdrew, and the
jurisdiction, as well as the course of proceeding in a case of real controversy, was left
in a most embarrassing situation."

Then follow these words: "Another defect in the Constitution is," &c. ; indicating
that the learned commentator regarded this as one of the defects of the Constitution.
I call attention to this uncertainty and defect in the Constitution for the two pur-
poses: first, of reminding gentlemen of tlie high and commanding duty which the
existence 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 moderation in our conduct is required, and that violence, excitement, and precipi-
tate or erroneous action here may overthrow the Government itself; second, I allude
to this uncertainty in the Constitution to show that the action of the President of the
Senate denounced by this resolution was in a matter where it does not become us nor
the gentleman from Massaclmsetts to be over-confident of his being 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
argument I am about to submit; and it is this, that whatever infirmity there may be
in the Constitution in this regard, that infirmity does not go to the extent of leaving
everything uncertain, but that there are at least two things made certain, mandatory,
and conclusive u])on Congress in the terms which the Constitution employs. One of
these is that the President of the Senate 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 Con-
stitution "be connted" occurs, then and there there must be present 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 presence made up of three constituent elements, namely, a
President of the Senate, a Senate, and a House of Representatives. So that nothing
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, exci-pt in that presence and body or con-
vention 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.

Now, sir, what conclusion does that bring us to ? To this : first, that there can be no
authority given by law or otherwise, resolution or otherwise, that a count shall be
made 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 Congress, cau be law which
shall resolve these elements making up the convention that makes the constitutional
count, aud 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 anj^ 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 themselves adopt any form of order or decision which shall
render it impossible for the joint convention when re-assembled 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 unaffected deference to tlie 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 jirovides 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

PROCEEDINGS AND DEBATES IN CONGRESS. 277

Representatives, except that tliey shall be present. It does assign a particular duty
to the President of the Senate in opening the votes, and there it stops, it is true ; but
taken in connection it seems natural to uie 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 difficul-
ties whichever 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 Senate, 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
ui)pn this subject, and in the absence of the twenty-second joint rule, or if it be in-
valid, the President of the Senate is to make the count in the presence of the Senate
and House of Representatives, is that the act of Congress of 1792 so indicates. This
act IS ohUir 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. Jefierson in 18*01, as is stated in Story's Commenta-
ries, section 1466. 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 ascertained and declared agreeably to the Constitution."

The use that I make of this section is simply that it will be seen here that the
statute declares that certain things shall be done. One is that the votes shall bo
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 together, 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
require the person who does that to do the counting also, it therebj' seems to indicate
that the President of the Senate counts the votes. This is of course an argument not
conclusive ; it is pnly persuasive. But now I turn to another authority, which is more
than persuasive in the absence of higher law. I turn to that man who is recognized
by us all as one of the masters, not only of our American law, our constitutional law,
but of the civilized world's common 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 Congress, 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-im-
portant ; and I presume, in the absence 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
proposition that commends itself to my own judgment as a sound one, one vindicated
by the most illustrious private opinions that are obtainable 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 mistaken, and if the President
of the Senate, "in the absence of all legislative provision ou the subject" — and I am
now assuming that the twenty-second rule is invalid, because it deprives as would
seem everybody of all power to count any State if either the Senate or House 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 au 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 inevi-
table from holding that a separate vote of this House shall be psrmitted to estop both the
President of the Senate and the Senate, and the joint convention of President of Senate,
the Senate, aiul 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 separately may proceed to
ascertain and decideuponthecountingornotcouutingof the vote of any State, whatcoa-

278 COUNTING THE ELECTORAL VOTE.

sequences will follow from it ? They have been in part stated already by the gentleman
from Massacbnsetts [Mr. Bntler] in what I have already qnoted in vindication of the posi-
tion 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 partisan or for
worse than partisan purposes. That is so evident that to state it is to prove it. In-
deed, the gentleman from Massachusetts, who proposes this most severe and extraor-
dinary censure, has exclaimed himself more than I can exclaim against the frightfnl
consequences which would come from permitting one or either bouse of Congress to
get by itself, and there, in separate session, by the j^er capita vote of its individual
members, withont 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 aud start-
ling 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 re-
fusing to permit the House of Representatives by its own separate vote to defeat (if
the case had been, as it might be, of that sort) tlie election of a President 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 aie declared by this resolution to have been invaded, it is material for us
to know what those privileges so invaded are. The privilege invaded is the verj" one
the sup})osed existence of which the gentleman from Massachusetts himself denounced
as one of the most fearful suppositions that could be c.mceived. The power of the
House which has Ijeen invaded is that power which would enable this House to elect
every President, or else to defeat the election of every one. This is the onlj' power
that the House has sought to exercise. 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. HiGBY. Will the gentleman yield to me for a question ?

Mr. Sheli.acakgek. 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 understood was most earnestly said by the gen-
tleman 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 iu fact exist. I do not allude, in all I have or shall say, to what was done by the
President of the Senate iu the matter of not entertaining the geutlemau's appeal,
because the resolution does not allude to or complain of that, but of counting Georgia
iu the way it was counted. The mistake of the President was in not ruling tue gentle-
man'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 reso-
lution required Georgia to be set down in the specific manner pointed out by the con-
current resolution. But the fact that he did not rule it out of order then aud 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 objection, 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 objection 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 sei)arately, did not add to 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 invita-
tion 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 consider that the counting ot Georgia was an invasion of the privi-
leges of the House. There is another consideration which makes the danger of hold-
ing 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
j)ower 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 cf all the electors appointed. It will en-
able the House to take away from a candidate really having a majority of the electo-
ral votes the votes of a single State or of several States, thus reducing his vote below
a majority ; aud in that way you give to tlie House the power to turn into its own
body in every case the election of the Chief Magistrate. It is only necessary to call
attention to such a consequence and its resulting danger to make it absolutely appall-
ing, aud 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

PROCEEDINGS AND DEBATES IN CONGRESS. 279

ft.
this House alone should have the power in everj^ case not only to defeat the clioice of
the entire nation in tlie election of the highest, and most powerful magistrate of the
nation, and that they should he invited to do so hy 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 incapable of argument.
And yet if any privilege of this House has been invaded, as the gentleman's resolatiou
says, then it is this privilege of the House to do that identical and monstrous thiug!

Mr. BuTLEK, of Massachusetts. The House itself, according to the gentleman's own
authority, may defeat the election by withdrawing from the convention and not re-
turning.

Mr. Sheli.abarger. It may be well enough for me to say right here, in rei)ly to the
suggestion of the gentleman from Massachusetts, 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 intelli-
gent men, is the supposition of extreme and unsupposable cases. The case that the
gentleman supposes, that the House has the right to retire aud break up the jant con-
vention, 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 com-
mands that the House shall meet with the Senate and its President, and that then, in
this presence, the vote shall be counted. To suppose that the House would leave,
break up the convention, and defeat the election, is to suppose that the re))resentative3
of all the people have decided to overthrow their Government. It would be shorter
aud equally sensible to suppose that the people had refused entirely to vote, or that no
electoral college had beeu created, or any other thing that would bring the Government
to an end. The gentleman, of course, sees how different the case he supposes is from
the case his position in the argument supposes, namely : that the framers of the Consti-
tution deliberately put it into the Constitution 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
counted until both houses, by separate votes, concur in deciding that it shall be, then
it is plainly void as in couiiict 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, 1S69, unconstitutional, and not a jus-
tification 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 aud out of the presence of the Senate and its Presi
dent, 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 privi-
lege of this House which the gentleman's resolution says the President of the Senate
violated. I surelj' 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 iu 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, ii.K-luding
myself, voted. How came we to do that, it may bo 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 iu 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 beeu wiser for a member of this Huuse who
did not regard as constitutional that provision of the twenty-second joint rule which
separated the two houses aud 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 convictions of what he ought to do if iu a convention of the two
houses, is a question upon which I do not propose now to enter. It is sntheieut 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 iu convention, if we had been permitted to vote there at all,
a privilege which we did not have. Whether we erred iu casting the vote or not, I
need not debate. To have been silent would have, as things were compelled to be
conducted if the twenty-second rule were enforced, resulted iu forever preventing the
count or rejection in any way of Georgia, and thus it would have defeated the deter-
mination and ofi8cial 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 onejiR^hich ought
to have been counted by any body under any circumstances. Sir, I maintain that if
it be not the law, as Kent says it is, in the absence of legislation, that the President of

18 X

280 COUNTING THE ELECTORAL VOTE.

the joint conveution shall do the conntinor ; and if, on the other hand, it be true that
the joint body in convention connfs 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 iiave cast?
I will put a single case to show tiiat it is iiiii)ossibIe that there should not be the
power to do, in some way, what we attenipied yesterday to do touching Georgia, to
wit, to ex(;lude the vote for one of the reasons assigned in the objections of the gentle-
man from Massachusetts.

1 have already read the provision of the Constitution that authorizes the State legis-
latures to prescribe the nuinner of choosing electors. Now, tlie State of Ohio has pre-
scribed, under this provision of the Constiiulion, tliat the choosing of the presidential
electors shall be by a popular vote. Suppose that there had been sent up to us from
Ohio a certiticate showing upon its face that the electors were chosen by the legisla-
ture of Ohio, now in session, and that we had been asked to count that vote. Is there
a genti(^man on either side of the House who will say that, in tliis 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 siguiticance. The power must exist somewheie to reject such a vote. And here,
sir. I afhrui, once for all, tliat 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 certiiied and executed, show that such
an election was held or vote given as is authorized l>y law, and duly show its result.

Now, how was the case we voted on yesterday ? I have alre^uly shown from Justice
Story the reason why the Constitution has wisely re(iuired tliat the vote in each State
shnuld be cast "on the same day throughout the Union." By the same authoriiy I
show that this is a nuitter of substance, and not merely directory ; tliat it goes to the
very question whether there has been an election of electors. It shows it to be <if
identically the same substance that these electors should vote on the day prescribed
for the holding of their election as it is that the ]>eople of tiie 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 ministerial act. Their ujinds are o])en and tree to make tlie choice
they want to make on the day tixed by law for that choice, and they have a right when
they meet in the capitals of our respective States to ea-t their votes Ibr whom tiiey
please as President, if the person voted for has the constitutional qualilications, an<l if
they do not take both the President and the Vice-President from the State in which the
electors reside. The act of tiie electors in casting their votes is therefore an election ;
and if the vote be cast on the wrong day, it is just as miscliievous, 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 1 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 President
of the joint convention — we did not have the privilege of voting, under the o])eratiou
of the twenty-second joint rule, in the way we ought to have iiad that privilege.
Hence there can be no question but that our votes in the House were rigiit so far as
the merits of the question upon which we cast them are concerned. Whetiujr 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 tliis to the attention of the gentleman who inlroducrs
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 attempting in any way to
control that count except to see that it was "fair," to here adopt the word of Chan-
cellor Kent.

Mr. BuTLEi?, of Massachusetts. How are we going to do that ?

Mr. SnEiXABARGKR. Well, the gentleman may go for the answer to his qnestion to
Justice Story. The gentleman cannot defeat the argument by showing that there may
be defects in the Constitution as to how we are to assertain that, or a casus omissus, as
was said yesterday by the Si)eaker. i answer further that we can prescribe rules by
which shall be secured an honest and legal exercise of whatever port^ers and discre-
tions we possess in making this count by whomsoever that ]iower may be possessed
and exercised ; and it is because we have this powder that I athrm, as the next proposi-
tion in my argitraent, that the concuirent resolutiou which we passed ou the 6th of
February is not unconstitutional, but was binding on the President of the Senate.

It is unlike the concurrent residution of 1865, because that breaks the convention
into two bo(iies and separates them for the purpi se 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 conveution what it requires to be voted ou and decided in separate votes of

PROCEEDINGS AND DEBATES IN CONGRESS. 281

the two houses. This one of 18G9 does none of these things. It does not dissolve the
convention. It does not require any separate vote of the two houst's. It does not
permit the rejection of the vote of any State. It simply provides that if the vote of
Georgia does not chanoe the result, then that vote shall be set down in a particular
way. What does the gentleman find unconstitutional in that, pray? Does the Con-
stitution prescribe how the vote of a State shall be set down (either after it is rejected
or counted) upon the oliticial records of that count or on the journals ? Has the Con-
stitution prescribed how we shall make up foruially the record of the count? Why,
the gentleman with his gieat learning will still "fail to come to time " on a question
like that. The Constitution has left the power in Congress to prescribe the rules un-
der wiiich that count shall he made and how it shall be set down. The resolution that
we passed the other day does not really provide for the receiving or n-jecting of the
vote of Georgia in the substantial sense of the words of the Constitution, " sliall 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 wouUl be clearly uncon-
stitutional 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
prescribetl form. This resolution is not, therefore, amenalde to the criticism that it
undertakes to count the vote of a State before that vote is ope led or known. Now,
notice just what that resolution is, what brings it into operation, and what it accom-
plisbes when brought into operation.

Mr. Speaker, it is the failure to be thorough, discriminating, and accurate as to this
last thing tliat 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 care-
fully consider these. First and all the time it must be kept in mind that this resolu-
tion 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. Tliar. contingency must be found to have happened before the
concurrent resohition l)ecame in any sense a law for the guidance of any one. That
contingency v/as, that the same persons would be elected by the votes of tlie other
States whether the vote of Georgia were valid or invalid, counted or not counted. In
other wonls, 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 Geor-
gia— decision of the validity or invalidity of her vote — was absolutely immaterial and
unnecessary to the ascertainnn-iit of tlie result. When that conclusion was reached,
that the vote of Georgia was immaterial to the result, and that its validity was not
necessary to be decided in order to know with the sanie 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 dis-
pute.

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 v.)te
of Georgia was legal or iUegal ? If there be no such ]iractical good to come from that
decision, then I ask does the Constitution or the law coiiipel us to do a vain thing when
the doing of it may result in infinite mischief / Surely not. Ttio law never re(|uii'es
a vain thing as a condition-precedent to the attainment 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 resohition 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 pronounce 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, c<mnted or uncounted. Now, sir, suppose this ofticial decision and announce-
ment of who is elected cannot he announced unless and until after it has been officially
decided l>y the convention how Ge n'gia voted, and su])pose the returns of Georgia's
vote were lost or destroyed so that the convention could neither know nor count her
vote — and, sir, this is f.ir from an extreme or impossible supposition — then, sir, would
it be unconstitutional or illegal to decide or proclaim who is elected? Jlust 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 the gr-at peojjle's choice
can be legally ascertained and proclaimed though Georgia is not counted? If so, I
pray you to tell me whether a concurrent resolution directing that this decision and
announcement of the result, without the count of the lost vote of Georgia, would be
either unconstitutional or render the ascertainment and announcement of the result
illegal? It would not; and therefore that retpiirenient of this resolution, that the

282 COUNTING THE ELECTOEAL VOTE.

President of the Senate should decide and declare ■svbo was elected without regard to
Georgia's vote, is valid and binding on that President. But this resolution, in the
event that brought it into play, required 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-evideutly absurd that I can make
the absurdity no plainer by my poor ]io\vers 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 it
President as to what they should do provided the objection made by the gentlemans
from Massachusetts was not one which took Georgia's vote out of its operation, and
compelled the convention to pass upon it as not being that specitic objection to her
vote which is named in the resolution's preamble, and the only one which the resolu-
tion 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 therei'ore these must be decided as required by the twenty-second joint rule. And
we are told that if this be not so, then every objectif n to Georgia's vote, however evi-
dently fatal to its validity, would be by this concurrent resolution shielded from the
convention's investigation and the vote be permitted to go unchallenged, 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. l<'iist it ad-
mits that it could legally, and did in fact, order the vote to be set down in a jiarticular
way and its validity not to be jiassed njx n, and that the result of the election should
be decided by the " counting " body, because one fatal objection to its validity proba-
bly existed 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 objections 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 de-
fective. No such thing. But it does re(|iiire that because there is probably one fatal
objection known to exist at the passage of the resolution and before the vote is opened,
■which objection the convention and Congress cannot well pass upon before or in the
convention, therefore the validity of that vote sliall 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 difliculty of deciding the validity of Georgia's vote, which is named in
the preamble, brought the resolution into existence, and the ditiQculty and impropriety
of deciding tliat, if tlie decision was immaterial to the result, was reason why in ex-
press terms the resolution ordered the I'resident to do precisdy what he did do, and did
in the very words of the resolution ; and it, for this reason, required this of him, how-
ever many other objections there might be t<> the vote of Georgia. It made no excep-
tions. It made no exceptions in its terms by saying that if there were found other
objections to Georgia's vote than that named in its preamble, then the President should
not obey its orders. On the contrary, it did state oue case in whicli he should not
deem it in force or obey it, namely, if it did change tlie result. Then he was not to re-
gard it, and by its express and unmistaivaUle teruis 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 s mi^ other objection to it. And
for not disregarding this express letter of the rule we ourselves 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 riglits. 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 Ertpublic from an ap[)al ling danger, and for that
we are called upon to brand iind 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 gentleniau from Ohio may have
further time.

The Spkakkr pro tempore. Is there objection?

Mr. Butler, of Massachusetts. As I gave the gentleman all of his time, I ask that I
•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 jjro tempore. The gentleman from Ohio was speaking iu his own time;
but he had ten minutes last night, which he gave to the Speaker, and has had fifty
minutes this morning.

PROCEEDINGS AND DEBATES IN CONGRESS. 283

Mr. SiiELLABAUGER. All I wish is to conclurle my remarks by saying that in the
election of Mr. Monroe, in 1821, the same coucnrrent resolntion passed by ns on the
8th of February was iutrodnced 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, ia
that case they shall be reported by the President of the Senate in the following man-
ner : AVere the votes of Missouri to be counted the result would be for A B for Presi-
dent 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
Missouri's was reached Mr. Livermore, 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 consum-
mated 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 purpose of continuing the enumera-
tion 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 Missouri, which was read
and registered, and then the tellers made and handed to the President the compared
lists of the votes of all the States, and the President, " in pursuance of the resolution "
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 demanding to know if Missouri had been counted ;
and thereupon great disorder arose. Randolph also addressed the Chair. The President
decided everything out of order ; the only business being at that present time that pre-
scribed by the rule of the morning. There was murmur at this decision, but the Presi-
dent proceeded to announce who was elected ; and then, on motion of a Senator, the
Senate retired while Mr. Randolph was addressing the joint convention.

I refer to it for the purpose of saying that we have the authority of the distinguished
names connected with the introduction and passage of that resolution for saying that
the concurrent resolution of the 8th of February is constitutional, and the action of
the President 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 a hypothetical way — in the way in which Georgia was
to be set down, and in which it was set down yesterday — did occur in the election of
Mr. Monroe, and every other step in the case.

Mr. WoowARD. 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 con-
current resolution as we passed on the 6th of this month.

NOTIFICATION OF ELECTION.

The Speaker ^jro 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. Pruyu.

question of privilege — AGAIN.

Mr. Woodward. I now yield to the gentleman from Maryland, [Mr. Thomas.]
Mr. Thomas. The gentleman from Pennsylvania [Mr. Woodward] 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 Tennessee, to assist in counting the
votes for President 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 convention on yesterday.

The people of Michigan, without, perhaps, any law authoriziug it, had organized a
State government in all its branches, elected members of the House of Representatives ;

284 COUNTING THE ELECTORAL VOTE.

had elected Senators, and proceeded to vote in due time for electors for President and
Vice-President. In one of the articles of the constitution of Michigan that State under-
took to prescribe the boundaries of the State, and set forth a boundary which included
a portion of territory 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 cpiestion before the admission of Michigan
into the Union, and while Michigan could be treated as one of the Territories of the
United States; and that question was decided prior to the meeting of the joint con-
vention. But Congress had not, in the judgment of some of its members, made pro-
vision for the election of electors of President and Vice-President in that State.

The vote of Micliigan was very unimportant 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 gentleman from Ohio [Mr. Shellabarger] was found spread
upon the records of Congress. We found that a similar difficulty had iireviously pre-
sented itself in the case of Missouri while Congress was deliberating upon that very
agitating 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 bod.\, devised that very plan which was followed yesterday. I hold in
my hand the resolutions reported to the Senate by Mr. Grundy, copied from the reso-
lution of Mr. Clay in the case of Missouri, and intended to guard against difficulty 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 Michigan, if the counting or oniitting to
count them, shall not essentially change the result of the election, they shall be re-
ported 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 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."

And in this connection it is perhaps proper that I should read from the very preg-
nant remaiiis made by Mr. Grundy on that occasion, as a reason why such precaution
ehould be taken on the part of the two houses of Congress before they met in joint
session, that it may not be in the power of a few insubordinate 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 ol>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 Senatoi-s recollected that this was the very place where the rock lies which may
destroy the Government, they would perceive that the committee had good reasons for
recomiuending the resolution objected to. Suppose (said Mr. Grundy) the two houses
should differ and separate, and sujjposo 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? Thongli he had been one of the
most anxious for the admission of Michigan, yet he thought it better under the cir-
cumstances that her vote should not be counted, except in the way provided for by the
second resolution."

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 hiid 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 iind among those voting iu the affirnuitive
the names of gentlemen highly entitled 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, Cuth-
bert, Dana, Davis, Ewiug of Illinois, Ewing of Ohio, Grundy, Hendricks, Hubbard,
Kent, King of Alabama, King of Georgia, Knight, Linn, Moore, Nicholas, Page, Prentiss,
Rives, Robbins, 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, Niles, Norvell, Preston, Walker, and Wall— -9.

I refer to this precedent to overbalance 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 con-
vention of yesterday.

PROCEEDINGS AND DEBATES IN CONGRESS. 285

The gentleman from Ohio [Mr. Sbellabarger] 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 participalion 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 cannot be so. It cannot be that the Rrt|)resentatives of
the people in this hall and the representatives of the States in the Senate siiould
sit by here and permit the President of the Senate to make a false count if hn
chose to do so; thus, perhaps, throwing the country into 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 lime when this question was under considera-
tion before, it was agreed on all hands, so far as my knowledge exteii<ls, that Congress
had the power, by law or bj^ joint resolution, not only to presciibe the manner in
which the vote should be counted, but to inquire into the validity, the suificieucy, 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 Presidency, that seal might be frauduleutl3' applietl to a document, and the House
must sit here quiet spect;itors 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 another 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-
laud, [Mr. Thomas,] my learned friend from Ohio, [Mr. Sbellabarger,] and my learned
friend from Massachusetts, [Mr. Butler,] were not here the other day to deliver the
arguments against the passage of that concurrent resolution which they have nvule to-
day. When 1 listened to the gentleman from Massachusetts last eveuing, when I list-
ened to the gentleman from Ohio and the gentleman from Maryland to-day, I felt that
this House had reasTU 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 Sen-
ate, the gentleman from Iowa [Mr. Wilson] had charge of it in this House. And I will
say that he treated the subject very differently, aud much more satisfaotorily, from a
certain other subject to which his mind will instantly recur, and which I will not fur-
ther 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 ov^er to
this side and advertise us as to what he was about to do. He came to me in person
and called my 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 acknowledge that
in the fairest manner the gentleman from Iowa brought the matter to our attention.
Now, sir, if these "learned Thebaus" 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 difticulfy 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 in-
volved in this discussion would have been all avoided. But, sir, these gentlemen were
not here to make tlae argument, and we on this side of the House couUl 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 aud carried by a party majority, and became the
law of the convention wtiich was charged by the Constitution with the duty of count-
ing the electoral votes. Sir, that convention consists of two members, the Senate
aud the House. They are the constituent elements of the convention, and this con-
current resolution became a law to that body.

Mr. Shp:ll.\bakger. 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 aud proper.

Mr. Woodward. I accept the correction.

Mr. Thomas. If I may be permitted, I will say that I invited the attention of mem-
bers of the Judiciary Committee to the resolution adopted iu IH37 in the case of Michi-
gan, and voted for the resolution, which was adopted, to guard against difficulty re-
specting the electoral vote of Georgia, and I have this moment said in the presence of
the House that, in my opinion, the joint resolution which has given rise to this debate
is clearly constitutional.

Mr. Woodward. Mr. Speaker, I do not complain that the gentlemen did not vote for
the resolution. I complain that they did not bring to the view of the House the con-
stitutional arguments they have now made upon the resolution of the gentleman from

286 COUNTING THE ELECTORAL VOTE.

Massachnseths, which arguments, had they been made at that time, I think, would
have prevented the concurrence of this House in the concurrent resolution. But if I
am mistaken iu that, if they would not have had that etfect, they at least would have
extricated the House from the ditficulty into which it fell by voting not to count Geor-
gia yesterday after it had voted to concur in the resolution of the Senate.

Mr. TiiOMAS. It is a very unpleasant thing. This argumentiim ad Iwminem is one I
never eugage 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,
nnprofitahle entanglement. Apprehending the Senate might take the ground the
House toolv, I was perfectly willing there should be coincidence of opinion between
the two bodies. The House will bear me witness that as soon as I had reason to sus-
pect the contrary I asked consent to make a motion which would have relieved us from
the embarrassment in which we were placed.

Mr. WooDWAHD. I was wholly opposed to the concurrent resolution. The analogy
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. Shellabarger] has al-
luded touch this case, for it is a case of an organized, recognized State iu this Uuiou.

Mr. ELDFiiDGE. And represented on this floor.

Mr. Woodward. And represented on this floor. It is not a case of an unborn Ter-
ritory, where the question is as to future admission as a State, or whether the people
of that Territory are fully qualified to vote at a presidential election. It is a casi of
a State in the Union from tbe time of the Decl.aration of Independence down to the
present moment, and represented on this floor by members sent here whom we have
admitted. Now, I would thank 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. UrsoN. If the gentleman will permit me, at the time spoken of by the gentle-
man from Maryland [Mr. Thomas] Senators had been admitted from the State of
Michigan, while members had not been admitted in the House. At this time members
have been admitted in the House from Georgia, but Senators have been refused admis-
sion in the Senate.

Mr. WooDWAHD. Still the cases are not analogous; because this is an organized,
original State, in the Union before the gentleman was boru, and never was out of it,
iu my judgment.

Now, Mr. Speaker, when this House passed that concutrent 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 understand 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 requires tlie concurrence of the executive
department; and we have the concurrent resolution, 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 uearlj^ 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
])resided yesterday came here and declared that he would hold the Seuate and the
House to that resolution, he apprehended 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 inditferent.
It was tlie law of that body. They could not depart from it. No gentleman in the
Senate or in the House, so far as we know, has ever proposed to repeal it or to modify it.
I submit, then, that the President of the convention was b.mnd 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 res-
olution to applaud the conduct of the President of the convention for holding the two
hons< s to the resolution, although I believe the resolution is one which never ought
to have been passed. But then what did this House do ? This Honse, having con-
curred with the Senate in solemnly agreeing that the vote of Georgia should be counted
siih mocio, 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 ma-
jority, and thus the House adhered to its resolution not to count the vote of Georgia
at all. Now. the gentleumn proposes to censure the Senate and the President of the
convention for not recognizing that resolution of this House. Why, Mr. Speaker, if
the adoption of the concurrent resolution was wi'ong under the circumstances of the
case, the vote yesterday was utterly indefensible. When this House had solemnly de-
clared 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 declared, what right had they to expect the Presiding Officer to regard such a vote?

PROCEEDINGS AND DEBATES IN CONGRESS. 287

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 cen-
sured, but ought rather to be praised.

Mr. Baldwin. Will the gentleman allow me a question?

Mr. ^YooDWAliD. No, sir; I have promised 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
arguments which have been made here with regard to the constitutional powers and
duties of the two houses in the matter of counting the electoral votes are quite out-
side of this question and beyond it. This question bottoms itself upon that concur-
rent resolution. So long as that concurrent resolution remained 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 Massachusetts [Mr. Butler] 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 tliey 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 convention when he said that the eftect
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 consequence of that resolution precisely. Now, I ask, why should a sover-
eign 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 efiect nothing it should be counted, and
if it would eftect anything it should not be counted. 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 lloor. 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 tooli her out of the Union. But you say
that her act of secession w^as null and void, and she herself has so declared and re-
pealed 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
commentaries of Chancellor Kent, or in the writings of Justice Story, or in any other
authority 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 aduiitthe Sena-
tors from Georgia. It was the Senate that originated this concurrent resolution and
in an evil hour we concurred in it. And the President of the Senate came here and
held us to our action, and he 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 contained in the preamble to the concurrent resolu-
tion, 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 Sen-
ate 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 Sena-
tors into the Senate of the United States, as her members have been admitted 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 treated in
like manner. That is the origin of this difticulty, and it is not to be removed by the
adoption of the resolution submitted by the gentleman from Massachusetts, [Mr. But-
ler.] We are not to repair the wrong into which we have fallen by committing
^another wrong in censuring the President of the joint convention for holding the con-
vention to the law which they had made for themselves. I am, therefore, opposed to
the resolution of the gentleman from Massachusetts. If his proposition had been to
repeal the concurrent resolution which was the cause of all this difticulty, no man on
this floor would have voted for it more cordially and heartily thau 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 fiv^e minutes to
the gentleman from New York, [Mr. Wood,] after which I will yield the floor to the
gentleman from Ohio, [Mr. Bingham.]

Mr. W^ooD. Being unable to discuss this question properly in the time allowed me by
the kindness of my frieud from Pennsylvania, [Mr. Woodward,] I will, with his per-
mission, yield to the gentleman from Wisconsin, [Mr. Eldridge.]

Mr. Woodward. Certainly ; I have no objection.

288 COUNTING THE ELECTORAL VOTE.

Mr. Eldridge. Mr. Speaker, I liarl not expected to have an opportunity of sayinnj a
word upon this question until a moment ago, wlien the gentleman from New York
[Mr. Wood] informed me that he was allowed two or three minutes, but felt too un-
well to address the House at this time, aud that I might have his time. I thank him
for his courtesy, aud avail myself of it to state, as well as I can, my position upou the
question before the House. I concur with gentlemen who have spoken upon it as to
the great importance of the subject, 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 aud the twenty-second joint rule of the two houses are,
both of them, in contravention of the Constitution; the first utterly, and the latter iu
part, at Itiast, void — a nullity for that reason. I raised that question yesterday as a
point of order before the convention ; but no attention, no consideration was given to-
it by the Presiding Oflficer. He virtually decided that the resolution was higher
authority than the Constitution. I believe if my point had been sustained, if it had
been properly considered and decided, we would have avoided all the difficulties in
which this House as well as the joint convention became involved. We should have
avoided the disgraceful exhibition which the convention made of itself before the
country aud the world. We should have performed our duty to the country as re-
quired by the Constitution. We should have counted the votes of the States as the
certificates were opened by the Presiding Officer, and though the result would have
been the same, so far as the persons elected are concerned, we should not have felt the
sting of mortitication and shame which we now all feel at the manner iu which that
work was done. The Constitution provides expressly that the Senate — which, accord-
ing to my judgment, means the organized Senate, with its officers and machinery — aud
the House of Representatives, which is the organized House of Representatives, with
its officers aud its machinerj' — shall be present when the Vice-President shall open the
certificates; and that "the votes shall then be counted." It must be, therefore, if
there is in contemplation of the Cousritution a proper certificate from a State, aud that
certificate has been opened by the Vice-President, the duty of the body composed of
the Senate and House of Representatives as described, and assembled, to count those
votes. It has no right or power to count them merely as a matter of count ; but it
must count them for the purpose of the result, for the purpose of ascertaining the re-
sult— the count itself determining the result. This is the obvious, and, it seems to me,
the only true meaning' of the Constitutiou. To count them conditioually or hypothet-
ically, is uo count at all.

The Constitution determines the effect of the vote; the joint convention has noth-
ing to do with that, nor has the House of Representatives, or the Senate, or both com-
bined. The vote of the State is to be counted, to be counted for a purpose, and that
purpose is to ascertain who the people of the United States have by their will deter-
mined shall be the President aud Vice-President for the four years next after the 4th
of March. To counfthe vote of Georgia according to the concurrent resolution is a
mockery ; it is an insult. It matters not that it will not change the result as a matter
of fact. If it can constitutionally be so counted in the case when it will not change
the result, it may be so counted in case it would change the result. And then the voice
of Georgia may be stiiied ; the voice of the people of a sovereign State may be sup-
pressed. Aud it is not 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 my judgment an utter nullity because it is in direct contravention of the statute of
179^, which provides substantially what the Constitutiou itself provides. No one, I
trust, will have the hardihood to contend that the Senate and House of Representa-
tives can by a concurrent resolution repeal an a-st of Congress; that a concurrent res-
olution can be valid when it conflicts with an act passed with all the legislative require-
ments to make it a law. The Senate, the House of Ripresentatives, 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 to which I refer coutaius the following re-
quirement :

"Congress shall bo in session on the second Wednesday of 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 be opened, the
votes counted, and the persons who shall fill the offices of President and Vice-President
ascertained and declared agreeably to the Constitution."

This is a law of Congress upou your statute-book, unrepealed, iu full force, unless it
be abrogated by this concurrent resolution. There is no doubt, it seems to me, that
they are in direct conflict. The House and the Senate undertook by this concurrent
resolution to declai'e that the vote of Georgia should not be counted if it had any effect
upon the result. The statute aud the Constitution say it shall be -counted to ascertain

PROCEEDINGS AND DEBATES IN CONGRESS. 2M9

the result. And yet geutlemen coutend tliat that resolution became the law of the
convention ; that the convention was bonnd to carry it out ; that the Presiding; Ot'ticBr
did his duty in obeyinjjf 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 contlict with the statute and the Constitution. Ai^aiu, 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 arrived. If the convention must have
followed or obeyed this resolution the vote was counted by the resolution or t!ie 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 disgraceful scene which was exhibited here and the difficulties grow-
ing out of the action of the Senate and House are the result of the disregard of the
Constitution. Its requirements are plain and simple, and obedience to its provision
never brings ni)on the country troubles, disasters, or dishonor. It is only when some
purpose outside of its authority for some selfish or partisan end is souglit to be accom-
plished that the Congress and country is dishonored by the exhibitions of yesterday.
This concurrent resolution is not the only piece of unconstitutional legislation that
will torment its inventors. You will lind 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. WooDWAUD. I now yield to the gentleman from Ohio, [Mr. Bingham.]
Mr. Bingham. Mr. Speaker, I thank the gentlenniu from Pennsylvania [Mr. Wood-
ward] for his courtesy in allowing me a few moments in which to express my views
touching the question which is now pressed upon the consideration of the House. I
agree with the gentleman from Massachusetts, [Mr. Butler,] who has opened this
unfortunate controversy, that this is a very important question. I hope, sir, that in
the vei'y short time allowed me I may be able to demonstrate to the satisfaction of the
House that the proposition presented by the gentleman from Massachusetts — and I
refer more jjarticularly to his first resolution — is a proposition that this House shall, by
vote, solemnly declare themselves under their oaths violators of the law. On that
point I take issue with the gentleman to-day ; aud not simply for to-day, but for all
time. .

It is with me, Mr. Speaker, as a representative of the people, a controlling principle
that whether we be satisfied with tlie law or not we are bonnd 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 cai)taudinn 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 bonnd the
action of the representative 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 wliat I have just said I refer to the concurrent resolution of the two houses,
known as the joint rule touching bills ( r resolutions, 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 aud 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 touching 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 clothed him with the authority 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 reso-
lution 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 :

" Besolved, That the House protest that the counting of the vote of Georgia by the or-
der of the Vice-President jjro tempore was a gross act of oppression and an invasion of
the rights and privileges of the House.''

Now, sir, the Vice-President jjro tempore of the Senate followed this concurrent reso-
lution of the two houses:

^' Eenolred b;/ the Senate, {the House of Representatives concurring,) That on the assem-
bling of the two houses on the secondWednesday of February, lb'69, for the counting of the
electoral votes for President aud Vice-President, as provided by law and the joint rules

290 COUNTING THE ELECTORAL VOTE.

if the connting or omitting to coiiut 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 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. Speaker, that is precisely what was done on yesterday, and the gentleman in
bis resolution assumes that that fact is not as it is recorded. 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 resolu-
tion that as a fact which is contradicted by your written record. I say, sir, that his
resolution is contradicted by the written record of the two houses. That record as
made is in accordance with the very letter and spirit of this concurrent resolution,
and now comes the gentleman asking the House to stultify itself and say to the coun-
try, to use his own words, in violating onr 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 vindication of a right nor the redress of wrong. On the contrary, the sacred right
ot revolution 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. Bltlek, of Massachusetts. I only want to say that you are not quoting my words
in that connection.

Mr. BiXGHAJi. Unfortunately the gentleman'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. BuTLEH, of Massachusetts. I take back nothing.

Mr. BiNCiiAM. Very well ; then, if you take back nothing yon have said, I ask the
House to compel you to take back your revolutionary resolution, for whether the gen-
tleman 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 before 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 exist-
ence to this hour ? 1 point him to the words that ought to be familiar to every school-
boy in the land, that by the Constitution it is provided that each house shall make
rules for the government of its own proceedings; I point him to the other words
that the Congress of the United States, being composeil of a Senate and House of Rep-
resentatives, 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 this 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 certificate of the electoral votes in the presence of the two houses and
the same shall then be counted ? Does not your concurrent resolution, which is a rule,
a law for the 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 Representative of the people. If I had been in my
place and not confined by sickness to my bed I might have asked that in some respects
it might be changed; but it is enough tor me to know that it received the sanction of
the two honses of Congress under the Constitution of my country. I insist that it was,
therefore, as binding upon us when in convention assembled under the twelfth article
of the Constitution to receive the certificates of the electoral votes of the States which
the President of the Senate is directed by the Constitution to open iu 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 Ropreseutative of
the people, this attempt to inaugurate revolution on the floor of this House. I shall
insist on, aud 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 iu some sort make yourselves consent
seemingly to challenge the obligations of your osvn laws. How would it look for us to
refer another resolution suggested by the speech of the gentleman from Massachusetts,
and that is, that your Judiciary Committee, or whatever other committee it may be
that you refer it ti^o, iu the elegant words of the gentleman, shall authorize this House,
if the Senate will not retire at its request from the joint convention, to "kick them
out," and that the gentleman from Massachusetts shall be the captain in the kicking
operation? [Laughter.]

Mr. Speaker, the gentleman's speech in that behalf— which I think he cannot gain-
say—which brought down the galleries and "split the ears of the groundlings," illus-
trates the animus of this resolution. I denounce it here as a resolution of revolution ;

PROCEEDINGS AND DEBATES IN CONGRESS, 291

flenonncp it here as a resolution of anarchy. The idea of the House of Representa-
tives kicking the Senate of the United States from its presence ! About the time that
is accomplished yon will have kicked the la^v-niaking power of the people out of ex-
istence; about the time tliat is accomplished you will have proved yourselves greater
architects of our country's ruin than the million of men who for f .ur years waged war
upon your Constitution and your laws, drenching your land in blood and 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 tlie House to the words of the twenty-second joint rule. If I
understand aright the gentleman from Massachusetts [Mr. Butler] in his remarks
yesterday — and I would not intentionally do hini injustice — 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 resolutions ottered by the gentleman from Massachusetts, a copy of
which lias been kindly furnished to me by the Clerk. That resolution is in these words:

" Rrsolnd further, That the twenty-second joint rule of the House and Senate be,
and is hereby, rescinded 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 Hous^ of Repre-
sentatives to b« " rescinded on the part of the House!" You might just as well in-
troduce a resolution here to-day that the act of 1792, covering this same question, re-
feired to by the honorable gentleman from Wisconsin, [Mr. Eldridge,] " be, and the
same is hereby, rescinded on the part of the House." What business has the House,
acting separately, to repeal a concurrent resolution or a joint rule of the two houses,
or an act of Congress ?

Wherein does tliat ditter from the act of secession of South Carolina, wherein thpy
said that the C(uistitution and laws of the United States, though de»d«red to be the
supreme law of the land, "are hereljy repealed on the part of South Carolina?" The
Grand Army of the Repuldic, under the lead of the honorable gontlemau himself and
of the honorable gentleman from Illinois [Mr. Farnsworth] wio sits on my left, and
is now giving me his attention, and of orher gentlemen, uotitieil the State of South
Carolina, and other States that had followed her lead, that the laws of this country
were not to be repealed by any body of men whatever wilhout the concurrence of
the Senate and House* of Kei)resentatives, and tlie 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. Tne gentleman from Massachusetts now
tells you that this joint rule is nucoustitutional. VVhat is it, and how does it stand
with his argument, and where does it leave us if we follow his logic ? That rule pro-
vides among other things —

" If, upon ilie reailing 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 therenptm 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 manner, submit said question to the House of Representatives for its de-
cision; 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 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."

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 subse-
quent 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 resolution, agree that if the vote of Georgia
did not change the result, the record should be inaile precisely as it was made. Then
why all this noise ? The vote of Georgia was not counted so as to attect the result, and
nobody knows that better than the gentleman from Massachusetts. It was counted
simply as the concurrent resolution of the two houses of the Fortieth Congress directed
it to be counted. It was the sworn duty of the Pre-ident of the Senate, presiding over
the joint convention, to obey that law, whether 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 conventiou 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 obligation of his oath, for obeying the law even in the presence of a mob spirit that
would disgrace anj' assemblage of men that ever convened on the face of Gwd's foot-
stool. 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

292 COUNTING THE ELECTORAL VOTE.

he stood nnraoved, without anger, without passion, bowing before the majesty of the
law, demanding tliat tlie tellers appointed under the rules of the couveution shouhl
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 en-
title him to the respect of his countrymen. If he had fallen amid the clamor and
tunnilt which the gentleman from Massachusetts raised here in his place, it might have
bee I wiitten over his giave, " Go tell those who survive me fhat I lie hm-e in obedi-
ence to your law, and in deliance of the clamor of a mob." Sir, I denounce the gen-
tlen<aii's proposition as a i)roposition of anarc'iy; that anarchy which has no head
and canncjt think, that anarchy which has no heart and cannot feel ; which in its fury
and its madness tramples down law and with it order; tramples down childiiood and
youth, defenseless womanhood, vigorous mauhood, aud venerable age ; which hushes
the sweet voices of home, shatters its altars, and scatters darkness over its hearthstone.
I ask th>- representatives of the people to put their seal of condemnation on this resolu-
tion, and to lay it (ui the tabic, there to ro*^^.

Mr. Scheuck was recognized by the Speaker jjro tempore,

Mr. ScHKXCK. Mr. Speaker, I do not wish to bn considered as having maniftisted any
undue warmth in this matter, but a practice has grown up here of stifling all debate.
[Laughter.] Gentlemen may think it aujusing, but I think there is pl>^nty of talk in
this Hall, and i)erhaps I take my share in it, though I think I may truly say that I
seldom talk about anything exc(^pt that which comes from my own committee, but not
much of what is propeily called debate. I took the precaution yesterday to inscribe
uiy name on the roll of members who desired to speak, as is the custom here — the tirst
time I think I ever did it, though it has been done for me once or twice before — and I
found great difficulty this morning in getting the benefit of that inscription. There-
fore, I feel a desire, if I am permitted to take part in this debate at all, to do it when
it is fresh bcfoi'e the House and before it shouhl be, considered all on one side and then
laid on the table without an opportunity to reply to the argument already maile.

So far as the grave question before the House is fjonccrned, nothing is farther from
my intention than to indulge in any warmth or undue or excited feeling about it.
Nobody can regret more than I the very painful scene which took jilaee in this hall
yesterday upon the occasion of counting the votes for President and Vice-President.
The disorder it umy be said was principally on this side of the House, confined to
members of the House of Representatives, and tho.se, too, of the, dominant party of the
ccnintry. 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 vho manifested any ex-
citement on this side of the House were actuatisd by a dis[)ositiou to interfere with a
declaration of that lesult for which w-e had so much longed, ami which w^e were so
gratified in seeing accomplished. How, then, do you af^'ount for it tiiat the very
friends of those who were to be declared President and V^ice-Pre^ident should have
beeu those who made objection to the course of procedure here unless yon give them
credit for some feeling of indignation or sense of imi)ropriety in the character of that
proceeding?

Now, sir, I share in that feeling with others, aud .sharing in that feeling, and believ-
ing that all that then transpired oceurr.id i i su sh a way as to raise a very grave and
important ipiestion with regard to the relative rights of the House an.l 8 ;nare before
the peojde of the country, I am not disposed to be seduced either by thi rhetoric of
my colleague [Mr. Bingham] or by any general denuuciation from any source from
asserting what I believe in regard t) the m inner in which the S^)iata a'ld the Presiding
Officer of the Senate transcended the limit-i which ought to h.ive sliut in th ) actio i of
that body in connection with the House yesterday.

My colleague who tirst addressed the House this niirning [Mr. ShellaSarger] gave
lis, in his very forcible, logical manner, his views of this case as it involves (piestious
of constitutional law aud of legislation. I think, however, that I will attempt to
show that my colleague was uot as happy as usual iu connecting his premises ami con-
clusions in tiiat argument of his. Let us look at his argument, b(\ginning 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 iu thi; Constitution 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 Constitution who shall bn the counter
of the votes. He infers that if we lested upon the Constitution alone, and there were no
legal provisions of any kind upon the snl)ject, it would follow that this counting was
to be done by the President 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 Constitution
being silt»nt, the counting would be done by the President of the Senate, unless some
legislative provisions were enacted determining how that counting should be done. I
will make no issue with him upon that. My colleague proceeds a step further aud

PROCEEDINGS AND DEBATES IN CONGRESS. 293

arji;nes that, for want of legislafcioQ npou this subject, as I understood him, having
only a joint rule made between the House and the Senate upon the subject, the power
remains with ihe 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
uncoustitnfional.

Mr. SlIKLL.USAHGElJ. 0, 110.

Mr. SciiKNOK. Then I beg niy colleague to explain what he did argue, because that
was the imiiression he made upon others besides myself.

Mr. SiiKi.LAB.vKGEH. I thauk my colleague for th; privilege of explaining. I state
first that, in the absence of all legislation, my opinion agrees with that expressed by
Chancellor Kent, that, subject to such rules as may be prescribdd for tlie purpose, the
Presideut of the Senate would do the counting, guid d by any iiiles that might be
provided, if any be provided, as there ought to be. Tlisu I state turther that if there
be no constitutional rule provided, in tlie absence of such rule, the count must be made
in a convention compose! of the President of the Senate and of the two houses, and
that any attempt to count in the separate bodies would be iu contravention of that
provision of the Constitution which re([uires that it shall be done iu the presence of
the three constituent elements; and that, therefore, the provision of the twenty-second
rule which dissolves the convention by separating the parties to it and provides for a
count in a different way is, in my judgment, in contravention of the CoustituticMi, and
that we are left to the operation of a rule that we made ourselves.

ilr. SCHKNCK. I do not yet understand whether ujy colleague denies that joint rules
oil the subject are con.stitutional.

Mr. Shelab.ihger. I stated distinctly that I regard the twenty-second rule as un-
constitutional, for the reason that it requires or authorizes the counting in se|)arate
bodies, and I say that the concurrent resolution, which does not require that, is con-
stitutional, and that it justified what was done by the Presideut of the Senate yes-
terday.

Mr. SCHENCK. I think I apprehend the gentleman's point now; and my answer shall
be made just here without wftitiug to come to that point in the Hue of my argument,
and it is this: that wheu the two branches of the legislative department meet iu
convention, htdd joint meetings, and a (juestion 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 see whether they concur or not, they are yet not sit-
ting as a Senate and a House, properly considered, but each is acting as a part of the
joint meeting, just as is done under the law iu cases where the election of a United
States Senator takes place iu a State legislature.

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 iu 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 aud the House there might
have been an act passed embodying the same matter, to be approved aud 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 iu no sense whatever a party to the
counting of the votes for President and Vice-President. My colleague [Mr. Shella-
barger] well remarked that there are three piirtit^s to that transaction : the President
of the Senate, the Senate, and the House of Representatives, coming together in joint
meeting, over which the President of the S-nate is to preside. Therefore, inasmuch
as it related to that which the House and the Senate were to do jointly aud concur-
rently, there was no necessity for legislation by act of Congress, to be approved bj' the
President, to settle the mode of proceeding ; but that might be done by a joint rule or
concurrent resolution.

I then hold that the joint rule under which we act is not only a constitutional pro-
vision, in regard to its details as to the nuiuner of counting, but I also hold that it is
just such a legislative act, in one sense, as alone was necessary; because it was one of
those acts which, relating simply to the concurrent action of the two houses, did not
need the sanction or approval of the President of the United States, as in the case of
an ordinery enactment.

Mr. SiiELLABAKGER. Will the gentleman yield to me for a moment ?

Mr. ScHENCiv. Well, I have but little time to spare ; but I will yield.

Mr. SiiELLABARGER. I wish to ask the gentleman this question : the two houses
difl'ered 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
second rule to refuse to count a State unless both houses concur in so doing, and the
two 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 qouuted, as the
rule reciuires that they shall do before it can be counted ?

Mr. SciiEMCK. 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 difflculty that my colleague

294 COUNTING THE ELECTORAL VOTE.

does in the joint rule upon the subject. I liokl tlaat it is a casus omissus in the Consti-
tntiou ; 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 necessarily executing itself, is to be aided by
such provisions in reference to its execution as may be needed in the form of h^gisla-
tioD, 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 shai)e 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 sufflcii nt, for tbat ])urpose, because it is a matter where there is no duty
devolving upon the President of the United States, but itonly 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
constitutional in all its parts — and I do not know that my colleague [Mr. Shellabarger]
denies that fact — what next ? Last Monday, in view of tlie peculiar condition of attairs
iu Georgia, we passed a concurrent resolution, which, to all intents and purposes, was a
joint rule looking 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 reso-
lution explains its very object in the recital of the preamble, which is as follows :

"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 undetermined; and
whereas, by the joint resolution of Congress passed July 20, 1^66, entitled 'A resolution
excluding tVoni tlie electoral college votes of States lately in rebellion which shall not
have been re-organized,' 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 sh 'uld have become entitled to
rejtresentation in Congress pursuant to acts of Congress in that behalf: Therefore,
Bfsolred," &c.:

Resolved what? That when tlie State of Georgia came to have her vote presented
as contained in tlie sealed certificate which might bo brought here, and tinit certificate
was (q)ene(l, it should be the duty of the President of the Senate, when all else that the
Constitution and the joint rule required had been done, to declare that if that vote
were recorded such and sucli would be the result, and that if it were not counted there
would be another result, aud that there his duty was to end.

The mistake which 1 think some gentlemen make is in sup{)osing that this concurrent
resolution repeals, or iu any respect whatever conflicts with, the joint rules of the
House and the Senate. This concurrent resolution confines itself to the question
whether Georgia is entitled to l)e represented or not. It does not touch the ([uestiou
of the certificate nor what the certificate contains. It does not touch the question of
exami.iing the contents of the certificate with a view to counting the vote. Now, let
me jjut 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
U])on 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 with-
out seal and without signature. Can any objection be made ? According to the
theory which I am now combatting no objection can be entertained. Under this
concurrent resolution, as gentlemen here construe it, the President of the Senate, as a
mere automation, is to rise iu 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 supposed
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 mummery and farce of rising and saying that if
it be counted the result will be so, and if it be not countetl 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, be-
cause your concurrent resolution says that the President of the Senate, as a mere pup-
pet, 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
Georgia instead of casting the number of electoral votes to which she is entitled has
cast twenty votes; the President 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 result will be thus."

What does all this prove ? It proves that yonr 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 certified in any particular return
are to be counted. It stops at the threshold upon a preliminary question, avoiding the
other and graver question 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 dis-

PROCEEDINGS AND DEBATES IN CONGRESS. 295

posefl of under tlie joint rnles 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. BiNGiiAjr. The gentleman will allow me to correct him. I did not denounce
the views of those who differ from me. I denounced the resolution of the gentleman
from Massachusetts, as I had a perfect right to do.

Mr. ScHENCK. I beg my colleague's pardon if I am mistaken, but I thought he char-
acterized all this proceeding as " revolutionary," and

Mr. Bingham. I characterized the pending resolution as "revolutionary."

Mr. SCHENCK. And we heard a great deal about '' anarchy," in which the gentle-
man soared so high that I could not follow him, although I would have been glad to
do so, because I always admire his rhetoric. At least I am justified in saying, in
regard to the position of my colleague — and he knows that I like him too well to use
toward him any language 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 repeals the other. I hold no such doctrine.

I say that there stands the joint rule covering all the questions that may arise after
the certificate is opened in regard to what is in the certificate, and that the concurrent
resolution stops short of all that, and merely deals with the preliminary question
■whether we will commit ourselves in anything we do upon the question whether
Georgia is or is not entitled to reiireseutation, or to have its electors for President
and Vice-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 Officer, the Senate shall thereupon withdraw."

If any question shall arise after the opening of the certificates with regard to the
coiinting of the votes therein certified. Did your concurrent 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 impossible. When the House and Senate on Monday last tried, by
their concurrent resolution, to take some safe ground by w^hich they should not be led
to commit themselves upon the question 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 my colleague maintains that our joint resolution upon this subject is uncon-
stitutional, I am afraid his argument will go too far. What right have we to make
rules at all ? The Constitution of the United States says that each house shall make
rules for its own proceedings, but it is silent about joint rules. Infereutially, because
each house may make rules in regard to its own proceedings, it has been held from t;ie
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 mu-
tual 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 unconstitutional ; for
all joint rules are made under the inferential power that, as each house can make rules
for its own proceeding, they may also regulate what may take place between them-
selves or where they are jointly concerned.

I repeat, then, my proposition. We have a general rule upon the 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 irrec-
oncilable, 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 re-
gard to the vote of the State of Louisiana, as to whether it should be counted or not.
The Senate retired, 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 meeting ; 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 coucur-

19 X

296 COUNTING THE ELECTORAL VOTE.

rent resolution overruled and blotted out all ou the subject of Georgia which might
otherwise be applicable to the case of that State under the joiut rule of the House
and Senate, that they would at once have put dowu the objection, refusiug to enter-
tain 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 pro-
vided 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 apparent to every one
that here had come np a question which the concurrent resolution did not provide
for. The first olyection made by the gentleman from Massachusetts [Mr. Butler ] to
the counting of the vote of the State of Georgia was one which my colleague himself
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 gentlemen here. Here is the resolu-
tion, 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 for that pur-
pose, and so forth ; and when you have done with the reading of your concurrent reso-
lution you are just where you were before. Yon 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 difi"erent time from that which the law appoints. The com-
mon sense, therefore, of the Senate aud of the House, disregarding any such strained
construction as has since been attempted to be put upon this concurrent resolutiou, led
them to separate, the Senate going to its room to consider 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 Massachusetts, 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 concurrent resolutiou of
the tw houses."

That is, we are to infer that the Senate went 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 ditt'erence, we are to infer that they went oft' upou the
idea that the concurrent resolutiou overrode aud repealed the joint rule upon all sub-
jects in regard to finding out what was in the certificates when they came to be opened,
and came back and gravely told us through their organ that the Senate had overruled
the tJijectious made by a member of this House iu his place, while acting with the
House in joint meeting with the Senate. What further? If you look at the otidcial
record you will find it was communicated to the House as a part of the record history
of the joint convention what the Senate did ; but you have no record whatever, nor
was any allowed, as to what the House had done. You have a record iu the' House of
Representatives, and you have a record of their decision as it was communicated to
the Senate. These are records iu the House as a House, aud iu the Senate as a Senate;
but the joint meeting, the joint convention, never was permitted 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 i^assing its
opiuiou 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 Sen-
ate iu 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 question. What question? A question
which had arisen in regard to the contents of a certificate when it came to be
opened. And the two parts of this joint convention, thus separated under the rule
to consider and report to each other what each separate part of the convention
had determined upon, were up to this point acting regularly, and only under the
joint rule, wirhout which all their proceediugs would have no force ; for ther 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 twentj-
second rule, the question raised in regard to Georgia. The House said it was not
repealed by remaining here in their seats and acting upou that question. And the
Speaker said it was not repealed by putting the question to the House ; and when the

PROCEEDINGS AND DEBATES IN CONGRESS. 297

two houses ciiine together again in joint convention it was in obedience to the joint
role of the Honse and of the Senate, which required the two honses 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 House 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 gentleman 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 construction and in-
terpretation of that joint rule ; and w-hen the Senate overruled it, it was not merely a
squelching, or the attempt to squelch, a single member, but it was an attempt to ab-
rogate and crush out the rights, powers, privileges, and immunities of the House of
Representatives, as a part of this solemn procedure to assist at the opening of the votes
for President and Vice-President.

We have often heard from our worthy Speaker about the propriety of standing up
for the rights of the commons, the representatives of the people. And I thank him for
many a good doctrine taught us upon that subject ; they all have my hearty concur-
rence, 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 Officer, can coolly come in here, after the two bodies have sepa-
rated for the purpose of deciding 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
people. 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 privi-
lege, but thie bare right and duty, of taking part in asolemn ceremony, according to the
form of the Constitntion and as provided by law.

Now, sir, let me illustrate in another way ; and the gentleman to whom I shall re-
fer 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 re-
porter 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 inter-
ruption " in threatening with arrest members of the House for disorder, when
they expressed— somewhat too excitedly, perhaps— their feelings of indignation, hon-
estly 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 meeting of the two honses, with the 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 extending over us solely, he ought not to have threatened us
with arrest; and I can only account for his doing so by supposing that, like many of
the rest of us, he was excited by the unusual confusion and warm feeling of the occa-
sion.

Mr. Colfax, (the Speaker.) Will the gentleman yield to me ?

Mr. ScHENCK. With pleasure.

Mr. Colfax. Having stated my views to the House last evening, I had intended not
to participate further in this discussion unless my official conduct sliould be arraigned,
as it is now being arraigned by the gentleman from Ohio, [Mr. Schenck.] The Speaker
of this House feels that it is the right of every Representative 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 ceusure 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 pro-
vides that —

" It shall be the duty of the Sergeant-at-Arms to attend the House during its sit-
tings, 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 Represent-
atives," under the Constitution, was " sitting " in this hall during joint session yester-
day. It was a Honse of Representatives. There was a Speaker. The twenty-second
joint rule requires that in joint convention he shall sit by the side of the Presiding
Officer of the convention. 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 Rep-
resentatives here, then the Speaker exceeded his authority. If there was " a House "
here, if the Constitution required " the House" to be here, then he performed his

298 COUNTING THE ELECTORAL VOTE.

duty in endeavoring to command order, Avhich 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 presence of the Senate and House of Rep-
reseptatives, 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 "a Sergeant-at-Arms" there ; and the rule provided 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 ex-
citement then prevailing, had ordered the Sergeaut-at-Arms of the Senate to enforce
the rules of order upon members of the House of Representatives, the excitement
would have been redoubled. It would have been said that the President of the Sen-
ate had not the power to order the Sergeant-at-Arms to enforce order upon members
of " the House of Representatives " in their representative hall. But, under the twenty-
second House rule, there was an officer endowed with the authority necessary in the
emergency, and he shrank not from the performance of his duty. If he exceeded his
authority, he is subject, ashe is for all other official acts, to the condemnation of the
House.

Mr. SCHENCK. I think he was excited very much, as the rest of us were, and he for-
got himself.
Mr. Colfax. No, he did jiot.

Mr. ScHEXCK. It is only a difference of opinion, and I am fortified in that opinion

Mr. Woodward rose.

Mr. SCHENCK. 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 |3ro tempore. The Chair sustains the point of order.
Mr. ScHENCK. I will iiroceed. If there is any issue between the Speaker and my-
self, 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 Speaker, out of proper respect, is assigned a iilace 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 regulation in regard to the surround-
ings; "but as regards the legal right of the Speaker to jireside and keep order, let me
say that it is not a 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
yesterday.

" 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
refereuce to the separate action of this body.

" The Speaker. A reply to that question would involve a discussion of questions
properly transpiring 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 becausehe 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 for-
get 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 showing
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 argu-
ment which I have submitted.

PROCEEDINGS AND DEBATES IN CONGRESS. 299

Mr. Butler, of Massachusetts. I will send another authority to the gcutleman from
Ohio.

Mr. SciiENCK. It states that the Speaker's chair was vacated, aud it was taken by
the President of the Senate.

Mr. Colfax. As the gentleman has received 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 Senate when presiding over the Joint meeting
of the Senate and House. The Speaker adheres to that ruling to-day. There is, how-
ever, 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 Sergeaut-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," &c. 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 Senate. The rule says that the
Sergeant-at-Arms shall attend their sitting to aid in the enforcement of order under
the direction of the Speaker. I would therefore ask the gentleman from Ohio whether
he would have asked the President of the Senate to command the Sergeaut-at-Arms of
the Senate to arrest a Representative 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 Sergeant-
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 Sergeaut-at-Arms. Why, sir,
if the Sergeant-at-Arms of either house had attempted to arrest a member of the other
house we might have had repeated here the scenes of the French Revolution, when the
excitement of the galleries mingled with the excitement below. In the maintenance
of order the President of the Senate had the control of the Sergeant-at-Arms of the
Senate, aud no one else. If he had sent the Sergeant-at-Arms of the Senate to arrest
any Representative 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 ordered to be here, aud he
supposed his duty required him to do that which he did in the maintenance of order
and decorum. Order had to be preserved. The House had met as a House at noon and
had not adjourned. It was a House of Representatives, and was sitting as the Consti-
tution required its presence as a House. The Sergean\-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 provides that when the two houses have
thus met in joint meeting the President of the Senate shall be their Presiding Officer ;
and I find in the last clause of that rule the following :

"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."

I do not know any difference of opinion in regard to the true construction of this
joint rule 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, com-
posed of the Senate and House acting together in joint meeting, having one head
to preside aud 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 iu-
teuded, as well as for other purposes, to give character to the occasion, that the offi-
cers 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. lu 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 busi-
ness 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 presided over
that body, but could direct the steps of the officers met together for that purpose.

I am son-y in thus illustrating the condition in which we found ourselves here it has

300 COUNTING THE ELECTORAL VOTE.

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 certainly I intended noth-
ing personally offensive to him.

Mr. Colfax. As the Speaker never referred to the subject until it was broached by
the gentleman from Massachusetts, he of course had a perfect right to vindicate him-
self.

Mr. SCHEXCK. I merely refer to the matter as an illustration of my general argu-
ment, 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 provides where the votes thus certified shall be counted ; that to carry
out that 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 resolution amending j)/-o tanio this joint resolu-
tion they did not touch those questions relating to what is contained in the certificates,
but simply attempted to avoid the question which might arise as to whether the Stat©
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 representative of the oiiicer referred to in the
resolution now pending, I feel it my duty to sjieak. 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 discussion. 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 yes-
terday by the gentleman 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 unrepealed. We are now told that all this tempest and turbulence have
for their moving cause the desire to settle a great constitutional question for the future
safety of the reiiublic.

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 impor-
tance 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 gentlemen who have spoken that we ought to have
full discussion and careful legislation in reference to this business of counting the elec-
toral 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, 186"^, and it is in these words :

"Eesolved, That the Committee on the Judiciary be directed to inquire into the expe-
diency of providing by law for the settlement of contested elections for electors of the
President and Vice-President of the United States, and that they rei^ort by bill or
otherwise."

A standing committee of this House has this very subject tinder consideration and
can report. 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 transparent attempt to evade the violent and indefensible measure which
he proposed in these words :

'^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 j)rivileges 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 pre-
ferred against the Vice-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 dis-
charge of his duty of opening 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.

PROCEEDINGS AND DEBATES IN CONGRESS. 301

Now, it will not do for the geutleman to allege that the rule was uncoustitutional,
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 discretion. If he had
gravely doubted both the constitutionality 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 provisions
in the smallest particular as against the declared will of the two houses ?

Assuming, then, that neither the constitutionality nor the wisdom of the rules under
which he was acting was a matter to be determined by him, we must look to the rules
themselves to tind 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 beeu 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 justified, that justification must be found in the joiut rule which passed this House
in the form of a concurrent resolution on Monday evening last. Omitting the pre-
amble, w^hich is only a matter of inducement and canuot restrict the plain terms of the
rule, the resolution is as follows :

"Eesolved bt/ the Senate, (the House of Representatives concurring,) That on the
assembling of the two houses on the second Wednesday of February, 18H9, 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 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 follow-
ing manner : Were theVotes 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."

In this rule is the whole issue no-w in debate. My colleague, [Mr. Schenck,] who
has just taken his seat, and who has made the strongest argument in favor of the
opposite view which I have yet heard, virtually acknowledges that this is the whole
issue when he declares that this joint resolution neither repeals the tw%ty-8econd rule
nor does it come in conflict with it. Now, the application of this new rule depended
upon one contingency, 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 prelim-
inary 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 Georgia 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 gentleman
from Massachusetts so severely commented 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, " lu that case they (the electoral votes of Georgia) shall
be reported by the President of the Senate." It left him no discretion. It was made
to cover one contingency, pud 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 Massachusetts rose in his place and objected. The Presi-
dent of the Senate made this answer :

" The Chair is very much disposed to hold the Senate and House of Representatives
to their own concurrent 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."

lie had already found that the vote of Georgia did not change the result, and hnew,
therefore, that the new rule rested upon him in full force. He had no discretion. The
rule was imperative; but the gentleman from Massachusetts, though out of order,
pressed his objection with vehemence. The Vice-President repeated his decision, and
a second time declared that he felt bound to obey the concurrent resolution of the two

502 COUNTING THE ELECTORAL VOTE.

houses ; but the gentleman from Massachusetts, with his accustomed persistence, still
objectiug, and the President of the Senate manifestly desiring out of abundant 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 decla-
ration the Senate did retire. A manifest difference of uuderstandiug 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.
Eldridge] claimed they had retired on a question raised by the gentleman from Ken-
tucky, [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 this debate may be based upon the facts.
The gentleman states that the President of the 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 Senate 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 Mas-
sachusetts."

There was the language of the President himself.

Mr. Garfield. I agree with the gentleman, but what was the objection? The gen-
tleman from Massachusetts had not only filed an objection in writing against counting
the vote of Georgia, but he had objected to the ruling of the Chair that ruled his ob-
jection not in order. 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 message 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 Geor-
gia. 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, de|4ared that it had no right to do otherwise than to count the vote of
Georgia in the ^escribed manner. The action of the Senate 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 the 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
purpose of settling a point of order, but the objection to counting the vote of Georgia,
proceeded to vote on that question, and voted that it should not be counted. The Sen-
ate came back, and its President announced the result of their deliberations. I agree
with my colleague [Mr. Schenck] 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 iact, overrule the objection of a member of the House. But I call attention to the
fact t liat when the President of the Senate came back he did what he had an undoubted
right to do. He re-asserted his first decision, that the objection of the gentleman from
Massiichusetts 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
treatment of this House by the Senate must be exhibited in the official messages re-
ceived 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 gentleman 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 what
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 entertain the objection of the gentleman from Massachusetts. 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 members 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.

PROCEEDINGS AND DEBATES IN CONGRESS. 303

if the Tresident of the Senate had opened the supposed returns of Georgia aud found
only a newspaper in the envelope, woukl 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 coucurrent resolution provided that the President of the Sen-
ate must count them, aud he did count them.

Mr. Paine. I ask the gentleman from Ohio to yield to me.

Mr. Garfield. Certainly.

Mr. Paine. I thank my friend for allowing me to ask him this question, Did the
President of the joint convention order the vote of Georgia to be counted '? Was that
vote counted f Did the concurrent resolution of the two houses ever order that vote
to be counted ?

Mr. Garfield. The new rule provides a definite formula to be used by the Vice-_
President, 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 in joint convention over of the two houses, with having
counted, or caused to be counted, the vote of the Slate 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 that 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 manner as the votes of other States were counted ; but it is apparent on the face
of the transaction 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 reso-
lution 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, without 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 constitutionality, but was to cany out and obey
the rule adopted for his guidance by both branches of Congress.

Mr. SciiENCK. I merely wish to call the gentleman's attention, as he is quoting the
action aud declaration of the President pro tempore of the Senate and the Presiding
OflScer of the joint convention, to what took place in the Senate. I am permitted to
refer it, as I have it in the Globe. After they returned to the Senate, in answer to a
question of Mr. Ednuuids as to what had taken place and what had been decided, the
President j!»o tempore said :

" The Chair will state that the gentleman from Massachusetts took exceptions to the
counting of the vote for a different reason from any covered by the concurrent resolu-
tion. 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 question, not in-
volved in the coucurrent resolutiou, perhaps lying back of that, based on the ground
that the vote was informal aud 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
authenticated and sent to us by the Senate, and that record declares that objections to
counting the vote of Georgia are not in order. Aud even if my colleague's account of
the transaction be admitted, it only shows that the Senate confirmed the ruling of the
Vice-President, and not that they overruled the House.

And now, Mr. Speaker, I have come to the last point I desire to make in this dis-
cussion. We have heard it said that there w^as great excitement here, great turbu-
lence, 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 memory and con-
science of every man in this House to say who inaugurated the unseemly performance,
who began the excitement ? What transpired here yesterday in the nature of turbu-
lence? Was it not the theatrical attitude, the ferocity of manner, and the disorderly
utterances 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 originate with members who, disregarding the orders of the Pre-
siding OfBcer, made use of expressions like these :

"Mr. Butler, of Massachusetts. I move that this convention now be dissolved, and
that the Senate have leave to retire. [Continued cries of 'Order !' 'Order !'] And on

304 COUNTING THE ELECTORAL VOTF:.

that motion I demand a vote. [Cr-ies of 'Order!' 'Order!' from various parts of the
hall.] We certainly have the rij^ht 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 prefers to " reign in hell rather than
serve in heaven," 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 dignity of the proceedings of yesterday's assembly, and I believe that
not only the members of this House but the whole country will recognize the debt of
obligation they owe to the Speaker of this House, who threatened to use the constabu-
lary force at his command to preserve order in this hall.

Mr. Maynaki). I rise to a point of order. Much that the gentleman has said trenches
so nearly upon the line of unparliamentary laugiiage, if not transcends it, that I feel I
ought to interpose as against my personal- friend to save him from the result of the en-
forcement of the rule.

The Speaker jj)-o tempore. Will the gentleman point out the language?

Mr. Maynard. I rose rather for the purpose of interposing my objection to the style
of remark the gentleman is indulging in. I withdraw the point of order.

Mr. Gareieli). As an exhortation to jirudence of speech in this presence the remarks
of my friend will be always welcome. But after six years' service on this floor, during
which time a point of order for the use of unparliamentary language was not only
never sustained but never made against me, I trust I shall not disturb any friend with
the fear that I may forget the decorum which becomes 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
exhibition here, I think the House cannot be 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, coer-
cion, or unseemly clamor, and had we in consequence found ourselves 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 measureless disaster.

And now, Mr. Speaker, speaking in behalf of all who oppose this violent and unjusti-
fiable measure, I move that the pending resolution be laid on the table.

Mr. Spalding. 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
matter. As many of my friends desire further discussion, I withdraw the motion.

Mr. Logan obtained the floor.

Mr. Logan. I have the floor, and I will not yield for any interruption. I yield a
portion of my time to the gentleman from Massachusetts, [Mr. Butler.]

The Speaker j>?-o tempore. How much time?

Mr. Logan. I yield to him for the present for fifteen minutes.

Mr. Ingersoll. It is generally understood 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 colleague [Mr. Logan] obtained the floor to the exclusion of myself and my
colleague [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 jjj'o 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 "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. LoG^vN. I do not yield to the gentleman. I yield to the gentleman from Massa-
chusetts.

Mr. Butler, of Massachusetts. I trust, I\Ir. Speaker, this very grave matter of con-
stitutional 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 un-
wonted sensibility in the House, we shall proceed to consider with that care, that
calmness, and that candor which its imi>ortance demands. The question before the
House is one compounded of fact and of law. To the facts I shall not speak. They

PROCEEDINGS AND DEBATES IN CONGRESS. 305

are known to find in the memory of every member. To the law I jiropose to address
myself in such degree as I may. And now let me ask the House to pardon me if I do
not reply 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. I was once told upon
this tloor that I had voted fifty-seven times for Jeff. Davis in order to lessen my stand-
ing 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 another
upon me ; and I make it a rule iu life never, unprovoked, to begin personal contro-
versy.

In answer to the declamation iu this case let me say the gentleman from Ohio [Mr.
Bingham] has again made tliat splendid rhetorical display about " anarchy," which
has neither heart to feel or a soul to be saved ; that starry declamation about the
" gathered wisdom of a thousand years," [laughter ;] the " land drenched in blood of
millions of your sons" and " dotted all over with their graves." [Laughter.] I only
reply that I always did like that si^eech. [Much laughtei-.] And if everybody else
likes it as much as I do, and we are to have it upon all proper occasions, perhaps I
ought say no more about it. [Laughter.] To my friend from Ohio, [Mr. Garfield,]
who, smarting a little under the faihire of his defense of the Regular Army, has chosen
to arraign my motives and send me to the country branded iu parliamentary language
as being 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 atten-
tion 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 second, if I mistake not, provides that
upon an occasion like that of yesterday "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 twelfth article of amendment has precisely the
same provision, in precisely the same words, and no more; so that the gentleman from
Ohio [Mr. Shellabarger] was not, as usual, correct this morning in saying that this
provision was changed because of the trouble in the election between Jefferson, Burr,
and Adams.

Mr. Shellabargkr. That is what was stated by Justice Story.

Mr. Butler, of Alassachusetts. I do not care what Justice Story states ; the Cousti-
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 owu
eyes to inform me. And because a man who is dead has asserted 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 iu 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 limited, 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 intendment. Now, the Constitution gives the power to the President of
the Senate to open the certificate of the votes, because, being required to be transmit-
ted to him, he has them in his custody. There it stops, so far as the President of the
Senate is concerned. The Coustitittiou 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. Shellabarger] says that it is in order that the two houses maj^
be witnesses that it is done rightly. Exactly so. I agree with him. But if it is doue
wrongly, what is the remedy? If the President of tbe Senate may do in this matter
as he pleases, as is now claimed to be the law, and we cannot help ourselves, whether
it be as the great constitutional duty, wrongly or rightly, why, then, should the Con-
stitution compel tis to stay hsre as witnesses to a wrong with the committing of which
we have neither the power or right to interfere ? Are we thus compelled to sit here
poor, inanimate witnesses, voiceless witnesses, powerless witnesses, incapable for
good or ill ? Although out 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, the arrest of its members— rthe highest exercise of the
power of the House. And the Senate was here likewise, by the provisions of the Con-
stitution, as a Senate, with its Sergeant-at-Arms, to carry out its high behests, aud
arrest, it may be, its own members.

Why does the Constitution bring the two great legislative bodies of the nation to-
gether in their legislative capacity upon so solemn and great an occasion as the final

306 countiinG the electoral vote.

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 mis-
takes, perversity, or corruptions 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 or 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 Chancellor Kent aud Justice Story in direct opposition, 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 i)ower given by the Constitution, operating ex propria vigore, to do an
act of government. Therefore, all the power necessary to execute the power is also
conferred. 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 is 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 deliberation ; for being an aggregate body, or in any view composed of aggre-
gate bodies, to determine questions for itself by deliberation. A part of that power is
exercised by the House and a part by the Senate, whether 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 ascertained
one.

But, however that may be, whether we exercise that power separately or conjointly,
apart from each other or in conjunction with each other, the power is given to the con-
vention to preserve order, determine questions for itself, and to settle all other ques-
tions necessary to execute its work as a constitutional body. That, beyond all doubt,
in my judgment, is the power given us by the Constitution as incident to the perform-
ance of the duty enjoined upon us, and that in its execution the Republic shall receive
no detriment. If we can neither preserve order nor deliberate, nor examine, nor de-
termine 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 object, saying :
" Why, sir, that certificate is forged, and I have the evidence here." " But," says tlie
President, " I cannot hear that. Don't you know the concurrent resolution 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 we are 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 certificate without determining
anything about the genuineness of the 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 legal 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 twenty-second joint rule — a rule which, whoever drew it, is in my judg-
ment 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 unconstitutional.
So far as it relates to the conduct 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 conven-
tion, the manner in which we shall exercise 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 contravention of the Constitution.

The rule carefully provides that when an objection is made the two bodies shall sepa-
rate and deliberate upon that objection. Either the Senate or the House must 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 separate aud each deliberate
separately. But their determination is to be reported to whom ? To the joint con-
vention, to the President of the Senate sitting in the joint convention, and when they
take form of conjoint deliberations they determine the question. The determination of
the House alone amounts to nothing; the determination of the Senate alone amounts
to nothing until they are brought in and become the action of the joint convention.
When they are brought in and ruled, then we act in convention. The two bodies

PROCEEDINGS AND DEBATES IN CONGRESS. 307

having deliberatetl 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 "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 provides that the vote 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 Geor-
gia was not a State within the meaning of the Constitution, and had not voted accord-
ing to the constitutional requirement. For I agree with the gentleman from Ohio
[Mr. Shellabarger] that by all fair intendment of law it is as necessary for the
electoral colleges to assemble and vote on the same day appointed by law as it is that
the people who elect them should vote on the day fixed by the Constitution. 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 Constitution. 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 con-
vention which votes shall and which shall not be counted, because in so doing we
arrogate to ourselves a duty and a right which the Constitution has given to the two
houses acting together, and which cannot be exercised except when sitting as compo-
nent 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 ques-
tion of constitutional law with 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 assembled ? 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 1
If we get in there can we stick, and can they not get rid of us if they desire to de-
liberate ? 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 ? Clearly not. Yet we must have equal rights. We are co-
equal— no, I deny that fact in the broadest sense ; for there is no power the equal to
that of the representatives of the people when assembled iu 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 determined in the
course of a joint business by a co-equal 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 thousand years ?" Can it be that the
Constitution provides no better than that for the transaction 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 even-
ing.

Objection was made.

Mr. Shellabarger. I ask the gentleman to yield to me for a question.

Mr. Butler, of Massachusetts. I yield to the gentleman, as he always puts his ques-
tions as a scholar and a gentleman seeking for the truth. I wish I could say as much
of everybody putting questions.

Mr. Shellabarger. I thank the gentleman for his kindness, and my only object is
to get at the interpretation of the law, and in that respec#I desire to have the bene-

308 COUNTING THE ELECTORAL VOTE.

fit 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 un-
constitutional. As I understood 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 thiug the vote of the State objected to should
not be counted. If that were a correct interpretation it would be in the power of
either house to throw out the vote of any State, and to decide that that vote could not
be counted.

Mr. Butler, of Massachusetts. I will answer 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 convention and make that determina-
tion of the convention jus<^ precisely as a jury may retire from court and deliberate on
their verdict and make it up, but it has no validity uutil 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, 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 conven-
tion— and I wish to call the attention 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 approved by the President, and therefore I an-
swer the whole argument of the gentleman from Ohio, [Mr. Bingham,] if that argu-
ment can be called where argument is not, when he declares in such brilliant sentences
that proposition 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 Sen-
ate 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 provisions of that Consti-
tution, 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 receiving 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 Oificer 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 appreciatiou, a greater love, or more faith and confi-
dence in the President of the Senate, a gentleman who is known all over the couutry
by the endearing name of honest old Ben Wade, than I have. That man, standing
there yesterday, of himself 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 encroaching 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
informed.

Mr. Farnsworth. 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 people, 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 month-piece of somebody,
and parliamentary 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
resolutions, which I have modified so that I hardly think they can be objected to by
anybody, and yet give 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 manner 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 order of the Senate only, and against his acts dis-
solving the convention and the two houses at his own will, as an invasion of the rights
and privileges of this House.

PEOCEEDINGS AND DEBATES IN CONGRESS. 309

" Eesolved, That the above resolution be, and hereby is, referred to a select com-
mittee of five, with leave to report at any time, and report by bill or otherwise."

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 interfered with by what was done iu the convention yesterday that we
protest against such action, and' ought to examine into it, aud that we will refer it to
a committee for that purpose. That is all there is of the proposition. Now, what is
there in it to complain of that gentlemen should have attacked me so vehemently ?
My friend from Ohio [Mr. Shellabarger] says this House has no privilege of any kind
iu 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 privi-
leges. Therefore, it is a logical conclusion, a fair and just conclusion of the gentle-
man from Ohio [Mr. Shellabarger] that we had no privilege here. He must come to
that to sustain the action of the Senate and its officer yesterday.

Now, I insist that we have high privileges as a poi-tion of that convention, aud 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," aud 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 dan-
ger from the country. And in that I am sustained by the gentleman from Ohio, [Mr.
Garfield,] who says "he thought it of so much importance that he sent out last year to
the Committee on the Judiciary, aud it is sent there now because they haye not had
time to consider it, aud jierhaps no one has brought it to their attention. But now that
this matter is before the House aud before the country, independent of all feeling, lay-
ing 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 tlie 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 may have legislation to define our rights and
the rights of the Senate, so that this thing which happened yesterday may never
happen again.

Whether I am responsible for the scene here yesterday or not, if its results are that
we have legislation to sustain aud fortify this part, which every man upon this floor
knows to be, as Judge Story and Judge Kent both say, is the weak spot iu our Consti-
tution ; 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 attracted the attention of the House, and so atti'acted the attention of the
Senate to this great defect iu our Constitution, which the Speaker has characterized
as casus omissus, can be remedied ; if this committee, of which I hope the gentleman
from Ohio [Mr. Shellabarger] 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 aud in my
own heart, whatever either of praise or blame may be accorded me by others, for I
shall have aided to throw around the Constitution safeguards aud butti^esses to render
it stronger forever, 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.
Benton.]

The Speaker 2)ro 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 disagreement between skilled and able gentle-
men here, that there ought to be but little disagreement iu this House as to the propo-
sitions advanced by the gentleman from Massachusetts. How was it, Mr. Speaker,
yesterday, when the House was called upon to vote f When the question was sub-
mitted 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 Senate the Presiding Officer notified the joint
convention that the Senate had overruled the objection taken by the gentleman from
Massachusetts, 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 etfect of that concurrent resolution, and upon that question the Senate were upon
one side and the House upon the other. Was it for the Senate to declare that they
were right and that the House w^as wrong ? That was the etfect of what they did.
And was not the declaration of the Presiding Officer, declaring that that objection was
not well taken and was overruled by the Senate, a proceeding calculated to alarm aud

310 COUNTING THE ELECTORAL VOTE.

startle and excite the members of this House ; aud if there was excitement here on
that occasion, was there any great cause of complaint or censure from any quarter f
Was it not an exercise 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.]

The House here took a recess until evening, when the following proceodiugs were
had :

ELECTION OF PRESIDENT, ETC.

Mr. Ashley, of Ohio. I ask unanimous consent of the House to have printed some
amendments which I have prepared aud propose to oifer to the amendment of the Sen-
ate to the joint resolution proposing a constitutional amendment, recently passed by
the House. That subject will soon come before the House, and I desii'e to have these
amendments ijriuted. The first amendment I have prepared is the one I prefer. If I
cannot succeed in that, I then propose to otfer the second amendment in lieu of the
sixteenth article of amendment proposed by the Senate as preferable to the one they
prox)ose.

No objection was made ; and the order to print was ac3ordingly made.

The first amendment proposed by Mr. Ashley, of Ohio, is as follows :

"Amend section three of article' one, by striking out clauses four and five, whicli
read —

" The Vice-President of the United States shall be President of the Senate, but shall
have no vote, unless they be equally divided.

" 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.

"Aud insert the following:

"The Senate shall choose their own presiding and other officers.

" In article two, section four, strike out the words ' Vice-President.'

"Amend section one, article two, by striking out the words ' together with the Vice-
President chosen for the same terra ; ' so that it will read —

" The executive power shall be vested in a President of the United States of Amer-
ica ; he shall hold his office during the term of four years, and be elected as follows.

"In lieu of clauses two, three, four, and six of article two and of article twelve of
the amendments insert the following :

" The qualified electors shall meet at the usual places of holding elections in their
respective States on the first Monday in April, in the year of oi^r Lord 1872, and on the
first Monday in April every four years thereafter, under such rules and regulations as
the Congress may bv law prescribe, and vote by ballot for a citizen qualified under this
Constitution to be President of the United States, and the result of such election in
each State shall be certified, sealed, aud forwarded to the seat of Government of the
United States in such manner as the Congress may by law direct.

" The Congress shall be in session on the third Monday in May after such election,
and on the Tijesday next succeeding the third Monday in May, if a quorum of each
house shall be present, and if not, immediately on the assemblage of such quorum, the
Senators and members of the House of Representatives shall meet in the Representa-
tive Chamber in joint convention, and the President of the Senate, in the presence of
the Senators and Representatives thus assembled, shall open all the returns of said
election and declare the result. The person having the greatest number of votes for
President shall be the President, if such number be a majority of the whole nunaber of
votes cast; if no person have such majority, or if the person having such majority de-
cline the office or die before the counting of the vote, then the President of the Senate
shall so proclaim ; whereupon the joint convention shall order the proceedings to be
officially published, stating particularly the number of votes given for each person for
President.

" Another election shall thereupon take place on the second Tuesday of October next
succeeding, at which election the duly qualified electors shall again meet at the usual
places of holding elections in their respective States and vote for one of the persons
then living having the highest number of votes, not exceeding four, on the list voted
for as President at the preceding election in April, and the result of such election in
each State shall be certified, sealed, and forwarded to the seat of the Government of
the United States as provided by law.

" On the third Tuesday in December after such second election, or as soon thereafter
as a quorum of each house shall be present, the Senators and members of the House
of Representatives shall again meet in joint convention, and the President of the
Senate, in presence of the Senators and Representatives thus assembled, shall open all
the returns of said election and declare the person having the highest number of votes
duly elected President for the ensuing term.

PROCEEDINGS AND DEBATES IN CONGRESS. 311

" No person thus elected to the office of President shall thereafter be eligible to be
re-elected.

" In case of the removal of the President from office by impeachment, or of his
death, resignation, or inability to discharge the powers and duties of the said office,
the same shall devolve temporarily on the member of the extcutive department senior
in years. If there be no officer of an executive department, then the Senator senior
in years shall act until a successor is chosen and qualified.

'' If Congress be in session at the time of the death, disability, or removal of the
President, the Senators and Representatives shall meet in joint convention under such,
rules and regulations as the Congress may by law prescribe, and proceed to elect by
I'iva voce vote a President to fill such vacancy. Each Senator and Representative hav-
ing one vote, a quorum for this purpose shall consist of a majority in each house of
the Senators and Representatives duly elected and qualified, and a nuijority of all the
votes given shall be necessary to the choice of a President. The person thus elected
as President shall discharge all the powers and duties of said office until the inaugu-
ration of the President elected at the next regular election.

" If the Congress be not in session, then the acting President shall forthwith issue a
proclamation convening Congress within sixty days after the death or disability of the
President.

" On the assembling of a quorum in each honse, the Senators and Representatives
shall meet in joint convention and elect a President as hereinbefore provided.

"All questions arising during the sessions of the joint convention shall, on the de-
mand of one-fifth of the Senators and Representativ^es present, be determined by yeas
and nays, and the names of the persons voting for and against any proposition shall be
entered on a journal to be kept for that purpose, and the Clerk of the House of Rep-
resentatives shall be the clerk of the joint convention."

The second amendment is as follows :

"The qualified electors of the United States shall, on such day as the Congress may
by law appoint, meet in their respective States at the usual places of holding elections,
and vote by ballot for President and Vice-President of the United States, one of whom
shall not be an inhabitant of the same State with themselves.

" The legislatures of the several States shall be in session on or before the second
Tuesday in January next succeeding such election, and shall in such manner as the Con-
gress may by law direct, canvass the returns of the election for President and Vice-
President in said State, and divide the whole number of votes cast by the number of
Senators and Representatives to which such State may be entitled in Congress, and
the product of such division, rejecting fractions, shall be the ratio for one elector. The
legislature shall thereupon appoint the number of electors to which the State is en-
titled, taking care to secure to each of the candidates voted for in the State an equita-
ble representation, as near as may be, in the electoral college, as indicated by the number
of votes returned for each candidate, and the electors thus appointed shall vote for one
of the candidates named for President and one of the canditates named for Vice-Presi-
dent on the ballots cast by the qualified electors of the State at the general election."

In the House of Representatives, February 12, 1869.

QUESTION OF PRIVILEGE.

The Speaker. The House resumes the consideration of the question of privilege
pending at the close of the morning session yesterday, being the resolutions ottered
by the gentleman from Massachusetts, [Mr. Butler.] The gentleman from lUiaois
[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 parti-
san, 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 consider whether we shall vote one man up or another down, bit ever
and under all circumstances we should so vote and act as to uphold principle and vin-
dicate the right. I quote the only provisions of the Constitution aflbrding 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 Representatives to
which the State may be entitled in Congress.

" 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 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."

Who is to count the votes, and who has authority to decide whether the votes were

20 X

312 COUNTING THE ELECTORAL VOTE.

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 interpretation of the Con-
stitution the President of the Senate alone has that power, and that in the exercise of
it he is in no manner subject to the control of the Senate and the House.

Now, that position is manifestly an afterthought, 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 resolntion 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 objec-
tion which was not known at the time of the adoption of the joint resolution, that did
not admit of the vote of Georgia being count( d, 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 prosier according to the confederate and not Fed-
eral Constitution, as is said.

The gentleman from Ohio [Mr. Shellabarger] interprets the provision of the Consti-
tution as to the time when the electors should meet and vote on the same day through-
out the United States as not directory, but express and imijerative, which there can be
little question is the true construction ; therefore the vote of Georgia could not be
counted without disregarding the Constitution. If, then, the concurrent resolution in
regard to counting the vote of Georgia was in conflict with the Constitution, which
■was to be regarded or obeyed, that or the Constitution ?

But it is claimed that the House ■s\'ere estopped from objecting to the vote of Georgia
being counted by the express terms of the resolution 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 resolution, for when the ground of
objection disclosed by the papers was taken, the House voted against the vote being
counted at all, (including both Mr. Bingham and Mr. Shellabarger.) Then here was a
plain case of conflict of opinion between the Senate and the House; and without refer-
ence to the question which was in the right, was it not an assumption of power which
a co-ordinate 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 circumstances ;
and was it not a high-minded proceeding on the part of the President of the Senate to
cut the Gordiau knot by forcing the count through in utter disregard of the objections,
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 conflict between the Senate and the House, or
an erroneous decision, if acting together as a joint convention, does not the gentleman
from Ohio [Mr. Shellabarger] go to the more dangerous extreme when he contends that
the Constitution vests the power to determine what votes shall be counted and what
rejected in the President of the Senate alone ? Was the presiding 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 ftamers 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 Repre-
sentatives of the people.

Mr. Logan. I yield a few minutes to the gentleman from Vermont, [Mr. Wood-
bridge.]

Mr. WooDBRiDGE. It seems to me, Mr. Speaker, that this entire question lies within
a very narrow compass. Section 1, article 2, of the Constitution, and the twelfth
amendment, 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 Representatives, open all the certiiicates, and the votes shall theu be
counted. Not that the President of the Senate shall count the votes, but that he shall
ojien the certificates in the presence of the two houses. Having done this, his power
in the premises, under the Constitution, 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-recoguized 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, binding and valid until repealed.

PROCEEDINGS AND DEBATES IN CONGRESS. 313

and is not, iu my jnclgment, obnoxious to the criticism of the learned gentleman from
Ohio, [^Ir. Shellabarger,] 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 w^ho framed our Constitution. 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. Were the legislative body spectators only, then,
sir, the President of the Senate might pass upon the formality or informality, tlie legal-
ity or illegality of the certificates, and for aught lean see his judgment would be su-
preme, and to him would be left the election of President and Vice-President. 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 Con-
stitution, which is silent upon the subject, it must necessarily be limited, extending
only to the establishment of such rules of procedure as will give full, fair, free, and.
lawful play to the execution of the duty which the Constitution imposes. Hence, the
rule was established that upon the reading of a certificate a member may object to its
reception, and upon a statement 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 perhaps, I may say, by a possibility
disastrous iu its consequences, I cannot see that it is iu conflict with the Constitution.
It is, to say the most of it, only the exercise of what I conceive to be a necessary jxtwer
in an unfortunate numuer. But, sir, passing from tlie rule, I will for a moment con-
sider the joint resolution. I deem that resolution unnecessary and unwise, and had I
been in my seat on the eveniug when it passed the House I should have voted
against it.

TLie joint resolution in its preamble recites that which, respecting the condition of
the State of Georgia, would render the certificate of her election void. The gentle-
man from Massachusetts admits this, but, as I understand him, claims that there were
objections not included iu the preimble, and hence that his poiut was well talien and
should have been entertained by the Presiding Officer, and that the action of the Sea-
ate and of the President thereof upon the return of the Senate to this hall was a vio-
lation of the high privilege of the House and an infringement upon its prerogatives.
Sir, there was oue error and one misfortune iu 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 misfortune 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 ''fortiter in re" iu the character of
the brave old statesuum.

No one, I think, will deny that Congress had the constitutional power to pass the
joint resolutiou. It received tlie sanction of the vote of the gentleman from Massa-
chusetts. The statement in the preamble was sufficient, iu his estimation, to reject
the electoral vote of Georgia. In spite of that fatality he voted to receive the vote
under certain circumstances prescril)ed iu the body of the resolution. But he claims
to have discovered another fatal defect ; 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 tbis unfortunate, and, I may say, disgraceful
collision between 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 construc-
tion is not to be governed by the language of the preamble. The joint resolution
asserts in direct and positive terms 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" —

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 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 iu 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 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."

The only question that could arise, the only objection that could by any possibility
be entertained, was that the couuting of the vote of Georgia changed the result. No
one was foolish enough to raise such an objection. The vote of the Senate, when they

314 COUNTING THE ELECTORAL VOTE.

had retired, tbat tlie 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
dlspufandiim 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 been rendered in a manner more congenial to the
nervous nature and delicate sensibilities of my friend before me, and perhaps 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 Senate in tone and bearing might have been more considerate
and respectful, and while I apprehend that often men are somewhat puffed up by the
enjoyimnt 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
revolutionist by instinct, and also that of my excitable friend from Illinois, who appa-
rently 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 as,
who believe that they will end as a fixrce always ends, they may be of no consequence.
To the country and to the world it is far otherwise. The interests committed to the
hands of the American Congress are too sacred and too vast to be trifled with. Anarchy,
and not consolidation, has caused the downfall of all the republics which have pre-
ceded ours. We have tested our strength in the rebellion through which we have just
passed. The people 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 liberty is not always and necessarily linked to law.

Mr. LooAN. Mr. Speaker, in the few moments I have left I shall not attempt to dis-
cuss all the various questions that have been discussed by the gentlemen who have pre-
ceded 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 twenty-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 contesting, by either of the parties, the election as in
other cases. But in this case I do not propose to discuss that question, nor do I pro-
pose 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 resolution that has been
offered tend directly or indirectly to pronounce judgment 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 resolu-
tion bears beneath its verbiage a sting that will have that effect. Now, I have under-
stood this to be a principle of law, and it certainly should be applicable to rules gov-
erning 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 th.at 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 shows
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 anything 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 be 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 Presid-
ing Officer. Under the joint rules of the two houses, he perhaps had no right to allow
that motion, but inasmuch as it was allowed 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 res-
olution carrying in the remotest degree the sting of a censure which would be felt as
such by that noble and venerable patriot, Benjamin F. Wade.

Now, sir, I have not time, nor, as I said, do I intend to discuss all the questions in-
volved 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 x)n the subject of
my obtaining the floor, I may not do justice perhaps to others in doing 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 flrst introduced by the gentleman from
Massachusetts? [Mr. Butler.] What reason is there for it? It has no application
■whatever to a remedy for the wrong complained of. It does not, nor will it, remedy

PROCEEDINGS AND DEBATES IN CONGRESS. 315

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 bj" its passage.
It does in itself — and no man can read it but that will say that it does — carry the cen-
sure 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 excus-
able ; not by mistake, for that is excusable in law as well as morals, but by design —
that which was intended for the purpose of abridging or trampling 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
ofl'ered. I have heard of no sucli modification.

Mr. Logan. I do not yield for any purpose 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 interrupted I was discussing the question
whether there was anything in the conduct of the Presiding Officer of the joint con-
vention 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 con-
cerned, 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 excuse or
palliation for the conduct that we witnessed, 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 censure whom ? To censure a man in the sixty-ninth year of his age, a mau
who is the Presiding Officer of the United States Senate, a man who was the Presiding
Officerof 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 eld captain of the legions of uni-
versal 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 liowers that wreathe
his manly lirow, and to place a tljoru in the peace of his future existence by passing
this resolution, because he unintentionally did what some conceive to be an uninten-
tional 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 bOru 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 adamant-
ine hills; when many trembled for our future, he was one of the great pillars that
stood for four years in the United States Senate 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 1 To vote that that man trampled upon the rights and priv-
ileges 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 n)ay 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 sun-
light of that old patriot's life, I answer no, sir ; never, never. What ! Censure this
old patriot, who was one of the planters of the great tree of republicanism, 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 ter-
rible storm through which it has passed, strong and upright, you ask — what ? That
the leaves thereof shall thicken and cast their 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 resound or echo from here, that
Benjamin Wade, one of the living patriots of the age, a man loved and admired on
account of his honesty, 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 child-
hood until the present day.

316 COUNTING THE ELECTORAL VOTE.

Mr. Kelsey. Will the geutleman yield to me for a moment ?

Mr. Logan. For what purpose ?

Mr. Kklsey. In the hope that we may have peace. I ask the gentleman from Mas-
sachusetts [Mr. Butler] to withdraw the resolutions that he has submitted, and to
accept in lieu thereof what I send to the Clerk's desk aud ask to have read.

Mr. Farnswokth. I object to the reading.

Mr. Pkuyn. I have a resolution here which I would like to have read.

Mr. Logan. I have no objection to its being read.

Mr. Faknswokth. I object to its being read.

The Speaker pro fenqjore. 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. Farnswokth. I object to its being read unless as a part of the gentleman's
remarks.

Mr. Kelsey. If the gentleman will yield to me, It can be read as a part of my
remarks.

Mr. Farnswokth. I object. No member 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 explanation.

The Speaker pro iempore. The gentleman from New York [Mr. Kelsey] can explain
the matter under consideration in any way that seems to him pertinent and is not con-
trary to the rules.

Mr. Kelsey. Very well ; I ask that the substitute may be read as a part of my re-
marks.

Mr. Logan. I have no objection to that.

The proposed substitute was read, as follows:

" Eesoh-ed, That the subject of an amendment of the joint rules governing the con-
vention 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 Illinois [Mr. Logan] extend the same courtesy
to me, and permit the Clerk to read a resolution I have prepared ?

Mr. MuLLiNS. Aud I will ask to have mine read.

Mr. Logan. Does the gentleman from Massachusetts [Mr. Butler] withdraw his
proposition '! That is what I want to know.

Mr. Butler, of Massachusetts. I answer, that in order that we may get at the ques-
tion 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 busi-
ness of the House.

Mr. Fahnsw ORTH. 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 privi-
leged question what is not privileged. I submit that the resolution offered by the gen-
tleman fr< m New York [Mr. Kelsey] as a substitute is not privileged.

The Speaker ^)ro 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
sufHcieutly germane to be a matter of privilege.

The Speaker ^ro tempore. The Chair will rule upon that point XN'henever the propo-
sition of the gentleman from New York is offered as a substitute for the resolutions of
the gentleman from Massachusetts.

Mr. Pruyn. Will the gentleman from Illinois [Mr. Logan] allow me to have a prop-
osition read 'I

Mr. Logan. I cannot give away all my time. I certainly have been fully as geuer-
ons 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
proposed is not a question of privilege, and I object to its being entertained.

The Speaker jj?-o tempore. The resolution 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 irom Massachusetts, the Chair will rule upon it.

Mr. Garfield. I understood the gentleman from Massachusetts to declare just now
that he modified his resolutions by accepting the proposition of the gentleman from
New York.

The Speaker pro tempore. The gentleman from Massachusetts was not entitled to the
floor for 1 hat inirpose ; he simply expressed his willingness to do so. The geutleman
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 withdrawn. Why? Because

PROCEEDINGS AND DEBATES IN CONGRESS. 317

then tlie whole stinf; would bo taken out of this proceeding. A vote of the House
■would not then be required. But if a vote of this House is to be taken, I do not be-
lieve Miere 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 auy improper motives. I prefer, as I
have just said, lo see the resolutions withdrawn.

Mr. Butler, of Massachusetts. Will the gentleman yield to me for a moment ?

Mr. LoGAX. Yes, sir.

Mr. BuTLEi:, of Massachusetts. Mr. Speaker, the gentleman yields to me a moment of
hi« time.

Mr. LoGAX. For the purpose of withdrawing the resolution.

Mr. BiTLKK, of Massachusetts. In order that there may be no misunderstanding, I
desire to say, as I said yesterday, that I uever have believ^ed, I do not now believe,
that Ben. Wade ever meant to do, or ever did do, intentionally a wroug act. But I do
believe that the privileges of this Hojise have been invaded. That question has been
discusse'l. What is necessary is to have legislation, so that the same thing may never
happen again. Waiving all pride of opinion, announcing distinctly that I never have
censured Ben. Wade, and never meant to censure him for any intentional act of his,
lUHiuraining only that his action, whether under the prompting of the Senate or of
whomever 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 oS the gentleman from New York [Mr. Kel-
sey] as a substitute, if such be the judgment of the House.

Mr. Farxsworth. 1 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 modified at the present time.

Mr. Farxswortii. I wish to understand whether the resolutions have been modified
in the manner proposed.

The Speaker jjro tempore. Is the Chair to understand that the gentleman from
Massachusetts has modified his resolutions as indicated by the gentleman from New
York ?

Mr. Bui'LER, 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. BuTLEK, 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 ofter his proposition as a substitute ?

Mr. Butler, of Massachusetts. To oifer his as a substitute — any way to get out of
the matter.

The Speaker pro tempore. The Chair rules that the oifer of the resolution of the gen-
tlemau from New York as a substitute for the resolutions of the gentleman from Mas-
sachusetts 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 tiie words of the
resolution of the gentleman from New York, that reduces it to a resolution, not to one
of jirivilege. But the substitute can be moved as an amendment.

Mr. Farxswortii. 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 can-
not 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. Farxs^worth. 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 resolutions, as they have been modified
by the gentleman from Massachusetts, read as follows :

^'Resolved, That the House protests against the manner of procedure and the order
of the President of the Senate ^^ro 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.

"Eefiotred, That the above resolution be, and hereby is, referred to a select com-
mittee of five, with leave to report at auy time, and report by bill or otherwise."

Now, the substitute provides that all the rules in reference to this subject shall be
referred 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 convention were jjroceedings 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.

318 COUNTING THE ELECTORAL VOTE.

Mr. Farnsworth. I appeal from that decision of the Chair.

The Speaker jjro 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 decision of the Chair stand as the judgment of the House 1"

Mr, Kelsey. I move that the appeal be laid on the table.

Mr. Wilson, of Iowa. I demand the yeas and nays on the motion to lay the appeal
on the table.

Mr. Logan. I desire to know how I have been taken off the floor.

The Speaker jjco tempore. The gentleman 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 I'esolution having been
offered, the gentleman from Illinois, upon the right of the Chair, rose to a poiut 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. SciiENCK. I rise to a question of order. I wish to know whether we are to be
compelled to vote on the apjjeal 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 resolutious have not.

The Speaker jj>o tempore. They will be^-ead.

Mr. Logan. I ask the gentleman to withdraw his appeal and point of order until I
have finished my remarks.

Mr. Farnsworth. 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, Logan. It is not very generous of my colleague to refuse ; that is all I have to
say.

The resolutions of Mr. Butler, of Massachusetts, as modified yesterday, were again
read.

Mr. Allison. I desire to have the original resolutious offered by the gentleman from
Massachusetts read. I do not understand that those just read are before the House.

The Speaker 2^70 tempore. It is in the power of the gentleman from Massachusetts to
modify his resolutions at any time before action has been taken upon them. The Chair
understands him to have modified them to the form in which they have now been read.

Mr, Garfield, He modified them as part of his remarks.

The Speaker jjj'o tempore. The resolutious, as modiSed, 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 motion to lay the appeal on the table.

The question was taken ; and it was decided in the affirmative — yeas V.M, nays
41, not voting 51, as follows :

Yeas — Messrs. Delos E. Ashley, James M. Ashley, Astell, Baldwin, Banks, Benjamin,
Benton, Blaine, Blair, Boles, Boutwell, Bowen, Bromwell, Buckley, Benjamin F. Butler,
Roderick K. Butler, Cake, Churchill, Reader W, Clarke, Sidney Clarke, Clift, Cobb,
Cornell, Covode, Cullom, Deweese, Dickey, Dixon, Dockery, Donnelly, Driggs, Eckley,
Ela, Thomas D. Eliot, James T, Elliott, Ferriss, Ferry, Fields, French, Goss, Gove, Gris-
wold, Halsey, Hamilton, Hardiug, Haughey, Hawkins, Heaton, Higby, Holman, Hooper,
Hopkins, Chester D. Hubbard, Hulburd, Hunter, Ingersoll, Jenckes, Alexander H. Jones,
Judd, Kelley, Kellogg, Kelsey, Ketcham, Kitchen, Lalliu, Lash, William Lawrence, Lin-
coln, Loughridgt', Lyuch, Maynard, McCarthy, McCormick, McKee, Miller, Moore, Mor-
rell, Mulliiis, Ncwsham, Norris, Nuun, O'Neill. Ortli, Paine, Perham, Peters, Pettis, Pike,
Poland, Pomeroy, Price, Prince, Pruyn, Randall, Raum, Robertson, Roots, Ross, Sawyer,
Scheuck, Scotield, Shanks, Shellabarger, Smith, Spalding, Starkweather, Stevens, Stew-
art, Stokes, Stover, Sypher, Taffe, John Trimble, Trowbridge, Twichell, Upson, Van
Aernam, Burt Vau Horn, Robert T. Van Horu, Van Wyck, Ward, Cadwalader C, Wash-
burn, Henry D, Washburn, William B, Washburn, Welker, Whittemore, John T, Wilson,
Stephen F, Wilson, Wiudom.W^oodbridge, and the Speaker — 131,

Nays — Messrs. Archer, Baker, Barnes, Barnum, Beaman, Beatty, Beck, Biugham, Boy-
den, Boyer, Broomall, Bucklaud, Cary, Chauler, Eggleston, Farnsworth, Garfield, Getz,
Golladay, Grover, Hotchkiss, Johuson, Thomas L. joues, Kerr, Kuott, Koontz, George V,
Lawrence, Mallory, Moorhead, Mungeu, Niblack, Nicholson, Pheljjs, Pile, Plants, Sione,
Van Trump, Thomas Williams, James F, Wilson, Wood, and Woodward — 41,

Not voting — Messrs, Adams, Allison, Ames, Auderson, Aruell, Bailey, Blackburn,
Brooks, Burr, Callis, Coburn, Cook, Corley, Dawes, Delano, Dodge, Edwards, Eldridge,
Fox, Glossbrenner, Gravely, Haight, Hill, Asahel W, Hubbard, Richard D, Hubbard,
Humphrey, Julian, Loan, Logan, Marshall, Marvin, McCuUough, Mercur, Morrissey,
Myers, Newcomb, Pierce, Polsley, Robinson, Selye, Sitgreaves, Taber, Taylor, Thomas,
Tift, Lawrence S, Trimble, Van Auken, Vidal, Elihu B, Washburne, William Williams,
and Young — 51.

PROCEEDINGS AND DEBATES IN CONGRESS. 319

So the appeal was laid on the table.

Mr. Farnsworth. I now move to lay the resolutions on the table.

The Spkakkk j;ro tempore. The gentleman's colleague [Mr. Logan] is entitled to the
floor for live 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 complaint 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 reference to what I shall do in this
case.

Mr. Farnswortit. Will the gentleman

Mr. Logan. I decline to yield any further. I have never before known an act of
generosity turned into an act, I will not say of unkiudness, 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 that I am entitled to any,
nor indeed do I care about that. The position of the question is such now that it cer-
tainly does give evidence to ev^erybody 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 concluded that excitement should cease;
I have coucluded that discussion should cease ; and I believe that the best way and the
only in-oper 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 oftar a resolution that is discotmected entirely with this reso-
lution, and let it be passed at some time, if the House sees proper, or let the matter be
referred to a committee.

I have coiue to that conclusion from what I have seen of the disposition of members
here. There is excitement on both sides unnecessarily, I think; but it is the case, and
it is unavoidable, ami there is no other remedy for it. The first resolution being a
resolution of censure— whether so intended or not — the subsequent propositions, the
substitutes and amendmeuts, 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 Massachusetts [Mr. Butler] says, that he is a
friend of Mr. Wade ; he has no reason to censure him. He has no disposition to cen-
sure him. Hence I say to him, and to everybody else in this House who has no disposi-
tion 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 difficulty without charging any one with having intentionally done
wrong.

I said that I would not argue the constitutional and legal question. I am only rea-
soning in reference to our duty under the circumstances. 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. Warp. 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 agree-
ment 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 yester-
day I gave thirty minutes of my time to other gentlemen, 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. Ward] and my colleague from Illinois [Mr. Bromwell]
a chance to speak, inasmuch as the Speaker was disposed to give them the Uoor. But
inasmuch as gentlemen have taken me off my feet, aud 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 reference to the dictation of anybodj^ 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
monopolized 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 jiermitted to finish my remarks, I will be very much

320 COUNTING THE ELECTORAL VOTE.

obliged. I will say to the gentleman from New York [Mr. Ward] that it is certainly
out of oriler 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 riglit to give a warning to the House or to dic-
tate to the House ; but, as a member of the House, I have a right to appeal to the mem-
beis of this House, and I do ask them to reflect, as ool, honorable, just men, who
would not knowingly 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. PiLK. On that motion I call for the yeas and nays.

Mr. Bkomwell. I would like to ask my colleague [Mr. Logan] a question.

Mr. Bingham. I object; it is too late.

Mr. Wii,soN, of Iowa. I call for the regular order of business.

The Speaker j^ro 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 resolutions, together with the proposed substitute,
be read.

The resolutions submitted by Mr. Butler, of Massachusetts, as modified by him ou
yesterday, were read, as follows :

" Besoired, That the House protests against the manner of procedure and the order
of the President of the Senate jjro 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.

" Resolved, That the above resolution be, and hereby is, referred to a select com-
mittee of five, with leave to report at any time, and report by bill or otherwise."

The substitute proposed by Mr. Kelsey was read, as follows :

" Resolved, That the subject of an amendment of the joint rules governing the con-
vention of the two houses of Congress for-the purpose of counting 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 any time."

The question was then taken upon the motion to lay ou the table ; and it was decided
in the affirmative— yeas 130, nays 5.5, not voting 38 ; as follows :

Yeas — Messrs. Allison, Ames, James M. Ashley, Baker, Barnes, Barnum, Beaman,
Beatty, Beck, Benjamin, Bingham, Blaine, Bovvcn,"Boyden, Boyer, Broomall, Buckland,
Buckley, Burr, Roderick R. Butler, Cake, Callis, Gary. Chanler, Churchill, Reader W.
Clarke, Cobb, Coburu, Cornell, Dawes, Deweese, Dixon, Dockery, Dodge, Eckley,
Eggleston, .Tames T. Elliott, Farnsworth, Ferriss, Ferry, Garfield, Getz, Glossbreuuer,
Griswold, Halsey, Haughey, Hawkins, Heaton, Holman, Hooper, Hopkins, Hotchkiss,
Chester D. Hubbard, Hulburd, Hunter, Jenckes, Johnson, Alexander H. Jones, Judd,
Kelley, Kellogg, Kerr, Ketcham, Kitchen, Knott, Koontz, Lafiin, Lash, George V. Law-
rence, William Lawrence, Lincoln, Logan, Loughridge, Mallory, Marvin, McCarthy,
McCorniick, Miller, Moore, Moorhead, Morrell, Newcomb, Newsham, Niblack, Nicholson,
Norris, Nunn, O'Neill, Orth, Paine, Perhani. Peters, Pettis, Phelps, Pile, Plants, Poland,
Polsley, Pomeroy, Price, Pruyn, Randall, Raum, Robertson, Sawyer, Soofield, Sbellabar-
ger. Smith, Spalding, Starkweather, Stewart, Stokes, Stone, Taylor, Thomas, Twichell,
Upson, Van Aernatn, Van Auken, Burt Van Horn, Van Trump, Cadwalader C. Wash-
burn, William B. W.ashburn, Welker, James F. Wilson, John T. Wilson, Wood, Wood-
bridge, Woodward, and the Speaker — 13D.

Nays— Messrs. Archer, Delos R. Ashley, Axtell, Baldwin, Banks, Benton, Boutwell,
Bromwell, Benjamin F. Butler, Sidney Clarke, Clift, Corley, Cullom, Dickey, Donnelly,
Driggs, Ela, Eldridge, Thomas D. Eliot, Fields, Golladay, Goss, Gove, Grover, Haight,
Hamilton, Higby, Ingersoll,ThomasL. Jones, Julian, Kelsey, Lynch, Mar.shall, Maynard,
McKee, Mullins, Mungen, Pierce, Pike, Prince, Roots, Ross. Scheuck, Shanks, Stevens,
Stover, Sypher, TafiPe. John Tiimble, Trowbridge, Robert T. Van Horn, Van Wyck,
Ward, Henry D. Washburn, and Whittemore — 55.

Not voting— Messrs. Adams, Anderson, Arnell, Bailey, Blackburn, Blair, Boles,
Brooks, Cook, Covode, Delano, Edwards, Fox, French, Gravely, Harding, Hill, Asahel
W. Hubbard, Richard D. Hubbard, Humphrey, Loan, McCuUough, Mercur, Morrissey,
Mvers, Robinson, Selye, Sitgreaves, Taber, Tifc, Lawrence S. Trimble, Vidal, Elihu B.
W'ashburue, Thomas Williams, William Williams, Stephen F. Wilson, Windom, and
Young — 38.

So the motion to lay the resolutions and proposed substitute on the table was agreed
to.

During the call of the roll,

Mr. Halsey said: My colleague, [Mr. Hill,] has been called home ou 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, Eldkidge, Ou that motion I call for the yeas and nays.

PEOCEEDINGS AND DEBATES IN CONGEESS. 321

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 ordering the yeas and nays.

The question was taken upon ordering tellers ; and there were twenty-five in the
affirmative.

So (the affirmative being more than one-fifth of a quorum) tellers were ordered ;• and
Mr. Eldridge and Mr. Farnsworth were appointed.

The House agaiu divided ; and the tellers reported that there were— ayes thirty-two,
noes 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 voting 53 ; as follows :

Ye\s— Messrs. Allison, Ames, Delos R. Ashley, James M. Ashley, Baker, Barnes, Bar-
num, Beaman, Beatty, Beck, Benjamin, Bingham, Blaine, Boles, Boutwell, Boyden,
Boyer, Broomall, Bnckland, Buckley, Burr, Roderick R. Butler, Cake, Callis, Gary, Chan-
ler, Churchill, Cobb, Cornell, Cullom, Dawes, Deweese, Dixon, Dockery, Dodge, Eckley,
Thomas D. Eliot, .James T. Elliott. Farnsworth, Ferriss, Ferry, Fields, Garfield, Getz,
Glossbreuner, Griswold, Haughey, Hawkins, Heaton, Holmau, Hooper, Hopkins, Hotch-
kiss, Chester D. Hubbard, Hulburd, Hunter, Jenckes, .Johnson, Alexander H. Jones,
Judd, Kelley. Iverr, Ivetcham, Kitchen, Ivnott, Ivoontz, Lafiin, Lash, George V. Lawrence,
William Lawrence, Logan, Loughridgc, Mallory, Marvin, McCarthy, McCormick, McKee,
Miller, Moore, Moorhead, Morrell, Niblack, Nicholson, Norris, Nunn, O'Neill, Orth, Paine,
Perham, Pettis, Phelps, Pile, Plants, Poland, Polsley, Pomeroy, Price, Pniyn, Randall,
Eanm, Robertson, Sawyer, Scofield, Sbellabarger, Smith, Spalding, Starkweather, Stew-
art, Stokes, Stone, Taylor, Thomas, Twichell, Upson, Van Aernam, Van Auken, Burt Van
Horn, Van Trump, Vidal, Cadwaiader C. Washburn, William B. Washburn, Welker,
Thomas Williams, James F.Wilson, John T. Wilson, Wood, Woodbridge, Woodward,
and the Speaker — 129.

Nays— Messrs. Archer, Axtell, B.aldwiu, Benton, Blair, Bromwell, Benjamin F. Butler,
Sidney Clarke, Corley, Dickey, Donnelly, Driggs, Eldridge, Golladay, Goss, Gove, Grover,
Haight, Hamilton, Higby, lugersoll, Thomas L. Jones, Julian, ICelsey, MuUins, Mungen,
Newcomb, Newsham, Pike, Roots, Ross, Schenck, Shanks, Stevens, Stover, Sypher, John
Trimble, Trowbridge, Robert T. Van Horn, Van Wyck, and Whittemore — 41.

Not VOTING — Messrs. Adams, Anderson, Arnell, Bailey, Banks, J^lackburn, Bowen,
Brooks, Reader W. Clarke, Clift, Coburn, Cook, Covode, Delano, Edwards, Eggleston,
Ela, Fox, French, Gravely, Halsey, Harding, Hill, Asahel W. Hubbard, Richard D. Hub-
bard, Humphrey, Kellogg, Lincoln, Loan, Lynch, Marshall, Maynard, McCullough, Mer-
cur, Morrissey, Mvers, Peters, I^ierce, Prince, Robinson, Selve, Sitgreaves,Taber, Tafife,
Tift, Lawrence S. Trimble, Ward, Elihu B. Washburne, Henry D. Washburn, William
Williams, Stephen F. Wilson, Windom, and Young — 51?.

So the motion to reconsider was laid on the table.

evening session.

In the House of Representatives,

Febntanj 13, 1869:
counting the electoral votes.

Mr. Boutwell. Mr. Chaii-man, the events of the present week have revived some old
questions connected with the j)owersof 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 occasion to go by without express-
ing the views which I entertain. I may say, however, that the importance of the
events thiough which we have just passed is, in my mind, not due to the manifestations
that took place on the floor of tbis 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 throngh the instru-
mentality of the Senate, was due chiefly, if not wholly, to errors and mistakes which
did not involve any jiurpose upon the part of anybody to invade the rights or to im-
pair the privileges of this House. The difficulty, I think, was largely due to tbe cir-
cumstance that when objection was made to the couuring of the vote of Georgia, and
when the Senate had retired to its own chamber, this House did not comprehend
the purpose 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 res-
olution adopted by the Senate during its absence from tbis 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 of the
electors for the State of Georgia are not in order."

322 COUNTING THE ELECTORAL VOTE.

This was the result reached by the Senate, aud it appears to have been the chief sub-
ject-matter of its deliberations. But in this House we voted upon the question whether
the electoral vote of Georgia should be counted. The declaration of tlie 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 gentleman 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 col-
league ; aud if there had not been that difference of understanding, which did not
imply any improper purpose on the part of anybody, I have no idea that any consider-
able excitement would have occurred.

I do not, however, discuss this matter now for the purpose of considering the events
of the past w-eek in this particular. My honorable friend from the seventh district of
Ohio, [Mr. Shellabakger,] in the very able speech that he made in the recent debate,
took aud 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 him-
self 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
ns, and in similar circumstances may be called upon to examine what was done upon
this occasion, an impression that he was of the opinion upon the whole that the duty
of counting the votes of the electors for President and Vice-President is committed ex-
clusively to the President of the Senate.

Mr. SiiELLAisARGER. In the absence of legislation.

Mr. BouTWELL. Well, I differ from my friend on that point; and it is chiefly on
account 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 im-
pressed with the necessity of making some sort of protest, however weak or inefficient,
against that proposition. I cannot concede that we have a constitution that has con-
fided to one man the custody of the fortunes of this country when it is passing through
the most critical moment of its existence; 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 national 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 inter-
fere 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 sec-
ond Wednesday of February, 1861, John C. Breckinridge, then Vice-President of the
United States and President of the Senate, sat in that chair. 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, anticipat-
ing possibly a declaration on his part inconsistent with the perpetuity of this Govern-
ment. When I reflect that this couutry has passed through such a trial I cannot con-
ceive of any doctrine more dangerous in its inculcation than the doctrine that to the
President of the Senate is contided 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 just, to
be necessary, to give to the Constitution 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. Shkllabarger. I ask the gentleman to yield to me.

Mr. BouTWELL. Certainly, for correction.

Mr. Siiellabakger. I ask that my statement shall not be taken out of the time of the
gentleman IVom Massachusetts.

There was no objection ; and it was ordered accordingly.

Mr. SiiELLABAiiGEK. My friend from Massachusetts has done me the kindness to
allude to the position I occupied on this question, 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 convictions 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 f .ir— to adopt the exact word 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 Constitution ; 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 legislation is needed. As in every case of that character, where

PROCEEDINGS AND DEBATES IN CONGRESS. 323

there is a casus omissus it is competent for legislation to snpply the omission, and in
this Ci'se to provide the very instrumentalities that shall do the conntiug, and the
regulations by which the result and the legality of the election shall be determined.

The next thing I desire to state is this : this is in fact a recognized infirmity or over-
sight 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 te exercised by the President of the Senate fairly in the presence of the two
houses. That is all I desire to say.

Mr. Thomas. I ask my friend from Massachusetts 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
elaborately discussed, not in open session of Congress and not in a mode that has left
any record 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 authoiizcd to count the
votes in the presence of the 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 to. The sources from whence they came must first
be inquired into before you can count them as votes. By what process could the Presi-
dent of the Senate reach the elucidation of that difficulty ? Where is he clothed with
the necessary power ? The law-making power, and the law-making power alone, can
prescribe the mode and manner in which the inquiries are to be which lie necessarily in
your path before you can count the vote. Could the Vice-President go behind and in-
quire into the character of the laws of the several States where the electors are chosen ?
Has he the right to inquire whether the electors have voted in conformity to the Con -
stitutiou 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 necessarilj' when
we spoke of counting the votes it was the duty of the law-making power under the
Constitution 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 re-open this question. It was under-
stood 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
members 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 Mas-
sachusetts will in the next Congress follow up this subject and by law deliberately
guard against a recurrence of such scenes as we recently passed through, he will ren-
der a great service to the whole country.

Mr. BouTWKLL. I wish to have the opinions expressed by the gentleman from Ohio
[Mr. Shellabarger] precisely as he presents them ; for my object is not to engage in,
much less to provoke, any discussion with him or anybody else upon this point, but to
do something, if I may, to enable the countrj' to arrive at what seems 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 interpretation of a great power in the Con-
stitution 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 consider, namely, the constitutional power of the Senate and House of Represent-
atives to count the electoral votes of the several States. The provision of the Con-
stitution is very simple. It says merely that the President of the Senate, in the

324 COUNTING THE ELECTORAL VOTE.

presence of the Senate and House of Eepresentatives, 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. Is it made the duty of the electors to return their cer-
titicates to him ; it is then made his duty, in the presence of the Senate and House of
Eepresentatives, to open the certificates, and the votes shall then he counted. Can
there be any doubt that when he has exercised the power which is specifically conferred
upon him his power is exhausted ; that he has nothing further to do except to announce
the vote ?
A Memhek. How could he announce it without counting?

Mr. 13ouT\VELL. I will show how he could. The votes shall then be counted. First,
what is counting the vote ? Is it merely looking at the certificates of the electors
and ascertaining what is written upon those certificates and for whom the votes of the
electors have been given ? Sir, I do not put such an interpretation lapon 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 substitute 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 ascertaiu whether all the proceed-
ings have been right, or wliether by some fraud or misconduct or error the certificate
has been vitiated. If there be not this power somewhere, 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 imposed in the matter of counting the votes,
the next inquiry is, upon whom is this dnty imposed ? I say, first, by the language of
the Constitution it is not imposed ufKin the President of the Senate. I s;iy, in the nest
place, that there is given to the President of the Senate by the Constitution no power
.by which he could institute the necessary inquiries and the proper scrutiny by which
be 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 Senate, where by
the necessity of the case must it be ? It must be in the two houses of Congress. This
■work of opening the certificates is to be in the presence of the Senate and the House,
and the vote is tbeu 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 to the House of Representatives correctly what is written
upon the papers called certificates which he opens in their presence ? Is that enougli
to secure the people of this country against fraud, wrong, accident, 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 Constitution is unavoidably made the
duty of somebody to do — to see that tbe votes which are counted are real votes ? By
that I mean whether what is written upon the paper expresses the opinion which the
people have given. Not only have tlie Senate and House of Representatives the power,
but there is no other department of the Government that is clothed with that power.
The President it not clothed with the power by any possible construction of the Con-
stitution; the Supreme Court is not clothed with the power; there is no governmental
instrumentality that can be named that has this power except the Senate and the House
of Representatives. We all agree that unrler some circumstances this power 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 frooi 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. Sa 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 the House, and the tellers who repre-
sented 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 understand, from the beginning of the Government, that the Senate and the House
of Representatives have actually counted the votes.

Now, then, what has been the course of the two branches of the Government in an-
other particular which bears distinctly upon the powers and duties of the two houses
in reference to this business ? In 1821, on the occasion alluded to by the venerable and
honorable gentleman from Maryland, [Mr. Thomas,] under the lead of Mr. Clay, a
resolution was passed in reference to the State of Missouri in terms precisely like that

PROCEEDINGS AND DEBATES IN CONGRESS. 325

■which we passed in reference to the State of Georgia. If you will analyze the resoln-
tious you Avill see that they contain an assertion of power to investigate the circum-
stances attending the elections in Georgia and in Missouri, for both of those resolu-
tions 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
assertion of that power is an assertion of all the power for which I contend ; which is
that the Senate and House of Representatives, in exercising the power and performing
the duty derived from the Constitution, and sanctioned by the uniform practice from
the beginning of the Government till now, of counting the electoral votes through
oflScers 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
ascertainiug whether the proceediugs 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 tlie election of a President and Vice-President 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
between 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 Avith the gentleman from Ohio [Mr. Shc'llabarger] that
there is a casus omissus in the Constitution. It being established, as I think it is
established, that the Senate and 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 Congress 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 Government if the United States, or in any Department or otlicer thereof."
This power is ample for every contingency. Further, the wisdom of the Convention
which framed the Constitution is shown in tlie omission to prescribe the details of
duty or to set forth specifically tbe 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 suggest or require.

And this brings me to the consideration of a circumstance which occurred on the
floor of this House, and which, when it occurred, disturbed uie more than any other
circumstance in my political experience. Upon objection to the vote of Georgia being
made by my colleague, [Mr. Butler,] the Speaker, acting under the twenty-second
rule, put this question to the House, " Shall the vote of Georgia be counted ? " By tbat
rule, as it stands in the Manual, the vote of Georgia was not to be counted if either
house declared tliat it should not be counted.

When the resolutions submitted by my colleague [Mr. Butler] were under considera-
tion, containing or implying a censure upon an officer of another branch of the Govern-
ment, I reached the conclusion that I could not vote for them. But when he modified
them by accepting a resolution authorizing a committee to inquire whether any amena-
ment to the joint rules was needed, I was anxious that the resolutions should pass, lor
the purpose of bringing before such a committee the danger 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 Estate of
be counted ?" but " Shall the vute of the State of be rejected f ' In my judg-
ment, this difference in the form of the question is all the ditiereuce between peace,
harmony, and quiet in some future ditiiculty like that through which we have just
passed, on the one side, and disorder, anarchy, and revolutiDU on the other. If in a
great political excitement the vote of a State should be rejected by the action of one
house of Co igress, the other house not concurring in thac action, no man can foretell
the results that would flow from the proceeding. The trouble would not arisa neces-
sarily because the rejecting vote had been a wrong vote. All these evils might happen
if the rejection of tlie 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 Government that under our system are expected
to co-operate in tie 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 de-

326 COUNTING THE ELECTORAL VOTE.

cisioa 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 judg-
ment of the other.

Mr. Shellabakger. I would ask my friend if I understood him correctly to contend
that this couutiug 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," investiga-
tion, exploration of the legality, &c., 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 coming 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. BouTWELL. I say that, as antagonizing 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 f

Mr. Shellabarger. I now, perhaps, understand the gentleman better. That partic-
ular form of putting the vote is an important matter, arising, as I understand the gen-
tleman, out of the twenty-second joint rule and the practice under it. But the Consti-
tution does not drive us to such a method of voting nor confine us to that way of find-
ing 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 Representatives nor the Senate, would have the
power to act aftirmatively 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 aa
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 beginning 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 Georgia was copied, led in the assertion of a
principle which is sulficieut 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 expressed by the certifi-
cates 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 Constitu-
tion, to proceed in such a manner as honestly to execute the duty which is imposed
upon them by the Constitution. I say further that the duty imposed upon them by
the Constitution cannot be executed safely under this twenty-second rule if the ques-
tion is to be put as it was put by the Speaker of the House on Wednesday, 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 successors, 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 ouce that they are not to act together as a joint body.
The reason for separate action is to be found iu the nature of the case. If there should
be a failure to elect a President, the power to elect devolves upon the House of Repre-
sentatives. Now, if the House of Representatives, for example, were constituted with
as large a majority in fiivor 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 antago-
nistic 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, we have to consider that in no other particular is there any
ground to assume that the two houses are to act as one body. In addition 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 actiu;: jointly. It is said in the Consti-
tution that " the votes shall then be counted," 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
separate. 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 decided. But when

PKOCEEDINGS AND DEBATES IN CONGRESS. 327

the President of the Senate comes in and says the jadgment of the Senate is that
the vote of Georgia shall be counted, and also that the judgment of the House of Rep-
resentatives 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 per-
son for Vice-President, the prima-facie case, as we say, is that the transaction was an
honest transaction, and the certificate is a faithful report of the result reached. It is
for those who deny it to overthrow t\iQ 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 expressed independently that there is fraud or error so as
to vitiate the certificate, and the opinion of the House of Representatives, expressed
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. SriKLLABARCiER. 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 Repre-
sentatives refuses to decide it.

Mr. BouTWELL. How do we know whether the vote is fraudulent ? Only by the de-
cision of those who are to judge of it. The 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 suf3ficient rea-
sons for so doing, and the Senate refuses to concur, the vote must be counted. Noth-
ing can be done without the concurrence of the two branches of Congress. Under the
Constitution and for tlie safety of the country the vote of everj- State must be counted
unless the Senate and House by a concurrent vote declare that it should be rejected.

COUXTING THE ELECTORAL \OTES.

Mr. Broomall. Mr. Chairman, I agree with the gentleman from Massachusetts who
has just addressed the committee [Mr. Boutwell] that the questions which the res-
olution of his colleague [Mr. Butler] of Wednesday last indirectly brought before the
House an<l into the discussion can hardly be overestimated in their importance to our
national future. The substitution of one Executive for another, which our system of
government requires to be done so frequently, must always be a dangerous operation
nuless the mass of the community believe it to be done fairly and in conformity with
pre-existing laws. Hence the necessity of foreseeing every possible question that may
arise upon which there may be honest difference of oi)iuiou and providing for its set-
tlement beforehand by legislative enactment or by constitutional provision.

If the right of a State to have its electoral votes counted at any election should be
a question upon which the thinking men of the country 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 produce 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 ax^preciate the
danger and to guard against it if possble.

I have purposely limited my view of the danger to the case of an honest differ-
ence 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 candidate. 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
an exception to this. If the States are sovereign and the Union a mere agency for the
performance of certain limited functions, the South had a right to secede at any time ;
and this doctrine was the teaching of the dominant party of the country for more than
half a century. I shall, therefore, limit myself to such questions as may fairly divide
the commuuily in opinion, and shall inquire what they are, and what means the Con-
stitution has placed in our hands for providing a mode of settling them before the
time of counting the votes, and in a manner to be acquiesced in by the people.

The (juestions naturally divide themselves into two classes : first, those wliich touch
the riglit 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 elect-
oral votes.

Tae provisions of the Constitution are :

21 X

328 COUNTING THE ELECTORAL VOTE.

"Each State shall appoint, iu such manner as the leoislatnre thereof may direct, a
number of electors equal to the whole number of Senators and Representatives to
which the State may be entitled in Congress. The electors shall meet in their re
siiective 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 persons
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 tlie 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."

It is apparent that there is much le'ft here for legislation. In the first place, what
is or is not a State is not determined l)y the Constitution 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 de-
cide 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, therefore, 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 rejected, but simply stated. In doing so we
followed the precedent set in 1821, and repeated in 1H33. It is much to be regretted
that such precedent was ever established. It would have been better to meet the qites-
tion in the case of Missouri in 1821 boldly, and give it a legislative decision. Such
questions are liable to be presented 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 particular
candidate. When such a question will not atfect the result it is much more likely to
be determined justly, without party prejudice or jjartiality, than when it is vital. Every
such settlement ail'ords a precedent for future similar cases, and many such will famil-
iarize the people with the principles upon which they are determined ; and when a
case shall arise in which the decision shall afl'ect 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 legisla-
ture, or they may be elected by the people under State laws. The latter plan is now
almost universal. Here an important question arises. P)y whom and in what man-
ner are contested elections of electors to be determined? By Congress? I have
failed to see any warrant in the Constitution for such a conclusion. The electors are
distinct bodies, charged with particular functions, totally independent of Congress.
Their business is not legislation. Their powers are not derived from law, but Constitu-
tion. Laws prescribe the time and manner of performing them, but nothing more.
Congress may decide, as I have said, whether or not the State exists, because that is
legislation. But granting the State, it would seem to be just as rational 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 legislation, it would seem that the electors in
each State shall decide who are members of their own body. But this mode of settle-
ment, though good in theory, is utterly worthless iu practice. The electors in each
State are elected by a general ticket. Each party has its set of candidates, 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 claim-
ing 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 ditferent
candidates will present themselves, each claiming to be the one to be counted.

Here is the true casus omissus, but it seems to me to be rather in law than in Consti-
tution. 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 manner 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 ap-
jiointed in the manner directed by the legislatures of the States. If Congress had been
clothed with the power of directing iu what manner the electors should be appointed,
nobody would hesitate to affirm that Congress should prescribe the means of ascertain-
ing 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

PROCEEDINGS AND DEBATES IN CONGRESS. 329

to the State legislatures. I a.ra, therefore, clearly of the opiuiou that the Coustitutiou
has left the whole matter of devising meaus to determiue who are aud who are not
electors to the States themselves. If I am right iu this, it is to be regretted that uo
State, as far as I know, has as yet performed this duty, since uo man can tell how soon
a contest in a single Stare may be sufficient to change the apparent result of an elec-
tion, 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 meaus to settle the question, I am not pre-
pared to say that Congress might not determine which is the true oue. 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 coutingency may be
avoided.

Thirdly, the certificates are to be opened by the President of the Senate in the pres-
ence of the Senate and House of Representatives, "and the votss shall then be counted.' '
By whom and in what manner, the Constitution does not provide. This, therefore, is
left to legishitioa ; and as the States are intrusted with no duties and clothed with no
powers ill the premises, after the casting of the electoral votes and forwarding the cer-
tificates, there is uo difficulty in determining that this legislation must emauate 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 i)reviously enacted law.

The act of 1792, the only one upon the subject, 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 iu uo way pertains to
the government of the two houses. The same objection lies to the concurrent resolu-
tion passed a few days ago with respect to the State of Georgia, that it is not law,
but merely in effect a joint rule adopted for the particular occasion. This, however, is
not material in the present instance. 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 : Wliat is the position, what are the powers aud
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 upou the
resolutions of the gentleman from Massachusetts, by what I conceive to be a
misnomer ; most of the gentlemen who addressed the House spoke of the persons assem-
bled at the counting of the electoral votes as a joint convention. This is a great mis-
take. 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 con-
vention ; but " iu the presence of the Senate and the House of Representatives." This
necessarily requires thorough, complete, and separate organization of each body, each
having its own presiding officer, its own sergeant-at-arius, 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 i)roviding for the meeting of the two houses, "the
President of the Senate shall be their Presiding Officer." But a joint rule cannot
change the Constitution ; 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 ujjou a single person to preserve order
within the hall. In this sense, and in this only, they may be said to have a single
Presiding 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 cau perform that duty and such others
liert^ning thereto as may be put upou 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 ! How could such an appeal be decided ?
Not surely by the joint body, fur there was no joint body there. Not by the two houses
separately, for the President of the Senate could put no question to the House. Be-
sides, the House could only entertain an aiTpeal from the decision of its own presiding
officer, the S|)eaker. I repeat, how absurd was the idea of such an appeal, and what
downright folly was it for the same gentleman to propose iu the House afterward to
censure the President of the Senate for not entertaining the appeal! The House very
properly laid the whole subject upou the table by a large vote, though the proposition
had been greatlj^ modified aud purged of much 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 Hou.se 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 assem-

330 COUNTING THE ELECTORAL VOTE.

bled powerless to prevent a wrong ? Are we afc the mercy of a single iudividual ?
Suppose the President of the Senate 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 liappen when Mr. Breckinridge was at the
same time President of the Senate and consinrator in a projected rebellion. But sup-
pose anybody else should violate the law, let the law punish him and redress the wrong.
If the malefactor is Vice-President, impeach and remove him at once; if simply Presi-
dent of the Senate, let the Senate dei>ose him and appoint another.

In conclusion, I would submit the following : 1. Let the provisions of the joint rule
for appointing 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 elect-
oral votes, remain unsettled until the day of counting, even though the settlement
may not affect the result. Let the status of every State be unmistakably fixed by
previous legislation founded upon principles that may give rise to a series of prece-
dents acquiesced in and approved by the community ; and 3. Let the legislatures of the
several States provide the means for settling cases of contested elections of electors.
This could be much more readily done if the electors were elected in separate districts.
It is objected, however, that the ruling party in a State may so district the State as to
give it an undue advantage. This efvil, however, is of limited scope, and experience
shows that the attempt to get this advantage very frequently 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 opposite wrongs a
general resultant of right may be obtained.

In the Committee of the Whole on the state of the Union, on the resolutions that
the House protest against the counting of the vote of Georgia by order of the Vice-
President j)ro tempore,

Mr. Bromwell said:

Mr. Chaikmax: The matter upon which I rise to speak to-night is that which le-
cently created so much disturbance in this hall, i wish, before speaking of the more
important questions involved, to call attention to the particular matter which occa-
sioned 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 tloor, and stigmatized by two gentlemen from Ohio
as the violence of a mob, or an exhibition of the spirit of hell, arose upon an appeal
taken by the gentleman from Massachusetts [Mr. Butler] from the decision of the
Chair.

Concerning that appeal I will say that when the convention met we saw a Presi-
dent in the chair and three tellers. How came they there ? Those who speak so much
about the Constitution 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 Constitu-
tion, and the time and manner of counting the same. The Constitution has not de-
volved that duty upon any particular person, but the Congress, seeing the necessity
that some provision should be made, has heretofore passed rules on that subject.

During the discussion that has sprung up on this occasion three ditferent views of
the uatuie of the convention have been put forth. Some have insisted that it was a
joint convention ; others simply that both houses of Congress were present ; others
that members of the House and of the Senate were here as mere spectators while the
Vice-President or President of the Senate was performing his functions.

Now, sir, I wish to say concerning 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 as-
sembled together in the name of law, and charged with any functions whatever, they
have certain inherent and necessary powers in order that they mav first ascertain aud
know that they are the parties intended ; and, secondly, there being an object for
■which they are convened, whether or not they are doing anythiug tending to accom-
plish the same, and whether or not they are doing it in the mode ordaiued. If they
have not these powers they are the merest spectators, entirely supernumerary, aud are
in no sense a legislative, 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 aud existence of the Republic.

By the voice of the Constitution alone, according to the interpretation of some gen-
tlemen here, the Vice-President might have notified both houses of Congress of the
time and place when and where it would suit him that they should come and be pres-
ent and see him count the votes. Under the interpretation of the gentleman from
Pennsylvania [Mr. Broomall] the President of the Senate might assemble both houses
to witness his performance of counting the votes ; and then, if he should choose to lay
aside the vote of Pennsylvania, for instance, and say that in his opinion it was in-
formal, that would be an end of it. Manifestly the Constitution contemplated no

PROCEEDINGS AND DEBATES IN CONGRESS. 331

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 tbe 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 f 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 satisfac-
tion 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
powerless houses of this Congress as by himself, and the whole provision of the Con-
stitution would be uttei'ly a nugatory.

But manifestly when the Constitution says that a count shall be made, having first
assembled 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 or-
dering 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 cer-
tificates, 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 Constitu-
tion requires him to do, and from that moment the whole proceeding falls into the
hands of the representatives of the people and of the States. His function under the
Constitution is at an end when he breaks the seal ; and the Congress has recognized
this to be the law by the rule I have mentioned 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 Congress has so recognized it by
providing laws, and particularly by this twenty-second rule, which prescribes how and
in what manner the count shall go forward. By fixing a definite time for the transac-
tion of this business Congress has assumed jurisdiction to legislate on that subject, for
Congress thereby takes from the President 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 tijen legislating on the subject and assuming control
of it, and the Senate and the House on the occasion of this count this very week rec-
ognized this doctrine, for they transacted business in reference to Louisiana under
that rule, and finally they transacted it in reference 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 statute and came back under another. They
left the hall because the President said that objection 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 resolutiou did not bind them to deliberate at all ; and having decided
said resolutiou 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 controlled 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 objec-
tion 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 statement by him that the Senate alone determined this question
the gentleman from Massachusetts appealed from the Cbair. To whom did he appeal '?
Of course he must have appealed to the body present, for clearly there could be no ap-
peal from the chairman of a joint convention or any other assembly to either of the
houses. And yet the Constitution never could have meant that the Vice-President
should be an autocrat on that occasion. The Constitution 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, by withholding the votes
of New York and Pennsylvania 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 omissus there
may be in the provisions of that instrument 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, aud whether it was proceeding in order to execute the order
of the Constitution.

I know it is said, and perhaps it may be true, that the founders of the Constitution
founded a double-lieaded, a hydra-headed assembly, which, being completely organized
as both Senate and House of Representatives, sits at the same time aud in the same
place for the transaction of business. Manifestly such a body as that cannot do busi-
ness in any manner. However plausible it may sound that two complete and separate

332 COUNTING THE ELECTORAL VOTE.

organizations can sit down in the same hall, everybody knows that as a matter of fact
two organizations cannot transact business in the same hall at the same time in any
manner that would not reflect utter contempt and disgrace upon the entire proceed-
ing. Would one body be passing upon the objection raised by the gentleman from
Massachusetts [Mr. Butler] while the other body was considering and determining a
question of order arising out of that objection ? Would one presiding officer be rec-
ognizing the Senators composing the body to which he belongs, and would the other
presiding officer at the same time be recognizing the Rijpreseutatives composing the
other body to which he belongs ? Why, sir, a confusion of Babel would be inaugurated
by the overweening power of the Constitution.

There can be no doubt that the Constitution intended that the two houses of Con-
gress separately 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
pi'oprietorship 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 president of this joint convention ? Does
the Constitution 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 them-
selves, when otherwise the members of the two bodies might be mingled together pro-
miscuously.

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 compelled to go,
to decide it.

Did the framers of the Constitution ever contemplate the organization of a legal as-
sembly so absurd and preposterous as this joint convention would be should that be
the course they must pursue ? Sir, such was not their intention. Their intention nnist
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-President or Presiding Officer of the Senate
presided over both bodies when assembled in joint convention by the consent and ac-
knowledgment of every member of both houses. They all recognize 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 tho
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 Constitution, it must come from some law of Congress. And, clearly,
if the laws of Congress can place the President of the Senate over the joint conven-
tion with powers of that description, clearly the laws of Congress can go further and
clothe the joint convention itself with all the functions that are necessary, and
without which all assemblies are but mockeries. That is, if it would be at all neces-
sary 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 in'eseut 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 drawbridge 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 representa-
tives of a free people, or of any people that can maintain their freedom. The resolu-
tion 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 preposterous manner to
the tail-end of the count. This was not simply an act of oppression in case the reso-

PROCEEDINGS AND DEBATES IN CONGRESS 333

hitiou 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 i^eople of that commonwealrh, and this
whether she be entitled to vote or not. To 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 maiving sport not only of the people of such a State, but of the highest func-
tions of governmeut. Hence I am 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 pro-
vided you coukl get at anything else that was in order — the Senate under the joint rule
adopted in 1H6."> retired from the House to deliberate, and upon deliberating found that
the joint resolution did not aft'ect the case, and came back, and under that very resolu-
tion decided, and the President of the convention announced the decision, that tlie gen-
tleman 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 con-
current 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 gentleman from Massachusetts, [Mr. Butler,] in
such a state of atfairs, thought it would not be unreasonable to ask an ap))eal, for if
all these tilings 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 members of this House were told
that the Senate had decided this matter for the joint convention, including the House,
and for the countr^'^, there was excitement at the announcsment, the House has been
designated as a "mob," and we have been told about the "fell" spirit in which this
tbing was conducted. I, among others, had the honor to call upon the President on
that occasion to state by what authority 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 horrifying 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 gentlemen 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 Presi-
dent of the Senate without at least some explanation on the subject. They were will-
ing to submit to the common judgment, and under the very arguments that have been
used against them all around the l)oard, if that very question puzzled the President of
the joint convention so that the two houses had to separate and decide it separately
according to the theory of those who are in favor of separate action, and that, too, ac-
cording 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 Massachusetts 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 theorj- of gentlemen who take
opposite ground from mine, the two houses still retain the jiower to settle that question
by their separate aciion.

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 shonld
have been considerable excitement and disorder. The only matter of wonder is that
there was so little. But if there are under the present rules reasons to apprehend dis-
turbance in case of a counting, when the vote of a State put in question cannot in any
way change the result, what must we expect in a case in which the vote of a single
State would determine the result? And this very case might have happened on this
occasion. A few thousand votes in Pennsylvania 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 Democeatic friends here who now sustain the acts of the President of
the Senate? Could the supporters of either candidate for the Presidency have been
controlled when they would have seen the result of the great canvass which cost so
mnch time and money, and roused evei'y energy and passion of both parties, finally
disposed 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 occasion. Everybody can see that a ter-
rible convulsion must be the result, not because the beaten party would complain of
oppression, but because they would see in the mode by which their defeat 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 usurpation sets the wliole community in a flame. In all cases in which
powers are doubtful, as in this, any exercise of them against the interests of any por-
tion of the community is held by them as clear usurpation.

Clearly, then, no presidential election can be peacefully settled under such provisions

334 COUNTING THE ELECTORAL VOTE.

of law as we now have in case such a contest as I have supposed should arise conceru-
ing the vote of a State that would change the result. Nothing can be gained in this
matter by a quarrel between 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 security for coming elections.

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 Consti-
tution left it uncertain 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 pro-
viding that it should require both houses to prevent it.

In view of this state of things I have offered in this House an amendment to the
Constitution 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 ques-
tions 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. Butler,] to call the attention
of Congress and the country to this great defect iu the framework of our Government.
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 they are or
where they lie or how near to the surface of the waters. No man can tell what States
may send up informal certiticates, 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 voled against laying on the table the resolution of
the gentleman from Massachusetts, [Mr. Butler,] and the substitute of the gentleman
from New York, [Mr. Kelsey,] as the substitute provided 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 dominant party iu either
house to defeat willfully, for partisan purposes, the clear will of the pgople. 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
probaly is not — in either case it is wholly wrong aud dangerous.

I wish, sir, to defend the action of members of this House against the aspersions
thrown upon them from several quarters, and especially 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 iu such a case ? The cause of disturbance
came suddenly upon the House. In order that the whole House should submit qui-
etly and with due subordination to whatever the Senate or its President or those who
assume leadership in the House might think proper, it would have been necessary to
train the members of the House and instruct them until they could understand just
what was to be required of them. They should have been informed precisely what
would suit the jiroprietors 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 castigatiou.

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 iu 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 resolution to that effect. First, because the House cannot censure the Senate. To
censure is to punish, and jiresupposes some visitorial, inquisitorial, or supervisory
power in the party censuring, 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 iu a quiet and decorous manner and remain in good order till they de-
paited iu 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 obe-
dience to his orders. But such a complaint would in fact only be a complaint against
the uncertain and improper condition of the law, aud 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 uotlet
this occasion pass without setting on foot some measures for the safety of the country
in the future.

PROCEEDINGS AND DEBATES IN CONGRESS. 335

Ix Sexate, January 6, 1873.
PRESIDEXTIAL ELECTIOX IN LOUISIANA.

Mr. SnEisMAX. I ofter the following rcsolutiou, and ask for its jireseut cousideia-
tiou :

'■' Rasolved, 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 eitlier 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 com-
mittee shall have power to send for persons and papers, to take testimony, and at their
discretion to send a subcommittee 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 employ suitable disinterested and unprejudiced persons
not resident in either of such States, with authority to take such testimony as may be
material in determining any pending contest growing out of the election of electors
in either of said States."

The Vice-Pkesident. Is there objection to the present consideration of this resolu-
tion ?

Mr. West rose.

The Vice-Pjjesident. Does the Senator from Louisiana object ?

Mr. West. Yes, sir.

The Vice-President. The resolution will be placed on the Calendar.

Mr. Sherman. I give notice that I shall call it up to-morrow. I move that it be
printed.

The motion was agreed to.

Mr. West. I deem it due to myself to state that I do not urge objection to the spirit
of the resolution at all, but I want further opportunity to consider it and be ready to
make some suggestions to-morrow.

In Senate, January 6, 1873.

Mr. Morton. I oiier the following resolution :

^^ 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 electing the President and Vice-President, and providing a tribunal to adjust and
decide all contested questions connected therewith, with leave to sit during vacation."

The resolution may lie on the table for the present, audi give notice that I shall ask
the indulgence of the Senate on ueA Monday to take it up and submit some remarks
upon it.

The Vice-President. Does the Senator 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, January 7, 1873.

presidential election in LOUISIANA.

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 Louisiana [Mr. West] I understand has read the
resolution and has withdrawn his objection to it.

Mr. Anthony. I do not wish to interpose in favor of the Calendar against any busi-
ness necessary to be transacted.

Mr. Sherman. This resolution will take but a moment.

INIr. 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 session we shall go througli 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 rejected, 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 tlie re-
lief.

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 Sen-

336 COUNTING THE ELECTORAL VOTE.

ator from Louisiana, but which ohjectiou is now withdrawn. The Secretary will re-
port the resolution.

The Chief Clerk read the resolution, as follows:

" Besolved, 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 determination of such contests and to guard against
and determine like contests in the future election of electors for Presitleut and Vice-
President. That for the purpose of speedily executing this resolution the said commit-
tee shall have power to send for persons and papers, to take testimony, aud at tlieir
discretion to send a subcommittee 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 employ suitable disinterested and unprejudiced jiersons
not resident in either of such States, with authority to take such testimony as may be
material in determining any pending contest growing out of the election of electors in
either of said States."

Mr. TiiURMAX. 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 lo it, lest I
might seem to be committed to implications that I do not intend to approve. This res-
olution 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-Presidenthas
been conducted in the States of Louisiana and Arkansas in accordance with the Con-
stitution and laws of the United States, aud 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 determination 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 w4iich the committee may uuxkethis investiga-
tion. 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 inquire whether these electors have
been elected pursuant to the Constitution and laws of the United States. I know of
no power in Congress to passany 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 Representatives, that the Congress may by law prescribe the
time and manner of election, but it is simply that Congress may fix the time in respect
to the election of electors themselves. The constitutional provision is :

" 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 Rei)resentatives 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 paragraph of the first section of the second article of the Constitution says:

"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."

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 election of electors, and determine in such mode as it shall provide any
question that may arise between dift'ereut persons claiming to be elected to that office.
No jurisdiction over the subject seems to have been given to Congress ; at least none
such was in the mind, I should think, of the framers of the Constitution, looking 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 language :

"The electors shall meet in their respective States and vote by ballot for two per-
sons " —

I am reading now from what was the original 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 number 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."

PROCEEDINGS AND DEBATES IN CONGRESS. 337

The Seuate ■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 verify-
ing or authenticating the return :

" 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."

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 Px'esident
and Vice-President, one of whom, at least, shall not be an inhabitant of the same State
with tliemselves ; they shall name in their ballots the person voted for as President,
and in distinct ballots the jierson 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 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 presence of the
- Senate and the 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 numl)er be a majority of the whole number of the electors appointed ;
and if no person have such majority, then from the persons having the highest num-
bers not exceeding three on the list of those voted for as President, the House of Rep-
resentatives 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 presence of the Senate and House of Reja-
resentatives, open all the certificates, and the votes shall then be counted."

What function the Senate and House of Representatives, in whose presence these
certificates are to be opened and the votes counted, are to perform, is not distinctly
stated. Indeed it is not distinctly stated by whom the vote 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 PresT-
ident 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 Louisi-
ana 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. Thurmax. In both States, each claiming to be the electoral body, one casting
its vote for one candidate, another for another candidate, and the returns or certificates
of both have been sent here to the President of the Senate. If the Constitution had
provided that these returns should be authenticated under the great seal of the State,
then it might be that Congress would have nothing to do bu^ look at those returns
which ai'e thus authenticated ; but tlie 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 themselves electors of President
and Vice-President of the United States, and having no authentication ; that is, there
is none provided by the Constitution, and if any has been given to them otherwise, it
is surperflnous, 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 attention to the act of Congress.

Mr. Thurman. I am aware of that. What act does the Senator refer to ?

Mr. Morton. The act of March 1, 1792, referring to the third section of the act.

Mr. Thurman. What page ?

Mr. Morton. On page 306 of the Manual.

Mr. Thurman. "That the executive authorities 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 annex 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 ne-
cessity for speedy action upon it, and to show that our power in this matter is extremely
restricted. I do not mean, however, to saj- that we have no, power at all. I do not
mean to say that sucli a case as this can come before us without requiring some decis-
ion at our hands. How far our power goes I am not now prepared to say ; it is a mat-
ter that requires the gravest consideration ; but I do not wish to be understood as com-
mitting myself to any implication that we have power to go into the question of a
contest of the seat of these electors. We may be compelled iiossibly from necessity to
determine which of these two sets of electors has the official evidence that entitles
their certificates to be received and votes given by them to be counted ; but it is a sub-
ject full of difficulty, and I do not wish to be committed to any view of it one way or

338 COUNTING THE ELECTORAL VOTE.

the other, but I do wish that the evideuce may be taken and that we may have it be-
fore us, and have it before 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 provoke a debate that will delay the passage of the resolution offered by my col-
league. I have very firm convictions on that sul)ject, and have very firm oomvictions
that a very grave error has been committed, a very grave wrong has been perpetrated ;
but I will not speak upon that subject now lest it should provoke a debate here that
will consume time that ought not now to be consumed.

Mr. Frelixghuysex. There is no doubt that this is a subject of much importance.
If the election of the President for the coming term depended on the votes of Louisi-
ana and Arkansas we should now have much excitement in the country. This is the
opportune occasion for Congress to apply a remedy which will prevent future diffi-
culty. There is hardly an official in the United States whose title to his office cannot
be judicially questioned 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 Sen-
ate or by the House, but there seems to be no way provided by Congress, and no way,
I believe, that Congress, as the Constitution stands, can provide to try the title of an
elector to his office. The tribunal which ought to adjudge and determine this ques-
tion is, in my opinion, the Supi-eme Court of the United States, because that tribunal
is further removed from political infiuences 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 origi-
nal jurisdiction of that court is by the Constitution restricted to three subjects, to wit,
cases affecting embassadors, other public ministers, and consuls, and those in which a
State is a party. The appellate 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 Constitntiou 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 extensive as the judicial power re-
posed by the Constitution in the General Government. Congress would not have
abused the power, and such seems the true construction of the Constitution. But the
Supreme Court|has restricted its jurisdiction by so many adjudications, that they can-
not now be expected to enlarge it. The title of one claiming the office of elector can-
not, then, be investigated before the Supreme Court.

The Constitution does provide that Congress may create inferior tribunals, and un-
der that power, if there were no other dithcnlty, we might create a jurisdiction to try
these questions, 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 Leg-
islatui'e, by the vote of the people, or by the State Legislature, and the result was as
stated in article 2 of the Constitution :

"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."

The matter is left with the States, and I suppose every State has a statute regulating
the manner in which the electors shall discharge their duty. In New Jersey there is
a| statute which authorizes the electors on the day of their meeting in electoral col-
lege, should any of their number not appear by three o'clock in the aftei'uoon, to fill
the vacancy. Therefore I do not see that it is for the General Government, as the Con-
stitution now stands, to determine as to the qualification of electors. I take it that
the entire control over the manner of appointing electors is one of the reserved rights
of the States ; that they never surrendered the right of determining who should be
these electors. The States possess the right of determining who shall be elected and
who has been elected an elector, as entirelj^ as the United States Government possesses
the right to decide who shall represent the conutry in England or be an embassador at
Geneva. That is the view I have of the subject, and therefore I think that a simple
amendment to the Constitution to the eftect that disputes in reference to electors for
President and Vice-President shall be determined by the Supreme Court of the United
States, AA'ith a provision that Congress shall have power to carry the amendment into
effect, would best meet the case. Such an amendment would give the General Gov-
ernment jurisdiction over the qualifications of electors, and would make the Supreme
Court the tribunal to adjudicate. Congress would then have the right by proper leg-
islation to provide for summary proceedings to determine all disputes relative to the
qualifications of electors, as they should have.

Mr. Sherman. I wished in introducing this resolution to avoid any premature de-
bate, nor will I allow myself to be drawn into any discussion of the constitutional ques-
tions necessarily raised by this resolution. It is sufficient to know that it is impossible
for any Senator to approach the consideration of the subject without fuller and more
mature information than we have at present.

PROCEEDINGS AND DEBATES IN CONGRESS. 339

The suggestion made by my colleague I would be very willing to meet, as lie 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 committee 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 iiroviding 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 colleague's mind
from any embarrassment or doubt I should be willing to accept such an amendment,
but it seems to me entirely premature to enter into the discussion of any constitutional
question now. This is merely an inquiry. It is broad, general, and it is as urgent as
it is possible to make it.

The Vice-President. Does the Senator make the modification 1

Mr. Sherman. I only suggest it if my colleague desires it.

Mr. Thurmax. 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 Ave may have a vote on the ques-
tion, 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 iustance. There would
be a great deal of difficulty in fixing the machinery of presidential elections whereby
you coitld have the case ultimately tried before the time when the President will have
to be inaugurated. You will find it exceedingly difficult to have anything more than
Sk prima fao'ie case made out, such as the persons 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 tribu-
nal to decide it in the first instance. That is so in a State in the case of an election
for governor, and the jierson 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 legislation might be iiad that would do
away with the necessity for an amendment to the Constitution. I can hardly conceive
of an amendment of the Constitution which will relieve those who count the vote from
the responsibility of declaring the result on the best information 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
on this subject, because I think it one of the gravest importance. I quite agree in that
respect with what was said by the Senator from New Jersey. I do not, however, as at
present advised, agree that this is an insurmountal)le difficulty under the Constitntion
as it exists. It seems to me that the criticism of the Senator from Ohio [Mr. Thnrman]
upon the language of this resolution and the implication that it might carry is quite
correct ; that these electors are not appointed and were not intended to be appointed
by the General Government; that it was left entirely to the States to appoint electors
in such manner as they thought proper. The language of the Constitution 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 electors, 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 peo[)le. They have in the history of the Govern-
ment sometimes been api)ointed by the State Legislature ; at other times they have
been elected at separate districts in the several States, or in some of the States under
an act of the Legislature 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 doubtless be competent for the Legisla-
ture of any State to direct its Governor to appoint the electors. I question verj much
whether the Government of the United States has any right to go behind the appoint-
ment of the electors, and the amendment which the Senator from Ohio has introduced
in his resolution does not helji it, in my judgment. I doubt our right to inquire how
these persons are elected in the States.

340 COUNTING THE ELECTORAL VOTE.

It seems to me, altbougU I do not wish to express a positive opiuiou upon the ques-
tiou at this time, that the iuteutiou was to leave this appointment of electors exclu-
sively to the States, and that the only jurisdiction which the Federal Government had
was to designate the time when these electors should be appointed ; l>ut the manner
of their appointment and everything else connected with their selection is to be left to
the State, and that the, jurisdiction of the United States, of Congress, of the presiding
ofhcer of the Senate, who opens the vote, extends no farther than to inquire whether
these are the electors appointed by that State.

Mr. MoRTOX. 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 tbat was discussed in the hrst 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 disagreement between the two Houses
of Congress.

The language of the Constitution, as the Senator from Ohio remarked, is perhaps not
very specilic. It is that the votes are to be opened by the presiding officer of the Sen-
ate, and they shall then be counted. By whom f 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 ilirection of the two Houses of Congress.

Mr. Morton. From what time?

Mr. Trumbull. From the beginning of the Government the two branches of Con-
gress have passed resolutions in regard to this counting 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 Congress in which they have, either
or Ijoth 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 Indiana, in 1817, and of
Georgia, in 18(39, are not cases in point, because in each of those cases the question was
whether they were States in the Union and entitled to vote ; but so far as the deter-
mination of any (juestion 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 adoption of the twenty-second joint rule, in 1865.

Mr. Trumbull. Mr. President, I do not say that there had ever been occasion for
Congress 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.
Tbat is what I meant to say, and what I believe I did say. It was not supposed when the
Constitution was f.>rmed that such a question could ever arise, and, fortunately for the
history of the country, it is true that such questions have nev^er arisen until quite re-
cently, 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 per-
sons about whose selection there would be no question, and the only jurisdiction that
Congress would have would be to ascertain whether they were the ijersons 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 provided by the laws of the State, is to me a very doubtful questiou. We can
inquire, when a person presents himself here as a Senator, whether he has been elected
by the Legislature 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 Senator to say that I suggested that amend-
ment?

Mr. Trumbull. I spoke of the amendment which was suggested by the Senator's
colleague.

Mr. Thurman. I concur with the Senator about the practice, but I am willing to
vote for the resolution nevertheless, in order to get the facts, and without committing
mj'self to any implication of law on the subject.

Mr. Sherman. If my friend from Illinois will allow me, I made the suggestion of
amendment to meet the argument of my colleague, and, as I snjiposed, 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. Trujibull. 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 jurisdiction of the Senate to interfere in the matter, and how we could in-
terfere; so that I am not opposing the resolution. I do not wish, however, to be com-
mitted to the implication that might be drawn from the peculiar wording of the reso-
lution authorizing this committee to inquire whether the laws of the States had been

PROCEEDINGS AND DEBATES IN CONGRESS. 341

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 Legislature 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 mem-
bers composing that legislative body to determine whether they are rightly there or
not. That is for the Le^^,! stature 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 i sthe 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
Indiana to say it was in 1.SG5 ; I do not lind the date given in the book before me— the
two Houses of Congress agreed upon a rule in regard to canvassing the votes for Presi-
dent and Vtce-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 electors in any State —
"any question shall arise in regard to counting the votes therein certified, the same
having been stated by the i)residing officer, the Senate shall thereupon withdraw, and
said (luestion shall be sul)mitted 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 alfirmatively,
and no vote objected to shall l)e counted, except by the concurrent votes of the two
Houses ; wbieh being obtained, the two Houses sliall immediately re-assemble, 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 wliich 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 at follows," &c.

The Vice-Pkf.sidext. The Senator from Illinois will suspend. The morning hour
has expii-cd, and the Indian appropriation bill is before the Senate.

Mr. Shkkman. I hope we shall have this question disposed of now.

The Vice-President. If there be no objection, the Indian appropriation bill will
will be informally passed over, subject to a demand for the regular order.

Mr. ^YINDOM. I have no oVijection.

Mr. Tkumbull. I will state to the Senator 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 nntil 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, iu 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 what has been the construction 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 the beginning of the Government. Although there might be some
question, and undoubtedly there is some ambiguity in the language of the Constitu-
tion, inasmuch as it is left in that uncertain state, and says that the vote shall then be
counted without saying by whom it shall be counted, and inasmuch as Congress has
undertaken 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 upoi^, 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 deter-
miuitiii- which of those electors are the electors appointed by the Legislature of the
State, "and I (piestion if that will not be the limit of our inquiry, whether we can go
beyond that to determine 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 have opened the whole question iu-

342 COUNTING THE ELECTORAL VOTE.

Tolved in the resolution of the Senator from Indiana [Mr. Morton] wlaich lie 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 resolution, nor any other, xmtil I can see with some
reasonable clearness that it would be within our power to make use of the informa-
tion, when we have obtained it, touching this question of the election of electors. It
is undoubtedly 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 opj)ortunity to hear the
Senator from Indiana, who, I understand, has been investigating the matter for a con-
siderable period of time, and whose investigation and views on the subject will be of
great interest to us all. I hope, therefore, that this resolution will go over uutil Mon-
day, when we shall have had an opportunity to reflect upon the subject, have the res-
olution 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 motion to postpone the appropriation bill, for
the purpose of disposing of this resolution. I trust the Senator from Vermont will not
insist on the position he has taken. As a matter of course, we expect to hear the sub-
ject discussed iu many ways. The Senator from Indiana has already the floor for Mon-
day next, to discuss the question of the necessary modifications of the Constitution of
the United States to guard against the evils of disputed presidential elections. But
here 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 subcommittee 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 tbe 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
consideration of this question. Indeed, tbe passage of this resolution will give the
Committee on Privileges and Elections jurisdiction of the sul)ject. The resolution
already pending, introduced by the Senator from Indiana, will enable him to make his
remarks, to give ns his views on the subject and the benetit of his ex2)erieuce. We
cannot comply with the joint rule of the two Houses without the very information
sought to be obtained by this resolution. It is impossible for either the Senate or the
House to act in pursuance of the twenty-second joint rule without this information.
If we therefore delay the taking of testimony, as a matter of course we will post^jone
and probably defeat the opportunity of deciding the (uiestion according to that rule
with deliberation and projiriety.

I regretted, therefore, when this resolution was introduced, that my colleague dis-
cussed any constitutional question, because it is not necessary to discuss the constitu-
tional question on a resolution simply directing the making of an inquiry. As a mat-
ter of course, a subject so delicate as this vrill 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 testimony 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
he electoral votes.

I trust, therefore that, postponing ordinary business, we will dispose of this resolution

diet 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 with which we shall

hear from the Senator from Luliana.

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 ahout it be-
forehand, and receiving his opinion that it was important to have the information
sought for by it in order to enable the coumiittee to decide and act on the very impor-
tant question presented in Ibis disputed election of electors.

I trust that the resolution will be acted ui)on now, and I will move that the Indian
bill be postponed with a view to continue the consideration of this resolution in the
hope that we may have a vote upon it.

The Vice-President. The Indian appropriaticm bill being before the Senate as the
regular order, the Senator from Ohio moves to postpone its consideration for the pur-
pose of continuing the consideration of the resolution otiVred by him.

Mr. WiNDOM. Why cannot the appropriation 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 discission of the resolution, and

PROCEEDINGS AND DEBATES IN CONGRESS. 343

am content to let tlie Indian appropriation bill be passed over informally until this reso-
lution is disposed of.

The Vice-President. The appropriation 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 gen-
eral consent. Does the Senator from Ohio withdraw his motion ?

Mr. Sherman. Yes, sir.

Mr. Edmunds. It might be a good way in this l)ody 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 dis-
cussion.

There is no denying the fact that the passage or rejection of this resolution involves
a determination of a certain right in the Senate and in the House of Representatives
over this subject of the election of President — a jurisdiction, as the Senator from Illi-
nois 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 elector, behind his certificate. If that is true, then there is
no use of sending down to Louisiana to ascertain what is the certificate of these gen-
tlemen. 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, accord-
ing to the idea of these gentlemen, which certificate represents the sovereign and con-
clusive 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 evidence 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 oi)position in this matter by any means — that we should take a little time
to reflect on this subject, and to know ])recisely what is the scope of what this com-
mittee 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 Constitution, 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 Constitution. 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 situation. But, as I say, I did not rise to discuss
this question — I only rose to say that it appears 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 Vermont did not quite understand me if he un-
derstood 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
orgauized electoral college which sends the vote here is the one organized under the
autlun-ity of the Legisl.'^ure of the State, and there being here two sets of electors, as
I understand, we must necessarily inquire into the organization of those electoral col-
leges.

Mr. Edmunds. What do you mean by " organization ?" To find out which has got
the most votes ?

Mr. Trumbull. Which has got 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 these 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. CoNKLiXG. As we are to rote now it seems on this resolution, I venture to say
a word about it, only, ))erha])s, to show my waut of appreciation of the gravity and
scope of the questions it involves.

I always dissent with diffidence from any suggestion made by the Senator from Ver-
mont, yet it seems to me we leap before we come to the stile when we discuss at this
time all the ultimate powers of the Senate or of Congress touchiug the recognition of
presidential electors, as if those powers were in some definite sense involved in the

22 X

344 COUNTING THE ELECTORAL VOTE.

passage of this resolution. It seems to me the resolntiou as introduced by the Senator
fi'om Ohio, not improved, I think, by the amendment he has proposed, may be adopted
and voted for by every Senator who has expressed his views on the subject without his
vote shedding any light upon his imiiressions or convictions of these questions of ulti-
mate power, and without forecasting in any way how they should be decided.
Let me see whether I am right. The Constitution ordains that —
"Each State shall appoint, in such manner as the Legislature thereof may direct, a
numberof electors, equal to the whole number of Senators and Representatives to which
the State may be entitled in the Congress ; but no Senator or Representative, or person
holding an office of trust or profit under the United States, shall be appointed an elect-
or."

And again :

" 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."

These provisions show that the two Houses may exercise jurisdiction over the mat-
ter 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 establish, I could hardly discover impropriety in this resolution.
What does it propose? To inquire whether in certain States the Constitution has, in
this respect, been executed, and whether it has been executed according to its own re-
quirements and the requirments of the laws of the United States ; that is all. Keep-
ing 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 they were elected on the day
specified ? May we not inquire whether they were chosen at the place required ? Un-
doubtedly we may. These to be sure are exceiitions named by the Constitution. But
if we dismiss these particular exceptions 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 ^outh Carolina had a right, and exercised it for years, to appoint
electors through her Legislature. It has been said that the governor might be com-
missioned to apjioint them in a State. Very likely. It so happens, however, that in
the States in question 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 the same elec-
tion 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 participate in this very choice (because it becomes
this choice when the State has said that electors shall be chosen by force of that election)
any man by reason of his race or color. Suppose we are informed that in some State
where one race of men predominate they have all been excluded from this choice, the
State having previously said that electors in that State are to be chosen only by this
popular election. Can -we not in(]uire — and I adopt the most narrow 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 aH their votes w^ere 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 electors claiming to have been appointed by Louisiana in the way she
has "directed" and prescribed ? If we can, then I submit the question degenerates
into the verbal mode of stating it. One Senator says we liave a right 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 tlie election, 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 inquired, what use or how many uses we may
make ultimately of the information it seems to me premature now to consider ; the in-
formation 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 inquire, still even the worthlessness of the result would not prove that we usurp
power, or violate the Constitution, or prey upon the States bj' obtaining the informa-
tion.

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 President or Vice-President.

I see no reason to doubt that any State having provided a popular election as the

PROCEEDINGS AND DEBATES IN CONGRESS. 345

mode and the only mode of appointing electors, and it being alleged that no such elec-
tion 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 allega-
tions be tiction or fact. In both views I feel at liberty to vote for this resolution, not
only without committing myself upon all the ultimate questions to be raised, but with-
out seeing the pertinency of these questions in respect of our power to adopt this reso-
lution 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 aud in determining any other proceeding which may come
within our province.

Mr. President, I wish to say one word more. The honorable Senator from Ohio far-
thest from me [Mr. Thurman] deprecated a debate on the merits of the Louisiana
doings, and said he should abstain from all allusion to them ; and straightway he pro-
ceeded to declare that he believed a "great wrong"— we all observed the emphasis
with which he pronounced the words — had been done in Louisiana. I venture to say
to the honorable Senator tliat eveu if he and I agreed, as perhaps we might in relation
to some recent occuirences in Louisiana, we should probably ditfer widely in regard to
the responsibility and blame to be attached 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 kuow that in some of the journals of the country the doings in Louisiana have
been discussed as if a great wrong is imputable to persons and officials who, in my
humble judgment, are as innocent as the Senator from Ohio or myself . However, like
that Senator, I <lo 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 prevails, aiul 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.

PRESIDENTIAL ELECTIONS.

Mr. Frelinghuysen asked, and by unanimous consent obtained, leave to introduce a
joint resolution (S. R. No. 10) submitting to the Legislatures of the several States a
proposition to amend the Constitution of the United States ; which was read twice by
its title.

Mr. Frelinghuysen. I ask to have the resolution read at length and referred to
the Committee on the Judiciary.

The Chief Clerk read the res(dution, as follows:

" liesolved hy the Senate and Hoiihc of Representatives of the United States of America in
Congress assembled, {two-thirds of both Houses concurring,) That the following article
be proposed to the Legislatures of the several States as an amendment to the Constitu-
tion of the United States, which, when ratified by three-fourths of said Legislatures,
shall be valid, to all intents aud purposes, as a part of the said Constitution, namely :

"Article XVI.

Disputes arising wi
-President in any S
United States.

" Section 1. Disputes arising with regard to the persons chosen as electors of Presi-
dent and Vice-President in any State shall be decided by the Supreme Court of the
■^"^uited States.
" Sec. "2. Congress shall have power to enforce this article by appropriate legislation."
The resolution was referred to the Committee on the Judiciary.

In Senate, January 17, 1873.

The Vice-President. The Calendar, under the Anthony rule, being under considera-
tion, the Senator' from Indiana has obtained consent of the Senate to speak on the fol-
lowing resolution, which will be reported by the Secretary.

The Chief Clerk read the resolution, as follows:

" Resolved, That the Committee on Privileges aud Elections be instructed to examine
and report, at the nest session of Congress, upon the best and most practicable mode
of electiug the President and Vice-President, and providing a tribunal to adjust and
decide all contested questions connected therewith, with leave to sit during vacation."

Mr. Morton. Mr. President, the Constitution provides that the President and Vice-
President shall be chosen by electors to be appointed by the State. It declares that —

"Each State shall appoint, in such manner as the legislature thereof may direct, a
number of electors, equal to the whole number of Seaators aud Representatives to which
the State may be entitled in the Congress."

The appointment of these electors is thus placed absolutely aud wholly with the
legislatures of the several States. They may be choseu by the legislature, or the
legislature may provide that they shall be elected by the people of the State at large,

346 COUNTING THE ELECTORAL VOTE.

or in districts as are members of Congress, wliicli was the case formerly in many States ;
and it is no donbt competent for tlie legislature to authorize the governor or the su-
preme court of the State or any other agent of its will to appoint these electors.

This power is conferred upon the legislatures of the States by the Constitution of
the United States, and cannot be taken from them or modified by their State constitu-
tions any more than can their power to elect Senators of the United States. Whatever
provisions may be made by statute or by the State constitution 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 Del-
aware, Georgia, South Carolina, Louisiana, New 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 choosing the electors is placed entirely beyond
the power and jurisdiction of the national Government, and whatever disorders, irreg-
ularities, or failures in the appointment of electors may occur iu any of the States,
they are entirely without remedy or redress upon tlie 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 con-
test that may arise in regard to such election. 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 provis-
ion 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 presi-
dential election is to be determined by the vote of a State in which the choice of elect-
ors has been irregular or is alleged to have been carried by fraud or violence, and where
there is no method of having these questions examined and settled in advance — where
the choice of President depends upon the election in a State which has been publicly
characterized 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 iu advauce be shorn of his moral power and authority
in his office, would be looked upon as a usurper, and the consequences that would re-
sult 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 luitiou to be illegitimate, or not to be rightfully enti-
tled thereto under the laws or usages of the nation. We have seen how in all ages
there have been numerous bloody and destructive revolutions arising from such causes,
and the conviction on the part of the people that the reigning monarch was not enti-
tled lawfully to the crown. It is the part of wisdom in a monarchy to avoid such con-
tingencies, if possible, by settling deiinitely the rightful descent of the crown ; and
in republics there ought to be such machinery of government 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 several 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 Presi-
dent and Vice-President, one of whom at least shall not be an inhabitjint of the same
State with themselves. They shall name in their ballots the person voted for as Pres-
ident, 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 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."

PROCEEDINGS AND DEBATES IN CONGRESS. 347

the result of the opening and counting of the vote as reported by the President of the
Semite. The fact that tellers have been generally appointed by the two houses in
no wise aliects 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 practice, apparently without question, until
1857. When the electoral votes were counted that year in the ])reseuce of the two
Houses an objection was made by a member of the Senate to receiving and countiug
the vote of Wisconsin, because the record showed that the electors 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 President of the Senate, Mr. Mason, de-
clared that the objection was out of order, and that nothing was in order but to open
and count the electoral votes returned, and the vote of Wisconsin was counted, after
which he stated the result of the vote, and declared James Buchanan and John C.
Breckinridge elected President and Vice-President of the United States. Motions
were then made to correct the count and exclude the vote of W^isconsin, all of which
he decided out of order, and that the business having been accomplished for which the
two Houses had assembled, he declared tbe meeting dissolved, and at the head of the
Senate returned to the Senate Chamber.

Upon the retirement of the Senate an elaborate debate took place in the House, in
which a variety of oi)inions was expressed, but the better one seemed to be that the
two houses had no jurisdiction over the matter of counting the electoral votes, either
jointly or separately, and that the decision of the President of the Senate was tinal.
So the matter was dropped. Tbe Senate, upon re-assembling 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 tht^ jiower of the President of the Senate to count
the vote resulted, ex necessitate rei, from the failure of the Constitution to give to the
two houses any jurisdiction over it ; but they were to be present at the countiug 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 on the vote
of Wisconsin ; that by counting it Frdmout 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 undoubtedly have been supported by his [.arty 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 Wiscon-
sin was not forfeited because it was cast one day after thf time fixed by law, as the
failure to vote at the proper time, was occasioned by a snow-storm which prevented the
assembling of the electors, and that Mr. Buchanan was therefore fraudulently elected ;
and the danger of a revolution would have been imminent.

Bat suppose that when the objection was made to counting the vote of Wisconsin it
had l)een entertained, and the decision of it referred 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 repiiblican. The Senate would
in all probability have decided thati 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 sui)posed, in throwing the election of the President into the House
of Representatives, in which Maryland, 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 preseut merely as witnesses, and
have no jurisdiction over the subject either jointly or separately, everybody must per-
ceive 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 Government that the President of the Senate has opened and
counted the votes for himself, either for President or Vice-President. In 1797 John
Adams, as Vice President, opened the votes for himself and declared himself elected
President. In 1801 Jefterson, as President of the Senate, opened and counted the votes
for himself when he and Burr were the candidates for President, In 1821 Vice-Presi-

348 COUNTING THE ELECTORAL VOTE.

deiit Tompkius, as PresideBt 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 1841
Richard M. Johnson, then Vice-President, opened and counted the votes for his re-elec-
tion 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 Senate in opening and counting the vote for President 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 witnesses 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 Consti^.ution — his decision
is final.

There are said to be two sets of electoral votes at this time in the hands of the Vice-
President from the State of Arkansas and two from the State of Louisiana; and which-
ever of these sets he decides is the in-oper 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 ex-
ception 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 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 regard to Georgia.

The President of the Senate may, indeed, be impeached for high crimes and misde-
meanors should he grossly violate his duty and thus fraudulently count or reject electo-
ral votes ; but that would not amend the record which had been made, undo the wrong,
help the jiresidential 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 con-
sidering, that the decision of the President of the Senate should determine the result
and give the Presidency to the candidate who would otherwise have been defeated, or
throw the election into the House of Representatives where the candidate who had
been rejected by the people should be elected by the vote of the States, all can under-
stand 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 with-
out 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 excitement, 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 186.5. in regard to the counting of the electoral vote. This rule was un-
doubtedly the result of a conviction in Congress of the necessity of providing some
method for avoiding the dangers I have been discussing; but it was certainly adopted
without much consideration, and with a view apparently of furnishing an additional
safeguard against receiving electoral votes from States that had been in rebellion. But
it is general in its character, is applicable to all the States, and will continue in opera-
tion until it is amended or repealed.

It is, in my judgment, the most dangerous contrivance 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. 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 question shall arise in regard to count-
ing the votes thereiu 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, ex-
cept by the concurrent votes of the two houses ; Avhich being obtained, the two houses
shall immediately re-assemble, and the presiding officer shall then announce the decis-
ion 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."

By this rule it is provided that whenever an electoral vote is objected to the Senate

PROCEEDINGS AND DEBATES IN CONGRESS. 349

shall retire to its Chamber, and each hoiise shall separately consider the objection, and
the vote shall not be counted unless the two houses concur to that effect. If the two
houses disagree the vote of the State is lost. This may result in a tie or in the elec-
tion of the candidate 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 elec-
tion into the House of Representatives. Each house is to decide the question without
debate, in a summary manner, without investigation anrl without adjournment. Here
is a powerful temptation to the House of Representatives, by non-concurrence, to throw
the election into its own l>ody, and thus perhaps secure the election of a candidate
"who may have been overwhelmingly beaten at the polls. The two hou,ses may be
under the control of dift'erent parties, as in 1857, led by politicians, ambitious, exas-
perated, and thirsting for power, who are thus enabled by a mere non-concurrence to
defeat an election by the people and seize the administration 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 vic-
tory 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 theiieople of that
State to a voice in the election to depend upon the aiiSrmative concurrent vote of the
two houses, which, in the exigency of parties, may not be obtained, however 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 participate 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 concurred in its rejection, it would be far more reasonable and far less dan-
gerous. 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 under 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 necessary where it should not be ; and
to sum tip its perilous absurdity, its " monstrous illogic," its dangerous unconstitution-
ality, it places it in the power of a defeated party, which may happen to have a major-
ity in either house, to defeat an election by the people, and to take the chances of an-
archy, or of a victory, by throwing the election into the 'House of Representatives.

But it may be said that neither house would take the responsibility of refusing to con-
cur 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 advantage, thi.ugh 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 except upon com-
pulsion 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 pro-
ceedings ; " that is, the mode of conducting its business and doing those things which,
by the Constitution and laws, it has aright 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 enactment 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. It was the purpose of the f raniers of the
Constitution to make the executive and legislative branches so far independent of each
other tliat 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 danger-
ous certainly cannot be created as a mere rule of proceeding.

350 COUNTING THE ELECTORAL VOTE.

rately as in case of its own members. There is no such express power given to Con-
gress in the Constitution, 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 independent of each other
as possible.

The act of 1792, which is still in force, provides 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 pe-
riods 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 rightfulness of their elec-
tion. When they had cast their votes on the first Weduesday of December, they were
fundus officio, and could never meet again, either to correct a mistake or for any other pur-
pose whatever. It is obvious that it was not contemplated by the framers of the Con-
stitution that, after the electors had met and cast their votes and had become functus
officio, there was any tribunal that could inquire into the rightfulness or regularity of
their election and set aside their votes. The framers of the Constitution seem not to
have anticipated 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 electors, which would warrant
the rejection of their votes. It was clearly a casus otnissus, and one of the imperfections
of a new scheme of Government which could not in fact have been perfect unless its
framers had been infallible.

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 government was then so imperfectly un-
derstood 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 express purpose, it was deemed a great stride toward popular govern-
ment.

It was objected to leaving the election of President to the mass of the people as one
community that it would result in consolidation, that the smaller States would be swal-
lowed up by the larger. It was further objected that in such an election the slave
States would be shorn of their power, because their slaves coiild not vote and their mas-
ters 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 Presi-
dent, 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 deter-
mined 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
express purpose of electing a President and Vice-President, who would be distinguished
by their eminent ability and wisdom, who would be independent 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 selec-
tion of the proper person. And in order to secure more perfectly the independence 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 the country how they voted.
In short, the idea was that a small body of select 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 working in the minds of the doc-
trinaires and revolutionists of France, and received its full development in the cele-
brated constitution projected bv the Abbe Sieyes, which was adopted and had a short
life.

Now that democracy is better understood, and popular government has been more
thoroughly tested, we have learned that large electoral bodies can be more safely
trusted tliau small ones; that while it may be possible to corrupt small bodies it is
impossible to corrupt large ones, and that the danger of tumult, which was ever pres-
ent 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
persons was not only not contemplated by the framers of the Constitution, but was ex-
pressly excluded by their theory. They were to be independent, not influenced by
previous couiittals or engagements, so that when they came together they could de-
liberate with perfect freedom for the best interests of the Republic. How completely
this theory has been overturned in practice for more than seventy years I need not
recite. For more than seventy years the electors have been pledged in advance to

PROCEEDINGS AND DEBATES IN CONGRESS. 351

vote for particular persons for President 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 eifectually binding upon them in pub-
lic opinion, insomuch that an elector who would violate the understanding upon which
he was nominated 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 foreseen which may lead to civil war
and disaster. The simpler the machinery of government the more easily is it under-
stood and the less liable to accident.

Not only has the result been that the electors are not left free to select a President
and Vice-President, they being in all instances pledged in advance, but it has unques-
tionably been a blessing that tliis has been so, for experience has demonstrated that
email bodies of men intrusted with such vast powers as the choice of the Chief Magis-
trate of the Republic are liable to the arts of corruption, cabal, and intrigue, while the
great body of the people cannot be readied in that way.

Mr. Benton once declared tliat " the only etlectual mode of preserving our Govern-
ment from the corruptions which have undermined the liberty of so many nations is to
contide 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 American citizens." His pa-
tronage would be ample to reach every elector in every State, but it cannot reach the
whole body of the people. This danger has in etfect 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 electoral college was created, and converts it into a body
of agents wlio are to execute their powers 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 pow-
erless for good, they may be potent for evil. In their election errors may easily be
committed, and in very many instances have been. While nobody would mistake the
name of Grant or Greeley, changes in the name 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 ])resent electoral system is that it absolutely circumscribes
the power and the rights of the individual voter. He cannot now A'ote for a man of his
choice for President, but must vote for electors. There may be two sets of electors
representing two ditterent parties befcn-e the people, but he may not be in favor of
would be impossible for him alone in the State which he lives to put candidates for
either, and would prefer to cast his vote for a third ; yet he has no power to do it. It
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 hs
lives, though it may be strong in other States. As an illustration : in 1856, thousande
of men in the Southern States were absolutely deprived of the right of voting for Pres-
dent and Vice-President, because no electoral tickets for Fremont and Daytou had
there been put in the field.

In effect, the electoral system absolutely deprives the voter of his power to vote for
men of his choice for President and Vice-President unless there are enough of his way
of thinking in the same State to meet in convention and nominate electors to repre-
sent 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 convention or caucus indispensable in all cases and every-
where, for the individual voter cannot 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 con-
vention, 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 interrup-
tion, as in Wisconsin in 1857.

I would prefer that the President should be elected by the people as one community,
giving the election to the man who received the highest number of votes, without re-
gard 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 50,000 votes, and his opponent
may carry the remaining States by such majorities as to give him perhaps half a mill-
ion 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 generally
agreed that we are a nation ; that, however subdivided into States, we are in the

352 COUNTING THE ELECTORAL VOTE.

largest sense oue people. There should be some department of the Government which
represents the whole nation. The Senators are chosen by the State legislatures, and
represent the States in their municipal character. The Eepresentatives 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, becanse the majority of members maybe
elected by comparatively 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 opin-
ion, the President should be elected by the people of the United States as one commu-
nity, 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 iieople,
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 de-
fend ; if he have it not his holding the office is an outrage upon the principles of our
Government, and is unsafe both for himself and for the country. A strong majority
will not i^atieutly submit to a weak minority, who, taking advantage of the faults in
our Constitution, 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 pre-
eminently the man of the people."

Is it true that in electing a President by a vote of the people of the United States
as one community we should thereby substantially impair 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 the President, 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 population of over forty millions. Under the present ap-
portionment the electoral votes of ten States out of thirty-seven may elect a President,
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 of these ten States had voted unanimously for
the same man, a thing which will be likely never to happen. In tlie election of a
President by all the people as one community the votes of all the States would be more
or less divided ; but especially would the votes of the large States be divided, and
thus the relative power of the small States would be increased, and especially as com-
pared with their present mode of voting by electors.

It is true there would be an apparent diminution 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 the Senators, which could not be preserved in the vote of the na-
tion as one community ; but this is more than counterbalanced by the division of the
power of the large States, whose votes given solidly are now a preponderating power
that utterly overwhelms the small States in the presidential election in the electoral
colleges. The comparative or proportional weight of the small States would be imme-
diately and largely increased.

The dangers of sectionalism are greatly enhanced by the present mode of voting. If
a majority of the people in each State iu a particular section of the Union are in favor
of a pai-ticular 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 iu favor of
a presidential candidate who represents that measure or policy ; but if the election of
President was by the popular vote, there would then be a minority iu 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, casting their votes solidly as States, tends to weaken the national idea, to keep
alive the notion that the several States are independent sovereignties, confederated
together for particular purposes ; or, in other words, tiiat we are a confederacy of na-
tions struggling with each other as individuals for the ascendancy. Under the pres-
ent system the States vote and act as individuals, 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 increasing the natural disparity between
them. Accordingly, we have seen for seventy years in the political history of this
country how parties have courted and directed their blandishments to the people of the
large States, comparatively 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 people of the several States,
each State to be divided into as many districts as it has Senators and Representatives,

PROCEEDINGS AND DEBATES IN CONGRESS. 353

eacli 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 tlie candidates for President 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-Presi-
dent, the votes, however, to be given directly for the candidates by the people without
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 single candidate for President, so
that it has hapi)ened, and may happen again, that the solid vote of one of the large
States, which maybe 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, per-
haps 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 eti'ect silencing
the voice and suppressing the wishes of more than two million people. This result
preserves the power and autonomy of the State as a municipal body, which is unneces-
sary and pernicions in the election of a President ; but it is destructive of the prin-
ciple 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 ever intended by the framers of the Constitution. As before stated, they intended
that the electoral colleges should bo free deliberative bodies, the members of which,
after full consideration, 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 particu-
lar persons for President and Vice-President, and the whole set of electors pledged to
vote for the same persons are elected ; 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 elec-
tion would have' less of a State character and be more national. The framers of the
Constitution, intending that the electoral colleges shotild be deliberative bodies, of
course did uot expect tbem to vote solidly for President, but to divide up as delibera-
tive 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 connection that while the doctrine of State
sovereignty has been generally insisted upon as a protection to the smaller States, yet
this particular feature of it has been preserved and strengthened by the largo States
at the expense of the small ones. As before stated, the electors 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 de-
stroy 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
contending 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 dis-
tricts, 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
advocated in this body more than tif ty 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 wisdom 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 —

354 COUNTING THE ELECTORAL VOTE.

exceeding three on the list of those voted for as President, the Honse of Representa-
tives shall choose immediately by ballot 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."

That this provision for electing a President is fraught with danger to the nation
will scarcely be denied by any.

It is matter of history that the election of Mr. Jefferson by the House of Representa-
tives 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 re-
lieve 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 concerned an unpopularity from which they never recovered.

The objections to this constitutional provision 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 population has an equal vote with New York,
having one hundred and four times as great a population. 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 Mr. Adams,
though as I believe without foundation ; but certain it is that the great and patriotic
Clay never recovered from the charge tiiat as a member of the House he cast his vote
and inlluence for Mr. Adams, aud afterward became his Secretary of State.

But I Avill be asked. What is the remedy? I answer that I wouhl be glad if some
method could be devised by which the naticm could escape the danger of having the
House of Representatives to elect a President in any case; but if such is to be the re-
sort 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 Rep-
resentative to have one vote. This would be in exact harmony with the principles
uiJon which the election is now to be made by the people of the several States. Under
the new system which I propose, that the people of the several States shall vote
directly for President, each State is to have as many districts 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 Congress, wby should it not be allowed the same number of
votes when the election is thrown into Congress? It would still preserve in Congress
the same apportionment of power among the States that exists when the election
takes place by electors. It would avert the monstrous injustice of giving the State
of Nevada the same power in the election of the President as has the State of New
York. By this change Nevada would have 3 votes and New York 37, 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 election of President should be thrown into
Congress, than there is by the same apportionment of power now existing in the elect-
oral colleges.

In the election of a President in the House of Representatives under the present ap-
portionment, each State having one vote, forty-five members out of the two hundred
and ninety-two may make the election, as follows: Delaware, Nebraska, Nevada, and
Oregon have each one member, aud four members would cast the votes of those four
States; Rhode Island aud Florida have each two, and four members would cast the
votes of those States ; Minnesota, New Hampshire, West Vi'-ginia, 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 mem-
bers each, and three in each, or nine in all, may cast their votes; Maine and South
Carolina have each five members, three of whoru 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.

Again', these nineteen States have an aggregate popnlation by the census of 1870 of
a fraction over eight millions of people, while the remaining eighteen 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 Presi-
dent in the House of Representatives against the wishes of the other four-fifths. And

PROCEEDINGS AND DEBATES IN CONGRESS. 355

this by courtesy Las been called republican goverument. Compared ■with it the rot-
teu 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 Rep-
resentatives 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 proportional majority of the popular vote
than has any President elected since that time, and who had also a large plurality of
the electoral vote.

There is always danger to a country in an injustice in its institutions, and the danger
increases as the iujustice 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 inequality becomes olieusive,
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 oft'ensive.

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 destruction, and to urge that
the path of duty is the path of safety ; that now, in a time of peace and political calm
thoughout 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 elect-
ors in the States may be contested, so that if it has been controlled by fraud or vio-
lence, or if there be two sets of electors, each claiming the right to cast the vote of the
State, there may be some machinery or tribunal provided by which fraudulent returns
could be set aside or corrected, and the contending claims of difierent 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 Constitution, nor the two Houses of Con-
gress by the operation of the twenty-second joint rule. Patriotic men of all parties
must rejoice that General Grant has been re-elected 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 doubt
in the pultlic mind that the peace of the nation would be imperiled if the result of the
presidential election was to be determined by them.

The plan of dispeusing 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 iuto 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 parties. This natu-
rally 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 consideration in regard to details and method of opera-
tion, into which it is not important Ihat I should now attempt to enter.

The injustice and danger of another election of President by the House of Repre-
sentatives, 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 con -
sideration, with leave to sit during vacation and report to the next session of Congress
the result of their deliberations, and to bring forward such measures 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 ottered by the Senator from Indiana. It provides that a committee be appointed
to sit during the recess. The Senator from Indiana will of course remember that this
Congress expires on the 4th of March and that a committee appointed now could not
be continued 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

356

COUNTING THE ELECTORAL VOTE.

March. It strikes me there would be a difficulty in appointing a committee iu that
way.

As I am on my feet aud as this subject will probably pass from the consideration of
the Senate aud perhaps may not be brought up for discussion again during the present
session, I will say a word or two, lest by silence my consent might seem to be given to
some of the positiims assumed by the Senator from Indiaua iu his very able speech,
which I am glad that he has made. With much that he has said I eutirely concur. In
the apprehensions that he has expressed in regard to the dangers that may 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 tirst place, I do not agree with the Senator from Indiana as to the power of
the presiding officer of the Senate over the electoral vote. The Constitution of the
United States directs that the President of the Senate shall open the votes in the pres-
ence 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 Constitution would have used,
who were very precise and particular in every phrase iu all the instrument, if they had
intended that the President of the Senate should determine as to the validity of those
votes. The language then Avould be, not that the President of the Senate shall open
the votes, but that he shall open and count the votes iu 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, iu the presence of the Senate and the House of
Representatives, 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 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 subject was entirely under the control of the
President of the Senate he would have appointed the tellers, if tellers as a matter of
convenience were necessary. But at the start each house, before it assembled in joint
convention for the purpose of counting these votes or for the pui-pose 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 incon-
sistent with the idea that the opening aud counting of the vote were to be left exclu-
sively in the hands of the President 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
President of the Senate. 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 weut further. In 180U a bill passed the
Senate of the Uuited States, was considered and amended in the House, returned to
the Senate, and the Senate concurred iu 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 majyrities, after long debate, participated in by
the very men who made the Constitution of the Uuited States, and who were then
holding seats in Congress, provided the machinerj' 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 Senator 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 Sisuate, \>iio may not be the Vice-President
of the United States, and often is not, for it is uot 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 of 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 aud is reposed by the Constitution of
the Uuited States iu that officer. The Vice-President need but retire aud allow the
President of the Senate to be chosen by a partisan majority, if you please, iu 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 anticipated by allowing
the two houses of Congress 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 Senate ; and I
think that is the fair construction of the Constitution.

A word as to the mode of electing the President. The Senator from Indiana advo-
cates a chauge of the Constitution of the Uuited States so that the President shall be

PEOCEEDINGS AND DEBATES IN CONGRESS. c57

elected by a popular 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 framers
of the Constitution intended it should be. It is possible that it would be betterto change
the character of our Government and make it one consolidated Government with all
power at the center; 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 jireserved to any
people by a division of the power of the Government. It is by reason of this divi-
sion of power, first between the National and the State governments, and then a di-
vision of the powers of the national Government into legislative, executive, and judicial
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 ditference
whether you have one body or manj\ It is only by the division of ijowers that you
can preserve liberty.

Our Government is not and was not intended to be a pure democracy. It is a repub-
lic 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 uj^ou that principle, and will very soon, I apprehend, run into a despotism.
Governments, in fact, are for the protection of tlie weak, and constitutions are for
the protection of minorities ; and our Government is formed with wonderful wisdom
by the division of powers among the States, and by dividing those poweVs among the
different departmeus of Government.

I am not, therefore, Mr. President, prepared 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 jjeople as one body, and although the Senator avers that our manner now of
electing the President weakens the national idea, I think that was intended. We
know that Presidents have been elected without having a majority 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 ap-
pointed by the Constitution. The people are represented in the other House of Con-
gress ; the States are rej)resented here ; and the President is elected by a combination
of the two — the popular vote as represented in the House, and the States as .repre-
sented 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 electors under the present practice when
the electors 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 determining for whom the
people of a State voted. You may have the same trouble in regard to frauds at an
election or as to the i-esult 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 discussion 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 respects from the Senator from Indiana. I have no objection at all to the adop-
tion of this resolution ; but its practicability in appointing a committee to sit during
the recess is a question that I think ought to be decided by the body.

Mr. Sherman. I suggest to the Senator from Indiana that there is some practical
difficulty about the resolution in the view presented by the Senator from Illinois. I
think the object would be better accomplished by sending the resolution to the Com-
mittee on Privileges and Elections. Our committees expire with the session as a mat-
ter of course, and I do not think Congress has the power to create a joint committee
to continue after the term for which the Congress is elected. I simply submit it to

the Senator from Indiana.

# , # # # # # *

Mr. CoxKLiNG. As I understand it, the motion is to refer the resolution itself to the
Committee on Privileges and Elections ?
Mr. SHERM.\]sr. Yes, sir.
The motion was agreed to.

ELECTION FOR THE TWENTY-SECOND TERM— 1873.

Ulysses S. Grant, President.
Henry Wilson, Vice-President.

In Senate, Fthruary 10, 1873.

Mr. Sherman submitted the following resolution ; which was considered and agreed
to:

^'Resolved, That the Vice-President be authorized to appoint the teller on the part of
the Senate, provided for in the twenty-second joint rule of the two Houses,_to receive
and count the votes for President and Vice-President of the United States."'

The Vice-President appointed Mr. Sherman the teller on the part of the Senate.

358 COUNTING THE ELECTORAL VOTE.

ELECTORAL VOTE OF LOUISIANA.

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 addendum by the Senator from Illinois, [Mr. Trumbull,] 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 :

" ' Besolved, 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 con-
tests, and to guard against and determine like contests in the future election of elect-
ors 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 dis-
cretion, to send a subcommittee 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 employ suitable disinterested and unprejudiced persons,
not residents in either of siich States, with authority to take such testimony as may be
material in determining any pending contest growing out of the election of electors in
either of said States.'

"In obedience to the instruction contained in the foregoing resolution, the Commit-
tee on Privileges and Election have had 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 elec-
tions in that State, provides, among other things, that the governor shall have the power
to appoint ofdcers 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) under whose direction
and authority the voting shall actually take place; that the supervisors of registration
shall also control and direct the registration of the voters in each parish, iixing the
places for registering and the places for voting; that, after the election has taken place,
the commissioners of election shall bring the boxes containing the votes to a certain
point iu the parish, where, under the supervision and direction of the supervisor of
registration, the votes shall be counted; and, when that is accomplished, the supervisor
of registration shall make out a statement of the result of the election at the various
voting-places in the parish, 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 provides that
the governor, lieuteuant-governor, secretary of state, and John Lynch, and T. C. Ander-
son, by name, shall constitute the returning or canvassing board; that the governor of
the State shall, within teu 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
other members of the board, and the vote shall tlien be counted by the board for presi-
dential electors. State officers, and members of the Legislature, and the result asc«^r-
tained; that one copy of the result or tiudiug of the board shall be filed in the office of
the secretary of state, and another shall be published in the official joiirual of the State.

" Governor Warmoth, Lieutenant-Governor Pinchback, and F. J. Herron, acting sec-
retary of state, were members of this returning board, ex officio ; 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 Anderson having been candidates for Congress,
were, by another provision of the law, made ineligible, and were declared, by resolu-
tion, to'be no longer members of the board, and controversy arose iu regard 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 coutrol the vacancies thus created
on this board, by removing F. J. Herron, acting secretary 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, it was claimed that Lynch and Herron, while
yet acting secretary of state, had elected James Longstreet and Jacob Hawkins to fill
these vacancies.

PROCEEDINGS AND DEBATES IN CONGRESS. 359

*' In a proceeding conimeneed in the cironit court of the United States for the district
«f Louisiana, on the 15th of November, Judge Durell granted a preliminary injunction
restraining the Wharton board from opening the ofiQcial returns and counting the votes,
from acting a^ a returning board, making any returns, or prochimatiim of any finding,
until further order of the court, which eoutinued in force until the decision of the case
on the Gth of December.

" The election for presidential electors, members of Congress, State officers, and mem-
bers of the Legislature was held iu Louisiana on the 4th of Deceniber, and the returns
•of the election in the various parishes were sent to the governor by tiie supervisors of
registration, as required by law. The governor 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 jjrepared to make the count before
what is known as the ' Wharton board,' which was then enjoined from further proceed-
ings by Ju<lge Durell. The official returns, which had been sent to the governor, were
by him withheld from the Lynch returning board, and never at any time came into pos-
session t)r under the examination of that board. The Legislature of Louisiana, at its
-session in the wi uter of 1872, passed an act abolishing the returning or canvassing board,
5XS 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 con-
ducting 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 com-
menced 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 IkkI 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 con-
stitution which gave him power to fill vacancies, proceeded to appoint De Feriet and
others as a returning board, and placed in their hands the official returns of the elec-
tion, to be by them counted, to ascertain and declare who were (dected State officei's
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 examined by a deputy
secretary of state named Woodward, acting under Jack Wharton, wlio at that time as-
sumed to be secretary of state under the appointment 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. Messi's.
Woodward and Bragdon, according to the testimony, hxdved over the returns to ascer-
tain who had been elected electors for President and Vice-President, and made a state-
ment 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 elect-
ors in the several States shall meet and 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, afterward, on the
same day, they assembled in the city of New Orleans, and, as electors, voted for Pres-
ident aiid Vice rrcsident. It clearly appears from the testimony that the official re-
turns of the State were never examined and counted for presidential electors by any
]iersons except Messrs. Woodward and Bragdon, and up to this time never have been
examined and counted by the Lynch board or any i)erson having authority what-
ever to make such examinatiim and count. While we have no doubt that the returns
sent to Governor Warmoth from various parishes by the supervisors of registration
will, upon their face, show that the aforesaid persons named as electors, and wdiom we
shall designate as the 'Greeley electors,' received a majority of the votes, that fact
has never been ascertained by any competent authority, and the action of Governor
Warnu)th depended entirely upon "the unauthorized statements of Messrs. Woodward
and Bragdon, who, at that' 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 wefe
nev^er 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 electore, and provides 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 first Wednesday in December,
and the said electors shall annex one of the said lists to each of their votes.' The cer-
tificate of the secretary of state is not required, and the certificate of the governor, as
provided for in this section, seems to be the only evidence contemi)lated by the law of
the election of electors and their right to cast the electoral vote of the State. If Con-
gress 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 States to prescribe what
shall be the evidence of the election of electors, but it is simply going behind the evi-
dence as i>rescribcd bj^ au act of Congress ; and, thus going behind the certificate of

23 X

360 COUNTING THE ELECTORAL VOTE.

the governor, we find tliat the official returns of the election of electore, from the vari-
ous parishes of Louisiana, had never been counted by anybody haviug authority to
count them.

" Some two or three days preceding the 4th of December the Lynch board officially
declared that M. F. Bonzano, J. Lanabere, C. H. Halstead, L. C. Croudanez, A. R. John-
son, Milton Morris, J. Taylor, and John Kay, 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 po.sses-
siou of the office of secretary 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
certihcate of election to the persons so declared chosen as electors, and on the 4th of
December they met and cast their votes for President and Vice-President, according to
the recpiii'ements 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. Bovee, the secretary of state,
got possession of the State seal so as to attach it to their certiticates of election. The
secretary of state had no right, under the law, to make any certificate upon the sub-
ject, unless for the information of the governor, and liis 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 elec-
tion, under the laws of the State, and had no legal evidence before thoni at all upon
which they could count the votes, but their count was made upon documents, affida-
vits, and statements, ex jmrte in their character, having no legal valiility, and which
could not, in the nature of things, form the basis of an accurate and reliable declara-
tion of the result of the election.

'' On the 15th day of November, after the Lynch board had been organized by the
election of Longstreet and Hawkins to fill the vacancies of Pinchback and Anderson,
Longstreet, on the behalf of said board, and designating himself as'dejiuty super-
visor,' demanded of Governor Warnioth that he should biing the official returns of the
election before said board to be counted. This demand Governor Warmoth declined to
comply with, in the following letter:

"'State of Louisiana, Executive Department,

" 'xVeiu Orleans, November 15, 1872.
"'Sir: In reply to your letter, just received, informing me that you have instructions
to see that all election statements of the election of November 4 in this State are pro])-
erly and promptly placed in the possession of said board, and asking that I place the
same in the possession of Special Deputy Marshal \V. F. Loan, in order that he may
deliver the same to Mr. John Lynch, president of the board, I liave to say that I do not
recognize your authority as deputy 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 jiresident of tlie State board of canvassers are,
and will remain, in the possession of myself as president of the State l)()ard of can-
vassers, in accordance with the law of the State, and I alone am authorizeil to hold and
open them.

" 'Very respectfully, your obedient servant,

"'H. C. WARMOTH,

" ' Gove) nor 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 elections, 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 discussion of the legal tiuestion
whether a sufficient foundation had thus been laid for the introduction of secondary
evidence as to the character of the returns, it is sufficient to say that if such founda-
tion had been laid it could onlj^ justify the introduction of secondary evidence to prove
the actual character and contents of the returns, and the testimony before the com-
mittee shows that tlie 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 evidence which in many cases contra-
dicted and denied their correctness. Among other evidences the Lynch board counted
some five thousand affidavits as votes for presidential electors. State officers, and mem-
bers of the Legislatui-e. These affidavits purported to have been made by persons,
mostly persons of color, who had been denied theright of registration, and whosi votes
had been refused at the polls. In many of them it was stated that these rights had
been denied them because of race, coloi", or previous condition of servitude, and many

PROCEEDINGS AND DEBATES IN CONGRESS. S61

of them contained no such statements. It is urjijefl tbat tliese affidavits might bo
counted as votes under the provisions of tlie act of Congress of 1870, to enforce tlie tif-
teenth anieiuhnent of 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 tliat, where a
person has otiered to register or to })erforui any act required by law preliminary to vot-
iug, from the performance of wliich lie has beeu wrongfully hindered by any officer or
jjerson in authority, the ofter to register or to perform the preliminary act shall bo
taken as a performance, and, upon jiroof thereof, such person shall have a right to vote
just as if such preliminary acti had i)e('u performed. But then' is no provision in the
law that if any person has been refusetl the right to vote and has ])erformcd such pre-
liminary act, or offered to perform the same, as provided in the third section, bis offer
to vote sliall be taken and counted as a vote. In the twenty-third section of the act it,
is provided that if any person has been defeated in obtaining an office by reason of such
denial to any person or persons of the right to vote, on account of race, color, or pre-
vious condition of servitude, such person may bring a suit in the courts of the United
States to recover the office ; but the section 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 iu court, to
which the person who, it is claimed, has been fraudulently elected shall be made a
jiarty, and that upon legal proof that the plaintiff has been deprived of his electiou by
the exclusion of jiersons from voting on account of race, color, or pi'evious condition of
servitude, he shall be entitled to recover the office.

"The statute of Louisiana authorizes thes upervisors of registration in the parishes
or the commissioners of election to make affidavit iu regard to any violence, tumult,
fraud, or biibery, by which a fair election has been prevented, which shall be for-
warded to the retTirning 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 satisfy 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 with-
out having the sworn statements of the oiiicers of the election to give them juris-
^iiction to investigate, receive affidavits, the statements of supervisors of electiou ap-
l>ointed under tlie 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 mauy
instances to throw out the vote of particular jdoIIs and wards, and iu others to esti-
mate and fix the vote at about what they supposed it ought to be from their knowl-
edge of the political status of the parish or locality. The evidence submitted to the
board, and which has been described to the committee, undoubtedly produced the con-
viction iu their minds that the election had been an organized fraud. Governor
Warmoth, under the act of 1870, had the whole machinery of the election in his own
hands. He had the appointment of the sui)ervisors of registration in the different
parishes, and tiiey the appointment of commissioners of election, and those officers,
with but few exceptions, were appointed from the ranks of those who were < pposed
to the republican ])arty, and we think from the informal evidence before the returning
board and from what this committee has learned iu 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 Governor 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 iu many
instances were unable to do so ; places of registering and of voting iu many parishes
were fixed at points remote from the centers 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 beeu
cheated and hindered in every way possible by the power that controlled the machinery
of the election. But, notwithstanding 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
investigate these charges of fraud and injury or to act upon 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 returns 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, and their election is not certified by the governor of the
State as required by the act 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 Con-

362 . COUNTING THE ELECTORAL VOTE.

stitution to canvass the returns of an election and count the votes to fletermine who
have been elected ))residential electors, but that the mode and manner of choosing
electors are left exclusively to tlie States. And if hj the law of the State they are to
be elected by the people, the metliod 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 constitutionality 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 electors have ever been counted by the legal
returning bi>ard created by the law of the State, or whether, in making such count,
the board had before them the othcial returns, the committee ofltr no suggestions, but
present only a statement of the facts as they understand them.

"As to the other questions upon which the committee are instructed to report, touch-
ing the existence of a legal State government in L(misiana and the admission of a
Senator from that State, they are not now prepared to report.

"Addendum hy Mr. Morion.

"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, npon the ground that the decision was made sul)sequentto 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 uot be placed in possession of all the material facts, without a state-
ment 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 sufficient 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 dis-
trict court of Louisiana by the attorney-general, on the information of the returning
ofiflcers 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 Warmoth, Hatch, Da
Ponte, and Wharton were made parties. Tliis case was appealed to the supreme court.

of the State, and by that court decided on the of January, 1873. The court held

that the Ijoard consisting of Lynch, Longstreet, and Hawkins, together with Governrtr
Warmoth and Mr. Bovee, who was the secretary of state who had been suspended by
Governor Warmoth when he first api>ointed Herron, and who had been restored by a
decision of the supreme court, constituted the legal returning board, and that D;v
Ponte, Wharton, and Hatch had no authority whatever.

" O. P. MORTON.
"Addendum hy Mr, Irumhull.

" My understanding of the evidence is that Governor 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 14 he removed Herron as a de-
faulter, and in his place appointed Wliarton, who qualified and took possession of the
oflice 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 vacancies in it had been filled by Warmoth and
Wharton, l)y the appointment of Hatch and Da Ponte, Bragdon was appointed assist-
ant secretary of the board. Governor Warmoth opened the official returns in their
presence, and the assistant secretary counnenced their tabulation, but before complet-
ing it the Wharton board was enjoined from further proceeding by the United States
district judge, Durell.

" Bragdon, who was private secretary of the governor, as well as assistant secretary
of the Wharton board, and in whose possession the returns remained, assisted by Wood-
ward, w!io w;is then assistant secretary of state uiuler Wharton, as he had previously
been under Herron, continued the tabnlation of the returns for electors till it was com-
pleted, when Governor Warmoth gave a statement of the result to the electors who
who were elected according 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 lias been described to
the committee, undoubtedly 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 carried the State,
and had been cheated and hindered iu 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 ae

PROCEEDINGS AND DEBATES IN CONGRESS. 363

elected vrithout the semblance of an official return before them, and in some instancea
upon spurious, forged, and false affidavits, as the evidencebefore the committee shows,
ali'oids no evidence to my mind that they supposed a fair election had not luen licld.

"LYMAN TRUMBULL."

In the House of Representatives, February 10, 1873.
The Speaker. The Senate has sent to the House a notification of i ts appoiiitmeut
<jt 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 iu)minates Mr. Henry L. Dawes, a Representative from the State of
Massachusetts, and Mr. James B. Beck, a Representative from the State of Kentucky.

In the House of Representatives, February 12, 1873.

COUNTING <}F ELECTORAL VOTE.

Mr. Dawes. I offer the following resolution :

'^Resolved, That tlie 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. BiXGiiAM. Is not the hour fixed by the rule at one o'clock ?

Mr. Dawes. The hour at which th« proceedings should commence is fixed by th«
Tule. But it will take a little time to make the preliminary arrangements.

The resolution was adt)pted.

Mr. Dawks moved to reconsider the vote by which the resolution was adopted ;
aiK'i also moved that the motion to reconsider belaid on the table.

The latter motion was agreed to.

In Senate, February 12, 1873.

Mr. McPherson, the Clerk of the House of Representatives, appeared at the bar of
the Senate, and delivered the following message :

Mr. President, I am directed toinform the Senate that the House of Representatives
is now ready to receive 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 Rei)resentatives,
annonucing that they are in readiness for the entrance of the Senate, to count the
electoral voteis.

Mr. Sherman. The hour fixed by the joint rule is one o'clock, and according to the
5)recedent four years ago, when a similar message 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
I'ule.

The Vice-President. If there be no objection, the Chair will submit the message
«of the Hou.se at about five minutes before one o'clock, so as to ena])le the Senate to
arrive in the Hall of the House of Representatives at one o'clock. The Senator from
ludiana will resume.

Mr. Pratt resumed and concluded his remarks.

The Vice-President. The Chair submit.s a message received from the House of
RepresentatiA «s, which will l>e reported by the Secretary.

The Chief Clerk read as follows :

" In the Hou.se of Representatives, February 12, 1873.
" liesolved, 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 Unite<l 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, preceded by the Sergeant-at-Arms, will now
repair to the Hall of the House of Representatives.

The Senate thereupon proceeded to the Half of the House of Representatives.

In the presence of the Senate and House of Representatives,

February, 12, 1873.
counting the electoral votes.
At one o'clock p. m. the Doorkeeper announced the Senate of the United States.
The Senate eutered the Hall, preceded by its Sergeant-at-Arms and headed by th»
Vice-President and the Secretary of the Senate, the members and ollicer.s of the Housft

364 COUNTING THE ELECTORAL VOTE.

rising to receive tliem. The Senators took the seats set apart for them in the eastern
section of tlie Hall.

The Vice-President took his seat as the presiding officer of the joint convention of
the two Houses, the Speaker occupying a chair on the left of the Vice-President.

Senator Sliermau, of Ohio, the teller appointed on the part of the Senate, and Messrs.
Dawes, of Massachusetts, and Beck, of Kentucky, 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 VickPrk.sident. The Senate and House of Representatives having met under
the provisions of the Constitution for the purpose of opening, determining, and declar-
ing the votes cast for President and Vice-President of the tJnited 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 band to the tellers the votes of the
several States for President and Vice-President of the United States, commencing
with the State of Maine.

Senat<u- Sherman (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 United States.

Senator TitUMnuLL. I think the governor's certificate should be read as the evidence
of the election of the electors.

The V:ck-Pr]':sident. The tellers Avill report the certificate.

Senator Sherman (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
executive of the State of Maine?

Senator Sherman. The signature of Sydney Perham, as governor^ is in the center
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 certificate had been read in full, the reading in
full of the subsequent certificates has been dispensed with by general consent, unles*
some Senator or Representative in a particular case called for the reading of the entire
certificate. If no person objects, thei-efore, the tellers will report the material part of
the subsequent certificates, subject, however, to the demand of any Senator or Repre-
sentative that the document shall be read in full.

Senator Trumbull. I desire that the certificate of the executive to the election of
the electois should be once read in each case. I wish to take up no unnecessary time,
but I think it important, as some question may possibly arise on that subject, that tho
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 certificate of the Governor of New Hamp-
shire as to the election of electors of President and Vice-President of the United States^
and announced the electoral votes of the St.ite for those two olficers.

Senator Hamlin. I beg to suggest to the Senator from Illinois [Mr. Trumbull]
whether it will not answer his purjiose entirely if the tellers should announce the face
that the certificates of election of electors are signed by the governor and countersigned
by the secretary 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 Trvmbuix. Mr. President, it will be entirely satisfactory to me if the tellers
will exauiiuethe papers in each case and see whether the proper certificate of the exec-
utive of the State accompanies the list of votes, and will announce that fact with ref-
erence 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 course, that the read-
ing of tlie certificate in full maj^ be demanded in any case.

The Vice-Prksii>ent. 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
Representative 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 tellers,) announced the electoral vote for Presi-
dent as follows :

" B. Gratz Brown, of Missouri, six votes ; Horace Greelej', of New York, three votes;
Charles J. Jenkins, of Georgia, two votes."

PROCEEDINGS AND DEBATES IN CONGRESS. 365

The vote for Vice-President was annonncefl, as follows :

" B. Gratz Brown, of Missouri, tive votes; Alfred H. Colquitt, of Georgia, five votes;
Nathaniel P. Banks, of Massachusetts, one vote."

[Lantjhter.]

Mr. Hoar. I desire to make the point that the three votes reported by the tellers as
liaving been cast for Horace Greeley, of New York, cannot be counted, because the i)er-
son for whom they purport to have been cast was dead at the time of the assembling
■of the electors in that State.

The Vice-Prksident. 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 qnestion 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 ujanner submit said qnestion to the House of Representatives for its de-
cision ; and no question shall be decided affirmatively, and no vot« 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 qnestion submitted ; and upon any such qnestion 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 man-
ner."

On previous occasions, since this rule han 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 sub-
ndtted 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 Conklixg. While the gentleman 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
separating at this moment. Gentlemen know that a separation, to deliberate upon
another point or two, is quite likely to occur; and I siiggest that if this question can
be ]iassed 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 ques-
tions which may remain for decision, one single separation of the joint convention and
one coming together will suffice.

The Vice-Prksident. 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 understood as so reserved.

The tellers resumed the reading of the certificates. When the vote of the State of
Mississippi was announced,

Mr. Senator Sherman (one of the tellers) said : As the form in this case is some-
what ditt'erent from the others, I will read the certificate of the Governor :

"On this Wednesday, the 4th day of December, 1^72, at the city of Jackson, in the
State of Mississi]>pi, the electors thereof assembled for the purpose of voting for Presi-
dent 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."

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 Mississippi, <tn the ground there is no certificate
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
precedenr when an objection is raised to pass it over and go through with the vote in
a matter of such grave importance as this, I will present 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.

366 COUNTING THE ELECTORAL VOTE.

Senator Sukrman (one of the tellers) then read a certificate stating that the electors
of the State of Mississippi had assenihled tor thei)nrposeof giving their votes lor Pres-
ident aud Vice-President of the United States, and that A.T.Morgan, one of the elect-
ors, not heiug present, they had dnly appointed J. .J. Spellman 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 aud 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 he now presented to the convention.

Mr. Hoar. I have reduced it to wriling, and will send it up to the Clerk's desk.

The Vice-President. Under the twenty-second joint rule the presiding otti(^er now
suhmits to tbe Senate and House of Kepresentatives in joint convention the objection
of the gentleman from Massachusetts, [Mr. Hoar.] It will be reported.

The Secretary of the Senate read as follows :

"Mr. Hoar objects, the votes reported by the tellers as having been cast by the elect-
ors of the State of Georgia for Horace Greeley, of New York, cannot legally be counted,
because said Horace Greeley, for whom they ajjpear to have been cast, w^as dead at
the time said electors assembled to cast their votes and was not a person within tho
meaning of the Constitution, 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 Sen-
ate and one for the House of Ilepresentatives, to be submitted to each House after
the Senate repairs to its Chamber.

The Senator from Illinois [Mr. Trumbull] makes the following point, wliich the
presiding officer now submits to the two bodies in joint convention.

The Secretary of the Senate I'ead as follows :

"Mr. Trumbull objects to counting the votes cast for President and Vice-President
hy the electors in the State of Mississippi, for the i-eason it does not appear from the
certificates of said electors that they voted by ballot."

Senator Tri'muull. I should like to have read agaiu the certificate of the gov-
ernor of Mississii)])!, 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 i)a-
pers cannot be before both Houses when we separate, 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 officer, one sent by mail aud 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 copie*
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. Trumbull] lies against
both papers, that they do not state the electors voted by ballot.

Mr. Potter. Mr. President, I desire to inquire, because we could not understand
here as reported by the tellers, whether the supplemental certificate, as I may call it,
from the State of Miasissippi in respect of the elector elected to supply and take the
place of the elector who is absent, is signed by the governor or not ?

The Vice-President. It is signed by the secretary of state only.

Mr. Potter. Tlien, Mr. President, I desire 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 accord-
ance with the laws of that State, is not signed by the governor of that State.

The Vice-1'resident. It has been suggested that perhaps it may not be exactly
correct, under the Constitution, for the President of the Senate to leave in possession
of the House any official document in his pi).s.ses>,i()n 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 came by mail, unless
there is objection the Chair will leave in the possession of the House of Representa-
tives, for reference and consultation by its members, the document which was trans-
mitted to him by mail, retaining in his otiicial 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 member of the House who has seen the certifi-
cate of the State of Mississip])i to which I have referred, I ask leave to make an addi-
tion to the objection I have ottered.

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 Mississippi, because the certificate
declaring that J. J. Spellman was appointed an elector in the stead of A. T. Morgan,

PROCEEDINGS AND DEBATES IN CONGRESS. 367

absent, bj- 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 certiticate of the secretary of state read does not certify any-
thing of his own knowledge, but only states he has been so notified as he certifies."

The ViCE-PiJESiDENT. Three questions having arisen in regard to the counting of
tlie votes for President and Vice-President, the Senate Avill now withdraw to their
Cliaiuher.

The Senate accordingly retired.

In the House of Representatives, February 12, 1873.

The Speaker, having called the House to order, said: In the joint convention for
counting the electoral votes an objection was made by the gentleman from Massachu-
setts [Mr. Hoar] against countiug the return from the State of Georgia. The Clerk
Avill read the objection.

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 Cleorgia 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 tbe meaning of the Constitution, this being a historic fact of which the two
Houses may properly take notice.

Mr. Hoar. I otFer the following resolution:

The Clerk read as follows :

" /.Vso/rw/, That the votes reported by the tellers as having been cast by the electors
of the State of Georgia 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. Certainly it is.

The Speaker. The Chair doubts whether it would be. All debate is absolutely
prohibited ; and whether that would be in the nature of debate would be a grave
point.

Mr. Banks. Under Avhat rule ?

The Speaker. The Chair will direct the reading of the rule.

Mr. Farxswortii. 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 object, if the point is not raised. The Chair di-
rects 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 certiticate 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 questi<m shall be sub-
mitted 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 toshall
be counted, except by the concurrent votes of the two Houses; which being obtained,
the two Houses shalHmmediately re-assemble, and the presiding officer shall then an-
nounce the decision of the ([uestion 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 man-
ner."

Mr. CoGHLAN. Should not this be a concurrent 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 oft'er 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 modification is necessary, because the resolu-
tion 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 ac-
cordance with his suggestion.

Mr. Lowe. I desire to make a parliamentary inquiry, and it is whether the question

368 COUNTING THE ELECTORAL VOTE.

to he snbuiitted to the House is not simply on tlie point of order made in the joint con-
vention ?

The Speaker. It is no point of order in the sense of a point on which the Chair can
rule.

Mr. Lowe. Do Ave not act directly on the matter presented to the joint convention T

The Speaker. The Chair thinks that this is the proper mode of disposing of the
case.

The Clerk then read the resolution as modified by Mr. Hoar, as follows:

" licsolred, 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 Georgia 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. Mac'Lntyre. 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 A'oting against the reso-
lution.

Mr. Banks. I rise to a point of order; and it is that we have no power to decide on
the eiigiliility of any man voted for for President.

Mr. BlNXiHAM. Is debate in order ?

The Spp;aker. It is not. That is a reason for not voting for the resolution. But
the joint rule forbidding debate on these questions is one of the highest political ne-
cessities, fur if debate was allowed on such questions it might be in the power of one
branch of Congress 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
questions 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
decide ?

Mr. Ba>'ks. I submit it to the House.

The Speaker. It is a question for the House to determine in voting upon the reso-
lution. 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 aud nays were ordered.

The question was taken ; and it was decided in the affirmative — yeas 101, nays 99,
not voting 4U; as follows:

Yeas — Messrs. Ames, Averill, Barber, Barry, Beatty, Biggs, Bingham, Bird, James
G. Blair, Braxton, Bright, Buckley, Buftinton, Bunnell, Bnrchard, I3urdett, Roderick
R. Butler, Clarke, Coburn, Coghlan, Coniingo, Critcher, Davis. Dawes, Dickey, DuBose,
Dunnell, Ennies, Elliott, Esty, Wilder D. Foster, Garfield, Hale, Harmer, Hiirper, George
E. Hnnis, .John B. Hawlev, Joseph R. Hawley, Hay, Hays, Gerry W. Hazelton, John
W. Hazelton, Herndon, Hoar, Hooper, Houghton, Kelley, Kerr, Ketcham, Killinger,
Lamport, Lansing, Leach, McCrary, McGrew, McHenry, McKee, Merriam, Merrick,
Monroe, Moore, Leonard Myers, Negley, Orr, Packard, Packer, Palmer, Isanc C. Parker,
Peck, Perce, Peters, Porter, Rainey, Randall, Ritchie, Ellis H. Roberts, Robinson, Rusk,
Sargent, Sessions, Sherwood, Shoemaker, H. Boardman Smith, Sprague, Staikweather,
Sypher, Taffe, Washington Townsend, Turner, Twichell, Tyner, Upson, Voorhees,
Waddell, Wakeuuin, Waldron, Wallace, Wheeler, Williams of Indiana, Jeremiah M.
Wilson, and John T. Wilson— 1(11.

Nays — Messrs. Acker, Adams, Ambler, Archer, Arthur, Banks, Barnum, James B.
Beck, Bell, B^les, Caldwell, Carroll, Cobb, Conger, Conner, Cotton, Crebs, Crocker,
Crossland, Donnan, Dox, Dnke, Eldredge, Ely, Finkelnburg, Charles Foster, Henry D.
Foster, Garrett, Getz, Giddings, Golladay, Griffith, Hahlenian, Hancock, Handley,
Hanks, John T. Harris, Hereford, Hibbard, Holmau. Kellogg, Kendall, Kinsella, Lani-
ison, Lowe, Lynch, Maclutyre, Manson, Marshall, Maynard, McClelland, McCormick,
McJunkin, McKinney, Mitchell, Morgan, Morphis, Silas L. Niblack, William E. NiV»-
lack, Hosea W. Parker, Pendleton, Perry, Poland, Potter, Price, Priudle, Read, Ed-
ward Y. Rice, William R. Roberts, Sion H. Rogers, Roi sevelt. Sawyer, Scofield, Shel-
don, Shellabarger, Shober, Slater, Slocum, John A. Smith, Speer, Stevens, Stevenson,
Storm, Stouvditon. Stowell, St. Jolm, 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, Bigby, Austin Blair, Boarman, Brooks,
Benjamin F. Butler, Campbell, Cox, Creely, Darra'll, Dod Is, Duell, F-.rnsworth, Far-
well, Forker, Frye, Goodrich, Halsey. Hambleton, Havens, Hill, King, Lewis, McNeely,
Benjamin F. Meyers, Mcuvy, Piatt, John M. Rice, John Rogers, Seeley, Shanks, Sloss
Worthiugton C. Smith, Snap^i, Snyder, Swaun, Dwight Townsend, Tuthill, Walden?
and Whitthorne — 40.

So the resolution was agreed to.

Mr. Hoar moved to reconsider the vote by which the resolution was adojited ; and
also moved that the motion to reconsider be laid on the table.

The latter motion was agreed to.

PROCEEDINGS AND DEBATES IN CONGRESS. 369

Mr. Kekr. I offer the following resolution : ,-, i *

"7.Vso/mZ, That in the opinion of this House the votes cast for Horace Greeley, of
New York, for Piesident of the United States, by the electors should be counted by the
tellers as blank votes." . . ^^ , , t , t

The Spkaker. The Chair thinks the House, by its resolution just adopted, has dis-
posed of the question raised in the joint convention.

Mr. Kkhk. Would it not be in order for the House to vote on the resolution 1 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 resolutiou thereon. .

Mr. Kerr. I desire to make a parliamentary inquiry. Does the Chair rule my reso-
lution out of order by reason of anything contained in the joint ruleof 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 con-
vention was read to the House, and the House, by a vote of 101 to 9d, has disposed of
that point. There is, therefore, nothing before the House upon which the gentleman
can base his resolution.

Mr. Kerr. I beg to submit one other consideration. I agree that the House has
disposed 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 resoln-
tion now proposes to go, to declare that it shall be the affirmative duty of the tellers to
inform the joint convention how many blank votes have been cast, and to reckon the
votes cast for Horace Greeley 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. Tiie House has already declared by resolution that the votes cast
for Horace Greeley were void votes. The gentleman from Indiana [Mr. Kerr] now
asks the House to pass a resolution declaring that the votes cast for Horace Greeley
were not (Uily void votes but that they were cast for Mr. Blank; which is an absurdity.

The Speaker.. There is no question before the House.

Mr. Kerr. Allow me to say

The Speaker. Tlie Chair does not intend unnecessarily to deprive the gentleman
from Indiana [ilr. Kerr] of the right of discussing a point of order. But the rule of
the two Houses is very absolute, an<l in the general judgment very necessary, that no
debate shall be allowe'duuder the circumstances. This is in the nature of debate. And
if the debate can exist lawfully under the rules for ten minutes, it may extend tor
ten hours, and for ten weeks. Theref(n-e, it is the duty of the Chair, a duty more in-
cumbent upon hiin 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.

COUNTING THE ELECTORAL VOTES.

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: -i x

"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. Dawes. I submit the following resolution :

"Resolved, That in the judgment of this House the eight votes reported by the tell-
ers as cast by electors in and for the State of Mississippi ought to be counted as re-
ported by them." • a •

Mr. Ambler. Does not the question now presented involve also the point raised in
joint convention by the gentleman from New York, [Mr. Potter?]

The Speaker. No matter whether it does or not, the Chair cannot take note of

Mr. Ambler. I move to amend the resolution by striking out "eight" and insert-
ing "seven."

The Speaker. The Chair did not suppose a division would be called or an amend-
ment ottered on this resolution. Tlie gentleman from Massachusetts [Mr. Dawes] is
entitled to be recognized to try the sense of the House upon ordering the previous
question. The gentleman will state whether he yields for an amendment.

Mr. Ambler. I think the question presented by my amendment should be submit-
ted to the House.

Mr. Potter. The Constitution provides that these votes of the electors shall be cast
bv 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.

370 COUNTING THE ELECTORAL VOTE.

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. ILvNDALL. 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 Speakki:. The Clerk will read the ohjection made in the joint convention by
Mr. Potter, a Representative from the State of New York.

The Clerk read as follows :

"Mr. Potter objects to the counting of one vote of the State of Mississippi, because
the certificate declaring that J. J. Sjielhnan Avas 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 the state ; and farther, that the certifi-
cate of the secretary of state read does not certify anything of his own knowledge, but
only states he has been so notified, as he certities."

Mr. Banks. I ofiier a resolution upon that point.

The Speaker. The Chair will he compelled to recognize the gentleman [Mr. Pot-
ter] who rrdsed the point in the joint convention.

Mr. Eldredge. 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 propo-
sition 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 resolution :

^' liesolved, 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 ap]iears by the certificate of the executive of that State to
have been an elector of that State, but by .James J. Spellman, and there being no cer-
tificate from the executive authority of that State certifying the appointment of said
James J. Spellman as an elector of sueh^State, that one of the electoral votes be re-
jected, and seven electoral votes only be counted for that State."

Mr. Banks. I oli'er the following resolution as a substitute for the resolution just
read : ,

" liesolrcd, That the electors of the State of Mississippi, having been appointed in the
manner directed 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 gover-
nor 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 electors are 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
17<J2.

Mr. Banks. I object to the reading of the statute.

Mr. Randall. Is it not in order to ask for the reading of the certificate of the elect-
oral college of Mississii)pi, together with the governors 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. Trumbull] and the resolution of his colleague, [Mr.
Dawes,] 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 bo counted so fax as concerns the objection that the certificate
does not specify the votes of the electors to have been cast by ballot. Now the gen-
tleman from New York [Mr. Potter] 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 electors were chosen
in compliance with the laws of the State.

Mr. Randall. I want to get at a history of the facts.

Mr.DicKEY. lobjecttothisHouseembarkingonanyquestionof history. [Laughter.]

Mr. Eldiu:dge. I would like to make a i)arliamentary 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 resolution 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 entertain that as a point of order. As the read-
ing 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 :

PROCEEDIXGS AND DEBATES IN CONGRESS. 371

State of Mississippi, Executive Department,

Jackfion, JiJiss., December 4, 1872.
" At tlie election belil in the State of Missi.<sippi on tlie tiist Tuesday in November,
A. D. 1872, the followinj; jH-rsons were elected by a majority of the legal voters of the
said State as electors for President and Vice-President of the United States: H. ().
Carter, \V. H. Gibbs, W. F. Simonton, James Hill, A. K. Davis, A. F. Morgan, W. H.
Harnev, S. J. Ireland.

" In'testiniony whereof I have herennto set my hand and caused the great seal of the
State of Mississippi to be affixed at the city of Jackson, this 4th day of December, A. D.
1872.

[L. s.] "E- C. POWERS, Governor.

" By the governor :

" James Lynch, Secretary."

"State of Mississippi, Executi%te Department,

'^Jackson, Miss., December 4, 1872.

"This is to certify that on this 4th day of December, A. D. 1872, I was notified liy
the college of electors of the State of Mississippi that at a meeting then being held
by them for the purjiose 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 till the' said vacancy, the said appointment being made in accordance
with section three hundred and eighty-two. Revised Code, 1871, of the State of Mis-
sissippi.

" In testimony whereof, I have hereunto set my hand and fixed the great seal of the
State this 4th day of December, 1872.

[L. s.] " JAMES LYNCH, -Secreto-i/."

" On this Wednesday, the 4th day of December, A. D. 1872, at the city of Jackson, in
the State of Mississippi, the electors therefor assembled for the purpose of voting for
President and Vice-President of the United States, and they accordingly voted, witi>
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. CARTEI?
"W. H. GIBBS.
"W. F. SIMONTON.
"JAMES HILL.
"A. K. DAVIS.
"JAMES J. SPELLMAN.
"WM. H. HARNEY.
"SAM'L J. IRELAND."

Mr. Conger. I ask that the point of order raised in joint convention by the g n-
tlemau from New York [Mr. Potter] be again read.

The Clerk then read the objection made by Mr. Potter, 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. EiJ)iiEi)GE. The House has already determined to count the eight votes of
Mississippi, aud I make the point this resolutiou 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 wcmls "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 question.

Mr. Duke. If it be in order, I ask to 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 debate.

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.
Potter.

The House divided ; .and there were — ayes 109, noes 33.

So the substitute was agreed to.

The resolution, as amended, was then adopted.

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.

372 COUNTING THE ELECTORAL VOTE.

The Clerk road as follows:

" liesolrcd, That the Clerk of the PTonse be directed to inform the Senate that the
House of Ke|iri\sentatives has acted on the (inestion submitted this day by the joint
convention of the two Houses in reference to counting the \otes for President and Vice-
President of the United States."

Mr. Banks. I move to amend by inserting copies of the resolution adopted by the
House.

Mr. Garfield, of Ohio. Should not that be done in joint meeting ?

Mr. BiXGiiAM. Let them have an op})ortuuity to concur under the twenty-second
rule.

The SrEAKKR. The Chair has directed the Clerk to communicate to the Senate
copies of the resolutions adopted by the House.

Mr. Garfield, of Ohio. 1 have no objection to amending my resolution iu that re-
spect.

Mr. Hoar. Should not the resolution read in pursuance of the joint rule?

Mr. Garfield, of Ohio. I have no objection to that.

The Speaker. The Clerk will communicate to the Senate copies of the resolutions
adopted by the House.

The resolution, as modified, was adopted.

Mr. Garfield, of Ohio, moved to reconsiderthe vote by which the resolution, as mod-
ified, 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 rec ss having expired, the House re-assembled at three o'clock and twenty-five
minutes p. m.

MESSAGE FROM THE SENATE.

A message from the Senate, by Mr. Sympson, one of its clerks, informed the House
that the Senate had passed the following resolutions:

" Eesoh-cd, Tiiat the electoral votes of Georgia cast for Horace Greeley be counted.

" L'l'fiolfcd, Tiiat the vote cast by James J. Spellman, cue of the electors for the State
of Mississi])])!, be counted.

" I'csi)lrid, That the electoral vote of the State of Mississippi be counted."

Tlic message further announced that the Senate is ready again to meet the House,
that the counting ot the electoral votes may be proceeded with.
COUNTING OF ELECTORAL VOTE.

Mr. Dawes. I offer the following resolution :

" liesolrcd, Tiiat a message be sent to the Senate, to inform that body that the House
is ready to reireive the Senate, to jjroceed 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.

In Senate, Feiritary 12, 1873.

The Senate returned to its Chamber at eight minutes past two o'clock p. m.

The Vice-President. Upon the counting of the votes for President and Vice-Presi-
dent, in the presence of the two Houses, three questions arose and were stated by the
l>residing otficer, and the Senate has returned to its Chamber, under the twenty-second
joint rule, f<ir the purpose of deciding them. The Secretary will report the first ob-
jection. The twenty-second joint rule will be found ou page 178 of McDonald's
Digest.

The Secretary read as follows :

" Mr. Hoar oiijects 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 menning of the Constitution, this being an historic fact of which the two Houses
may properly take notice."

The Vicic- President. The Secretary will report from the certificate of the electors
of the State of Georgia the substantial part bearing upon this question.

The Sei^reiary read as follows:

"That %\itj said electors, being assembled as above mentioned, and all present, pro-
ceeded to voie by ballot for a President of the United States for tlie term of four years
from the 4tli 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 Grce'ey, of the State of New York, 3 votes; and Charles J. Jenkins, of the State
of Georgia, 2 votes; 11 votes in all being given by the electoral college."

PROCEEDINGS AND DEBATES IN CONGRESS. 373

The Vice-President. This qnostion is now submitted to the Senate for its decision,
which, under the twenty-second Joint rule, must be without debate. The Secretary
will rejxjrt the part of the twenty-second joint rule bearing on this question.

The Secretary read as follows :

" If, njion the reading of any such certificate by the tellers, any question shall arise
in regaul 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 Representa-
tives 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 ob-
t;niied, the two Houses shall immediately re-assemble, and the presiding officer shall
then announce the decision of the question submitted, and upon any such (jtiestion
there shall be no debate in either House ; and any other question pertinent to the ob-
ject for which the two Houses are assembled may be submitted and determined in like
uuinuer."

Mr. Alcorn. I ask leave to offer a resolution, 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 i^recise terms of the decision
must be connnunicated 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. President; is the objection of the member from
Massachusetts now up?

The Vice President. The first question 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:

'■• Ri'Siilrcd, 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 Constitu-
tion under which the votes are counted f

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 inliabitant of the same
State with themselves ; they shall name in their l>allots the person voted for as President,
and in distinct ballots the person voted for as Vice-President, and they shall niakedis-
tinctlisfs of all persousvoted for as President and of all persons voted for as Vice-Presi-
dent, and of the number of votes for each, which lists they shall sign and certify and trans-
mit 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 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 per-
son have such majority, then from the persons having the highest numbers not ex-
ceeding three on the list of those voted for as President, the House of Representatives
shall choose immediately by ballot 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 follows:

" ResoJrcd, That the electoral votes of Georgia cast for Horace Greeley be not counted.'

Mr. Thurman. I move to amend the ies(dution l)y striking out the word " not."

Mr. Edmunds. On that amendment I ask for the yeas and nays, only because it is
a matter 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.

Mr. Scf^TT. I have drawn wliat I propose as an amendment to the amendment :

" That the votes for Horace Greeley are entitled to be counted, postponing the ques-
tion of the legal effect of votes east for a man who shall appear to have been dead
when they were cast, until the whole vote shall come to be counted."

374 COUNTING THE ELECTORAL VOTE.

The Vice-President. That would be a substitute

Mr. Edjiuxds. 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 i)resented by
the Senator from Pennsylvania his i)ropositiou would be a substitute for the resolu-
tion ; and therefore the first question according to parliamentary law would he on the
amendment of the Senator from Ohio to perfect the resolution. But the Cliair sustains
the point made by the Senator from Vermont that this is not a decision of tlie ipies-
tion. When the two branches meet in their respective Chambers, they must, in tin*
language of tlie 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 amend-
ment 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.
Conkliug, Cooper, Corbett, Cragin, Davis, Fenton, Ferry of Michigan, Flanagan, Fre-
linghuysen, Gilbert, Goldthwaite, Hamilton of Maryland, Harlan, Hitchcock, Johnston,
Kelly, Lewis, Logan, Machen, Morrill of Maine, Norwood, Patterson, Pool, Kansom,
Rice, Saulsbury, Sawyer, Schnrz, Scott, Sherman, Sprague, Stevenson, Stewart, Stock-
ton, Thurman, Tipton, Trumbull, Vickers, and Wright— 47.

Nays — Messrs. Ames, Boreman, Bnckiughain, Caldwell, Chandler, Edmunds, Ferry
of Connecticut, Hamilton of Texas. Hamlin, Hill, Howe, Morrill of Vermont, Morton,
Nye, Pratt, Robertson, West, and Windom— 18.

Absent — Messrs. Brownlow, Cameron, Osborn, Pomeroy, Ramsey, Spencer, Snraner,
and Wilson — 8.

The A'ice-President. The amendment is agreed to, and the word "iiot " 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 I)e if my amendment were adopted.

"Bcsolred, 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 ministerial merely, and this question be-
ing iiidi'iiendent of the (luestioii of the effect of the votes or of the count."

I ofi'er thes(; additional words as an amendment

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 amendment is to add to the resolution the follow-
ing:

"The function of the joint convention being ministerial merely, and this question
being indei)endent of the question of the effect of the votes or of the count."

Mr. SiiF.iJMAN. I hope the Senator from New Y(Hk will withdraw that. It requires
us to vote on a question of great difficulty without debate. The precise function of
the joint convention is one of the most delicate and difficult questions in our system.

Mr. CoNKEiNG. I think if my friend will attend to tlie resolution he will not ask
me to withdraw the amendment on that ground. I have no right to del>ate 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 Ixxly to that single point, so as not to have the vagueness of the reso-
lution imply that we intend to say anything as to the effect of the count after it is
made.

Mr. Anthony. Is there any joiut convention ? Is there any such body as a joint
convention ? Has it any fnnctions at all?

The Vick-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 parliamentary question for the Chair it would not
be debate ; but it is a constitutional question that the Senator from Rhode Island is pi-e-
senting, and such an inquiry is in the nature of debate.

Mr. Stewaiit. I would suggest an aniendment

Mr. CoNKLiNG. If my friend will allow me, in consequence of the remark of the Sen-
ator fnun 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
tlii i 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 sugoest to the Senator from New Y'^^ork to strike out the wi)rds "joiut
convention " and insert " the two Houses."

PROCEEDINGS AND DEBATES IN CONGRESS. 375

Mr. CONKLIXG. I accept the amendment.

The Vice-Pkksident. The amendment is modified so as to say/' two Houses " instead
of "joint convention."

Mr. Stewart. I move a substitute, to come in after tlie other words, to this effect:

" Be counted for the purpose of ascertaining the wliole number of electors appointed."

The ViCE-PREsft>EXT. Will the Senator from Nevada state whether he offers an
amendment to the resolution or au amendment to the amendment of the Senator from
New Yorkf

Mr. MoRTOX. 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 proposition for the present.

The Vice-President. The question is on the amendmeut 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 fuuction 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 re-
cital 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 Senate for its decision.

Mr. Hamlix. 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 — ayes 25, noes 32.

Mr. CONKLIXG. I ask for the yeas and nays.

The yeas and nays were ordered.

Mr. CoNKLixG. Now will the Chair be kind enough to state the question to the
Senate?

The Vice-President. The Senator from New York having moved an amendment
to add to the resolution what has been reported, the Senator from Delaware makes the
point of order that it is not in order under the twenty-second joint rule as an amend-
ment, it beiug 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 au amendment under the twenty-second joint
rule.

Mr. Carpenter. After which the question will be upon agreeing to the amend-
ment ?

The Vice-President. The first question will be on receiving the amendment.

Mr. Carpenter. But afterward ? We do not vote on the amendment now.

The Vice-President. The first question is, whether the amendment can be received
under the twenty-second joint rule f

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 stenographer who took down the Senator's words has
gone out of the Chamber. If there be no objection, the Senator froin Delaware will
8ta\e his point of order specifically.

Mr. Hamlix. Will the Chair permit another Senator to state the reasons why this
amendment is in order ?

The Vice-President. The Chair thinks that would not be in order.

Mr. Hamlix. 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, Carpenter, Chandler, Clayton, Conkliug,
Corbett, Cragin, Ferry of Michigan, Flanagan, Freliughuvsen, Gilbert, Hamlin, Hitch-
24 X

376 COUNTING THE ELECTORAL VOTE.

cock, Howe, Lewis, Morrill of Maine, Morrill of Vermont, Morton, Patterson, Pratt,
Eamsey, Sawyer, Scott, Sherman, Stewart, West, Winclom, and Wright — 30.

Nays — Messrs. Ames, Anthony, Bayard, Blair, Casserly, Cole, Cooper, Davis, Ed-
munds, Fenton, Ferry of Connecticut, Goldthwaite, Hamilton of Maryland, Hamilton
of Texas, Harlan, Hill, Johnston, Kelly, Logan, Machen, Norwood, Pool, Rice, Robert-
son, Saulsbury, Schurz, Sprague, Stevenson, Stockton, Tipton, Trumbull, and Vick-
ers — 32.

Absext — Messrs. Brownlow, Buckingham, Cameron, Nye, Osborn, Pomeroy, Ransom,
Spencer, Sumner, Thurman, and Wilson — 11.

The Vice-President. Upon the question submitted by the Senator from Delaware,
whether the Senate shall receive this amendment under the twenty-second joint rule,
the yeas are 30 and the nays are 32. So the Senate decline 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. Therefore I move to amend the resolution by inserting after the words " re-
solved, that " the words " 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 ;"
and I will remark, if I am in order, that I have changed the phraseology about count-
ing 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 inde-iiendent of the question of the effect of the votes."

The Vice-President. The Senator from New York moves an amendment which he
has stated from his seat.

Mr. Bayahd. I ask that that amendment be reported by the Clerk.

The Vice-President. It will be read.

The Chief Clerk. The amendment is to insert after the word "that" in the first
line of the resolution these words : " 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 1

Mr. Bayard. I wish it understood also that I raise the same iioint of order in re-
spect 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 or-
der against this amendment that he made against the previous amendment. The Chair
will submit the question to the Senate. The Chair states that in doing this he does it
as he believes 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 tw^o
Houses or whether they shall be counted by the presiding oflicer. The twenty-second
joint rule remitted this question distinctly to the two Houses of Congress, and they
thereby expressed their opinion that the President of the Senate has simply one duty
to iierform, 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 pi-evious 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 :

" liesolred, That the function of the two Houses in respect of the count of votes be-
ing ministerial, and independent of the question of the effect of the vote, the electoral
votes of Georgia cast for Horace Greeley 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.

PROCEEDINGS AND DEBATES IN CONGRESS. 37T

The yeas and uays were ordered ; and beiug taken, resulted — yeas 2H, nays 32 ; as
follows :

Yeas — Messrs. Boreman, Caldwell, Cariienter, Chandler, Clayton, Conklinoj, Corbett,
Cragiu, Ferry of Michigan, Flanagan, Frelinghuysen, Gilbert, Hamlin, Hitchcock,
Howe, Lewis, Morrill of Maine, Morton, Nye, Patterson, Pratt, Ramsey, Sawyer, Sher-
man, Stewart, West, Windom, and Wright — 28.

Nays — Messrs. Alcorn, Anthony, Bayard, Blair, Buckingham, Casserly, Cole, Cooper,
Davis, Edmunds, Feuton, Ferry of Connecticut, Hamilton of Maryland, Hamilton of
Texas, Harlan, Hill, Johnston, Kelly, Machen, Norwood, Pool, Ransom, Rice, Robert-
son, Saulsbury, Schurz, Sprague, Stevenson, Stockton, Tipton, Trumbull, and Vickers
—32.

Absext — Messrs. Ames, Brownlow, Cameron, Goldthwaite, Logan, Morrill of Ver'
mont, 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 follows :

" Besolved, That the electoral vote of Georgia cast for Horace Greeley be counted."

Mr. CoxKLiNG 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 :

Yeas — Messrs. Alcorn, Anthony, Bayard, Blair, Carpenter, Casserly, Clayton, Cole,
Cooper, Corbett, Cragiu, Davis, Feuton, Ferry of Michigan, Flanagan, Frelinghuysen,
Goldthwaite, Hamilton of Maryland, Harlan, Hitchcock, Johnston, Kelly, Lewis, Logan.
Machen, Morrill of Maiue, Norwood, Patterson, Pool, Ransom, Rico, Saulsbury, Schurz,
Soott, Sherman, Sprague, Stevenson, Stewart, Stockton, Thurman, Tipton, Trumbull,
Vickers, and Wright — 44.

Nays — Messrs. Ames, Boreman, Buckingham, Caldwell, Chandler, Conkling, Ed-
munds, Ferry of Connecticut, Gilbert, Hamilton of Texas, Hamlin, Hill, Howe, Mor-
rill of Vermont, Morton, Nye, Pratt, Ramsey, and West — 19.

Absent — Messrs. Brownlow, Cameron, Osborn, Pomeroy, Robertson, Sawyer, Spen-
cer, 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 terms a concurrent resolution ;
but it requires the concurrent action of the two Houses afidrmatively 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 Representatives. The
Secretary will now report the objection made by the Senator from Illinois in the pres-
ence 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 fi'om 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 certificate :

" 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-President of the United States, and they accordingly voted, with the follow-
ing result," &c.

Mr. Trumbull. I offer a resolution.

The Vice-President. Now the Senator from Illinois moves a resolution, which will
be read.

The Secretary read the resolution, as follows :

" HesoJved, 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 Secretary. " Mr. Trumbull objects to counting the votes cast for President and

378 COUNTING THE ELECIORAL VOTE.

Vice-President by the electors in the State of Mississippi, for the reason tbat 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. Thurmax. There were two points reserved as to Mississippi ; one made by a
member of the House of Eepresentatives.

The Vice-President. That is the third objection, which will be considered after
this one shall be decided.

Mr. TnuRMAN. 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 Senatorfrom 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 resolution is out of order, inasmuch as it covers
both objections. The objections should be taken separately.
Mr. TiiURMAN. 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. Trumbull's resolution.

Mr. Hamlin. I move to amend that resolution by adding at the end thereof the
words " in full," which Avill meet both cases.
Mr. Edmunds. Say " all the electoral votes."

Mr. Hamlin. I will amend it, at the suggestion of the Senator from Vermont, so as
to read as the decision of the Senate that all the electoral votes of the State of Missis-
sippi 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 read.
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 seat of government of the State on
the first Wednesday 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 attend 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 elect-
ors ; and such appointments shall be forthwith reported to the secretary of state.'' —
Bevised Code of A[ississi2)pi, 1871, page 98.

Mr. Edmunds. We have the secretary of state's certificate.
Mr. Trumbull. 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 modified, as follows :
'^Bcsolved, That all the electoral votes of the State of Mississippi be counted."
The Vice-President. The Chair Avill state that he has not submitted to the Senate
the third objection made in the presence of the two Houses by a Representative from
New York, [Mr. Potter,] affecting one of these persons 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 amendment 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 separately. 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 Representative 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 amendment.

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-

PROCEEDINGS AND DEBATES IN CONGRESS. 379

jection made by the Senator from Illinois, -will submit the third objection made by a
Representative 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-Presidext. The second objection will be held in reserve by the unani-
mous consent of the Senate, and the Secretary will now report the third oltjection made
in the jiresence of the two Houses by the Representative from New York, [Mr. Potter,]
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 declares that Spellman was appointed an elector in the stead of A. F.
Morgan, absent, by the electoral 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 certifi-
cate of the seci'etary 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-Presidext. The Secretary will now read the certificate of the secretary
of state of Mississijijii.

The Secretary read as follows :

" State op Mississirpi, Executive Department,

" Jackson, Miss., December 4, 1872.

" This is to certify that on the 4th day of December, A. D. 1872, 1 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 aj)poiuted
J.J. Spellman to fill the said vacancy, the said appointment being made in accordance
with section three hundred and eighty-two, revised code, 1871, of the State of Mis-
sissippi.

"JAMES LYNCH,

[l. s.] " Sea-etary 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 I " " No I "]
Mr, Hamlin. I submit a resolution iu these words :

"Resolved, That all the votes of the electoral college of Mississippi be counted."

The Vice-Presidext. The question has been submitted, by unanimous consent of
the Senate, in regard to this one elector.

Mr. Hamlix"^. 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 Sen-
ate to decide that question, that the votes of all the electors shall be counted. The
Chair will submit that resolution to the Senate.

Mr. Hamlix'. 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 desire the statute of the United States to
be read? ["No!" "No!"]

Mr. Edmunds. We are all agreed about that.

Mr. Thurmax. What became of the resolution offered by the Senator from Illinois,
[Mr. Trumbull ?]

The Vice-Presidex"t. 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. Thurm-a:??. What motion is now made ?

The Vice-Presidext. A motion is made by the Senator from Maine that the vote
of this elector shall be counted.

Mr. Thurmax. I shall vote for it on account 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 reported.

The Chief Clerk read the resolution, as follows :

"Resolved, That the vote cast by James J. Spellman, one of the electors for the State
of Mississippi, be counted."

Mr. Carpenter. I want to make a suggestion 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 different men, how can we tell who that man voted for ?

Mr. Shermax'. They all voted the same way.

380 COUNTING THE ELECTORAL VOTE.

The Vice-Presidext. The question is on agreeing to the resolution of the Senator
from Maine, that the vote of James J. Spellniau 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 the votes of the electors from Mississiijpi 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.

IX THE presence OF THE SENATE AND HOUSE OF RePRESEXTATIVES,

February 12, 1873.

At three o'clock and thirty-five minutes p. m. the Senate in a body re-entered 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 re-assemble, and the presiding officer shall then announce
the decision of the question submitted."

Upon the first point raised by the Representative from Massachusetts [Mr. Hoar] the
Senate decided as follows :

"Besolved, That the electoral votes of Georgia, cast for Horace Greeley, be counted."

The House of Representatives decided as follows :

"Besolved, 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, 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:

"Besolved, That the electoral vote of the State of Mississippi be counted."

And the House or Representatives adopted the following resolution :

"Besolved, 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 re-
ported by them."

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, wMch is covered also by its action on the full vote of the State:

" Besolved, That the vote cast by James J. Speilman, one of the electors for the State
of Mississippi, be counted."

The House of Representatives adopted the following resolution :

"Besolved, 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 provis-
ions of the Constitution 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 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 President 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 attention to the fact that in the State of Geor-
gia 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 Constitution, 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 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 manner submit said question to the House of Representatives for its de-

PROCEEDINGS AND DEBATES IN CONGRESS. 381

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 Carpemtek. Is it in order to take an api^eal from the decision of the
Chair ?

The Vice-President. The Senator himself will see that there could not be an ap-
peal 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 lan-
guage 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 Missouri has not passed from the considera-
tion 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 diliereut
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 Senator 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
facta.

Senator Carpenter. I object to the counting of the vote of Missouri so far as votes
were given for President and Vice-President of the United States from the same State,
and will reduce my objection to writing.

Senator Conkling. Meanwhile, may we 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 follows :

"And it is hereby further certified that none of said electors who voted for B. Gratz
Brown for President voted for him for Vice-President."

Several Members. That ends the matter.

Senator Carpenter. Upon examination, I withdraw the point.

Mr. Potter. In relation t<j the vote of Texas, I desire to inquire whether I correctly
understood the tellers, that there is no certificate from the executive authorities of the
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 certificate from the governor of the State.

Senator Trumbull. I desire, then, to object to the reception of the vote of Texas.
The case difiers from that of Mississippi. There the executive certified to the elec-
tion of the electors ; but in this case I understand there is no certificate from the exec-
iitive authorities of the State of Texas to the election of the original electors ; no cer-
tificate from the governor at all.

The Vice-President. The tellers desire the Chair to state that four of the electors
met and appointed four others, in place of four persons who were absent, and certified
tlie facts themselves.

Mr. Potter. But as to the original electors there is no certificate from the govern-
or 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 orig-
inal electors held certificates from the governor, while the substitute for one of them
did not.

Senator Trumbull. I object to the reception 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 appointed as electors of that State, as
required by act of Congress.

382 COUNTIKG THE ELECTORAL VOTE.

The Vice-Presidext. The Secretary of the Senate will again read the last certifi-
cate.
The Secretary of the Senate read as follows :

" Department of State,
" Austin, Texas, Decemher 4, 1872.
" The following persons, having received the highest number of votes cast for elect-
ors of President and Vice-President of the United States, are hereby declared duly
elected as such: B. B. Hubbard, A. J. Eainey, B. A. Epperman, J. J. Good, Thomas
Harrison, John Ireland, S. A. Dardeu, J. M. Maxey.

" Witness my hand and official seal at office in the city of Austin, this 4th day of De-
cember, 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 signa-
ture of the governor is not there ?

The Vice-President. The certificate of the acting secretary of state will again be
read.
Mr. Dawes (one of the tellers) read the certificate, as follows :

"Department of State,
^'Austin, Decemher 4, 1872.
"The following-named 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. [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 ex-
ecutive 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
counting 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 be-
cause four of the electors, less than a majority of those elected, undertook to till the
places of other four electors who had been elected and were absent.

The Vice-President. These two objections to counting the vote of Texas having
been made, the Senate will now withdraw to their Chamber.

In the House of Representatives, February 12, 1873.

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. Trumoull objected 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."

Mr. Dawes submitted the following resolution :

"Hesolved, 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 permit 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 act of Congress referred to in the objec-
tion made by the Senator from Illinois ?

Mr. Bingham. I object.

The Speaker. The Chair thinks it cannot be done.

Mr. Wood. Is it in order to move a substitute for the resolution of the gentleman
from Massachusetts, [Mr. Dawes?]

PROCEEDINGS AND DEBATES IN CONGRESS. 383

Tho Speaker. It would be if the gentleman yields tlie floor without calling the
previous question on his resolution.

Mr. Dawes. I think the statute of tlie State of Texas should be read, as it all de-
pends on that.

The Speaker. The gentleman from Massachusetts [Mr. Dawes] will perceive that
reading 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 difl'er must be determined 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. Dawes. Is it in order to take a recess for ten minutes ?

The Speaker. It would not be. Nothing is in order at this point except the pend-
ing resolution.

Mr. Farnswortii. Is it not as much in order that the Chair should direct the read-
ing 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. Farnswortii. So is a statute of the United States.

The Speaker. But the joint rule precludes 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. Wo might have all the statutes 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 laid on the table.

The latter motion was agreed to.

The Speaker. The Clerk will now report the next objection which comes from the
joint convention.

The Clerk read as follows :

"Mr. Dickey objected to the counting of the electoral vote of the State of Texas
T)ecause four electors, less than a majority of those elected, undertook to lill the places
of other four electors, who had been elected and were absent."

INIr. Dickey. I oft'er the following resolution :

^^ 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 resolution by substituting the following after the
word "resolved:"

" That the vote of Texas ought to be counted."

Mr. Randall. Let us vote down the resolution.

Mr. Dawes. Very well ; I withdraw my substitute.

Mr. Baxks. I move to amend the resolution 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, the 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 gen-
tleman 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 question.

The previous question was seconded and the main question ordered ; and under the
operation 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 commu-
nicated 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
bv the gentleman from Ohio. The Clerk makes that notification as a matter of course.

384 COUNTING THE ELECTORAL VOTE.

Mr. Garfield, of Ohio. I simply proposed that the Senate should be notified we
are ready to receive them.

The Speakp:r. If the House has acted on all the business coming from the joint con-
vention, the presumption is that the House is ready to receive the Senate.

Mr. Banks. 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 advised that the Senate may be expected
to return every moment.

Mr. Wood. I give notice that if the Senate does not return within ten minutes, I
shall move a recess till to-morrow.

The Spj;aker. That, of course, will be in order.

In the Senate, Fehruary 12, 1873.

The Senate returned to its Chamber at four o'clock and twenty-four minutes p. m.

The Vice-President. The Chair will state to the Senate that the two objections
made in the Representative Hall to the counting of the electoral votes of Texas are
now being reduced to writing and will be sent here in a moment. They will be re-
ported in full when they shall be received. One was in regard to the absence of the
governor's signature and the other in regard to the right of four electors to elect four
others. In the mean time the Secretary will report the substantial 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 :

[l. S.J "Department of State, Austin, Decemher 4, 1872.

"The following-named 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: R. B. Hubbard, A. T. Rainey, B. H. Epperson, J. J. Good, Thomas
Harrison, John Ireland, S. H. 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.

[L. s.] "J. E. OLDRIGHT,

" Acting Secretary of State.

"Austin, Texas, Decemher 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-President 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 Austin 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. Rainey, J. M. Maxey, John Ire-
land, and R. B. Hubbard:

"Therefore, acting under 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 absentees, namely : David Shecks
in place of A. T. Rainey, 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 objection is against counting the votes in conse-
quence of the absence of the signature of the governor. The question before the
Senate fffr 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 rej^ort 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 he it further enacted, 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 December, and the
said electors shall annex one of the said lists to each of the lists of their votes."

PROCEEDINGS AND DEBATES IN CONGRESS. 385

Mr. CoNKLiXG. I move that the objection wliicli Las just been read be overruled by
the Senate, which I believe to be a projier form of rcsolntion.

The Vice-President. The Senator from New York moves that the first objection
to the counting of the votes of Texas made in the x^resence of the two Houses be over-
ruled.

Mr. Thurmax. 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. TnuRMAN. 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 Vici5-President. The Senator from New York moves that the first objection be
overruled by the Senate.

Mr. Trumbull. Is that in writing ?

The Vice-President. It is not.

Mr. Trumbull. I wish to otter an amendment to it.

Mr. CoNKLiNG. The Secretary, I believe, has reduced it to writing.

Mr. Trumbull. Let it be reported.

Mr. CoNKLiNG. It is:

" Hesolved, That the foregoing objection be overruled."

The Vice-President. The Secretary has written it in another form, but he will re-
duce it to writing in the language of the Senator.

Mr. Morrill, of Maine. I suggest to the Senator whether it is not a more correct
and proper form to say :

" Besolved, That the vote be counted, the foregoing objection to the contrary not-
withstanding."

Mr. CoNKLiNG. I have no objection to that. The Senator from Maine suggests that
my resolution read :

" Eesolved,Thatth^exote 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
sustain 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, whicli 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 propriety, of acting separately on these ques-
tions. I humbly conceive that there is nothing whctever in the other objection, and
I would embrace 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 because 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 :

'^ Iiesolved, That the electoral vote of the State of Texas be counted, notwithstand-
ing the foregoing objection."

Mr. Trumbull. I move to strike otit all of the resolution after the word " resolved "
and insert what I send to the Chair.

The Vice-President. The Senator from Illinois otters a substitute for the resolution.

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 comxjiied 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
enforce the rule. He was listening for the moment to the Secretary, who has brought
him the first objection, the objection made by the Senator from Illinois, [Mr. Trum-
bull,] which will now be read.

The Chief Clerk read as follows :

"Mr. Trumbull objects to the vote of the State of Texas because there is no certifi-
cate by the executive authority of that State that the persons who voted for President
and Vice-President were ai^pointed as electors of that State as required by the act of
Congress."

The Vice-President. The Senator from New York now ott"ers the following resolu-
tion:

386 COUNTING THE ELECTORAL VOTE.

" Mesolved, That the electoral vote of the State of Texas be couutetl, notwithstand-
ing the foregoing objection."

The Senator from Illinois moves to strike ont all of the resolution after the word
"resolved" 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 lists of the votes cast, the vote of said State cannot
be received."

Mr. Thurmax. I rise merely to suggest that the same course be taken in this case
as was in the other case. If the resolution of the Senator from New York be adopted,
it includes 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 deciding upon that.

The Vice-President. Is there objection 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-Presidext. Does the Senator 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. MoRTOX. I submit the statute of Texas on the subject and ask to have it read.

The Vice-Presidext. The Chair will state what he understands to be the decision
of the Senate : that the second objection shall first bo considered. The Secretary will
report the objection of the Representative from Pennsylvania, [Mr. Dickey.]

The Chief Clerk read as follows :

" Mr. Dickey objects to the counting of the electoral vote of the State of Texas be-
cause 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."

The Vice-Presidext. The Senator from Indiana now desires to have the law of
Texas reported without debating it. If there be no objection the Secretarv will report
it.

Mr. CoxKLixG. Does the Senator want the law reported on this "point or on the
other ?

Mr. Mortox. In reference to this point I ask the Secretary to read article 3650.

The Vice-Presidext. If there bo no objection, the law will be reported without
debate.

The Chief Clerk then read as follows :

'■' Sec. 3050. 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 reijuired, a majority of the electors present, after having
convened in accordance with the provisions of this act, may appoint some other per-
son to act in the place of the absentee, and shall immediatelj' report their action to the
secretary of state aforesaid."

Mr. CoxKLiXG. 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-Presidext. The Senator from New York moves that this objection of the
Representative from Pennsylvania to the counting of the electoral votes of Texas for
the reason stated be overruled on behalf of the Senate. •

The motion was agreed to.

Tlie Vice-Presidext. The question now recurs on the substitute offered by the Sen-
ator from Illinois for the resolution of the Senator from New York.

Mr. Trumbull. I have modified it slightly. My amendment now is tostrike 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 jjersons 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 Sen-
ator 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. Mortox. If; has just been sent back to the library ; but it will be here in a mo-
ment.

Mr. Trumbull. Is the executive authority vested in the governor? That is the
question.

The Vice-Presidext. 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 resolution.

PROCEEDINGS AND DEBATES IN CONGRESS. 387

A message was received from the House of Representatives, by Mr. McPhersoii, its
Clerk, aunouncing that the House had jiassed tlie following resolutions:

''Eesolved, That in the judgment of this House the vote of Texas should be counted as
reported by the tellers.

^^Resolved, Thataquorum is an arbitrary number, which each State has a right to estab-
lish for itself, and as it does not appear that the choice of the electors is in condict
with the laws of Texas as to a (iiiorum 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 privi-
leges of any Senator, but that we may act on a uniform understanding. I raise the
point of order that the amendment of the Senator from Illinois, in so far as it argues
stating the objection 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 Vermont, 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 substitute of the Senator from Illinois was
about being reported when the Clerk of the House of Representatives appeared. It
will be reported, and the Chair will entertain the point of order made by the Senator
from New York after it shall have been read. The Senator from Illinois moves to
strike out the resolution after the resolving clause and insert what will be read.

The Chief Clerk. The words proposed to be inserted are :

"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 counted."

The Vice-Presidext. The Senate have twice decided on questions kindred to
this

Mr. Trumbull. I think very diiierent.

The Vice-President. The Senator regards this as a difi'ereut question, and the
Chair 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,

Ml". 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. CoNKi.iNG. Although I have not a right to do it myself, I think it would be
convenient 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 understands it the point of order made by the
Senator from New York is that the amendment of the Senator 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 Michigan, Flanagan, Frelinghuysen, Goldthwaite, Hamlin, Hill, Kelly, Machen,
Morton, Norwood, Pool, Pratt, Ransom, Rice, Robertson, Schurz, Scott, Stewart, Stock-
ton, Thurnian, Tipton, Trumbull, Windom, and Wright — 31.

Nays — Messrs. Ames, Anthouy, Caldwell, Casserly, Cole, Conkling, Edmunds, Ferry
of Connecticut, Gilbert, Hamilton of Maryland, Johnston, Nye, Sprague, Stevenson,
and Vickers — 15.

Absent — Messrs. Alcorn, Blair, Brownlow, Buckingham, Cameron, Chandler, Cor-
bett, Cragin, Hamilton of Texas, Harlan, Hitchcock, Howe, Lewis, Logan, Morrill of
Maine, Morrill of Vermont, Osborn, Patterson, Pomeroy, Ramsey, Saulsbury, 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 Senator 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 Clerk. The resolution submitted by the Senator from New York [Mr.
Conkling] is as follows :

" Resolved, That the electoral vote of the State of Texas be counted, notwithstanding
the foregoing ol)jectiou." •

388 COUNTING THE ELECTORAL VOTE.

The ameudment 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 aud 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 counted."

Mr. Thurmax. I think it is proper that the Senate should hear the provisions of the
constitution of Texas in regard to the executive authority and the seal of the State.
The first section of article 4 reads as follows :

"The executive department of the State shall consist of a chief magistrate, who
shall be styled the governor, a lieutenant-governor, secretary of state, comptroller of
the public accounts, treasurer, commissioner of the general land oiBce, attorney-gen-
eral, 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, enciicled by an olive and live-
oak l)ranches, 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 ajipear 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 " Department 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 certificate ?

The Vice-President. It is. The Secretary 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 depai-tment ?

Mr. Siierm-AN. The department of state of the State of Texas. It has a lone star
and the words " department of state."

Mr. Johnston. I ask for the reading of the seal by the Secretary.

The Vice-President. The Secretary will report as far as f»ossible so as to convey
to the Senate the superscription on theseal. Perhaps the Secretary had better read the
whole certificate.

The Chief Clerk. The certificate reads :

P ^ " Department of State,

L^- '^•J "Austiu, December 4, 1872.

" The following-named jiersons, having received the highest number of votes cast for
electors for President 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 ofiicial seal, at office, in the city of Austin, this 4th day of
December, A. D. 1872.

[L. s.] "J. E. OLDRIGHT,

"Acting Secretary of State."

To this paper is attached, at the left-hand corner, on the top of the page, what pur-
ports to be the seal of the State of Texas.

Mr. CoNKLixG. I ask the Secretary to state whether the seal contains the coat of
arms of the State, namely, the lone star, aud " Texas " printed ux)on that star.

The Chief Clerk. It does.

Mr. Thurmax. That is a mere 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, 184.5, 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. E. Oldright, acting secre-

PROCEEDINGS AND DEBATES IN CONGRESS. 389

tary." This seal is a lone star with two concentric circles, and between those circles
on the outside is printed " department of state."

The Vice-President. The question now is on the amendment of the Senator from
Illinios 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, Fen-
ton, Goldthwaite, Hamlin, Harlan, Hill, Kelly, Morton, Nye, Ramsey, Robertson, Saw-
yer, Schurz, Scott, Thurmau, Trumbull, West, and Windom — 24.

Nays — Messrs. Alcorn, Ames, Bayard, Buckingham, Caldwell, Casserly, Chandler,
Colo, Conkling, Cragin, Ferry of Connecticut, F^Ty of Michigan, Flanagan, Freling-
huysen, 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, Hitch-
cock, HoAve, Lewis, Morrill of Maine, Osborn, Pomeroy, Pool, Silencer, Sumner, and
Wilson — 15.

So the amendment was rejected.

The Vice-Pkesident. The question recurs on the resolution of the Senator from
New York.

The resolution was agreed to — ayes 29, noes 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 waitiug.

Mr. Shermax. Then I move that we return at once.

The motion was agreed to; and (at five o'clock and five minutes y}. m.) the Senate
again proceeded to the Hall of the House of Representatives.

In the presence of the Senate and House of Representatives,

February 12, 1873.

At five o'clock and five minutes p. m. the Senate in a body re-entered 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, Trumbull,] resolved
as follows :

"Besolred, That the electoral vote of the State of Texas be counted, notwithstand-
ing the objection raised by Mr. Trumbull."

And the House of Representatives resolved as follows :

"Besolved, That iu 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 :

'^BesoJved, 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 a right to es-
tablish 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 Vice-President be counted."

So (the two Houses having concurred) the electoral vote of Texas, under the twenty-
second joint rule, will be counted.

The presiding oflicer 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-morrow
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 electoral 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 iu presenting the electoral vote of the State of
Florida will state that the copy directed to be sent by law to the President of the Sen-
ate by mail was received on the lltli 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 j:)ro tempore of the Senate on the 2d of January, 1873.

Mr. Beck, of Kentucky, (one of the tellers,) read the electoral vote and the accom-
panying certificates, and the vote of the State of Florida was counted without objec-
tion.

The Vice-President. The Chair in presenting the electoral vote of the State of
Arkansas states it was received by him by mail on the 11th of December, 1872, and by
messenger at the Department of State, and in the absence of the Vice-President by the

390 COUNTING THE ELECTORAL VOTE.

President pro tempore of the Senate on the 28tli of recember, 1872. On the 4tli or 5tli
day of February, during the present mouth, a person claiming to be the messenger
commissioned to bring the electoral vote of the State of Arkansas 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 contents, reji-
resenting himself to be commissioned as messenger to bring the vote. The Vice-
President said he would open the paper, as it was 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 subject. The papers presented
on the 11th of December 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) accordingly read the papers in the case of Arkan-
sas, as f olloAvs :

" State of Arkansas,

"Little Rock, 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 Presi-
dent and Vice-President of the United States for the term commencing March 4, 1873,
met in the city of Litljle Rock, State aforesaid, on Wednesday, the 4th day of Decem-
ber, 1872, and proceeded to vote by ballot, with the following result :

" D. S. Griffin, W. W. Granger, Thomas H. Barnes, W. H. Howes, Arthur Heming-
way, 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. Griffiu, W. W. Granger, Thomas H.
Barnes, W. H. Howes, Arthur Hemingway, and L. G. Wheeler each cast oue 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 candidates above named.

"D. S. GRIFFIN.

"W. W. GRANGER.

"THOMAS H. BARNES.

"W. H. HOWES.

"ARTHUR HEMINGWAY. .

" L. G. WHEELER."

"State of Arkansas, State Department,
^^ Little Rock, Decemher 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 Presi-
dent 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 law in this State, No-
vember 5, 1872, namely, D. S. Griffin, W. W. Granger, and Thomas H. Barnes, from the
State at large ; W. H. Barnes, from first congressional district ; Arthur Hemingway,
from second congressional district ; L. G. Wheeler, from third congressional district.

" In testimony whereof, I have hereunto set my hand and seal of office at Little Rock,
this 4th day of December, A. D. 1872.

[L. s.] "J.M.JOHNSON,

"Secretary of State.''

Senator Coxkling. When was that paper received ?

Senator Sherman, (oue of the tellers.) December 11, 1872.

The Vice-President. That was by mail, and on the 28th of December by mes-
senger.

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 Hamlin. 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 ref-
erence to the electoral votes of the State of Arkansas and of the State of Louisiana.

The Vice-President. Is there objection, as there remains only oue 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
Arkansas ; one being received by messenger and the duplicate by mail. On the 4th of
February others were received, which were entirely informal.

Senator Thurman. Are they duplicates of each other ?

The Vice-President. These are duplicates.

Senator Thurman. How is it with the others ?

The Vice-President. The informal returns were signed bv three out of the six elect-

PROCEEDINGS AND DEBATES IN CONGRESS. 391

ors, and tbcy stated that they could not obtain the certificate of the <;overnor, and
that they th'evefore inclosed certain correspondence of the governor, wliich was not,
however, inclosed. They were not sealed or indorsed on the back. The Chair opened
them on the distinct understanding that they were informal, because tbey were directed
to him as any other letter might be.

From Louisiana there have been received two returns sent by mail and two by mes
senger, each of the last having been received by the Secretary of State, in the absence
of the Vice-President and the President of the Senate jjro 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 re-
ceived on the '2d January, being one day within tlie time required by the Constitution.
What appeared to be the duplicates were received by mail on the 10th and 14th De-
cember. The Chair will first submit those returns which reached the office of the Sec-
retary of State, in accordance with law, on 31st 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 following papers:

" Office of Secretary of State,
" Parish of Orleans, State of Louisiana,

"i;ecf'Wi6er3, A. D. 1872.

"I, George E. Bovee, secretary of state for the state of Louisiana, do hereby cer
tify that the returning officers of the election held in said State on the 4th day of No-
vember, A. D. 1S72, have returned to me, as secretary of state, according to law the fol-
lowing persons as dnly elected electors of President and Vice-President of the United
States" or 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 district, L. C.
Roudanez; second district, A. K. Johnson ; tliird district, Milton Morris; fourth dis-
trict, Joseph K. Taylor; fifth district, Jolin Ray.

" In testimony whereof I have hereunto signed my name and caused the seal of the
State to be attached, this 3d day of Decemlier, A. D. 187'i, and of the Independence of
the United States the ninety-seventh.

[L. s.] "GEORGE E. BOVEE,

" Secretary of State.

" United States of Ajierica, 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 Illinois,
received eight votes for President of the United States, and there were no votes cast
for any other ])erson.

" And on i)roceediug 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 ITnited 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 mentioned.

"E. P. DURAND.
"JAMES B. LOTT.
"JOHN RAY.
"M. F. BONZANO.
"J. J. LANABERE.
"CHARLES E. HALSTEAD.
"L. C. ROUDANEZ.
" A. K. JOHNSON.

[Copy.]

"The following persona, elected electors of President and Vice-President of the
United States according 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 Ray, met at Mechanics' Institute, in the lieutenant-gov-
ernor's parlor, the building leased and occupied by the State for the use of the senate
and house of representatives and State officers, at three o'clock p. m., on the first Wednes-
day of December, being the 4th day of said month, Milton Morris, of the third district,
and Josei)h K. Taylor, of the fourth district, being absent ; when, on motion of John
Ray, Dr. M. F. Bonzano was selected to ])i'eside ; and on motion of A. K. Johnson,
Charles E. Halstead was appointed secretary.

" The meeting, having taken a recess until four o'clock p. ni.,met ag;iin at that hour ;
when, upon roll-call, it appeared that ]\Iilton Morris and Joseph K. Taylor were not
present, having failed to attend. On motion of John Ray, the electors present pro-

25 X

392 COUNTING THE ELECTORAL VOTE.

ceecled to supply sncli vacancies by ballot. A. K. Johnson and L. C. Roudancz were
appointed tellers ; when, after balloting, it was found that E. R. Durand received four
votes and W. P>. Phillips two, and E. R. Durand was declared elected to till the vacancy
of Milton Mori'is ; and Joseph B. Lott receiving 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 tbe respective absentees.

"The persons so elected, being pres-ent, took their seats as electors. The said elect-
ors then ])roceeded 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 wns found that Ulysses S. Grant, of
the State of Ulii.ois, had received eight votes for President of the United State-; and
upon counting the votes for Vice-President of the United States it was found that Henry
Wilson, of the State of Massachusetts, had rectived eight votes for Vice-President of
the United States, the vote being unanimous for each, nt) other person having received
any votes for eilher offlce; and said electors have issued three certificates in the form
following, to wit:

"United States of America. State of Louisiana,

"AVio Oilcans, December 4, 1872.

"We, the electors of President and Vice-President of the United States for the Stat«
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, tliat Ulysses S. Grant, of the
State of Illinois, 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 hereto signed our names, the date above
mentioned.

"Which certificates were placed separately in envelopes and sealed up carefidly, and
on each envelope 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 directed to the President of the Senate, and another indorsed in the same, way was
])ut in the post-office, and the other deposited with the judge of the district court of
the United States for the district of Louisiana.

"On motion of John Ray, the electors proceeded to appoint a person to taivc charge
of and deliver to the President of the Senate, at the seat of Government, before the tirst
Wednesday in January next ensuing, one of said certilic,' tes, when L. C. Roudanez was
appointed to the above service, and said electors made and signed a ccrtihcato of such
appointment in the following form;

"United States of America,
" State of Louisiana, Parish of Orleans,

" Wednesday, December 4, 1872.

" We, the undersigned electors of President andVice-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 Government,
before the first Wednesday in January next, one of the certificates of the votes cast
by the undersigned for President and Vice-President of the United States on the date
above.

" In testimony whereof we have hereto signed our names the date above.

" On motion, the meeting adjourned until to-morrow at two o'clock p. m."

"New Orleans, La., December ^y, 1872.

"The electors met pursuant to adjournment, the following electors present: M. F.
Bonzano, Jules Lanabere, C. E. Ilalstead, L. C. Roudanez, A. K. Johnson, P. E. Durand,
James B. Lott, John Ray.

" The mintites of the previous meeting were read and approved.

"On motion, the meeting adjourned until to-morrow at two o'clock p. m."

" New Orleans, La., December G, 1872.
"The electors met pursuant to adjournment, the following members present: M. P.
Bonzano, Jules Lanabere, C. E. Halstead, L. C. Roudanez, A. K. Johnson, C. 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 1), 1872, at two o'clock
p. m."

"New Orleans, La., December 9, 1872.
" The electors met pursuant to adjournment, the following members present : W. F.

PROCEEDINGS AND DEBATES IN CONGRESS. 393

Bonzano, Jnles Lanabere, C. E. Halstcad, L. C. Roudanez, P. E. Diuaiid, J. B. Lott,
John Kay ; absent, A. K. Johnson.

"The minutes of the previons meeting were read and adopted.
" On motion, the board adjourned sine die.

"M. F. BONZANO, Prcsidcut.
"CHARLES E. HALSTEAD, Scfre/flji/."'

The ViCK-Pr.KSiDENT. On the 10th of December last the Chair received an envel-
ope by mail, certifying on the outside that it contained the vote ior President and
Vice-President of the State of Louisiana, signed by eight otherpersons. On the '2d day of
January, being the tirst Thursday after the first Wednesday 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 Pres-
ident pro tempore of 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:

'• LTnitkd States of America,

" T/)e State of Louisiana, City of Xew (Means :

*' Be it known that on this the 4th day of the month of December, A. D. 1872, and of
the American Independence the ninety-seventh year, at the seat of government, to wit,
.nt 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. Cami)bell, Louis Bush,
Allen Thomas, and L. V. Reeves, who appear to be electors for the State of Louisiana
by the annexed certiticate of the executive of said State attached hereto as part of
these presents, when the said electoral college, having nscertaiued that A. H. Leonard,
esq., elector for the fourth district, was absent, according to the requirements of the
statutes of the State of Louisiana, (revised statutes, art. 2830,) a respite was taken
njitil four p. m.

''In conformity to the aforesaid resiiit<\ at four p. m. of the 4tb day of December of
the year aforesaid, the above-named electors met at th.e same place, when the s.iid A.
H. Leonard stil! appearing to be absent, the college proceeded by ballot, as required
by the statutes of the State of Louisiana, to suiq)ly the vacancy. After the ballots
had been <luly cast, they were duly canvassed by the chairnmn of tlui college, Hon. T.
C. Manning, when it appeared that Hon. .1. C. Moncure, of the parish of Caddo, a res-
ident of th(! fourth congressional district, was duly elected to till the vacancy occa-
sioned by the absence of A. H. Leonard.

"Thus organized, the college then formally selected Hon. T. C. JIanniugas chairman of
the college. Whereupon the chairman submitted to the college the annexed certifi-
cate oL' the executive of the State of Louisiana, ami the proceedings of the college
selecting Hon. J. C. Moncure, in lieu of A. H. Leonard, escj., as their credentials.

"Under the authority and by virtue of the Constitution and laws of the United
States and of the State of Louisiana, the college then proceeded to A'ote for President
of the United States, when it was ascertained 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. Manniiig, Andrew S. Herron, and C. H.
Weed, electors at large, and Hugh J. Campbell, Louis Bush, Allen Thomas, J. C. Mon-
etire, and L. V. Reeves, district electors, each separately voted for B. Gratz Brown, of
the State of Missouri, for Vice-President of the Uiiited States.

"In faith whereof we hereunto fix our respective signatures at the city of New Ot-
leans, seat of government of the State of Louisiana, on the day, month, and year afore-
said.

"T. C. MANNING.
" ANDREW S. HERRON..
"C. H. WEED.
"HUGH J. CAMPBELL.
"LOUTS BUSH.
"ALLEN THOMAS.
"J. C. MONCURE.
"L. V. REEVES."

Mr. Dawe."^, (one of the tellers.) Theji follows a certificate of the official count of
the votes polled at the election hehl on the 4th of November.

Then there is the following paper:
"United. States of America, State of Louisiana, citi/ of New Orleans:

"I, H. C. Warmoth, governor of the State of Louisiana, do hereby certify that tliH
foregoing signature of B. P. Blanchard, State registrar of voters for the State of Louisi-
ana, is genuine ; and I do further certify 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.

394 COUNTING THE ELECTORAL VOTE.

Bush, second district; AHen Thomas, third district; A.H.Leonard, fourth district,

Louisiana on the subject.

" In faith whereof I iiave hereunto affixed my ofQcial signature and caused the great
seal of the State to he hereto attached, at the city of New Orleans, capital of the State,
this 4th day of December, A. D. 1872, and of the Indei)eudence of the United States th«
niuetv-seveuth.

■^ " H. C. AVARMOTH.

" By the governor :

[L.S.] "Y.A.Woodward,

''Assistant Secretary of State.''
Senator AVest. I object to the reception by the Senate and House of Representa-
tives 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 p:,rsuance of law.

Mr. Sheldon. I also object to the counting of the votes cast by T. C. Manning, C.
H. Weed, A. S. Herron, Hn'gh 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 tlie certificate of tiie governor showing them to have been chosen electors
is not signed by 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 ex-
ecuted there had not been made any count, canvass, or return of the votes cast by the
people of Louisiana for electors by any lawful authority, and the said certilicate was
made by the governor without anv authentic knowledge of the result of the election
by the people of said State, which facts are fully established by the testimony taken
by the Senate Committee on Privileges and Elections, and'are stated in their report to
the Senate.

Senator Carpentki:. I object to the counting of the votes given for U. S. Grant for
President, and Henry Wilson, Vice-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 repuMican 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 elect-
ors. . . .

Mr. Potter. I object to counting the electoral vote from the State of Louis-ana as
cast lor Ulysses S. Grant for President and Henry Wilson for Vice-President, f<u- the
reason that there is no certificate from the executive 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 persons who cast their
votes not for said Grant and Wilson, but for no person as President, and for B. Gratz
Brown as Vice-President.

Mr. Stevexsox. 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 Boremax. I object to counting any votes from the State of Louihiaua for
reasons set forth in the repiut of the Cominitteeon I'rivilegesand Elections subndtted
to the Senate on the lUth instant, and printed as Report No. 417 of Forty-Second Con-
gress, third session.

Senator Trumbull. I object to the counting of the votes cast by the persons m the
first certificate read, for the reas(Ui that their election is not certified to by the proper
officers ; that Bovee, who signed the certificate of their election, was not secretary of
state at the time of making said certificate, nor in i)ossession 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 iu fact, as appears by the admissions of said Bovee before the
committee of the Senate. . .

The VicePresidext. There have been seven objections made in regard to receiving
the votes of Louisiana, some of them against receiving any A'ote from that State. The
Chair would suggest that in taking up these objections 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 pres?nted to that House.
If no further objections be made to the vote of Louisiana, the seven that have been
made Avill 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 be-
cause the official returns 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

PROCEEDINGS AND DEBATES IN CONGRESS. 395

ek^ctors for President and Vice-President at the election held November 5, 1872 ; and,
secontUy, because the returns read by the tellers are not certitied according to law.
The Senate retired from the hall.

In the House of Representatives, Fdniary 12, 1873.

The House was again called to order.

The Speaker The Clerk will now read the olgection made in joint convention by
the Senator from Arkansas [Mr. Rice] to the counting of the vote from that State.

The CMerk read as follows :

"Mr. Rice objects to counting the vote of the State of Arkansas because the official
returns of the election in said State, made according to the laws of said State, show
that the persons certilied to by the secretai'y 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 tlie tellers are not certitied according to law."

Mr. Snyder. I offer the following resolution :

^' licsoli'vd, That the presidential electors from the State of Arkansas, whose election
on the 5th day of November, 1872, is attested by the certificate of the secretary of
state, be, and they are hereby, recognized as the duly chosen electors for said State;
and that the vote cast, certitied, and returned by them for Ulysses S. Grant for Presi-
dent and Henry Wilson 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 substitute :

^'licsolrcd, 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.

Mr. Kellogg. I will modify my resolution in that way, that in the judgment of this
House the electoral vote of the State of Arkansas, as reported by the tellers, be counted.

Mr. Dawes. I demand the i)revious questioiL

Mr. Farnswortii. We are now acting under the joint rule of the two Houses, and
I make the point of order there is no such tiling as the previous question.

The Sfeakkr. The ])oint of order is not well taken.

Mr. Paiixswortii. The previous <]uestion is moved for the purpose of cutting off
debate, and it is specially provided in the twenty-second joint rule tliat no debate shall
be allowed on these questions.

The Speaker. The previous question is not only to cut off debate but to cut off
amendments. There is nothing in the joint rule to j^reveut the usage and practice of
this Hons^e.

Mr. Kellogg. I insist on the demand for the previous question.

The previous question was seconded and the niaiu question ordered ; and under the
ojieration thereof Mr. Kellogg's substitute was adopted.

The main question then recurred on the resolution as amended.

The House divided ; and there were — ayes 78, noes 4.").

Mr. Farnswoutii demanded tellers.

Tellers weie not ordered.

Mr. Farxswop.tii demanded the yeas and nays.

The yeas and nays wei'e ordered.

The ([uestion was taken ; and it was decided in the affirmative — yeas 103, nays 26,
not voting 111 ; as follows:

Yeas — Messrs. Ambler, Ames, Averill, Banks, Barlier, Barry, Bigby, Bingham, Austin
Blair, Braxton, Buckley, Buftinton, Bunnell, Burchiird, Burdett, Roderick R. Butler,
Coburn, Coghlan, Conger, Cotton, Darrall, Dawes, Dodds, Dounan, Duke, Dnmiell,
Eames, Elliott, Esty, Farwell, Fiukeluburg, Charles Foster, Wilder D. Foster, Frye,
Garfield, Golladay, Hale, Halsey, Harmer, Harper, George E. Harris, John B. Hawley,
Joseph R. Hawley, Hay, Hays, John W. Hazelton, Hibbard, Hill, Houghton, Kellogg,
Kerr, Lamport, Lowe, Lynch, Maynard, McJnnkin, McKee, Merriam, Leonard Myers,
Negley, Orr, Packard, Palmer, Isaac C. Parker, Peck, Pendleton, Perry, Peters, Piatt,
Poland, Porter, Rainey, Ellis H. Roberts, Rusk, Sargent, Sawyer, Scotield. Sessions,
Shanks, Sheldon, Shoemaker, H. Boardman Smith, Snyder, Sprague, Starkweather,
Stevenson, Stoughton, Stowell, St. John, Syi)her, Washington Townsend, Tnrnerj
Twichell, Tyuer, Upson, Voorhees, Waddell, Wakemau, Waldron, Wallace, Wells,
Willard, and Williams of Indiana — 103.

Nays — Messrs. Acker, Archer, Arthur, Bell, Briggs, Boles, DuBose, Farnswortii, Gid-
diugs, Herndon, Holman, Maclntyre, McClelland, Merrick, Moore, Morphis, Potter,
Price, Read, Shober, Storm, Sutherland, Terry, Wells, Winchester, and Wood — 2fi.

Not voting — Messrs. Adams, Barnum, Beatty, Erasmus W. Beck, James B. Beck,

396 COUNTING THE ELECTORAL VOTE.

Bhd, James G. Blair, Boarman, Bright, Brooks, Benjamin F. Butler, Caldwell, Camp-
bell, Carroll, Clarke, Cobb, Comingo, Conner, Cox, Crebs, Creely, Critcber, Ciocker,
Crossland, Davis, Dickey, Dox, Dnell, Eldredge, Ely, Forker, Heniy D. Foster, Garrett,
Getz, Goodrich, Griffith, Haldeuian, Hambleton, Hancock, Handley, Hanks, John T.
Harris, Havens, Gerry W. Hazelton, Hereford, Hoar, Hooper, Kelley, Kendall, Ketcbam,
Killiuger, King, Kinsella, Lamison, Lansing, Leach, Lewis, Mansou, Marshall, McCor-
mick, McCrary, McGrevv, McHeury, McKinney, McNeely, Benjamin F. Myers, Mitchell,
Monroe, Morey, Morgan, Silas L. Niblack, William E. Niblack, Packer, Hosea VV. Par-
ker, Perce, Prindle, Randall, Edward Y. Rice, John M. Rice, Ritchie, William R. Rob-
exts, Robinson, John Rogers, Sion H. Rogers, Roosevelt, Seeley, Shellabarger, Sher-
wood, Slater, Slocum, Sloss, John A. Smith, Worthington C. Smith, Siia])p, Speer,
Stevens, Swann, Tatfe, Thomas, Dwight Townsend, Tuthill, Van Trump, Vanghan.
Walden, Wheeler, Wliiteley, Whitthoruo, Williams of New York, Jeremiah M. Wilson,
John T. Wilson, and Young — 111.

So the resolution, as amended by Mr. Kellogg's substitute, was adopted.

Mr. SxYDEi! moved to reconsider the vote by vvhich the resolution was adopted; and
also moved that the motion to reconsider be laid on the table.

The latter motion was agreed to.

Mr. AcKKii If I have the floor, I move that the House take a recess until ten o'clock
to-morrow morning.

Mr. Gaukield, of Ohio. I oifer the following resolution.

The Clerk read as follows :

"livsoh-cd, 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 substitute :

" Resolred, That the vote of Louisiana for B. Gratz Brown, of Missouri, for Vice-
President, shouhl, in the judgment of this House, be counted."

Mr. Gaukield, of Oiiio. I must demand the j)revions question.

Mr. Speer. I modify my substitute so as to add " but no vote for President should
be counted."

Mr. Stevensox. I move the following as a substitute ;

" liesolved, That the vote of the State of Louisiana be not counted, because it does
not sufficiently appear that any electors were chosen according to law."

Mr. SiiELDOX. I offer the following preamble and resolution :

"Whereas it appears that the choosing M. F. Bonzano, Jules Lanabere, Charles F.
Halstead, L. C. Roudauez, 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 jirec-
edent established in counting the votes cast by the electoral college of the State of
Texas.

" Be it resolved. That the votes of the electoral college of the State of Louisiana be
counted for President and Vice-President as cast by M. F. Bonzano, Jules Lamibere.
Charles F. Halstead, L. C. Roudauez, A. K. Johnson, E. R. Durand, Joseph B. Lott, and
John Ray."

The Speaker. More resolutions have been offered than can be entertained under
the rule.

Mr. I'OTTER. I rise to a question of order. I ask whether the proper course is not
that the objections taken in joint convention sliimld be reported separately to thu
House, and resolutions 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 gentleman from Ohio [Mr. Garfield] having been
put in first, necessarily removed any action upon the sepai'ate objections. If desired
by the gentleman from New York, [Mr. Potter,] the objections will be read.

Mr. Speer. I desire to modify my amendment.

The Speaker. The Clerk will read the several objections which come to the Houstt
from the joint convention.

Mr. Po'i'TER. I do not demand the reading 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
parliamentary jjosition of the question. The gentleman from Ohio, the chairman of
the Committee on Appropriations, [Mr. Garfield,] offers the resolution which will now
be read by the Clerk.

The Clerk read as follows :

"Ih'soh-ed, That in the judgment of this House none of the returns reported by the
tellers as electoral votes of the State of Louisiana should be counted."

The Speaker. The gentleman from Pennsylvania [Mr. Speer] moves a substitute,
which the Clerk Avill read.

The Clerk read as follows :

"7ie.so/(Trf, That the vote of the electors of the State of Louisiana, certified to by H.
C. Warmoth, governor, should be, in the judgment of this House, counted."

PROCEEDINGS AND DEBATES IN CONGRESS. 397

The Speaker. The gentleman from Ohio in front of the Chair [Mr. Stevenson] has
uftered the following amendment :

*' liesol red, That the vote of the State of Lonisiana be not counted, hecause it does
not snftieiently appear that any electors were chosen according to law."

The Speaker. That is in eftect the same as the first resolution. The Clerk will read
the anuMidment offered by the gentlenuxu 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, .Joseph Taylor, and John
Ray, as electors of the State of Louisiana for President and Vice-President is duly cer-
tified to by the actual secretary of state of the State of Louisiana, and by the return-
ing board decided to be the legal one by the supreme court of said State, and follow-
ing the precedent established in couuting the votes cast by the electoral college of the
State of Texas :

" Be it resolved, That the votes of the electoral college of the State of Louisiana be
counted for President and Vice-President as cast by M. F. Bonzano, Jnles Lanabere,
Charles F. Halstead, L. C.°Roudanez, A. K. Johnson, E. 11. Duraud, Joseph B. Lott,
and Jolin Ray."

Mr. Potter. I desire to ofier a substitute.

The Speaker. That cannot be done unless by unanimous consent. Only three res-
olutions can be entertained : the orighial resolntion, an amendment, and an amend-
ment to the amendment. The gentleman from Oliio, the chairman of the Committee
on Apjjropriations, [Mr. Garheld,] oii'ered the original resolntion. The gentleman from
Pennsylvania moves an amendment to that. The gentleman from Ohio [Mr. Steven-
son] moves one which is in effect the same as the original resolntion. The Chair,
therefore, recognizes the amendment of the gentleman from Louisiana as pi-esentiug
another ]>hase of the question. The original resolution is to the effect that there is no
return; the resolution of the gentleman from Pennsylvania [Mr. Speer] is that that
of Governor Warmoth is the true one ; that of the gentleman from Lonisiana is that the
retnrn signed by the secretary of state is the trne one. Three distinct phases of the
question are thus jiresented.

Mr. Potter. Before the vote is taken, I desire tohavereadtheobjection which was
made in joint convention by Senator Trumbull.

The Clerk read as follows:

"Mr. Trnmbnll objects to counting the votes cast by the persons in the first certifi-
cate read, for the reason that their election is not certified to by the proper officer ;
that Bovee, who signed the certificate of their election, was not the st-crt^tary of state
at the time of making the said certificate, nor in possession of the office of secretary of
state nor of the seal of said State ; and for the fnrther reason tliat the certificate of the
said Bovee is untrne in fact, as appears by the admission of said Bovee before the com-
mittee 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 ou the certiticate signed by Mr. Bovee as secretary
of state.

The Speaker. The Chair knows nothing about the work of the tellers. But the
gentleman has the right to have the document read. The Clerk will agaiu report the
certiticate signed by Mr. Bovee.

The certiticate was again read.

Mr. Potter. Is thei-e a seal attached to the document ?

Mr. BiNGiiASl. I object to all this.

Mr. Potter. I call attention to the fact that the thing attached

The Speaker. That is in the nafiire of argument, which the Chair will not permit.
The gentleman had a right to call for the reading of the piiper, and it has been read.

Mr. Potter. I demand of the Speaker whether the seal of the State of Louisiana is
attached to that certiticate ?

The Speaker. The Chair does not know.

Mr. Bingham. It is certified that it is on it, and that is enough.

Mr. Ajibler. I desire to ask a parliamentary question.

The Speaker. The Chair will hear it.

Mr. Ambler Is it not the right of the House, in passing upon the question now
presented to it, as to which, if either, of these certificates of tlie electoral votes of Lou-
isiana shall be received, to know whether in point of fact the seal of the State of Lou-
isiana is attached 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 weie 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 Cliair will direct the reading of any
other matter that relates to the certificates of the electors of the State of Louisiana.

398 COUNTING THE ELECTORAL VOTE.

But tlie Chair cannot indulge and "«ill not permit any debate as to what is the ti'ue
seal of the State of Louisiana.

Mr. Amblkr. Under the statement of the Speaker, I will ask that the statement of
Mr. Bovee before tlie Committee on Privileges and Elections of the Senate be read.

Mr. BiXGHAM. I ol)ject to that.

The Spkaker. That would be in the nature of debate, and is not in order.

Mr. Storm. I ask that the inscri]ition 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."

Ml'. FarisSWORTII. 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. Stkvexsox. Is it not in order to have a comparison of the two seals made, and
t'o 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 l)een done.

Mr. Stevenson. Have they beeu examined, so as to determine whether they are of
the same size ?

Mr. Peters. And of the same color ?

Mr. Stevenson. In order that it may be shown whether they are impressions from
the same seal.

Mr. BiNGiiAM. You do not determine such a question as that in that way.

The Speaker. 'J"he question is ujion tlie sulistitute moved by the gentleman from
Louisiana [Mr. Sheldon] for the amendment moved by the gentleman from Pennsyl-
vania, [Mr. Speer.]

The resolution moved by Mr. Sheldon was read, as follows :

" Kesoh-ed, That the vote of the electoral college of the State of Louisiana be counted
for President and Vice-President as cast by M. F. Bonzano and others."

The question was taken; and it was not agreed to.

The next question was upon the amendment of Mr. Speer to the resolution moved by
Mr. Garfield, of Ohio.

The amendment moved by Mr. Speer was read, as follows:

" liesoJi'ed, That the vote of the electors of the State of Louisiana, certified to by H.
C. Warnu)th, governor, should be, in the judgment of this House, counted."

Mr. Speer. Upon that question I call for the yeas and nays.

The yeas aiul nays were ordered.

During the; call of the roll,

A message from the Senate, by Mr. Sympson, one of its clerks, informed the House
that the Senate had resolved 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. SpeePv. As it is evident, from the action of the Senate jast 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 having begun, it must be completed.

The call of the roll was completed; and there were — yeas 59, nays 85, uot voting 96;
as follows :

Yeas — Messrs. Acker, Adams, Ambler, Archer, Arthur, James B. Beck, Boles, Brax-
ton, Burchard, Carroll, Crosslaud, Dodds, Dox, DuBose, Duke, Farnswurth, Finkeln-
burg, Getz, Giddings, Golladay, Haldeman, Hancock, Handley, Hanks, Hay, Hereford,
Herndon, Iliitbard, Holmaii, Kerr, Ketchnm, Mclntyre, Manson, McClelland, McHenry,
McKiuuey, Merrick, Morgan, Silas L.Xiblack, Perry, Potter, Price, Randall, Read, Ellis
H. Roberts, William R. Roberts, Si<m H. Rogers, Shober, Slocum, Speer, Storm, Terry,
Voorhees, Waddell, Warren, Wells, Willard, Williams of New York, and Winchester — 59.

Nays — Messrs. Averill, Barry, Beatty, I3igby, Bingham, .James G. Blair, Buckley,
Buffinton, Bunnell, Burdett, Roderick R. Butler, Coburn, Coghlan, Conger, Cotton,
Darrall, Dawes, D(uinan, Dunnell, Eames, Elliott, Farwell, Charles Foster, Wilder D.
Foster, Frye, Garfield, Hale, Halsey, Harmer, Harper, George E. Harris, John B. Haw-
ley, Joseph R. Hawley, Hays, John W. Hazelton, Kellogg, Lamport, Lowe, Maynard,
McJunkin, McKee, Merriam, Moore, Morey, Morphis, Leonard Myers, Orr, Packard,
Palmer, Isaac C. Parker, Peck, Pendleton, Perce, Peters, Piatt, Poland, Porter, Prindle,
Raiuey, Rusk, Sargent, Sawyer, Scofield, Sessions, Sheldon, Shoemaker, H. Boarduian
Smith, John A. Smith, Sprague, Starkweather, Stevenson, Stonghton, Stowell, St.
John, Sypher, Thomas, Washington Townsend, Turner, Twichell, Tyner, Upson, Wake-
inan, Waldron, Wallace, and Williams of Indiana — 85.

PROCEEDINGS AND DEBATES IN CONGRESS. 399

Not voting — Messrs. Ames, Banks, Barber, Barnnm, Erasmus "VV. Beck, Bell, Biggs,
Bird, Austin Blair, Boarnian, Bright, Brooks, Benjamin F. Butler, Caldwell, Caiui)bell,
Clarke, Cobb, Comiugo. Conner, Cox, Crebs, Creely, Critclier, Crocker, Davis, Dickey,
Duell, Eldredge, Ely, Esty, Forker, Henry D. Foster, Garrett, Goodrich, Griftith, Ham-
bleton, ,Jol)u T. Harris, Havens, Gerry W. Hazeltou, Hill, Hoar, Hooper, Houghton,
Kelley, Kendall, Killiuger, King, Kiusella, Lamison, Lansing, Leach, Lewis, Lynch,
Marshall, McCormick, McCrary, McGrew, McNeeley, Benjamin F. Meyers, Mitchell,
Monroe, Negley, "William E. Niblack, Packer, Hosea W. Parker, Edward Y. Rice, John
M. Rice, Ritchie, Robinson, John Rogers, Roosevelt, Seeley, Shanks, Shellabarger, Sher-
wood, Slater, Sloss, Worthington C. Smith, Snapj), Snyder, Stevens, Sutherland, Swann,
Tafte, Dwight To-wnsend, Tuthill, Vau Trump, Vaughan, Walden, Wheeler, Whiteley,
Whitthorne, Jeremiah M. Wilson, John T. AVilsou, Wood, and Young — 90.

So the substitute of Mr. Speer 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
amendment.

Mr. Randall. I object.

The Speaker. In point of fact, that amendment is not pending.

Mr. Dawes. I do not see how it is covered by the previous question.

Mr. Stevenson. I thought it was received. I thought the Speaker so ruled.

The Speaker. The question recurs upon the original resolution oliered by the
gentleman from Ohio, [Mr. Garfield.] It will be read.

The Clerk read as follows:

"/iVso/ce(7, That, in the judgment of this House, none of the returns reported by the
tellers as electoral votes of the State of Louisiana should be counted."

The resolution was adopted.

Mr. Garfield, of Ohio, 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.

In Senate, February 12, 137:>.

The Senate returned to its Chamber at six o'clock and twenty niinutes p. m.

The A'r'E-I'resident. 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, oljjections lying to each one of
the 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 fol-
lows :

"Such joint meeting shall not bo dissolved until the electoral votes are all counted
and the result declared ; and no recess shall be taken unless a (juestion shall have
arisen in regard to counting any of such votes; in which case it shall be competent for
either Honse, 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 lirst question is the objection to the recejition of the electoral votes from Arkan-
sas, made by the Senator from Arkansas, [Mr. Rice.]

ilr. TiiURMAN. I move that the Senate take a recess until half past ten o'clock to-
morrow morning.

Mr. P2D.MUNDS and others. O, no ; let us finish this matter.

The Vice-President. Under this rule it is "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 Sen-
ator from Ohio.

The (inestion being put, there were, on a division — ayes 2.3, noes 20.

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 Mary-
land, Hill, Johnston, Kelly, Machen, Norwood, Ransom, Rice, Saulsbury, Schurz,
Sprague, Stevenson, Stockton, Thurman, Tipton, Trumbull, and Vickers — 23.

Nays — Messrs. Anthony, Boreman, Buckingham, Caldwell, Carpenter, Chandler,
Clayton, Cole, Conkling, Corbett, Cragin, Eduninds, Ferry of Connecticut, Ferry of
Michigan, Flanagan, Frelinghuysen, Hamlin, Harlan, Howe, Logan, Morrill of Maine,
Morrill of Vermont, Morton, Nye, Pool, Ramsey, Robertson, Scott, Sherman, Stewart,
Hud West — 31.

Arsent — Messrs. Alcorn, Blair, Brownlow, Cameron, Davis, Goldthwaite, Hamilton
of Texas, Hitchcock, Lewis, Osborn, Patterson, Pomeroy, Pratt, Sawyer, Spencer,
Sumner, Wilson, Windom, and Wright — 19.

So the nuition was not agreed to.

Tha Vice-President. The Chair wms about to submit the objection of the Senator
from Arkansas, [Mr. Rice.] It is being copied in the Re])reseutative Hall, but the
Senator from Arkansas has sent uj) the rough draught from which he made the olijection

400 COUNTING THE ELECTORAL VOTE.

which he states is the same, with perhaps some mere verbal ilitFerences, but substan-
tially all tlie poiuts 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, becau.se the official returns of the election in said State, made accordiugto 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. MoRTOX. I offer the following resolnticm :

^^ Resolved, That the electoral vote of Arkansas should be counted."

Mr. Edmuxds. I ask to have the ]):ipers upon which the question arises read.

Mr. MoiJTON. The papers do not sliow anytbing about it.

Mr. ErxMUNOS. I want to see whether they do or not.

Mr. Rick. Is a resolution in order?

The Vick-Prksident. A resolution Avill be in order as an amendment to the resolu-
tion of the Senator from Indiana.

Mr. Rick. I otter the amendment which I serd to the desk.

The ViCE-PuE8iiJKXT. The Senator from Arkansas moves an amendment, which will
be read, and then the Senator from Vermont desires to have the papers read.

The Chief Clerk. The amendment is to strike out all of the resolution after the
word " resolved " aiul to insert :

" That the Senate bring before it the officers and persons having in their possession
the returns of the late election in the Stiite of Arkansas relating to the election of elect-
ors of President and Vice-President for that State, together with all such returns."

Mr. CoNKLixG. Is that a resolution ?

The Vuk-Presioext. The Senator from Arkansas proposes this as a substitute for
the resolution of the Senator from Indiana.

Mr. CoxKLiXG. I raise the i)oint of order upon it that was made in other cases.

The ^'ICE-PRESIDKX T. The Senator from New York raises the question of order that
the duty of tlie Senate is to decide the question as to whether the votes shall or shall
not be counted. If the Senator from Arkan.sas 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 amend-
mend to the resolution of the Senator from Indiana.

The (inestion being taken, it was decided in the negative.

Tbe Vice-President. The question recurs on the resolution of the Senator from
Indiaim, and the Secretary will now report the papers, as the Senator from Vermont
has desired.

The Chief Clerk read as follows :

"State of Arkaxsas,
'' Litile Rock, Ark., December 4, 1S72.
"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, 1S73, met
in the city of Litth; Rock, State aforesaid, on Wednesday, the 4th day of December,
1872, and proceeded to vote by ballot, with the following result : D. S. Griffin, W. H.
Granger, Tliomas H. Barnes, \V. H. Howes, Arthur Hemingway, and L. G. Wheeler
each cast one vote for Ulysses S. Grant for Pi-esident of the United States for the term
aforesaid; and D. S. Griffin, W. H. Granger, Thonnis H. Barnes, W. H Howes, Arthur
Hemingway, and L. G. Wheeler each cast one vote for Henry Wilson for Vice-Presi-
dent of the United States for the term aforesaid, making six votes cast by said electors
for each of the respective candidates above named.

"D. S. GRIFFIN.

"W. H. GRANGER.

"THOMAS H. BARNES.

" ARTHUR HEMINGWAY.

"W. H. HOWES.

"L. G. WHEELER.

" State^of Arkansas, State Departjiext,

^'Little Rock, Jrk., 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, No.

PROCEEDINGS AND DEBATES IN CONGRESS. 401

veniber 5, 1872, namely: D. S. Griffin, W. H. Granger, Thomas Barnes, W. H. Howes,
Artlmr Hemingway, and L. G. Wheeler.

[L. s.] "J. M. JOHNSON,

^'Secretary of State."

Mr. Morton. I ask if there is no certificate there from the governor ?

Several Skxators. No.

Mr. Moirrox. I then ask leave to withdraw my resolntion.

Mr. Edmunds. I shonkl like to have the seal read. It does not jiurport to be the
seal of the State, bnt 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 :

" Ecsolvfd, That the electoral vote of Arkansas should be counted."

Mr. Edmunds. I move to amend that by inserting after the word •' should" the
woi'd ")!()t." I ask now that the Secretarj' 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 wLat is the impression of this seal.

The Chief Clerk. 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 '• se.al 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 up, and will therefore be substi-
tuted on the .Journal for it. The (luestion is on the amendment of the Senator from
Vermont, to insert the word "not" in the resolntion of the Senator from Oliio.

Mr. Rice. I ask to have the constitution of the State of Arkansas in regard to th(?
seal of the State read, and also in regard to the certificate 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, &c., 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 Island tiie Chair must rule
that it is not in accordance with the twenty-second joint rule. ['' Qaestion !" " Ques-
tion !"] The ([uestion is on the amendment of the Senator from Vermont, to insert the
vs^ord " not ;" so as to make the resolution read that the vote of Arkansas shall not be
counted.

Mr. Ed.munds. I will ask again that the full inscription of the seal, or what pur-
ports 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. CoNKLiNG. May I inquire whether the coat of arms of Arkansas is not there,
after the impress of the seal 1

Mr. Edmunds. Who can answer that question?

Mr. CoNKLiNG. Certainly the Senators from the State know wliether it is or not.

5Ir. 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 l)e allowed to indulge in debate.

The Vice-President. The Senator from Illinois insists on the enforcement of the
rule. Tlie Chair ha's ruled that this is in the nature of debate. The Secretaiy has read
the official paper from Arkansas and attemjited to describe the seal

Mr. CoNKLiNG. I beg pardon of the Chair if I interrupt him.

The Vice-President. Not at all.

Mr. CoNKLiNG. Aly jiurpose 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 objection ; but I ask the Chair if the Senate, by
unanimous consent, can dispense with a j(jint 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 lan-
guage spoken by any Senator, the Chair himself would not check the reading of that

402 COUNTING THE ELECTORAL VOTE.

statute ; biit he would if any Senator commented on it, which wouhl 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. Kick. I have sent for the statute.

Mr. Claytox. 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 Vicr.-PKESiDKNT. The Chair thinks not.

Mr. Stewakt. It could be coni])ared with the credentials of Senators.

The Yice-President. The Chair thinks the presentation of documents in the De-
partmeut of State or in the Secretary's office of the Senate would be in the nature of
debate.

Mr. IIowE. By the unanimous consent of the Senate, I suppose that comparison
might V)e made.

The Vice-Pkesidext. The Chair has stated, in regard to official documents, that be
would not himself arrest them as in the nature of debate.

Mr. Howe. So that if tliere be no objection this comparison may be made.

Mr. lioUEMAX. I should like to have the ])a])er read.

The ViCE-PiiESiDENT. The Chair does not know where the i)aper is that is sought
to be compared with the seal on this rertilicate.

Mr. Claytox. It can be compared with the seal on the credentials of the Senator-
elect lately presented.

The A^ice-Pkesidext. The question recurs on the amendment of the Senator from
Vermont to insert the word "not."

Mr. Claytox. I f)n]y want to say that that is the seal of the State.

The Vice-Pi:esii)ext. Tliat is debate. The question is on the amendment of the
Senator froiu Vermont to insert the wonl "not."

Mr. Kic'E. I ask for the yeas and nays.

The yeas aud nays were ordered.

Mr. Ramsey. May I presume to ask the Seuator from Arkansas whether this is the
great seal

Mr. Tkumbull and others. I object.

Tlie ViCE-PuESiDENT. 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, re-
sulted— yeas 28, nays 25 ; as follows :

Yeas — Mcssis. r)ayard,B()reman,Carpenter,Cassei'ly, Cooper. Edmunds, Fen ton, Ferry
of Michigan, Hamilton of ilaryland, Hamlin, Hill, Johnston, Kelly, Machen, Morrill of
Maine, Norwood, Ransom, Rice, Robertson, Saiilsbur}-, Schurz, Scott, Stevenson, Stock-
ton, Thurmau, Tipton, Trumbull, and Vickers — '28.

Nays — ISIessrs. Ames, Anthony, Caldwell, Chandler, Claj'ton, Cole, Conkling, Cor-
bett, Cragin, Ferry of Connecticut, Fianagaii, Frelinghuysen, Gilbert, Harlan, Hitch-
cock, Howe, Logan, Morrill of Vermont, Nye, Pool, Ramsey, Sherman, S])ragiie, Stew-
art, and West — 25.

Absent — Messrs. Alcorn, Blair, Brownlow, Buckingham, Cameron, Davis, Gold-
thwaite, Hamilton of Texas, Lewis, Morton, Osborn, Patterson, Pomeroy, Pratt, Saw-
yer, Spencer, Sumner, Wilson, Windom, and Wright — 20.

So the amendment was agreed to.

The Vice-Pkesident. The question recurs upon agreeing to the resolution as
amended, that the vote of Arkansas shall not be counted.

Mr. Stewart called for the yeas and nays, aud they were ordered; and being taken,
resulted — yeas 28, nays 24 ; as follows :

Yeas — Messrs. Bayard, Boreman, Carpenter, Casserly, Cooper, Edmunds, Fenton,
Ferry of Michigan, Hamilton of iVIaryland, Hamlin, Hill, Johnston, Kelly, Machen,
Morrill of Maine, Norwood, Ransom, Rice, Robertson, Saulsbury, Schurz, Scott, Steven-
son, Stockton, Thnrman, Tipton, Trumbull, aiul Vickers — 28.

Nays — Messrs. Ames, Cahlwell, Chandler, Clayton, Cole, Conkling, Corbett, Cragin,
Ferry of Connecticut, 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,
Goldthwaite, Hamilton of Texas, Lewis, Morton, OsboiTi, Patterson, Pomeroy, Pratt,
Sawyer, Spencer, Sunnier, 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 counting the votes from Louisiana. The
Chair thinks he has them in the order in which the objectors were recognized by the
Chair : first, the Senator from Louisiana, [Mr. West ;] second, the Representative from
Louisiana, [Mr. Sheldon ;] third, the Senator from Wisconsin, [Mr. Carpenter;] fourth,
the Re])resentative from New York, [Mr. Potter;] fifth, the Representative from Ohio,
[Mr. Stevenson ;] sixth, the Senator from Illinois, [Mr. Trumbull;] and seventh, the
Senator from West Virginia, [Mr. Boreman.]

PROCEEDINGS AND DEBATES IN CONGRESS. 403

Mr. CAiiPKNTER. I ask leave to offer the following resolution :

^^ Resolved, That the electoral vote of the State of Louisiaua be not counted."

Mr. FuKLixGiiUYSEN. Mr. President, they

The Vic'ic-PiiESiDicxT. The Senator from New Jersey. The Chair must first submit
these papers.

Mr. FuELiNGiiUYSKN. They have all been read.

The Vice-Prksidicnt. They will be considered as read, if there be no objection.

Mr. FiiEUXGiiUYSEN. I offer a substitute, which the Senator from Wiscousin will
probably ac^cept.

The Vi(E-Pi{ESinENT. The Senator from Wisconsin moves the resolution just re-
ported, and the Senator from New Jersey moves to amend it. The amendment will be
read.

The Chief Clerk read as follows :

" JicsoJved, That all the objections presented having been considered, no electoral vote
purporting to be that of the State of Louisiana be counted."

Mr. Cakpenter. I accept that amendment.

The Vice-President. The Senator from Wisconsin accepts the amendment ; and
the question is on agreeing to the resolution as nullified.

"Sir. TnvMBVLh. I offer a substitute, which I send to the desk.

The Chief Clerk read as follows :

" Whereas the Constitution of the United States declares that ' each State shall aji-
pniiit, in such muiiner as the Legislature thereof may direct,' the number 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 Louisiana on the 4th day of November,
1672, in pursuance of the Constitution and laws of the United States and of the State
of Louisiana ; and whereas the oflieial returns of said election were transmitted to
the governor of the State as required l)y the laws thereof, and by him opened and laid
before a returning board of which the governor was, ex officio, a member, to be can-
vassed by said boai'd in pursuance of the laws of said State ; and whereas before the
canvass of said returns was completed said retnrning board was enjoined and restrained
from further proceeding by an order of E. H. Durell, United States judge for the dis-
trict of Louisiana ; and whereas the oflieial returns so received and opened by the gov-
ernor were tabulated by the assistant secretary of said retnrning board, and an^ now
in the ix/sscssiim of the Senate, from which it aii]K':irs that T. C. Manning, (J. A. Weed.
Andrew S. If erron, Hugh J. Campbell, l^ouis ihish, Allen Thomas, L. V. and. J. C. Mon-
curo received a majority of votes cast for electors at said election ; and whereas said
governor caused lists of the names of said electors to l)e made, certified, and delivered
as required by the act of Congress of March 1, 1792"

Mr. Wi:sT. I raise the point of order v\\ the reading of that preamble, that it is in
the nature of arguuu'ut.

Mr. TuuMiiUix. Let it all be read first.

Mr. CoxKLiXG. 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 my satisfaction.

The Vice President. That may be ; but the Chair thinks it is the right of a Sen-
ator to submit a paper

Mr. CoxKLiNG. I Ix'g 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 Senator 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. Caki'enti Jt. If that be not so, the rule can be evaded by presenting an argu-
ment in the form of a proposition, and then withdrawing it after it has been f ullj'' read.

Mr. Trumbull. I object to these speeches.

The Vice-President. The Senator from Illinois objects to debate. The paper
offered l)y the Senator from Illinois as an amendment having been read as far as the
Secretai'y had progressed with it, the Senator froar 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. Trumritll. Cannot the Senate hear it read before deciding upon it? It is nearly
through.

Mr. (viiERMAX. Y(m 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 (luestion ?

Mr. Trumrull. What is the question ? Whether my amendment 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 dig-

404 COUNTING THE ELECTORAL VOTE.

closed by the reading that it is not in order under the twenty-second joint rule. That
is tlie pi)iiit made.

Mr. TiiUMBL'LL. The Chair will bear witness that the amendment of the Senator from
New York was read once or twice before we voted on it.

Mr. CoNKLixG. Not after the point of order?

Mr. Stevknsox. Is it not the right of a Senator to have a paper read ? How can we
vote knouingly witliout having it read ?

The Vici>Presidext. Each Senator votes on the part which has been read. The
Senator from Louisiana makes the jioint of order that that discloses the fact that this
projiosition 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. Stkvexson. I submit to the Presiding 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 Vick-President. Not always. If a motion to adjourn was made, a Senator
would not iiave a right to have a paper read pending that motion.

Mr. Stevensox. Can the Clerk be interrupted in the middle of the reading of a
paper?

The Vice-Presidext. The Chair thinks he can. For instance, if pending the resolu-
tion of the Senator from New Jersey, now before the body, some Senator should move
an appropriation bill as an amendment to it, the Chair would think its reading could
be interru])ted, 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 Louisiana made the point.

Mr. West. And I now renew it.

The Vice-Presidext. That point of order is before the Senate, and they are about
to decide it.

Mr CoxKLiXG, (to Mr. West.) Let us vote ; th.at is all you want.

The Vice-Presidext. Senators, you who are in favor of considering the amendment
as far as read, in order, under the twenty-second joint rule, will say ay ; those opposed
will say no.

Mr. Steven'sox. I ask for the yeas and nays. This is an important question ; it ap-
])lies not to to-day alone, but to all time.

The yeas and nays were ordered; and being taken, resulted — yeas 21, nays 29; as
follows:

Yeas— Messrs. Bayard, Carpenter, Casserly, Cooper, Fenton, Hamilton of Maryland,
Hamlin, Hill, Johnston, Kelly, Machen, Norwood, Kansom, Rice, Saulsbury, Stevenson,
Stockton, Thurinan, Tipton, Trumbull, and Vickers — 21.

Nays — Messrs. Ames. Anthony, Boreman, Caldwell, Chandler, Clayton, Cole, Conk-
ling. Corbett, Cragin, Edmunds, Ferry of Connecticut, Ferry of Michigan, Flanagan,
Frelinghnysen, Gilbert, Harlan, Howe, Logan, Morrill of Maine, Morrill of Vermont.
Nye, Pool, Ramsey, Sawyer, Sherman. Sprague, Stewart, and West — '29.

Absext— Messrs. Alcorn, Blair, Brownlow, Buckingham, Cameron, Davis, Gold-
thwaite, Hamilton of Texas, Hitchcock, Lewis, Morton, Osborn, Patterson. Ponieroy.
Pratt, Robertson, Schurz, Scott, Spencer, Sumner, Wilson, Windom, and Wright — 23.

The Vice-Presidext. The Senate refuses 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. [Laughter.]

The Vice-Presidext. The Senator from Illinois offers the remaining part of the
paper. The Secretary will report it.

The chief clerk read as foUows:

^' Hesolred, 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 Secretary had read all but that?

The Vice-Presidext. He had.

Mr. Trumrull. All but that? [Laughter.]

The Vice-President. He had. The question is on the amendment of the Senator
from Illinois.

Mr. Edmuxds. I should like to hear the original resolution reported.

The Vice-Presidext. The original resolution will be read.

The chief clerk read as follows:

" Hesolvcd, That all the objections having been considered, no electoral vote purport-
ing to be that of the State of Louisiana be counted."

The chief clerk also read the amendment of Mr. Trumbull.

Mr. Flaxagan. I rise to a point of order, sir. The point is this : there was only one
resolution in that paper, and we have voted ujton that.

The Vice-Presidext. The Senator is mistaken. The reading of the preamlile.
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 ruled

PROCEEDINGS AND DEBATES IN CONGRESS. 405

out ; and tlie question now is on asroeing to the amendment of the Senator from Illi-
nois to the resolution of the Senator from Wisconsin.

Mr. Trumbull. I ask for the yeas and naj's. It is an important question whetlier
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, Fenton, Ferry of Connecticut, Hamilton of
Maryland, Johnston, Kelly, Machen, Ransom, Rice, Saulsbury, Schurz, Sprague, Ste-
venson, Stockton, Thurman, Tipton, Trumbull, and Vickers — 20.

Nays — Messrs. Ames, Anthony, Boreman, Caldwell, Carpenter, Chandler, Clayton,
Cole, Conkling, Corbett, Cragin, Edmnn<ls, Ferry of Michigan, Flanagan, Frelinghuy-
sen, Gilbert, Hamlin, Harlan, Hill, Hitchcock, Howe, Logan, Morrill of Maine, Morrill
of Vermont, Morton. Norwood, Nye, Pool, Ramsey, Robertson, Sawyer, Scott, Sher-
man, Stewart, and West — 35.

Absent — Messrs. Alcorn, Blair, Brownlow, Buckingham, Cameron, Davis, Gold-
thwaite, Hamilton of Texas, Lewis, Osborn, Patterson, Pomeroy, Pratt, Spencer, Sum-
ner, Wilson, Windom, and Wright — IB.

So the amendment was rejected.

The VIck-Pkesidext. The question recurs on the resolution of the Senator from
Wisconsin, [Mr. Carpenter.]

Mr. TiiUKMAN. I call for the yeas and nays on that.

The yeas and nays were ordered; and being taken, resulted— yeas 33, nays 1(5; as
follows :

Yeas — Messrs. Ames, Anthony, Boreman, Caldwell, Carpenter, Chandler, Cole, Conk-
ling, Corbett, Edmunds, Ferry of Michigan, Flanagan, Frelinghuysen, Gill)ert, Ham-
lin, Harlan, Hill, Hitchcock, Howe, Logan, Morrill of Maine, Morrill of Yerincmt,
Morton, Norwood, Nye, I'ool, Ramsey, Robertson, Sawyer, Scott, Sherman, Stewart,
and West— 33.

Nays — Messrs. Bayard, Casserly, Cooper, Ferry of Connecticut, Hamilton of Mary-
land, Johnston. Kelly, Machen, Ransom, Saulsbury, Sprague, Stevenson, Stockton,
Thurman, Tipton, and Vickers — KJ.

Absent — Messrs. Alcorn, Blair, Brownlow, Buckingham. Cameron, Clayton, Cragin,
Davis, Fenton, Goldrhwaite, Hamilton of Texas, Lewis, Osborn, Patterson, Pomeroy,
Pratt, Rice, Schurz, Spencer, Sunnier, Trumbull, Wilson, Windom, and Wright — 24.

The Vice-President. The rescduiion is agi-eedto; and the Secretary will at once
comnninicate to the House of Representatives this action of the Senate.

Mr. Morton. Now that the vote is taken, 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 decided, which has been submitted to the
Senate, it would not be in order to take up any proposition or indulge in debate. The
Senator from Vermont has made the point of order that until the joint convention
dissolves, no business, except that relative to the counting of the electoral votes, can
be entertained under the twenty-second joint rule and the 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 electoral vote of Arkansas because of the want of the
certificate

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 np, notliing can be debated or proposed even.

Mr. Morton. I was not proposing to make a speech or to debate anything.

The Vice-President. But the joint convention 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. MoRTf)N. 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 In-
diana 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
relative to the vote of Arkansas.

Mr. Edmunds. I object to that, Mr. President.

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.

406 COUNTING THE ELECTORAL VOTE.

Mr. Clayton. I will do so on some otlier occasion, tlien.

The Vici-:-Pkesidext. If it is the pleasure of tlie Senate to have the question raised
by the Senator from Vermont submitted, the Chair will now siihmit it to the Senate:
and that is that until the tinal declaration of the votes for President and Vice-Presi-
dent 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. Edmuxds. I withdraw the objection I made to the Senator from Arkansas mak-
ing a personal explanation.

The Vick-Presidext. The Senator from Arkansas now aslvs consent to malce a per-
sonal explanation.

Mr. Clayton. It will take but a minute.

The Vu'e-Pkesidext. Is there objection?

Mr. Sprague. I object.

Mr. Clayton. I want to correct a misstatement.

The Vice-President. The Senator from Ilhode Island objects.

Mr. Frelix(;iiuy8ex. The Senator from Arkansas wishes to correct a misstatsment
of his own. I hope nobody will object.

The Vici>Presii)EXT. Does the Senator from Ehode Island withdraw his objection
to the Senator from Arkansas correcting a misstatement of his own?

Mr. Sprague. I withdraw the objection.

Mr. Claytox. 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 the House be informed that the Senate have decided the
question.

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 of Representatives, by Mr. McPherson, its
Clerk, announcing that the House liad passed the following resolution:

" licftolved, That the electoral vote of the State of Arkansas, as reported by the tell-
ers, be counted.'"'

Mr. Edmunds. I move, if it be in order, that the Senate take a recess for five min-
utes.

The Vice-President. The rule provides —

"Such joint meeting shall not be dissolved until the electoral votes are all counted
and the result declared : and no recess shall he taken unless a question shall have
arisen in regard to counting any of such votes, in which case it shall be competent for
either Ikuisi^ acting sejiarately, in the manner hereinbefore provided, to direct a
recess not beyond the next day at the hour of one o'clock p. m."

The Senator from A'enuont moves that the Senate take a recess for five minutes.

Mr. CoxKLiXG. Is it not by concurrent resolution that that must be done ?

The Vice-Presidext. The rule is specifically the other Avay. 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 tlie hour
of one o'clock p. m."

The question is on the motion of the Senator from Vermont, that the Senate now
take a recess for five minutes.

The motion was agreed to ; and at the expiration of the recess the Senate resumed
its session, when the following message was received from the House of Represent-
atives by Mr. McPherson, its Clerk :

Mr. President, the House of Representatives have passed the following resolution :

" Eesolved, 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. SiiERMAX. I move that the Senate now return to the hall of the House of Rep-
resentatives.

The motion was agreed to; and the Senate (at seven o'clock and forty-six minutes
p. m.) again proceeded to the hall of the House of Representatives.

IX THE presence of THE SENATE AND H0U8E OF REPRESENTATIVES,

Fcbniary 12, 1873.

At seven o'clock and fortv-five minutes p. m. the Senate in a body re-entered the
ball.

The Vice-President baving 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 considei-ed by the two houses, the Senate has resolved as
follows :

^'JiCSoJvcd, That the electoral vote of Arkansas should not be counted."

PROCEELINGS AND DEBATES IN CONGRESS.

407

And the House has resolved as follows :

"liesolved, That the electoral vote of the State of Arkansas, as reported by the tell-
ers, be counted."

There being a non-concurrence of the two houses on this question, the vote of Ar-
kansas, in accordance with the provisions of the twenty-second joint rule, will not be
counted. That rule provides that —

"No question shall be decided atilirmatively, 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 re-
solved as follows :

t "Hesolved, 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 :

"Mesolved, That, in the judgment of this House, none of the returns reported by the
tellers as electoral votes of the State of Louisiana should be counted."

On this question there is a concurrence of the bouses ; and the electoral votes of
Louisiana will not be counted. The tellers will now announce the result of the vote.

Senator Shermajn (one of the tellers) announced the result, 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, 1873.

a
<s

For President.

For Vice-President.

States.

0
>, .

p'C

^ i

la
o

3 ■

o
V

o w

7
5
5

13
4
6

35
9

29
3

^ .

.3 .

o
a"

"5 a
^ a

P'5.

a ,.
as

a
o

o
a)

a o

o
H

H .

2.2

a =

a|
m §

■21

366

7
5
5

13
4
6

35
9

29
3

11
10

Ohio

8
12

....

15
21

8
11
4

11
10
6
5
3
5
5
3
3

266

11
10
6
5
3
5
5
3
3

286

West Virginia - ..

....

Total

* The three votes of Georgia for Horace Greeley, of New York, for President were excluded,
t The electoral votes of Loui.siana and Arkansas were not counted.

26 X

408 COUNTING THE ELECTORAL VOTE.

The Vice-President. The whole uumber 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 Illinois, 286 votes ; for B. Gratz
Brown, of Missouri, 18 votes ; for Thomas A. Hendricks, of Indiana, 42 votes ; for
Charles J. Jenkins, of Georgia, 2 votes; and for David Davis, of Illinois, 1 vote. The
result of the vote, as reported 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. Bramlette, of Kentucky, 3 votes ; for William S. Groes-
beck, of Ohio, 1 vote ; and for Willis B. Macheu, of Kentucky, 1 vote.

Wherefore I do declare that Ulysses S. Grant, of the State of Illinois, having re-
ceived a majority of the whole uumber 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 ^'ici--! 'resident of the United States, is duly
elected Vice-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.

And then, on motion of Mr. Speer, (at eight o'clock p. m.,) the House adjourned.

In Senate, Fehntary 12, 1373.

NOTIFICATION OF ELECTION.

Mr. Sherman. I desii-e to offer a formal resolution :

Resolved, That a committee of one member of the Senate be appointed hj 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 lie 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
has been duly elected Vice-President of the United States for four years, commencing
on the 4th 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 Senator from Ohio, (Mr. Sherman.)

Mr. Edmunds. I move that the Senate do now adjourn.

The motion was agreed to; and (at 8 o'clock and 7 minutes p. m.) the Senate ad-
journed.

In Senate, February 13, 1873.

twenty-second JOINT RULE.

Mr. Sherman submitted the following concurrent resolution ; which was referred
to the Committee on Privileges and Elections :

Resolved, {the House of Rej)resc)itatives concurvuiy,) That the twenty-second joiut rule
be rescinded.

BEST AND MOST PRACTICABLE MODE OF ELECTING PRESIDENT AND

VICE-PRESIDENT.

In Senate, May 28, 1874.
Mr. Morton submitted the following report :

On the 10th day of March, 1873, the Senate of the United States adopted the follow-
ing resolution :

^'Resolved, That the Committee on Privileges and Elections be instructed to examine
and report, at the i ext session of Congress, upon the best and most ])racticable mode of
electing the President and Vice-President, and providing a tribunal to adjust and de-
cide all contested questions connected therewith, with leave to sit during vacation."

In pursuance of the authority and instructions contained in this resolution, the Com-
mittee on Privileges and Elections have had the subjects under consideration, and sub-
mit the following report, embodying the conclusions at which they have arrived :

PROCEEDINGS AND DEBATES IX CONGRESS. 409

PRESENT MODE OF ELECTION.

The existing provisiou in the Constitution of the United States for the election of
the President and Vice-President is in the following 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 Representatives to
which the State may be entitled in the Congress ; but no Senator or Representative,
or person holding an office of trust or i^rolit under the United States, shall be appointed
an elector. (Art. II, sec. 2.)

" The electors shall meet in their respective States, and vote l>y 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 dis-
tinct 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 Sen-
ate 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 ai)pointed ;
and if no person have such majority, then from the persons having the highest num-
ber, not exceeding three, on the list of those voted for as President, the House of Rep-
resentatives shall choose immediately, by ballot, 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 pnrpose 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.
And if the House of Representatives shall not choose a President whenever the right of
choice shall devolve upon them, before the 4th day of March next following, then the
Vice-President shall act as President, as in the case of the death or other constitutional
disability of the President. The person having the greatest numVter of votes as Vice-
President shall be Vice-President, if such number be a majority of the whole number
of electors ai>pointed, 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 this pur-
pose 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.'
(Amendments, Art. XII.)

PROPOSED AMENDMENT.

As a substitute for the foregoing provisions, the committee pi'opose the following
joint resolution.

"Resolved by the Senate and House of Hepreiientatives of the United States of Ameriea in
Congress assemhled, (two-thirds of each House concurring therein,) That the following
article is hereby i)roposed as an amendment to the Constitution of the United States,
and, when ratified by the legislatures of three-fourths of the several States, shall be
valid, to all intents and purposes, as a part of the Constitution, to Avit :

" Article — .

"I. The President and Vice-President shall be elected by the direct vote of the peo-
ple in the manner following : Each State shall be divided into districts, equal in num-
ber to the number of Representatives to which the State may be entitled in the Con-
gress, to be composed of contiguous territory, and to be as nearly equal in population
nsniaybe; and the person having the highest number of votes in each district for
President shall receive the vote of that district, which shall count one presidential vote.

"' II. The person having the highest number of votes for President in a State shall
receive two presidential votes from the State at large.

" III, The person having the highest number of presidential votes in the United
States shall be President.

" IV. If two persons have the same number of votes in any State, it being the high-
est number, they shall receive each one presidential vote from the State at large ; and
if more than two persons shall have each the same number of votes in any State, it
being the highest number, no presidential vote shall be counted from the State at
large. If more persons than one shall have the same number of votes, it being the
highest number in any district, no presidential vote shall be counted from that dis-
trict.

" V. Tlie foregoing provisions shall apply to the election of Vice-President.

" VI. The Congress shall have power to provide for holding and conducting the
elections of President and Vice-President, and to establish tribunals for the decision
of such elections as may be contested.

" VII. The States shall be divided into districts by the legislatures thereof, but the
Congress may at any time by law make or alter the same."

410 COUNTING THE ELECTORAL VOTE.

In support of the proposed amendment, the committee submit the following obser-
vations :

THE ORIGINAL THEORY.

The theory of the electoral college was, that a body of men should be chosen for the
express purpose of electing a President and Vice-President, who would be distinguished
by their eminent ability and wisdom, who would be independent of popular passion,
■who would not be intlueuced 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 selec-
tion of the proper person. And in order to secure more perfectly the independence 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.
The idea was that a small body of select men could be more safely intrusted with the
election of President and Vice-President than the whole body of the people.

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 government 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 iiually agreed to vest the election in electors chosen for the express
purpose, it was deemed a great stride toward popular government.

It was objected to leaving the election of President to the mass of the people as one
community, that it would result in consolidation — that the smaller States would be
swallowed up by the larger. It was further objected that in such an election the slave
States would be shorn of their power, because their slaves coiild 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 Presi-
dent, 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 legislature, and preserve the power
of the States, which was as near as they were willing to bring the i)residential election
to the people.

THE LESSON OF EXPERIENXE.

Now that democracy is better understood, and popular government has been more
thoroughly tested, we have learned that large electoral bodies can be more safety
trusted than small ones ; that while it may be possible to corrupt small bodies, it is im-
possible to corrupt large ones, and that the danger of tumult, which was ever present in
the minds of the framers of the Constitution, arises chietly from the exclusicn 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
persons 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 committals or engagements, so that when they came together they could de-
liberate with perfect freedom for the best interests of the Republic. How completely
this theory has been overturned in practice for more than seventy years we need not
recite. For more than seventy years the electors have been pledged in advance to vote
for particular persons for President 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 effectually binding upon them in public
opinion, insomuch that an elector who would violate the understanding upon which
he was nominated, and vote for the opjftosite 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.

A DANGEROUS AND USELESS SYSTEM.

The more complicated the machinery is, whether in politics or in the arts, the mor e
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 foreseen, which may lead to
civil war and disaster, The simpler the machinery of Government, the more easily it
is understood and the less liable to accident.

Not only has the result been that the electors are not left free to select a President
and Vice-President, they being in all instances pledged in advance, but it has unques-
tionably been a blessing that this has been so, for experience has demonstrated that
small bodies of men intrusted with such vast powers as the choice of the Chief Magis-
trate 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.

PROCEEDINGS AND DEBATES IN CONGRESS. 411

Mr. Benton once declared that "the only effectual mode of preserving our Govern-
ment from the corruptions ■which haA'e undermined the liherty of so many nations is
to confide the election of our Chief Magistrate to those who are furthest removed from^
the iuHuence of his patronage ; that is, to the whole body of American 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 j)ledging the
electors in advance to vote for particular persons. But this jiledge in advance defeats
the very purpose for which the electoral college was created, and converts it into a
body of agents, who are to execute their powers according to strict instructions given
before their appointment.

The electoral colleges have turned out to be wholly useless. Every reason given for
their original establishmeut has absolutely failed in practice. But while they are
powerless for good, they may be potent for evil. In their election errors may easily
be committed, and in very many instances have been. While nobody would mistake
the name of Grant 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.

AN UNNECESSARY RESTRICTION.

One great objection to the present electoral system is that it absolutely circum
scribes 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 difierent parties before the people, but he may not be in
favor of either, and would prefer 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 can-
didates 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 vot-
ing for President and Vice-President, because uo electoral ticket for Fremont and Day-
ton had there been put in the field.

In eftect, the electoral system absolutely deprives the voter of his power to vote for
men of his choice for President and Vice-President, unless there are enough of his way
of thinking in the same State to meet in convention and nominate electors to repre-
sent 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 convention or caucus indispensable in all cases and every-
where, for the individual voter cannot give effect to his vote or give to it moral or po-
litical significance unless there are others who will act in concert, that is, in conven-
tion with him in the nomination of candidates for electors.

AN ELECTION BY STATES, NOT BY THE PEOPLE.

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 ex-
ceeding fifty thousand votes, and his opponent may carry the remaining States by
such majorities as to give him perhaps half a million majorit.y of the whole vote of
the peo^jle. The present mode of choosing the President is, though not generally so
called, an election by States.

It had its origin in the idea of preserving, as nearly as possible, the equality of the
States in the election of the President, 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 popula-
tion of over forty millions. Under the present apportionment, the electoral votes of
ten States oat of thirty-seven may elect a President, and as, under the practical work-
ing of our institutions, the vote of each State is cast solidly, it is the same as if the
people of these ten States had voted unanimously for the same man, a thing which will
be likely never to happen.

FAIRNESS OF THE AMENDMENT.

By the proposed change each State will have as many votes in the election of Presi-
dent and Vice-President as it has now. Each State will be divided into as many dis-
tricts as it has Representatives in Congress ; each district to have one vote in the elec-
tion of President and Vice-President, and the vote of that district to be counted ia
favor of the candidates for President and Vice-President who have the largest number
of votes in it. Each State will have two presidential votes at large, to be given to
that candidate who has the largest number of votes in the whole State, thus preserv-
ing the autonomy of the States and their State character in the presidential election.

This plan 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 single candidate for
President, so that it has happened, and may happen again, that the solid vote of one

412 COUNTING THE ELECTORAL VOTE.

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 ; where-
as, 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 for the gen-
eral majority for the President.

INJUSTICE OF VOTIXG BY STATES.

In this argument we 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 suppressing the wishes of more than two million 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 destructive 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 pres-
ent system the election of President is made more completely an election by States
than was even intended by the framers of the Constitution. As before stated, they
intended that the electoral colleges should be free deliberative bodies, the members of
which, after full consideration, 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 par-
ticular persons for President and Vice-President, and the whole set of electors pledged
to vote for the same persons are elected, so that the vote of each State is given in
solhlo, 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 elec-
tion would have less of a State character and be more national. The framex's of the
Constitution, intending that the electoral college should be deliberative bodies, of course
did not expect them to vote solidly for President, but to divide up as deliberative
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.

ITS ORIGIN.

It is somewhat curious to note in this connection that while the doctrine of State
sovereignty has been generally insisted upon as a protection to the smaller States, yet
this particular feature of it has been preserved and strengthened by the large States
at the expense of the small ones. As before stated, the electors were at first generally
chosen by districts in States that did not choose them by their legislatures, but this prac-
tice 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 contend-
ing 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 beeu divided up by the peojile voting directly for President in districts,
the case would have been quite difl'erent.

ITS UNFAIRNESS ILLUSTRATED.

An examination of the working of the electoral college for the last fifty years will
prove beyond all question that in a number of cases the will of the majority has been
completely defeated ; that if the majority is represented in the result of a presidential
election it is quite as much the result of accident as of the natural working of the ma-
chinery; that the final result produced by the electoral machinery has not within fifty
years approached as near as within 10 per cent, of being a true representation of the
will of the jieople as expressed in their votes, and in a number of instances has departed
from it over 30 per cent.

The following statement of the result in the different presidential elections from 1872
back to 1844 will establish the truth of what we have said :

In 1872 General Grant received 55 per cent, of the votes of the people; in the elect-
oral college he received 81 per cent.

In 1868 General Grant received 52 per cent, of the popular vote and 73 per cent, of
the electoral vote.

In 1864 Mr. Lincoln received 55 per cent, of the popular vote and 91 per cent, of the
electoral vote.

PROCEEDINGS AND DEBATES IN CONGRESS. 413

In ISCO Mr. Lincoln received only 40 per cent, of the popnlar vote; he received 59
per cent, of the electoral vote.

In IS.'iG Mr. Buchanan received only 45 per cent, of the popnlar vote; he received 59
per cent, of the electoral vote.

In this election Fillmore received 25 per cent, of the popnlar vote and only 2 per
cent, of the electoral vote ; but fourteen of his friends were elected to Congress.

In 1852 Pierce received 51 per cent, of the popular vote andt55 i)er cent, of the elect-
oral vote.

In 1848 General Taylor received 47 per cent, of the popnlar vote and 56 per cent, of
the electoral vote. At this election Mr. Van Buren received about 10 per cent, of the
popular vote, and received no electoral vote ; but three of his friends were elected to
the House of Representatives.

In 1844 Mr. Polk received not quite 50 per cent, of the popular vote. He received 62
per cent, of the electoral vote.

To illustrate the operation of the district system, we will consider the comparative
results of the elections for President and for members of Congress, in the four States
of Pennsylvania, Ohio, Indiana, and Illinois, from 1860 to 1872.

These States voted solidly for Mr. Lincoln in 1860, casting 74 electoral votes. At the
same election they returned 66 members of Congress, of whom 24 were democrats.

In 1864 the same States cast 76 electoral votes for Mr. Lincoln again and elected the
same year 68 members of Congress, of whom 16 were democrats.

In 1868 the same States threw 76electoral votes solidly for General Grant and elected
68 members of Congress, of whom 22 were democrats.

In 1872 the same States again voted solidly, giving 85 electoral votes to General
Grant, and elected 77 members of Congi'ess, of whom 25 were democrats.

In these four States the democratic strength, as compared with the republican, has
been about as 9 to 10, but under the operation of the general-ticket system they had
been wholly unrepresented in thte electoral college ; but in the House of Representa-
tives, under the district system, they have had an average of nearly one-third of the
members.

Take the State of New York alone for the same period. In 1860 New York cast her
35 electoral votes solidly for Mr. Lincobi. At the same time she elected 33 members of
Congress, of whom 9 wei'e democrats. In 1864 she again cast her 33 electoral votes
solidly for Mr. Lincoln and at the same time elected 31 members of Congress, of whom
11 were democrats. In 1868 she cast her 33 electoral votes solidly for Mr. Seymour.
The State was carried for Mr. Seymour by his overwhelming majority in the city of
New York, about the character of which grave charges were made, but of which the
committee expresses no opinion ; but the rest of the State, unaffected in their districts
by this large majority in the city, returned 18 out of the 31 members of Congress, who
were opposed to Mr. Seymour, thus showing conclusively how the voice of the people
of New York outside of the city had been stilled in the presidential election by the city
majority, operating through the general-ticket system. In 1872 New York cast her 35
electoral votes solidly for General Grant, at the same time electing 33 members oi.
Congress, of whom 9 were democrats.

THE DISTRICT SYSTEM WOULD PREVEXT FRAUD.

Under the present system, the State, voting solidly, there is great temptation to
fraud. Where the condition of parties is nearly balanced in a State, a successful fraud
may determine the vote of the whole State. This puts the whole votes of States in the
hands of the large cities. The material with whicli to jierpetrate frauds predominates
especially in large cities, such as New York, Philadelphia, Boston, Baltimore, Cincin-
nati, Saint Louis, and New Orleans. Under the district system the frauds in the large
cities would only affect the vote in the district in which they occurred, and could not,
in their consequences, extend to the vote of the whole State. But under the present
system the successful city fraud may determine the vote of the whole State.

Where the fraud will only affect the vote of a single district, the temptations to com-
mit it are greatly diminished. Men will not take the risks and incur the expense of
committing a gi'eat fraud to carry the vote of a single district, which they would do
if the result of the fraud was to determine the vote of the whole State, and perhaps
secure the election of a President.

THE LEGISLATURES NOW CONTROL THE APPOINTMENT OF PRESIDENTIAL ELECTORS.

The Constitution provides that —

The appointment of these electors is thus placed absolutely and wholly with the leg-
islatures of the several States. They may be chosen by the legislature, or the legisla-
ture 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 ;

414 COUNTING THE ELECTORAL VOTE

aucl it isno doubt competent for the legislatiue to aiithorize 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 legislatures of the States by the Constitution of
the United States, and cannot be taken from them or modified by their State constitu-
tions any more than can their power to elect Senators of the United States. Whatever
lirovisious may be made by statute, or by the State constitution, 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 elec-
tions the electors were chosen in many States by the legislatures, and as late as 1824,
in Delaware, Georgia, South Carolina, Louisiana, New York, and Vermont, they were
chosen by the legislatures, and South Carolina continued this practice up to the war
of the rebellion.

Therefore, under the Constitution as it now stands, it is in the power of any legis-
lature to repeal all laws providing for the election of electors by the people, and take
such election into their own hands. It may be said this is not likely to be done ; but
the answer is that it may be and that it has been done ; and who can tell what may
be the future exigencies of parties and politicians, or what they may not do ? As has
been already remarked. South Carolina chose electors by her State legislatures up to
the period of the rebellion, and at all presidontial elections prior to 1852 the electors
were variously chosen — some by the legislatures in joint convention; others by the
two houses, where they were divided in politics, acting separately and dividing the
electors between them by contract. Other States chose electors by the general-ticket
system; others again by the single-district system; and still others by the double or
triple district system, that is, dividing the State into a smaller number of districts
than there were members of Congress, and choosing two or three electors in one dis-
trict. These heterogeneous methods, setting at defiance the popular will, long ago
established the necessity for a uniform constitutional rule upon this suliject, and nearly
e/ery eminent American statesman within tifty years has urged its adoption.

NO TRIBUNAL OR LAW TO DECIDE CONTESTS.

It will thus be seen that the mode of choosing the electors is placed entirely beyond
the power and jurisdiction of the National Government; and whatever disorders, ir-
regularities, 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 lai-ge by the qualified voters of the State ; but in no
State, we believe, is there any legal provision made for the settlement of any contest
that may arise in regard to such election. 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 we 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 gov-
ernor and other State ofificers and members of the legislature, but no provision 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.

PERILS IN THE FUTURE.

There is imminent danger of revolution to the nation whenever the result of a presi-
dential 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 carried by fraud or violence, and
where there is no method of having these questions examined and settled in advance —
"where the choice of President depends upon the election in a State which has been pub-
licly characterized 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 inter-
position 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 consequences 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 mon-
archy 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 destructive 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 wisdom in a monarchy to avoid such
contingencies, if possible, by settling definitely the rightful descent of the crown ; and
in republics there ought to be such machinery of government provided that it would
seem to be impossible that any man should ever reach the presidential chair who was
not legitimatelv chosen thereto.

PROCEEDINGS AND DEBATES IN CONGRESS. 415

THE PRESENT METHOD OF COUNTIXG.

The Constitution provides tliat Congress may determine tbe time of choosing the
electors and the day on which they shall meet in the several States and cast their votes,
which day shall he 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 Vice-Presi-
dent, and of the number of votes for each, which list 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 jiresence of the Sen-
ate and House of Rei^reseutatives, open all the certiticates, and the votes shall then be
counted."

THE HOUSES MERE WITNESSES.

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 certiticates, and the notes 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
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.

THE WISCONSIN VOTE IN 1^57.

Such had been the understanding and practice, apparently without question, until
1857. When the electoral votes were counted that year in the presence of the two
houses an objection was made by a member of the Senate to receiving and counting
the vote of Wisconsin, because the record showed that the electors in that State had
not met and cast their votes on the day prescribed by law, and upon which the elect-
ors 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 President of the Senate, Mr.
Mason, declared that the objection was out of order, and that nothing was in order
but to open and count the electoral votes returned, and the vote of Wisconsin was
counted, after which he stated the result of the vote, and declared James Buchanan
and John C. Breckinridge elected President 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, the business having been accomplished for which
the two houses had assembled, he declared the meeting dissolved, and at the head of
the Senate returned to the Senate chamber.

Upon the retirement of the Senate, an elaborate 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 counting the electoral votes either
jointly or separately, and that the decision of the President of the Senate was final.
So the matter was dropped. The Senate, upon re-assembling in its chamber, began the
consideration of the subject, and after a long debate, with about the same result, it
was di'opped.

It seemed to be a necessary conclusion from these discussions that it was a casus omis-
sus in the Constitution, and that the power of the President of the Senate to count the
vote resulted, fx necessitate rei, from the failure of the Constitution to give to the two
houses any jurisdiction over it; but they were to be present at the counting as solemn
witnesses of its accuracy and result. In that case the vote of Wisconsin was not im-
portant, because Messrs. Buchanan and Breckinridge were elected whether it was re-
ceived 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 undoubtedly 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 occasioned by a snow-storm which prevented the

416 COUNTING THE ELECTORAL VOTE.

assembling of the electors, and that Mr. Buchanan was therefore fraudulently elected;
and the danger of a revolution would have been imminent.

But suppose that when the objection was made to counting the vote of Wisconsin it
had been entertained, and the decision of it referred to the concurrent vote of the two
houses, taken sej)arately, as now provided by the twenty-second joint rule ? The Sen-
ate was then strongly democratic and the House republican. 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 woukl have resulted in the contin-
gency we have supposed, in throwing the election of the President into the House of
Representatives, in which Maryland, carried bvMr. Fillmore, and which had been car-
ried by tlie know-nothings in the election of meml>ers 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.

A DANGEROUS POWER.

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 per-
ceive 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 Government that the President of the Senate has opened and
counted the votes for himself, either for President or Vice-President. In 1797 John
Adams, as Vice-President, opened the votes for himself and declared himself elected
President. In 1801 Jetferson, 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 himself, he be-
ing a candidate for re-election ; and in 18:37, Mr. Van Buren, then Vice-President, counted
the votes for himself as President and declared himself elected. In 1841 Richard M.
Johnson, then Vice-President, oi>enedand counted the votes for his re-election as against
Mr. Tyler, the opposing candidate ; and in 18G1 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 Senate, in opening and counting the vote for President and Vice President, should
exercise any discretionary or judicial power 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 witnesses and to make record. But the exercise of these
high powers may devolve upon him ex nectmtate ret, and whatever decision he may
make between the two sets of electors, or upon the sufficiency and validity of the rec-
ord 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 decis-
ion is final.

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 ol the Senate, for the question
in that case was not as to any irregularity in regard to the electoral 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 regard to Georgia.

The President of the Senate may, indeed, be imi)eached for high crimes and mis-
demeanors, 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 we have been con-
sidering, that the decision of the President of the Senate should determine the result
and give the Presidency to the candidate who would otherwise have been defeated, or
throw the election into the House of Representatives, where the candidate who had
been rejected by the people should be elected by the vote of the States, all can un-
derstand 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 with-
out 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 excitement, might have
proved fatal to the peace of the nation.

THE TWENTY-SECOND JOINT RULE.

We 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 un-

PROCEEDINGS AND DEBATES IN CONGRESS. 417

doubtedly the result of a conviction in Congress of tlae necessity of providing some
method for avoiding the dangers we have been discussing ; but it was certainly adopted
without much consideration, and with a view apparently of furnishing an additional
safeguard against receiving electoral votes from States that had been in rebellion.
But it is general in its character, is applicable to all the States, and will continue in
operation until it is amended or repealed.

It is, in our judgment, the most dangerous contrivance 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. 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 certiticate, 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 man-
ner, submit said question to the House of Representatives for its decision ; and no
question shall be decided affirmativly, 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 re-assemble, and the Presiding Officer shall then announce the decis-
ion 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."

A TEJirXATION TO IX.TUSTICE.

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 offect. If the two
houses disagree, the vote of the State is lost. This may result in a tie, or in the elec-
tion of the candidate 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 elec-
tion into the House of Representatives. Each house is to decide the question without
debate, in a summary manner, without investigation and without adjournment. Here is
a powerful temptation to the House of Rei>resentatives by non-concurrence to throw
the election into its own body, and thus, perhaps, secure the election of a candidate
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 de-
feat an election by the x>eople and seize the administration of the Government into the
hands of their jiarty.

"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 vic-
tory 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 pi'oceedings 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 State to a voice in the election to depend upon the affirmative concurrent vote of
the two houses, which, in the exigency of parties, may not be obtained, however small
the merit of the objection.

THE RULE UNREASONABLE.

To US 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 participate in the presidential election to depend npon such a contingency. If
the rule were reversed, and provided that the vote of a State should be counted unless
the two Houses concuiTcd in its rejection, it would be far more 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 laAv
should lie, than to make its admission depend npon the concurrence of the two houses^,
as if the presumption 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 sustained by the vote of the two houses, but under this rule the objection is as-
sumed 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 captions and factious objections. It
makes the concurrent action of the two houses necessary where it should not be ; and,
to sum up its perilous absurdity, its " monstrous illogic," its dangerous unconstitu-
tionality, 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 Representa-
tives.

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

418 COUNTING THE ELECTORAL VOTE.

This is not tlie history of parties or of parliameutaiy proceedings. It is not the his-
tory of parties that they will vohintarily surrender an advantage, though tainted with
odium and injustice, or that their representatives in the legislature will ; for it is a
law of parties to ohtain all the power possible, and to yield no advantage except upon
comT)ulsion or for compensation.

But this extraordinary provision by which either house is empowered to reject the
vote of a State in the election of a President is created by a joint rule of the two
Houses. The Constitution provides that " each house may determine the rules of its
own proceedings," 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 disfran-
chise 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. It was the purpose of
the framers of the Constitution to make the executive and legislative branches so far
independent 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.

CONGRESS IS NOT A CANVASSING BOARD.

The proposition that Congress has power to sit as a canvassing board upon the elect-
oral votes of the States, admitting or rejecting them for reasons of its own, subverts
the whole theory by which their appointment was conferred upon the States ; makes
Congress the judge of the election and qualihcations of President and Vice-President,
and, by the operation of the twentj^-secoud joint rule, gives that power to each house
separately, as in case of its own members. There is no such express power given to
Congress in the Constitution, nor is it necessary to carry out any express power therein
given, and its exercise woiild be in direct conflict with the 'known purpose of the
framers to make the executive and legislative departments as nearly independent of
each other as possible.

The act of 1792, which is still in force, provides 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 pe-
riods 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 rightfulness of their
election. When they had cast their votes on the first Wednesday of December, they
-were functus officio, 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 inquire into the rightfulness or regu-
larity of their election and set aside their votes. The framers of the Constitution seem "
not to have anticipated 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 electors, which would
"warrant the rejection of their votes. It was clearly a casus omissus, and one of the im-
perfections of a new scheme of government which could not, in fact, have been per-
fect unless its framers had been infallible.

If it were admitted that the twenty-second joint rule is constitutional, or that the
two houses by their joint action could reject the vote of a State upon objection being
made, the inquiry would be i)resented, what could the two houses do ? The Constitu-
tion requires that the votes in the several electoral colleges shall be sealed up and sent
to the President of the Senate, and that the certificates thus sealed up shall not be
opened except in the presence of the two houses, .and the vote shall then be counted.
Clearly, the authority of the two houses, putting the most liberal interpretation upon
the clause, would be confined to the determination of mere questions of form — whether
the lists were properly made out as required by the Constitution, or properly certified
as required by the law. There would be no time, opportunity, or place for the inves-
tigation of any (questions of fact, or the determination of any matter not appearing
upon the face of the papers. Although the election of the electors in a given State
may have been a monstrous fraud, patent to the whole world, and known to each mem-
ber of the houses of Congress, yet clearly they have no power, time, or opportunity
to investigate the fact, and must then count the fraudulent votes if it shall appear in
due form upon the papers.

THE PLURALITY RULE PROPOSED.

By the present provision of the Constitution there can be no election of a President
except by a majority of all the electoral votes, and if no candidate receives such ma-
jority the election is thrown into the House of Representatives, where the choice is to

PROCEEDINGS AND DEBATES IN CONGRESS. 419

be raacTe between the three bighest candidates ; tbo character and consequences of which
will be hereafter considered. By the amendment proposed, the candidate receiving
the highest nnmlier of presidential votes will be elected, although he may not have a
majority of all the presidential votes ; and the election in every case is final. In other
words, it adopts what is known as the plurality rule, and only requires that the suc-
cessful candidate shall have a majority over any other one.

There is no virtue in a majoi'ity vote over a plurality vote, where the majority is the
result of compulsion, as by requiring a second election between the two candidates
having the highest vote at the hrst. In that case the persons whose votes are changed
to one or the other of the two candidates may do it as a choice, upon compulsion, be-
tween what they regard as two evils.

The adoption of the plurality rule does not at all interfere with the other principle,
that the majority should govern. The majority may always govern, if it chooses to
act together; but the people cannot be compelled to form themselves into a majority.
They vote for whom they please, or they may refuse to vote at all ; and if they vote
with a full knowledge that the candidate receiving the highest number of votes shall
be declared elected, it is impossible to see how their rights have been infringed.

If one candidate has a majority, undoubtedly he should prevail ; but if he has not
a majority of all the votes, but has a majority over any other candidate, he should pre-
vail over any other candidate, because the voters have been left free in the exercise of
their suffrages to vote for whom they pleased or not to vote at all, and it is expedient
that there should be some choice, and that the election should be final. Where, in
order to secure a majority of all the votes for one candidate, a second election is re-
quired, and the voters are confined to two or moie candidates having the highest num-
ber of votes, great opportunities and inducements are presented for corruption, and
corruptionists then know just where and how to work to secure their triumph.

APPROVED BY EXPERIENCE.

The staple argument in favor of requiring a majoi'ity of all the votes to elect, and
against the plurality system has been that the otficer elected by a majority of all the
votes carries with him a greater moral force and authority than one elected by a
plurality. From experience in the different States of this Union under the plurality
rule for a century past, we are able to say that this argument is wholly speculative,,
and is destitute of all force in practice. A President elected by a iilurality of all the
votes in a fair election would carry with him the whole moral power of the office,
and be regarded by the nation as completely the President, morally and legally, as if
he had received a majority of all the votes.

But if a President who had been in a minority at the polls, having received fewer
votes than another candidate or other candidates, should be made President by the
artificial machinery of the electoral college, or the arbitrary and anti-republican rule
of an election by the States in the House, as was the case with Mr. Adams, he would
be shorn of moral power and be regarded by the nation as only a technical President.

It is not to be denied that the Vice-Presidents Johnson, Fillmore, and Tyler, who,
by the death of Presidents elected by the people, have become acting Presidents of the
United States, have not carried with them the respect and moral force which belong
to those who were elected directly, from the fact that they have become Presidents by
the operation of law and not by the direct vote of the people. But the moral force of
Presidents Lincoln, Buchanan, Taylor, and Polk was not impaired because they had
only received a plurality of all the votes cast at the polls.

The iilurality system has been tried in all the States but four for State officers, mem-
bers of Congress, members of the legislature, and all subordinate officers, and has
worked well.

The argument on the other side is, that no man should be President who does not
receive a majority of all the electoral votes. There is no moral force in this position,
unless that majority of electoral votes should represent a majority of the votes of the
people ; but a majority of the electoral votes, by the peculiar machinery of the elec-
tion, may rejjreseut only a small minority of the whole number of votes cast by the
people.

The present system seems designed to defeat the popular will as far as possible, and
provides for the election of a candidate who may have received but a minority of the
votes of the people.

Where the plurality system is adopted, and the people vote directly for candidates,,
and not for electors or intervening agents, every man casts his vote with a knowledge
that the candidate who receives the most votes will be declared elected. There can be
no inducement, therefore, to scatter the vote with a view of throwing the election into
the House, as there may be under the present system ; and every voter will have strong
inducement to give his vote for the best man, knowing that the result of the election
is to be final.

In the States where the election of governor and other State officers by the direct
vote of the people is conducted on the plurality system, it happens in a majority of

420 COUNTING THE ELECTORAL VOTE.

oasf-s that the officers elected actually get a majority of all the votes cast, but where
fJiiey do not receive a clear majority it nearly always happens that their vote ap-
proaches very closely to a majority, and is generally a fair expression of the wishes of
the people ; and we have never known a case of the election of governor or other im-
portant State officers who had not received one- third of the votes, as was the case with
Mr. Adams, in 1825, who was made President through the machinery of the election in
the House.

Whatever objection may exist to the plurality system, where the people vote di-
rectly for candidates for President and Vice-President, must prevail with teufold
force under the electoral system, for under the electoral system it is quite possible, and
even probable, that the man may have the majority of electoral votes who is largely
in the minoritj^ in the popular vote. Under the plurality rule no man can be elected
who has not received more votes than any other candidate ; but under the present sys-
tem a man may l)e chosen President who receives the smallest number of votes, by
means of the electoral college or throwing the election into the House:

It may be further remarked, that while there can be no election of President under
the present system except by a majority of all the electoral votes, yet the electoral
colleges themselves, in the several States are, and have been from the first, chosen
upon the jilurality system, and are not in any case required to have a majority of all
the votes cast in the State.

ELECTIOX BY THE HOUSE.

The Constitution provides that when the vote is counted in the preseuee of the two
houses —

" The person having the greatest number of votes for President shall be the Presi-
dent, 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 Repre-
sentatives shall choose immediately by ballot the President. But in choosing the
President the votes shall be taken by States, the representation from each State hav-
ing one vote; a quorum for this purjtose 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."

ITS DANGEROUS CHARACTER.

That this provision for electing a President is fraught with danger to the nation will
scarcely be denied by any.

It is matter of history that the election of Mr. Jefferson by the House of Represent-
atives 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 mem-
l)ers of the House who voted, against their principles and their party, for Mr. .Jeffer-
son, 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 na-
tion, and drew upon all parties concerned an unpopularity from which they never
recovered.

The olijections to this constitutional provision 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 42,00U population, has an equal vote with New York, having one
hundred and four times as great a population. 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 a change of his vote, to conti'ol the vote of the State.
Such charges were rife in both the election of Mr. Jefferson and that of Mr. Adams ;
jiud 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.

ITS UTTER UXEAIRNESS.

In the election of a President in the House of Representatives under the present ap-
portionment, each State having one vote, forty-five members out of the two hundred
and ninety-two may make the election, as follows: Delaware, Nebraska, Nevada, and
Oregon have each one member, aud four members would cast the votes of those four
States ; Rhode Island and Florida have each two, aud four members would cast the
votes of those States; Minnesota, New Hampshire, West Virginia, Vermont, aud Kan-
sas have each three members, aud two votes in each, or ten members in all five,
would cast the votes of those five States; Arkansas, California, and Counecticut have
four members each, aud 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, aud

PROCEEDINGS AND DEBATES IN CONGRESS. 421

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. Again,
these nineteen States have an aggregate population by the census of 1870 of a fraction
over eight millions of people, while the remaining eighteen 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!

Such a combination and result as above exhibited may not be likely to occur ; but
they are possible under the iiresent system of electing a President in the House of
Representatives by a majority of States; and no system admitting such possibilities
should be tolerated. lu 1825' it did happen that Mr. Adams was elected in the House
over General Jackson, who had received a larger proportional majority of the popu-
lar 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 dan-
ger increases as the injustice is aggravated.

When the smallest State is made equal to the largest in the choice of the President
of the United States, the gross inequality becomes oftensive, and must become dan-
gerous 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 i)ray 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.

Another absurdity in the election of a President l)y States in the House of Repre-
resentatives is found in the fact that the election is to be had by members elected two
years before, without reference to the election of President. The issues upon which
they were elected to the House may have passed away, or the politics of the country
may have changed entirely within two years, so that the members elected two years
before that may not represent the sentiment of the country at the time the presiden-
tial election takes place.

If there is any use in having a President elected every four years, it is that the pub-
lic sentiment of the country may find expression ; that a man may be chosen to rep-
resent that sentiment ; but when the election is committed to the members of the
House, who were elected two years before, and whose political sentiments may haA'e
been expressly repudiated at the last election, we can understand how completely this
system is calculated to baffle and defeat the popular will.

THE TIME OPPORT UXE FOR CHANGE.

We point out to the Senate and to the country dangers that lie iu the pathway of
the nation, contingencies, some of them not remote, but near and probable, which
threaten tlie country with revolution and the Government with destruction, and
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 kuowledge by observatiou and experience.

COXCLUSIOX— THE PROPOSED CHANGES.

In conclusion, we 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 he contested, so that if it has been controlled by fraud or violence, or if there be
two sets of electors, each claimiug tlie riglit to cast the vote of a State, there may be
some machinery or tribunal by which fraudulent returns could be set aside or cor-
rected, and the contending claims of ditterent 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 Constitution, 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 was re-elected by so large a majority that the electoral votes of Louisiana and
Arkansas were xmimiiortant to the result, for without intending here to express any
opinion in regard to those votes, we must be permitted to say that they were sur-
rounded by such circumstances and attended with so much doubt in the public mind
that the peace of the nation would have been imperiled if the result of the presiden-
tial election had been determined by them.

The plan, of dispensing with the electoral colleges and electing the President di-
rectly by the vote of the people seems to be a remedy for many of the evils and dan-*
gers to which we have referred ; but even then some tribunal should be appointed "le

422 COUNTING THE ELECTORAL VOTE.

settle contested and doubtful results in districts or at the disputed polls, and this tri-
bunal should be removed as far as possible from the control of excited parties. It has
seemed to us inexpedient to attempt to establish such a tribunal in an amendment to
the Constitution, and we therefore recommend that Congress be clothed with power to
establish such tribunal by law. Whatever tribunal might be created would require
much consideration in regard to details and method of operation, into which it is not
important that we should now attempt to enter.

As to the districts into which it is proposed to divide the States for election purposes,
the plan presented invests Congress with the same power over this subject which it
now has over the representative districts in the States, leaving to the States first the
formation of such districts, but giving to Congress the power at any time to alter or
establish them. We propose that the election for President and Vice-President shall
be conducted under the authority of the United States and by the machinery to be
provided by Congress. The election of the Chief Magistrate is the most important
act which the people can be called upon to perform, and it is expedient that it should
be conducted in every State under uniform laws and methods. Nevertheless, under
the amendment proposed, it would be in the power of Congress, should it see proper,
to adopt the machinery of the States in the conduct of the election.

AMENDMENT TO THE CONSTITUTION.

In Senate, January 20, 1875.

ELECTION OF PRESIDENT AND VICE-PRESIDENT.

Mr. MoKTON. I move that the Senate proceed to the consideration of the proposition
reported by the Committee on Privileges and Elections for an amendment to the Con-
stitution in regard to the election of President and Vice-President of the United
States.

Mr. Sherman. I am inclined to yield to the Senator from Indiana and will support
his motion, but after that matter is disposed of I give notice to the Senate that I shall
claim the floor for the consideration of the Louisiana question.

The Vice President. The question is on the motion of the Senator from Indiana.

The motion was agreed to; and the joint resolution (S. R. No. 16) proposing certain
amendments to the Constitution of the United States was read twice and considered
as in Committee of the Whole.

Mr. Morton. I ask that the proposition reported by the committee be read in full.

The Chief Clerk read as follows :

Resolved by the Senate and House of Bepresentatives of the United States of America in
Congress assembled, (two-thirds of each house concurring therein,) That the following arti-
cle is hereby proposed as an amendment to the Constitution of the United States, and,
when ratified by the legislatures of three-fourths of the several States, shall be valid,
to all intents and purposes, as a part of the Constitution, to wit:

Article — .

1. The President and Vice-President shall be elected by the direct vote of the peo-
ple in the manner following : Each State shall be divided into districts, equal in num-
ber to the number of Representatives to which the State may be entitled in the Con-
gress, to be composed of contiguous territory, and to be as nearly equal in population
as may be ; and the person having the highest number of votes in each district for
President shall receive the vote of that district, which shall count one presidential
vote.

2. The person having the highest number of votes for President in a State shall
receive two presidential votes from the State at large.

3. The person having the highest number of presidential votes in the United States
shall be President.

4. If two persons have the same number of votes in any State, it being the highest
number, they shall receive each one presidential vote from the State at large ; and if
more than two persons shall have each the same number of votes in any State, it being
the highest number, no presidential vote shall be counted from the State at large. If
more persons than one shall have the same number of votes, it being the highest num-
ber in any district, no presidential vote shall be counted from that district.

5. The foregoing provisions shall apply to the election of Vice-President.

6. The Congress shall have power to jirovide for holding and conducting the elec-
tions of President and Vice-President, and to establish tribunals for the decision of
such elections as may be contested.

7. The States! shall be divided into districts by the legislatures thereof, but the
Congress may at any time by law make or alter the same."

Mr. Morrill, of Vermont. I take it the Senator from Indiana would hardly feel dis-

'^^ osed to go on at this late hour, and with his permission I move that the Senate pro-
cas,^(j to the consideration of executive business.

PROCEEDINGS AND DEHATES IN CONGRESS. 423

Jaiiuaru 21, 1875.
ELECTIOX OF PRESIDEXT AND YICE-PRESIDEXT.

The Senate, as in Committee of the Whole, proceeded to consider the joint resolu-
tion (S. R. No. 16) proposing an amendment to the Constitution prescribing the man-
ner of electing the President and Vice-President of the United States.

Mr. Morton. Mr. President, it is pleasant to be able to present to the Senate a sub-
ject which is entirely above all party considerations, and to which nien of all parties
can address themselves independent of the excitement which now seems to iirevail
throughout the country.

The proposition is to amend the Constitution of the United States as to the method
of electing President and Vice-President, so as to bring the election home to the people
as nearly as possible, and at the same time to avoid the dangers that exist under the
present method. No more important question can be considered by the Senate of the
United States at this session of Congress ; for in my opinion great dangers impend,
owing to the imperfection of the present system of electing the President and Vice-
President of the United States. *

When we look back through the history of the country as to former elections, it be-
comes a matter of surprise that there have not been collisions and trou1>les resulting
from the imperfections of our system. We may fairly assume that we have had a
series of happy accidents by which these collisions have been avoided ; but we cannot
hope that these happy accidents will continue to occur ; and in fact the dangers aris-
ing from the present system of election are greater now than they have been beforeiu
the history of the country, and will increase.

The system of electing the President and Vice-President by means of electors ap-
pointed by the legislature of each State, as is well understood, had its origin in a
profound distrust of the people. It was not believed by the ^i-amers of the Constitu-
tion to be safe to intrust the election of President and Vice-President to the people of
the United States. Democracy was not so well understood then as it is now. It was
believed that it w^as necessary to place the election of President and Vice-President in
the hands of a small body of men, to be selected on account of their wisdom and of
their character ; that those men should be made entirely independent of the people
and entirely independent of Congress; that their action should be unknown to the
people and unknown to each other, so as to secure their complete independence. The
first proposition in the couvention of 1787 was that the President and Vice-President
should be elected hy the ( Jongress itself. That was afterward changed, and it was
then proposed that they should be elected ))y electors, and that these electors should
be chosen by Congress. Then the plan was changed, and it was agreed that they
should be elected by the States through the medium of electors, and that the electors
should be chosen by the legislat)ires of the several States ; and the purpose was to
place the election of electors and the election of President and Vice-President entirely
beyond the control of Congress, that those elections should not be under the super-
vision of Congress. I will ask the Secretary to read the second clause of the first sec-
tion of the second article of the Constitution.

The Chief Clerk read as follows :

" Each State shall apjjoint, in such manner as the legislature thereof may direct, a
number of electors, ecinal to the whole number of Senators and Representatives to
which the State may be entitled in the Congress; but no Senator or Representative,
or person holding an office of trust or profit under the United States, shall be ap-
pointed an elector."

Mr. Morton. The first point now^ to which I call the attention of the Senate is that
the election of electors was placed absolutely under the control of the legislatures of
the several States and that Congress had no power over the election of these electors
or to determine any question in regard to their election, but that the selection or ap-
pointment of electors was to be placed exclusively in the hands of the State legisla-
tures. The States could not by their constitutions control or in any manner change the
appointment of electors ; the power of a legislature to appoint electors is conferred not
by the State constitution, but is conferred by the Constitution of the United States,
80 that it is not in the power of a State coustitution to take from t he legislature the
power to appoint electors in any way that that legislature may see proper. The legis-
lature may repeal any day the law by which electors are elected by the jieople. The
legislature may elect these electors by joint ballot of the two houses ; it may author-
ize the governor to appoint them ; it may authorize the supreme court of the State to
appoint them ; and this power has been exercised in various ways in various States.
In some States the electors were once elected by separate districts, like members of
Congress ; in all the States now by general ticket. In some States in times past they
were chosen by the difterent houses of the legislatures, and where the houses were
divided in politics, the senate, for instance, being federal, and the house republican,
they divided the electors by contract, the senate to choose so many and the house to
choose so many. They have been elected by double and treble districts, by dividing the

27 X

424 COUNTING THE ELECTORAL VOTE.

State iuto a mim'ber of districts less than tlie uumber of members of Congress, so
that one district would elect two or three electors. lu other words, various expedients
and various methods have been adopted by the States at ditlerent times in the choice
of electors, and this power to choose electors being i)laced absolutely with the legis-
lature of each State by the Constitution, it is in the power of any legislature, at the
next or before the next election, to withdraw the election from the people and choose
electors in some other way that may seem good to the legislature of the State, and
Congress has no power to control it ; it has no power to determine whether the elec-
tion has been properly held or not. In other words, no contested election of electors-
can be determined by the Congress of the United States, because the Constitution has
placed that election absolutely and entirely with the States. All the power that Con-
gress has over the electors is contained in the third clause of that section, which is
in these words :

" 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."

With these two exceptions everything is left to the States through their legislatures..

This brings me to the consideration of the next proposition. Congress has no power
to provide for contesting the election of electors. That power is devolved entirely up-
on the State legislatures ; and if they make no provision for cases of contested elec-
tions of electors Congress cannot do it, because it was the policy of the framers of the
Constitution to make the election of President entirely independent of Congress, so
that the executive should be entirely independent of the legislative ; and, therefore,
if there is to be any provision made under the present Constitution for determining
a contested election of electors, it must be made by the several States and cannot be
made by Congress. All the power that Congress has is to fix the time when the elect-
ors shall be chosen by the States, and to determine the day when they shall come to-
gether as electors to ca5t their votes, which shall be the same day in all the States.

The next projjosition that I call the attention of the Senate to is that the States
have made no provision for contesting the election of electors. All the States have
now provided for electing electors by general ticket by the vote of the people ; but
this is of recent origin. "Up to 1824 eight States chose electors by the legislature, and
up to the beginning of the war in 1860 South Carolina chose her electors by the legis-
lature, just as she did her Senators. Now all the States, however, have agreed that
they shall be elected by the jieople iipon general ticket, so that whatever set of elect-
ors get the most votes in the State, if it is only a majority of five, cast the whole
vote of the State.

But no State has provided any method of contesting the election of electors. Though
this election may be distinguished by fraud, notorious fraud, by violence, by tumult,
yet there is no method for contesting it; no State has passed a law for that purpose.
Every State has passed laws for contesting the election of governor, of lieutenant-gov-
ernor, of members of the legislature, and of all State officers ; but no State has made
any provision for determining a contested election as to electors ; so that whatever
electors are certified to by the State authorities have the right to cast the vote, and
there is no power in Congress or anywhere else to jDrevent them from doing it, although
it may be known to the whole world that they were not honestly elected and have
no right to cast the vote of that State.

Not only that, but the law passed by Congress in 1792, to carry out the provision of the
Constitution, prohibited any contest m ehect either by the State or by Congress.^ That
law provides that the electors shall assemble in the several States on the first Wednes-
day in December and cast their votes. It further provides that the electors shall
be chosen, whether by the people or by the legislatures, within thirty-fi»ur days of the
time when they are required to cast their votes, so that no time is left between the
selection and the vote for any contest ; nor can there be any contest afterward. When
the electors have cast their votes, they are functus officio ; they can never meet again ;
their office has expired. When they meet and vote on the first Wednesday in Decem-
ber, their functions have expired ; they can never be called together again.

And then the Constitution goes on to provide that they shall vote by ballot. Why?
That it may not be known to each other how they voted ; that it may never be known
to the people how they voted ; and then, that tlie vote shall be sealed up and sent to
the President of the Senate, and that he shall not open that vote until the day it is
counted ; that the vote is to be opened in the presence of the two houses and at the
very moment it is to be counted; so that if there is any informality in that vote, if
there is any fraud or irregularity, there is no jiossibility of knowing it, there is no pos-
sibility of correcting it, because the sealed package is not to be opened until the \ery
moment the vote is to be counted in the presence of the two houses. It seems never
to have occurred to the members of the convention that there could be two sets of
electors; it seems never to have occurred to them that there would be fraud or cor-
ruption or any reason why the votes of electors should be set aside. It is clearly a
casus omissus, a thing overlooked by the framers of the Constitution, and there is no

PROCEEDIXGS AND DEBATES IN CONGRESS. 425

place to contest the vote either of the electors by the people, or by the legislature, or
the vote of the electors for President, because all that they have done is to be abso-
lutely sealed until the very moment when the vote is to be counted.

Ther, Mr. President, how is the vote to be counted ? I come to that as the nest con-
sidera jion. The Constitution provides that tlie vote shall be sealed up when it is cast
by the electors, and sent to the President of the Senate, and that he shall open the
sealed paper in the presence of the two houses, "and the votes shall then be counted."
The two houses are to come together, and they are to be as witnesses merely. They
cannot act together as a joint convention ; they cannot vote as one body. There is no
function that they can perform when they are together. They are there simply as wit-
nesses. The vote is to be sealed up and sent to the President of the Senate, and he is
to opeTi it in the psesence of the two houses, but the two houses thus assembled can
do notlung, whatever may be the irregularity, whatever may be the wrong visible on
the face of the papers. They cannot act together as a joint convention; they cannot
act as one body ; they cannot act as separate houses in the presence of each other ;
but the Constitution says " the vote shall then be counted." That is all that is to be
done.

Now we see the power which is given to the President of the Senate, ordinarily the
Vice-President of the United States. The sealed votes are to be sent to him and he
is to open them in the presence of the two houses, " and the votes shall then be
counted." Suppose there are two sets of electoral votes, as from Louisiana at the
last election, sent up to the Vice-President ; he has two packages, and he causes both
to be opened in the presence of the two houses ; who shall determine which set shall
be counted ? The one handed over by the Vice-President to be counted must be
counted. The choice is left with him. There is no earthly power to correct it.
If in the case of Louisiana the Vice-President had handed over to the tellers the
electoral votes that had been certified to by McEnery, they must have beeu counted;
there was no power to prevent it ; or if on the other hand he had handed over those
that had been signed by Kellogg, they must have been counted. The two houses to-
gether could do nothing. The two houses separately could do nothing. Tliis is a case
where this great power is vested in the hands of tlie Vice-President because of an
omission in the Constitution. Tliei'e is no power provided anywhere to determine
Avhich of these two sets of electoral votes should be counted, and it depends upon
him as to which set he will hand over.

Mr. Sargent. Does not a disagreement between the two houses reject a vote ?

Mr. MoRTOX. I am coming to that after a while. That is a very important ques-
tion. See what a vast power is placed in the hands of the Vice-President. He may
understand, as likely ho will, the contents of the different papers that are placed in
his hands, and he may be a candidate himself for election. That has so happened six
times. It has happened six times tliat tlie Vice-President has opened and counted the
votes where he himself was a candidate. John Adams as Vice-President opened and
counted the votes and declared himself elected iu 1797. Mr. Jetierson as Vice-Presi-
dent opened and counted the votes in 1801, when he was a candidate for President, and
he declared the vote to be a tie. Suppose in that case there had been two sets of elect-
oral votes from a State, certified to, and in liis bauds, one of which would have made
a tie, and the other of which would have elected him President ; tliere was no constitu-
tional power anywhere to prevent him from handing over that set which would have
elected himself as President. Nor could his action have been revised in any possible
way. Again, in 1821, Mr. Tompkins counted the votes when he himself was a candidate
for re-election as Vice-President. In 18157 Mr. Vau Buren counted the votes and de-
clared himself elected President of the United States. In 1841 Mr. Johnson counted
the vote when he was a candidate for re-election as Vice-President. In 1861 Mr. Breck-
inridge opened and counted the vote wheu he was a candidate for President. True,
it was done honestly in all these cases; but suppose a case where the election is close,
where by opening one set of papers the Vice-President is to be elected President, and
by opening another set he is to be defeated, or wliere by refusing to count at all the
vote of a particular State the result will be to elect him or to elect the candidate of
his party ! You see what a monstrous and irresponsible power has been placed iu the
hands of the Vice-President or the President of the Senate.

I have spoken of the theory of the electoral college ; and now let us consider how
completely it has failed; let us see how completely that theory has beeu reversed iu
practice. What was the theory '? That the Pi-esident should not be elected by the
people — the people could not be trusted — but the election was to be vested in the
hands of selectmen, who were 'to come together and act as deliberative, independent
bodies. They were all to vote on the same day, so that there should be no collusion
between them. The votes could not be cast on different days, where there might be
correspondence with different States so as to control the last elections. That might
take place ; but the Constitution requires that the electors shall vote in all the States
on the same day. And how are they to vote ? Vote by ballot, so that one elector may
not know how the others vote, and so that the people shall never know how they vote ;

426 COUNTING THE ELECTORAL VOTE.

but they were to deliberate, to be deliberative bodies. They were to consider and dis
cuss, and were thus made independent of all knowledge by the people, that they might
act entirely independent of all improj)er considerations or influences. That was the
theory.

How has it turned out in practice ? It has turned out in practice that the electors
are pledged in advance to vote for a particular candidate ; that they have been elected
as mere agents, to cast their votes for the candidates of their party, a pledge that has
never been violated and the violation of which would bring upon tiie offending party
all the indignation that society could invent. It neverjhas been violated, and it prob-
ably never wi 11. Therefore the theory is a total failure. Instead of being deliberative
bodies, they are pledged in advance to vote for particular men. Therefore the reasons
for the electoral college have gone. Why not let the people vote themselves for the
presidential candidates, instead of voting for electors who are pledged to do the same
thing?

Now, let me consider some of the dangers and difficulties attending this system. In
the first place, by law when electors have died since their election, or fail to attend,
then the others may till their vacancies. In the case of Texas at the last election,
when the electors met to vote four were absent, just one-half the whole number. The
other four supplied the vacancies bj'^ election. Suppose there should be five in favor
of one candidate and five in favor of another and one elector dies. Then one five will
have the majority over the other, and they can fill the vacancy, aud they can thus se-
cure a majority in the electoral college.

But let us look at the unfairness of it in another particular as now adopted. They
vote by general ticket in all the States. That set of electors that get a majority of
one vote cast the vote of the whole State. A majority of one will cast the entire vote
of New York ; so that nearly two million and a half of people are utterly silenced in
their vote for President. It becomes an election by States. That was not intended by
the framersof the Constitution. They did not intend to make it an election by States
in one particular, because they es)>ected the electoral colleges to be deliberative
bodies, and as deliberative bodies to divide up, some to vote for one candidate and some
for another; but it has turned out in practice that the electors are all pledged in ad-
vance to vote for a particular candidate, and that one set or the other set will be
elected as an entirety, and they come together and cast the vote of the State. It is
therefore a vote by States ; and under the present system ten States can elect a Presi-
dent of the United States. It is just the same thing as if every man in those ten
States had cast their votes for those candidates, a thing never likely to happen ; but
that is the effect of it. It is an election now by States. It is not a national election.
It is removed further from a national election than was contemplated by our fathers,
because they supposed these electors would divide — first deliberate, first discuss aud
consider with each other, and then divide the votes ; but it turns out they do not do
so. They are pledged in advance. They vote as a unit ; and therefore the vote of
New York, of Indiana, of Pennsylvania, of Illinois, is given as an entirety. It is there-
fore an election by States. It enables a small minority of the people of the United
States to elect a President. Let us suppose, for example, that one man receives enough
electoral votes to elect him ; that he has carried enough States by small majorities to
give him 186 electoral votes. If you please, he has carried New York by 5.000, Penn-
sylvania by 3,000, and so on, so that his aggregate majority in those States is less than
.^ib,000. His opponent carries the other States by large majorities, so that it may turn
out that his opponent will have half a million majority of the jiopular vote of the
United States.

Mr. Bayakd. That was the case with Mr. Lincoln, I believe. He had a very
small minority of the entire popular vote of the United States.

Mr. Morton. But the remaining vote was divided between two other candidates.

Mr. Bayakd. I say he had a small minority of the entire popular vote of the United
States.

Mr. MoRTOX. Yes, he had. It turns out that four Presideuts'have had less than a
majority of the popular vote, and it is the possibility at all times under this system that a
small minority of the votes of the people may elect a President of the United States.
That is anti-republican ; it is anti-democratic ; and that possibility of itself calls for
a change in the method of electing a President and Vice-President of the United States.

For my part, I would much rather elect the President by the people of the United
States as one entire community ; but I know we cannot change the Constitution to that
effect. I know the small States will never vote for that ; but I would prefer it. But
the next and the nearest approach that we can make to an election by the people is to
elect by districts. Now, I wish to read from the report, which is more accurate than I
can state it. I wish to show by past history how far the electoral college has come
from representing the popular vote, and how much nearer the district system would
approach to it, and I will ask the attention of the Senate to this extract from the re-
port, which has been carefully prepared.

Mr. Oglesby. From what report does the Senator read ?

PKOCEEDINGS AND DEBATES IN CONGRESS. 427

Mr. Morton. The report made by tbe Committee ou Privileges and Elections. In
the tirst place, I will state that so faras I can gather the evidence the electoral college
has never come within 10 per cent, of representing the x^opnlar vote, and it several
times has dititered from it more than 30 per cent.

The following statement of the resnlt in the different presidential elections from
1872 back to 1844 will establish tlie truth of what we have said :

" In 1872 General Grant received 55 per cent, of the votes of the people; in the elect-
oral college he received 81 per cent.

In 1868 General Grant received .52 per cent, of the popular vote, and 73 per cent, of
the electoral vote.

In 1864 Mr. Lincoln received 55 per cent, of the poj)ular vote, and 91 per cent, of the
electoral vote.

In 18()0 Mr. Lincoln received only 40 per cent, of the popular vote; he received 59
per cent, of the electoral vote.

In 185G Mr. Buchanan received only 45 per cent, of the popular vote ; he received 59
per cent, of the electoral vote.

In this election Fillmore received 25 per cent, of the popular vote, and only 2 per
cent, of the electoral vote ; but fourteen of his friends were elected to Congress.

In 1852 Pierce received 51 per cent, of the popular vote, and 85 per cent, of the
electoral vote.

In 1848 General Taylor received 47 per cent, of the popular vote, and 56 per cent, of
the electoral vote. At this election Mr. Van Bureu received about 10 per cent, of the
popular vote, and received no electoral vote; but three of his friends were elected to
the House of Representatives.

In 1844 Mr. Polk received not quite 50 per cent, of the popular vote. He received
C2 per cent, of the electoral vote."

To compare the district system with the general-ticket system and to see how much
nearer it comes to representing the people, I call the attention of the Senate to the
following statements. I will take the four States of Pennsylvania, Ohio, Indiana, and
Illinois:

"These States voted solidly for Mr. Lincoln in 18()0, casting 74 electoral votes. At
the same election they returned sixty-six members of Congress, of whom twenty-four
were democrats.

In 1864 the same States cast 76 electoral votes for Mr. Lincoln again, and elected the
same year sixty-eight members of Congress, of Avhom sixteen were democrats.

In 1868 the same States threw 76 electoral votes solidly for General Grant, and elected
sixty-eight members of Congress, of whom twenty-two were democrats.

In 1872 the same States again voted solidly, giving 85 electoral votes to General
Grant, and elected seventy-seven members of Congress, of whom twenty-live were
democrats.

In tiiese four States the democratic strength, as compared with the republican, has
been about as 9 to 10, but under the operation of the general-ticket system they had
been wholly um-epresented in the electoral college; but in tbe House of Representa-
tives, under the district system, they have had an average of nearly one-third of the
members."

Now I will take the State of New York alone for the same period :

"In lr<()0 New York cast her thirty-five electoral votes solidly for Mr. Lincoln. At
the same time she elected thirty-three members of Congress, of whom nine were dem-
ocrats. In 1864 she again cast her thirty-three electoral votes solidly for Mr. Lincoln,
and at the same time elected thirty-one members of Congress, of whom eleven were
democrats. In 1868 she cast her thirty-three electoral votes solidly for Mr. Seymour.
The State was carried for Mr. Seymour by his overwhelming majority in the city of
New York, about the character of which grave charges were nuide, but of which the
committee expresses no opinion; but the rest of the State, unaffected in their districts
by this large majority in the city, returned eighteen out of the thirty-one members of
Congress, who were opposed to Mr. Seymour, thus showing conclusively how the voice
of the people of New York outside of the city had been stifled in the presidential elec-
tion by tbe city majority, operating through the general-ticket system."

There is a very fair illustration of the dangers of the general-ticket system. A large
fraud in the city of New York controls the election for governor, controls the election for
President ; but in the election of members of Congress by districts, out of the city, not
being affected by this large fraud in the city, they elected eighteen republicans out of
the thirty-one members of Congress, showing what would have been the voice of New
Y'ork if the country had not been stifled by the enormous fraud committed in the city,
about which fraud there was scarcely any dispute and will be scarcely any now. These
cities present the elements of fraud : New York, Philadelphia, Boston, Cincinnati,
Saint Louis, and New Orleans — all these large cities — and the fraud committed in a city
may control the ■\'ote of a whole State, so far as the election by general ticket is con-
cerned; but if the election is by districts, that fraud only affects the district in which

428 COUNTING THE ELECTORAL VOTE.

it is committed, and will uot control the vote of the whole State. Here is great tempta-
tion to fraud; because where parties are closely divided in a State, with but a small
margin one way or the other, there is great temptation to commit a fraud whicli de-
termines the vote of the whole State. By the election by districts you do not bring
the vote absolutely home to the people as you would by a vote as oue community, bnt
you come as near to it as jiossible. You find that the district system approaches more
nearly by one-third to the whole popular vote than the election by general ticket in
the present method.

I would prefer to elect the President by the vote of the whole people as one community ;
yet I think we cannot do that. I then prefer to come as near to it as iiossible, to elect
the President by districts ; and that is what we pi'opose by this amendment. We pro-
pose, in the first place, that the candidate who gets the higliest number of votes in a
State shall have two presidential votes. This is to i)reserve the autonomy aiul the power
of the small States. They now have two pi'esidential electors, two votes at large, as
they have two Senators. We preserv^e that theory by giving them two presidential votes ;
and the man who gets the highest vote in the State shall get those two votes. Then
we have the State divided into as many districts as it has members of Congress, and
the candidate who gets the highest vote in a district has the vote of that district.
He may not have a majority, but if he has a plurality, if he has more votes than any
other candidate, he gets the vote of the district, and it counts one. This briiigs the
election home to the people as nearly as possible. So far as these districts are concerned,
we leave the power to make the districts just as it is now with regard to members
of Congress. The States now district themselves by their legislatures, but Congress
has the power at any time to lay off the districts for electing members of Congress.
It has never been exercised, but that power is reserved to Congi-ess. And we make
the same provision in regard to these presidcutial districts ; that is, leave the States
to form them in the first place, but reserve the power in Cougress to alter tliem or to
change them at any time. These districts may Ije gerrymandered, as tliey are for
Congress. That has been done ; it is an evil : you caurnt correct it altogether. Bat
we re c\.uire the districts to be composed of contiguous territory as nearly as possible,
and as nearly equal in population as possible. Under the system of electing members
of Congress by districts instead of by general ticket, as I have already shown, you
approach one-third more nearly to the popular vote than by electing by the general
ticket. In the States that I have mentioned the votes were cast solidly for one can-
didate for President, yet the same States elected nearly one-third of all their members
of Congress on the other side, electing democrats ; showing that by the district system
you give to the peojile of the States comparatively a voice in the election of President
according to their views.

There is another question involved in electing by districts as compared with general
ticket, and that is that wlien you elect by general ticket under the present system no
man can vote unless he has a party in the State large enough to hold a conven-
tion and put an electoral ticket in the field. If I want to vote for a particular candi-
date and that candidate has no party in my State, though he may have a strong party
in other States, I cannot do it; I must vote for electors who will vote for him. I can-
not put an electoral ticket into the field myself, but there must be a party convention
to do it. Therefore I am disfranchised in point of fact, unless there is a convention
held in that State which will appoint an electoral ticket to vote for .--md-'date I
am in favor of . How did this operate in the South in 185(5 and in I860'? In'. <.S there
were thousands of republicans in the South who did not vote because there were no
electoral tickets in the field for Fremont and Dayton. That particular state of public
opinion prevailed in those States that republicans could not meet in convention and
nominate electoral tickets. Therefore the votes of those men that were in favor of
Fremont and Dayton were entirely lost ; they could uot vote at all. Under the present
system, to enable a man to vote, there must be enough men of his own way of think-
ing in his State to put an electoral ticket in the field that he may vote for it. Now,
this can hardly be called republican. The government is republican which enables
every man to A'ote directly for the man of his choice, although there may not be another
man in the whole State that feels as he does. A particular candidate may have a ma-
jority in some States, but he may have scarcely any friends in others ; his friends may
all be in one district ; they may be concentrated ; but unless there is a convention, a
caucus, if you please, to nominate candidates for electors, his friends are excluded from
voting because they cannot vote directly, but must vote for intermediate men.

Now, Mr. Pifsident, I consider anotheV question, and that is the danger of the pres-
ent system. Mark you, no State in this Union has a law to contest the election of
electors, and there is no room for a State law ; there is no time for it, even if the States
were disposed to enact laws. Congress has no power, there is no power to judge ex-
cept the President of the Senate. "He is irresponsible; he is the depositor of all the
votes, and as to whether these votes shall be cast depends entirely upon himself, so far
as the Constitution is concerned. Suppose that the election of President had depended
in 1872 upon the vote of Louisiana, or upon the vote of Arkansas, or upon the vote of

PROCEEDINGS AND DEBATES IN CONGRESS. 429

Texas, would we not in all pvobalnlity have been involved in revolution ? If the elec-
tion of Greeley had depended upon counting the votes certified to by McEnery, or the
election of Grant had been dependent upon counting the votes certified to by Kellogg,
I ask you what would have been our condition? If it had been decided either way, in
all probability there would have been resistance, and there would have been rebellion.
It is full of danger. We have escaped it thus far. It was a matter of congratulation
to both democrats and republicans that Grant's majority was so hirge as to make the
vote of Louisiana, of Arkausas, and of Texas unimportant ; but if it had been other-
wise, if the election was to depend upon the vote of any one of those States, what would
have been the result ?

Mr. President, let me consider the result in 1857, when Buchanan and Fremont were
candidates. The electoral vote of Wisconsin was not cast on the day fixed by law.
The Constitution requires all these votes to be cast uiion the same day. There was a
snow-storm in Wisconsin that prevented the electors from coming together and voting
upon that day. They voted upon the next day. When they came to count the votes
in 1857, a motion was made by a Senator to reject the vote of Wisconsin because it
was not cast upon the day provided by law. I think the objection itself was good ;
but what was the decision of the President of the Senate, Mr. Mason. He decided
that the motion was out of order. He said nothing was in order but to count the
votes. He overruled the motion, and he would have overruled a motion to exclude
the vote of any State. He took the view of his power, and I think it was correct, that
the two houses were there simply as witnesses; they were not there to make motions,
they were not there to oft'er objections; l)ut they were simply tliere to witness the
count ; and so he decided. And when motion after motion was made to exclude the
vote of Wisconsin because it was not cast as required by law, he decided every time
that nothing was in order but to count the votes. And when they had counted the
votes, he said tlie purpose for which they had asseml)led had been discharged, and the
two houses separated. They had a great debate in the house over the (piefjtion, which
lasted two or three days, and they came to the conclusion, substantially, that the two
houses had no power over the question. They had a debate in the Senate, and they
arrived at the same conclusion in the Senate, although not by resolution, that they
were powerless. Now, suppose the election had turned upon the vote of Wisconsin;
that by counting the vote of Wisconsin Fr6mont would have been elected ; that by
rejecting it Buchanan would have l>een elected. If ISIr. Mason had excluded the vote
of Wisconsin his party would have supported it; if he had received the vote of Wis-
consin, the republicans would have supported it; and in that case he would have had,
beyond all question, the decision of the election in his own hands. In either case, it
would, in all pi'obability, have resulted in violence, in insurrection. The danger was
escaped, in that case, because Buchanan was elected independently of the vote of
AVisconsin, and it was no matter how it was cast. But the point to which I call the
attention of the Senate was the decision of the Vice-President in that case, that noth-
ing was in order but to count the votes, and that the houses were there simply to wit-
ness that count, but without having any power whatever.

Now, Mr. President, I come to the consideration of what is called the twenty-second
joint rule of the two houses.

Mr. Sargp:xt. Will the Senator allow me to make a suggestion ?

Mr. Morton. Certainly.

Mr. Sargext. The Senator, by his amendment, it seems to me, does not make pro-
A'ision for one contingency. It may be a remote contingency, but still it may arise,
and that is in case no person should receive a majority of the votes thus cast in the
various districts, or if two persons receive the same number, it does not provide which
shall have the place or how that controversy shall be settled. Perhaps it is not so re-
mote a contingency, when we find the remarkable fact that in districts where thou-
sands and tens of thousands of votes are cast, still on counting them they come out
nearly even. There seems to be some law of chance which leads to parallels in such
cases that are really remarkable. It certainly would not be very remai-kable if, after
all the votes are cast iu the districts and the additional votes are given in the proper
manner, it should be found that two persons have an equal number.

Mr. MORTOX. I will state that that contingency is not provided for by the amend-
ment. The committee did not agree upon it. I was of the opinion that in such cases
as that the election would lie by both houses of Congress in joint convention, each
Senator and each Representative having one vote. I will come to the consideration of
that after a while. But in regard to the question of majority we provide for that. We
dispense with the requirements of a majority and we adopt the plurality system, and
I will now speak of that. We intend to avoid an election by the House altogether, and
that that candidate having a plurality shall be elected and not require a majority of
all the votes cast. We now require a majority of all the electors appointed to elect,
and if no candidate gets a majority of all, then the election goes to the House of Rep-
resentatives, and the election is there not by each member having a vote, but the elec-
tion is by States. Now one word as to the plurality rule. It is adopted by all the

430

COUNTING THE ELECTORAL VOTE.

States exc^ept three in the election of State officers. It is adopted by all the States in
regard to the election of members of Congress, and no complaint is^uade of it. It is
adopted by the (states in the election of electors. The electors who have a plurality
are elected. A majority is not required to elect electors, even, under the present sys-
tem. ^\ e believe that the election there should be final, that there should be no second
election required, and that that candidate who has a plurality of all tlie votes that is
a majority over anybody else, shall be elected. It has worked well in the States • it
has been used in most of the States for a hundred years, and no State now proposes to
go ba^k from the plurality to the majority system. I now ask for the reading of the
twenty-second joint rule. *

The Chief Clerk 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 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 certifi-
cates of the electoral votes; and said tellers, having read the same in the presence and
hearino-^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 of the
same shall be delivered to the President of the Senate, who shall thereupon announce
the si:ate of the vote and the names of the persons, if any, elected ; which announce-
ment shall be deemed a sufficient declaration of the persons elected President and
\ ice-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 haying been stated by the Presiding Officer, the Senate shall thereupon with-
draw, and said question shall be submitted to that body for itsdecision ; and the Speaker
of the Hoiise ol Representatives shall, in like manner, submit said question to the
House of Representatives for its decision; and no question shall be decided affirma-
tively, 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 re-assemble, 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 ques-
tion pertinent to the object for Avhich the two houses are assembled may'be submitted
and determined m like manner. At such joint meeting of the two houses seats shall
be provided as lollows : For the President of the Senate, the 'Speaker's chair;' for
the Speaker, a chair 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
;^ 1\"^t''""1"5^1^^ file 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 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
beyond the next day at the hour of one o'clock p. m."

Mr Morton. The first point to which I call the attention of the Senate is that this
twenty-second joint rule is grossly unconstitutional. No provision can be found in
the Constitution that gives a shadow of power for its adoption. Not only is it with-
out authority, but It IS 111 violation of the very theory of the Constitution. The in-
tention was to place the election of President independent of Congress, to make the
Lxecutive independent of the Legislature, bnt this makes the election of President
to depend upon either house, not by a law, but by a joint rule. It enables the Senate
l.y a vote to throw out the vote of North Carolina or New York ; it enables the House
ot Representatives to do the same thing. What is the provision ? When you come
to look at It, It IS monstrous. It is astonishing how that rule could ever have been
adopted. I he two houses are assembled to count the votes, and a formal objection is
made. It you please, to counting the vote of New York, entirely formal ; there may
be no sense in it no foundation for it, but if anybody objects,'then the two houses
mii.st separate and they must vote upon this objection, and unless it is overruled bv
both houses the vote is rejected. If the Senate sustains the objection, the vote of
New lork is thrown out. If the house sustains it, the vote of New York is thrown
out. It enables either house without debate— they must not debate without adjourn-
ment-they must not adjourn to consider, but they must decide summarily; it emibles
either house to throw out the vote of any or of all the States.

We had an illustration of that the last'time the votes were counted. A formal objec-
tion was made to receiving the vote of Arkansas. The houses separated and voted.
What was the result ? What was the objection to receiving the vote of Arkansas *
When you came to look at the seal upon the certificate it did not appear to be the seal

PROCEEDINGS AND DEBATES IN CONGRESS. 431

of the State. Upou close examination it was found to be the seal of the secretary of
state and not the great seal of the State. Upon that technicality the vote of Arkansas
was lost, the people of Arkansas were disfranchised in the presidential election. It
turned out, I believe, that the State had no other seal, and that the seal was put to
that certiticate that is put to all papers required to be certified by the executive de-
partment of Arkansas ; and yet upou that objection the vote of Arkansas was lost. The
House overruled the objection, but the Senate sustained it. Suppose it had been New
York, the vote of New York — the vote of five millions of peojde — would have been
thrown out u])on the mere technical objection by one house. There would be more
sense in it if it required the concurrence of both houses to throw out the vote of a State,
but by this rule one house may reject the vote of a State. And so it nuiy reject the
votes of all the States, and you may in every case throw the election of President into
the House of Reiiresontatives.

To show you some of the objections offered upon that occasion, I want to refer to the
proceedinfjs that took place at the time. For examjtle, a motion was made to reject a
part of the vote of Georgia cast for Horace Greeley upon the ground that he was dead.
It would have been very important in determining the question of the majority if the
election had been close. The Senate overruled thatmotion, and decided that the votes
cast for Horace Greeley must be counted, so that they would count in making up the
majority of all the electoral A'otes. The House sustained the objection, and the vote
of Georgia in part was lost simply because the House of Representatives sustained the
objection. There the two houses disagreed. They disagreed in the case of Arkansas.
Now we come to the case of Texas. Objection was made to receiving the vote of Texas.
I will read what the objection was, to show the character of it. Mr. Trumbull, a very
able lawyer as you all know, objected on this ground:

" 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 certificate was informal, had not been made out correctly. That was Mr. Trum-
bull's objection. It was afterward re-enforced by Mr. Dickey, of the House:

" Mr. Dickey objected to the counting of the electoral vote of the State of Texas,
because four electors, less than a majority of those elected, undertook to fill the jilaces
of other four electors, who had been elected and were absent."

The two houses separated and voted. We overruled the objection in the Senate by
a vote of :U to 24 ; I believe the vote in the House was still closer ; but a change of six
votes in the Senate would have thrown out the vote of Texas. Luckily nothing de-
pended upon it ; but if the election of one candidate or the other had depended upou
it, what would have been the result in that case? Then we come to the vote of Mis-
sissippi. A formal objection was made to the vote of Mississippi. We overruled it; the
House overruled it by a small majority ; but it happened that nothing depended upon
that vote. It was not very important; but it shows the possibility of doing the
thing. Now let me suppose a case where the Senate belongs to one party and the
House to another, in point of majority, and we come to count the votes. If you please
a democratic State is called. We look at the certificate. It is informal in some re-
spect ; some little objection may be made to it in the nature of a special demurrer.
We separate and vote. The Senate being republican, we throw out the vote. The
next State called is a republican State. Some little objection is found to that, because
a good lawyer can always pick some little fiaw in a certificate. The two bouses sep-
arate, and the House of Representative throws out that vote. And thus we throw out
first on the one side and then on the other, till they are all gone, and the election goes
for nothing.

This is not only possible but it is probable. Here we have a rule — not a law, but a
simple rule agreed upon between the two houses — by which either house, against the
other, may throw out the vote of every State in this Union for President and disfran-
chise the people and throw the election into the House of Representatives. There
could not be a grosser violation of the Constitution of the United States. It was not
intended to give Congress any power over the electoral votes ; but here by a simple
rule, never passed as a law, never approved by the President of the United States,
either house of Congress is enabled to disfranchise any and every State in this Union
and throw the election into the House of Representatives. If that is not full of dan-
ger, I cannot conceive what is. You take a time when parties are bitter, when party
spirit rnns high. The election of President is a great prize ; the office commanils vast
patronage and vast power; and here is a rule wlaich enables either house to cast out
the vote of any or of all States, disfranchise the people, and throw the election into the
House of Representatives. It makes Congress a canvassing board, a thing that the
Constitution expret^sly prohibited, not in words but in efl'ect, by various provisions.
While the Constitution attempted to withdraw the election entirely from Congress,
here is a rule that puts it in the hand of either branch. It does not require a joint
vote to disfranchise New York, but enables either the House or the Senate to disfran-
chise NcAV York, Mississippi, or Indiana.

432 COUNTING THE ELECTORAL VOTE.

Now, sir, I come to the question of au election by the House of Eepreseutatives. We

ave a rule that enables either house to throw the election there. What is an election
"by the House of Representatives ? There they vote by States. They do not elect the
President by a majority of the members of that house, giTing it some sort of a popular
character, but they vote by States. Nevada has one A'ote ; New York has one vote.
Nevada with forty-two thousand people has the same vote as New York with five
million — one hundred and fourteen times the population of Nevada.

There was some calculation made as to the possibility of an election by the House,
and I want to read it from the report, as being better stated than I can doit now. Let
me call the attention of the Senate to the possibility of an election by the House of
Representatives. In the election of a President by the House of Representatives under
the jirescnt apportioument, each State having one vote, forty-tive members out of two
hundred and ninety-two can make the election. For example :

"Delaware, Nebraska, Nevada, and Oregon have each one member, and four mem-
bers 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, Vei-mont, and Kansas have each three members, and two votes in each,
or ten members ; in all live, would cast the votes of those five States ; Arkansas, Cali-
fornia, and Connecticut have four members each, and three in each, or nine in all, may
•cast their votes ; Maine and South Carolina have each live 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 may not be likely to happen ; but this can be done under the election of a Presi-
dent by the House of Representatives. Why, sir, to call that republican or to call it
democratic is to make nonsense of it. It is as far removed as possible from what may
be considered a democratic or republican election of a President of the United States.
And see how it is done : The voting is by members elected two years before. Members
elected two years before on different issues, when the politics of the country were
entirely different from what they are when the election takes place, are to choose the
President of the United States and do it by States.

The election of a President by the House of Representatives is full of danger. It
has been tried twice, and each time we came near making shipwreck. Can this Gov-
ernment stand the strain of another election by the House of Representatives? The
monstrous injustice of giving forty-two thousand people in the State of Nevada the
same voice in electing a President that New York with five million has is too great a
strain for the Constitution of the United States. In 1H)1 it came near making ship-
wreck. They balloted until nearly the 4th of March, and then an election was se-
cured by a change l)rought about under circumstances that I will not now state, not
reflecting great credit upon the parties engaged in that change. In 182.5 John Quincy
Adams was elected by the House. The election was said to have been brought about
by the action of Mr. Clay in securing for Mr. Adams the vote of Kentucky. Mr. Clay
was afterward appointed Secretary of State. He never recovered from it" It was too
gteat a power. I do not believe that Mr. Clay was guilty of corruption ; I think that
is not the general opinion ; but the fact that Mr. Clay caused the vote of Kentucky to be
cast for Mr. Adams, and that Mr. Adams afterward appointed him Secretary of State,
ruined the prospects of Henry Clay ; he never recovered from it. And now think of
the grand opportunities for corruption. Take those States where one Representative
casts the vote of the State ; take the State of Nevada, or any other State that has but
one member ; that one Representative has the same power as all the Representatives
of the State of New York. The patronage of the President is ample enough to reach
every member of that House. You cannot conceive of grander opportunities for cor-
ruption than with a Representative from a State where there is but one Representa-
tive, or where a Representative may cast the casting vote in the delegation of a State
and determine the vote of it. It is not only anti-republican essentially ; it was the
result of a compromise ; but it is full of danger ; and in these days, when there is so
much said about the danger of corruption, we cannot contemplate without horror the
idea that the election may be placed in the House, where a few members of the House
by the sale of their votes or the promise of office to themselves or to their friends may
determine the election and elect a President for forty or forty-two millions of people.

We ought never to have another election by the House of Representatives, and when
we look back to the reasons that brought about the adoption of that provision of the
Constitution, we find they have wholly failed; they are all gone; and the convention,
if assembled now to adopt the Constitution, would never think of providing for an
election by the House of Representatives, each State having one vote. If there was a
tie-vote, as suggested a while ago by the Senator from California, and it was provided
that both houses of Congress might assemble in joint convention, each Senator and

PROCEEDINGS AND DEBATES IN CONGRESS. 433

each Representative having one vote, that would come much nearer to an equality
amonjr the jieople and to making the election of a popular character than to give to
each State one vote in the House of Representatives, because then each State would
have a vote in the joint convention somewhat according to its population ; and the
number of men necessary to be corrupted in order to conti'ol the election would be
much larger than under the pi'esent system. Therefore we should not tolerate the
longer continuance of this provision in the Constitution of the United States.

Mr. President, to sum up the points which I am making against the present provis-
ions of the Constitution and in favor of the proposed amendment, I will state that
the theory of the electoral college grew out of a distrust and unwillingness to allow
the President of the United States to be elected by the iieopler ; that the theory was
that the election should be committed to a body of men who should be made entirely
independent, who should meet and deliberate and vote secretly, so that they might be
independent ; that their action should never be known, they should vote by the bal-
lot, but all of that has been reversed by pledging them in advance to vote for partic-
iilar candidates ; that by the general-ticket system the vote is by States, it is an elec-
tion by States, it is not national in its character ; that a few States may control the
election, so that now attention is paid only to the votes of the larger States ; the
votes of the small States have very little consideration, but under the plan proposed
each district must be counted by itself, and it is the same thing whether it is in a
large State or in a small State ; that nnder the present system a small minority of the
people of the United States may elect a President against a very large majority for
the defeated candidate ; that under the present system the electoral vote has never
approached within 10 per cent, of the popular vote, and has varied from it several
times from 30 to 35 per cent. ; that under the present system an election may be had
by the States in the House of Representatives in defiance of the yopular vote and in
defiance of the plurality vote of the electors.

General Jackson in 1824 had the largest popular majority that any President has
ever received in the United States, and he had a large plurality of the electoral votes
also; but there were four candidates, and he did not get a majority of all the electors.
The election went to the House of Representatives, and Mr. Adams, who did not re-
ceive one-third of the popular vote, was elected over General Jackson. What has
been done may be done again.

Then there is no method now of cojitestiug a fraudulent election of electors. Though
the fraud may be so open that the world knows it, yet that vote must be counted un-
less the President of the Senate shall take the resi')onsibiIity of withholding the vote
on the day when it is to be counted. I say further that there is no power in Congress,
that there is no room left to the States, in point of fact, to contest the election of
electors ; that under an election in the House, the vote being taken by States, forty-
five members of that house may elect a President against the wishes of two hundred
and forty-seven ; that the States casting the vote may have a poinilatiou of only one-
lifth of the entire population of the United States.

Mr. President, the original theory that the people could not be intrusted with the
election has failed. We now understand that large constituencies are safer than small
constituencies. The patronage of the President is ample to reach every elector ; it is
ample to reach every member of the House of Representatives, but it is not ample
enough to reach the people of the United States where they vote directly for the can-
didate of their choice. We are in danger of a collision at any time. In a closely-con-
tested election, to be decided by fraudulent votes, to be decided by arbitrary conduct
on the part of the President of the Senate, there is danger of revolution. Our fore-
fathers Avere wise, but they seem never to have contemplated the possil)ility that there
might be two sets of electors or that electors might be chosen by fraud or by violence.
The debates do not show that these things were ever contemplated, and there is not
one word in all the debates of the convention of 1787 to show that it was contem-
plated or expected that the electors would be chosen by the people; on the contrary
the expectation was that they would be chosen by the legislatures of the States, and
the power was put into their hands, and when the legislatures have committed this
power to the people they have done a thing that was never contemplated by the
fi'amers of the Constitution, but they have done it under circumstances under which
revolution pr insurrection may arise.

Now, I submit to the members of the Senate that this question is too important to
be passed over. It ought not to go over this session without action. You may not be
able to agree upon this amendment, but perhaps you can agree upon something by
which we can take away all or a part of the dangers by which we are surrounded ;
and I submit that the Senate ought never to give up the consideration of this question
until something has been decided that we may send to the House of Representatives
for their concurrence.

It is^more important than any other measure that can possibly come before us. It is
not new. For more than seventy years attempts have been made, at ditterent times,
to change the Constitution so as to avoid some of these dangers. Amendments have

434 COUNTING THE ELECTORAL VOTE.

passed the Senate and the House four times by a two-thirds majority to avoid some of
these evils, and yet hually failed. The question is not new. The remedy proi.osed is
not new, it is almost as old as the Constitution. Seventy years ago some of the ablest
men m the Senate ot the United States foresaw these dangers, but they have been al-
lowed to sleep along. But shall we allow them to sleep along until the danger comes
until the actual collision takes place ? If we are patriots, without distinction of nartv'
without regard to our party dilierenccs upon other questions, we will address ourselves
to the great work of so amending our Constitution as to avoid the great dangers that
lie at the very threshold. o '"

Mr President I have spoken longer than I intended, but the subject was so impor-
tant that I could not forbear so much.

Mr. Thurman. Mr. President, more than two years ago I submitted some remarks
to the Senate upon the question which has been to-dav discussed by the Senator from
Indiana, and when afterward the Senator from Indiana brought the subject formally
before the Senate by the introduction of a resolution of instructions to the Committee
on Privileges and Elections, I was very much rtyoiced that he did so, and I voted for
the instructions with the greatest pleasure, as I believe every member of the Senate
did j and I hoped for a report from that committee with which we mi-'ht all a-a-ee

Ihe dangers to which we are subjected have not been exaggerated by the Senator
from Indiana; thedifliculties under which we labor have not been exaggerated at all;
but It does seem to me that the remedy proposed by the committee in the resolution
now under consideration really fails to meet the very danger which is most menacing,
that there may be frauds in the election we all know. That there may be fraudulent
returns in the States and a fraudulent count of returns, with the expeneuce of Louisi-
ana before us, needs no proof. But the greatest difficnltv, the most menacing of all,
is the count of the electoral votes here in Washington, 'if the result of the presi'
dential election had depended on the votes of Arkansas and Texas at the last count
that was made, we might have seen this country plunged in civil war. And before
tliat we once witnessed the most extraordinary spectacle when the votes were counted
in February, lf^b9, when the President of the Senate, or the acting Vice-President a&
he was called, announced that under a resolution passed by the two houses of Con-
gress the vote of the State of Georgia should be counted if it did not change the result ;
but that it it should change the result it was to be rejected.

With these dangers menacing us, liable at any moment by this mode of countin"-
tlie vote to see this country convulsed from one end to the other, not in a sectional
way, but in a way that may reach every hamlet in the land, I must confess I was a
little surprised when I looked at this report to tiud that it provides no sutMcient or safe
mode ot counting the electoral vote.

Mr. MoRTOX. Will the Senator allow me a word just there?

Mr. Thurmax. Certainly.

Mr. Morton. I intended to speak of that part of the amendment providincr a tri-
bunal lor the decision of contested elections. It was a subject of grave consideration
in the committee. Some were in favor of constituting the Supreme Court of the United
States the tribunal to decide ((uestions of contested elections; others thought the cir-
cuit courts or the district courts of the United States should be provided ; others ao-ain
thought there ought to be a si)ecial tribunal created by Congress. It was then thoucrht
better to place the whole matter in the decision of Congress to provide this tribunal.
It we should put any speciald tribunal into the Constitution, it might not work well
and it might be difficult to change it. It was thought better, therefore, to leave the
whole subject to Congress, believing that Congress would come to a safe and wise con-
clusion, because the subject was necessarily not of a party character, but one upon
which men would difier or act together simply as they were patriots and lovers of their
country, and we therefore inserted this provision :

J'J^^. ^'ougress shall have power to provide for holding and conducting the elections
of President and A^ice-President, and to establish tribunals for the decision of such
elections as may be contested."

We could therefore establish, if Congress thought proper, the Supreme Court as the
tribunal or the circuit courts in the ditierent parts of the Ignited States, or we could
establish an independent tribunal for this very purpose. The whole power is left to
Congress, where it did not rest before.

Mr. Sargext, Does the Senator think that the use of the word "establish" there
implies " new f

Mr. MoRTOX. Not necessarily. We thought it would apply to any tribunal that
might be selected.

Mr. Thurmax. ilr. President

Mr. CoxKLiXG. Will the Senator from Ohio allow me to ask the Senator from Indi-
ana a question ?

Mr. Thurmax. Certainly.

Mr. CoxKLiXG. Was it the opinion of the Committee on Privileges and Elections
that, under the Constitution as it stands now, Congress has not the power to dispense

PROCEEDINGS AND DEBATES IN CONGRESS. 435

not only with the twenty-second joint rule, but to put in its place a mode safer for
ascertaininj; and conuting the electoral votes ?

Mr. MoRTOX. I cannot speak for all the members of the committee. I think there
can be no doubt that Congress can dispense with the twenty-second joint rule ; and
that if nothing else be done that ought to be done. But it was my opinion, and I
think the opinion of other members of the committee, though I will not undertake to
speak for them, that Congress has no jurisdiction over the question ; that the question
of appointing electors and determining who are appointed is a question that belongs
to the legislatures of the several States, and that the other provisions of the Consti-
tution show that it was intended to take the whole subject out of the hands of Con-
gress, except in regard to two things, which are specially mentioned : first, the time of
choosing the electors by the legislatures ; and, second, the time when the votes shall be
cast by the electors, which shall be on the same day in all the States. My own con-
viction is that Congress has no power over the subject whatever, and that the power
of the Vice-President results, ex necessitate rei, from the absence of anyi>owerto control
him. He is the depositary of the electoral votes ; they are not to be opened by him,
not to be inspected, until the very moment when the vote is to be counted, so that
there is no room or time for correcting informalities in the vote that may have been
made by the electors, and the electors being funciits officio on the day they cast their
A'otes, the first Wednesday in December, they cannot be called together for any pur-
pose. It is a casus omissus, where no provision has been made at all on the subject.

Mr. TiiURMAX. I was aware that in the resolution reported by the committee there
is a provision that Congress shall have power to provide for counting these votes, and
indeed for much more than that : but I for one am not willing to confide that power
to Congress. I want the tribunal that shall count these votes to be provided for in
the Constitution. Whether it be the Supreme Court or whether it l)e some tribunal
created for that specific purpose, whatever it may l)e, I want it provided for in the
Constitution. I do not want the laws that are to aftect these great privileges, that
.'ire to operate on this great subject, to be at the mercy of the dominant faction for the
time being in Congress, whatever party that faction may be. I want it fixed in the
fundamental law, so that every i)arty shall be compelled to obey it. Therefore, with
great respect to the committee and to the able chairman of it who has devoted so much
patriotic labor on this sultject, I do say that in my humble judgment the report is
manifestly defective in this particular; that it will not do; it will not cure the evils,
and the greatest of all the evils, that attend this subject.

Nor, while I am up, I may be permitted to remark, do I agree with the Senator from
Indiana that the counting of the votes and the declaration of the result belongs, under
the Constitution of the United States, to the Vice-President alone. That is not the
interpretation that has been placed on the Constitution heretofore. If so, you never
would have the joint rule on the subject which now exists. The Constitution does
provide that the President of the Senate shall open the returns in the presence of both
houses of Congress, and that the votes shall be counted and the result declared. It
does not say in so many words that the Vice-President shall count them ; it does not say
that he shall decide any question ; it does not say that he shall even declare the result.
What, then, is the natural interpretation to be placed on the Constitution f It is gov-
erned by that great and general rule, that when a duty is to be performed under the
Constitution, and no specific mode of performance is pointed out in the Constitution,
it is remitted to the law-making power to provide the mode. That is a rule of uni-
versal application. Where a power is conferred npon the Federal Government, and
no officer or Department is specifically charged with that power, then that power is to
be regulated according to the dictates of the law-making power, the Congress of the
United States. Therefore I am not at all prepared to say that those who have gone
before ns, who have for so long a time interpreted this provision of the Constitution
to authorize a joint rule on the subject, have interpreted it wrong. My own impression
is that they have rightly interpreted it. At the same time I do not wish to be under-
stood as exactly api)roving the present rule. I think it would have been better if the
rule as originally advocated had been adopted, that the vote of every State should be
counted unless both houses of Congress agreed to reject it. Now the rule is just the
other way. Every presumption is in favor of the regularity of the returns, every pre-
sumption is in favor of the legality of the vote, and yet, assuming really that j^cu/ia
facie the return is not regular or that the vote is corrupt, it is put in the power of
either house of Congress under this rule to reject the vote of a State. I do not think
it should be so. I think the rule should be as it was very near being — for the vote was
exceedingly close upon it — that the vote of every State should be counted unless both
houses concurred in rejecting it.

But I must say that the rule, in my judgment, is defective in another particular. It
prohibits debate absolutely, and the ruling was so strict on that subject at the last
count of the returns that the Vice-President ruled out of order anything in a reso-
lution offered on this floor that contained the slightest recital, because, he said,
that was argument. He would not allow a resolution that had any preamble; he

436 COUNTING THE ELECTORAL VOTE.

would not allow a resolutiou Id the body of which was contained any recital or any
statement of positions of law. He ruled them all out as being in their nature argu-
ment, and we were compelled to vote here blindly upon every question that came up
before us. Take the very case of Texas, if I am right about the State ; I think it was
Texas. The Senator from Indiana will correct me if I am wrong. There the objec-
tion was that the return was under the seal of the secretary of state.

Mr. CONKLIXG. Arkansas.

Mr. Thurman. I thought it was Texas.

Mr. Sapgent. Texas was where four electors were chosen by the other four.

Mr. TiiURMAX. Take Arkansas. It matters not which State it was. There the ob-
jection was that the return was under the seal of the secretary of state, and not under
the great seal of the State. It was of the utmost consequence to know whether the
State of Ai'kansas had a great seal, or whether the seal of the secretary of state was
the only seal that was used in that State. I remember perfectly well when q uestions were
asked on that subject objection was made that they should not be answered, for that
would be in the nature of debate ; ami we had to go up and look at that seal and see
whether it was the seal of the State of Arkansas or only the seal of one of the depart-
ments ofgovernment in that State. And that was not all, sir. We had then to hunt up
the constitution of Arkansas, those who had time to do it, to find whetlier that State has
agreat seal ornot, and then werenotatlibertytocommunicatetheresult in open debate.
I know we did violate the rule by communicating the result. It was spoken of. Mem-
bers from their seats spoke of it ; others spoke of it in one way or another ; but it was
all decided by the Vice-President to be out of order ; and for what reason, pray ? That
you might decide on the election of President of the United States between the rising
and the setting of the sun on that day. It was wrong. Sufficient time to have dis-
cussed every one of those questions fully and to have them decided correctlj' should
have been given, but your rule did not permit it.

I mention this for the purpose of showing that we have in our own hands the power
to remedy some of those evils which have existed in the count before and which may
have operated unjustly. I remember that I voted to reject the vote of one of those
States— I forget whether it was Arkansas or whether it was Texas, one or the other —
and I never cast a vote that gave me more pain in my life, for it looked like casting out
the vote of a State.on a mere technicality ; and yet I could not get rid of the positive
act of Congress and the provision of the Constitution, as I then thought, ujion the light
I had before me. Possibly my doubts might have been removed if we could have had
the whole facts before us and discussed the question ; but your iron rule prevented all
debate. Even information on the subject is cut off by that rule. I hope, therefore, to
see that rule amended so that we shall not have everything like information to enable
us to exercise one of the highest functions of Congress debarred from us and not con-
sidered by ns.

Mr. President, there is another matter in this resolution that requires the gravest
consideration. It proposes a sweeping change in the mode of electing the President of
the United States. I will not refer to the abolition of the college of electors. I do not
think that is a matter of so much importance ; but I refer to that change by which the
President is to be elected by a plurality instead of by a majority. That is a sweeping
change, that is a mighty change, I may say, in our mode of electing the Chief Magis-
trate of this country ; and when we come to consider the power that that Chief Magis-
trate exercises in the country, when we come to consider the tendency to increase his
power, when we come to look at the facts that show the mighty growth of executive
power in this country, it behooves us to take care that we move slowly in the direction
of so fundamental a change as that proposed by the report of this committee. I will
not say that under no possible circumstances might such a change be undesirable, but
I want to amend the Constitution of this country, when it is amended, with the utmost
care. It is not a thing to be lightly dealt with. " It is not a by-law, or an ordinance, or
an ordinary act of legislation that is to be changed every day witli every tide of public
sentiment or according to the notion of any party that happens to be dominant in the
halls of Congress. Changes in it should be made with the utmost care by every one
engaged in making those changes, from their inauguration in either house of Congress
to the final votes of the people" or of the legislatures by which amendments are to be
ratified or rejected. Therefore, it does seem to me that a proposition so sweeping as
this deserves, and must receive before it can be acted upon, the most ample considera-
tion of the Senate.

Mr. President, I did not rise to make a speech on this subject. I only rose to express
these views and ask the Senator from Iiuliana to consent that this resolution may be
laid over to some other day sufficiently remote in the session to give Senators a chance
to consider it. This is the first time it has been brought to the attention of the Sen-
ate. The report, it is true, was made at the last session, but nothing was done with
it except to print it and let it lie on the table. The Senator has now bnmght it up for
consideration for the first time, and for the first time we ha.ve his views in its support.
Let its further consideration, unless some Senator wishes to speak on it now, lie over

PROCEEDINGS AND DEBATES IX CONGRESS. 437

to some convenient day, which will give us all an opportunity to study it and to study
the report more carefully than we can yet have done.

Mr. COXKLIXG. Mr. President, the Senator from Ohio has not failed to say several
things in which in effect I concur. Just before concluding his observations, he said
thata subject like this required very full and ample consideration. In that I agree,
and I should more immediately agree with the remark had the Senator extended it to
others, as well as ourselves, by whom this proposition must be considered. It cannot
become one of the ordinances of the Constitution until it has been so much considered
by the States that three-fourths of all the States shall ratify it ; and that faat at this
moment outweighs all the other facts that occur to me connected with it. A presiden-
tial election is to occur in about two years, without stopiiing to be accurate.

Mr. Oglesby. Less than two.

Mr. CojS'kling. My friend reminds me "less than two,'" but I sjieak in round num-
bers. If there be an emergency, if there be serious importance in this subject, all Sen-
a-tors will agree that its gravity is as likely to be illustrated at the next presidential
election as at any election we can now forecast. A remedy, therefore, for the evil, a
mode of avoiding the danger, if danger exists, could be commended l)y nothing more
than its timeliness, by nothing more than the fact that it would take eftecl on that
occasion, that first occasion, that, for aught we know, most important occasion, when
the need of purity of legislation will be felt. Can any Senator hope that this proposed
amendment will become a part of the Constitution by the action, first of the two
houses of Congress, and then by the action of three-quarters of the States, in season
to enable Congress, proceeding under the sixth subdivision of this article, "to estab-
lish tribunals for the decision of such elections as may be contested?" Surely such a
result is not only iuiiuobable, it is impossible, or next door to it ; and I think the hon-
orable Senator Jfrom Indiana, commending warmly as he does this proposed amend-
ment, does not expect from it that which will put an end to these ditticulties in season
for 1876. If I am right in that, we are brought not so immediately to the question
when, or how, or with what result this amendment shall lie considered, as with the
question what we should do now, if we should do anything during this fast-ebbing
session, to establish safe and certain modes of ascertaining the next presidential elec-
tion.

I do not intend at this time, or probably at any time, to detain the Senate upon
that subject. I venture, however, to ask the attention of the Senate, and especially of
the Senator from Indiana, to tiie language of the Constitution upon which some com-
ment has been made by the Senator from Ohio. We find in the Constitution as it
stands these words :

" The President of the Senate shall, in the presence of the Senate and House of Rep-
resentatives, open all the certificates" —

That is his function —
" 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 num-
ber of electors ai)])ointed."

That language is very spare. The words are very few. It is certainly wanting in
many an ampliiication which would be convenient to a student of the Constitution
and convenient to a legislator looking for ways in which it might be enforced ; but,
as the honorable Senator from Ohio very seasonably reminds us, there are certain
canons of construction which help out these words. There are familiar rules, found
even in the Constitution itself, but more especially rules in the light of which all
written instruments, evtn constitutions, are to be read, which assist and aid in effect-
uating this provision. I will not at this time ask the Senate to listen to an opinion
from me as to power conferred by the Constitution to adopt this twenty-second joint
rule, but if I read article L'2 with so much latitude as to convince me that the twenty-
second joint rule is within its permission, I think I should be willing to rely even upon
my own ingenuity then to devise ways and modes, under a reading of the Constitu-
tion as broad as that, which would go very far to avoid and guard against the dan-
ger that surrounds the count. Certainly I think few lawyers will study the twenty-
second joint rule and deny that some of its provisions are at least questionable in
respect of the power given by the Constitution thus to direct and govern the count-
ing of the votes.

Returning for a moment to these words in the Constitution, we find that the Presi-
dent of the Senate is to do but one thing, which is to open, and of course manually
to i)reseut and be the custodian of, the returns upon which the election is to depend,
which are called in this provision of the Cotjstitution " the certificates." Then we
find the language changes, and it ordains in most mandatory phrase that " the votes
shall then be counted." Tliere, I submit, is appropriate domain for legislative dis-
cretion, either by legislation or by a joint rule, if coucun-ent action between the two
houses rather than legislative action be preferred. I find added :

" The person having the greatest number of votes for President shall be the Presi-
dent."

438 COUNTING THE ELECTORAL VOTE.

Those are uot superficial words. They do not rehxte to the modus ; they are not con-
fined to the count ; but they go to the ultimate result, and declare that the person hav-
ing the greatest number of votes shall be the President. Stopping where I am, as I
do not mean to detain the Senate, I cannot doubt, until some Senator shall adduce
reasons which have never been given in my hearing, that there lies within the limits
of that provision an opportunity not only to dispense with the twenty-second joint
rule, but to put in its phice a rule or a statute under which those words can certainly
he enforced, under which the votes can be counted, and counted in the presence of the
two houses, and under which the person for whom a majority of them has in truth
been cast, shall be the President. Of the details I say nothing; of the merits of the
proposed constitutional amendment I say nothing; but I do say, and had I the power
to do it and believed it to be necessary I would bring it home to every Senator and
impress it upon him, that we shall fall short in an urgent and imminent duty if the
4th of Alarcli witnesses a dissolution of these two houses without their having devised
some mode better than the twenty-second joint rule of ascertaining and recording and
establishing the will of the people expressed by elections in the States as to the choice
of a Chief Magistrate; and whenever any committee, whatever may be the fate iilti-
mately of this or another constitutional amendment, Avill propose legislation (upon
which we can act at once, and which need not be postponed to the distant by and by
of ratifications in States) looking to this end, I hope it will be the pleasure of the
Senate to address itself very promptly and diligently to that legislation.

Mr. Edmunds. There is great force in what the Senator from New York has said
touching the doubts that may arise respecting the twenty-second joint rule. I think
myself that there is constitutional power in the legislative branches of the Govern-
ment to regulate the exercise of the power conferred in the Constitution respecting
the election of President and Vice-President, just as in all other powers granted in the
Constitution Congress has always exercised and must always exercise the authority
to regulate the methods and manners through which the ends looked to in the Consti-
tution are to be reached. We have always done that as to the courts, in many respects
as to elections, and in fact respecting the exercise of almost every one of the powers
granted in the Constitution. But whether it is competent for the two houses, not act-
ing in a legislative capacity, but each acting for itself, to provide a rule liy which it
is in the power of either house to prevent the counting of every vote that may be re-
turned from a State is open to very grave question indeed.

It is plain enougb, I think, that Congress cannot by a law declare that the Vice-Presi-
dent of the United States, or rather the President of the Senate, whoever he may bo,
shouhl not open and count the returns made from the various States ; but the manner
of such a count, what should be regarded as in law a vote of a State, the means of
ascertaining whether it is the legal vote of the State, it appears to me must be the sub-
ject of legislative provision. And so also I think it safe to say — periiaps safer than
what I have already said — that Congress may provide by law a tribunal which, in
case of a dispute after the function uumed in the Constitution has exhausted itself of
this opening and counting of the votes, shall have the power to decide who is legally
elected President of the United States ; not to review the action which the Constitu-
tion declares the Presiding Officer of the Senate shall take in the presence of the two
houses, but to ascertain in a method pointed out by law what ai-e the votes that the
States have given, and who therefore is the person who has received, in the language
of the Constitution, the greatest numl)er of votes.

If I am not mistaken in my recollection, I at one time prepared and presented a bill
on that subject, and I have given considerable attention to it, because no man, no
matter what party he belongs to, (after the experience we have had, when the candi-
dates of a certain party received a large majority of the votes, of the disorder, the ex-
citement, the difficulties, the disputes that arose in respect of what were called the
votes of States, which, if counted or not counted, would produce no difference in the
result,) can fail to see that when the counting of the vote of a particular State, or of
a paper that is presented as the vote of a particular State, is to make A or B the Pres-
ident, there will necessarily result an excitement, a difficulty, and a disorder which
every lover of his country would greatly regret, and which every legislator, so far as
he has the power under the Constitution to do it, ought to provide against. I concur,
therefore, most heartily in what the Senator from New York has said, that there ought
to be a very careful investigation of this question, in order that, so far as we have the
legislative power, if we have it at all— and I think we have — -we may provide in the
constitutional way for ascertaining what the will of the people of the various States
may be from time to time in respect of the election of a Chief Magistrate.

January 22, 1875.
The Senate, as in Committee of the Whole, resumed the consideration of the joint
resolution (S. R. No. 16) proposing an amendment to the Constitution lu-escribing the
manner of electing the President and Vice-President of the United States ; the pending

PROCEEDINGS AND DEBATES IN CONGRESS. 439

questioa being on the motion of Mr. Tliiirman, that the further cousiileratiou of the
joint resohition be postponed until the tirst Monday in February.

Mr. AxTiioxY. I ask the Senator from Ohio to withdraw his motion for a short time.

Mr. Edmunds. The motion is debatable.

Mr. MORTOX. I hope the Senator from Ohio will withdraw his motion.

Mr. Edmunds. The merits are open to debate on this motion.

Mr. Anthony. I suppose I can as well speak on the motion pending.

Mr. Thurman. I understand the Senator from Rhode Island is prepared to speak on
the proposed constitutional amendment. I therefore withdraw the motion for his
accommoda ti on.

The Vice-Prksident. The motion to postpone is withdrawn.

Mr. Anthony. Mr. President, this subject has been so thoroughly discussed in the
elaborate and exhaustive report, for which we are indebted to the industry and learn-
ing of the chairman of the Committee on Privileges and Elections, that nothing
remains to be said upon the inconvenience and danger of the present system of elect-
ing the President of the United States and the desirableness of a change. Nor, on
the whole, considering the varied rights and interests and traditions to be consulted,
does there appear a better mode of reform than the one proposed. Agreeing with the
conclusion of the report, although not fully with some of its reasoning, I shall briefly
consider the subject particularly with reference to the smaller States of the Union,
one of which I have the honor, in part, to represent.

But first, while I fully appreciate the peril of the existing system, in some respects,
I apprehend no danger from the election of a President, in the last resort, in the mode
in which the Constitution provides, the mode which the people ordained, the mode to
which every State has solemnly assented, and which has been twice tried, and the
President thereby elected has exercised, undisputed, ail the authority of his office. The
people of the United States are a law-abiding people. They must be a very restless
and unreasonable people who would revolt at a mode of election which themselves had
ordained, and had twice consented to, and which they have the power to change. There
are reasons sufficient for the change proposed, there is danger sufficient in the present
system, without supposing one which could arise only from the insubordination of the
people to their own law, changeable, at their pleasure, in the mode which they have
provided. That an election illegally or fraudulently forced through the House of Rep-
resentatives might endanger the stability of the Government is just as probable as that
an election illegally or fraudulently accomplished in any other way might produce that
result. In either case, the dissatisfaction would l)e. not with the provisions of the Con-
stitution, but with the perversion, the violation, of those provisions. In the case of
James K. Polk, who was thought by the friends of Henry Clay to have been elected by
the naturalization frauds in New York and by the Plaqnemine frauds in Louisiana, the
l^eopie submitted, because there was no legal remedy, and because all the forms of law
had been complied with. And moreover, although the supporters of Mr. Clay believed
that a majority ought to have been returned for hira, it was undeniable that the difl'er-
ence in the legal votes of the two candidates was small. It was not as though a Presi-
dent had been forced on the people against the wish of the great mnjority.

In the case of John Quincy Adams, although there was a good deal of partisan talk
about not submitting to the election by the House of Representatives, there was never
any real danger to the public tranquillity ; and the talk was not against the constitu-
tional mode of the election, but against the agencies by which it was alleged to have
been accomplished. That these allegations of fraudulent or improper agencies were
the suspicions or the inventions of heated partisanship history has well established.
But they had, at the time, a great eftect ; indeed to them was due all the apprehen-
sion, real or imaginary, of danger from the unusual but constitutional mode of the
election. There was no jiroper cause of complaint, certainly none of indignation.
There was no outrage upon popular rights. The ])eople had divided their votes among
four candidates, and neither having a majority, the election came into the House of
Representatives. Jackson received 99 electoral votes and Adams 84, and there were
78 against both. With so small a plurality, and in so decided a minority, the candi-
date who received the highest number of votes had no right to claim from the Repre-
sentatives, on whom the election devolved, the subordination of their own judgment
' to that of a minority of the electors, who had cast their votes for the highest candi-
date. To claim this would be to claim an election by a simple xilui'ality, and to make
the election by the House less than a ministerial office, a mere farce. It was on no
such groTind that the friends of Jackson denounced the Representatives who had ex-
ercised their constitutional right and their constitutional duty. It was on the pretense
of corrupt bargaining in the election, a pretense that deceived many well-meaning
men.

The previous case of the election of Jefferson presented a much more serious cause
of alarm. Yet this did not arise out of the mode of the election, but out of the singu-
lar complications which threatened to prevent an election of either President or Vice-
President, and to bring the Government to a stand-still. It was reported that the

28 X

440 COUNTING THE ELECTORAL VOTE.

opponents of Jefferson liad gone so far as to determine that, rather than submit to bis
election, they would prevent an organization and drive the country to revolution. No
such purpose was entertained, unless by a few hot-headed men, who are found in every
party, and for which no party should be held responsible. Hamilton disapproved even
of the initial proceeding, and frankly and earnestly declared that it was more than a mis-
take, that it was full of danger, and that its success would threaten the very existence
of the Government. Jefterson, who naturally listened with credulity to these reports,
said that while he would have joined in armed hostility agaiust any act of usurpation,
he would have cheerfully yielded to the election of Burr and taken the place of Vice-
President, "because, however it might have been variant from the intention of the
voters, yet it would have been agreeable to the Constitution." The crisis did not grow
out of any unfairness in the mode of election by States, but out of an apprehended
abuse of that mode of election, as any other mode might be abused. Had the same
dead-lock occurred by the equal division of the electoral or of the popular vote, a sim-
ilar danger might have occurred. The danger was not in the system, but in the party
madness which strove to pervert to party uses the mode appointed for contiuuiug the
Government, and to do this at the risk of destroying the Government itself. There
was not, in either case, just cause of complaint of the equality of the States in the elec-
tion by the House. And in the result it proved that patriotism was too stroug for
party, and some of the strongest federalists — and these, it must be remarked, were from
the smaller States — took the course which Hamilton advised from the beginning, and
voted for Jeflerson, or cast blank votes, which amounted to the same thing.

The lead in that patriotic act was taken by the grandfather of the hereditary Sen-
ator who has just been re-elected from Delaware and whose name has been borne in
this Chamber by three generations, sans 2)eur et sans reproche.

Moreover, there is great advantage in keeping constantly in view the federal char-
acter of the Government and the }iower of the States out of which the Kepublicgrew.
We have been compelled, in the great struggle for national existence, and in re-organ-
izing government on the principles which prevailed in that struggle, to transfer to the
General Government power and authority which had hitherto been exercised by the
States, and which we had been educated to believe could be best exercised by them.
While the necessity of this sacrifice was to be regretted, no patriotic man regrets that
it was rendered. In that way alone could the rights, the existence of the States them-
selves, be preserved.

Nor do I agree in all that is said about the unfairness of this mode of election. If
ihe election w^ere made originally by the State, each State having oue vote, the objec-
tion urged to it would be unanswerable ; but as the choice is confined to the three can-
didates who have received the highest number of electoral votes, the only power of the
House is to select which one of three men, high in the public confidence and favor,shall
exercise the office which must be exercised by somebody, and the people cannot decide
upon whom to confer it. The action of the House is very different from a free election ;
it partakes of a judicial as well as of a political character.

In yielding my assent to the proposed amendment, I am not therefore influenced by
api>rehension of resistance to the election of the President by the House of liepreseut-
atives in the mode provided by the Constitution. But the existing system is au
acknowledged failure of the expectations with which it was adopted. Nothing is
perfect. The more we study the Constitution of the United States, the more we ad-
mire the wisdom with which it was framed, and the elasticity Avith which it adapts
itself to enlarged limits, multiplied population, and altered conditions of society. But
in respect to the election of President and Vice-President, it never once fulfilled the
intention, which was that the electors should be unpledged men, not appointed for a
mere ministerial office, but chosen for their character, their wisdom, their patriotism,
to perform, according to their own judgment, the highest and most responsible duty
that could be delegated by the constituents of a representative government to their
most trusted public servants. Instead of that, the electors, as we all know, have been
selected to vote for candidates already designated, and the character of the electors
does not even enter the consideration of the voters by whom they are chosen. The
cumbrous machinery which interposes between the people and the candidates of their
choice perft>rms no real service, aud is only a needless obstacle and delay. But more
than this, it restricts the choice of the people; and instead of leaving their selection
open to the whole body of the citizenship, confines it to those who have a sufficient
following, in the State" in which the voter lives, to receive the nomination of a full
college of electors. And even should a candidate have a considerable support in the
aggregate, it is all wasted, unless it can be concentrated in sufficient number in one
State. A candidate may have powerful support and large minorities, scattered among
five or six States, but, unless he has a plurality in some one State, every vote for him
is thrown away Practically, the chance is limited to two, or at most to three candi-
dates ; and these must be the candidates of a recognized party, strong enough to per-
fect an organization, and to put an electoral ticket in the field. As the voter cannot
vote for his candidate personally, he must vote for a number of candidates equal to

PROCEEDINGS AND DEBATES IN CONGRESS. 441

the iiuiubcr of electors to -which his State is entitled, and mnst find that number who
are precisely of his way of thinkinj^, and who will consent to serve if elected ; and
moreover they must be distributed all over the State. Nor can the voter select the
President of one party and the Vice-President of another; he cannot vote for his
choice, for one of these offices, unless he accepts the candidate associated on the ticket
with him. At the last election, the choice of every voter was practically restricted to
Grant and Greeley. If he desired a man other than either of them, he had no way of
making his choice elective, even to the extent of his own vote. Nor could he vote
for Grant and Brown or Greeley and Wilson. He was obliged to vote for Grant and
Wilson or for Greeley and Brown, or to throw away his vote, which he would do just
as effectually by voting for any other candidate, or for any two of them, except on the
ticket on which the two were associated.

A great evil of this is that it strengthens and perpetuates, indeed it makes quite nec-
essary, the caucus or convention, which has grown to be almost as much a part of our
political system as though it were embodied in the Constitution, and which crushes the
iudividuaiity of the voter, and makes him only a part of a great partisan machine, his
only choice being to which party he shall surrender his rights of private judgment.
How this opens the way for intrignes and disreputable combinations and for conspira-
cies to obtain power for personal objects, how it pledges in advance, and as the price
of siipport in the convention, that great patronage which the President wields, I need
not point out. It would greatly pnrify our elections if the voters could select their
candidates from the whole body of their fellow-citizens, uncontrolled by convention
or caucus, and responsible only to their own sense of right. It would not, indeed, su-
persede the convention, but Avould deprive it of its tyranny, and make it responsible
to a patriotic public opinion. The voter, if he did not like a candidate, would not be
obliged to vote for him because there was no other way to vote except for one that he
liked still less% And this consideration would compel the nominating conventions to
greater prudence and wisdom in the selection of candidates.

All the machinery of the existing system is absnrd, and is an obstacle rather than a
facility, on anyothertheory than that upon which indeed the Constitntion was adopted,
but wiiich has' utterly failed, that the electors should be unpledged men, charged with
the duty of choosing a President, according to their own judgment, and to what they
might consider the public good, not controlled or in any way directed by the popular
voice, which it was supposed that they would guide, not follow. Every one argues
that the system should be abandoned, that the theory of the election should be con-
formed to the practice, and that the machinery should be better adapted to the pur-
pose which it is intended to accomplish.

At the same time it is very much better to make the change with as little violence
as is practicable to the traditions of the Government, and to retain, as far as possible,
all of the original intentions of the Constitution, except where the intention has mani-
festly failed in practice. Evspecially is it necessary to preserve the recognition of the
States, in the two electors which belong to each eqnally, beyond those to which they
are entitled on the basis of population. Not only is "this right, but no amendment
which failed to recognize this equality could obtain a two-thirds vote in this body, or
receive the requisite assent of three-quarters of the States.

The auiendmeut proposed happily secures the right of individual selection, without
infringing upon the rights already secured to the States. It permits every voter to vote
for the candidate of his choice for President and for Vice-President, and yet preserves
to the States the equivalent of the two electoral votes to which, by the original com-
jiact, they are entitled, in addition to those which are based on population. It presents
the natural mode of election, and abolishes the unnecessary formalities which separate
the people from the candidates. While it is desirable that the Chief Executive of the
country should be elected by a majority of the people, and that his authority should
rest on the broadest basis of the popular will, yet since so desirable result can only be
attained by the general concurrence of opinion which must be left to its own free ex-
pression, it is a matter of necessity that some expedient be resorted to, in the failure
of such concurrence. To require an absolute majority to elect the President might
practically prevent an election ; and if there be no one whom a majority of the people
prefer, tlien the natural expedient is to elect that one whom the greater number pre-
fer. In the first instance, absolute unanimity would be desirable ; but that is practi-
cally impossible; so a majority is accepted; and by the same natural conclusion, if an
absolute niujority l)c unartainable, a plurality is next best. So plain is this, that, in
nearly all tlje States, a i)lurality elects the State officers, executive, legislative, and,
when they are chosen by the people, the judicial ; in some States a majority is required
for members of Congress on the first trial; but in all, a plurality elects on the second.
Nor does the present mode of election secure a majority of the people to tlie election
of President. It may happen, and has happened, thac the candidate receiving a ma-
jority of the elt'ctoral vote is in a minority of the popular vote. On the whole, it
must be admitted that, next to an absolute majority, a plurality presents the most
natural and the fairest mode of election, and that the other expedients, however well
planned, have not comuiended themselves in practice.

442 COUNTING THE ELECTORAL VOTE,

Although, therefore, I do not object to the electionby the House of Eepresentatives,
for the reasons that have been stated elsewhere, I freely agree that it should be aban-
doned. It may seem, at first, that the smaller States make some surrender of power
by changing the system "which gives them an equal suli'rage in the last resort. This
might be true if the smaller States had some interest apart from the larger ones and
opposed to them. If it were so, I should recognize a deep if not a fatal defect in our
political system. I see no such opposition of interests. Experience has shown that
the questions which haA'e organized parties and divided the country pass over State
lines without noting them, and invade alike the large and the small States. There is
nothing in tlie disparity of the geographical limits which makes it probable that New
York and Rhode Ishind shall separate on political questions, or that Delaware and
Florida shall unite. The smaller States are distributed in all parts of the Union, East,
West, North, South, and Middle. They have no purposes that are not as likely to be
common to the larger States as to each other. All the apprehensions of a combination
of the larger States, to the disadvantage of the smaller, have proved groundless. There
is nothing for them to combine for or against. The great interests of the country are
common to all the States, and where there have been separate interests, real or imag-
inary, they have not been based on the territorial limits of the members of the Union.
I do not, therefore, regard the surrender of the equal suffrage in the election by the
House of Representatives as an imijortant concession. But I can plainly see that in the
mode proposed of election by districts the overshadowing power of the great States is
destroyed. They will no longer cast their solid vote for President, bearing down four
or five of the smaller States, each of which may possibly cast a greater po^jular major-
ity the other Avay. New York may cast thirty-five votes for one candidate, while tlie
popular majority is less than that which Delaware, with but three votes, gives for the
opposing candidate. The present system gives immense power to majorities, however
small, in the great States, and disfranchises the minority^, however near it rises toward
the majority. Thus the State of New York outside the city may give a majority one
way, and tlie overwhelming vote of the city, not the purest and most authentic, may
reverse it, and carry, not only the force that pi'operly belongs to the city, but the en-
tire State, leaving to the rest of the State, to the great inland cities, to the rich rural
districts, to the prosperous and euterprisingcouimunities, from the Hudson to the great
lakes, no voice in the election, for which the heterogeneous and often the corrupt
masses of the city speak, not for itself alone, but for the State. By the system proposed,
the minority in each State will be represented, and a great State, divided nearly
equally, will have no greater preponderance than a small State united upon one candi-
date. The greater fairness of this, its nearer approximation to the expression of the
popular will, need not be illustrated, certainly cannot be better illustrated than it is
in the report of the committee from which I copy:

"An examination of the working of the electoral college for the last fifty years will
prove beyond all question that in a number of cases the will of the majority has been
completely defeated ; that if the majority is represented in the result of a presidential
election it is quite as much the result of accident as of the natural working of the
machinery ; that the final result produced by the electoral machinery has not within
fifty years approached as near as within 10 per cent, of being a true representation of
the w'ill of tlie people as expressed in their votes, and in a number of instances has
departed from it over :50 per cent.

"The following statement of the result in the different presidential elections from
1872 back to 1844 will establish the truth of what we have said :

" In 1872 General Grant received 55 per cent, of the votes of the people; in the elect-
oral college he received 81 per cent.

" In 1868 General Grant received 52 per cent, of the popular vote, and 73 percent, of
the electoral vote.

" In 1864 Mr. Lincoln received 55 per cent, of the popular vote, and 91 per cent, of
the electoral vote.

" In 1860 Mr. Lincoln received only 40 per cent, of the popular vote : he received 59
per cent, of the electoral vote.

" In 18.56 Mr. Buchanan received only 45 per cent, of the popular vote ; he received
59 per cent, of the electoral vote.

"In this election Fillmore received 25 per cent, of the popular vote, and only 2 jtei
cent, of the electoral vote; but fourteen of his friends were elected to Congress.

" In 1852 Pierce received 51 per cent, of the poj)ular vote, and 85 per cent, of the elect-
oral vote.

" In 1848 General Taylor received 47 per cent, of the popular vote, and 56 per cent,
of the electoral vote. At this election Mr. Van Buren received about 10 per cent, of
the popular vote, and received no electoral vote ; but three of his friends were elected
to the House of Representatives.

" In 1844 Mr. Polk received not quite 50 per cent, of the popular vote. He received
62 per cent, of the electoral vote.

" To illustrate the operation of the district system, we will consider the comparative

PROCEEDINGS AND DEBATES IN CONGRESS. 443

results of the elections for President and for members of Congress, iu the four States
of Pouusylvauia, Ohio, Indiana, and Illinois, from 1860 to 1872.

" These States voted solidly for Mr. Lincoln in 1860, casting 74 electoral votes. At
the same election they returned 66 members of Congress, of whom 24 were democrats.

''In 1864 the same States cast 76 electoral votes for Mr. Lincoln again, and elected
the same year G8 members of Congress, of whom 16 were democrats.

" In 1868 the same States threw 76 electoral votes solidly for General Grant, and
elected 68 members of Congress, of whom 22 were democrats.

" In 1872 the same States again voted solidly, giving 85 electoral votes to General
Grant, and elected 77 members of Congress, of whom 23 were democrats.

" In these four States the democratic strength, as compared with the republican, has
been about as 9 to 10, but under the operation of the general-ticket system they had
been wholly unrepresented in the electoral college ; but in the House of Representa-
tives, under the district system, they have had an average of nearly one-third of the
members.

" Take the State of New York alone for the same period. In 1860 New York cast
her 35 electoral votes solidly for Mr. Lincoln. At the same time she elected 33 mem-
bers of Congress, of whom 9 were democrats. In 1864 she again cast her 33 electoral
votes solidly for Mr. Lincoln, and at the same time elected 31 members of Congress, of
whom 11 were democrats. In 1868 she cast her 33 electoral votes solidly for Mr. Sey-
mour. The State was carried for Mr. Seymour by his overwhelming majority in the
city of New York, about the character of which grave charges were made, but of
which the committee expresses no opinion; but tlie rest of the State, unaliected in
their districts by this large majority in the city, returned 18 out of the 31 members of
Congress, who were opposed to Mr. Seymour, thus showing conclusively how the voice
of the people of New York outside of the city had been stilled in the presidential elec-
tion by the city majority, operating through the general-ticket system. In 1872 New
York cast her 35 electoral votes solidly for General Grant, at the same time electing
33 members of Congress, of whom 9 were democrats."

The frauds which iu 1844 carried the 36 electoral votes of New York for Polk, under
the present system, would, under the amendments proposed, have carried only the 4
votes in the city, and the inducement to the frauds would have been wanting, for the
lionest vote of the city was for Polk, and the frauds were perpetrated only to over-
balance the suftVage of the interior. Thus the purity of the election would be greatly
promoted by the change. The motive to fraud would be much diminished, and the
effect of fraud would be much lessened.

The danger of a disputed election for President, in a State whose electoral vote
would decide the contest, is a most serious one. There is no tribunal for the verifica-
tion of the votes, and although the election may be carried, notoriously, by fraud or
by violence, the electoral votes must be returned and counted. The fraud or the vio-
lence may be punished, but the wrong that they have committed remains, and there
is no redress lor it. And the appointment of the electors being left entirely with the
legislatures of the States, there wouhl be no mode or power of appointment, if a State
legislature should repeal the law directing the manner of the election. The Federal
Government has no power to perpetuate the executive authority. In the exciting elec-
tion which resulted in the choice of Jefferson by the House of Representatives, the
legislature of Maryland was federal, and it was supposed that the popular vote would
be for Jefferson. It was seriously contemplated that the legislature should repeal the
law under which the electors were chosen by the people, and should choose them by
the legislature; and this on the avowed ground that it was necessary to defeat the
candidate whom it was supposed that the majority of the people preferred. This was
recommended on no less authority than that Charles of Carroll, of CarroUton. When
a man so pure, so patriotic, and so conservative could see his way clear to make such
a recommendation, what might be apprehended from heated partisans and selfish
aspirants for i>olitical power. If that suggestion had been carried out, and the 10
electoral votes of Maryland had been given wholly for Adams, he would have been
elected. They were divided equally l)etween the two, each receiving 5. Jefferson's
total vote was 73, Adams's 65. Had all the votes of Maryland been given for Adams,
his total would have swelled to 70, and Jeftersou's would have shrunk to 68 ; and the
election would have been strictly and unquestionably legal and constitutional. The
legislature of Maryland would have executed no power but that which the Constitu-
tion clearly conferred upon it, and confers upon it still, and there was no authority to
review its doings. Such a proposition, although not carried to the extent of a jirece-
dent, yet was urged on such authoriiy as gives to it almost the weight of a precedent.

And be that as it may, it might have been done then, and it might be done now;
and those who resisted it would place themselves against the law, and expose them-
selves to the penalties of the law. A President thus elected, however he might lack
the moral support which should underlie his great office, would be " every inch " a
President, would command the Army and the Navy, and must have the solemn judg-
ment of the Supreme Court.

444 COUNTING THE ELECTORAL VOTE.

From all the difficulties of the existing system, from all the evils and the dangers
■which experience has developed in it, the proposed amendment appears to ofler a mode
of relief; and while it commends itself to all the States, I think that it is especially
desirable to those, if any there still be, ■who apprehend the danger to the smaller mem-
bers of the Union, from the ambition or the aggression of the larger.

Eepreseutiug, in part, one of the smaller States, Imt one of those -which brought its
original sovereignty into the compact, and which required no vote of the other States
for admission into the Government, -which she had done her full share to establish, I
give my cordial assent to this important change, which is so clearly for the general
good ; and which, by dividing all the States into single electoral districts, yet preserv-
ing to each the equal votes that she has enjoyed, in recognition of her equal member-
ship in the Union, breaks down the unhealthy if not dangerous j)repouderauce that
the larger States possess.

Further consideration of the joint resolution was postjioued until January 27.

No further action was taken.

REPEAL OF THE TWENTY-SECOND JOINT RULE.

In Senate, February 4, 1875.

The Senate proceeded to consider the following resolution submitted by Mr. Morton
on the 27th of January, 1874 :

" Ilesolved by the Senate, {the House of Beprcsentatives eoncurr'mg,) That the twenty-
second joint rule of the two houses be, and the same is hereby, repealed."

Mr. Morton. Mr. President, the abolition of this rule of course would follow as a
result of the constitutional amendment which I had the honor to report from the Com-
mittee on Privileges and Elections ; but I am satisfied that, from the want of time and
other causes, that amendment cannot be passed and adopted before the next presiden-
tial election ; and as, in my opinion, the existence of this rule imperils the peace of
the nation and subjects the Government to great danger, I think it is our duty to re-
lieal the rule or to so amend it at once as to avoid this approaching danger. After
consulting with a number of Senators in regard to this matter, I ask leave to submit
this as a substitute for the resolution already ottered, which is to amend the rule in-
stead of repealing it :

" That the twenty-second joint rule of the two houses be so amended that no ob-
jection to the reception and counting of any electoral vote or votes from any State
shall be valid unless such objection is sustained by the affirmative votes of the two
houses."

Under the rule as it now exists, when the votes for President and Vice-President are
counted, any formal objection, no matter how trifling or insuthcient or even contempt-
ible in its character, has the effect to separate the two houses, and they are to vote
upon this objection, and unless both houses concur in voting it down the electoral vote
of that State is lost. In that way, by the dissent of either house, any State may be
disfranchised ; the vote of the State of New York or of Indiana may be rejected by
the most foolish and trivial objection unless both houses shall concur in voting down
that objection. The vote of every State may be rejected in this way. It requires no
argument, therefore, to prove the absurdity, the unconstitutionality, and the danger
of this rule; and, as I have had the honor to argue this question before the Senate on
several occasions, I think it is not necessary to say anything further now.

The Presiding Officer. The question is on the amendment proposed by the Sena-
tor from Indiana.

Mr. Bayard. I do not know, Mr. President, that there is any rule beyond that of
convenience and comity between members of the Senate that should control the dis-
position of this measure. At the same time I am not aware that any reasons have
been urged, any explanation given, by the Senator from Indiana for the rescission of this
joint rule or for its amendment as he has proposed. Without having given the examina-
tion or consideration to this subject that its importance demands, yet I have for a long
time been of opinion that the constitutionality of this rule altogether may well be
doubted. I do not think that anywhere in the Constitution can be found language
in any degree constituting the Senate of the United States a factor or an actor in the
election of the President of the United States. The office was in the design of the
Constitution to be controlled by an electoral college directly voted for by the people.
The practical workings of our Government have made the office in effect subject to direct
popular election. The electoral college has been a mere screen, which did not con-
ceal in any way from the people the individual for whom their votes were cast, and
in substance therefore and practical eftect the President and Vice-President of the
United States have been elected directly by popular vote. Although the form of the
electoral college is still maintained, it is nevertheless but a thin veil between the
jjopular wish and the result which follows its expression. Also, I may say, failing to
receive a majority of all the votes cast as required by the Constitution, the House of
Representatives, the j)opular branch of Congress, is authorized and directed immedi-

PROCEEDINGS AND DEBATES IN CONGRESS. 445

ately to proceed to ballot for a President and for a Vice-President. But will any
Senator show me any clanse of the Constitution, any implication which can be argued
from any clanse of the Constitntion, which gives this Senate one particle of laVfeil
pou'er in controlling the choice of a President or a Vice-President of the Uuited
States ?

This joint rule was passed in 18G5. There is much to be said in criticism of it inde-
pendently of the graver objection which I have sought to state, and to which, it
seems to me, it is obviously open. The language of the Constitution providing for the
office of President of the United States and vesting in him the executive power is con-
tained in the first section of the second article. A portion of that article, what may
be termed the third clause of the first section, has been superseded and annulled by
the twelfth amendment, but a portion of the section still remains. It is 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 Representatives to
which the State may be entitled in the Congress; but no Senator or l\ei)ri'sentative,
or person holding an office of trust or profit under the United States, shall be ap-
pointed an elector."

The twelfth article, superseding the remaining clause of that section, provides:

" 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 dis-
tinct 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 cer-
tify, and transmit sealed to the seat of the Government of the United States, directed
to the President of the Senate. The President of tlie 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 ap-
pointed ; and if no person have such majority, then from the persons having the high-
est 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 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. And if the House of Representatives shall not choose a President whenever
the right of choice shall devolve upon them, before the 4th day of March next follow-
ing, then the Vice-President shall act as President, as in the case of the death or other
constitutional disability of the President. The person having the greatest number of
votes as Vice-President shall be the Vice-President, if such number be a majority of
tlie 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 quo-
rum 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 consti-
tutionallv ineligible to the office of President shall be eligible to that of Vice-President
of the United States."

» Now, Mr. President, this joint rule is the rale under which the electoral votes have
been counted since February, 1865, including the election of Mr. Lincoln, the election
of the present President of the United States in 186S-'69, and again in 1872-73. I con-
fess that I do not see where the power can possibly be found which is assumed by the
joint rule, either as it now stands or as it is proposed to be amended, giving the two
houses of Congress right to say whether votes shall be counted or not counted. The
Constitution declares that the electors of the States, chosen in such manner as the
people in those States shall see fit to direct by law, shall have their certificates of elec-
tion signed and certified hi/ themselves ; and when they have been so signed and certified
shall then be sealed and transmitted to certain officials of the Federal Government.
The duty of the President of the Senate is simply ministerial. He is not vested with
discretionary or judicial functions. There is no discretion whatever vested in him.
The language of the Constitution is simply mandatory, that he " shall," in the pres-
ence of the Senate and the House of Representatives, open the certificates. He cannot
even count them. He cannot even insjiect them, except in the incidental and casual
manner that is implied by the fact that his hand shall open the sealed envelope which
contains the list of the electoral vote. Then the votes " shall be counted " in the pres-
ence of the two houses.

Mr. MoRTOX. Counted by whom ?

Mr. Bayard. There is no distinct provision as to that. They shall be simply
counted in the presence of the two houses ; but I apprehend from the fact of their
being counted and the result declared that the members of each house are simply wit-
nesses to the count and tally of that vote. That you could not delegate that jjowerto
another body I cannot doubt.

446 COUNTING THE ELECTORAL VOTE.

Mr. AxTHOXY. If the Senator will allow me — I do not wish to ioterrupt him bnt I
wish to have his view on this question, and perhaps he was going on to the point which
I will bring to his attention. Suppose the Vice-President receives two packages, each
purporting to be the electoral vote of a State!

Mr. CONKLING. Being different from each other.

Mr. Anthony. Being different from each other ?

Mr. Bayard. I can understand the great difficulty of dealing with a question of
that kind, and it was in deprecation of the haste with which this question was being
disposed of — called up here, read by the Senator from Indiana, and the question im-
mediately called for in the Senate— that caused me to rise and make the objection I do
to this inconsiderate method of dealing with it. I have been trying since this ques-
tion was suggested by the Senator from Indiana some days ago to find, as well as I
could, some method to escape from these difficulties, such as are suggested by the Sena-
tor from Rhode Island, and the truth is that all my theories of government come just
about to this: that if they are not to be honorably, honestly, and fairly administered,
any laws that you make will be perfectly worthless to procure that justice and cer-
tainty, that proper record of the will of the people, which our scheme of government
was intended to produce. I apprehend that there is no rule which you can frame that
will not be open to defeat by some supposititious case. There cannot be the same vil-
lainy practiced in regard to the electoral votes of the various States of this Union as
are alleged, and I believe truly, to have been practiced in regard to the returns before
the returning board in the State of Louisiana, where I have seen the statement made
that advantage was taken of the adjournment of the board for a public holiday by the
clerks who were the custodians of those returns to unseal the packages, to forge false
returns, to seal them up, and then have them counted by this returning board. What
law can we ever have to meet such atrocities as that, should such a class of men ever
be admitted in sufficient numbers in the Senate and in the Congress of the United
States lo do such acts as are alleged, and I believe truly, to have been committed by
the returning board of Louisiana? There is no cure for that except a public opinioii
that shall make it impossible for a man to hold public station without possessing those
private virtues ujion which society must depend for its existence. You may carry a
case to the Supreme Court of the United States, you may carry it to any tribunal you
choose, you may invest your judges with every responsibility that penalty can secure,
and if they be not honest and honorable men your laws will be mockeries, and their
decisions will be simply cunning and corrupt evasions of jmblic justice.

Mr. Anthony. If the Senator will allow me, perhaps I did not make myself under-
stood. I wish his judgment upon this question. I understand him to say that the
Vice-President is simply a ministerial officer; that he has simply to perform a specific
duty prescribed by the Constitution in receiving the votes and in opening them and
banding them to the tellers to be counted. Suppose the Vice-President receives two
packages, each purporting to contain the electoral vote of the State of Louisiana, for
instance, how is he to decide which one he will place before the two houses ?

Mr. Thurmax. He must place them both.

Mr. Sherman. Then who decides ?

Mr. Anthony. Yes ; who is then to decide ?

Mr. Thueman. The houses.

Mr. Anthony. Not if the rule is repealed.

Mr. Bayard. I apprehend that all the votes which are received must be counted,
and I do not suppose that he can be expected to know what they are, except from the
superscription of the sealed envelope containing them, until they shall have beeu
opened.

Mr. Anthony. Then, if I understand the Senator aright, the Vice-President is to
deliver two, three, four packages, each purporting to contain the electoral vote of a
State ?

Mr. Bayard. Let me see what the Constitution says on the subject. I do not think
it is sufficiently clear and satisfactory on that point. It jirovides for the meeting of
the electors in their respective States. It provides for a vote by them by ballot for
President and Vice-President ; and after that vote is taken in distinct ballots for the
President and the Vice-President, it provides that they, the electors, shall make dis-
tinct lists of all persons voted for as President and of all persons voted for as Vice-
President, and the number of votes for each. It provides that the electors in the sev-
eral States shall themselves make up these lists and communicate the result, certified
and signed by them, and transmit it sealed to the seat of the Government of the United
States, directed to the President of the Senate. Then it provides that these sealed
papers, which have been directed to the President of the Senate, (and as we all know
are by special messengers placed in his hands and in his custody,) shall on a certain
day, in the presence of the two houses of Congress, be opened by him, and the votes
shall then be counted. As a matter of fact the only knowledge that the Vice-Presi-
dent of the United States can have of the contents of those envelopes must be derived
from the count on the day when he is instructed and compelled to open them in the

PROCEEDINGS AND DEBATES IN CONGRESS. 447

presence of both houses. I do not believe that there is any discretion given to him to
open one package and not another pacliage ; but if they come to his hands purporting
to be the certiticates, signed and sealed by the electors in the various States, he is to
open, in the presence of the two houses, all such papers which come to him witli the
import of verity usual to such papers.

Mr. Frelixghuysex. I desire to ask the Senator from Delaware -whether he has in
his investigation of this subject examined to see what the iiractice was before the
adoption of the rule in 18135 ; whether prior to that time, on a question arising as to
the count of votes, it required the concurrence of both houses to admit the vote, or
whether the presumption was in favor of the votes, and it required both houses to
reject them ?

Mr. Bayard. There never was a question of contest before, as I am informed.

Mr. MoRTOX. I will state to the Senator that in IHoT, before the adoption of this
rule, when the votes were counted, objection was made by a member of the Senate to
receiving the vote of Wisconsin, because the votes of the electors of that State had
not been cast on the day fixed by law, the Constitution requiring that the votes should
be cast in all the States on the same day, and there being an act of Congress made in
pursuance of that provision. The objection was made that the vote of the electors
of Wisconsin had not been cast on that day, but on the next day. Mr. Mason, who
was the President of the Senate, decided that the objection was not iu order, that
nothing was in order but to count the vote. He refused to entertain the motion, and
the vote was counted.

Mr. Bayard. The case stated by the Senator from Indiana does not touch the ques-
tion raised by my friend from Rhode Island. That Senator asked me, where two sets
of electoral votes, two certihcates from different sets of alleged electors, came from the
same State, which of the two should be counted. I said to tlie Senator from New Jer-
sey that I knew of no such case until the casting of the last presidential vote. I
think the experience of 1872 was the iirst in the history of this country, and no case
ever arose in the presidential election where there was what may be termed conflict-
ing votes or the attempt to have two sets of votes from the same State for the same
office.

Mr. President, it was not my object to discuss this very grave question, for I have
not had the opportunity, with the various measures which have been pressing on the
attention of this body, properly to prepare myself to discuss it. I am fully aware,
however, that the cause of difficulties in regard to the election of the President of the
United States, as the election of any other officer under the Government of the United
States, is the deplorably low tone into which public and political morals have fallen.
Unless there is to be a higher plane of political morality and action in this country,
you may make your rules as often as you please, you may change and repeal them as
often as you please, but you will hud that fraud will defeat constantly your efforts to
repress it. I heard the Senator fi'om Indiana the other day speak of the manner in
which the votes have hitherto been counted in the presence of the various Vice-Presi-
dents of this country. The last that he named, I think, was Mr. Breckinridge, and he
bestowed praise upon those high officials because the vote had been honestly counted.
When the time shall come that a Vice-President of this country, or the Senate or the
House of Representatives of this country, shall, from any passion moving them, act
otherwise than honestly, of what use are your laws or your safeguards of statutes and
Constitution? They will be of no value, and the Government will have failed, and
another will take its place, because in all human experience there is one thing that will
be necessary, no matter what form of government may exist, and that is, that honesty
and truth shall be its foundation-stone and enter into the administration of its affairs.

I would prefer that this matter should ])e further considered and that time should
be given for its better examination before we adopt this proposition of the Senator
from Indiana. He himself has changed his views. He first proposed, a few days ago,
to repeal the whole joint rule. Now he simply proposes to modify it. If in the mind of a
Senator who has given so much attention to this subject as the Senator from Indiana
there can be this fluctuation of opinion in a few days, sui'ely it would be wise and
right to allow those of us who have given less attention, and perhaps are less compe-
tent to consider these points than himself, some opportunity to see which of his two
propositions is the better one. He proposed at o;ae time the outright repeal of the
whole rule. He now proposes a mere modification. I desire time and opportunity to
study as well as I may the effect of the Senator's various propositions. I cannot be-
lieve that such propositions, touching so grave a matter as this, are produced for tem-
porary and party effect. If they are, then they are very short-sighted. We all know
the condition of parties at the time this rule was fi'amed. We also know well the
present condition of parties and what will be their condition in the Forty-fourth Con-
gress, the Congress to whom will be committed the count of the electoral vote in 1877,
on the 20th day of February. I should not only think it unworthy but I should think
it extremely unwise to attempt to frame a rule in regard to so difficult a subject as
this, based upon the accidental condition and relation of the two great political par-

448 COUNTING TIIK P^LECTORAL VOTE.

ties of the country. Depend upon it, sir, schemes founded on such theories will only
return to plague the inventor and disappoint those who originate them for suoli very
uncertain and, I must say, unworthy ends. I do not say for an instant that has been
done in the present case ; I have no right to say it ; but I wish to say that 1 desire time
to consider this A'ery difficult question, and if my vote can obtain it it sliall, to con-
sider the true reLation of this rule to the subject and whether it is a transgression of
those limited powers which the Constitution of the United States has vested in the
Senate especially and in both liouses, in regard to counting and declaring the result of
the election for President and Vice-President of the United States. I hope the Senator
who has this measure in charge will permit it to lie over for a reasonable time. He
has shown to-day that he has at his back in the Chamber a majority, who will permit
this measure to be considered whenever he desires. Having then this secured, I sug-
gest, and I shall move if this debate is not to be continued, that the present measure
lie over.

Mr. Thurmax. Docs the Senator make a motion ?

Mr. Bay^ujd. I shall not make the motion myself, if the present debate is to be
continued. If it is not to be continued, I shall make the motion myself that the con-
sideration of this resolution shall be postponed for at least one week ; and I think it
had better be sent to some committee meanwhile.

Mr. TiiURMAN. I ask that the resolution and the substitute may be read.

The Presiding Officer. The Secretary will report the resolution and the substi-
tute.

The Chief Clerk read the resolution and the amendment.

Mr. TiiURMAX. That resolution was ottered by the Senator from Indiana, and the
substitute is ottered by him. Neither the one nor the other has received the consid-
eration of any committee of this body. I am glad that the Senator has ott'ered the
substitute, for the original resolution seems to me to be palpably wrong. Should the
original resolution be adopted, we would have no rule whatsoever upon the subject ;
we would have nothing but the provisions in the Constitution, and those provisions,
as we know from opinions expressed on this floor, receive in the minds of ditt'erent
Senators very diiferent interpretations.

In the carefully-prepared speech of the Senator from Indiana delivered at this ses-
sion on his proposed constitutional amendment, he asserted his opinion to be, if I un-
derstood him correctly, that the decision of the question who has received the votes of
a State for President and Vice-President rests with the President of the Senate ; that
the members of the two houses who are present are but witnesses of a count to be
made by the President of the Senate ; thus vesting in that officer, and he perhaps a
candidate himself, the power to determine who is elected the Chief Magistrate of this
Republic. I expressed on that occasion my dissent from that interpretation of the
Constitution. I fancy that a large majority of the Senate do not concur in that view
of the Constitution. I have no idea that a maiority of the Senate agree with the Sen-
ator from Indiana in interpreting the Constitution so as to require that the Vice-Pres-
ident shall count and the Vice-President shall be the judge of all objections that may
be taken to the validity of any return. That has not been the interpretation i^laced
on the Constitution in the history of the country, otherwise the twenty-second joint
rule never would have had an existence. The interpretation placed upon the Consti-
tution has been that as it is a duty devolved upon the Government to count the votes
for President and Vice-President, and there being no express provision in the Consti-
tution who shall count them, but an implied provision that they are to be counted by
the two houses, the matter is remitted to the legislative department of the Govern-
ment to provide by law for that count, consistent always with the express provision
in the Constitution that the count shall be made in the presence of the two houses
and the result declared. Therefore it would be an insuperable objection to the reso-
lution first introduced by the Senator from Indiana that it would remove all legisla-
tion upon the subject from the books ; that there would be nothing at all to determine
how the votes should be eouuted ; that we would proceed to the Hall of the House of
Eepresentatives in February, 1877, without any rule whatsoever or any statute what-
soever to prescribe what should be done after we got into that assemblj'. That would
never do, Mr. President.

But now the Senator proposes to change the rule and to provide that no vote shall
he rejected unless by the concurrent judgment of both houses, thus quite reversing
the rule. The rule now being that no vote shall be counted unless both houses vote
to count it w^here there is an objection made, he proposes to reverse that and say that
no vote shall be rejected unless both houses concur in its rejection. I have on a for-
mer occasion, I have more than once, I believe, declared my opinion that that ought
to be the rule, that every return oiight to be considered as prima facie correct, and
ought to be counted unless both houses concur in rejecting it. I am aware that there
is a difficulty in a case that may arise, and it is a difficulty that might arise under the
X)resent rule ton, although the result would be diiferent. For instance, take such a
case as occurred at the last count — the case of Louisiana — where two sets of returns,

PROCEEDINGS AND DEBATES IN CONGRESS. 440

came up, each of thom purportiug to be the returns of the votes cast by the electoi-s
for President and Vice-President in that State. There manifestly the question was
Tvho were the electors. They could not all have been electors. Both bodies could not
have been electors. One body were electors and the other body were not electors.
The question therefore really to be decided was which one of those bodies was the
electoral college for President and Vice-President in that State. Under our rule, when
one of those returns was presented and objection made, unless both houses concurred,
the vote would be rejected. When the other retiirn was presented, unless both houses
concurred, it was to be rejected. Suppose the rule had been changed and the substi-
tute now suggested had been adopted ; a return is presented, an objection is made to
it, and thereupon the houses vote upon it separately and one house votes to reject it
and the other house votes not to reject ; then, according to the rule as now submitted
by the Senator from Indiana, in a case of that kind that return would have to be
counted. Then suppose the next moment the other return is jireseuted, the return of
the election of the other body of electors, as was the case with Louisiaiui at the last
count, and then one of the houses votes that that shall be rejected and the other votes
that it shall be received ; then you would have to count both returns under that rule
as the substitute now stands. Yon see, therefore, that the substitute will not do just
as it is, but must go further and provide for such a case as that, or at least leave it to
be decided when the case shall arise.

This is not an impossible case at all. It was the case in regard to Louisiana at the
last count, as I have said. There were returns from Louisiana which purported to be
the votes of the electors who cast the electoral vote of that State for Greeley. There
were other returns that purported to bo the returns of electors casting the vote of that
State for Grant. Under this modification suggested by the Senator from Indiana,
without any provision for such a case, if you take it literally, if the two houses had
been of different politics, as they will be at the next count, the resiilt would have been
that the vote of that State would be counted twice aud would be nullified, for one re-
turn would be for one candidate and the other return would be for another. That
shows that the substitute offered by the Senator from Indiana, although in my judg-
ment right in principle, that both houses ought to concur in rejecting a return before
it can be rejected, requires some modification that shall apply to a case where there
are two returns from a State. That is certainly necessary or we get into this difficulty
that I suggest.

It has further been asked here by the Senator from Rhode Island, what are you to
do when there come up two returns from a State ? He seemed to think, by the ques-
tion he put to the Senator from Delaware, that in^fi case of that sort it was the duty of
the President of the Senate to determine which return he would lay before the two
houses. That certainly is an impossibility. He cannot have looked at the law, or he
would never have asked such a question as that. What does the law require ? Sec-
tion 2 of the act of 1792, on the subject of the election of President and Vice-President,
provides —

"That the electors shall meet and give their votes on the said first Wednesday in
December, at such place in each State as shall be directed by the legislature thereof ;
and the electors in each State shall make and sign three 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," &c.

Then the third section provides —

"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, and 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."

You see, then, that the evidence that the persons voting are electors of President
and Vice-President is to be annexed to their votes and of course sealed up with them,
and the President of the Senate, when the returns come to him, has no knowledge in
the world, can have no knowledge whether retui-n A or return B is the correct return
from that State, the return of the votes of the legal electors of that State. He cannot
know anything about it. He gets two packages. Upon the back of each one of them
is this certificate: "This is the vote of the electors of President and Vice-President of
the State of Rhode Island." There is nothing to show that it is except that bare in-
dorsement, aud tJie indorsement is as regular upon the one as it is upon the other. It
can never be found out, then, which is the true return until you open them and see
whether the evidence of the title of these electors is contained in the return, to wit,
the certificate of the executive of the State, under the great seal of the State, that they
are the electors. Therefore it is not for the President of the Senate to decide this ques-
tion in the first instance at all. He must open the returns, all that come to him in
that way. If there are two from one State, he iuust open them both; if there are
three, he must open them all, for one may be a forgery or two may be forgeries, and

450 COUNTING THE ELECTORAL VOTE.

the third one may be the hiwful and the only lawful return. So, then, you see that
the question asked by the Senator from Rhode Island in no wise tends to prove that any
judicial power over this subject is vested in the President of the Senate.

Now, while in my judgment no vote that is regular on its face and that has been
given i)y the true electors, that is to say no certificate of these electors which is sub-
stantially correct, ought to be rejected unless both houses concur in the validity of the
objection to it, and therefore the main purpose of the substitute offered by the Senator
from Indiana is correct, yet the substitute is defective for the reason I have already
stated. It does not provide for a case in which two returns may come from the same
State, as has been the case heretofore. Some provision ought to be made for that
case. It ought to be provided that where that is the case the houses shall decide be-
tween those returns, and how they shall decide, and such a provision as that requires
great care in drafting it.

But, sir, the defect that has been pointed out is not the only defect of the twenty-
second joint rule. I appeal to the experience of every Senator who has ever been at
the count of a presidential vote, and especially to every Senator who was present at
the last count that was made, and I ask him whether he did not fiud himself embar-
rassed beyond measure by the provision in this rule that there should be no debate
in either House? The rule expressly provides that. It provides for deciding upon
the returns. It provides that the Senate is to retire and decide for itself ; the House
of Representatives is to decide for itself; they are to meet together, and the result is
to be announced, and there shall be no debate in either house. Now, I put it to the
Senate the other day, and I beg leave to remind Senators again of the fact, that at the
last count of the votes the question of the reception of a return from Arkansas depended
upon the question whether the certificate of the governor that the persons voting were
the electors of that State, was under the great seal of the State or not. It was said
that it was not the great seal, but was the seal of the secretary of state alone, and one
of the Senators from that State at first thought that the State had no other seal than
that, but it turned out upon an examination that the State had a great seal; and yet
no Senator was allowed to rise in his place and state to the Senate or to offer any res-
olution embodying the statement of the fact that that State had a great seal. The
very question upon which the reception of the returns depended was to be decided
without knowledge of the fact, and the only knowledge that could be communicated
of it was by conversation with each other on this floor before the vote was taken.
That ought not to be the case.

Take again the case of the vote from Georgia, where there were votes for Greeley
cast after he died. The House of Representatives decided that they should not be
counted ; the Senate decided that they should be counted. There was a great ques-
tion of law. It was not a question whether or not you could elect a dead man ; that
was not the question, as they seem to have considered in the House ; but the question
was whether votes cast for a man who was not in esse at the time, but honestly cast for
him, supposing him to be alive, were not to be counted upon the inquiry whether any
other candidate had a majority of all the votes cast. That was the question. Nobody
pretended that you could elect a dead man to office, but it was a very serious question
indeed to be considered whether you could reject votes that had been cast for him,
votes honestly cast for him in the belief that he was in being, and declare elected a
man who had not received a majority of all the votes cast for the office. And yet upon
that great question, upon which I admit much may be said, and which required the
most thorough investigation, we were compelled to decide without one single word of
argument or reference to anything whatsoever that might enlighten us. Why, sir, it
was monstrous.

The truth about it is, that never in my public life (not very great, it is true, but yet
extending over a very considerable portion of time) have I seen anything so unsatis-
factory, so unreasonable, as was the count of the votes for Pi-esident and Vice-President
cast at the last election. I concur in the remark made by the Senator from Indiana
the other day, that it is well for the peace of this country that General Grant had so
large a majority that it did not matter whether the contested votes were counted or
not, for there might have been a very different state of things if the election had turned
upon the objections that were made.

There is another case to be provided for and to be considered. But at the same time
that I say this provision that there shall be no debate is a monstrous provision, yet it
would not do to have unlimited debate. That certainly would not do, for too much time
might be occupied, and would probably be occupied ; a factious minority might almost
speak out the whole time up to the 4th of March. But this rule will never be worth
anything, but an injury and a wrong, until some provision is made that shall allow a
restricted debate upon this great question ; and therefore I had hoped that when the
Senator from Indiana turned his attention to it, he would provide for something of
this sort, so as to allow a reasonable debate upon the objections that were made to a
return.

There are other considerations, Mr. President, that I would urge against the adoj)-

PROCEEDINGS AND DEBATES IN CONGRESS. 451

tiou of the substitute as it uow is without auy further ameudmont ; but it is my pur-
jiose to move that this resohition and the substitute be referred to the Committee on
Privileges and Elections, in order that they may mature a rule which shall meet the
exigencies of the case, that they may mature it not here in open Senate, which is no
place cftrefully to consider auy such thing, but that they may mature it in the privacy
of their committee-room, conferring with each other, and choosing the most apt and
proper language to express their views. This is not a subject to be disposed of in
open Senate in this way. An open Senate is not the place to frame such a rule. It re-
quires great care in the use of language and great reflection upon the provisions that
shall be inserted in the rule. That can only be done in the privacy of a committee-
room or of a library or a closet ; it cannot be done here. Therefore while I favor the
ado^ition of the idea contained in the substitute, yet as I feel that it is imperfect, that
it ought to go further, that further provisions are absolutely necessary, and I have
perfect conlidence that the Committee on Privileges and Elections can in a short time
frame a proper rule, and believe that when it shall have framed it it will meet with
no serious opposition but can pass, and pass both houses at the present session, I move
to refer the resolution and substitute to the Committee on Privileges and Elections.

Mr. Frelixghuysen. Mr. President, the different views which have been expressed
on this subject show the importance of its present consideration. In fact, the difficulty
which arose at the count of the votes of the last election should satisfy every one that
it is indispensable that Congress take some action on this subject. I agree with the
Senator from Delaware that wo should take uo partisan action — that we should so
build as to secure the best interest of the nation for the future. And that we are not
influenced by partisan motives, is evinced by the fact that the proposition coming from
the Senator from Indiana meets the qualified approval of the Senator from Ohio, and
I think I in the main agree with the view that Senator has taken. But in the expression
of opinion on a subject of this nature where partisan considerations have no place,
every one should hold himself at liberty to modify or change his views as more light is
cast on the subject.

I can see that in determining the electoral vote for President a great many questions
may arise. A State may claim a larger rciircsentation than has been assigned her and
may appoint more electors than she is entitled to, and all theirvotes may be returned.
A State may vote for persons as President and Vice-President who both reside in the
same State ; a State may send here two sets of votes ; a State may send up a vote for
persons who are not, in the language of the Constitution, " natural-born citizens."

Who is to decide these questions? Is the presiding officer of the Senate, who may
be a mere member of this body temporarily presiding and who has not been elected by
the people? Is he because by the Constitution he is made the medium of communi-
cating the vot*^ to the Senate and to the House to have the power to receive and count
these votes, and is there no power to control him? His duty is ended, sir, so far as tho
Constitution imposes it, when, "in the presence of the Senate and Hotiseof Re]>resent-
atives, he opens the certittcates." That is all he is authorized to do by the twelfth
amendment to the Constitution. Who then is to decide the important questions I have
suggested as i>ossible ? The Constitution does not expressly say. Bnt what is the im-
plication? The Constitution says that the votes shall then in the presence of the
Senate and House of Representatives be counted. The language of the Constitution
is that when the votes are so counted, " the person having the greatest number of votes
for President shall be the President, if siuh number be a majority of the whole num-
ber of electors appointed."

Now it is very certain that the presiding officer of the Senate, or the Senate and
House of Representatives, must decide the questions that arise. One or the other must
do it. The Senator from Delaware said he understood that the Senate and House of
Representatives were present as mere witnesses, and it would hence follow there is no
one authorized to decide these questions. Mr. President, that cannot be. The very
counting or not counting of the vote is a decision, and is the only decision that there
is to be made. So when the Constitution says the vote shall be counted, it says that a
decision shall be made by some one, and it must be made either by the presiding offi-
cer of the Senate or by the Senate and House, who are required to be i)resent. The
Senator from Delaware very properly says that the j)residing officer of the Senate has
a mere ministerial duty to perform.

Mr. Bayard. I ask the Senator from New Jersey does he consider that there is any
discretion vested in the two houses of Congress, or either of them, to say that the vote
shall not be counted ; or does he not consider the language of the Constitution plain
and mandatory that " the votes shall then be counteil ? " Does he think that either
house, or both houses, could prevent the counting of the votes, or if they did, would it
not be an act of revolution ?

Mr. Frelingiiuysen. Mr. President, if a State should send as votes a larger number
than it was entitled to, or if it should send persons voted for as President and Vice-
President who both resided in the same State, it would be a direct violation of the
Constitution and an act of revolution for any one to count them. The House and the

452 COUNTING THE ELECTORAL VOTE.

Senate are to determiue what are votes ; that is the very question they are to decide
in Older that the votes may be counted.

Why, sir, are the House and the Senate present ? It is because they represent the
sovereignty of the Government at that most critical moment when the executive
power is to be transmitted, and they are there that the transmissLou may be under
their watchful guardianship.

Mr. President, from the character of the two bodies, from the requirement that they
shall be present, from the necessity that there is for a decisiou at the time, from the
mere ministerial character of the presiding officer, it is clear that the decisiou as to what
are votes and what shall be counted must be made not only in the presence of biit by
the Senate and the House. The power of the presiding officer ceases when he has
performed his ministerial duty of breaking the seal and opening the certificates, as
directed by the Constitution.

Mr. Edmunds. May I ask the Senator whether he means that the two houses are to
act in their separate characters or in some consolidated character as one body ?

Mr. Frelinghuysen. I will answer presently.

Mr. President, from this conclusion that the Senate and House are to decide what
are votes and how they are to be counted, it follows as a matter of coarse that the
■Senate and House of Representatives have a right to adopt a rule regulating their
action in the premises. I had drawn up a rule which, in most respects, corresponds
with that of the Senator from Indiana. I would make the present rale read thus :
" That no vote shall be rejected except by the coucurrent vote of the two houses."

This is reversing the existing rule, which is that no vote shall be counted excepting
by the concurrent vote of both houses in its favor. I had also adopted the idea ex-
pressed by the Senator from Ohio and provided to strike out that clause which directs
that " there shall be no debate in either House when they withdraw for consultation,"
and insert instead —

" That no person shall speak more than twice, or more than ten minutes in all."

In answer to the Senator from Vermont, let me say that I understand that the votes
must be counted in joint convention, the House and Senate being together ; but that
they deliberate separately on any question that may arise.

Mr. Edmunds. That is not an answer to the question.

Mr. Frelinghuysen. I thought it was. The advantages of changing the rule and
making the vote of both houses requisite to reject the vote of a State, rather than
leaving it as it now is, that either house may reject the vote, are these : If you make
the concurrence of both houses necessary to the rejection of a vote, you give a proper
presumption in favor of the validity of the vote of the State.

Mr. Wright. I have a question tliat I beg to submit to the Senator here, exactly in
the line of his argument. He says that he thinks the ameudmeut is proper — without
stating his proposition at length — because of the presumption that there is in favor of
the correctness of the return. Suppose it so occur that there are two returns from the
same State, either by two persons, as in Louisiana, for instance, claiming to be gov-
ernor, and the seal of the State shall be attached to each ; or that they come in such
manner or method as not to conform to the law, and the two houses are unable to
agree ? That is the case that occurred to me, and it presents difficulties.

Mr. Frelinghuysen. Of course when there are two sets of votes coming from the
same State each duly authenticated, if that is possible, there can be no presumption
in favor of the one over the other. That difficulty was presented by the Senator from
Ohio when the Senator from Iowa was not in his seat ; and it seems to me as to tlie
Senator from Ohio that for such a case and for one or two others the rule must make
specific provision. It cannot come under the general terms of the rule we ai'e consid-
ering. Specific provisions being made for such cases, we should require the concur-
rence of both houses to reject the votes sent from the States ; and this we should do,
first, because we thus give proper presumption in favor of the vote of the State ; second,
we thus show due confidence in the integrity of each of the houses ; third, we secure
reasonable, though not absolute, security against clearly unconstitutional votes ; and
lastly — and this is a most important consideration — we adopt a rule under which there
will be much less temptation for the House by a disagreement with the Senate to take
the election from the electoral college and cast it into the House of Representatives.
This I consider a strong reason in favor of changing the rule aud making the concur-
rence of both houses necessary to reject the vote. Even this rule would not remove
entirely the temptation; for the House by not joining the Senate in rejecting improper
votes might so attect the result that no one would have a majority of the whole num-
ber of electors appointed, and thus the election would go to the House. But with the
rule changed, the temptation would not so often occur; and we must have confidence.

Mr. Morton. Mr. President, I believe that no Senator upon this floor advocates the
rule as it now stands. All acknowledge its danger and its absurdity. But the Senator
from Ohio says that the amendment proposed by me may operate badly in a case where
there are two sets of returns; that both returns must be counted unless both houses
.agree in rejecting one set. Now, what provision can you make to meet such a case ?

PROCEEDINGS AND DEBATES IN CONGRESS 453

As the rule now stands, either lioiise can reject the vote of a State. A law cannot be
passed to appropriate a hundred dollars without the coucuri'ent vote of both houses
in the form of a law. Yon cannot pass any law, however trilling, without yon have
the concurrent votes of two houses. The theory of the Constitution of our Govern-
ment is that the judgment of two houses is safer and better than one; therefore we
have two. In France they have only one now, but they are trying to get two. But
we are all agreed upon the fact that a government with two houses in its legislative
department is better than a government with one. As I said before, you cannot pass
any law without the judgment of two houses; but you have now a rule under which
one house can reject the vote of the State of New York and disfranchise live millions
of people and change the result of a presidential election. Such a thing needs only to
be stated in order that it may be universally condemned, it seems to me. The danger
of it cannot be exaggerated.

Now I will take the case of two returns from the same State. They come before the
two houses under the rule as we now propose to amend it. We must presume some-
thing in favor of the honesty and of the integrity of the two houses. I would rather
leave it to the two houses to determine which is the forged and the spurit»us return
than than to leave it to one house. We must presume that in that case it would be
safer to refer the determination of that question, the selection of the true return and
the rejection of the false return, to both houses than to refer it to one house ; and, in
the very case that the Senator puts, how else can you decide it? You cannot make
any specific rule for a case of that kind. Here are two returns. The first is opened
and read. It is objected to. The houses sejjarate and vote upon that question. They
both agree that it is forged, that it is spurious in some form. The next one comes.
That is the true one ; still an objection is made, and the two houses vote. You would
not allow one house to reject both returns because one house may do it now. Take it
as the rule now stands, one house may reject both returns; or, take it as the rule now
stands, one house may reject one return and the other house may reject the other re-
turn, and so the State gets no vote at all. Is it not safer, if this matter is to be referred
to Congress at all, that it shall be made to depend like a law upon the concurrent vote
of both houses instead of leaving it to one house, without debate, without considera-
tion, and without adjonrument, to reject the A^ote of Massachusetts, or New York, or
in fact of all the States ?

Mr. President, see what a fearful temptation is presented to throw the election into
the House of Representatives. I will not presume thei-e is any purpose of that kind
or that any House would do it, but I ask you to notice the fearful temptation. At the
very next election the House will be democratic and the Senate will be republican.
An objection is made to the vote of a State; tlie two houses separate and vote upon
it. The vote of that State may elect a republican candidate for President. By re-
jecting the vote of that State the election will be thrown into the House, and the
House is democratic and will elect a democrat for President. The responsibility of
that action is divided between two hundred and ninety-two men in the House. The
responsibility of each one is comparatively small; there may be something in the
objection, enough of form or enough of substance to make an irresponsible majoi'ity
willing to reject the vote of that State ; and the House, by its own action, against the
vote of the Senate, may reject the vote of that State and take away from that candi-
date enough votes to reduce his vote below a majority of all the electoral votes, and
the result is that the election goes into the House.

Suj)pose, if you jilease, as in the case of Arkansas or in the case of Georgia or in the
case of Louisiana two years ago, as the rule now stands, the two houses being diti'er-
ent in politics, an objection is made ; we come back into the Senate and we honestly
think that the objection is a good one, and we reject the vote of that State. Oar vote
does it. The House takes a different view of it, just as it did in the Arkansas case only
two years ago. They say the objection amounts to nothing. But the House being
democratic and the Sqnate having rejected the vote of a democratic State on a frivo-
lous ground, as the House think, the House nnder excitement — and men are the same at
all times and everywhere — will tlien throw out the vote of the next republican State
upon some frivolous objection. Thus it goes tit for tat until the votes have gone out
and the election goes to the Honse.

That is the operation of the present rule. Can any one fail for a single moment to
see the danger of this and the necessity of changing it ? It is above all party consid-
erations. It is trilling to talk about party, in my opinion, on such a great (luestion as
this. If we are to have a rule at all, if Congress is to interfere, let it be upon the
ground on which a law is passed or a resolution is passed. It reciuires the vote of the
two houses to pass a law, no matter how small or unimportant that law may be. There-
fore let it require the concurrence of the two houses to reject the vote of a State, whether
it is the vote of Nevada, the smallest State in the Union, or of New York, the largest
State in the Union. Every presumption ought to be in favor of receiving the vote of
a State. There should be no technical objection sufficient to throw it out. It is a
great thing to reject the vote of a State. The presumptions ought to be all in favor of

454 COUNTING THE ELECTORAL VOTE.

it, and there sliould be the vote of both houses as an evidence of the importance of
the objection, or else the vote of that State should be received. The temptation is too
great to leave in the pathway of any party, of my own party, of the democratic party,
or of any party that may come after us.

Sometimes an olijection may be made where the hoiises divide in good faith, just as
they did on the Arkansas question. There the two houses divided in good faith.
The Senate rejected the vote of Arkansas; the House received it. Both acted in good
faith. It was unimportant : but suppose the two houses had differed in politics, then
would have come a very different and very grave question ; and suppose the rejection
of the vote of that State should decide the result of the presidential election ? All
can see that it might precipitate the country at once into a civil war.

Now, sir, the ameudmeut which I have offered is only intended or expected to go to
one single danger in the method of electing a President, and that is in regard to the
twenty-second joint rule. Thare is another great danger lying behind all that which
we cannot provide for except by a constitutional amendment. The electors in a State
may be elected by fi-and or by violence, but if they come up here properly certified
there is no power here to examine the vote in the State below. There is no time for
it. There is no opportuuity. It was not the intention that Congress should have
that power. That was placed with the States; and it was the theorj^ that the elec-
tion of President should be left to the States and taken away from Congress. You
cannot provide for that except by amending the Constitution of the United States.
An amendment has been brought forward, but there is no time to act upon it. That
is one of the dangers still left behind which we cannot provide for now ; but so far as
this twenty-second joint rule is concerned we can provide for it.

Upon the question of the power of Congress to adopt this rule I entertain very
great doubts. I do not believe myself the power exists ; but there is a divided sen-
timent here. We cannot act upon any other position except that the power does exist.
I myself do not see how the power does exist, or from what provision it cau be inferred;
but we have got the rule. The rule in its present condition is a magazine that maybe
exploded at any moment. Let us therefore relieve it of its danger. It is much safer
for this country — and that is the grouiid on which I put the whole thing — to say that
the vote of a State shall be rejected only by both houses and not by one house ; and
you take from one party, where the houses are divided in politics, the power to change
the result by rejecting the vote of a State. It will be in the power of our friends on
the other side in the next House of Representatives — and they might act in good faith,
but we take a different opinion — it will be in their power if an objection is made in
the joint convention to the votes of republican States, the two houses separating, to
throw the election into the House, no difference what the votes may be. Under the
rule the republican party cannot elect a President. They might carry every State in
the North ; but they cannot elect a President. Why ? Because it is in the power of
the House of Representatives, under the operation of the rule, to throw out the vote
of every republican State. We, on the other hand, could throw out the vote of every
democratic State ; but the result would be that the election would go into the dem-
ocratic House. I am casting no imputation upon any party or any body of men. I
am only speaking about the possibilities ; about the fearful temptation spread in the
pathway of men. I am only speaking about what may take place under such a rule ;
and no rule which admits of such things ought to stand for one moment.

I do not understand that this rule, in its present form or in the new form proposed
to be given it, takes away what I believe to be the power of the Vice-President. The
Constitution says that the votes of the electors shall be sealed up and sent to the
President of the Senate, and he shall open them in the presence of both houses, and
the votes shall then be counted. Now, suppose there are two packages sent to him ;
there are two sets of returns; he brings forward one set and keeps the other ; how
will yon get the other set out of his hands? What power have you? He is only re-
quired to produce the set that does represent the vote of the State; he is not required
to produce both packages ; he is only required to produce that package which does
contain the true electoral vote of the State. Therefore he may exercise his judgment
upon that, and you have no power of correction. You cannot go l)ehind him. That
shows the necessity for an amendment of the Constitution. This rule cannot change
that. It does not undertake to change it. It simply provides for objections on such
papers as he does present and as are opened to be counted. That is all there is of that.

Suppose there are two governments in a State, one is a usurpation, the other is the
true government, and each calls on the President of the United States for aid against
violence. What has the Supreme Court said. The Supreme Court has said that in
that case the President must decide which is the lawful government of the State, and
that decision must stand until it is reversed by both houses of Congress. The Vice-
President is simply required to produce the return of the electoral votes of the State,
and where there are tAvo packages, it is for him to determine which is the correct one,
and not to produce the other. It was not intended to give him this great power. It
merely results in that way. Why ? Because the debates show that there was no

PKOCKEDINGS AND DEI'.ATES IN CONGRESS. 455

appiebeusioii or expectation on the part of the fniniers that sncli a tliinj; tould ever
happen, that there wonhl be two sets of electors from the same Htate. Ir was a thing
that was not contemplated ; they never provided for it ; they did not seem to tliink
that there might he irand in the electoral colleges which wonld recinire some tril)unal
to determine or pass npon it. They took it tor granted, that all wonld be fair. It
jnst stands thns: The President of the Senate is to produce the electoral votes, and
they shall then be connted ; and if there are two or three packages in his possession
and he produces one, you have no power to compel him to produce the others. But
that is not important now. As I said before, I do not believe in the constitutional
power of Congress to ]»ass upon these questions. But we have a rule. There is a dif-
ference of opinion upon the constitutional point. I would say change the character of
that rule to relieve it of its danger, and put it out of the power of one house to dis-
franchise any or every State in this Union.

Mr. Edmu'xds. Mr. President, I am rather surprised to hear the Senator from In-
diana say that he does not believe Congress has any power to regulate this subject
at all, if I correctly understand him, because that would lead us to this conclusion:
that the two houses, acting by a concurrent rule, have a constitutional power to regu-
late the exercise of functions conferred by the Constitution which the law itself can-
not regulate. I do not understand the Constitution of the United States in that way.
The Constitution of the United States vests powers and duties in all the three great
departments of the Coverinnent. It then jirovides that Congress shall have power to
pass all laws necessary to carry into elt'ect the provisions of the Constitution and the
powers invested in any of itsseveral departments. I am not quoting the exact lan-
guage.

Mr. Thueman. "In the Government of the United States, or in any department or
of3ficer thereof."

Mr. Edmunds. That is it. It appears, therefore, clear to me that wliatever consti-
tutional power exists at all to do anything upon the subject between the two houses
rests in the law. I, of course, do not include in that the mere metliod of meeting
together,' fixing the hour, or anything of that kind ; but so far as exercising the pri-
mary duty, if there be any at all under the Constitution, which they have to perform,
then certainly the Constitution has said that Congress — not the Senate, not the House
of Representatives, not both acting together without the President, but the law-
making power — shall pass all laws that are necessary to give full efi'ect to the exercise
of every duty which the Constitution has reposed in any department of the Govern-
ment. The result of my friend's argument, as it appears to me, would be, if he is
right, that the same rule which holds that you cannot regulate by law the exercise of
this constitutional function, assuming that it is to be exercised by the Senate and by the
House of Representatives, would apply to the Supreme Court, to the President of the
United States, to all the executive officers, because it is the same grant of power, it is
the same direction to the legislative body, as in all theories of government it always
is, that the Constitution is to be carried into force and its powers and its functions put
in operation by- the force and power and form of law. No constitution that ever I
heard of has been able to execute itself. No system of government having a funda-
mental law that ever I heard of has been thought to be at all perfect unless it has had
also the law-making power to put into execution the rights and the duties and the
operations that are reposed by the people in the frame-work of their government in
their representatives. With what propriety, then, can it be alleged that the law can-
not touch this r^uestion at all and provide how these votes shall be counted, when the
electors shall meet, (because that is just such a case,) how they shall transmit their
votes, where the two houses are to meet if you please, when they are to be opened ?

In the original discussions about this business, the draught of the Constitution
once stood before it was finally^ adopted that the votes were to be opened in the
Senate-house, but that was stricken out. If you say that the law cannot touch these
things at all, you must say that the Constitution has not vested in the law-making
power the function of providing for the due exercise of any of the powers that the
Constitution has granted to the various departments of the Government. There is
nothing more sacred in the constitution of the Senate and House of Representatives
as such than there is in the executive department or in the judicial department. And
if under your general power of regulation which the Constitution gives you of carry-
ing into eifect its powers you may provide how the Supreme Court shall exercise its
functions, how the Executive shall exercise his functions carrying out the duties that
the Constitution has imposed upon him, may you not also do the same thing when,
assuming that to be the trne construction of the Constitution, the two houses are to
meet and witness the counting of these votes and to decide upon them? It seems to
me that no man can considerately answer that question in the negative.

No distinction is made in the Constitution between regulating by law whatever
function is appointed by the Constitution to be performed by the two houses and in
regulating by law the function which any of the other departments of the Govern-
ment are to exercise; and such, so far as I know, has been the continuous history of

29 X

45G . COUKTING THE ELKCT(JHAL VOTE.

this Government witlioiit disjiute by any party. Take the highest possible case
Avhere yon conld suppose by tlie Constitution iLat there was no legislative power at
all; and that is in the judging of the elections and qualitieations of the members of
the two houses. There iiave been laws for a great, many years, passed without party
disputes or (|uestions of doubt as to coustitutionality, ))rovidiug for the methods of
eontestiiig elections in the House of Representatives, the kind of notice that should
be given to entitle a man to make a contest, the kind of evidence, and the method of
its taking, which the party must produce in order to maintain his right or to counter-
act the ojiposition on the other side. It is true, you may say, that the House of Rep-
resentatives is not bound to regard that when it comes to act; that it has aljsolnte
l)o\ver. So it has; so has the Supreme Court abs(jlute power; and yet thc! Supreme
Court does not exercise tliat power upon its caprice ; it exercises it according to the
reguhitioiis which tiie law has imposed.

It is no argument, therefore, against the constitutional power of Congress by law
to regulate the performance of a constitutional duty to say that the party who has
that duty to perform may disregard the law and set up for himself. The law may say,
if you i)lease, that the President of the United States shall only hold his office for
two terms ; that he shall not be eligible for nnu'e. Suppose he hap])ens to be elected
for a third time, and takes possession of the office; what is to be doiuj about it f
It is a plain violation of the law, and you must turn him out by revolution, I sup-
pose, or by some judicial process, or in some other way. So, then, it does not at all
follow, because in the case I am supposing the House of Representatives is the su-
preme tril>unal which has it in its ])ljysical power to disregard the law which regu-
lates its iirocfdure, tliat therefore it is not bound in the sense that we speak of the
binding obligation of the law to follow it.

But, .Mr. President, this question goes a great deal deej^er, it seems to me, than the
proposition proposed by the Senator from Indiana. The question is not merely
whether the Vice-President of the United States or the presiding officer of the Sen-
ate is to open the votes, and there his function ends, as my friend from New Jersey
supposes ; but tiie fundamental question really is, what is a vote ? Does the Consti-
tution mean that anything that purports to come from a State is a vote in the legal
sense \vlii( li is to determine in a case you nniy su))pose who shall be the Chief Execu-
tive of tlie nation for four years ? I do not thinli anybody would contend for that.
A vote, therefore, must mean a legal vote, a vote which is in accordance with the pro-
-visions of the Constitution of the United States and in accordance with the laws
•which have existed for so many years respecting the method by which and the time
-within which the vote of each State is to be expressed and returned. I take it that
is wduit the Constitution means by a vote. If it does not, then we are in a state of
•chaos and anarchy, as it seems to me.

The ([uestion then follows who is to determine whether the given document for-
warded is <a vote in the sense I have described. This rule does not determine it, as it
•stands now ; it does not determine it as it will stand if the Senator's proposition is
agreed to. You have the fundamental question, an<l in order to reach that question
you nnist determine one of four things: First, that the presiding officer of the Senate
is the judge as to what is a vote; and that seems to be the idea of the Senator from
Indiana, because he says the President of th(> Senate, if there are two sets sent to him,
is not obliged to put in more than one, and tlierefore that there must be implied in him
a power to determine which is the oue.

Or, second, you may take the idea of my friend from New Jersey, if I correctly un-
derstand him, that the two houses of Congress, in their separate capacity acting as
judges, like a judge on the bench, not acting in a consolidated form as one body, giv-
ing one determination, but acting as two independent bodies, are to determine what is
a vote. That, on ordinary principles of judicial procedure, would lead to the result
that, if a question be raised, nothing is determined judicially unless both the judges
agree; and therefore if they disagree there is no vote at all. That is the judicial
theory. Nothing is declared, and the document in question, as in a judicial case, can-
not be entitled to any validity until the judges give it validity. That is the jire.-ent
rule. Now, it is proposed to reverse that, and to say that unless the judges agree that
a document is invalid, a disputed paper, it shall be valid. That is this proposition.

The third would be to provide by law some method (jf determining by one body, for
the time being at least, so that it would not require a concurrence, except of a major-
ity of a particular chosen body, what is a vote.

The fourth would be to leave the Constitution exactly where it is, and provide no
rule about it; or if yon did have a rule, give it no etiect, as indeed we cannot except
for the time being, and then leave it, as in most of the States it is necessarily left, to
the judicial tribunals to determine the title of a given mau to an office. I know it is
very often said that this office is so high, the title to it is so important, that the judicial
function does not extend to it. I do not see anything in the Constitution which, if it
authorizes the judicial courts of the United States to try the right of a man to be the
judge of a district court or a collector of customs, does not in like manner authorize

rnOCEEDINGS AND DEILVTES IN CONGRFSS. 457

tli(> ji 1- i il rourts of the country to detoriniiiPi the title of a man to Hie offine of Presi-
dent of the United States. Certainly there are uo exceptions ; but I do not intend to
go intii 1 iuit.

Tlune are these four ways by which, either right or wrong, constitutional or other-
wise, till' topic may be reached. Now wliich of them are you to take? It ai)pears to
me tliat you ought to take tliat one which on tlie wliole is open to the fewest objec-
tions. I tliink in stating that proposition everyV)ody will agree.

Mr. '["iiUKMAX. May I interrni)t the St-natur for a moment?

Mr. Edmunds. Yes, sir.

Mr. Thukman. The Senator from Vermont says that the rule as it now stands is in
consonance with judicial action, that where there are two judges constituting a court
and they divide iu opinion, they cau render uo judgment. I submit to him that that
statement is scarcely correct. These certificates or returns are evidence of the votes
that luive been cast. If an objection be made to them, that is to be determined ; and
when a piece of testimony is offered in a court coiuposed of two judges, and an objec-
tion is made to its reception, in case the judges divide in opinion, the objection fails
and the paper goes in.

Mr. Edmunds. Is that the law ?

Mr. TiiURMAN. That is the law.

Mr. Edmunds. I shall be glad to have the Senator produce a little other evidence for
it besides his statement. I did not know that that was the law ; but I must assume
that it is for this afternoon, because my friend from Ohio says so.

Mr. Thukman. I am sure it is.

Mr. Edmunds. I always luid the impression that when a piece of evidence was
offered iu a court where there were two judges and they disagreed, the evidence did
not go in.

Mr. Thurman. No; the objection fails aiul the evidence goes iu.

Mr. Edmunds. r>ut that does not touch the point. The Senator assumes that the
certificate, as he calls it, is a certilicate; but take the case proposed by my frieiul from
Indiana; one party says it is a forgery; or suppose it does not bear the seal of the
State at all ; suppose there is to the mind of every intelligent man no evidence on its
face that it is what it purports to be. What are you to do then? You do not get
ahead any at all by any such projjosition as that ; you are bound to take it without
any regard to what may be its character upon its face. The Senator may say you
must presume tliat Senators an<l Representatives will exercise a conscientious and de-
liberate judgment. Then if tliey do exercise a conscientious and deliberate judg-
ment, there is no occasion for tlie'fears and suppositious he has expressed about where
the two houses may be opposed iu politics, if that had anything to do with it, as it
ought not, as to theiV throwing off' all the votes uiuler the present rule. You cannot
presume such a case.

Mr. Morton. Will the Senator allow me a moment ?

Mr. Edmunds. Yes, sir.

Mr. Morton. As the rule now stands if an objection is made to counting the vote of
Vermont, it may be of the most trifling character, because some t is not crossed or some
i is not dotted, the two houses separate and vote ; if one house sustains the objection and
the other house overrules it, the vote of Vermont is lost. The effect of that is that the
presumption is against the correctness of that vote, because it requires the affirmative
vote of both houses to admit it. But if you change the rule and require the affirma-
tive vote of both houses to reject it, then the presumption of law is in favor of the
certificate ; so that the illustration made by the Senator does not apjily.

As I understand the law to be, where a piece of original evidence is offered in a
court below where there are two judges presiding and the judges are divided in opin-
ion, there is no court there to admit it, it is rejected ; but if you take an appeal
from the court below to a superior court where there are two judges and these judges
are divided upon it, then the i)resumption stands in favor of the opinion of the court
below and the evidence goes in.

Mr. Edmunds. The Senator is right in his conclusion that the judgment is affirmed,
but not for any such reason as he gives, if he will pardon me for stating it quite so
curtly, for I do not mean to be curt. On an appeal, where the appellate court is di-
vided the judgment below is affirmed, not on any presumption, but on the theory that
the judgment of a competent court stands until it is reversed, and unless there is some
special law for a supersedeas it goes into execution even if it is appealed from or a
writ of error is brought ; and therefore when a w-ritof error is brought to The judgment
of an inferior court and it is brought before the superior court, the judgment is
affirmed if the court be equally divided, not on the ground of any presumption, but be-
cause that judgment stood allthe time, and perhaps was executed when the case was
heard, and itcauiu)t l>e reversed until there is a majority to reverse it.

Mr. Morton. I think the presumption in law is in favor of the decision of the lower
court until it is reversed.

Mr. Edmunds. There is no such proposition that the Senator can find in any law-

458 COUNTING THE ELECTOKAL VOTE.

book. There is no presumption abontit; it stands on fact, and that fact is that the judg-
ment of the court below is aeouipetent and conclusive judgment until it is reversed,
not upon presumption but upon the existence of a judicial order by a conrt of com-
petent jurisdiction. If I am wrong about that, I shall be glad to be corrected.

Mr. Morton. It is a difference in words.

Mr. Edmunds. It is not a difference in words ; it is a difference in ideas. Bnt
take the case that the Senator sujiposes in his interruption. He says take the vote of
Vermont; if the two houses must concur in receiving it, then one house, if a t is
not crossed, may reject it, aiul the vote of Verniont is lost. That winild be very bad.
That goes upon thepresum]ition tliat one house would be sticking in the letter, stick-
ing in the bark, and overlooking the substance. Let me snpjjose another case. Sup-
pose the paper that the Vice-President receives and opens to be counted according to
the Constitution is not the vote of Vermont at all; that it has been sent as the vote
of Vermont from the State of Indiana ; nevertheless, on the Senator's rule, unless both
houses concur in saying th;it they will not have the State of Indiana vote for Ver-
mont, she A'otes. That illustrates both sides of the rule.

All this matter was a good deal discussed when this rule was adopted, and has been
somewhat discussed since. There is great difficulty, I agree, in having the rule
either way, and it forces me more and more to the conclusion that, whatever doubts
Senators may have in lespect to the constitutional power to pass a law to carry into
effect a constitutional function, we ought to tiy the experiment of having the two
houses and the Executive, making the sovereign power of the United States, provide
a rule that i's a law, which shall jioint out precisely what shall be done. I should nmch
prefer to stand in a constitutiiujal sense upon a law which should state exactly what
the rule does as the Senator projioses to amend it, supposing that were right, than to
stand upon the rule. I know of no power in the Constitution which, gives the two
houses, concurrently by a joint rule, power to regulate anything whatever which affects
the interest of the people of the United States. That is a legislative power. They
may regulate their intercommunications, the relations that they bear to each other,
but when they come to exercise a function which the Constitution is said to have
reposed in them — I do not say it has — which touches the interests of the i)eople of
the United States, then I submit that they have no more i)ower to regulate their action
in respect to that by a rule than they have to pass laws by a rule.

It seems to me to-day, and I have iieard it expressed by Senators who are older and
wiser than I am in the nine years I have been here, and I am very gla<l the Senator
from Indiana has brought forward this topic, for it is most interesting and important.
We t)nght all to be obliged to him forthat ; but it is so imi)ortant, and involves so many
difficulties, real or supposed, that I think we ought to take some little time to consider
it. Considering it diligently, bringing it up again to-morrow, or the next day, or very
soon, I think we ought to have a little time to look into it. I move, with that view,
to refer it to the connnittee of which the honorable Senator is chairman, who can ex-
amine the subject, and other Senators, it being now brought up, may devote their at-
tention to it.

The Presiding Officer. That motion is pending.

Mr. Edmunds. Very well.

Mr. Morton. I have no objection to this reference. I do not desire to press the
matter prematurely on the consideration of the Senate ; but our business has now be-
come a question of time ; we have but twenty-live working days left ; and I think we
should commit a crime against the country if we suffer this Congress to adjourn with-
out modifying or repealing the twenty-second joint rule. There is danger of this
thing being jammed off" without having any action taken upon it at all. That is the
only objection I have to the reference.

Mr. Frelinghuysen. I think a reference would facilitate action.

Mr. Morton. If it be the understanding that it shall again claim the attention of
Senators on its being reiJorted back, without delay, I have no objection to the reference
on my part.

Mr. Conkling. That is the understanding.

Mr. Morton. Then I am willing that the reference shall be made if it is thought
best.

The Presiding Officer. The Chair hears no objection, and the reference will be
made. The resolution is referred to the Committee on Privileges and Elections.

Mr. Thurman. I do not believe there will be the slightest delay. All I hope is that
the committee will consider it fully.

The Presiding Officer. The resolution is committed to the Committee on Privi-
leges and Elections.

In Senate, Fthruary 25, 1875.

The Vice-President. The bill (S. No. 1251) to provide for and regulate the count-
ing of votes for President and Vice-President, and the decision of «iuestions arising
thereon, is before the Senate as in Committee of the Whole and open to amendment.

PROCEEDINGS AND DEBATES IN CONGRESS. 459

The following is a copy of the bill :

A BILL to provide for and re.i^ulate the counting of votes for President and Vice-President, and the
decision of questions arising thereon.

" Be it enacted hi/ the Soiafe and Rouse of Itepresentatires of the United States of America
in Conijress axsinMed, 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
Jainiary next succeediug tlie meeting of the electors of President and Vice-President
of the United States, aiul the President of the Senate shall be their presiding otHcer ;
one teller shall be appointed on the part of the Senate, and two on the part of the
House (d" Rei)r('sent;itives, to whom shall be handc-d, as they are opened by the Presi-
dent of the Senate, the certificates of the electoral votes; and said tellers, having i-ead
the same in the presenile and hearing of the two houses tlien assembled, shall make a
list of the v(»tes as they shall api)ear from the said certificates; and the votes having
been counted, tlie 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, electe<I, which aiinnTuicenient shiill be, ileemed a sufticient declaration of the per-
sons 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 siicli certificate by the tellers, any question shall arise in regard to counting
the votes therein certitied, the same having been stated by the presiding officer, the
Senate shall thereupon withdraw, and said (juestiou shall be submitted to the body for
its decision; and the Speaker of the House of Representatives shall, in like manner,
subtnit said question to the House of Representatives for its decision ; and no electoral
vote or votes from any State, to the counting of which objections have been made,
shall be lejected except by the atfirmative vote of the two houses. When the two
houses liave voted, they shall immediately re-assemble, and the presiding officer shall
then announce the decision of the question submitted. And any other question perti-
iient to the object for which the two houses are assembled may be submitted and de-
termined in like manner.

" Skc. 2. That if more than one return shall be received by the President of the Seu-
a,te fi'om a State, purporting to be the certificates of electoral votes given at the last
l)reeediiig 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.

'■ Sec. 3. That when the two houses separate to decide upon an objection that may
have been made to the counting of any electoral vote or votes from any State, or for
the decision of any other (piestion pertinent thereto, 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 in the power of a
majority of each house to direct that the main question shall be put without further
debate.

" Skc. 4. At such joint nu'i-titig of the two hou.ses, seats shall be provided as fol-
lows: For the President of tlie Semite, the 8pe;iker's chair ; for the Speaker, immedi-
ately upon his left; the Senators in the body of the h;ill ii])on the right of the presid-
ing office^' ; for the Representatives, in the body of the hall not provided for the Sen-
ators; for the tellers. Secretary of the Senate, ami 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 Si)eaker's jdatform. Such joint meeting shall
not be dissolved until tlie electoral votes are all eounted and the result declared ; and
no rece.ss shall be taken uidess a (jnestion shall have arisen in regard to counting any
such votes, in which case it shall be competent for either hou.se, acting separately, in
the manner hereinbefore provided, to direct a recess not Ijeyond the next day at the
hour of ten o'clock in the forenoon."

Mr. TiiUKMAN. Mr. President, in line 6, section 1, I move to strike out the words
^'one teller" and insert "two tellers." The bill ^u'ovides for one t(dler on the jiart of
the Senate and two on the part of the House. I see no reason for that. The Senate
and the House stand on an e(iual footing in respect to the count of the votes. This bill
goes on the theory that they stand on an eqiuil footing. Although they meet together
to witness the counting of the votes, that does not make a joint assembly in which a
majority i)resent can control the minority. The houses dom)t lose their individuality,
but each house is e(pnil to the other in the functions that are to be performed. There
is no propriety, therefore, in giving two tellers to the H(Uise of Representatives and
only one to the Senate. On the contrary, there ought to be a teller of each ])arty, and
in order to do that there should be two tellers of the Senate and two of the Hou.se. I
move that amendment.

Mr. MoiiTOX. The bill is as the present rule is, providing one teller for the House
and two for the Senate, bnt I make no objection to the amendment. I think it is well
■enough.

Mr. CoxKLiXG. I wish to make an inquiry of the Senator from Ohio before we vote

460 COUNTING THE ELECTORAL VOTE.

upon this amendment. In constitntlng committees in all parliamentary bodies, an odd
number is the rule, for the obvious motive of securing action ; in otlier words, to pre-
vent 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. TnuKMAX. What the Senator from New York says would have significance if
these tellers had any ultimate power of decision ; hut as the power of decision, and in
fact everything but the mere ministerial duty of reading tlie returns and footing tliem
up,. is reserved to the two houses, there is no necessity whatever for constituting a ma-
jority of the tellers of one polirical party or the other. All questions that arise for
decision must be decided by the two houses. The tellers have certain ministerial func-
tions to perform. They read tlie certificates; and if there is no objection then they
put down on sheets, which are already rnled and prepared for them, the votes. That
being done, when the work is completed, they add u]) the figures and hand the papers
to the presiding olBcer, who declares the result. Thi'ir duties being ministerial only,
there is no necessity for having a majority of one opinion or of another opinion : but
in order to jireserve the rights of the Senate, its individnality, and in order to avoid
any errors that might cree^) in by the superi(U- vigilance that might be exercised by
two over one, it is but right and proper tliat there should be two tellers on the part of
the Senate.

Mr. CoNKUXG. The only fault of the argument 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 Senate. I am luit going
to opitose this amendment ; but I still think that if there be any use for the sugges-
tion made by the Senator from Ohio, it would be a l)etter suggestion if he would so
fix a number that it should l>e an uneven numbei- 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 wiiicli 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. I>AYAKD. Does the honorable Senator say that as to the fnnction 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. CONKLING. I am inclined to think it would.

Mr. Bayard. I think not.

Mr. COXKLING. I only say as a proposition at large, assuming that they have any-
thing to (h), the idea should be to constitute the body in such wise that there would
be a controlling part by reason of having the whole i>ody an odd number, rather than
so adjust it that there might be an e<]ual dilference with no product from the process.

Mr. Bayaki). In this case the tellers are appointed on behalf of each house, act for
each house, and not together.

Mr. CoxKLiXG. That is trne ; and now will the Senator from Delaware tell me what
reason occurs to him for having two tellers instead of one on the part of the Senate?

Mr. Bayard. I confess I have not thought on the subject.

Mr. BuUTWELL. I agree with the pro|)osition 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 ditferent, I think it shonld be in the direction of having an un-
even number of tt>llers from each house, as three or five, ft)r examj^le, that each house
might be advised liy a majority of its committee of tellers as to what shonld be (b)ne.
But plainly the tellers of the two houses cannot act together, inasmuch as the two
houses themselves caniu)t act together. Therefore, if any opinion from the tellers
were desirable by the respective houses, it coiild be ascertained by having one teller
or three tellers or five tellers from each house, aud in no other way. For one, I am
content that there shall be two from each house, that the leading opinions of each
house may be represented.

Mr. Thurmax. My object in making this motion was that the Senate might main-
tain its right to a perfect equality of power in this important business, and I have but
a few words to say in reply to the suggestions of the Senator 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 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 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.

PROCKEDINGS AND DEBATES IX CONGRESS. 461

That wjis a thing which couhl not appear by mere reading; it couhl only appear by
inspection, and every member of tlie Senate and Honse so assembled, to the number of
between three linndredand four hundred, could not make that personal inspection 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 ])lace, the return havini^ been accepted, or not rejected, and the
votes l>einif put down, it will be necessary to be careful to see that they are put down
in the right column, and footed U[) that the footing is correct, and it is more likely to
be correct where four jierform tlie duty than where a less number do. Still I do not
say tliat thre(i might not perform it or that two might not perform it; and I would
perfer one from eacli house rather than two from the House of Representatives and one
from tlie ScMiate. What I insist ui)on is tlie absolute equality of the Senate in the func-
tions tiiat an; to be tlieu i)ertorau!d. I therefore insist that the motion I have made
ought to l)c adopted.

Mr. B.vYAiiD. Siv. President, if some gentleman who was in either house of Congress
in February, li^b, when this rule was adopted, when I jiresume there was discussion
on the subject, can tell us why the precedent was established, we couhl better see
whether we should change it. If there were good reasons for it then, it nnght be well
to continue it: and I must say that I cannot see any very important results in any
way from this changii. 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 sug-
gestion of my honorable friend from Ohio and insist, for the sake of dignity, or what-
ever 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 are there 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 between the houses. It might have grown simply 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 Avas 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
increasing the number. Perhaps it might bo some assistance in the arithmetical feat
of recording the vote.

Mr. CoNKLiXG. Mr. President, without referring to the debates, a considerable por-
tion 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 Delaware one consideration, growing
rather out of usage than necessity or fundamental reason, why the number of three tell-
ers in all was tixed. The custom has been, speaking now of the two tellers on the part
of the Honse, for the tellers rej)resenting the sentiments of a jiarticular State from
which electors came to count the vote. Speaking more plainly and exactly, a State
had cast its vote for the democratic nominees for President and Vice-President. The
usage has been for the democratic teller in the House to announce to the House there-
turns, to read them at large, as has sometimes been done, or to announce the result of
them. A State having voted otherwise, 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
tellers than otherwise ; and the one teller on the part of the Senate has been held suffi-
cient 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 adjustment fell to that number of tellers because the usage had been to
apportion the process, as I have endeavored to state.

Mr. Bayaisd. I am obliged to the SeiiatDr for this statement. He has given me now
a suggesticm in favor of the amendment of the Senator from Ohio, to which I referred
before. 1 wish that no other feeling than that of most gracious comity may prevail
between members of the Senate or House in any performance 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 hail been successful with its candidate a gentleman associated 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 reasoning 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 thatMnll be satisfactory to the coun-
try at large as well as to the representatives in the two houses of Congress. There-

462 COUNTING THE ELECTOKAL VOTE.

fore I wi«li now that there would be not only no ohjection to, but, lor 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 proclamation 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 Pkesidi.xg Officer, (Mr. Ingalls in the chair.) The question is on the amend-
ment of the Senator from Ohio, [Mr. Thurinan.]

The amendment was agreed to.

Mr. Thuk.max. After the word '"votes," at the end of the eleventh line of the first
section, I move to insert —

"Which certificates shall be opened, ])resented, 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 simply to open the returns; that it
is not his function to count them ; that they are to be counted in such manner as shall
be provided either l)y a joint riAe of the two liouses or by law. whichever is the jtroper
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 select the
returns that he will first present. They slionld 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 the order of their coining into the Union.

Mr. Bayahd. Or in the order of their adopting the Federal Constitution.

Mr. Tiiui'wMAX. In the order of their adoi)ting the Federal Constitution, or of the
original tliiitecn and the subsequent admission of the States; but that is not so con-
venient a mode as the alidiabetical mode. The alphabetical mode requires no research.
can give rise to no possible discussion, is perfectly simple, and is perfectly fair.

I therefore pro])ose this amendment, which I consider to be correct and to be in per-
fect harmony with the whole idea of the bill. Manifestly it ought not to be left in the
power of the presiding officer to select at his pleasure what returns he will fir-st pre-
sent. 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 presentation of the returns. But for much higher reasons
than that it is ])roper that tliese returns should be ])resented, opened, and acted upon
in some prescribed mode. I hope, therefore, 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 Secretary will rej>ort the words to be stricken out.

The Secretary. On page 2, beginning at line 34, it is i)roposed to strike out the
following words :

" And any other question pertinent to the object for which the two houses are assem-
bled may be submitted aiul determined in like manner."

Mr. Tiiri{.MAN. The })revioiis part of the section i)rovides that when a question shall
arise in regard to "counting the votes therein certified" — that is, certified in any cer-
tificate 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 uuide 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 assem-
bled may be submitted and determined in like manner."

I do not know why these words are put in. I can cDuceive of no necessity for them.
I can conceive of a construction put u[jon these words tli;it would lead t;o irremediable
mischief. I w.)uld bi; glad, if the Senator from Indiana is not willing that thf, amend-
ment should be adopted, that he will give us his view as to the effect of these words.
If he is willing that the amendment shall be adopted, I will not trouble him.

Mr. MoRTux. I find that these words are embraceil in tiiie original rule, and form a
part of the rule to which perhaps no exception was e\er taken. The original rule pro-
viding for the cnunting of the vf)tes says :

"And any other question iiertinent to the object for which the two nouses are assem-
bled may be submitted juid deterinineil in like manner."

It sinq)ly provides for the determination of ;iny <iuestion that it may be necessary to
determine which shall require the concurrence of both houses, to be determined in like
manner, subject to the same restrictions. Tnere may be other questions arising. I
could not now anticipate one; I do not know that I co.uld mention one; but other
questions may arise, the determination of which may be essential ; and this clause sim-
ply provides for their settlement in the same way.

PKOCEEDINGS AND DEBATES IN CONGRESS. 463

Mr. TiiURMAN. It seems to me obvious that these words in section 1 — the last
sentence in the section — shouhl come out. The previous part of the section provides
all that is necessary for the countiujjj of the votes. All tliat can properly be done by
the two houses is already provided for. I was awaie that these words were in the
twenty-second joint rule, and 1 can conceive some reasons why they were put in that
rule ; but I can conceive no good reason why they should remain. The Seinitor from
Indiana and I think that the twenty-second rule is a bad rule. It is proposed to abol-
ish it. I do not thinlv it is necessary to preserve tliis part of it whicli to my mind is in
the highest degree olijectioiuihle. Let the whole of it go, if any part of it is to go. There
were very peculiar circumstances in the first counrs of the votes under that rule. Tlie
rule was ado])ted in 1865, I believe.

Mr. Morton. February 6, Idfio.

Mr. Thurmax. It does not say in my copy when it was adopted. It was adopted in
1865. There were very peculLar circumstances under whicli that rule was a<lopted.
Several of tlie Sontiiern States were not reconstructed as it was then said, as some
Senators and as the majority of botli liouses 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 shoukl vote for Pr< sident and Vice-President was a
mooted question. It was a questicm whether in ])oint of fact they were States of this
Union. That was the (jnestion. 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. Thukmax. I am si>eaking now of 1868, not at the time this rule was adopted.
The war had not closed at the time the rule was ailopted in 1865, and what States
would be in the Union in 1868 was a question that no one could then absolutely fore-
tell. 'J"he war still existed, and no one was able to foretell what would be the result
after the war should close upon the autoimmy of the States that had been engaged in
the rebellion. I'nder those circumstances this rule was adopted, and it was enforced.
It was enforced in the count of 18()9, and that most extraordinary of all announce-
ments ever made was nuide by the President of the Senate, that the vote of Georgia
should be received if it would not change result, but if it would change the result 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 (juestion, therefore, as to what are the States of the Union, and no neces-
sity 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
provide for any such contest. If it did it would i>e lamentable, nay, wholly, utterly
defective. There is no reason, therefore, for opening the door to questions over which
we liave no jurisdiction ; and unless we intend to invite questions and the exercise of
a jurisdiction we do not possess, these words should be stricken out of the section.

The PuEsiDiXG Ofkicer. The question is on the amendment of the Senator from
Ohio, [Mr. Thurman.]

The amemlmeut was agreed to.

Mr. Tiit'RMAX. Now, Mr. President, in ord r to make the bill consistent with the
action just taken by 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. Merrimox. As this seems to be a very important bill, I take it that it is well to
have the phraseology used as correct as possil)le. Therefore in line 3 of section 1 I
move to amend by striking out the words "the two houses of Congress" and insert-
ing the words " the Senate and House of Representatives." There is no such phrase-
ology in the Constitution as " the two houses of Coujitess." The pliraseology used in
the Constitution is that which I propose to insert, "the Senate and House of Repre-
sentatives."

The Presiding Officer. The question is on the amendment.

The amendment was agreed to.

Mr. Merrimox. I move to amend in line 4. section 1, by insi rting after the words
"oTie o'clock" the letters "p. m."

'i'he amendment was agreed to.

Mr. Merrimox. In line 15 of section 1, after the word "counted," I move to insert
the words " Ijy them."

Mr. Morton. What does the Senator say ?

Mr. Merrimox. After the word "counted," in line 1.3, section 1, I move to add the

464 COUNTING THE ELECTOKAL VOTE.

words " by them." As it uow 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. Fkelixghuysex. 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. Fhklinghuysex. I do not object to them if they are merely unnecessary, but
the question is whether the votes are counted by tellers.

Mr. Mehkimox. Then we ought to settle it. That is the verj- thing we ought to set-
tle. 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. Fkelixghuysex. The tellers certainly perform the ministerial duty of count-
ing the votes, but whether that is the counting spoken of in the Constitution I think
there is very grave fjuestion.

Mr. Meriumon. Then, I ask the Senator, who is to count ? The statute will not then
provide for that.

Mr. Stevexsux. I do not think there can be any doubt from the language of the
rule that it was intended tliat the tellers should do the counting. The language is :

"And said tellers having read the same in tlie presence and hearing of the two
Houses then assembh'd, 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," &c.

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 cau they be ascertained ?

Mr. Frelixghuysex. 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 Rep-
resentatives, open all the certificates."

Mr. CoxKLiXG. " And the votes shall then be counted."

Mr. Fkelixghuysex. "And the votes shall then be counted." I understand that
that counting is really done under the supervision and in fact by the two houses. I
think phe bill is a good deal better leaving it as the Constitution leaves it, without
saying " being counted by the tellers."

Mr. Merkimox. 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 meet-
ing could count them unless through some instrumentality.

Mr. Frelixghuysex. The bill is in the language of the Constitution now.

Mr. Mp;kkimox. I understand the object of this act is to execute the provisions of
the Constitution. I submit the amendment to the Senate.

Mr. LoGAX. I merely wish to ask the Senator if it is not at least sufficient to use
the language of the Constitution ? This is precisely the language of the Constitution.
The mere addition of the number of votes, done merely as a clerical duty by these
persons, certainly 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 pres-
ence 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 jurisdiction 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. Merrimox. 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? Somebody 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 under the supervision of the joint meeting. My ob-
ject is to make it specific.

Mr. MoRTox. I submit to the Senate that these words are not necessary. It is pos-
sible 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. TnumiAN. I wish to say one word on this question. Somebody must do the
ministerial 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 him-
self, which is sim])ly impracticable. 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

PROCEEDINGS AND DEBATES IN CONGRESS. 465

may be accurate. I think that the bill as it now stands without the amenduieut im-
plies that the tellers shall count the votes. They are to make a list of them. " The
votes havinj^ 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 m before the word "counted." The Constitution is "and
the voteB shall then be counted ; " that is, shall be counted right there, in the presence
of the two houses. That is what the Constitution 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 im])lied from the preceding part of the section.

Mr. Thukman. Peihii]is it is. I should think it was ; but I suppose the Senator
will ha\ e 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 supjiose the word "then" ought to go in ; and perhaps it would relieve all diffi-
culty to insert after the word " counting " the words " in the presence of the two houses."

Mr. Momox. The previous part of tne section presupposes that.

Mr. Logan. The meaning is just the same althongh the words are not the same.
" The votes liaving been counted " is jnst the same precisely as the language in the
Constitution. I do not mean that it is rcrhatim, but the meaning is just the same.

Mr. TiiuioiAN. 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. AVill the Senator from Ohio allow me to ask him a question ? On read-
ing the rest of that portion of the section it is :

" And the votes having been counted, the result of the same shall be delivered to the
President of the Senate, who shall tlierea[»on announce the state of the vote, and the
names of the persons, if any, elected, whicli announcement shall be deemed a sufficient
declaration," &.c.

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-Presi-
dent. Have the two houses then any control of the counting if you put in the words
" counted by them ?"

Mr. TiiUKMAN. 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. TnuRMAN. If the Senator thinks that such an error is likely to occur, where
there are four men to one, then that is a defect in the bill.

Mr. Logan. 1 do not think it is likely to occur, but such things are possible.

Mr. Thukman. It might ; and thatonly 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
ministerial office of counting the vote and making the addition, but it is, in fact, con-
structively 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 per-
sons to count the votes, instead of the construction that the Constitution certainly
bears, tiiat the houses count the Aotes.

Mr. TiiunM.^N. There is a good deal of force in what the Senator says.

Mr. Logan. I think that certainly would be the constiiiction. Therefore I do not
think the amendment ought to be made.

Mr. CoNKLiNG. The Senator from Illinois has stated so exactly and so fully the
view I have of tliis matter that I am content to give my vote upon the presentation
he has made. But > et I venture to suggesr to the Senator from North Carolina that
his amendment would confound together two things ditterent 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. If yon could invent a machine which would foot
up exactly these columns of tigures 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 exaci ly as arithmetic. So you need not necessarily have members of the two
houses to act as tellers. Two of the ])ages of the two houses could foot u]) these tigures
and present them to the houses. But does anybody suppose 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 man-
ual act of i)rescnting a total of a colnm of figures and hand that to the presiding offi-
cer, yon may delegate to anybody, to the Sergeant-at-Arms for aught I know. When
the Senator from North Carolina comes now to import into the bill words following
those which sd nearly adopt the language of the Constitution as these, it may be said,
I think it will be said, as the Senator behind me [Mr. Logan] has suggested, that the
design was to commit to these tellers the whole business, not the mecliauical ministe-

466 COUiSTING THE ELECTORAL VOTE.

rial act of aritliinetic 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 tiling. 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 anybody 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 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 accomi)lishe(l 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 ])ut 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 nught
be made before the result was delivered by the ]iresiding ofhcer 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 ])nst tense, but I do not think there
is any substantive objection to it. So of the words "in the presence of the two houses."
I tliink they would be surplusage, because the section elsewhere requires the presence
of the two houses. It would be abundant cautiiui but I see no other objection to it.
Therefore I would vote, if it be the pleasure of any Senator, that the bill slnuild be so
changed as exactly to follow the C(mstitution, which I see my friend from Kentucky
[Mr. Stevenson] has in his hand. I have it in my han<l—

"Shall in the presence of the Senate and House of Representatives open all the cer-
tificates, and the votes shall then be cotmted."

There is no objection to putting those words in the bill, although I think it suffi-
ciently appears; but when you come to add to the bill words which imply that the
whole power of nuiking the count, not merely in a tabular sense, not merely in a cler-
ical sense, not merely that these men are to be authorized as scribes to perform the pre-
fiminary j)rocess, hnt that they are to be empowered to consummate and acconii)lish
the whole fact- of the count upon which the declaration is to be based, it seeuis to me
that it is an unwise and unnecessary experiment, and may in case of a contest lead to
misunderstanding and embarrassment. Therefore I shall not vote for the amendment
proposed by the Senator from North Carolina.

Mr. Meurimox. With the permission of the Senate I will withdraw my amendment
and offer another in lieu of it.

The Presiding Offickk. The amendment of the Senator from North Carolina will
be withdrawn, if there be no objection.

Mr. Merhimox. I now propose to add after the word "certificates," in the four-
teenth line of the first section, these words :

" And the votes shall then bo counted by the tellers under the supervision of the
two houses of Congress."

Mr. Alcorx. 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" a while ago ? [Laugiiter.] I merely
suggest this to him that he may not inv'olve himself in any contradiction.

Mr. Merkimon. 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 con-
venient 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. Frelixghuysen'^. It seems to me this amendment oft'ered liy the Senator from
North Carolina is subject to the same criticism as the last. His amendment now is that
the votes then be counted V)y the tellers.

Mr. Merrimox. Under the supervision of the two houses.

Mr. Frelixghuysex. 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, pro-
viding that there shall be the interposition of a court to settle questions, and it is ar-
gued that that is constitutional because the Constitution provides that Congress shall
have a right to pass all laws to carry into effect the various provisions of the Consti-
tution, 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 am entirely opposed. I believe that the tribunal to count the votes is the represent-
atives 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 reg-
ulates the subject, shall be by tellers. I think that the bill is right as it is, " the votes

PROCEEDINGS AND DEBATES IN CONGRESS. 467

liaviug beeu counted." We have provided for tellers. We have provided that the two
Iioases shall be present, the votes having been counted, of course by the two houses,
the ministerial duty, the w(U'k, being performed bj' their agents, the tellers, audi 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
amendment strengthens the provision or makes it more clear. In reading the whole
provision tlirough, the process is so siaiple tluit I think it cannot be misunderstood.

Mr. TiiuuMAX. We cannot hear a word the Senator says.

Mr. MoKTON. 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 pro-
cess is so simple and clear tliat I think it is hardly liable to misunderstanding. I hope
the Senator will not insist on his amendment.

Mr. Mekrimox. Why was it necessary, then, if the whole process is so simple, to
provide that there should be tellers ? Why would not that follow as a consequence
without providing for it in the act ? My purpose is simply to indicate, by a provision
in the statute, Avho 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 nuike the count of the vote.

Mr. Mehrimon. I do not give them any more power than that. I do not invest them
with any ])0wer.

Mr. Morton. I tiiink that is sufficiently clear from what the bill already contains.

Mr. Merrimon. Tlie bill as it stands now does not indicate who shall count them.
It may be tlie Clerk, or, as tlie Senator from New York said a while ago, it may be out-
side t)f the joint meeting ; it may be the President. My piirpose is simply to make it
certain, so that no difficulty can arise at any time about whether the Clerk shall cast
np the vote or whether the tellers shall do it. Whoever does it does it under the su-
pervision 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 be-
said to that eli'ect in the statute, under the supervision of the joint meeting; but
when it is expressly provided that they do it under the direction of both houses, there
can Ije no further (xuestion 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
certiticates." It seems to me that involves all the mechanical duties that can be re-
quired of the tellers.

Mr. Logan. I wish to call the attention of the Senator from North Carolina to the
provision of the Constitution in comparison with the language that he proposes to
amend. Although this bill comes from a committee of which I am a member, I had
nothing to do with framing tlie bill ; but whoev^er framed it evidently did so with a
view to comply entirely and completely with the provision of the Constitution in refer-
ence 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 tlie point under
consideration, I find this :

" They shall make distinct lists of all persons voted for as President, and of all per-
sons 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 President of the Senate shall, in
the presence of the Senate and House of Representatives, open all the certiticates, and
the votes shall then be counted."

What is the obvious meaning of that particular 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 taking it out of the hands of the
members of Congress, that the bills may be prepared and put in a condition to be pre-
sented for their uctiou. So in this case they may designate persons of their own number
or they may possibly designate persons not of their number — to do what ? Perform no
duty at all, except to take the burden ofif 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 announce 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 Representatives, to whom shall be handed, as they are opened by the Presi-

468 COUXTING THE ELECTORAL VOTE.

dent of tli3 S Ml it '., tho c irfcii; itis of th » i^l 'CO al v )te-i ; an 1 sail teller-t, liavi iijf reni
the same, in the preseiicii and hearing,- oi: the two houses then assembled, auil shall
make — "

What?
''shall make a list of the votes as tliev shall appear from the said certilicates."

The certificates in the hands of the Vice-President handed to the tellers in the pres-
ence of the two houses, or, in other words, handed to the two houses throui^h the tell-
ers whom they have appointed for the ]inrpose of ennnierating or counting the votes.

"The votes having been counted." How? The Constitution says, "the votes shall
then be counted." Taking the language in connection the words used here have the
same meaning precisely. '• The votes having been counted " and " the votes shall then
he counted" meaning precisely the same. Then what?

"The result of the same shall be delivered to the President of the Senate, who shall
thereupon announce 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 notified 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 lan-
guage being perfectly well understood, there is no necessity for any amendment ; uor
do I believe the language proposed by the Senator from North Carolina corrects any-
thing, but makes the phraseology worse than it is in the bill.

Mr. Merrimon. I adopt the very language of the Constitution.

Mr. Logan. You adopt the language of the Constitution but you add to it.

Mr. Merrimon. Yes.

Mr. Logan. Why is there any necessity for adding to the language of the Constitu-
tion when that is perfectly understood by everybody?

Mr. Merrimon. To designate the persons who are to do the ministerial act under
the direction of the joint body.

Mr. LoGAX. This bill designates them in the forepart of the section " that one teller
shall be appointe(l on the part of the Senate, and two on the part of the House of
Eepresentatives." They are already designate<l.

Mr. Merrimox. Not to couut.

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 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 cer-
tificates; and the votes having been counted"

Mr. Merrimox. By whom ?

Mr. LoGAX. By whom ? By the two houses of Congress, as the Constitution con-
templates, through those whom they have designated for that purpose.

Mr. Merrimon. I propose to designate the persons who shall do it as agents of the
joint 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. Merrimox. I do not so understand it.

Mr. Logax. I cannot understand the English language if it is not so.

Mr. Stevensox. I concur exactly in the view of the Senator from Illinois. If my
friend from North Carolina will read the whole of the joint rule, I think it will be
made apparent that the tellers have only a ministerial duty to perform in summing
up the ta1)ular statement of the certificates, and that the word " counted," as used in
the Constitution and as used iu the joint rule, does not apply to the tellers at all. It
appears from the joint rule that the returns are to be opened by the Presi<lent 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 certificates." That is a ministerial duty; "and the votes having been
counted"— not by these tellers — and when they have made their certificates, some
gentleman rises and says, " I object to the count of such a State." Then that question
is to be decided by the two houses, and that is proved by this language :

There is a clear distinction between the word " count " and the mere summing up of

I'KOCEKD'NGS AXD UEHA I H.S IN' COXGRESS. 469

Nvliiit tli(^ c.rtiricates show. I concur fully tliat tlic bill as it stands now disciiniiiiates
^virh siitttciHiit clearness the duty of the tellers and the fact that the votes as certitied
nre to he counted, when the certificates are made out l)y the two houses. If uu objec-
tion is made to any fact stated by a teller, the President makes known to the two
houses the obji-ction ; he says, " the Senator from Illinois objects to the vote of such
a State," and tlien the question of counting the vote of that State is to be decided
not by tellers but by the two houses.

Mr. LOGAX. I asiv the Senator from Kentucky 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 determiuing whether a vote shall be
counted ?

Mr Stevfxsox. I think it throws doubt upon it and renders a conflict of decision
more likely to arise than if yon leave it stand as it is.

Mr. Mei!UIMOX. I ask who is to do this ministerial service.

Mr. Stevexson'. The tellers.

Mr. Meuuimox. Why not say so ?

Mr. Stevexsox'. 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 assembled" —

Read what ? Read the certificates which have been delivered to them by the Presi-
dent of the Senate —
" shall make a list of the votes as they shall appear from the said certificates."

Mr. Mekrimox". To make a list does not imply to count.

Mr. Stevexsox. 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 connt. Then comes the power to be
exercised alone by the two houses from these certificates as reported hj the tellers
and as counted in one sense, if you please, by the tellers, and then if there is an objec-
tion to the counting of any vote shown and tabulated by tellers, the question of whether
it shall be counted or not is to be determined by the two houses. That is already pro-
vided for.

Mr. E.VTOX'. My friend from Kentucky when reading from the joint rule reads from
a rule which we destroy by this bill. Yon find there that the tellers are the counters,
but you do not find it in the liill introduced by the Senator from Indiana. It is en-
tirely plain in the old rule, but it is not equally plain in the bill. I think it means so ;
I think the language 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. LoG.vx. 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 particular. 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 ministerial 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 Representatives, to whom shall be handed, as they are opened by the Pres-
ident 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 votes having
been counted" —

Just the language precisely of this bill —
"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."

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 par-
ticular portion of the bill that we are discussing is concerned, it is copied verbatim
from the rule.

Mr. Meurimox'. 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 oftering this amendment.
The object of this legislation is to execute a provision of the Constitution which
directs the counting of the electoral vote for President and Vice-President ; " counting"
I say ; simply that. I can hardly conceive a necessity to exist for any statutory pro-
vision at all. If you are going to provide for the execution of this provision of the
Constitution in one respect, why not do it in all ? Why not make your action complete?
If we desire to make it complete, why not designate all the agencies which the joint
meeting will use for the purpose of ascertaining the result? We provide an agency
to open the certificates ; we provide an agency to make a list of the certificates for

470 COUNTING THE KLECTOKAL VOTE.

the couvenit'iice of the count aiul ascertaining the result ; but the bill does not provide
any agency for casting up the A'ote. 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 propose
to provide in the bill that the tellers shall cast up the vote, count the vote under the
supervision of the joint meeting. That puts it to rest. Xo 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 Representatives, to whom shall be handed, as they are opened by the Presi-
dent of the Senate, the certiticates of the electoral votes" —

Now the duty of the tellers begins —
''and said tellers, having i-ead 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 cer-
titicates.

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 direc-
tion of the joint meeting."

Then it is plain ; then the agency is provided, 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 di-
rect 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 certain.

Mr. Frelinghuysex. I think that if the Senator would consider the significance of
the word "counted" as used in the Constitution he would not insist on his amend-
ment. 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. Mekrimon. May I interrupt the Senator ?

Mr. Fkelinghuysen. Certainly.

Mr. Mekhimon. This provision does not interfere with that at all

Mr. Fkelinghuysen. I understand.

Mr. Mekrimon. For I have said that thecount shall be made under the direction of
the joint meeting.

Mr. Frelinghuy'SEN. 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 frame-work 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 de-
termine what are votes, who has a right to vote. My friend's amendment is, " be
counted by the tellers."

Mr. Mekrimon. Under the supervision and direction of the two houses.

Mr. Frelinghuy'Sen. 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 dutj' they perform,
and the counting 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 comiirehend 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 tellers 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 Presi-
dent of the Senate, the certificates of the electoral votes." The President 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 assem-
bled " — 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 certiticates." They
makeout 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 ?

PROCEEDINGS AND DEBATES IN CONGRESS. 471

Mr. Morton. Who adds them up ? I suppose 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 coine to anrither stage of the proceeding, and this evidently refers to what
has taken phice after all has been gone through, and the Senator 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 been gone through with and the houses have sep-
arately 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 conclusion 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 thatisthe conclnsionof the whole ceremony — " which announcement shall
be deemed a sufficient declaration of the persons elected President and Vice-President
of tlie 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 tiling; and in the mean time, before the votes
have been tinally counted and the announcement made, what may take place ? Ob-
jection 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 objec-
tion, the vote of North Carolina goes out, and she is disfranchised — has no more a vote
tlnxn if she was a Territory. That is what wo are proposing to correct. But this is
the conclusion of the thing : After having gone througli all the stages, determined
how many votes shall be counted and how many rejected, the list is handed to the
President, and ho announces the result ; that is, the declaration of who is elected, if
anybody is elected. I submit to my friend that his amendment does not tend to make
the section any clearer or to improve it. If I thought it did, I should accept it iu 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 w.as rejected.

Mr. Meri:i.mon. 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, 1 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. MoRTOX. 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 im-
prove the phraseology.

Mr. LOGAX. In tbe old rule which was adopted by Congress after Congress the rule
is " the resnlt of the same sh;i]l 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. Merkimon. There is only a difference of opinion between us on that subject.

Mr. LoG.VN. 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 expression.

The atnendment was rejected. ,

Mr. Mkrrimox. In line 17 of section 1 I move to strike out the word " state " and
insert tlie word "result ; " so .as to read :

"The result of the same shall be delivered to the President of the Senate, who shall
thereupon annoiince the result of the vote."

Mr. Logan. All I desire to do is merelj" 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. Merrimun^. 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 between the " state " of a vote and the " result "
of a vote.

Mr. Logan. What is it, tell us ?

Mr. Merkimon. 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.
Is that it ?

Mr. Merrimon. The state of the vote is the condition of the vote, and there may be

30 X

472 COUNTING THE ELECTORAL VOTE.

Tarious circumstances affecting it by •which there is no result ; and if the vote is iu
such condition that tliere is no result

Mr. Logan. I will ask the Senator, if there is no result, how can you state a result ?

Mr. MoRTOX. I suggest that my friend now involves himself in the only reason I
have heard him give. The language is " and announce 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. Tiiere may be
therefore no result.

Mr. Merkimon. How can he announce that anybody is elected unless there is a re-
sult ?

Mr. Morton. There may be a state of the vote iu which there is no election. The
bill contemplates that. But now I submit to my friend in all earnestness and candor
that he does not improve, it seems to me, the phraseology or the rhetoric of the bill in
any respect by striking out the word " state " and inserting " result." I hope the word
will remain as it is.

The Vice-President. The question is on the amendment of the Senator from North
Carf)Iina.

The amendment was rejected.

Mr. Bayard. Mr. President, from the foundation of tlie Government up to the year 1805
the American people had managed to conduct the count of the electoral votes for Presi-
dent and Vice-President of the L^nited States without any other aid than the constitu-
tional provision and a single statute that had been passed during the tirst presidential term
of George Washington. In 1792, on the 1st of March, an act was passed " relative to
the election of a President and Vice-President of the United States, and declaring the
officer who shall act as President 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 dis-
tinctly granted or necessarily implied !)y the terms of the Federal Constitution. There-
fore in this law (which is to be found on pages H05, 306, 307, and 308 of the last com-
pilation of tlie Constitution, Rules, and Manual provided by the Senate) tliere will be
found no attempt to transcend the grant of power of the Constitution as to the re-
ception 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 manner of the election of
the electoral college confided to each State, and to the discretion of the legislature of
each State, but that the certification, 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 assume, under the guise or pretext of
telling or counting a vote, to decide the fact of the election of electors who are to form
the college by whom the President and Vice-President are to lie 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 authority by
the A'ote of either house to put a veto upou the count of a State's vote. That such a
rule was without constitutional warrant, I cannot doubt ; and I do not think I am go-
ing too far when I say that the unconstitutionality of that rule is generally admitted.

I find in the record of the debates of Congress in February, 1865, nothing to instruct
me or any other student of this country's history as to the reasons upon which Con-
gress undertook to frame the twenty-second joint rule. There were no debates that I
can discover on the subject. I presume the matter was perhaps, as now, arranged by
party caucus ^ud silently passed, and reason Avas neither given nor sought in a Con-
gress composed almost entirely of one political party. Nor do I mean to say that the
rule iu 18G5 was founded solely upou party considerations. On the contrary, 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 good enough to be let alone. For ten years the
rule has conlinued, and two. presidential elections have proceeded under it, indeed
three, for the votes of the electiou for Mr. Lincoln's second term and of the present
President's two terms were counted under it. Now for s mie reason it is sought to be
changed. The mind of the honorable Senator who has had this matter in charge has
nndei gone some fluctuations on this subject. At first he introduced a resolution 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 elect-
oral votes of a State into a requirement that both houses must join in the rejection
or the vote should bo 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
forward a new iiroposition in the form of a bill which is to accomplish its object by the
act of the two houses of Congress receiving the President's assent, and can then only
be repealed by their joint action.

PROCEEDINGS AND DEBATES IN CONGRESS. 473

Now, sir, it seems to me that tlie proper method of dealing with this subject should
be by a joint rule and not by a statute. If any action be necessary, as my friend from
Connecticut [Mr. Eaton] reminds me, certainly of the two modes a joint rule of both
houses is preferable. It has been the one heretofore pursued, and I know of uo 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 passions of party can but obscure aud
render it dangerous. No man, no party, can be safe in legislating upon the basis of
party passion. I do uot say that this measure is of that character, but I will say that
I am surprised that it should be regarded as essential to be passed at the present ses-
sion when, as we all know, an opportunity is about to be afforded witliiu one week
from the present time of having this important subject passed upon by two houses of
Congress differing in their political sentiments, 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 aud beyond party; and if it be not,
then evil will come from it, and perhaps it may return to plague tlie inventors aud not
those for whose defeat it was designed. The subject is one of great ditticulty. Con-
tingencies have arisen, may again arise, nay their presence is coutemplate<l by this
very bill and provision is sought to be uuide for them, for which the Constitution of
the United States has provided no apparent remedy. I can well imagine that iu a gov-
ernment depending so entirely upon the active co-operation of all its parts, a govern-
ment so thoroughly one of consent, and which relied for its real strength and true
power upon the voluntary action of its citizens, and to whicli coercion iu all forms was
so necessarily fatal, its founders could not have imagined that iu the high council of
an electoral college and the counting of their votes for the Chief Magistracy of the
country the common passions that attend contested elections 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 iu 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 iu the twelfth article of the amendments. It prescribes that —

" The electors shall meet in their respective States and vote by ballot for President
and Vice-President, one of whom, at least, shall uot be an inhabitant of the same State
with themselves ; they shall name iu 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 respective 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
certiticates and the votes shall then be counted."

There is nothing in this language that anthorizes either house of Congress, or both
houses of Congress, to interfere with the decisioii which has been made by the electors
themselves and certified by them and sent to the President of the Senate. There is
no pretext that for any cause whatever Congress has any power, or all the other de-
partments of the Government have any i)Ower,to refuse to receive and count the resnlt
of the action of the voters iu the States iu that election as certitied 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 uo machinery provided for contest
and no contest seems to have been anticijiated 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, andif there be uecessity for its amendment, for its supplement, that
must be the action of the American people in accordance with the Constitution itself ;
and I am free to say that some amendment on this subject should be had. Bat because
there is no machinery provided, uo tribunal appointed by which this most important
issue aud contest may be decided as to who was chosen an electorfor President and Vice-
President iu any State, that certainly does not justify Congress in assuming either by
direct formal claim of the power iu the enactment of a law, or by adopting rules which
shall give tl>em such power as will be equivalent to the control of the subject; that is
to say, a jiower 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 togerher.
I have been able to find, and I believe there exists, no such power either for one house
or for l)otli.

But there was provided, in case of the failure from any cause to ascertain the per-
sons elected from a canvass of the electoral votes as so certified aud transmitted to

474 COUNTING THE ELECTORAL VOTE.

the President of the Senate, a provision that "immediately" — to use the language of
the ConstitLitiou — "the House of Representatives shall choose immediately, hy ballot,
the President. " When, therefore, you come to construe a constitution which in the
same connection, in the same connected jihrases, 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 compelled to resort to the other mode,
which is ])lMiiily 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. Thurman] is not present, because he has inti-
mated to us his approval of this section, which I cannot assent to, which provides that
if Djore 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 elec-
tion for Pi'esident 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."

And this section you i^ead 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. Now, sir, what is the result of this? Let us suppose tuat onehuu-
dred and fifty electoral votes come from certnin States alleged to be regular, but more
than one return is received 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 received
and counted unless the twf) houses shall join in an atfirmative vote to reject them.
What is the result of that ? Say, for illustration, 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
aftirmative vote of the two houses rejects them. Supposing that atfirmative vote to
he lacking in one House, they must be counted, and you have then an electoral col-
lege of four hundred and fifty votes instead of three hundred. What does the Con-
stitution 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-one 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 tifty by admitting one hundred 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 provision 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 elect-
oral 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 l>e, 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 jue 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,
hut which allowed a certain majority to authorize him to take his seat. Perhaps, as
I say, upon examination my proposition may not be found to hold water, and yet at
the same time 1 submit this subject, so important, to the criticism of other gentlemen
in this body. If the demonstration can be made difierently from what I propose to
make it, I )tresumo we shall hear it, because I cannot suppose that any member of the
body would vote for a measure that does so materially change the rights of a candi-
date 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 reipiire a larger number of votes for his majority than he
would have if the electoral 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 effect of it. We had from the Senator
from Rhode Island [Mr. Anthony] the other day a very thoughtful disquisition on
this sa'oject. Questions were then asked in the Senate and were not answered as to
what should be done where a double vote was returned from a State and where two
sets of electors each present their suflrages for difl'erent candidates from the same
State at the same election. No one gave the answer, because the Constitution had
provided no means whereby such a contest could be deculed. it will be seen that this
bill in its second section proposes to meet this very dangerous and difficult question
of a contest between two sets of electoral votes from the same State at the same pres-
idential election. It declares that all of these returns, the false as well as the true,

PROCEEDINGS AND DEBATES IN CONGRESS. 475

sliall be opened, and I can constrne 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 re-
jecting theiu. See then the result. There is here, if not the invitation, the opportunity
given to raise a false claim in order to defeat a true election — aud 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 Congress sufficiently in-
flame 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
weigli 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 tlie result ?
The one has neutralized 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 patent 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 belief 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 concurrent affirmative vote of both houses of Con-
gress.

Mr. President, I will not anticipate evil results. I only say that we should give, so
far as we can give, no opportunity for evil results ; that we should not give our con-
sent to a law that would, if carried out, wrongfully make a presidential election a
nullity.

Mr. FiiELiNGHUYSEN. I siiuply wish to say to the Senator from Delaware that I un-
derstand that this second section leaves the rule as it now is. I understand tliat by
this second section if there are two sets of votes sent up from any State, then the con-
currence of both houses as to which shall be counted is required, and that is the rule
at the present time.

Mr. Bayard. If that be so, then an amendment which I have had draughted 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. Fkelinghuysex. I had prepared an amendment, which I was going to submit
to the Senator from Indiana, to the same ettect.

Mr. Bayard. The honorable Senator from Ohio [Mr. Thurman] remarks to me
sotto voce that that is what the bill means now. I know that I had not the beneflt of
his audience 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 contrary, I believe the bill as it stands now, and if it passes as it staiuls now,
will work the result that I have stated, and I am not alone in this view. Wherever
a contest can be gotten up, and wherever xiublic opinion is sufficiently excited, wher-
ever the tone of political morality is low enough, there the contest will be raised and
then the votes coming here certified in form must be counted under this section, 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 Constitution on this important sub-
ject. 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, be-
cause 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 presence 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 honest, more reliable, the better for the people of the country.

Bat 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 senti-
ment of the peoj)le 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 determi])e such contests should
be lodged. How shall that be reached ? Only by an amendment to the Constitution,
and certainly by an amendment in which all men, without respect to party results, must
join. As I have said before, in dealing with the subject witliin the powers confided to
lis 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 nor be of the same political opinion. A rule framed between a demo-
cratic House of Representatives 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 jiurpose of accomplishing an amendment so important and beneficial,

476 COUNTING THE ELECTORAL VOTE.

shonlfl it not be embraced, and why should the regular ordinary business of this body
be postponed now to accomplish in hot haste that which should be accomplished only
by great care and consideration ? Why, Mr. President, it is well known that measures
which challenge our closest care and criticism, measures which demand from us labo-
rious and assiduous attention for the next six days, fill the Calendar. The interests of
the public witliout respect to individuals, the interests of individuals to whom our
duties are plain and clear as public reju-esentatives, 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 sessimi of Congress. Why is it then that measures like
this, which need calm counsel, which need the abstraction 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 importauce cannot well be exag-
gerated ; but for that very reason is the argument strengthened that there should be
time for deliberatiou and that the very circumstance should be allowed to take place
which I say is so favorable to their pro^jer 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 })roperly
— if it were left to me to decide how this question of contest shall be settled and where
will you dejiosit the power that is to settle it, I would not be able to give an answer ;
but 1 am perfectly clear that the second section of this bill is no answer to such a
demand. It jirovidcs no such remedy as solves this questiou. 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 difiering in method and substance 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 uot of itself a reason why we should pause until opinion
shall settle and crystallize itself by connuon agreement upon a proper and final method
of dealing with this great and important subject 1 If gentlemen desire this subject to
be considered by the light of partisan feeling, I will admit the x>reseut time is pro-
pitious. If they desire it settled upon what must necessarily be non-partisan feeling,
and the S'ttlement is important to everybody in the country, before the evils shall
crush upon us owing to this defect in our law, it will be an evil common to all ; no one
may hope to escajje it more than any other ; no party or no individual can assume
exemption from suftering in such a case — it is of the last importauce that we should
settle this properly.

There is amjile time for the settlement. No use for such a law can arise for two
years to come. It cannot be until the winter of 187G-'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 de-
cision in regard to a subject that should be for the safety of this whole nation, lifted
high above the atmos^jhcre and the heat of party? If Senators desire that, they have
an opportunity to secure it. It 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 com-
mittee 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 uot, Mr. President, whether the reasons 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 precious hours of this closing
session would be insisted upon being occupied with the consideration 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 ex-
pressed 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 permanent in their effects and in
their nature as that which we are now discussing ? Does this distrust felt in this
country not, on the contrary, seem to intimate that in the ojiinion of one-half of the
nation another half of the Avhole country contains a body of dissatisfied and untrust-
worthy citizens ? I would beg the gentlemen who may feel such distrust not to ex-
press 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 Avould not have it believed at home. I would bear
much to prevent such ideas being prevalent. I do beseech Senators not to give cre-
dence to them by their votes and by their 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

PROCEEDINGS AND DEBATES IN CONaEESS. 477

and of self-preservation, as to design anything wliicli shall not innre 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 ijut read in that expression the fact tliat the latest expression of the country'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 suspi-
cions should prompt it. As I said before, it is fatal to our common interest. It is un-
just 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 measure. I believe there is no warrant for the power which is sought to be as-
sumed by Congress 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 re-
ceived it to elect him to the Presidency, and of increasing it so that but for the pro-
visions of this bill he might be the duly elected President of the United States, but
nnder the provisions of this bill he will not be because more votes are required by the
bill tlian the Constitution refjuires him to have received in order to be declared elected.

Mr. TiiURMAX. I coucur with the Senator from Delaware [Mr. Bayard] in the opinion
that this bill should not be pressed in hot haste, and I have ]U)t pressed it. I agree with
him that it w(jnld be more satisfactory thatthissubjectshouldbe acted upon at the next
session of Congress than now, and for the reason he has suggested. Had the election that
took place in this country last year of members of the House of Representatives in Con-
gress taken place in England and resulted in a victory as great over the administration,
the adnunistration 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 remains
for a constitutional term. Yet such an ex])ression of publicopinionisentitled to great
consideration by the majority here, and imposes on it, in my humble judgment, a duty
not to press upon Congress matters that it is quite certain would be rejected by the
Congress to meet next winter. Whether this is one of those measures or not of course
must depend upon its imirits, for in respect to it there has been no expression of public
opinion. Thend'ore, while I admit that this measure is notone of the things that have
been decided at the polls and that it nuist be acted u])on according to its merits, yet I
say that, where there is a serious difference of opinion in respect to it, it would he more
becoming and more consistent with the idea of our being governed by the public will
that such a measure should be deferred, especially as ample time will be aft'orded for
passing it next winter if it ought to be passed. But a majority of the Senate have de-
termined otherwise. They have determined to proceed with this measure, and we are
therefore brouglit to its consideration ; and in its consideration I find the oi)inions of
the Senator from Delaware who has just addressed the Senate and my own on an im-
portant section of the l)ill very far opposed. Knowing as I do the ability, the indus-
try, the research, and the patriotism of that Senator, 1 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 relies in opposition to that section is not well taken,
that the dilhculty he supposes can never by any possibility exist.

Suppose the second section were stricken out of the bill and the bill were passed
without it, what would be the effect of the bill thus enacted into a law? And here I
crave the attention of the Senate, and especially of those who have been impressed by
the very grave and forcible remarks of the Senator from Delaware. 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 concurred in reject-
ing 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 objection be made to that return. The Sen-
ate retires to its chamber and a vote is taken in the two houses whether that return
shall be received. 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. Remember that. Here is a return, we will suppose, 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
houses 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 yt)u 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 npon 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 Constitu-
tion she is entitled. I submit to my friend that by no possibility could such a thing

478 COUNTING THE ELECTORAL VOTE.

occur, because wheu ouce you have counted all the votes to which a State is entitled
you can count no more. It is impossible; the thing is res adjudicata.

The moment you have decided, either by the ditt'erence of the two houses as to the
counting of the returns or in any otlier 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 au objection is made to its count. The houses separate, and
one of the houses decides that it sliall be counted? Would it not be counted then ?
No one will say no. Then suppose the other return is jiresented. What is the objec-
tion to that ? '■ We have counted Louisiana ouce ; we cannot count her again. We
have given her all tlie votes to which she is entitled ; we cannot receive any further
return from that State." But now, if by our act we make a difference of opiuiou be-
tween 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 wlien you have counted
one return the matter is res adjudicata, 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 giving her twicethe vote to which under
the Constitution 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 hiw, but the first section alone is the law. Suppose the
State of Alabama, the first on the list, is called, ami there are two returns from Ala-
bama, returns from two bodies claiming to be electors, as there were from Louisiana
and from Arkansas at the last count. Is there any law that says which t>f those re-
turns shall be first presented by the President of the Senate? No, sir ; and you can-
not make any law that will meet that case. It is therefore within his discretion which
one he will present lirst, which he will open lirst, and hand to the tellers 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 re-
turn 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 reci'ived. Then the vote of that State has been counted, and
there is no question upon any other return, and cannot l>e. So that the ett'ect of strik-
ing out the second section of the bill is simply this: that where the two houses are
divided in opinion ui>on a question which shall be the true return, the whole thing is
determined by tlie presiding othcer by the simple fact of which return he opens and
presents first. That is the result of it. The Avhole 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, because 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 ad-
judicata; 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 con-
fer 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 f 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. Suj^pose we go on under the present rule
and the vote is counted in January, 1877, and two sets of I'eturns 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 per-
formance 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 A^ice-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 ? Undei- your present rule you do not decide it at all.
One house decides that one body of men Avere not the true electors and their certiticate
is rejected. The other house decides that the other body were not the true electors,
and their certificate is rejected. Thus you come to no decision. You make no effort
at a decision between these two contiicting claims.

That is not right. It may be inevitable under any system. The same thing might hap-
pen, 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 ottered by the Senator from Indiana, [Mr. Morton,]

PROCEEDINGS AND DEBATES IN CONGRESS. 479

to rescind the twenty-second joint rule. I suggested the very difficulty and the rem-
edy, 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 tliought I w^as 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 adjudica-
tion between two conflicting returns, for the whole thing would depend upon the ac-
tion 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 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 decision to receive
one unless both houses concur. One house has no superiority over the other. If the
tw'o houses differ, one being in favor of one return and the other in favor of the other
aiul are inflexible, of course there can be no decision ; but when there are two or more
returns from a State, of necessity there must ba a concurrence of the two houses in
order to receive one of them. Just as an equally divided court can make no decision,
in the same way Avhere 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. TiiUKMAX. 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 principle 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 evidence of the vote
of the State for President? Tliat is the point that troubles me.

Mr. Thurman. lundei-stand the scope of the question very well, and I think it can
be very easily answered.

Mr. Edjiunds. That I should like to hear,

Mr. Tfiuhman. 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.

Mr. Edjiunds. Yes; but if I do not interrupt the Senator or trouble him

Mr. Thuuman. 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 sugges-
tion.

Mr. TiiURMAN. 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 be-
tween 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 pre-
cisely 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 lule that you shall take the first return unless both houses concur in reject-
ing it, without involving the difficulty which I stated before, and which perhaps the
Senator did not hear, that that would put it in the power of the presiding officer to
definitely settle what should be the vote of the State according 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 de-
sired. 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 country and that
the Constitution may be obeyed, respected, and executed, to frame such a measure 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 work that every man in the Senate 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 Congress, Avhere one House will be of one
political complexion and the other of another, and where a measui'e may be matured
that would be more likely to give universal satisfaction ; for I take it to be almost cer-
tain that the twenty-second joint rule cannot stand as the law of Congress.

480 COUNTING THE ELECTORAL VOTE.

Mr. Edmunds. Mr. President, I do not think that the Senator from Ohio has any
iust right to say or to imply in what he says that this hill has any reference to par-
ties

Mr. Thurmax. 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 party will have the other. If this is a
bill which appeals to good men of all parties to settle a troublesome and difficult ques-
tion 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 Constitution, as it strikes me, is this : The
Constitution requires that the vote of each State shall be opened by the Presiding Offi-
cer, 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 f We all agree that every vote of every
State ought to be counted. We all agree that whatever i>reteuds 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 pro-
vide 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 I 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 thousand other afitairs what has been done, (because what has
been done is the business which the Constitution recjuires in sonie way to be ascer-
tained,) a tribunal is provided, upon the philosophy of justice and jurisprudence,
which is one single tribunal, and whose judgment when pronounced by a f[Uorum of
its body becomes one single judgment. The fault of the present rule is that unless
both houses concur in counting a iJarticular ]iaper as a vote the paper is not counted
at all. If a State should send a vote which should be perfect in every respect, con-
form on its face to the Constitution 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 ail that, it is witbin the power of either house, as the rule now
stauds, it is true, to say it shall not be counted at all, and the constitutional right of
the State in question is entirely overtlirown 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 Constitution 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 tlie State,
or unless it appeared for want of evidence, in defect of execution 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 assem-
blage of men who have no shadow of constitutional authority but who have got pos-
session of the great seal, or liave 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 black-
berries and made to order, shall be counted. Here you have a paper which on the
face of it appears to be proved by the great seal of the State of Louisiana ; I take that
merely for illustration. It is signed by somebody who purports 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 that those votes shall be counted. The difficulty is just as great 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, following 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 returns, as I say — that whatever does come which appears to be, pur-
ports to be, in form, the voice of the people of the State, shall be counted unless both
houses concur in saying that that is not the voice of the State. To my miud the latter
alternative is quite as dangerous, 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 Constitu-
tion and the law whether a particular ijajjer which is opened by the President of the

PROCEEDINGS AND DEBATES IN CONGRESS. 481

Senate in the presence of the two houses, and which is then offered to be counted under
the Constitution, is tlie vote which the Constitution speaks of.

The Constitution says " the votes shall then be counted." What is a vote? The
Constitution does not mean that every paper wliich a selectman or a justice of the
peace may send here shall be counted ; bnt it says the vote shall l)e counted. What
is a vote ? The vote, under the Constitution and the law, is the lawful and authori-
tative expression of the electors 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 alternatives. 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 admin-
istering justice, because you would presume that the two judges sworn to administer
the law and nothing else would in some case or other agree that a particular piece of evi-
dence ofitered was lawful. Then you turn that over and say that all evidence otiered
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 1)6 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 condition 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 everyone, if a man is reported under the Constitution and the laws and de-
clared 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 Constitution 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 judicial decision,
it is better for the peace of society that it should stand, even if erroneous, than that
the community should be thrown into anarchy. 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 ujion 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 constitutions and
the laws of almost all the States. Suppose that be so, what then ? Why, the law must
provide in some way for a consolidated 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 Con-
stitution declares shall extend to all cases and controversies arising under the Consti-
tution 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 President 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 appeal, would, under our Constitution and laws,
have been a judicial determination constitutionally made as to the controversy be-
tween those two gentlemen respecting the right to'this office. Other gentlemen dis-
agree to that idea. They believe, as I said, that the first branch of the proixisition 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 controversy which arose under the Constitu-
tion and under the law ; and how in sucll 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 entitled to that olflce ? They could not do it.

482 COUNTING THE ELECTORAL VOTE.

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 con-
stitutional right under the judicial power conferred by the Coustitution ; 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 solu-
tion of this difficulty, goiugupon the assumption that the two houses in some way are
to determine this question for the time being, that they must determine it in such a way
that you get prima facie at least a consolidated 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
separately ; either that nothing shall be received that they do not agree to or that every-
thing shall be received that they do not concur in rejecting; that we should nrovide
for what is common in many of the Eastern States, and is the constant and constitu-
tional practice in the State from which I come ; that is, on each occasion of a presi-
dential election the appointment of 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, tiius selected and apjtoiuted, would presumably be among the purest
and best and most skillful in law and in politics 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 the 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 considerations that they would be bound to apply to them had the Consti-
tution declared that those eight persons sliould form a court who should finally deter-
mine 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 conference
committee, each representing one house, but one single body of eight or nine men,
should take these papers, with the Constitution 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 prac-
tice in the State of Vermont.

Mr. Morton. What would the two houses do with the report after it gets there?

Mr. Edmunds. I was going ou to state : It is one of the misfortunes that I labor nude r
that I cannot say everything at once, and I do not want to take time. I should pro-
pose that when these eight gentlemen, if you please, so acting and so sworn to act im-
partially, according to the law, should have made their report, that report should be
taken as the guide as to who appeared to be the President of the United States, un-
less the houses should concur in setting it aside. Instead of saying, as my friend's
bill does, that a vote which has not undergone that sworn scrutiny shall be taken, I say
that a vote having undergone that scrutiny and being allowed shall be taken, or being
rejected shall not be rejected unless the two houses concur in reversing this sworn ex-
amination of men who are in an attitude to make an examination. We all know as a
practical thing from what we have seen, those of us who have been here through one
or two presidential elections, that the difficulty in coming to a conscientious and right
judgment upon a question that is presented is very great on account of the haste, the
want of time, the inability of sixty or seventy Senators — taking this small body — be-
ing able to see precisely what the question is. Every Senator cannot look at the pa-
pers at the same time, and we are in haste; we must act without debate under existing
rules ; or, if under debate, every Senator who is acting conscientiously, as all do,
would wish to see precisely what this document is which is drawn in question. We
are acting of course in 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 ujion to decide suddenly upon a paper which you have never seen before,
where a great number of persons cannot take it in hands and inspect 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 legisla
five department of the Government, but by force of the law, this power to a chosen
body of the members 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 ques-
tion, and who may by themselves have time enough, if it be not more than an hour, to
study and examine the question conscientiously, and under the sanction of an oath to
decide rightly, is there not a greater probability that you reach the true and lawful
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 disagree?

Mr. Edmunds. I will come to that, if my friend will j)ardou me. I have thought
even of that.

PROCEEDINGS AND DEBATES IN CONGRESS. 483

Mr. Frelingtiuysen. Do I iinderstand tliat the proposition of the Senator from Ver-
mont would change the bill of the Senator from Indiana in this, that after the certifi-
cates are oitened 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 con-
dense 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 double votes for the time beiug— is this: In the one case, as the bill now stands,
every tlung is to be counted that purports to be a vote unless the two houses separately
concur in rejectiug it. My jjropositioii, or suggestion rather, because I have made no
motion, is that these jiapers should be referred to a sworn committee of four Senators
and four Representatives; that they should have time to examine them; and acting
under tlieir oaths should decide whether the papers presented are votes, and being
votes shouhl 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 re-
jected after such a report, unless the two houses agree to reject it ; that is to say, that
the probability of conformity to the Constitution and conforuiity to the law is lieight-
ened by liaving the present and sworn judgment of four Senators and four Represent-
atives wlio have had time an<l opportunity to scrutinize the documents, is safer than
to say that tliese papers shall be counted, unless the two houses acting separately in
their numerous bodies, say the same tbing.

The next question is, What is to hajipen then? My friend says, "Suppose they dis-
agree;" because what I have already said only shows tliat this paper is not to be
counted unless both 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 dimiuishes the chauces of fraud, or of passion, or of tumult, a greiit deal.

My friend from Indiana asks, "What are ycm to do if they are equally divided in
opinion, if you have eight ?" Then, Mr. I*resident, in order to meet his views, although
it would not ((uite meet my own, I should propose that after a scrntijiy by four Sena-
tors and four Representatives, made a committee for that puri)ose, if the question were
so doubtful that they were equally divided in opinion, I would take his theorj^ as it
now stands in the bill and let it go, that a }>aper which came so near, to say the least
of it, being what it purported to bo, the vote of <a State, should not be rejected unless,
as he now pro]iosts without that scrutiny, l)oth houses should agree in rejecting it.

Mr. TmuMAX. The Senator from A'erniout may have spoken on the word "then"
in the Constitution, but owing to the interruptions around me I may not have heard
it; but if he has not, I wish to ask him what construction can be given to the word
" then " in this senteuce :

"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 tlie word " then " to be ?

Mr. Edmunds. I think I am safe in saying I have no doubt 1 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," because 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. CONKLING. " Forthwith."

Mr. Edmunds. " Forthwith," as my friend from New York suggests. That ivS 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
sugg 'stion I make I would provide that this committee 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,
awaitiug their report, just as if wo were to direct the Committee on Privileges and Elec-
tions at this moment, by a resolution, to bring in a bill forthwith to preserve the peace
in the District of Columbia, if there were a great tttmnlt here, and that we would do no
other business until that were done. What woitld we do ? That committee would re-
tire and we would take a recess for two hours. The two hours come ; the committee 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 f I think " then " means " on that occasion," that is
to say, it is the business presently to be performed and the next thing to be done, and
therefore covers a space of time broad enough to accomplish the purp(jse for which the
Constitution 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. HowK. If tube Senator is correct in his interpretation of "then," would not his
own line of i)rocednre be excluded by it? If "then" commands the convention to count
the vote the next thing, would it not prohibit the convention from referring a vote to
a mixed commission such as he suggests ?

484 COUNTING THE ELECTORAL VOTE.

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 certiticate 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 state-
ments which the law re([nires, that the electors met on the day prescribed by law and
cast their votes in conformity to law. If you are to hold otherwise, then you hold
that this Government is not a goverumeutof law but a government of something else.
I do not think that there is any difficulty about the word "theu." I think it refers to
the occasion, and that it means precisely 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 Constitution, such as the law may pro-
vide, to ascertain what are the votes of States, and how, they being justly com'piled,
the result is to be ascertained." 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 sworn report ujion them, on the occasion of
this great aud 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 au amendment (I do not know that it will
get any votes, but the gravity of the occasion compels nie to do what I think will be
my duty) which will cover the views I have expressed.

Mr. Thurman. 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 inti-
mate any opinion of my own. I might admit that the word " theu " means " upon that
occasion," as he suggests, or that it means " immediately thereafter;" that is to say,
immediately after the opening of the votes, without the intervention of auy 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 gainsay
that, always consistent, however, with the fact that the votes are to be counted forth-
with after they are opened, and in the presence of the two houses, and the result de-
clared. Now, whether under this provision of the Constitution 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
l^resent.

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 con-
cur with him, and that is in regard to the idea expressed by him that the election of a
President of the United States may be made the subject of "contest in the courts of the
United States. To 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 the United States shall be vested in one Supreme Court, and
in such inferior courts as the Congress may from time to time ordain and estabhsh.
The judges, both of the Supreme and inferior courts, shall hold their offices," &c.

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.

" Sec. 2. The judicial power shall extend to all cases, in law and equity, arising
inuler this Constitution, the laws of the United States, and treaties made,"or which
shall be made, under their authority; to all cases affecting embassadors, other public
ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to contro-
versies 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 dif-
ferent States ; between citizens of the same State claiming lands under grants of dif-
ferent States, and between a State, or the citizens thereof, aud 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 Constitiition, that there must
be a case made before the judicial power can be exercised. It must be a case, what is
known in the technical language of thelaw, either common law orequity orstatute law,
as a case, before the court can get auy jurisdiction of the subject, for the Constitution
is phi-n that " the judicial powers shall extend to all cases in law aud e((uity." 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 jurisdiction to the Supreme Court, we find it
provided for in the next paragraph of the section from which I have just read —

PKOCEEDINGS AND DEBATES IN CONGKESS. 485

"In all cases aflfecting embassadors, other public ministers, and consuls, and those
in which a State shall be party, the Supreme Court shall have original jurisdiction."

Very plainly these words do not include the case of a contest for an office ; and the
Sujireme Court has decided definitely that you cannot add by legislation to this orig-
inal jurisdiction conferred by the Constitution, so that you couhl not by law provide
that there might be a contest by quo ivarraiito, 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 embassadors, other public ministers, and consuls, and those in
Avhich a State shall be party," and they are the only cases in which tlie Supreme Court
has original jurisdiction:

" In all the other cases before mentioned, the Supreme Court shall have appellate
jurisdiction, both as to law aud fact, with such exceptions and under such regulations
as the Congress shall make."

It follows from tliis that if an election of President or the right of an individnal 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, andean only
reach that court by Congress conferring upon it appellate jurisdiction 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 tiiem by
law, that whetiier tliey should have jurisdiction in such a case or not would depend
wholly upon the will of Congress, aud therefore it would be just as one Congress
might decide or as another Congress might decide whether there should be this
judicial contest at all. Was it intended that the title to the office of President of the
United States should dejiend upon a contest in a court, which contest itself is wholly
dependent upon the lluctuating opinions of Congress ? One Congress might pass a
law clothing the Supreme Court of the United States with power to entertain a quo
warranlo in such a contest, aiul just when that contest was at its height, and before
any decisit)n had been rendered ujjou it, the next Congress might repeal the law
conferring the jurisdiction. Was any such thing as that ever intended by the
framers of the C. nstitution ? It seems to me not. It would be a very extraordiiuiry
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 aud the next day or the next week repeal the law that gave the court
jurisdictiou.

Mr. Edmunds. May I ask the Senator a question ?

Mr. TiiUKMAN. Certainly. I wish to arrive at the truth.

Mr. Edmtxds. Would not that same argument api>ly to all the cases of judicial juris-
diction arising under the Constitutionand provided for intermsexcept those "affecting
embassadors, other public ministers and consuls, and to those in which a State shall
be a party ;" ami then would not the argument be just as great that Congress could
not have intended that there should not be any trial of issues between citizens or any-
body else in cases arising under the Constitution, except those over which the Su-
preme Court had original jurisdiction? In addition to that Congress must create a
Supreme Court, to begin with, and how could it be supposed the Constitution intended
to allow such suits, inasmuch as it was left for Congress to create the court to do it?

Mr. TiiURMAN. The Senator's (piestion 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 sub-
ject to any such fluctuation as that. The idea of the framers of the Constitution Avas
that that question should be settled, settled at once and settled forever, aud that it
was better for the peace of the country that it should even be settled erroneously 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 Uuited States, aud 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 Con-
stitution, to be President of the United States ; of course then he is inaugurated; and
then a contest 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 controversy, because if a
quo xcarranlo 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 tnarranto to be begun
in the circuit court ; that circuit court renders a decree ousting the President 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 enforce a judgment of ouster against the man who is de facto President of the
Uuited 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 certainly not.

486 COUNTING THE ELECTORAL VOTE.

But there is still another reason why the idea is wholly inadmissible. When would
such a judicial contest end? If, as I said before, a judicial contest may be commenced
for one cause, it may be for another. Suppose that the ground of the contest shotild
be that there was fraud in the election in the great State of New York, that there were
fraudulent votes given, that men voted whoAverenot 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 electiou, would have been given
for the unsuccessful candidate. Suppose that is the ground of contest, then the Presi-
dent being defendant in such a proceeding would have the right to recriminate and
say "there may have been votes given for me by persons who were not entitled; there
may have l^een bril)ery or corruption or intimidation or duress on my side ; but I answer,
et in 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 hud out which set of elect-
ors received a majority of the lawful votes of that State. I do not remember at this
instant how many votes New York casts; I think it is about 700,0U0. Will the Senator
from New York please tell nie?

Mr. CONKLING. Eight hundred thousand.

Mr. Thurmax. Eight hundred thousand. When will you get done canvassino-
800,000 votes or the half of 800,000 votes or the fourth of 800,000 votes, and who is to
pay the expense ? 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
them at a time, which we hear so nmch 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 ap-
pointed by the very man whose title to the seat is contested; prol)ably 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 Snpreme C<mrt, 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 contest-
ing the otfice of Chief Magistrate of the United States in any court whatsoever is not
to be entertained for a moment. I do not, therefore, agree with the Senator from Ver-
mont that there can be any such contest. I do not think that the framers of the Con-
stitution intended that the title of the persons 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 declared elected pursuant to the Constitution of the country. There
might be error in deciding 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. FiiELiNGHUYSKX. It sceuis 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 amendments to the Consti-
tution settles who has jurisdiction over this question. It does not do so in express
terms, but it does do so by necessary 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. Tiiat by necessary implication to my mind gives the juris-
diction over this subject to the two houses; and if the Constitutiou does give it to
them, we cannot by law give it to the judiciarj' of the country.

Mr. MoKTON. I would suggest to my friend further that the twelfth article of the
amendments provides that if no candidate receive a majority of all the electors ap-
pointed, the House of Representatives shall immediately proceed to elect by States,
giving no interval of time.

Mr. Frelixgiiuysen. CertainlJ^ The whole frame-work of the Constitution is re-
pugnant to the idea of its being settled by the judiciiary. 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
appointed who shall instanter, if the thing is feasible — I do not know that it is — con-
sider 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 eifect of that committee being not to take the jurisdic-
tion away from Congress 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. MoRTOx. The committee had the benefit of having the amendment proposed by
the Senator from Vermont before it, and it was somewhat considered. The proposi-
tion of the Senator from Vermont is to intrude a joint committee of the two houses

PROCEEDINGS AND DEBATES IN CONGRESS. 4^7

into the consideration and determination of this question, providing that that com-
mittee shall be four of each House, a joint committee of eight, that it shall not be like
a conference committee, the members from each branch acting separately, but that it
shall compose one committee, 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 number 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 certainly was not embraced in the idea that the two houses shoiild 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 involves another danger perhaps equal to that in its charac-
ter. It places the election of President and Vice-President in the hands of eight men,
or rather a majority of eight men, which would be five, unless their action is overrnled
by the two houses. You substitute the judgment 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 these eight men unless the two houses reject their conclusion, which gives you a
higher security.

Mr. MoRTOX. 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 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 differing in politics may not agree jointly to overrule that action if it shall be
in favor of that candidate who has a majority in one of the houses. You have the
very difticulty involved in the present rule. Let me supyiose a case. You appoint four
Senators and four Representatives to constitute one committee. The House is demo-
cratic 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 throwing out the
votes of certain States, if you please, or counting improperly the votes of certain States,
and then tlie conclusion of those five of the eight must stand unless both houses agree
to overrule the conclusion. That is putting a majority of the joint committee of the
two houses in a position that the Constitution has never contemplated. Xo precedent
for a thing of that kind, I venture to say, can be found, and a more dangerous con-
trivance 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 l)oth houses
are of the same complexion, and both candidates for President are substantially of the
same complexion, the question is determined by a majority of that committee. If the
houses are of different political 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 re-
turn 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 Sen-
ate opens that vote, and it must be counted. There is no help for it. There is no pro-
vision by which you can avoid counting that vote. Under the twenty-second joint
rule if an objection 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 dis-
franchised, just as Arlvansas was disfranchised upon a mere technicality 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
intruded; and a mere mock electoral college cannot be palmed off; it will be under-
stood 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 concurrence of both houses, even of the most unim-
portant character. I asii if you will disfranchise a State or half a dozen States with-
out the concurrence of both houses, and what is the advantage of intruding this com-
mittee 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

31 X

488 COUNTING THE ELECTORAL VOTE.

Vice-President of the United States. If men are weak, if they can be corrupted, if
temptation may overcome them, yon 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 i)rovides 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 consider that both houses act with
some integrity, although they may be swayed by popular passion or by popular feel-
ing to a great extent. If both houses concur in rejecting the vote, the State is dis-
franchised. 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 governments
in a State, or where there are two sets of electors, both certitied 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 amendment proposed is without merit.

Mr. Weight. Will the Senator from Indiana 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, 1 understand the Senator to say, is left to implication entirely. The section
does not state what shall be the eti'ect if the two houses are unable to'agree. It says
that the return from such State shall be counted which the two houses, acting sepa-
rately, 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 8ul)mit to the Senator whetlier 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. W^RiGiiT. I have no doubt that is the implication. I suggest — without using
too many words — that the Senator use this language : " and that return from such
State shall only be counted which the two houses acting separately shall each de-
cide ;" putting in the word " only" after " shall " and "each " before " decide."

Mr. CoNKLiNG. Why not put it after " return ;" so as to read : " and that return
only," ScG.

Mr. Morton. I have no objection to that amendment.

Mr. Wright. I suggest it then.

The Presiding Officer, (Mr. Carpenter in the chair.) The amendment will be re-
ported.

The Chief Clerk. 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 several Senators around me, for the purpose of
taking the sense of the Senate, I move that at .5 o'clock the Senate take a recess until
half past 7 for the purpose of finishing the bill.

Mr. Edmunds. Let us finish the bill now.

Mr. Morton. I will take the sense of the Senate.

The Presiding Officer. The question is on the motion of the Senator from Indiana
to take a recess from 5 to half past 7 o'clock.

Mr. Morton. I made the motion at the suggestion of the Senator from Ohio [Mr.
Sherman] 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 willing 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 understand-
ing 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 any-
body who wishes to speak at length. But if it is meant immediately after this bill
shall be disposed of to take up another measure and proceed with its consideration to-

PROCEEDINGS AND DEBATES IN CONGRESS. 489

night, then I think the sooner we take a recess the better. And therefore it all de-
pends with ine upon the question whetheror 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
majority 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 projiose, 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 tlie bill ; that then the gen-
eral debate sliall terminate, and if any amendments are to be ottered to the bill that
they may be ottered and there may be the short debate of five or ten minutes in sup-
port 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 agreeable to gentlemen on the other side, all I would wish to do to-uight would
be to dispose of this ))ill and take up the other and then adjourn, if gentlemen on the
other side would like to do so.

Mr. THrRMAX. 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 sh ill be closed on that
bill. I, however, feel some little delicacy about making any suggestion upon it. I do
not expect to speak on the civil-rights bill. I have twice spoken upon it and spoken
very elaborately at dift'erent sessions of the Senate, and I do not feel disposed to take
up any time b%^ further remarks, but would rather leave it to others who have not en-
joyed 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 Senate 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 ettbrt on my part to 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 be-
fore 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 business that
is before us.

The Presidin'g 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 ouglit to be passed at the present ses-
sion. We are told that unless it shall pass or some bill like it shall pass at this session,
the country will be in great danger of revolution when the time shall come to count
the electoral votes for President at the next election. We are told that the danger is
imminent. I have been struck with the fact, however, 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 danger two
years hence than there has been in the past. From the beginning of the Government
down to February, 1865, there was no rule or statute prescribing how the electoral
votes for President and Vice-President 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 1SH5 the twenty-second joint rule
was adopted. W^hat particular considerations moved Congress to adopt that rule I do
not know. The political party then in power and administering the Government was
the same that administers 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 concurrent 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 whereby it is to be provided that no vote shall be rejected for President and.
Vice-President unless it shall be done by the concurrent vote of both houses. I can-
not 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 remember 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 satis-
factory conclusion.

490 COUNTING THE ELECTORAL VOTE.

Mr. Mp:rri.mox. But we are told now that it is suddenly very important to pass it.
Mr. Edmunds. Not suddenly.

Mr. Meriumox. No graver question could come before the Senate. It involves con-
stitutional considerations of the most serious and complicated character. Eight at the
heel of the session, when there is no time for consideration or proper deliberation, we
are called upon to pass this very delicate bill and touching a very delicate power to
be exercised by Congress. I think that no good reason has been assigned for this pre-
cipitancy, audi can conceive of none except this, that the Government is about to change
hands politically. In the next Congress there will be a very large majority of demo-
crats in the lower branch of Congress ; there will be a republican majority in the Sen-
ate, and I will not say it is so, but it looks very much ?8 if the purpose was to create
a check, a negative upon the democratic House. If turh consideration is a moving
considei'ation 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 pa-
triotic as the repulalican jjarty. They are no more given to revolution and to doing that
which is unjust than any other party in the country. No consideration has been brought
forward, I maintain none can be brought forward, which goes to show that the demo-
cratic 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 assigned, no fact has been stated,
no consideration has been brought to the attention of the Senate going to show that
there will be a different state of feeling at that time from what has prevailed in the
past. There is then no necessity for the precipitancy that is manifested in considering
this bill and in passing it right at the close of the session, when other matters are press-
ing upon lis, when appropriation bills ought to be under consideration to the end
that the interests of the Government may be carried on iu the ordinary lawful way.
Mr. Edmunds. There are no appropriation bills before us.

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 suggestion as to the reason of this. Will he
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
democratic. He will hud by reading the rule under which we now vote for Presi-
dent—

" And no question shall be decided affirmatively and no vote objected to shall be
counted except by the concurrent votes of the two houses."

Now, if he is putting it on the ground that we desire political advantage, the old
rule is the one we would 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 pre-
vent that that the bill is presented to the Senate requiring that both houses must con-
cur 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 ex-
clude 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 contend, that electoral vote was unlawful and ought not to be counted at all, yet
that vote must be counted unless both branches of Congress shall concur in rejecting
it. Am I not correct iu that ?

PROCEEDINGS AND DEBATES IN CONGRESS. 491

Mr. Logan. Certainly yon 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 t'j determine Avhen a vote is not correct. Is not that the rule in legislation I
What do you convene both houses for ?

Mr. Mkkkimon. If that is correct, why was not that the rule before ?

Mr. Logan. We want to correct a rule that I consider incorrect.

Mr. Mekkimox. Wliy not alter the rule ? Why adopt this elaborate statute?

Mr. Logan. This does alter tlie 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 between a statute and a rule, so far as the effect
goes.

Mr. Merrimon. Tliere is a very wide difference between a statute and a rule.

Mr. Logan. Not at all, so far as Congress 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 inter-
rupted 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 lias lasted nearly a century without it ; and every one must concede,
all have conceded indeed, that the difficulty to be solved is one of great importance
that requires the highest and gravest deliberation. 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 thorouglily ventilated in both branches of Congress, and every one must concede that
there is no opportunity 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. Merrimon. 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 pass over that, in my judgment Congress has
power to pass an act regulating the manner of comparing the electoral vote for Presi-
dent and Vice-President, and that power is derived from two clauses in the Constitu-
tion. 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 lias been no reason given for what he calls this pre-
cipitate action on the part of the Senate. He says we got on for many years without
any rnle of tliis 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 Get)rgia been sufficient to turn the election on either side under this
rule— does he believe we could have got through without a revolution ?

Mr. MEiiRiMON. 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
democratic 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 decision had been made by a power authorized t o do it.

Mr. Logan. Now 1 will ask the Senator suppose it had been decided on the other
side, what does he tliink the result would have been?

Mr. Merrimon. I think the republican peoijle 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 fairlj', 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 Graut by oue vote ; do you believe
then, if the republican party had thrown out those States and elected Graut by one
vote, while if they had been fairly counted Mr. Greeley would have been elected, the
demociatic party would in that case have submitted ?

Mr. Mkrrim )N. In the first place I do not thiuk the republican party would do
that : but having the })ower to do that, being charged by the Constitution of the coun-
try with the power to do it, if they had maii^ the decision, I think the American peo-
ple wf)nld have submitted to it.
Mr. Logan. Yon do ?
Mr. Merrimon. I do.

492 COUNTING THE ELECTORAL VOTE.

Mr. LOGAX. Our past experience does not prove that to me.

Mr. Merrimox. And further than that, I believe it is characteristic of the Ameri-
can people that they submit to a decision properly made by the proper authority how-
ever much they may condemn its justice, however erroneous it may be, just as they
submit to a decision made by a court having competent jurisdiction of a question to
decide it. If the Supreme Court having jurisdiction of a question 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 submit to that decision because the proper constitutional
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 com-
paring the electoral vote, however much they might have condemned it, however erro-
neous, false, fraudulent 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 condemned 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 upon 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 will-
ing to submit to their tribunals, 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 triumph-
ant in this country. I do not believe any such doctrine, aud when geutlemen make
such suggestions with a view to push this bill through Cougress in such a hurry they
fail to alarm my fears. I believe I have confidence enough in the republican party of
the nation to believe that if, when the next electoral vote is counted, the Congress
shall ascertain that a democratic President shall have been elected, the republicans of
this country will submit 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
believe Congress has power to pass a law regulating the manner of counting the elect-
oral votes for President and Vice-President, and that power is conferred by two j)ro-
visions contained 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-President, and they shall make dis-
tinct 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 aud House of Eepresentatives, 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 ap-
pointed ; and if no person have such majority, then from the persons having the high-
est numbers not exceeding three on the list of those voted for as President, the House
of Representatives shall choose immediately, by ballot, the President," &.c.

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 conferring power upon Congress, these are suf-
ficient. 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 Constitution. 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 assemblage ; it must be the act of this joint assemblage ; 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 sitting in
joint assembly.

Mr. MoRTDX. If I understand the Senator'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. Merrimox. Yes, sir ; that is it exactly.

Mr. Mortox. And that they must settle all questions ?

Mr. Merrimox. They must settle all questions. It is done after the manner in
which United States Senators are elected by the several State legislatures. The act
of Congress prescribes how the Senators shall be elected. The two houses of the leg-
islature 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 Sen-
ator, and continue to ballot until one shall be elected. They vote as one body ; the

PROCEEDINGS AND DEBATES IN CONGRESS. 493

two branches of tbe legislature are in Joint assemblage ; and the assemblage cast their
votes as one body for LJnited States Setiator.

I maintain tliat by all rnles of constitutional construction, of legal construction, the
two houses met for the purpose of comparing. the electoral votes for President and
Vice-President act as one body. They act in their joint capacity, and all questions
that may arise touching 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 law,
where is the constitutional authority for the two bodies separating, the Senate going
into its chamber here and deciding a question here in tins body ? I respectfully ask
Senators who are supporting this bill to show me aiij' constitutional authority for that.
Show me any rule of constitutional construction or of legal construction which war-
rants the joint body in separating and going to their respective chambers and decid-
ing a question. Why, sir, in that case the matter is decided by the Senate as a Senate
in its own chamber, separate and apart from the other branch of Congress. The House
decides it as a body separate and apart from the Senate. It cannot be in'etended that
there is one word in the Constitution which autliorizes the two bodies thus to separate
and to make a decision touching tliat matter. It was contemplated by the Constitu-
tion that the two bodies should go into joint session and for a particular purpose, to
exercise a power that was conferred upon them as a joint body and to decide all ques-
tions touching the matter they had jurisdiction of as a joint body, as such joint body.

I say again that I respectfully ask any Senator 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 liere, in its capacity as a Senate, separate and apart
from the House of Representatives, decide a question and tlien go back into joint ses-
sion again. Tliey are not exercising a ]>ower conferred by the Constitution when they
do that, and I maintain therefore that Congress has power to pass a law which shall
regulate tlie actiui and the proceedings iuid by that joint assemblage in comparing
the electoral vote tor 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 absolutely null and void ; it is inoperative, for no such power is conferred
by the Constitution.

There is another clause that authorizes Congress 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 ail other j)owers vested by this Constitution in the Goveru-
ment of the United States, or in any dei)ar ment 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 pro-
vision contained in the twelfth article of amendments, but it authorizes Congress to
pass all laws necessary to execute the twelfth article consistently with the power con-
ferred upon Congress in the twelfth article. By the twelfth article the electoral vote
for President and Vice-President 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 Representatives 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 Constitution.

But, sir, I want to say to the Senate that for one I have not studied this subject as
thoroughly as I should desire to do. It is a grave question, one of great moment, one
that ought to be decided after due deliberation and long discussion. In my judgment,
it ought to be postponed 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 considerations one way or the other, and a law that would become
as perpetual as the Constitution itself, and ward oft' any possible danger.

But, sir, I repeat what I said a moment ago, that I do not believe there is dan-
ger of revolution ; I do not believe that revolution is imminent. I have too much
confidence in the American people of all parties to believe that they are going to de-
stroy their Government because Congress, in the exercise of a power confided to it,
shall decide that one man or another has been elected President.

My main object in rising was to call attention to tlie point I have made that Con-
gress must sit as a joint body in counting the electoral 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. President, this proposition gives trouble in com-
ing 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 Sen-

494 COUNTING THE ELECTORAL VOTE.

ator from Vermont ; but it goes up higher than that ; it goes to the question of our
constitutional ])Ower to pass any measuie 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 iu 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 wc necessarily incur iu
attemi>ting 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 direc-
tion to the Constitution apart from its word and spirit and then enact laws or rules to
suit, we h;irdly 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 exi-
gency, and t-he bill now before us is not less extraordinary in its general import. It
proposes to supply alleged defects or omissions in the Coustitnti(m, when it cannot
cover the whole question nor apply the general and etiective remedy.

The honorable Senator from Vermont has ofiered an ameudmeut that in some re-
spt'Cts 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 re-
spect to the power of both houses when in joint convention, in respect to the power
of both houses when they meet in joint convention, 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 justifying any legislation upon this subject is
this :

" The rrci^hloit of ilte Senate shall, in presence of the Senate and House of Bepresentatices,
open all the certificates, and the rotes shall then be coiivted."

This the only ground for legislation of any kind. It is very narrow indeed.

I listened to the honorable Semitor 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
considerable legislation. I very readily recognized that he conld technically, accord-
ing to his reasoning, expand or extend that word to cover almost an infinity of time,
a whole session of Congress for illustration. But even extending 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 emjthatic that the V(jtes shall be counted
in the j)resence of both chambers. What does the amendment of the Senator from
Vermont propose to do? To appoint a joint committee, and they are to inquire into
something and then report. What is to be the reach of their power ? Are they to
inquire simply as to what arises on the face of the certificate only ? How far is the
inqniry to extend, whether it be made by a joint committee, or by the tellers, or by the
two houses separated? Is it merely and pnrely to look at the certificates to see
Avhether 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 tlie 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 there shouUl be a contest as to
electors. There is not an allusion to a case of the kind. The duty of the President
of the Senate and of the two houses is as simple as words can make it. Aud 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 trans]iired within the last eight or ten years. They took it for granted that the
States would appoint electors, and iu whatever manner it suited each State; that they
would cast their votes, and that that was the end of theirfunctionsandof tiieactionof the
State, and that as they were soveicign 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 receive 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 iu the presence of both houses. It was con-
templated by the Constitution that this most important act was final upon the part of
the State and ])Iaced by its own action beyond cavil or controversy.

What is contemplated in the inquiry proposed by referring the electoral votes either
to a committee appointed under tlie amendment of the Senator from Vermont or to the
tellers to be examined in the ])resence of both houses or by the houses separately iu
case objection is made ; what have we to be examined ? Can we go back and inquire
into the manner in which the electoral votes were cast ? Can we go back and inquire
into the manner in which the electois were appointed ? Can we go back to ascertain
whether they were legally appointed or elected by the people ? Into what infjuiry in
either aspect of the case are we allowed to go? I think it must be conceded that if

PROCEEDINGS AND DEBATES IN CONGRESS. 495

uuder this clause of the Constitution when the two houses are assembled together for
that purpose the votes must then and there be 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 in our presence. Shall we infer therefore that we have in sepa-
rate bodies the right to investigate and reject ? Is each house to examine into the man-
ner in which the electors were appointed or how they discharged their <luty ? Is each
house to investigate separately as to whether electors have been ai)pointed or how
appointed, or which are the rigiitf ul ones in cases of two or more sets of electors ? Can
this all be done as the Constitution now exists ? Can it be done under the phrase " the
votes shall tlien be counted ? " Can each house, acting separately, under that phrase
enter into an investigation, summon witnesses, and determine controversies about
Azotes? Can this be done in either a joint or in separate assembly or before the com-
mittee 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 certiticates 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 hoyr
extended you mabe the Avord " then," yon cannot haA'e a contest in its real sense be-
fore you under that word. You are limited to one simide inquiry, and that is as to
what the certificate 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 yoii would liave too many electors. But
how incinire, how contest, how investigate 'I If at all, it ought to be done in juint con-
vention or assembly, for the count is a high act anil to be done in the presence- of a
united body. It Avould be anomalous to count a result in two separate bodies, it l)eing
an act that cannot admit of separation. But the prominent fact is that the framers
never contemjilated that there could be a contest, that there could be duplicate returns,
and accordingly made no provision for it.

In the bill now before us you allow either house to except to the count of electoral
A'otes where there be two returns made froiu a State. What are you to do then f The
two houses are to sej)arate and to determine the question, and in case they disagree
the vote shall not be counted. Have you that power? I think not. But what are
you to do in such a case ? Vote blindly to receiA'e or reject ? If not, what kind of an
examination can you have? You have two sets of electoral votes, two returns laid
before you, each set apparently duly certified. Are you then to iuquire into the fact
which set of electors are entitled to cast the votes? And this involves the inquiry
further, which set Avas appointed ; and, if elected by the peoi)le, Avhich did receiAe a
majority of the A'otes of the people? Take the case of Louisiana, where two sets of
electors Avere returned at the last election ; how is it to be determined ? 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 proA'ision for it ? When these
two sets of electoral Azotes are before us, can we summon witnesses or have depositions
taken for the purjiose of showing which set of electors recelAed a majority of the votes
cast in the State, or whether they Avere properly appointed? That aaouUI not be fhen
upon that occasion counting the A'otes. I do not think the language of the Constitu-
tion 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 electors Avere really and ia
fact elected by the people or not, AA^e are required by this bill to separate and deter-
mine that question and all other questions that may arise as to such A'otes or certifi-
cates. And a ditference is to settle the question as to the A^ote of the State — two sepa-
rate tribunals deciding with equal power upon a fact they are required, if required at
all, to see solved in joint meeting.

I ditt'er also with the Senator from Vermont in the idea that the district court of the
United States can determine upon a qu^ wa ranto who is Pre^ideutof the United States.
I deny it. True Ave are limited in the count of electoral votes, our power being very
narrow, as I have before said ; yet when the A'otes are counted in the presence of both
houses as directed by the Constitution, it is conchisiA'e upon the fact and no earthly
tribunal can review this ascertainment. Whenever it is ascertained and declared in
the presence of both branches of Congress that such and such a person has received a
majority of the electoral A'otes, that ends the subject so far as all judicial tribunals in
this land are concerned. Our action here, though thus limited in our i>owers, though
thus not permitted to go into a contest and to inquire whether the electors have been
appointed properly or imjiroperly, Avhether they haA'e been elected by the people or
not, if counted, is conclusive upon all other tribunals. It is the decision of a tribunal

4% COUNTING THE ELECTORAL VOTE.

specially appointed to see the count made. Tlie 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 disturbances. We cannot attend to any
such thing. It is evideutf rom this limited power conferred by the Constitution that it was
never contemplated by the framersof it that there would be any trouble, because with
the appointment 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 beeu 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 amendment for the troubles
that we will in vain attempt to avert by legislation ?

I do not see then the necessity for this legislation. 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 revolutionize, if there is a deter-
mination to overthrow and subvert the will of the people by revolutionary or arbi-
trary action, it can be done under the present joint rule or under the bill proposed by
the Senator 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
riglit measurably would be done at the next presidential election, 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 Pi'esident 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 legislation 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
tweuty-second joint rule, tlie 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
aiiy 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-President always dis-
charged that duty unexceptionably. 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 pretermitted. In fact
and in truth, when we come to consider the matter, that was infinitely preferable to
the danger of undertaking to exclude the votes of States by raising objection proba-
bly to some technical defects that might appear on the face of the papers, and then,
by separate action, exclude the count.

In fact, when you look at the twenty-second joint rule and when you look at the
bill proposed 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 questicni whetlier the i-eturns upon their face are right, for there is no ma-
chinery 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 lefc
to the papers, or certificates, and, it may be, to our own personal knowledge of events,
either historical or personal. Instead, therefore, of making trouble by indiiferent and
inefficient legislation, we should direct our thoughts to au amendment of the Consti-
tution 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 jiresent.

Mr. Saulsbury. Mr. President, the bill under consideration proposes " to provide for
and regulate the mode of counting votes for President and Vice-President, and the de-
cision 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 (loubt
as to whether any law enacted on that subject can have any force, especially if it con-
flict 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 efl'ect or will prove of
more advantage than the twenty-second joint rule ; but one question with me 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 con-
vention and the President of the Senate, in the presence of the two houses, is to open,
according to the constitutional requirement, the votes of the several States, which are
then to be counted. I concur 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

PROCEEDINGS AND DEBATES IN CONGRESS. 497

0 1 the subject, and I think the hest thing that couhl now be done wouhl be to repeal
the twenty-second joint rnle and leave the question just where the framers of tlie Con-
stitution left it. I do not apprehend that we shonki have nun li difficulty under tlie
constitutional provision ; we have lived under it up to the present time ; we never did
have any difficulty. Even in 1861, when, i)erhap8, there was as much excitement in
the conntry as there ever had been over the result of any presidential election, with a
Vice-President in the cliair who was himself a candidate for the Presidency, the vote
for Mr. Lincoln was counted and the country acquiesced in the fairness of the result.

1 apprehend that if we repeal the twenty-second joint rnle and leave this whole ques-
tion just where the Constitution leaves it, we shall never have any difficulty iu this
couuiry iu counting and ascertaining the result of a presidential election.

For this reason 1 wish I could induce my friend from Indiana to let this bill go over
for the ])rescnt, or to amend the present bill so as simply to repeal the tweuty-second
joint rule. 1 would concur iu that. At present I see no safety under the present bill
or under the joint rule, and therefore 1 think it better to leave the question where the
Constitution left it.

Mr. Mekuimox. 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 na-
tional authority lias any right to contest the election of President and Vice-President.
The American people do not elect the President as a mass. They do not elect the
President as the American people. They elect the President as the people of the sev-
eral States and exeicising their rights as citizens of the several States. The manner
of the election of President is one of those provisions in the Constitution which recog-
nize, and not only recognize, but provide for and uphold, the antonomy 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 mauuer as the legislature thereof shall direct, a
number of electors eipial to the whctle uuniberof Senators and Representatives to which
the State may be entitled in the Congress; but no Senator or Representative, or
person holding an oilice of trust or prolit 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 President ; and therefore if the people of a State should decline to vote for Presi-
dent there is no power to compel them to do it. The Federal Government is not so
much interested in having a State vote as the State itself is. If a State shall see tit to
declii:eto vote for President at all, there is no power to compel the peopleof tbat State
to vo'e for President, nor is there any power conferred on Congress to compel the peo-
ple of the State to have an election for President at all. It is a matter within the con-
trol oT ihe people of the State through their legislature. Tiie legislature may provide
that t ho people may' elect a certain number 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 api)oiut them, or they may provide
so many appointers to appoint electm-s 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, su])pose there are great frauds practiced in the States in an elec-
tion 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 au-
thority to contest the election in that behalf. The authority remains iu the State to
provide for that. It is true tliat in the history of this Government it does not appear
that any State ever has provided for a contest of the election of electors of President
and ^' ice-President ; but it does not follow, therefore, that tlie State might not have
done it. A good many powers are conferred on various 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 authorities of the Union have
to learn a good many things yet abcmt the Constitution. It is an instrument that is
not yet fully comprehended by the most learned men in the land.

I maintain that it is perfectly competent under the C(}Ustitution 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 directed to elect, whether A B,
C D, and E F were elected electors by the i)eople according to law. They might
provide that the legislature 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. Tiiey 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, thej' might by law provide for as-
certaining whether the electors were fairly elected by the legislature. So if the leg-

498 COUNTING THE ELECTORAL VOTE.

islatnre 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 ap-
pointed so many men to be electors to vote for President and Vice-President.

It is a matter with which the Federal authorities, I repeat, have no concern whatso-
ever. It is a matter with the State, and when it is determined by the State, Congress
cannot inquire into the election any more than Congress, when the peoj^le of a State
have voted for governor, and the proper authorities have decided that he wiis elected
governor, can go on and determine that question again. I suppose no one will seriously
pretend that if an election 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, and 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 jurisdiction 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 contesting the election of
electors of President and Vice-President, just as they have a tribunal before which to
contest the election of a governor or any other State officer; and therefore that diffi-
culty 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 anj' election was held in North Carolina,"
but Congress has no power to say that the election held for electors of President and
Vice-President in North Carolina was fraudulent, that democratic electors ought to
have been elected whereas the returns show that republican electors were elected, or
rice versa. When the State authorities have determined the matter, there is the end
of the controversy and Congress 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
Government. It is a matter with them. If they choose to elect, they have the priv-
ilege and the right to do it. If they choose to abstain from voting, there is no Fed-
eral authority or power that can compel them to vote.

The bill was reiiorted 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 Seci'ctary 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 for Pres-
ident 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
member 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 imposed upon me by the act entitled ' An act to provide for and regulate
the counting of votes for President and Vice-President :' so help me God."

"And such oaths of Senators shall bellied in the archives of the Senate, and of
membei's 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 Vice-President shall have occurred ; 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 Presi-
dent of the Senate shall preside, and whenever the Senate shall withdraw, from time
to time, the Speaker of the House shall resume his chair ; having so met, the Presi-
dent of the Senate shall, in the presence of the Senate and House of Representatives,
open all the certilicates and papers purporting to be certificates of votes given at the
last preceding election for President and for Vice-President, respectively, and 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 theJUnited States shall

PROCEEDINGS AND DEBATES IN CONGRESS. 499

lie opened by the President of the Senate, in the presence of the Senate and Honse 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 iu section 1 of this act ; which committee shall forthwith proceed to ex-
amine 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 respectively;
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 with-
draw, and each house shall ]iroceed 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 sucli committee shall be equally divided iu opinion,
the vote iu question shall be counted unless both houses concur in rejecting the same.
And the persons so declared elected shall respectively be deemed entitled to exercise
the functions of their offices.

" 8i:c. 4. That section 142 of the Revised Statutes of the United States and all pro-
visions inconsistent with this act are hereby repealed."

Mr. Edmunds. I do not wish to take the time of the Senate to explain this amend-
ment any more than I have already done, which only, as I conceive it, furnishes an
additional security and safeguard in tlio inspection and scrutinizing of the papers
coming from States purporting to be votes ; and when it comes to be a disputed ques-
tion, it leaves it substantially where the bill of the Senator from Indiana leaves it.

Mr. MoRTOX. I do not intend to discuss this amendment. I have already said that
I think this 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 amend-
ment 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 shall not detain the Senate at this time of the evening longer than a few mo-
ments.

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 iu the presence of the two bodies. The power commences there; it
commences at no moment before they are so assembled ; and I have heard nothing in
this debate from the commencement to the end of it which answers that objection.
You will recollect, Mr. President, that that clause of the Constitution which provides
for the election of Senators requires that they shall be chosen by the legislatures of
the States. Uiuler 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 Congress. Congress had the right to provide a manner, but at that
time had not provided. Other legislatures elected in joint meeting at once. The ob-
jection 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 legis-
lative capacity, sitting each house in its own chamber as a separate body, or when
Bitting together for the purpose of counting the votes. I think it never did occur to
them that such a question 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 ques-
tion with us now. The question is whether we shall by legislation, sitting in different
chambers long before the moment comes when our power begins, make a law which
will control 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 than

500 COUNTING THE ELECTORAL VOTE.

tlie 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 decide 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 j)Ower
than they have; and certaiuly it must be sof

I really think, without the slightest desire to re-open 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 so far from
doing away with the difficulty which undoubtedly exists, which all admit exists, we
are getting" ourselves m more trouble and undertaking to do what we have not power
to do. If a constitutional amendment is not necessary, then those two bodies there
assembled 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 Constitutitm 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 United 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 discussion 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 Vermont; aud 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 better than 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 imjiortance being legislated upon in this way. I certainly for one — I know there
are others — most earnestly desire an opportunity of reading carefully the amendment
offered by the Senator from Vermont. I think that amendment would be adopted in
preference to the bill of the Senator from Indiana if we had an opi>ortunity of exam-
ining it ; but it is voted down without a division, simply because not one-half the
Senate heard it read, and I presume not many of the Semitors knew what it did con-
tain nor the advantages it might possess over the bill of the Senator from Indiana.

I need not say that I do not look upou this question as a party question at all. aud I
do not suppose any gentleman can. I have therefore refrained from speaking of it
because I wished to listen to those who were wiser than myself, who have hail more
experience. I have listened carefully and attentively, and have simply made up my
mind on a consideration 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 couiited
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."

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 4tli of March.
There should be some definite time in the bill. I am not prepared to offer an amend-
ment, for I hardly knew what the opinion of the honorable Senator was.

Mr. Morton. I hardly think any amendment is necessary. The Senator will ob-
serve that in the first section the time of counting the votes is fixed on the last Wednes-
day 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 time of the Senate but
f r a few moments in stating why.

PROCEEDINGS AND DEBATES IN CONGRESS. 501

I ai>Tee in brief with wliat was said by my distiugnisbed friend from New Jersey,
[Mr. Stocktou.] It is uot in the power of tliis Congress to pass this law. It is a void
law if passed. For three-quarters of a century the good people who represented their
fellow-citizens here were satished with the Constitution of the United States ; and let
me read the Constitution 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 pro-
vides :

"The electors shall meet in their respective States, and vote by ballot for President
and Vice-President, one of whom, at least, shall uot be an inhabitant of the same State
with themselves; they shall name in tlieir ballots the person voted for as President,
and in distinct ballots the person voted for as Vice-President, and they shall make dis-
tinct 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 President of the Senate shall, in presence of the Senate
and House of ReprBseutatives, open all the certiticates, 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 wliole number of electors appointed ; and if no
person have such majority, theu from the persons having the highest numbers not ex-
ceeding 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 President, the votes shall be taken by
States, the representation 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 purpose of casting any reflection
upon any honorable 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 it'avor? I say, Mr. President, it is suspicious. For seven-
ty-five years the people 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 cannot go on and perform all the duties that
are devolved upon us in this behalf. Some Senators say that it is impossible that it
can be done. Let us hear why ; give a reason for it, and do uot simply rely on a large
vote to pass a measure of tliis character. I say it is suspicions.

Again, it was alleged with great power by my 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 i)roper action, not improper. Can it be had at
any lietter time than when this Senate is under the control of the republicans— if
terms expressing i)arty names are to be used here ? I have not been in the habit of
using them in legislative assemblies ; it has been forbidden by the rules of such as-
semblies 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, tlie other party, the party to which I am
attached, wall 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 con-
stitutionality at the best 1 Will some gentleman tell us why ? Give us the necessity
for it. Let us know why you do it ; why your appropriation bills, your tax bills, your
other bills of importance lie ujiou 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 suspicions at least.

And Avhy is this a bill for a public act, I beg to ask ? Why not amend your rule if
your rule Is uot riglit ? Why a bill for a public act that cannot be repealed until yon
have a President and a Senate and a House of Representatives to agree to rejjeal it f
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

502 COUNTING THE ELECTORAL VOTE.

the table or refnsad to be taken up, men that will die before this bill can be of any
service, whether it be proper or improper? O, no, this bill must be taken up; you
will not pass anythinor 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 pai'ty 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 Sena-
tor is supporting the measure because it is a mere partisan measure. I simply 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, 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 Ofkicek. The Senator from Connecticut moves that the bill be in-
definitely postponed.

Mr. Meruimon. 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. JOHXSTON, (when his name was called.) On this question I am paired with the
Senator from South Carolina, [Mr. Robertson.] 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 affirmative.) Upon this question the Senator
from Missouri [Mr. Schurz] is paired with myself, and I voted inadvertently. I there-
fore desire to have my name stricken from the roll. If he were present he would vote
"yea," and I should vote "nay."

The Presiding Officer. The Senator's vote will be withdrawn.

Mr. Stevexson. On this question I am paired with the Senator from Ohio, [Mr.
Sherman.] 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 mat-
ter of little consequence on this motion which way I vote, I will vote " yea," the^ mo-
tion 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 Island [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 impres-
sion that the pair extended to this question, I desire to be excused from voting.

The result was announced — yeas 14, nays 31 ; as follows :

Yeas — Messrs. Bayard, Carpenter, Conkling, Cooper, Davis, Dennis, Eaton, Gold-
thwaite, Hager, Kelly, McCreery, Merrimon, Ransom, and Stockton — 14.

Nays — Mes-srs. Boreman, Boutwell, Chandler, Clayton, Conover, Cragin, Dorsey,
Edmunds, Ferry of Michigan, Flanagan, Frellnghuysen, Hamlin, Harvey, Hitchcock,
Ingalls, Jones, Logan, Mitchell, Morrill of Vermont, Morton, Oglesby, Patterson, Pease,
Sargent, Scott, Spencer, Sprague, Stewart, Washburn, West, and Windom — 31.

Absent — Messrs. Alcorn, Allison, Anthony, Bogy, Brownlow, Cameron, Fenton, Ferry
of Connecticut, Gilbert, Gordon, Hamilton of Maryland, Hamilton of Texas, Howe,
Johnston, Lewis, Morrill of Maine, Norwood, Pratt, Ramsey, Robertson, Saulsbury,
Schurz, Sherman, Stevenson, Thurman, Tipton, Wadleigh, aiid 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 objectionable. Perhaps I might say
something more ; I think I may say it is a dangerous provision and questionable in
several respects. It is proposed to obviate it by the adoption of a statute which I

PROCEEDINGS AND DEBATES IN CONGRESS. 503

tliink more object ioualile, more likely to invite difficulty, more likely to forecast clis-
turbiiiice and trouble iu the counting of the ]iresidential 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 carefully as I can, that is my judgment,
and I shall therefore vote against it.

Mr. MoRTOX. The Senator from Connecticut [Mr. Eaton] complained somewhat that
there had been nothing said in favor of this bill. I have abstained from argument be-
cause I wanted a vote. The questions involved 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 provis-
ion made by law to prevent the imminent danger of a collision at the counting of the
presidential vote. This rule was adopted in 1HU5, under which as it now stands a sin-
gle objection, however 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 uuaninfously 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 ; 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 j^ower under the present rule of either house to throw the election into
the House of Representatives by sustaining 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 February, 1877, and objection is made
to the vote of any State, however trifling in its character, unless that objection is over-
ruled by both houses, the democratic House concurring in overruling it, the election
will be thrown into the House of Representatives and the democratic party will then
elect the President. If I were disposed to hiint for party motives, I might find them
in the existence of that fact. I might therefore account for a solid democratice vote
against this lull; but I have attributed no personal or partisan motives to anybody. I
had earnestly hoped that there would be no party feeling about this bill. The Senator
from Ohio [Mr. Thurman] who has made an argument in favor of this bill, and I believe
will vote for it, is certainly governed by no party considerations in the matter. He
has risen above them, and he for one is not willing to have that temptation left to the
next House of Representatives, for a great temjitation would be the power by sustain-
ing an objection to throw the election of President into their own body.

Mr. GoitDON. Will the Senator allow me to ask him a question f

Mr. Morton. Yes, sir.

Mr. GouDOX. Does the Senator suppose that the temptation would be any greater
with the next House than it has been with preceding houses ?

Mr. JIoRTox. I will say to my fiiend 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 had not been exposed to the danger of having
a House of a dift'erent 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 Senator
will take the trouble to read the debate in the two houses that occurred immediately
after counting the vote for President and Vice-President iu 1857, he will understand
the narrow escape that the country made at that time. That was before there was any
rule on the sul)jcct. 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 im-
portant provision. The act of Congress fixed that time, the first Wednesday in De-
cember. The electors of Wisconsin did not meet on that day, but met on a day sub-
sequent. 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, pei'haps it would have resulted in an armed conflict and
a revolution, but it was very fortunate that at that time Mr. Buchanan was elected
without regard to the vote of AYisconsin. 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 motion was in order, he said, but to count the vote. The vote of Wiscon-
sin was counted. He then marched oiit of the House of Representatives and the Sen-
ate followed him, and this very interesting debate took place immediately afterward ;
and it seemed to be agreed on all hands, in both houses, that there ought to be some
rule adopted by which the gi'eat danger would be avoided when the election might
turn upon the vote of some State that was in that condition. Therefore, although no
collision has taken place up to this time, and although no trouble has come, yet we

32 X

504 COUNTING THE ELECTORAL VOTE.

have seen in the election of 1868, we have seen in the election of 1872, that these
things may happen, and it is the ])art of prndence to provide an act by which they
shall be gnarded 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 Sen-
ate, and hope that it will be passed to secure the futnre peace and safety of onr
country.

Mr. Edmuxos. 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 specially afraid of being fonnd voting with
the democrats if they vote this way ; I do not know that they will. Evei-y man must
act upon his own conA'iction of duty.

Tv) repeal the twenty-second joint rule is one thing which I may be aiul 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 ad-
vised I should vote for it. But it is a proposition not only to do that, but ,to st-t up
another rule hi its stead which, in my opinion, opens a broader ground for co'llision, as
my honoralde friend from Indiana calls it, a broader gronnd 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 decision, but it stands because it comes as the authoritative voice of the people
until the two houses concur in sayiiig 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 Wednesday in December in each of the States,
the Constitution entitles us to know, entitles everybody to know, that the persons who
thus meet are the electoi's. It entitles the people of the United States to know in some
way under a government of law that what those who claim to l>e electors send to the
capital is the vote of the State lawfully and constitutionally given. Now, the Sen-
ator's bill says that whatever comes from that State purporting to be this thing shall
decide who shall be President, unless the two houses concur in saying that it is inad-
missible. 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. MOKTOX. I must say one word in reply to that, and I confess my surprise. When
I brought forward a proposition the other <lay 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 Tiill involving the same principle as this bill, with this diflerence,
that he interposed a committee of eight persons, fonr Senators and four Represent-
atives. 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. Edmi'XDS. Yes.

Mr. Moirrox. It involved the very priuciple 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 be counted. If you have no rule at
all, as in the case of Wisconsin, as 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. MoKTOX. Yes, sir; they decided that there was no remedy, there was no law,
there was no rule on the snlyect, and after discussing the matter it was dropped by
conunon 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 tlie unlawfulness of it ; there is no way to pre-
vent 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 may 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 concurrent vote of the two houses. Under the rule as it now stands one house
can disfranchise a State. W^ithont any rule every vote must be counted, no matter

PROCEEDINGS AND DEBATES IN CONGRESS. 505

bow false, liow fradnlent, 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. Merhimon. I beg to ask the Senator from Indiana a question. Why does he
say that in the absence of a rule every vote must be counted ?

Mr. iMoiiTox. 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. TiiuuMAX. 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, l)ut 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 satisfactory to the
country and to remain the permanent law of tlie land than a bill passed in the expir-
ing hours of a Congress two years nearly before the act can have any operation or
effect. I should have been glad, therefore, if the majority of this body had consented
to let this bill go by this session and make it the subject of legislation next winter.
]3ut the majority have seen tik to do otherwise, aiul we are brought to the considera-
tion of the bill.

Now, I wish to say, in answer to some remarks made by the Senator from Indiana,
that I have not been influenced in ray course upon this subject by any apprehensions
of what the next House of Re])resent^atives would do, nor do I share in any apprehen-
sion exjiressed 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 Representatives.

In tlie tirst place, that is to impute to that House improper motive. It is not to be
presumed that the House would throw out imi)roperly the vote of a State any more
than it is to be presumed that the Senate w<uild do it. It is not to be {)resumed of
either body that it would thus violate its swo^- duty to maintain the Constitution of
the Republic. If the House should vote to reject a certificate from a State, the pre-
sumption is that in the opinion of the House there vs^as 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 iu violation of the sworn duty
of its members, and in a factious and revolutionary 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 his bill; that he cannot get rid of it upon his interpretation of the Consti-
tution. How is it that he supposes that the election may be devolved upon the House
of Representatives by the revolutionary 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
the original Constitution it was declared 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 Reiiresentatives 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 Presi-
dent, if such number be a majority of the whole number of electoi-s appointed."

Giving a literal interpretation to this language, the Senator from Indiana construes
the Constitution to mean that if a return should be cast out for any other I'eason 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 re-
ceived a majority of the whole number of electors appointed. It is averj' hard thing
to suppose a case of that kind, and yet we might suppose it. In fact, it actually oc-
curred in the case of Wisconsin. There the electors were appointed ; there there was
no question 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 appointed, and Congress is bound totak" notice
of the fact that they were appointed; and therefore no one could be President unless

506 COUNTING THE ELECTORAL VOTE.

he received a majority of all the electors appointed, including those whose votes were
rejected. That is one interpretation of the Constitution. It is certainly the literal
interpretation, but it is open to argument whether that is the true interpretation of
that instrument.

However, I do not wish to go into that argument 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 certiticates. 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 returns it might be that one return would be rejected, although both
houses should believe that the persons casting the votes in that return were the legal
electors, and another return might be rejected through some informality. 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 disi^osed 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 this bill. I do not believe there is danger of anything of
that kind taking 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 i)art 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 against the measure before the Senate, be-
cause 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 Avith 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 any-
thing to do with the election of his successor? There is too much executive inter-
ference in elections now. To make it his duty to interfere is in my judgment most per-
nicious. I am opposed to the bill, therefore, becaiise 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
Government successfully leaving the great material powers among the people untouched,
to drift, to act irreguhirly. Why, sir, the danger mentioned in counting the vote in
1857 was not a danger of that moment, but was nearly ripe from the material conditif)n
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 : simjily false and weak guides to ruin.

Mr. IStewart Mr. President, this subject is surrounded by difficulties, and my opini<m
is that it would be safer to leave it where it is in the Constitution without any legisla-
tion or rules. I believe it would be more likely to be rigiit. It seems to me the diffi-
culties attempted to be avoided are not met in this bill. In the first section it is pro-
vided that the vote shall be counted and the result declai'ed, and that no State shall
be rejected without the concurrence < f th » 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 bo a proper vote. In any event you could not take it out of the j)Ower of
either house to do wrong if they were disiiosed to do it.
But then the second section provitles —

" 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 prece<ling
election for President and Vice-President in such State, all such returns shall be opened
by him in the i>resence of the two houses when assembled to count the votes ; and that
return from such State shall be counted which the two houses, acting sej)arately, 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 affirma-
tively before a vote could be received. Su^jpose they disagree upon the returns, where
would we be then ?

Mr. Logan. It would not be counted.

Mr. Stewart. 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 done it. You would have under
this bill after a disagreement a long and heated discussion.
Then you have got in this bill another provision:

" Such joint meeting shall not be dissolved until the electoral votes are all counted
and the result declared."

PROCEEDINGS AND DEBATES IN CONGRESS. 507

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 returus ? The
two houses separate. One house would claim that one return should be counted,
the otlier 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 Senate under this law would have no riglit to declare the result until all the votes
were counted. It seems to me, under this bill, where there were two sets of returus
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 cannot 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 f ramers 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 jilace. The Constitution says :

"The President of the Senate shall, in the iH'eseuce of the Senate and House of Rep-
resentatives, open all the certificates, and the votes shall then be counted."

I think it was anticipated that they should just count them, and he should declare
the result. In that case you get a President, but under this bill you might have a civil
war before you get a President ; and if yon do ]iot 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 result 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 the Vice-
President will not be allowed to declare the result. I say you have a state of things
calculated to lead to rebellion. I cannot vote for this bill as it stands.

The Presiding Officer, (Mr. Carpenter in the chair.) The question is, Shall the bill
pass?

Mr. Logan. I should not now say anything 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 sat-
isfy him that the objections he makes to this bill are without any good basis; but I
can certainly satisfy myself of it. Let us see what his objections are.

First, his objection to the bill is because, if there are two returus 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 Senators who have any difficulty on this point
to this proposition, and we will see where mj^ 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. Holdou! 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 try-
ing 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 ret[uire 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 diifer-
ence 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 determine which re-
turns shall be countexl ; and unless 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 that the vote is a fraud before you can reject it.

Under the Constitution both houses are re(|uired to count the vote. Now, if it re-
quires both houses to count the vote, it should require both houses to determine the
vote, because the Constitution contemplates that both houses form a convention for
the purpose of determining these questions. That is the meaning of the Constitution.
Both houses then having formed a convention for the purpose of determining 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 Con-
stitution 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 depriving a State of having a vote for

508 COUNTING THE ELECTORAL VOTE.

President wlieu both lionses ai-e required to count the vote. Under your present rale
one house may determine that which the Constitution requires both houses to de-
termine.

Let us see further. My friend from Nevada says that it will produce a revolution
because both houses are required to determine ^yhich one of all returns shall be counted.
I will put tbis point to the Senator, or to any of the Senators who have made an ob-
jection to this jiarticular 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 miist be correct.
If the jieople of the State vote at all they must have voted for some person. Under
the ])resent rule it makes no difterence 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 proj)osed rule you allow them to have a vote as is con-
templated by the Constitution. You allow the convention of the two houses to deter-
mine which one of these lists may be the right vote, according to the sentiuients of
the people when they voted for President and Vice-President. I ask any man to tell
me what wrong there is in that proposition. Even in Louisiana, 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
determine whom that vote was cast for, and then give them credit for that vote when
it is determined. 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. In-
stead of its being calculated to produce re%'olution, 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 therefore
rejected, I am dissatisfied ; but when both houses in convention under the Constitu-
tion 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 declared."

My friend from Nevada objects to this because he says it would be interminable ;
that Congress might prevent the election of a President 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 i-esult in any other way except by a reference to the House of Reiire-
sentatives? It is not contemplated that they shall dissolve until a President is de-
clared to be elected ; that is, until the result is declared. You may declare that no one
is elected President and then it goes to the House, but under the Coustitution you are
expected and required to determine the result. Some result must be ascertained, either
that some man has been elected President or that no man has been elected Pi'esident.
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 f Either that there has been
a President elected or that there has not been a President elected, so that if there has
not been a President elected the House may then act and perform their functions un-
der the Coustitution.

You may take this bill and examine it. I know I have not perhaps given the con-
sideration to it that some gentlemen have; but it was before the committee of which I
am a member, and has been faii'ly 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 determine 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 Constitu-
tion. If there is anything unconstitutional, in my judgment it is the twenty-second
rule, which permits one house by its solitary act to deny a State the right to vote iu
a presidential election.

Mr. Merrimox. 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 ))ut it within the power of one branch of Congress to compel the count of
an unlawful vote ?

Mr. Logan. It iints it in the power of one branch of Congr«,ss to not deny the State
its vote. It does not put it iu the power of one branch of Congress to say how the
vote shall be or shall not be. Under the Constitution and under the rules that have
been determined prior to the twenty-second joint rule it was held that Congress itself
could not deny the right to count the vote.

PROCEEDINGS AND DEBATES IN CONGRESS. 509

Mr. Mkrrimox. T can see the objection to the twenty-second joint rnle. I am now
sjieaking of this bill.

Mr. LoGAX. 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 yon
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
«f Congress can deny a State the right to vote, is it not better that both branches of
Congress shall have the power to deny it ? Ought not both branches of Congress to
have the right to determine the question of these votes ? Would you have it that one
branch shall determine that a State shall not vote, but that both branches cannot de-
termine that she shall vote ? I would ask the Senator if that Ls not the logic of his
suggestion ?

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
uiformal in all that is connected with it, rather than to deny the right of a State to
vote whenever its certificate was formal.

Mr. Mekuimon. Suppose this case : Suppose that a certificate is sent here by usurp-
ing 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. LoGAX. Both branches of Congress would be required to exclude it; but if
there was no certificate excei^t that, how would you have any knowledge of any other ?
Will the Senator answer me that question ?

Mr. Meurimox. I might have knowledge of the fact outside.

Mr. LoGAX. 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. Merrimox. 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 j»ower 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 Con-
gress could act upon the facts as they might be reported.

Mr. LoGAX. Where does the Senatcn- get the authority to appoint his committee ?
When the Constitution says that the Senate shall assemble in the Hall of the House
of Representatives 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 committee ?

Mr. Mkhrimox. From the Constitution.

Mr. LoGAX. I cannot find it.

Mr. Merrimox. I say the Constitution provides that Congress shall act in a joint
capacity ; and Congress in that joint capacity 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. LoGAX. 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 argument 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 tha< we could frame a bill to-night
or at any other time in reference to counting the vote of President and Vice-President
that he would assent to, unless he framed it himself.

Mr. Merrimox. I am sorry the Senator has such a bad opinion of me.

Mr. LoGAX. It is not a bad opinion at all.

Mr. Merrimox. 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 pur-
pose which I believe conformed to the Constitution.

Mr. LoGAX. I will give the Senator the reason why I made the statement. He has
arojued this constitutional question to-day differently from any maul 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 fre(|uently 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 consti-
tuted 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
quarters from which they have come to-day, for it was difterent from mv understand-
ing in reference to it. But the objections that have been made to this bill by Senators
to-night are objections that can be wiped away like a cobweb, 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 thing it.self.

You have now a rule in your Manual allowing one house to reject the vote of a State.

510 COUNTING THE ELECTOKAL VOTE.

Do you say it is on account of fraudulent elections ? They need not be fraudulent. If
either house were to so far forget their honesty and integrity as to object to the 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 ob-
jection of one house to prevent the counting 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 of Arkansas was objected to in the House. That objection
caused the Senate to retire and examine it. What was the objection? That the seal
of the State was not affixed to the certificate of the 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 sec-
retary 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, however 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 riglit 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 reijuire the action of both bouses, in my judgment it is
just, in my judgment it is constitutional, in my judgment it is honest, in my judgment
it is fair.

Mr. Hagkr. I have no desire to enter extensively upon this debate, but rather to explain the
vote that I shall give. It is a question of constitutional power and of constitutional inter-
pretation that addresses itself to us as lawyers and as Senators. The view that I take is
that the Constitution of itself is operative, 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 nuist act in this mat-
ter 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 Constitu-
tion is plain :

"The President of the Senate shall, in presence of the Senate and House of Representa-
tives, 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 together. 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 mat-
ter 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 constitutional duty in regard to this matter. As
well might one supreme court undertake to bind their successors as for one Congress to un-
dertake 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 iipon to act in that capacity to regulate rules for themselves.

There is another important matter that enters 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 become 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 sig-
nature of the F.esident with the intent to bind some other house, not ourselves. I admit
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 electoral 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 tbey 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 Consti-
tution 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
requires the approval of the President, and hereafter 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 Represeutatives
may be entirely under the control. of the President of the United States.

Did the framers of the Constitution contemplate any such state of things as that when
the twellth article of amendment was adopted ? It was the intent that the people should
control the election of the President, and not the President of the United States. It was
the intent 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

PROCEEDINGS AND DEBATES IN CONGRESS. 511

constitutional duty that they have to perform. They themselves must jutlg^e how they shall
perform it; and you might as well undertake to dictate that they should do it in a particu-
lar way to accomplish a particular result as to undertake to say that they shall do it accord-
ing: to the provisions of this bill.

I shall therefore vote against the measure. I believe that if it passes it will be clearly
unconstitutional. 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 cau
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 interpretation 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, ea.sy-going section. If both houses concur
in the counting it goes on to say that the vote shall bo 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 persons were sufficiently disposed to have a rev-
olution it would be a natural state to have two sots of returns. What then ? " That if
more than one return shall be received by the President of the Senate" * * * "that
return from such State shall be counted which the two houses acting separately shall de-
cide." They shall decide which of the two returns shall be counted. My friend from Illi-
nois thinks it is eminently fair to leave the two houses to decide 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. MORTOX. Let me ask the Senator a question right there. Suppose there are two
returns placed in the hands of the Vice-President, who shall determine which one of them
shall be counted ? Will you leave it to him to determine it ? Will you leave it to one house
to determine ? Or will you leave it to both hou.ses to determine it t Somebody must deter-
mine, and to whom will you leave it '

Mr. Stewart. I will di.scuss that afterward. I would leave it where it could be deter-
mined 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 i)y. I say I would put it somewhere where it
could be determined, but this bill has put it where it cannot be determined. Provided the
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 not be declared until all the votes are
counted, and they cannot be counted on a disagreement.

"Such joint meeting shall not be dissolved until the electoral votes are all counted and
the result declared."

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 tem
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 tvveuty-second joint rule. I have seen the operation of it, and
1 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 acliou of either
house excluding States entitled to cast their votes ; but there is no prohibition against de-
claring 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. M<JRTOX. What is the provision the Senator refers to ?

Mr. Stewart. "Such joint meeting shall not be dissolved until the electoral votes are
all counted aud 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 trjuble. It provides for recesses, for time, for deliberation, for discussion, for
organization, for treason, and for overthrowing the Government ; but it does not provide for
declaring anybody President. You have j'our recess and you get .^ipart and the two houses
disagree aud nobody has authority under this bill to come together aud declare the result ;
no result is declared, aud we have no President, Every day faction will be strengthening
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. Morton. The terms are the Svime precisely in the first section as iu the rule on that
point.

12 COUNTING THE ELECTORAL VOTE.

Mr. Stewart. In the first section it is provided tliat 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 declared.''

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 aud 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 Constitution. I think that is better than to have this legis-
lation on the subject.

" The President of the Senate, in the presence of the Senate and the House of Representa-
tives, shall open all the certificates, and the votes shall then be counted."

And fijr a great number of years they were counted.

Mr. Logan. What votes does it mean ?

Mr. Stewart. 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 afiirmatively for anarchy, and I would rather leave it
lo 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-President 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 lie 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 re-
sult is reached let the Vice-President declare that somebody is President. I think there is
less danger in that than in providing for all sorts of frivolous objections and then providing
one contingency when anarchy is inevitable.

I am aware of (he 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 intrinsic difficulty of the case. It is all idle to talk
about getting up any other tribunal. I do not beieve 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
than Congres.s'. It is too great a question for any tribunal to be organized to decide. No
tribunal 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 Republic would have used some language 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 be ieve it is wise to pass it. I want
lo 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 arr mgeuients aud organizations: and
those who have seen such things know the evil results of them and the danger of a disagree-
ment between 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, " We
will not go any further ; we will not count any votes." Again :

"And that return from such State shall be couated 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 disagree-
ment upon a vital point.

" Such joint meeting shall not be 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 come 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
ot 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 dissolve ; 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 discussiou two or three
weeks jou will find you have a great deal more difficulty than there would be if you declared

PROCEEDINGS AND DEBATES IN CONGRESS. 513

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 destroyed 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 Pkesiding Offickr. The section will be read as amended.
The Secretary read as follows :

"Sfc. 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-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
only from .such State shall be counted which the two houses acting separately shall each de-
cide 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 by the tellers, any question sliall arise in re-
gard to counting the votes therein certified, the same having been stated by tiie Presiding
Officer, the Senate shall thereupon withdraw, and said question shall be siib;nitted to the
body for its decision; and the Speaker of the House of Representatives shall, in like man-
ner, submit said question to the House of Representatives for its decision; and no electoral
vote or votes fr<un any State, to the counting of which objections have been made, shall be
rejected except by the afKrniative vote of the two houses."
Now the second section is that —

"All such returns siiall be 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 be
counted which the two houses, acting separately, shall each decide to be the true and valid
returns."

I ask the honorable Senator from Indiana if there may not be some inconsistency here?
It strikes me that there may be. Let me suppose 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 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 rec-
oncile these two provisions? I take it that men are generally made of the same material.
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 reception of that
return, and my friend from Indiana would in the same way vote against the other leturn,
and for some good reason. Our feelings of party might have something to do with our
judgment, but we would both endeavor to be honest; I have no doubt about that; but as
men think diiferently 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 government.
I suggest that if the condition of the country two years hence should be just what it is to-
day, this bill would produce anarchy 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 opiniou with
regard to the returns that are sent here. I say there is an inconsistencj' between 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. Tliere 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-President ?
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 circumstances.
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. Y'ou
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 theie 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 uuless both houses concur in over-
ruling that objection the vote is lost. We say that is not sensible : no State ought to be
disfranchised 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 be counted.
Mr. TiUKMAX. Will the Senator allow me to interrupt him ?
Mr. MoKTON. Yes, sir.

Mr. Thdrman. The inconsistency here is only because these prov sions are in two difler-
ent section.s. The first sectiou lays down a general rule ; the second section excepts one

514 COUNTING THE ELECTORAL VOTE.

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
proviso to the tirst section, there would be no inconsistency at all. It is the office of a pro-
viso 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 proviso. 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 passage, though nobody would obje.ct if the Senator
from Indiana wishes to make that amendment.

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 Constitution provides for. Now let us see if that be true. The
second section of the bill provides that where there is more than one return from a State
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 sec-
tion of this bill both of these returns must be counted, giving to the electoral college an
additional number of votes.

Mr. Logan. O. no.

Mr. Morton. I submit to my friend from Georgia that it is not so.

Mr. Gordon. That occurs to mo as the working of the bill, and I want to know whether
it is so.

Mr. Morton. The second section is intended to apply to a case where there are double
returns from the same State. In that case somebody lias 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 siiall 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 re-
turn 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 aud the House the other the valid return. Now, I maintain that under the tirst section
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. Wright.]

Mr. Gordon. I had not seen the word " only."

Mr. Morton. "And that return only from such State shall be counted which the two
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 en-
tirely 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 th ethroes 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 laud.

But, Mr. President, the few words I am going to utter were called forth more by a remai'k
made by the Senator from Rhode Island [Mr. Sprague] and some subsequent remarks that
were made by the Senator from C ilifornia, [Mr. Hager. ] I endeavored, feebly indeed,
to call the attention of the Senate to the fact that while it was very doubtful whether the
iv/entj-secoud joint rule was constitutional aud very doubtful whether a joint rule passed by

PROCEEDINGS AND DEBATES IN CONGRESS. 515

these two bodies in separate session conld control that joint meeting for another purpose un-
der 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 be-
half of the Senator from Connecticut [Mr. Eaton] I desire to thank the Senator from Rhode
Is'and for having introduced that point. An act ot legislation, this bill requires the signa
ture of the President of the United States. The President of the United States can veto thid
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 gentleman 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 Constitu-
tion to justify it, the very man who may be a candidate may have the power of approving
or disajiproving 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 Vice-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, tlie counting of these votes by making the President
a power that may veto the rules you make. Gentlemen here discuss whether this thing shall
be done in joint session or in separate 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 liis 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-live 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 undertake
to take the power from the place where the Constitution put it.

This is an ei^brt 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 Constitu-
tion left the manner of the choice, by not expressing 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 count the vote. If it be a manner, if, as I said before, you insist that the
manner may be determined by yoiu 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 man-
ner. Has the President of the United States anything 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 presence of the two houses, change your law
acd say the President himself shall be personally present.

I iise these illustrations as they occur to me simply in order that before the vote is taken
on this bill the point made 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 hini heartily for having brought it out.

In addition to that my friend from Missouii [Mr. Bogy] suggests to me that the instant
the law is passed it becomes the duty of the President 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 Navy sworn on his oath to execute it.

Sir, I say to the Senate with perfect frankness 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 revolutionary measure, and I do not believe the bill has
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 i .

516 COUNTING THE ELECTORAL VOTE.

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 meeting's of a 1 kinds, that there was nothing
"which would elicit truth so well as the knocking of hetds and minds together. The advan-
tage of our free debate in this body, which God forbid ever shall be restricted, is f )r 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 ; and, although we may not be so well prepared when the debate opens as others, par-
ticularly those 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 ar-
gued on brth sides. I hope, if there are gentlemen in the Senate whose minds have become
awakened by this debate to the fact that tlii.s 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, seciind, 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 pro-
vision:

" And no question shall be decided affirmativelv 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 aftirmative vote of the two houses."

There is the gist of the whole matter. The otlier point of differences 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, tlie question shall be decided without debate. The third section
of this bill, however, provides tor 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 objection 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 exception 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 amendment. 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 count-
ing the presidential vote, without the signature of the President; but the signature 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 diffi^iulty of that sort.

Therefore, sn far as the gist of the matter is concerned, the first, third, and fourth sec-
tions 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 v.aj'. But as the bill has been presented and the
Senator fVoni Indiana v.'ith 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 dremed 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 Presi-
dent is not necessary at all to the modification of our rules, but his signature will not hurt.
I believe we refused to send the fourteenth amendment to President Johnson because he
had nothing to do with it, but we sent the thirteenth 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. Tiiis provides fur a case that is not provided by the j)int rule, and it
is a case that it is well enough to provide for, and I see no objection on that point. It pro-
vides 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 re':urn,
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 contingency, 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
improvement of the joint rule, and in two important particulars it is a vital improvement ;
that is, it prevents either house, by its own arbitrary dictum, {lOin excluding the vote of a
State from being counted, and next it allows a reasonable debate.

PROCEEDINGS AND DEBATES IN CONGRESS. 517

We all remember the difficulty about Arkansas, 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. Some-
body endeavored to say that the State of Arkansas had no seal, but he was hooted down, as
I remember, or at least was not allowed to say anything in the way of debate. This bill
allows a moderate and reasonable debate, and in that respect it is an improvement on the
joint rule. The only material changes are, first, that it allows a short aud reasonable de-
bate, and next it changes the rule as to the effect of a disagreement of the two houses.

Mr. FiiELiNGiiuvsEN. Do I understand the Senator from Ohio to say that this bill will
have the force of law without the signature of the President f^

Mr. Sherman. No, sir; I say it cjuld have the force of a joint rule without the signature
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 it.

Mr. Frelinghuysen. I understood the Senator to say that it would have force without
being submitled to the President for his signature. That certainly cannot be.
Mr. SiiEitMAN, Not in the form of a bill.

Mr. Frelinghuysen. The true answer to the suggestion which was made by the Senator
from California aud repeated by the Senator from New Jersey, my colleague, is that the
Constitution provides that Congress may b}' proper legislation carry out and execute the
various provisions of the Constitution. This is doing that.

Mr. Sherman. This provision of the Constitution is to be executed by two bodies of men
acting in a ministerial capacity, witnessing the counting of the vote, aud 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. IIager. Certainly; unless the President 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, iu
their own manner, on the very day they meet 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 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. Conkling. But does my honorable friend mean that if we pass a bill, iu 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 aud repeal this statute.

Mr. Hager. Without the President's approval ?
Mr. Sherman. Yes, sir.

Mr. CoNKi.iNG. Then I undertake to say as a lawyer that that is a cognovit and admission,
clear aud distinct, that there is no constitutional power to pass this bill. If there is consti-
tutional power to pass this bill, it becomes a statute, and no joint rule, no concurrent reso-
lution can strike it down. The Constitution says that, aud 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 aud 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 bouses. That is a constitutional power, and this Forty-
third Congre-ss cannot deprive the next Congress of the power of making rules for the gov-
ernment of the two houses or for the government ot 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, aud no law can affect it, aud the next Senate may chauge it. So with the

518 COUNTING THE ELECTORAL VOTE.

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 Constitutioa of the
United States ; and the right to make joint rules is 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 Senator adds that they have the right to makejoint
rules.

Mr. Sherman. Undoubtedly, the one includes 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 honorable 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 catechism.

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 expected 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 ask him in good faith to tell me whereabouts in the Constitution he
found the power to enact a joint rule, and he turns around and asks me the same question,
and when I ask biui 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 Constitution before him. If he will turn to the provis-
ion 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 :

" Each house may determine the rules of its proceedings, punish its members for disor-
derly behavior, 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
are but concurring votes of the two houses. We have joint rules that have been in exist-
ence from the very foundation of the Government. Where is the express provision of the
Constitution which authorizes the two houses to makejoint rules ? It necessarily flows out
of the right of each house to make rules for its own government; and rules for the gov-
ernment of the two houses may be made by joint vote. There the power rests. The two
Louses acting together may go on a certain day named in the Constitution or law to count
the vote, and they can make a joint rule to govern their proceeding. That has already been
done. That is the constitutional right of the two houses, and no law can impair 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 constitu-
tional power, and tliere is the answer 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 lias 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 hou.ses. As I said before, if I had been consulted, or if I
had undertaken to frame this matter myself. I would have made it siniplj^ 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

PROCEEDINGS AND DEBATES IN CONGRESS. 519

has been by following their advice. I say that the next Senate and the next H'use 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. Edmund.s. I wish to ask the Senator, in view of what he is saying, what construction
he puts on the third clause of the seventh section of the first article :

"Every order, resolution, or vote to which the concurrence of the Senate and House of
Representatives 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 ap-
proved by him, or being disapproved," &c.

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 recjuire 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, aiting together
or separately, joint rules are amply sufficient.

The Presiding Officer, (Mr. Carpenter.) The question is. Shall the bill pass? on
which the yeas and nays are ordered.

The Chief Clerk proceeded to call the r. 11.

Mr. Gordon, (wlieu his name was called.) On this question I am paired with the Sena-
tor from Missouri, [Mr. Schurz.] If he were here he would vote "yea," and I should vote
"nay."

Mr. Hamilton, of Maryland, (when his name was called.) I am paired with the Senator
from Pennsylvania, [Mr. Cameron.]

Mr. Norwood, (when his name was called.) On this question I am paired with the Sen-
ator from Maine, [Mr. Morrill. J I should vote " nay," and he would vote " yea " if present

The roll-call having been concluded, resulted — yeas 28, nays 2V ; as follows :

Yeas — Messrs. Allison, Boreman, Bontwell, Chandler, Clayton, Conover, Cragin, Dorsey,
Ferry of Michigan, Flanagan, Freliughuysen, Hauiilton of Texas, Harvey, Hitchcock,
Logan, Mitchell, Morrill of Vermont, Morton, Oglosby, Patterson, Pease, Ramsey, Sargent,
Sherman, Spencer, Washburn, West, and Wright — 28,

Nays — Messrs. Bayard, Bogy, Carpenter, Conkling, Cooper, Davis, Dennis, Eaton, Ed-
munds, Goldthwaite, Hager, Jones, Kelly, Merrimon, Ransom, Saulsbury, Sprague, Stew-
art, 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, Roberston. Schurz, Scott, Stevenson, Thurman, Tipton,
and Wadleigh — 25.

So the bill was passed.

SENATOR MORTON'S BILL.

In Senate, Decemher 8, 1875.
Mr. Morton asked, and by unanimous consent obtained, leave to introduce a 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 ; which was read twice by its
title and ordered to be printed, to be referred to the Couiuiittee on Privileges and
Elections when ai)pointed.

March 3, 1876.

Mr. Morton. I am instructed by the Committee on Privileges and Elections, to
whom was referred the bill (S. No. 1) to provide for and regulate the counting the
votes for President and Vice-President, and the decision of questions arising thereon,
to report it back ; and I give notice that I will ask the Senate at an early day to pro-
ceed to its consideration.

March 13, 1876.

Mr. Morton. If there be no further morning business, I move to i^roceed to the con-
sideration of Senate bill No. 1.

The motion was agreed to; and the Senate, as in Committee of the Whole, pro-
ceeded 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 questions 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 Wednes-
day ill January 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 presid-

33 X

520 COUNTING THE ELECTORAL VOTE.

iiig 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 l>e 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 a]))iear 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 per-
sons, if any, elected, which announcement shall be deemed a sufficient declaration of
the ijcrsons elected President and Vice-President of the United States, and, together
witli a list of the votes, be entered on the Journals of tlie two houses. If, upon the
reading of any certificate by the telU-rs, any question shall arisen in regard to counting
the votes therein ceititied, the same having been stated by the j)residing officer, tlie
Senate shall thereupon withdraw, and the fpiestitm shall be submitted to the body for
its decision ; and the Speaker of the House of Representatives 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 ol)jcctious have l^een made,
shall be rejected except by the affirmative vote of the two houses. When the two
houses have voted, they shall immediately re-assemble, and the Presiding Officer shall
then announce the decision of the qn(>s ion sulnnitted. And any other fjiicstion peit.i-
nent to the object for which the two houses are assembled may be submitted and de-
termined in like nmnner.

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 certiticates of electoral
votes given at the last preceding election for I'lcsideut and Vice-President in such
State, all such returns shall be opened bj' him in the presence of the two houses when
assembled to count the votes ; and that rc^tnrn from such State shall be counted which
the two houses, acting separately, shall decide to be the true and valid return.

Uy the third section it is provided that when the two houses separate to decide
u})on an objection that may have been nmde to tlie counting of any electoral vote or
v(jtes from any State, or lor the decision of any other question pertinent tliereto, each
Senator and Representative njay speak to such objection or question ten minutes, and
not ottener 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 (juestiou shall be put with-
out further debate.

Section 4 declares that at such joint meeting of the two houses, seats shall be pro-
vided as lollows: For the President of the Senate, the Speaker's chair; for the
Speaker, iuunediately upon his left ; the Senators in the body of the hall upon the right
of (he Presiding Officer; for the Representatives, in the body of the hall not i)rovided
for the .-senators ; for the tellers. Secretary of the Senate, and Cleik 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 are all counted and the result declaretl ;
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 sejiarately,
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 ditt'ers, and
if so in what respect, from the measure which passed the Senate at the last session ?

Mr. Morton. There are some verbal alterations, but it is substautiallj'^ the same
bill.

Mr. Bayard. Nothing aifecting the substance is changed?

Mr. MoKTON. Nothing ati'ecting the substantial features of the bill which the Senate
passed last year.

Mr. Bay'ard. Mr. President, I am very glad that, even at this stage of the session,
this very important question has come uj for the consideration of the Senate. The
Senate nuiy remember that many weeks ago I urged speedy action on the subject, and
I suggested methods of action which I believed then and still believe were the best
calculated to insure co-operative action between the two houses of Congress upon
this subject. The xiower of each house is the same over this subject, the same meas-
ure being committed by the Constitution to each ; and therefore it was that I believed
the present condition of party majority in each house was exceedingly favorable to
the framing of such a permanent rule iu the shape of law upon this subject as would
be satisfactory to the American people. Although the Senate has not seeu fit to adopt
my suggestion that this subject should be considered by the two Committees ou Rules
or the two Committees on Elections in the houses respectively, and in that way a
measure could be made more jirobable of acceptance by each simplj' by beimj reported
by each committee to its own house favorably, still 1 am most anxious to see some-
thing done in the proper direction ui)on this subject, and if this bill shall be a step in
that way I am. prepared to give it my support.

PROCEEDINGS AND DERATES IN CONGRESS. 521

I have felt long that wliicli I apprehend the honorable Senator from Indiana has felt,
some degree of embarrassment in regard to the measure of power committed to Con-
gress over the counting, accepting or i-ejecting of the electoral votes of the electors of
the various States. The letter of the Constitution ou this subject is very meager. 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 Seiiators and Representatives to which the State may
be entitled in the Congress;" and then proceeds to excliide Senators or Rei)reseutatives
or persons liolding an olHce of trust or profit from the office of elector. Then follows
in the original Constitution a provision for the meeting of the electors which has been
superseded and annulled by the twelfth amendment of the Constitution. Then fol-
lows a paragraph autliorizing Congress in its discretion 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, superseding a portion of the third paragraj)!!
of the second article, ])rovides that —

"The electors sliall meet in their respective States and vote by ballot for President
ami Yice-1'resident, 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 Presi-
dent, 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 numt)er of s'otes 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."

This latter clause contains all the power that is delegated to the two houses of Con-
gress or to any other officer of the Government in respect to the counting of the
electoral vote; and the present bill provides simjjly the legislative machinery to ac-
complish this result. There has been argument heretofore before Congress, which I
have concurred in, to the effect that the two houses are mere witnesses to the counting
of these votes. The only officer named is the Presiding Officer of the Senate into
wiiose custody the certificates shall have been delivered in accordance with the man-
date of the Constitution by the electors or their agents, their messengers, and those
certificates 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, perhaps of necessary inference;
but they are to be counted. Tiie powers given to Congress are enumerated, and a just
and wholesome construction will cause the expression of one power over a subject to
exclude other i)owers not expressed. Power is given to each State to appoint, through
its legislature, or in such manner as the legislature may provide, a number of electors.
Congress is given the power to determine the time of choosing them, and the day on
which they slniU cast their votes; and then the two houses are made the wittiesses of
the ojHMiing of the certificates by the Presiding Officer ; and tliis enumerates all the
express powers ; and the ([uestion for the Senate and for each member to determine is
how far this expression of powers excludes others not expressed.

For the last three i)residential elections, tlie vote for President and Vice-President
has been counted under the alleged authority of a joint rule, which at the end of
eleven years the Senate have rescinded by their own action, wi)ich as yet has not been
concurred in by the other house, wlietlier any concurrence be necessary or not. I
have heretofore stated that in my oi)iuion the concurrence of the House was not essen-
tial. Hut under that rule the electoral votes in three presidential elections 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 as-
sumption of a power to exclude the vote of any State, and disfranchise any State at
the cajmce, the unargued or unreasoning will of either house of Congress. It is not
too much to say that such a power was an ittter usurpation, utterly without warrant in
the Constitution, dangerous in the extreme, and threatening to overthrow that spirit
of populiir government which all over underlies the frame- work of our system, because
it enalded, 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 ])opulaT will, and consign the election to that one body to which,
only in the event of the failure of the people liy a majority vote of all the electors to
express their will, has the Constitution relegated the question. In that event the de-
cision which the people had failed to make themselves the Constitution remits to the
popular liranch of Congress, the House of Rei)resentatives.

This state of things has continued for three elections. Thrice have the people of
this country voted with a power that was foreordained in case of necessity to thwart

522 COUNTING THE ELECTORAL VOTE.

their election, given to either house of Congress, the right under any pretext in silence
and without reason, without debate, to overthrow the result of the popular election.
But the preseut bill abrogates that monstrous claim of power; and I will not say that
the monstrosity of that claim was discovered only when a variance occurred 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 pres-
ent President, and until there was a change in the majority of the popular branch of
Congress, this rule with all its unhallowed and dangerous and despotic power stood
unquestioned and unassailed.

Mr. MoKTON. If the Senator will allow me I will call his attention to the fact that,
80 far as I am concerned, I proposed a change in this rule before this change in the
House of Representatives. I think f(»r 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 records of the Senate betray any debate upon the subject in the line of refor-
mation of that rule. If there had been any, there would have been no dilficulty what-
ever in the passage of some remedy. The Senate had no trouble in passing this act
at the last session, or one, as I understand, from the Senator almost precisely similar,
and it could readily, in the then condition of the House of Rcprest-utatives, have be-
come the law of the land.

Mr. BouTWELL. Will tlie 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 imme-
diately 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 condemned, I think uniformly condenined, 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 tbat 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 \\'as followed by no action and by no amendment 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 verj' sensible and I think authorized machi-
nery of tollers merely to tabulate this vote and return it to the t\^'o houses, that "no
■ electoral vote or votes from any State to the counting of which olijections have been
made shall be rejected except by the affinuative vote of ti.e two houses." That is far
safer, that is far better; and I do not know that I am prepared to otter any tribunal
better adapted than the tvvo houses for a co-operative vote, which is made necessary
hefore the electoral certificate of a State shall be rejected; and yet my want of sug-
gestion comes from the silence of the 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 Chief Magistracy of the Uniun and the
Vice-Presidency also depend. And there will be found, I think, in tlie 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
ami now to constitute the two houses the triljunal which shall decide u])ou the recep-
tion 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 community; that is to say, the community of an entire State or
of any numher of States. The answer is very plain, that, where the two houses shall
be of a dift'erent 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 bo not a majority of electoral vote.s declared by the
count; ami the House undoubtedly, on the other hand, would not have it in its power
to claim the election by the non-assent of the non-concurring body of a ditierent polit-
ical view. But it is a grave question whether the two houses have the power to con-
stitute 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 iio])ular election, and throwing it under the con-
trol 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

PROCEEDINGS AND DEBATES IN CONGRESS. 523

for any one candidate, the election mnst go to the Honse of Representatives. 1 cab
imagine the two lionses of the same political party, not as they are noAv constituted,
for this is not a law for to-day only ; it is to become a settled law, a fixed rule, requir-
ing 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 Honse of Representatives at their will to throw the elec-
tion 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 Govennuent on this sub-
ject ? 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 Constitution their
duties would seem to be of a ministerial 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 tribunal competent for this
purpose, are the two houses of Congress the best tribunal that we can devise and sug-
gest ? I state these questions without the preparation to answer them fully, and iu
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, everything that tends to promote fairness,
everything 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 ]iopnlar will
at the moment. Therefore it behooves ns, in dealing with a question which was in-
tended 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 iu 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 suggestions thus thrown out, and rather unpremeditatedly — for I did not
suppose the measure would be called before the Senate this morning — may meet with
some response from others on this floor who have likewise given grave consideration
to this subject.

Mr. Morton. Mr. President

Mr. SriKUMAN. 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 declared on the second page, in section
1, being to prevent either house from defeating the counting of the A^ote of any State,
and to repeal the practice that had grown ujt 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 thii'ty-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 of the two houses."

But under the proviso to section 3, I fear very much that either house might by
indirection defeat the counting of a vote, because it provides for the separation of
the two houses and the consideration by each house of the question, and then pro-
vides :

"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 i)rolong debate indefi-
nitely, 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 iu that
respect, and it is not an improbable supposition that in high party times, under great
excitement, one house might thus neglect or refu.se 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 require, after two hours' debate, a per-
emptory 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

524 COUNTING THE ELECTORAL VOTE.

a reasonable time, say two hours, tbat the question should be pnt iu each house and
the convention again assembled. I therefore move an amendment to make the pro-
vision read : " 'J'hat after such debate lias lasted two hours it shall be the duty of each
house to pnt the main question Avithout 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 from Ohio if, iu his judgment, two hours'
tiuie would be sufficient to discuss the gjave questions that might arise. I agree
that his criticism is entirely just in regard to the clause in the bill. The only doubt
in my mind is in regard to the time.

Mr. SiinKMAN. This is a duty rather in the nature of a ministerial duty, that must be
promptly performed. The only question before the two houses is as to the form and
sufficiency of a return, and that depends on matters 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 attention 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 between 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 ques-
tion which may arise. It seems to me that two hours' time is sufficient in a delibera-
tive 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 re-
member 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 Sen-
ator went up to the desk and exan^ned 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 Arkansas recpiired, we fell into the error of supposing a fact which did not exist,
that the State of Arkansas had a seal, and therefore we rejected 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 proper 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. WiTiiEKS. 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 inquire whether the point which I
am about to mention was considered by the connnittee, and whether they designed the
bill to have the eftect that it seems to me it will have if it be adopted in its present
form 1

The provision in the twenty-ninth, thirtieth, and thirty-first lines of the first sec-
tion gives practically a veto power to both houses acting conjointly when .an objec-
tion is made to a vote being counted; but in regard to the contingency where difterent
certificates of election are sent up from a State, the second section provides that "all
such returns shall be opeued by him " (the President of the Senate)" " in the presence
of the two houses when assembled to count the votes ;" both the conflicting 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 recpiire the concurrent action of both houses to fix upon the au-
thentic return from sucli a State. Supijose 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 provision 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 State that was thus disputed
would be cast out entirely? If so, it leaves it still in the power of either house to
veto the vote of such a State.

Mr. Wright. 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 chairmain of the com-
mittee before he shall address the Senate.

By the first section it is provided that no electoral vote of a State shall be rejected
except 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 coiinted which
the two houses actiug separately shall decide to be the true and valid return. Now,
suppose they shall not agree, then what is to be the result ? That is a contingency
that, it seems to me, is not iirovided 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<

I will suggest to the Senator from Indiana another trouble that occurs to me under,^
the first section. The last clause of the first section contemplates that not only tl
question of the admission of the return from a State may be referred to the tw'H

wlB

PROCEEDINGS AND DEBATES IN CONGRESS. 525

houses, acting separately, l)nt that other qnestious " pertinent to tlie object for wliich
the two houses are assembled may be submitted and determined in like niaunei.'' If
the "like maimer'" refers to what precedes, with reference to the maimer of accept-
ing or rejecting a return, and that in determiniug any of these other pertinent C[ues
tious there must be an atSrmative vote of the two houses to reject, otherwise it shall
be accepted; and if, upon a question thus pertinent being subuiitted to the two
houses, they do not aftirmatively determine to reject it, it seems to me that yju 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 %vhich case it shall be competent for either house, acting se])ararely,
in the manner hereinbefore provided, to direct a recess not beyond the next day at the
hour of ten o'clock in the forenoon."

The doubt that occurs to me is whether that recess relates to a recess by each house
separately or a recess as to both houses, and whether 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 coucurrent
action determiuing in favor of a recess to have a recess of both houses, or whether
either house acting for itself can take a recess.

I do not know but that the iuquiries 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. Eatox. Mr. President, the objection which has been so well stated by the Sen-
ator 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 anicnduient
of the Senator from Ohio. It seems to me that this second section is altogetlier vicious.

"St:c. 2. That if more than one return shall be receiv^ed by the President of the
Senate from a State, purporting to be the certificates of electoral votes given at the
last prccediug election for President and Vice-President in such State, all such re-
turns 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 actiug se]iarately shall decide to be the true and valid return."

Now, su]>i)ose they do not decide. Suppose the Senate acting separately decides
that return marked "A" is the true return and the House of Representatives decides
that the return marked "B" is the true return. Then neither can be counted by the
terms of this bill. Manifestly this cannot be the design of the distinguished Senator
from Indiana. Although perhaps it is a little out of place now, tlie question l)fing
on the auuMidment 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 paragraph :

" 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 returns, which I will designate, for the purpose of
identification, one as "A" 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, act-
ing separately, shall decide to be the true and valid return." Manifestly the bill is
vicious in this particular.

Mr. Morton. Mr. President, before proceeding to comment on the features of this
bill, I wish to answer a suggestion made by the Senator from Delaware to the efiect
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
efiect of that suggestion was to give this proposed amendment a political siguificance.
Now, to relieve myself at least from any imputation of this kind, I call the attention of
the Senate to a speech that I made in this body on the 17th day of Jauiuiry. lS7o, three
years ago and more, certainly before this change had taken place in the political com-
plexion of the House of Representatives. I discussed the twenty-second joint rule
as it stood until a few weeks ago, and I cannot now add anything to the objections I
then took to that rule, to its enormity, 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. This rule was un-
doubtedly the result of a conviction in Congress of the necessity of providing noiwi
method for avoiding the dangers I have been discussing; but it was certainly adopted
without much consideration, 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 contrivance 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."

526 COUNTING THE ELECTORAL VOTE.

I then went on to recite the rule, and discussed it somewhat at length. It was atj^
time when both houses of Congress were republican. I did not discuss it in an.
political aspect. It was a question above party and political considerations, and a
such I present it now.

The principal change which this bill makes from the old twenty-second joint rule
consists in three things, to wbicli I will call the attention of the Senate. Under the
twenty-second joint rule, when the two houses assemble to count the electoral vote,
if an objection be made, we will supjiose to the vote of New Jersey, however techni-
cal 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 disfranchise all the States; and under the operation of that rule, when the two
houses came to vote separately, there was no debate ; there could not be a single sug-
gestion. 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 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 liill allows a short debate to i)oint out the objection or the futility of the objec-
ti(m : and it provides that no State shall be disenfranchised or any electoral vote lost
without the concurrent vote of both houses. You cannot pass the most trifliiig bill
without the concurrent vote of both houses ; you cannot appropriate a dollar of
money without the concurrent vote of both houses, each acting separately; but under
this old rule you could disfranchise forty millions of people by one house. It was
absurd, wickedly and dangerously unconstitutional. This bill provides that you can-
not reject an electoral vote from any State unless both houses shall concur in that
rejection, and that is tlie only safe rule on the subject, in my judgment.

Mr. Bayard. Will the Senator j)ermit me to make a suggestion ?

Mr. MouTON. 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 counting of any votes purporting to be elect-
oral votes sent ui) from a State, no matter by whom ? I want to show this effect.
There are, say, in our electoral college at present 36G electoral votes ; one-half of this
is 183 votes, and 1H4 is a majority. The Constitution entitles the person haying the
greatest number of votes for President to be President, if such number be a majority
of the whole 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 ])ermit two sets of returns to come from any State, and require 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 duplicate
returns shall be regai'ded 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 n.ecessary for
a man to receive ll)u instead of 184 to have 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 exclu-
sive, so far 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-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."

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 made, shall be rejected except by the afBrmative vote of the two houses."

Here, then, should we not find that it would be within the power of some mischiev-
ous and unfair persons in different States of the country to cause certificates purport-
ing, to use the language 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 a figure that
a majority would be required which in reality the present Constitution does not re-
quire? I ask the Senator if it does not strike him that there is force in that view ?

Mr. MORTO.'^. The first section of this bill applies to a case where there is but one
return from a State, and provides for settling objections 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 ques-

PROCEEDINGS AND DEBATES IN CONGRESS. 527

bon of the Senator from Delaware goes to this point, that where there are two sets of
t'jtnrns and the two honses do not agree which set will be connted, both sets will be
t'onuted and the aggregate nnmber of electoral votes increased. That is not intended
to be the elitect of this section, and I think it is not. The effect of it is to determine
wliich set shall be connted, and if the two houses do not agree neither set is to be
connted.

" That if more than one retnrn shall be received by the President of the Senate from
a State, purporting to bo the certilicates 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 " —

I call the attention of the Senate now to this point —
"and that retnrn from such State shall be counted which the two houses, acting
separately, shall decide 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 no objection to that being inserted, if it is desired, to make it cer-
tain.

Mr. Bayard. Then, I suggest, the only point is this: The Senator saj's that the sec-
ond section relates to cases where different certilicates come up, and that the first sec-
tion 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. Therefore in the two 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 dis-
franchise the State as completely as was done under the twenty-second joint rule.

Mr. MoKTON. 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 the 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-Presi-
dent. 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 assuming to vote for President
and Vice-President. Who is to decide which is the correct return, who is the gover-
nor 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 ? 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 ai)peal 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 possilde 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 ques-
tion ? We cannot read both sets ; both cannot be counted, because the State can have
but one vote or series of votes according to its population. 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 authority 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 j^ro tempore of the Senate, refnsed to entertain the motion,
declared 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. Happily, in that case the vote of Wisconsin was not im-
portant. Mr. Buchanan was elected by a large majority, even counting the vote of
Wisconsin for Mr. Frdmont. It became unimportant, as it would have been unimpor-
tant 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 result from it. Where there is but one set of returns, 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 President of the Senate? You cannot leave it to one
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 act-

528 COUNTING THE ELECTORAL VOTE.

ing under the Constitution and under their oatlis, just as you do in the passage of ai;
bill on an important subject. You must believe something in the integrity of me
and in that case it is safer to leave it to both houses than it is to leave it to one hous
alone. It is safer to leave it to both houses than it is to leave it to the Presiding Offi,
cer of the Senate, because there is Avliere the power must rest if it is not ijlaced 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 Constitution 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 disagree in their decision as to which
is the true and valid return from any State, or as to any other question 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 w<nil<l solve this difficulty. Tlicre are two returns from a State ; we are in joint
convention ; the States themselves by their votes could settle the question, the repre-
sentation from each State having a single vote. It is a mere suggestion, which I throw
out for what it is worth.

Mr. MoiiTOX. As between the method provided in this bill and leaving it to the votes
of the States, I should much prefer this as being the most democratic and as being the
fairest in every point of view. I think the weakest 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 endan-
gered the existence of the Government ; and it is to be sincerely hoi)ed 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. It was put there finallj" with but little consideration. It
is unjust to the j)eople ; it is dangerous; it presents the greatest temptation for cor-
ru]ition that can possibly be preseuted.

But I was discussing the question in regard to two sets of electors in a State, where
two sets of votes come here, 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. Somebody must settle that question ; and how shall it be done the most safely
to the country and the most satisfactorily ? Unless j'on provide for settling it in this
way, you must leave it to be settled by the Presiding Officer of the Senate. In my
judgment it would be more conducive to the peace and safety of this country to pro-
vide 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 l)e 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. Eatox. Suppose they do not agree on the same return, what then ?

Mr. MoRTOX. The vote goes out, the State has no vote, because, unless there is some
tribunal to settle which vote shall be counted you cannot count both, and therefore
you cannot count either. You must have some tribunal to settle that difficulty ; and
what tribunal is safer than the two houses of Congress, I ask my friend from Connec-
ticut ?

Mr. Withers. I suggest that it would be better that some tribunal should be pro-
vided 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 large one in any State, which wished to deprive that vState 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 having a majority in one house, the effect of such re-
turns 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 retiirn 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
PresiUfcii'i, ui liie toeu^te. If you do not provide for the two houses settlhig that ques-

PROCEEDINGS AND DEBATES IN CONGRESS. 529

,'on, you necessarily leave him to pick out the package that he thinks ought to be
*:)uiit'eil. He is asTiable to be swayed by political considerations as both houses are, or
! s either house is, and therefore the same difficulty returns. Now, in regard to another
;ribunal, 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 i>hraseology :

" The electors shall meet in their respective States and vote by ballot for Tresident
and Vice-President, one of whom, at least, siiall 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 certilicates are to come to the Presidentof the Senate sealed. Nobody knows the
conteutsof 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-
President, 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 advance and see if there are any irregularities and have them cor-
rected, or submit them to a court to decide questions. These questions cannot arise
until the two houses have asseml)le(l 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 Rep-
resentatives, ojjcn all the certificates and the votes shall then be counted."

Then and there. Yon cannot refer to any other tribunal ; you cannot get the case
before the Supreme Court of the United States or before any special court to be created
for that purpose. These votes arc then to l)e opened, and then and there they are to be
counted. I will read on:

" The person having the greatest numl)er of votes for President shall be the Presi-
dent, if such number be a majority of the whole number of electors appointed ; and if
no person have such maj(U-ity, then fiom tlie persons having the highest numbers, not
exceeding three, on the list of those voted for as President, the House of Ive})resenta-
tives shall choose immediately."

It contemplates, and the history of the debates shows that the Constitution contem-
plates, that when the votes have'thus l)een opened and connted, if no person is found
to be elected, the House of Representatives sh;ill without adjournment proceed to elect
a President, so that there shall lie no intenegnum — 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 t)f an immediate counting of the votes is undoubtedly correct; and so
as to the inability of remanding the decision of the question to the Su[)reme Court;
but I am not prepared at this time to give my assent to the doctrine that the two
houses would be better prepared or ([ualified in any sense to decide this question than
would the joint representation 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 whei'e responsibility is devolved specifically upon an indi-
vidual occupying a position as high as the Vice-President occupies he will proceed to
the discharge, of that duty with a fuller knowledge of that resj)onsibility, and, I
think, with less probability of having his judgment warjied by purely jiartisau con-
siderations than would either house of Congress. But I have merelj' thrown out
these suggestions, not that I am prepared now to otter an amendment which would
meet the dififtciilty I have suggested, but to call the attention of the distinguished
chairman of the committee to it, ami elicit such information with regard to argu-
ments 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 attention of the Senator from Indiana, the chair-
man of the Connnittee on Privileges and Elections, to sections 1 and 2. It occurs to
me that section 1 is predicated on the priuciiile of law that, where a certificate is pre-
sented, all presumptions are in favor of that certificate being regular. Hence, accord-
ing to law, that jiresumption remains unless it is set aside by the joint action of both
houses. If the houses disagree, the presumption renuiuis ; and tlieieiore 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 tii" Siare has cer-
tainly voted. If the two houses difter, then, according to this bill, the vote of that

530 COUNTING THE ELECTORAL VOTE.

State falls. There is the trouble in my mind. Can there not be some means devif ^
■whereby a sovereign State will have a right to have her vote counted and not be cJ
out of that vote by reason of the failure, or, if yon please, the fraud of the certifying
officers in seuding up the wrong certificate ? Is there not some way of getting al
that and counting the vote ? I can readily see that if the President of the Senate
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 question, the inevitable result will
be that a State is deprived of its vote in the electoral college. I would like to hear
from the Senator if there could not be some means devised by the Committee on Privi-
leges and Elections to save the right of each State to \ote.

Mr. Morton. I think the bill is intended for that. To come right back to the point
where there are two sets of electors, tsvo persons piirporting 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 dilierence between
them, when such a contingency 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
disagree, one house votes in favor of one certificate, 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. MoRTOX. 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 liy a court, for
that would bo clearly in violation of the Constitution. If the two houses disagree,
supposing of course that they are acting honestly and patriotically — if they cannot
agree, who shall settle that question ?

Mr. Maxey. Is not the spirit of the Constitution in that case like a case here in the
Senate ? Wlien the Senate divides equally, the Vice-President as President of the
Senate, who ordinarily has no vote at all, gives the castiug vote. Here you have the two
bodies divided; one favors one certificate, the other the other. The State has to lose
its vote altogether or leave it to some umpire. I ask, would it not be within the spirit
of the Constitution to let the Vice-President decide ?

Mr. MoRTox. If, when the Senate comes to decide the ([uestion which is the correct
return, if there is a tie vote in the Senate, and the Vice-President is presiding, not a
President pro tempore, he can cast a vote in that case, deciding the (luestion in the Sen-
ate ; but there is no provision in our Constitution authorizing the Vice-Presideut or
any other officer of Government to come in and settle the question where the two
houses disagree. If thei-e is a tie vote in the Senate, the Vice-President can cast the
deciiling vote ; but it is not in conformity with the spirit of our Constitution to pro-
vide for some officer who shall settle between the two houses when they disagree.
Therefore it seems to me that this provision is a matter of necessity. You have got to
leave this disputed question somewhere, and is it not safer, is it not more democratic,
more republican, 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 Seiuitor 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 f 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 guard the interests of the
country. We have gone on nearly a century without legislation. For three presi-
dential periods we had a joint rule, a very bad one to be sure, for it augmented our
difficultuis rather than diminished them, and increased the apprehensions which care-
ful and judicious men naturally entertained concerning the possibilities of danger to
the Eepublic in passing through the great crises of its existence.

In the examination which I have given to the provisions of the Constitution relat-
ing to the election of President and Vice-President, I have becjme more and more
convinced, as my reflection aud examination have been extended, 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 sub-
stantially all that was necessary. I do not accept at all the suggestion that the Vice-
President of the United States has anything more to do in the business of conntiug
the votes for President aud 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

PROCEEDINGS AND DEBATES IN CONGRESS. 531

Senate and House of Representatives, to open the certificates. There being no other
duty assigned to hnn, I infer naturally that he is to do nothing more.

Almost always, I think, when the snhject has been discussed here, the question has
been presented whether Congress is to count the votes; and by that 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 assembled until the last, the two
houses in convention always did count the votes. A teller was appointed by the Sen-
ate, 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 wei-e the organs, the instruments, the hands of the respective
houses. The votes wi-re counted by the tellers, and being counted Ijy the tellers they
■were counted by the two houses ; and thert-fore there never has been any tliffer.'uce
of practice, and no difiereut 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 com-
mittee in regard to the power to c<nint the votes and the duty to count the votes, that
one was conferred upon Congress and the other enjoined 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 to anybody else. If
that be so, then the suggestion of the Senators from Virginia and Texas is answered,
whether some device may not be resorted io 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 tribunal to decide that or any other
question arising in the course of couuting the votes, because it is a duty ini[ti)sed upon
the two houses of Ctjugress. They alone can perform it, and they have not the power
to transfer its ])erformance to anybody else. Whether this powei- is there for we.il or
for woe, there it is; and until the Constitution is altered there it must remain.

I say I have not th(> faith in the wisdom of this measure that is probably entertained
by the hon<n-al>le 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 constitutional force that can be given
to this bill, so that when it liecomes a law it will be imperatively operative upon the
two houses of Congress that may assemble under it. I can understand that a joint
rule adopted bv each Congress would be o])erative upon that Congress that nught be
called upon to count the V(ttes in a parlieular case, not only in good conscieiu-e, but in
such a geiuM'al judganuit of the whole country that we m:iy say, speakiug in tin; ordi-
nary use of language, it would not be i)ossibie for either house to viidate the obligation
imposed upon it by the joint rules and receive any support from any party in the
country ; but I think a law wtnild have somewhat less force upon a Congress or upon
one branch of a Congress that might find it conv- nient not to obey the law.

Here is .■'. duty imposed ujion Congress by the Constitution ; it is a duty to be exer-
cised at stated periods. The provision of the Coustitutiim does not operate upon every
Congress, but it operates upon particular Congresses. Now, can a Congress to which
or upon which the })rovisit)n of the Constitution does not attach afc all legislate and
bind the conscience and the judgnnnit of a Congress that is to perform a duty imposed
by the Constitution especially upon itself? I have great doubt upon that point,
whether, if the exigency should arise when it would be thought desiral)le, so desirable
as to be expedient, for one branch or the other of Congress to disregard the law, (and
that wouhl be just the exigency when }irobably the law should be observed,) we
should not tind one; body or the other willing 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 system, 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 — might do
something, and I think would dosomething, to secure the country againstthe evils that
might otherwise arise ; aiul therefore I am disposed to vote for the bill substantially
as it is presented to us ; and yet without feeling absolutely secure 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 langu.age 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 concur in the rejection
of them. The reason for this, it seems to me, is plain. The presentation of a single
certificate in the usual form is jyrima facie evidence of the truth of what the certificate
contains, and there being no testimony controverting that prima-facie case, it certainly
ought to stand until it is overruled by the concurred judgment of the two branches
of Congress authorized to pass upon the question. But when two certificates are re-
turued from the same State it cauuot be said that there is a. xnima-fack case lor either

532 COUNTIXG THE ELECTORAL VOTE.

of these certificates, and with less reason can it be said tliat there is a prima-facie case
for both of these conflicting certificates, and therefore tliere is not n prima-facie case
for anything.

Then two conseqnences follow from this state of things: First, that the connting of
the votes under the Constitntion means something moi-e than the mere examination of
the paper ccrtiticate; otherwise there wonkl be no p!)ssib]e means by which Congress,
wlien there were two certificates returned from a given State, would have the power
of ascert;iiuing what the truth is. And hence, in tlie very nature of the case, there is
power under the Constitntion vested in the two houses of Congress, if tlie occasion
demands it, to go behind the certificate and inquire into the facts ; and that is a gen-
eral i>o\ver hedged 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 certilicate : and from that a third conclusion necessarily results, that
if, unfortunately, thr(jugh accident oi- intrigue or the machinations of persons hostile
to the true interests of the country, two returns come in from a gis-en State, and it is
not in the power of anybody to (lemnnstrare to the two houses which is the true re-
turn, that State must lose its vote. That is what happens in all cases wliere the truth
cannot be ascertained; some one .sufiers as a consequence of that inability, and no
scheme that we can devise will rid us of that diiiieulty.

We have to rely something upon the integrity and intelligence of the people first,
secondly upon the electors and re))res(Mitatives of the people in the respective States,
and at last, notwithstanding the divisions of opinion upon party (piestions, notwith-
standing the diversity of interests, notwithstaiuling the clash and the hostility of
diverse purposes among men, we ha,ve in the end to rely much upon tlie integrity of
the tribunals constituted by the Constitution to pass upon great questions involving
the integrity and the continuance of the Government itself. All governments are ex-
posed to danger. Not yet has human wisdom devised a government free from danger.
The machinations of men hostile to the perpetuity of a government always create ap-
prehensions, and when by constitutional provisions you have set up every safeguard
and interposed every check which human wisdom or human ingeiuiity can devise, there
still remains the element in unmeasured quantity of danger.

But the people of this country have confideil something to Congress, and this is one
of the })owers confided to Congress, a solemn duty resting upon it. We have, with all
the confidence 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 altle to present it, I am disposed to vote for the
bill; and yet I am not sun; but that the Cimstitution, interpreted in its natural sense
and in the light of the usage of the country for nearly a century, Avould after all be
as good security for the peace and the continuance of the Government as any measure
we can devi.se.

Mr. Thurmax. Mr. President, this is no new subject to me. Soon after the count of
votes at the last presidential election I took occasi(jn to say in the Senate that in in;
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
])lungod into civil war uiion 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 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 beginning of the next session, the Senator from Indiana
[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. MoRTOX. It was three weeks before that count.

Mr. Thurman. Before that count ; perhajts it was. The Senator syxdce .somewhat
elaborately upon it. The subject was referred to the conmiittee and a bill was re}»orted
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 nuide in it particularly;
but I do not discover, on a hasty reading of this bill, any material changes that have
been made.

Now, sir, I wi.sh to say that for the .second section of this bill, to which exception
has been taken, I must assume a portion of the r»!sponsibility, for I believe that it Avas
upon my suggestion that the Senator from Indiana introduced this second section into
the draught of his hill. 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 simjily ministerial : that he is not constituted
the judge to decide whether a return is valid or not. The whole history of the conn-

PROCEEDINGS AND DEBATES IN CONGRESS. 533

try, I think, i,s against any such interpretation of the Constitution as would confer on him
that power; and the fact that more than once tlie Vice-President who presi(hMl over
the joint convention was himself a candidate either for the oftice 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 candidate.

Mr. Morton. Will the Senator allow me to refer to tbat '1

Mr. Thukjiax. I will thank the Senator.

Mr. MoRTOX. 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 wit-
nesses, and have no jurisdiction over the subject either jointly or separately, every-
body must perceive that it is a vast and dangerous power to repose in the hands of
one man, esi)ecially 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
hapjjened six times in the history of our Government that the President of the Senate
has opened and counted the votes for himself, either for Piesident or Vice-President.
In 1797, John Adams, as Vice-President, opened the votes for himself, and declared
himself elected President. In 1801, Jetterson, as President of the Senate, opened and
counted the votes for himself when he and Burr were the candidates for I'resident.
In 1821, Vice-President Tomi»kins, as President of the Senate, opened and counted the
votes for himself, he being a candidate for re-election ; and in 1^:>7 Mr. ^'an linreu,
then Vice-President, counted the votes for himself as Presideu-t, and declared himself
elected. In 1841 Richard M. Johnson, then Vice-President, opened and counted the
votes for his re-election as against Mr. Tyler, the opposing candidate ; and in ISlil Mr.
Breckinridge, then President of the Senate, opened and counted the votes for himself
as a candidate for the Presidency."

Mr. TiiURMAX. I am obliged to the Senator for recalling to our memories those
facts.

Mr. Eatox. May I be permitted to ask the Senator from Indiana from what he
read ?

Mr. MoRTOX. I read an extract from the speech that I made some three years ago.

Mr. Eatox. I did not suppose myself that the Vice-President counted the votes at
all.

Mr. Thurmax. That was exactly the conclusion I would have come to, that the
counting is not by the Vice-President, and these facts show that it never could have
been contemplated that he should be the judge of the election. What his duty is. is
prescribed in the Constitutitm :

"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."

There is no duty devolved upon him but to open the certificates in the presence of
the 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 dis-
agree about that. The votes then are to l)e counted. How are they to be counted ?
They have been counted by a sort of common understanding as to the mode of proced-
ure. They were up to the time of the adoption of the twenty-second joint rule. But
now that joint rule, it is held, has been abolished by the Senate receding from it, or by
its falling at the end of a Congress. So, at least, I'nnderstand a majority of the Sen-
ate 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 remarks that
seemed to favor the regulation of this matter by ritle, I have this fundamental prin-
ciple 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 department of this Govern-
ment, and the mode of its exercise is not prescril)ed by the Constitution, the prescrib-
ing 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 theiV count, it follows necessarily
from the structure and genius of our Government, and from the very nature of legisla-
tive power, that that mode is to be prescribed bylaw. 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 therefore with this being a law.
I think it proper that it should be in the shape of a bill to become a law.

Now, I ask my friends to consider what this bill would be if the second section were
stridden out. The tirst section provides, in accordance 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

534 COUNTING THE ELECTORAL VOTE.

an objection to a return, tben tlie first section provides that the Senate shall retire,
and each house shall consider the objection, and that retux-n shall be counted unless
both houses concur in rejecting it ; and if l)0th 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 supx>ose there are two returns from a State ; the Presiding Otticer, the President of
the Seuate, 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 iu 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 ; tlie Senate retires ; one body votes for that return, and the other body votes
against" that return. Under the first section that return must be counted. Thus by
that means you have put it completely 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 V)e 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. Maxky. 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 uo one is in favor of striliing that out entirely, but the second section reads
that if there are two returns from the same State, both those returns 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 those returns, and the other is in favor of sustaining the other re-
turn; the houses divide. There is no presumption in favor of those certificates, be-
cau.se they are of equal digiiitj'. As the secti(m 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 devised
whereby the vote of the State in that case may be saved and counted iu the selection
of President and Vice-President ? That is the point.

Mr. TuL'UMAX. I am coming to that presently. 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 absolutely in the power of the President of the Senate to determine, by pre-
senting 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 provision ought to be made for the case of two or more I'eturus from a State. Is
there any likelihood 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 prob-
able case ; at all events it having occurred, 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 uuiy occur again.

Mr. Kekxax. Permit me to ask did the Vice-President produce both returns under
the clause of the Constitution 1

Mr. TiiUKMAX. He did produce both.

Mr. Kekxax. And open both ?

Mr. Thurm.\x. Yes.

ilr. Keiixax. So that somebody had to decide which was the true return ?

Mr. Thurmax. He did open, according to my recollection, both from Louisiana, and
both from Arkansas, and they were both rejected, if I recollect aright. Louisiana was,
I know.

Mr. MoRTOX\ There was but one set from Arkansas.

Mr. Thurmax. There were thought to be two.

Mr. MoRTOX. There were supposed to be two at first; but there turned out to be
only one.

Mr. Thurmax. There were certainly two from Louisiana. Then, iu order to prevent
the President of the Senate from forestalling judgment by simply presenting one of
the returns, this second section requires him to present them all. There is uo objec-
tion to that. Then comes the question, where there are two returns 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 undoubtedly may have the ettect if there be no amendment 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 return.

Mr. Bayard. That leaves a veto power to either house.

Mr. Thurmax. I do not care by what uame you choose to call it; that is the result.

PROCEEDINGS AND DEBATES IN CONGRESS. 535

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 pajier, 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 Constitu-
tion 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 sub-
nutted to the law-making power to provide the mode by which it shall be ascertained
which is the true return ; and I nnist say that I am not prepared just now to assert
that we cannot provide some mode by which this difficulty, where there is this disagree-
ment between the two houses, may be decided.

Mr. Eatox. 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 i>ossibly both returns, and thus the State is disfranchised. I hope my
friend from Ohio will be able to find some tribunal which will determiue 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 deciding ; and I am sure that I shall
give my 8up])ort to any constitutional mode that is reasonable 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 practicing 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 wo
do discover before the law is enacted that if this law is enacted as it now stands, there
may be an important omitted case. It is to meet that that I have been so persistent
in this matter. lean 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 cer-
tificate and the other house the other ; and, as the bill stands, the inevitable 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 whereby, in the event of a disagree-
ment of the two houses, the vote of the State can be counted, and that too in com-
pliance with the Constitution ?

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 per-
sistently urged as being proper to be provided 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 devised 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 con-
stitutional 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 tlie Constitution, just so far as we cau provide for the contin-
gency of two returns and of the two houses disagreeing in respect to them, just so
far as we cau 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 Con-
gress 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 Constitution.
When Congress acts upon these returns, it is not acting in the exercise of its law-mak-
ing power ; it is not acting under its legislative power. Congress cau 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 proposition to that effect was offered at a
previous session, that the votes should be counted in case of a disagreement between
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 department, 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 certain original jurisdiction conferred upon it by
the Constitution. It is no part of that original jurisdiction to count the votes for

34 X

536 COUNTING THE ELECTORAL VOTE.

President and Vice-President, or to decide any question relative to the election of
President or Vice-President. Then what other jnrisdiction has it? All the rest of its
jnrisdictiou 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 ap[)eals from the decisions of the legislative department or from the two
houses 6i Congress when they are assembled together to count the votes for President
and Vice-Presiilent. 1 do not see, therefore, that you can confer this power upon the
supreme judges as judges, sitting as a Sujjreme Court, to decide this question, because
it is not a judicial question 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 individuals in the United States.

I do not see, then, that we can get out of the dilemma by making the supreme
judges the umjjire between the two houses of Congress. Then we shall perhaps be
brought to this conclusion, to decide whether or not we shall give to the decision of
one of the two houses of Congress a predonauance 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 pleasure; and I hope the discussion may last
upon this bill until some such mode can be found, if it exists, consistent with tbe Con-
stitution. If it can be, I shall vote for it. If it cannot be, I shall vote tor the bill
without it.

Mr. WliYTE. Mr. President, it is eminently proper that there should be some act of
Congress regulating the decent order of proceedings in counting and ascertaining and
declaring 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 chair-
man of the Committee on Privileges and Elections, does cover that part of the case.
There ai-e other portions 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 annihilate a joint rule which was an
enormity, a rule which passed this body almost witliout debate, which was not intel-
ligently discussed at all or its defects projierly pointed out. It passed through the
Kotunda to the other side of the Capitol, and there at a night sessi(m, 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 Kepresentatives of the people. That rule put it in the power
of either house of Congress to defeat the Avill of the jieople expressed at the preceding
presidential 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 announcing the result of the electoral vote is now lodged, and he asks
us, where is it safest to i)ut 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 u)ion the provision which our fathers made for that case. It belongs to
the President of the Senate to count the electoral votes. I ditfer with the Senator from
Massachusetts when he ajieaks of the two houses counting the electoral votes. I dif-
fer 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 certificates, to state the votes of the
people of the States, and to declare what the people had determined should be in the
future their will. I am surprised that we should stop here to-day to discuss the ques-
tion whether we have a right by legal enactments to take away from the jjcople 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. MoKTOX. Will the Senator allow me to ask him a question ?

Mr. Whyte. Certainly.

Mr. Morton. Where there are two returns, each purporting to be the returns of a
State, does the Senator hold that the Vice-President is authorized te select the return
which shall be counted ? Does he construe the Constitution in that way ?

Mr. WiiYTE. 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
hands. 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
popular will in any of the States of this Union. Our fathers lodged the power with
the peojile, in their legislatures, in their States, to regulate 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
election lias taken place in the November preceding. He knows who is governor of

PROCEEDINGS AND DEBATES IN CONGRESS. 537

the State. The presumption is all of ns 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 provides for the
certificate of the governor of the State.

Mr. Maxry. If the Senator from Maryland will allow me, the reading of the Con-
stitution upon that point is this :

"The President of the Senate shall, in the presence of the Senate and II>use of
Representatives, open all the certificates, and the votes shall then be counted."'

It does not say that the votes shall be counted by the President of the Senate.

Mr. Whyte. No; it did not mean to impose upon the President of the Senate the
mere clerical duty of writing down the votes before him, as the Secretary of the Sen-
ate now does on every vote we cast here. It did not mean to impose upon liim the cler-
ical work of writing down the number of votes cast and making the calculation : but
it did impose upon him the duty of making the actnal count and announcing the
result of tlie 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 the Senate shall, in the presence of the Senate and House of
Representatives" —

That is all thej^ 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 repre-
sentatives 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 certificates 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 presence 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 personally present and see the formality gone through with, in order tluit
the Vice-President or the President of the Senate might not, in his chamber or his
retiring-room, open these certificates and announce to the world what tln' 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. MoKTox. I would ask my friend if choosing between two sets of votes is a min-
isterial duty ?

Mr. Whytk. Yes; it is announcing what is the vote of the State ; it is counting the
vote of the State uiuler the Constitution. Our 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 ])roper othcer 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 Constitu-
tion to preside over this body. The Constitution made him the presiding officer of the
Senate. Therefore who was to count the votes? Congress? Congress was here;
Congress was elected; Congress was supjwsed to be in session. Then, if Congress
counted the votes, there was no difficulty 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 lirst assembled after
the presidential election. After the other details it was resolved :

" That the Senators should appoint a President of the Senate, for the sole purpose of
receiving, opening, and counting the votes for President."

Our fathers trusted the President of the Senate. Our fathers told the ilrst 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 re-
ceive the certificates, 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 umler
the first Congress that met after the adoption of the Constitution, and they have acted
under it. Congress after Congress has acted under it; and this very twenty-second
joint rule and the act proposed by the Senator from Imliana down to the words " two
houses" on I he twenty-first line of the second page, with the exception of changing
the date, is nothing more nor less than embodying the practice of Congress from the
foundation of the Government down to 185.5. 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 Hi)u>e. These two made an actual manual count, and the President of the .
Senate announced to the two houses and to the country what the result of that count
was.

538 COUNTING THE ELECTORAL VOTE.

It would be a moustrous thing to say that either house or both houses of Cou<?ress
cau defeat the will of the people of the States, with whom exclusively is lodj'ed the
power of electing a President and Vice-President through their electoral colleges. The
Constitution in article second left with the people of the States the arrangement of
their electoral vote :

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 certificate 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 tliat that will may be properly ascertained, 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 electois 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 annex one
of the said lists to each of the lists of their votes."

Then the act requires Congress to be in session :

"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, and the votes counted, and the persons who shall fill the offices of President
and Vice-President ascertained and declared, agreeably to the Constitution."

That is, by the President of the Senate, under 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 Tiill leaving it to the House of Representatives to
interfere than a bill which provided 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
governments of the States, and not the people in their primary sovereign capacity. The
other house comes from the people. Every two years R(q)resentatives come to the other
side ofthe Capitol to speak the voice of the jieople ; and I would rather let the House of
Representatives interfere than vote for any bill that permits the Senate to have part
or lot in determining who shall or who shall not be President of tlie United States.
The framers of the Constituticm denied it to us. They denied it to ns upon the very
ground that we represented the States; that we were elected for the long term ot
six years; that we did not go back to the people often enougii 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 tlie Senate to elect a President and Vice-President
of the United States in case of a failure on the part of the people to elect, the con-
vention 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.

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 in-
finitesimal, that scarcely any man feels it; but center it in one man of honesty and
integrity, juit him before the people liable to impeachment for high crimes and mis-
demeanors, 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 major-
ity, which are often more tyrannical than any single man.

I shall vote for that part of the bill, if it can be so dissected and divided as will
make a regular and orderly mode of procedure in the count and enunciation of the
vote for President and Vice-President ; but I will vote for no bill which takes away
the power of announcing the vote, the power of counting the vote, the power of open-
ing 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 Conmiittee on Privileges and Elections, I
felt that the great difficulty in fr.iming a bill and passing it into a law, to meet the
troubles which we all feared might arise, would be found iu meeting the question sug-
gested by the provisions of the second section. As the debate this morning has devel-
oped, 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
troubled some members of the Committee on Privileges 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

PROCEEDINGS AND DEBATES IN CONGRESS. 539

counting 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 count of the votes of the last presidential
election and witnessed 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 suppose our fathers thought of that want of political
integrity which would induce se])arate 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 interfere 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 tlirough laws enacted by the States them-
selves, because it will be remarked that the Constitution vests no power in Congress
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 Ma-
ryland, has been caused by the interference of the military 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 cai)able of governing them-
selves; that they were capable of expressing their will at the ballot-box and inau-
gurating those as their rulers whom they may have thus chosen at the ballot-box, and
scarcely imagined that the Federal Government would interfere to prevent them from
thus installing the rulers of their choice. Consequently 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,
wo 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 determined, it seems to me, is, where shall we lodge the
power of deciding in such an emergency what has been the expressed will of the peo-
l»le of a State who may by some abnormal condition in their political affairs send two
returns to be counted purporting to be the vote of the electoi'al college of that State ?

The bill as rejxjrted by the committee proposes to vest this jiower in the two houses
of Congress acting separately. It provides that they must concur before the Presi-
dent of the Senate or the proper officer shall be permitted to count either of the re-
turns thus made. It seems to me that, if we would avoid a conllict where such a
difficulty arises, it would be better to vest the choice of which is the proper return in
someboily who will determine it and not leave it between the two honses, which may
be composed, as at present, of opposite politics, and which would be apt in that case
to disagi'ee and thus exclude the vote of any State that might thus send two or more
returns.

The suggestion was first intimated by the Senator from Pennsylvania and afterward
by the Senator from Maryland that, as the Constitution has vested the House of Rep-
resentatives, 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 returns coming from any one State. It strikes me to be more
consistent with the theory of the Constitution of the United States that this power
should be vested iu that body thus pointed out by the Constitution to choose a Presi -
dent where the |>eople 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, carrying out this view to vest in the
House of Representatives, the 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 iu the second section all after the word " which " in line seven, to the end of
the section, as follows :

"The two houses acting separately shall decide to be the true and valid return."

And in lieu thereof insert :

" The House of Representatives, votingby States, in the manner provided by the Con-
stitution when the election devolves upon the house, shall decide to be the true antl
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, pur))orting 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 snch State shall be counted which the House of Representatives,
voting by States, in the manner ))rovided by the Cimstitution when the election de-
volves upon the House, shall decide to be the true and valid return."

Mr. Fjielixghuysen. Mr. President, it had always appeared to me that the pro-
vision of the twelfth article of amendments to the Constitution, which declares that

540 COUNTING THE ELECTORAL VOTE.

tlie President of the Seuate shall, in the presence of the Senate and House of Eepre-
sentatives, open all the certiticates, and omits to saj' that he shall do anything more,
was equivalent to the exclusion of the idea that any other duty was to be performed
by him, and that the Constitution left it open as to who sliould count the votes other-
wise than by stating that they should " then be counted." There is some force, how-
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 second section might be amended by adding :

'•And if the two houses do not agree as to the true and valid return, then the Pres-
ident 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 ottered 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
ditferent Senators will provide the remedy which is sought iov.

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 Cf)nstitution, I wish to state that it was with a view to the point sug-
gested by the Senator from New Jersey :

" The President of the Senate shall, in the jiresence of the Senate and House of Rep-
resentatives, oiteu all the certiticates." • •

There is a positive, nne(iuivocal duty devolving upon the President of the Senate.
"What is that duty? That duty is, in the presence of the Seuate and House of Repre-
sentatives, 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 Con-
stitution has taught me that it is the most guarded and best-expressed instrameut
that I have ever rciid anywhere.

"And the votes shall then be counted."

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 certiticates, I ask why
was not the clause so worded as to read thrrs ?

" The President of the Seuate shall, in the presence of the Seuate and House of Rep-
resentatives, open all the certificates and count the votes f "
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 "V^ice-Presi-
dent of the United States, to o])en the votes in the presence of the Senate and House of
Representatives, and that they should be witnesses to that great event ; but there
was an(jther 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 Seuate, and the repre-
sentatives 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 construction 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 protested against the
rule. It is a perversion of every known principle of law; for, when a certificate of
election comes np j)rima facie, that is good enough until it is removed ; and where the
two houses ditt'er, one saying that it is not good and the other that it is good, accord-
ing to every construction of law that we have learned the certificate stands in full
force and effect. But according to the twenty-second joint rule that is reversed. If
one of the houses says that it is not good, then the balance of the authority, which is
the other house, and distinct in itself, is to be overcome by one. That is against
every construction of the law. By that rule the great right of a State, the jn-ivilege
of a State, to say who shall be its President and its "V^ice-President may be stricken
down.

So far as the first section of the bill is concerned, 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 electors come up from the same State. That section provides that in
that case both the certificates shall be opened by the President of the Senate and shall
be submitted t(i the two houses, and if the houses agree uijon one of those, that shall
be counted ; but if the houses disagree, then the omitted case stands in f uU force, and

PROCEEDINGS AND DEBATES IN CONGRESS.

KA-

the vote of the State is not counted in an election of President and Vice-President of
tlie 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 suggested in the outset is, that the President of
the Senate is, by the authority of the Constitution, to ojieu these votes. By the Con-
stitution lie is the presiding officer over the joint assemblage of the Senate aud the
House. If tliese two houses disagree, a State should not be deprived of its gre.at right
of voting for President 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 divide. 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 everj' State the grave and inestimable privilege of saying for themselves
whom they prefer for President aud 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 presiding oflicer made an announcement that
struck the American i>eople as perhaps the most extraordinary 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 once fell
from the lips of a presiding officer over the joint session of the Senate and House : but I
Avant to see a provision made whereby each one of the sovereign 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 safely and constitutionally be lodged in that event — l)ec;nise we
must leave it somewhere or deprive a State of its right — in the President of the Senate,
who is the presiding officer over the joint session i>f the Senate and the House.

The Pkrsidixg Ofkicek, (Mr. Wright i)i the chair.) The (juestion is on the amend-
ment of the Senator from Ohio, [Mr. Sherman.] The chair was niuler the impression
that the only pending amendment was the one ottered by the Senator from Tennessee,
[Mr. Cooper.] He is now advised that the first amendment in ortler is the one ottered
by the Senator from Ohio.

Mr. Bayahd. I ask that that amendment be reported.

The Presiding Officer. The amendment of the Senator from Ohio will be reported.

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 ju'oposed to amend that proviso so that it shall read:

" Proridtcl, 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
Senator from Ohio really relates to a section of the bill subsequent to that which has
been under consideration by the Senate.

The Chief Clerk. The amendment proposed by the Senator from Tennessee [Mr.
Coo])er] is to strike out in section 2, lines 7, 8, and 1>, tlie following words :

"The two houses acting separately shall decide to be the true and valid returu."

And insert in lieu thereof :

"The House of Represeutives, voting by States in the manner provided by the
Constitution when the election devolves upon the House, shall be the true aud valid
returu."

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, voting by States in the manner provided by the Constitution when
the election devolves upon the House, shall decide which shall be the true and valid
return."

So tliat 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 Senator from Tennessee commends itself very
favoraldy to my mind. It is very true that when the time shall come that the gov-
ernor of a State or any considerable number of persons claiming any authority shall
certify a false certificate, a certificate of a false claim of election in a State, to attect
the choice of the people of the United States of their Chief Magistrate, and there shall
not be in both houses of Congress a sentiment of honor and integrity that shall make
such plans impossible of success, then the body-politic will be sick indee<l, and we may
well begin to despair of this experiment of men to govern themselves. Nevertheless
we have seen, we did see in 1872, a conflict in respect of the electoral vote of one of

542 COUNTING THE ELECTORAL VOTE.

the States of this Union, and, without going back to the history, the very sad and dis-
graceful liistory of that time, we must yet recognize the fact that that which has been
may again occur, and that, altliough fortunately the preponderance of the electoral
vote was so strong as to make this attempt inefficient for any purpose, still we ought
to contemplate the possibility that such an act might have been the turning jioint in
the choice of the President and Vice-President of this country in 1972, or may be iu
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 with-
out 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 questiim arises which is tlie true return and which should be counted ? As
the section now stands, it undoubtedly jirovides for the disfranchisement of a State
in the CA'eut of the Senate and the House not being of the same mind with regard to
those returns. If there sliall 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 tlie votes in favor of B shall be received, between those two, the dif-
ference being irrec(mcilable, both votes fall and the State is disfranchised. Sir, such
a proposition is not in accordance 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 stitled 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
presidential 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 I'resident to be chosen ; but custom
is stronger than law ; usage has become stronger than law, and so in effect tlie presi-
dential office has become an entirely popular office ; and, so far as any useful purpose
is concerned, the electoral college might, in my opinion, be as well abolished, because
in fact and practically men vote for a candidate for the Presidency or the Vice-Presi-
dency just as directly in etfect 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 case a majority of the electoral
votes cannot be discovered upon a fair count to have been cast for any one of the
candidates, theii the i>()pular branch of Congress, the Kei>reseutatives of the people, shall
liave the power, voting by States, to choose the President whom the electoral college
has failed to choose. The House of Kepresentatives, voting by States, has been said
to be the ultimate arbiter of choice of this high officer. The plan of the committee,
as reported iu this bill, would, in the event of the disagreement of the two houses,
disfranchise a State and render all its etifbrts to elect a nullity. The amendment of
the Senator from Tennessee ])revents the possibility of that, and giving tirst in a
proper form the right for all parties to be heard and all certificates emanating from
vrhat purports to be l.-iwful authority to be i)resented to the two houses in joint meet-
ing 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 (juestion
to that body acting in that form whicli the Constitution has prescribed for the elec-
tion 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 cannot be an undisturbed, delinite, distinct count, satisfactory to all
men as to its accuracy, made of the electoral votes, then the people of the couutry,
acting through their Representatives voted for immediately by them, shall express
their choice. The proposition of the Sen.ator from Tennessee relieves us from the
jiossibiiity of seeing a State disfranchised in the vote for President and Vice-Presi-
dent. 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 aftecting this choice as between two sets of electors. We
know they cannot honestly exist. We know there must be a decision, and that if it
does come it comes as the ofl'spring and child of violence and fraud, as came the votes
from Louisiana iu 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 it iu accord-
ance with the spirit, the intent, what I may term the genius, of the Constitution of
our countrj\

Take the case that from any State there come up two certificates. The houses sepa-
rately 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 Representatives as to whether one

PROCEEDINGS AND DEBATES IN CONGRESS. 543

certificate or the other is the proper one to be opened and the votes to be counted. If
thej' do so differ, however, this amendment of the Senator from Tennessee will pUice
the case exactly as thougli there had been a failure to elect by 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 pro-
vision and intent of the Constitution.

It seems to me that this amendment of the Senator from Tennessee has the effect
of procuring an ultimate arbitration, constitutional, fair, and jnst, one which can-
not be alleged to be in the interest of any party, because this law is not meant
for one election or another. I would not stop to consider whether the effect wouhl
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 A'ote or that of the party
with whom I acted. I have not made it a calculation, nor do I think I am capalde of
making it the basis of consideration in such questions as are before us ; but the amend-
ment has the merit that it prevents the disfranchisement of a State, and it provides
for an arbitration to settle the question according to the A'ery 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 ado2)ted by
the Senate I shall vote for the bill.

Mr. Kkrxax. Mr. President, with very great respect to the Senator from Maryland,
[Mr. WiiYTE,] 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 tem-
2)ore 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 Avell said by one or two
Senators, the language does not require any such construction. He is simply the per-
son to whom votes are to be sent from the States. The Constitution declares that ho
.shall open all the votes received, substantially, and then they are to be counted; and
I think it would be a very unnatural construction to say that if he opens two sets of
returns from the State of Pennsylvania he shall decide which of them is the true re-
turn. I think then that we have to decide, or provide for deci<ling by some other
tribunal than the President of the Senate, in the event of two returns coming from
a State or a return being challenged from a State, whether it shall be counted or not.

I a]q)reciate the serious objection there is to the second section, wherein it declares
that if the Senate shall A'ote one way in separate session, and the House of Repre-
sentatives the other, a State shall not have a voice in reference to the election of Presi-
dent. I am solicitous, if we can, to in-ovide 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 amend-
ment of the Senator from Tennessee, [Mr. Coopku] — and I only, suggest it to see if we
cannot remedy 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 Representa-
tive, will have a vote on that important question equivalent to the vote of four mill-
ions of people in another State.

I suggest that it is desirable, and the intent of the Constitution is, that the Presi-
dent shall be elected by the people and not by the States. It is trne there is a provis-
ion that in a certain contingency, where the people fail to elect, the House of Repre-
sentatives 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 bearing upon that, as we have contemplated
there may be, although I hope there never will be, instead of leaving it to the House
of Representatives tt) decide it, each State giving one vote as indicated by the amend-
ment, 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 people 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 subject ; and if we are to adopt the
amendment, I think it had better be modified so that the Representatives of the peo-
ple in the other house shall decide the point which shall arise 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 convention of the preceding year f [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 constitutional or legal iirovision here made with
that view. I do not think my friend puts a fair question. The peoj)le will act for

544 COUNTING THE ELECTORAL VOTE.

themselves in each convention, 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 Representatives 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 really were ; but we are
contemplating the contingency that, through fraud or througli faction in States, there
may be two sets of returns opened by the President of the Senate, aud we have to
decide upon them. It is suggested — and I treat that with great respect — that there
are provisions of tlie 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. Kkhnan. 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 what(^ver comes to him certified by one acting as governor. He may hud 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 fu-
ture 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 wisely
as we may that the question shall be decided whenever it does come.

Mr. Frelinghuysen. I wisli to ask my friend from New York whether, inasmuch
as the Constitution now ])rovides tliat 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 preponderance they would
have by voting according to representation ?

Mr. Kernan. I do not know. I think it is worthy of consideration. The Constitu-
tion now gives the election to the House when there shall be a failure to elect. The
framers of the Constitution were not contemplating such troubles as have arisen. They
meant when the people have so voted that they have not indicated the will of a ma-
jority, then it shall be decided in the way they jirescribed. But I am assuming that the
trouble may arise here, though the peojjle have really given a vote indicating 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 maj' be
swayed by feeling in reference to the result. Where 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 difhculty 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 conies to a division be-
tween the two houses — and it is not very likely there will be a division if the majority
in both houses is of the same jiarty — if a division arises on counting 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 presidential election,
is the other way, I should think it was in accordance with the spirit of t le Constitu-
tion and the theory of our Government 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
attects the result and we cannot agree with them."

Mr. Morton. Mr. President, the amendment 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 ; Nevada, with one Represen-
tative, 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 electing a President by States the will
of the people is not counted. Some time ago, two or three years ago, I had occasion
to consider this very question of the election of President by the House of Represen-
tatives, and I made a little calculation, and the same facts and the same ine(iualities
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 Representatives under the present ap-

PROCEEDINGS AND DEBATES IN CONGRESS. 545

portionment, each State having one vote, forty-tive luciubers out of two huudreil aud
uinety-two may make the election, as follows" —

And so forty-five members of the two hundred and ninety-two may decide the ques-
tion which it is proposed to leave to the House —

"Delaware, Nebraska, Nevada, and Oregon have each one member, and four mem-
bers 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 Hamp-
shire, 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, aud 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, aud 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, aud forty-five members may cast their votes aud elect a President of the United
States against the wisiies of the other two hundred and forty-seven members of the
House of Representatives.

This is a ]>rocess 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 eighteen 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 possible 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 182.5 it did happen that Mr. Adams was elected in the House
over General Jackson, who had received a larger proportional majority of the jiopular
vote than has any President elected since that time, and who had also a large plurality
of the electoral votes."

Mr. President, one of two constructions of the Constitution must be adopted, I think.

" 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."

Que construction is that the President of the Senate shall open aud 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 separately as the Senate and as the Hou.se of Representatives, shall
count the votes and settle all questions growing out of them. The idea that the Sen-
ate and House of Representatives, in case of a disagreement, shall provide an umpire
that shall settle disputed questions between 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 the Senate shall decide this
question himself, as argned 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 simply an inability to find out what is the will of the
people, and what government does actually represent the people. A contingency of
that kind may occur; it would be a misfortune, and not perhaps the fault of our sys-
tem of government. It is one of those things that may happen in regard to the pas-
sage 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. Bayaud. 1 wish to ask the Senator a question. Is not the latter portion of his
argument fatol 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 power of veto, that is
quite as complete for the purpose of controlling this question as the affirmative 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 Senate acting in their normal capacity, whatever that may mean. They are
ditferently constituted, constituted for different purposes, with very ditferent constitu-
encies, u[»on very difterent principles, the one representing numbers, the other repre-
senting separate communities. But if the Senator denies the power of the Senate and

546 COUNTING THE ELECTORAL VOTE.

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 the second section.

But it was not necessary for the Senator to read from his former report on this ques-
tion 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 communities formed it, and they had in the compositi(»n of this
council which we constitute powers given to them as States, an equal suffrage to them
irrespective of the population within ther limits ; and had that not been given, the
Union never would have been formed. The principle is recognized by the Constitu-
tion when it provides that in the matter of selecting a Chief Magistrate on a faihire
to find a majority of votes in the electoral college, then the States as States, voting
cue equal with the other, shall take the place of the people and determine it.

This was not intended to be a purely popular government, and the features of its
frame-work show that it was not. Tliero were to be checks upon numbers as well as
checks upon mere local sovereignty. It was the blended form that made it comi)lete,
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 reports — the princi-
ple stands that this Union is one of separate States, and the rights of the weakest
stand level with the rights of the gi-eatest ; 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 Tennessee invokes that very principle which
the Constitution itself is so replete Avith, the recognition of State sovereignty and
State existence upon important occasions, and one of those occasions is when a Chief
Magistrate comes to be cliosen 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 lm[)erative and the duty is imperative, and the power is complete in the
States meeting as States, and each one for itself, with equal voice, proceeding to repre-
sent the i^eople and elect a President for them. It is Ijecause that provision is found
in the Constitution, it is because I do respect the Constitution 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 the State, that then the House shall exer-
cise 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 arbitel-, so that
he shall decide in case from these causes you have not reached a decision. 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 uj)on which we may rest all with confidence.

Mr. MoHTOx. 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 government of States.

Mr. Bayard. Is it not a federal government?

Mr. Moirrox. It is not a compact of States. The Constitution was formed by the
lieople of the United States and rests upon the broad shouhlers 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 pro-
vision in it, and was so recognized at the time it was adopted by at least one dis-
tinguished 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 can-
didate 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 referred
to that house under this amendment of the Senator froni Tennessee. Sir, we cannot
afford to go any further in that direction ; and I undertake to say that if jee were now
called upon to frame the Constitution, with our present ideas with regard to the
rights of the people and the safety of electing directly by the people, and not by in-
termediate 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 utterly foreign to our system of govern-
ment 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,

PROCEEDINGS AND DEBATES IN CONGRESS. 547

or to the Supreme Court of the United States, or to any distinguished private person,
is utterly at war with our whole theory of constitutional fjovernment.

Mr. Frklixghuysex. I do not mean to say that my friend from Indiana is not
rijrlit ; but there are a good many analogies for it. In Wisconsin they elected a gov-
ernor, and yet after one man was proclaimed the governor 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 referred 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 undefined, so general, we have a power according to our
discretion by law to carry out the authority committed to us ; but while I say this I
want to reserve my right to A'ote against the suggestion that I have made, because the
Senator may convince me that I am wrong ; a thing which does not often occur, how-
ever, I notice in the Senate.

Mr. MoKTON. Mr. President, I believe under the constitution of Wisconsin it was
held that the (juestion of a contested gubernatorial election might be decided by the
courts of that State. Just the reverse Avas held in the State of Arkansas. It depended
upon the wording of the constitution. The legislature decided a question of contested
election between contending candidates for governor. The suiireme 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 At-
torney-General and, if I mistake not, theJudiciary Committee of the Senate, of which
my friend from New Jersey is a very distinguished member, were consulted, and they
decided 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 recol-
lection of the affair, but that is it. I speak of the general principle that, where pow-
ers are devolved upon a legislature or upon Congress— questions to be decided by the
legislature of a State or by Congress— the decision of those questions cannot be dele-
gated to an umpire or to any third tribunal. That is the general principle, which I
think nuiy be safely asserted 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 pro-
ceed to the consideration of executive business.

In Sknatk, March 14, 1876.

The Senate, as in Committee of the Whole, resumed the consideration of the bill
(S. No. 1) to ])r()vide 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 iu 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 ]u-oviso will read :

" Frovided, That, after such debate has lasted two hours, it shall be the duty of each
house to put the njain question without further debate."

Mr. Morton. I do not know that I have any objection to that amendment. It is
possible olijections might arise to an electoral vote that the Senate and House might
want to consider longer than two hours; but at the same time, as there might be dan-
ger of the final determination of the result of the vote being too long delayed, I shall
not especially oppose the amendment which will close the debate peremptorily at the
end of two hours.

The amendment was agreed to. '

The President 2>»"o tempore. The question 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 jjro tempore. The amendment will now be read.

The Chief Clerk. At the end of the second 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 Constitution 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 FiiKSiDKyiT pro tempore. It is.

Mr. Johnston. Mr. President, yesterday the Senator from Pennsylvania [Mr. Wal-
lace] suggested an amendment, and if he does not ofier it I wish to ofler substantially
the same amendment. I offer the following amendment to the amendment, as a substi-
tute for it :

" But if the Senate should vote for counting one certificate and the House of Repre-

548 COUNTING THE ELECTORAL VOTE.

sentatives another, tlie joint meeting of the two Houses shall finally determine which
shall be counted, by a vote by States, the representation from each State (includiug the
Senators therefrom) having one vote; but if the representation of any State shall be
equally divided its vote shall not be counted."

The President j»o iempore. The question is on the amendment of the Senator from
Virginia to the amendment of the Senator from Tennessee.

Mr. JoHXSTOX. It is evident that the bill is defective in one respect. The author of
the bill himself admits that in a certain contingency this bill Avill not be oi)erative;
that wheie there are two returns from a State and the House of Kepresentatives votes
for accepting one return and the Senate the other, in that event the vote of the State
will be lost. It seems to me in a bill of so much 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 count-
ing the electoral votes, but it is an im]>erative duty and we ought to perform that
duty. It .seeuis 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 Representatives shall decide who shall be President, but the same Constitu-
tion provides that where there shall be no election of Vice-President the Senate shall
decide who shall be Vice-President. The second article of the Constitution in the
second section has this provision. After providing tor the election of President l)y 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 ap-
pointed ; and if no person have a majority, then from the two highest numbers on the
list the Senate shall choose the Vice-President ; a (juorum for the j)urpose 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 otiice
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 cer-
tificates. It would seem to me therefore proju'r, as the election is for both, that the
two Honses should be the joint tribunal to determine the question. In that view I
think tlie amendment I have ottered 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 pro-
vision proposed by the Senator from Tennessee. What is the nature of the power we
are conferring upon one House or upon the two Houses by voting togetiier as a con-
solidated committee? Is it a legislative power, or a judicial power, or what sort of a
j)0wer? The Constitution, it appears to me, regulates what is to be done on this oc-
casion without conferring any powers upon the House of Representatives or the Senate ;
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 dis-
pute 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 dispute about a return on the
occasion referred to in the Constitution, the House of Reiiresentatives 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 con-
gressional 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, wlm shall be the deciding board in case of dispute, in reference
to the very act of reaching the result, not in reference to who may have the title
afterward, because we do not undertake to dispose of that iu any way except
as the Constitution does, that the man who has got the most electoral votes — and
of course that means legal and constitutional votes — shall be the President. Nobody
would contend if one was declared by the President 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 de-
clared to be elected on that day was constitutionally the President, I should suppose.
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
concurrently, to ilispose of this question ; but to say that we may by law (not in the
exercise of our fuuction to confer powers upon some judicial tribunal described iu the
Constitution to settle something) confer powers upon a body not judicial and not legis-
lative in a constitutional sense, is to my mind going entirely outside of any authority
that we possess.

I th .Tefore, Mr. President, without going into the practical inequalities and tempta-

PROCEEDINGS AND DEBATES IN CONGRESS. 549

tions that would exist in respect of either of these amendments, vote against them both
u])on the ground that, as it appears to me, they are plainly in violation of the Consti-
tution.

Mr. Frelixghuysen. 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-.Tu>^tice of the Supreme Court, the presiding officer of the Senate, and the
Sjieaker of the House, whose uecision shall be final. If the Chief-Justice is absent or
unable to attend, the senior associate justice of the Supreme Court present in the Cap-
itol 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 seeius to me tliat there is a propriety in referring it to the ])residing
officer of th(^ judicial department. It is true that it is judicial, an<l yet it is political
iu 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 compe-
tently associated with the Chief-Justice. If it be said that nothing will result except-
ing 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
of the whole election ; it is a loss that the people of this country would not (jnietly
submit to. It seems to me it is very inii)ortant that before we pass this bill we should
make sucli arrangement as will secure the vote of every State, for thereby we may
avoid civil war.

Those wlio have written upon this part of the Constitution have predicted that the
greatest 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 Con-
stitution. The Constitution is silent on the subject. It imposes upon tlie Legislature
the duty of making ])r()vision for counting the votes. Tliis amendment, it seems to
me, is an e(]uitable, just, coustittitional 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 mat-
ter 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 prin-
ciple of law. The difference between the two Houses is the matter which the amend-
ment pro]>oses to refer.

I nuike 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 amend-
ments.

Mr. TiiURMAX. I am not prepared just now to vote vpon any of the pro|iositions
which have been suggested ; that is, I am not as well i)repared 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 o[)inion I expressed yesterday.

Then to give the House of Representatives the right to decide it may be a matter of
necessity, and yet there are very grave considerations there, for you put the House
under the temi)tation to disagree with the Senate, so that the result ot the disagree-
ment 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
tlie 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 we may, in the situation in which
we find ourselves placed, one House having a majority of oue party and the other House
having a majority of the other party, endeavor to come to some understanding that,
being agreed upon, will conunand the suji))ort of reasonable men of all parties. I should
hope that, if we came to a conclusion satisfactory to the Senate generally, the bill That
passes here would receive the api)robation fif the House of Representatives. If it is
made a party question, I do not know what might be the result. I have no right, how-
ever, to urge that consideration upon the Senate ; but it seems to me very material that
we shouldj 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 s]>eak for myself — as well as other ])roi>ositions
which Senators may desire to lay upon the table, I move that the furtlier 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. Raxi><»i,pii. I should like to oiler an amendnuMit in the sha]ie of a new section,
differing somewhat from either of the amendments 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. Something better may be offered, but, with the view of facilitating the jyrogress
of the work, I ask that my amendment may be put with the others and printe^l iu due
form.

The President 2}ro ienqjorc. The Senator from New Jersey proposes an amendment

550 COUNTING THE ELECTORAL VOTE.

It is not in order now, but it will be submitted and printed with the three amendments
already pending.

Mr. MoRTOX. Let it bo read for information.

The Pkesidext j>ro tempore. The proposed aniendineTit will be read.

The Chief Clerk. It is proposed to insert as an additional section the following:

"Sec. — . Should the two Houses of Congress, acting 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 President of the Senate to make a decision of the question :
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 consid-
ered by him as if both Houses had cast their votes in joint meeting assembled."

Mr. Howe. I shall acquiesce in the motion to postpone very readily, for it will not
be regarded as surprising that I should tind myself quite as unprei)ared to vote sat-
isfactorily to myself as the Senator from Ohio professes himself to be. But I want,
before the bill goes over, to make one suggestion wbich 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 determining what votes shall be counted and
what shall not is either a political or a judicial (luestion. If a judicial question, I
think it ought to be submitted to some one of the judicial tribunals recognized by the
Constitution, and not to a special tribunal manufactured for the purpose. If it is a
political (juestion, then shall it be determined by any political department of the Na-
tional Government or by the pcditical department of the State government? It is
maiiifest to my mind, from looking at the Constitution, that those who framed that
instrument never anticipated that the Congress of t\w United Statics would be stumb-
ling over a difficulty of this sort. Tliey said that each State shall appoint the electors
in just such way as the Legislature may see fit ; and it did not appan^ntly occur to the
men who made the Constitution that such a scandnl as two bodies of men claiming to
be the Legislature of a State would ever appear in American history. I wish we could
say that no such scandal ever ha<l 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 pre-
tending to be the vote of a State. Therefore it seems to me that they intended to dele-
gate 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 pres-
ence of the picked men of all the States ; that is all.

We are not now quite one hundred years old as a nation, as a Government consider-
ably less, and we have already been shocked by the appearance of two letters declar-
ing very different results in the same State upon a ])residential vote. The thing we
want to guard against, if we can by any possibility, is the appearance of any such dis-
pute in the convention hereafter. If you can legislate in anyway 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 electoral college, theu 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 pretenders 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 authority 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 ade-
quately those who shall forge or counterfeit 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
issues 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 Con-
gress of the United States a false and counterfeited certificate of the result of a presi-
dential 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 miscre-
ants. Whether those penalties should be imposed by the States, or should be imposed
by the national authority, is a question we might well consider; but I do not see this
morning how, if you allow snch papers to come up here, you are going to provide a
tribunal which shall instruct the two Houses which of the two papers is a true one and
which is a false one.

Mr. MoRTox. 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 pos-
sible, without a further postponement.

Mr. Frelixghuysen. I move the amendment which I read to the Senate as an
amendment to the amendment suggested by the Senator from Tennessee, [Mr. Cooper,]
to come in after the word " agree."

PROCEEDINGS AND DEBATES IN CONGRESS. 551

The Presidknt pi-o lempore. The Senator from New Jersey moves to amend the
iiiruMidmeiit of the Senator from Tennessee by strikin;;; out all after the word " agree,"
uiul inserting what he has read, which is to perfect the text while the substitute is
l)ending offered by the Senator from Virginia, [Mr. Johnston.] The Senator from Vir-
ginia itroposes a substitute for the whole ame dment, striking out all after the word
'•and." The rule permits a perfection of the text. The question will be first on the
amendment proposed by the Senator from New Jersey. AH tliese anu',ndinents are to
be printed, and the question now is whether the whole subject shall be po.stponed
until to-morrow at one o'clock.

March 16, 1876.

The President pro tempore. The morning hour has expired, and the special order ia
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 Pui'^siDENT pro tempore. The Senator from Tennessee [Mr. Cooper] proposed an
amendment for which the Senator from Virginia [Mr. Johnston] moved a substitute,
and the Senator from New Jersey [Mr. Freliughuysen] has moved to perfect the text
of the amendment of the Senator from Tennessee by an ameudmeat which is no*w the
pending question. The Secretary will report it.

The Chikf Clerk. The amendment of the Senator from Tennessee [Mr. Cooper] ia
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 vrhieh the House of Representatives, voting by States, i-i the
manner provided by the Constitution 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. Freliughuysen] is to strike out
all after the word '■ agree" in the first line of the amendment of the Senator from
Tennessee, and insert:

" The dift'eience 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 unal)le to attend, the senior
associate justice of the Supreme Court present in the Capitol or other place of meeting
shall act in his place."

Mr. TiiUKMAN. Mr. President, the amendment offered by the Senator from New Jersey
proposes to refer the difference between the two houses to the umpirage of three indi-
viduals: 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
judicial tribunal, 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 iu
the fact that the three individuals named in the amendment are officers of the Goveru-
lueuti. 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 couuting the votes, its power is almost or quite unlimited
iu the choice of the means. I shall not undertake to say what are the limits upon our
power of legislation in this respect. It is always dangerous to undertake to set fixed
limits to a power of the Government before the case arises, for the plain reason that no
(uie 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
8i)irit of the Constitution. The Constitution provides— and I beg pardon for occupying
the time of the Senate iu saying what has been said and what is known to every Sen-
ator ; and yet the importance of this subject will be perhaps a sufficient excuse —

" 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."

From the plain language of the Constitution, no function or duty is devolved on
the President of the Senate except to " open all the certificates in the presence of the
Senate andTIouse of Representatives." It is not said that he shall count them, nor is
it said in express words that they shall be counted by the two houses in joint conven-
tion, 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 President of the United States, and Mr. Adams as Vice-President, and it is true that
those proceedings did give some color to his proposition that the i)ower of counting,
and therefore the power of determining what is the true return, is vested in the Presi-
dent of the Senate. I say those proceedings seemed to give some color to that propo-
sition, because, in that case, "John Langdou, esq., one of the Senators from the State
of New Hampshire, was elected President of the Senate for the sole purpose of opening
and counting the votes for President and Vice-President of the United States." That

35 X

552 COUNTING THI'3 ELECTORAL VOTE.

langnii^e wonid 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 thi
votes niiyht be opened, and therefore in order that they might be counted ; and
nothing, I think, of any great force can bo gathered from the use of that langnage in
the resolution appointing Mr. Langdon President of the Senate. The proceedings,
however, go on further. On the 6th of April, 1780, it was ordered by the Senate — this
was iininc(iiatcly on the election of Mr. Langdon —

" Ordrnd, That Mr. Ellswortli inform the House of Representatives that a qnornra
of the Senate is formed ; that a President is elected for the sole purpose of o|)eniug
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 reference to the resolution by which Mr,
Langdon was appointed will apply to this i)art of the order that the fact bo communi-
cated to tin'. House of Representatives. Then the order goes on further :

"And that the Senate is now ready in the Senate Chamber to i)roceed in the pres-
ence of the 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 i»roce(uls 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 Representatives, communicated the following
verbal message to the Senate:

"'Mr. Presiilent: lam directed by the House of Representatives to inform the Sen-
ate 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 Si)eaker and the House of Representatives attended in the Senate Chamber for
the purpose expressed in the message delivered by Mr. Ellsworth ; and after some time
Avithdrew.

" The Senate then proceeded by ballot to the choice of a President of their body j;ro
tempore. John Langdon, esq., was duly elected.

"The President elected for (he purpose of counting the votes declared to the Senate
that the Senate aiul House of Representatives had nier:, and that he, in th«ir presence,
had opened and counted the votes of the electors for President and Vice-President of
the Unittfl States, which were as follows."

Then follows the table. Certainly it must be admitted that, looking at that record
alone, it would seeui as if the idea at the commencement of the Government was that
the President 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 ccnmting the votes devolved on the President of the
Senate; but I do not think that much weight can be attached to that i>recedent, even
though it was set by those who met immediately after the adoption of the Eederal
Coi.stitntiou. 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 conse-
quence for the office of Vice-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 whatsoever and where
there was nothing to raise any discussion or question, is not one entitled to any great
•weight in settling a matter so important as this.

For reasons which I have already stated, and which I shall not bore the Senate with
repeating, it seems to me quite imidmissible to adopr, the theory that the counting of
these votes, and conseijuently the function of judging which is the true return, is de-
volved 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 re-election, shows that, if the
counting of the votes were devolved upon him, if the judicial function of deciding
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 provis-
ion of the C'lustitntiiui is so mandatorj' that, as was shown by the Senator frmu Indi-
ana [Mr. Morton] the other day, in no less than six instances has the Vice-President
•opened the votes when he himself was a candidate either for the office of President or

PROCEEDINGS AND DEBATES IN CONGRESS. 553

fnr re-cloctioii tn tliat of Yioo-Pfosidciit ; and to say that our Constitution is so defpc-
tive tliat it makes the. determination of who has been elected the Chief Majristrate of
The rei>nl)lir to depend upon tiii' will of the very man who is a candidate for that office
•is to condemn the Constitution heyond redemption. No, sir, the Constitution is not so
tlcfective as that. Nothing but the strongest, clearest, and most precise language
could drive ns to an interpretation of that sort. I therefore think, with great defer-
ence to my friemi from Maryland who took that ground the other day, that that inter-
])retation is not th« correct one, and while the twenty-second joint rule was iu my
jndgn\ent an improper rule, and while the subject was not one to be regulated by any
joint rnh^ of the two houses, but to be regulated by law, yet I think that the deter-
mination then arrived at, after discussion, after a full consideration of the subject and
in the light of the experience of the republic, is worth much more than this precedent
^et by the first Congress in counting the votes for General Washington.

Mr. (^ixivLiXG. Will the Senator allow me to ask him a question, if I do not inter-
rupt him ?

Mr. TmiRMAN. With great pleasure.

Mr. C(»NKt-iX(;. I was diverted for a moment during part of his argument. I beg to
enquire whether the Constitution, as he understands it, nteans iu the words, " the votes
.shall then be counted," that the counting must be by the two houses? He has been
<_^xplaiiiiHg himself touching the function of the Presiding Officer. My inquiry is,
whether these words which he understands, commit to (jongress, or, more exactly
speaking, to the two houses of Congress then assembled, the duty of counting the
voti^s; or whether the words " the votes shall then bo counted," leave a discretion to
the law-making power to provide by whom the count shall be made?

Ml-. Thuhman. The Senator from New York was not, I think, here ou 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
aiecessarily absent that day and did not hear the discussion.

Mr. TiuiKM.vN. I have no objeistiou to restating, and I will endeavor to do it briefly,
my view on that subject. I tliiidc that the spirit of the Constitution requires that
these votes .shall be counted iu some mode by Congress, or the convention of the two
bouses. But v>'hat shall be the mode ? Now, I repeat what I said the other <lay : that
it is a fundamental principle that where any power is conferred upon the Government,
or any Department or ofticer thereof, and the mode of exercising that power is not
prescribed in the Constitution itself, it belongs to the law-making power to prescribe
^lie mode. I said tiie other day that that was a fundamental principle of the Govera-
nuuit, but I need not have gone to any general princi[>les of governinont, because it is
■expressly declared iu the Constitution, as we all know iu the very familiar paragraph,
tile last of section 8 of article 1, in which, after enumerating the powers of Congress,
it is said :

" The Congress shall have power to ni.ake all laws which shall be necessary and
proper for carrying into execution the foregoing p( wers, and all other powers vested by
•this C<institutioii in the Government of the United States, or in any Department or
officer thereof."

What could be broader than that? It is w^ell known that that was only put in out
of abundant caution. That those powers would have belonged to the Congress by ne-
c-essary implication, even if that clause were stricken out of the Constitution. But it
is nut in there that there may be no question about it that Congress has these powers.

Now, the power to count these votes must be a power of the Government or of some
Department or officer thereof. If it is, then Congress has power to make all laws neces-
^a^y 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 every-
i)ody else, as long as it remained in force. Then conies the question, What mode shall
be prescribed? I have said before that I do not undertake to place limits arbitrarily
npoii the mode which w'e may adopt. Definitions are very dangerous, as everj' lawyer
knows. It is not safe to undertake beforehand, and before the case arises, to make
an arbitrary, absolute defiuitiou, the boundaries of which can never be passed, no mat-
ter what may be the exigency. That is always unsafe. Therefore 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 execu-
tion of our legislative <luty, 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 [lossible to settle it, l)y the Senate and the House of Representatives, either act-
ing 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 contemplated that the determination

554 COUNTING THE ELECTORAL VOTE.

of any qnestinn which shouhl arise upon that count shonhl be cleciflctl I>y sorno other
trihuual 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 aui not mistaken, by no less eminent ;>,
Senator and distinguished a jurist than the present chairman of the Judiciary Com-
mittee at a former session. You cannot compel the Supreme Court to execute any siiclii
power as a court ; tbat is vary certain. The Supreme Court, as a court, has nothing Imt
judicial power ; and its original jurisdiction is expressly defined iu the Constitution ;
and determioing any question of election is not one of the original powers tlius con-
ferred on the court. Tlien the other powers of the Suiireme Court are appellate powers.
It has such appellate jurisdiction as may be provided by law ; that is, as Congress may
confer upon it. As I said the other day, the appellate jurisdiction spokeu of in th<; Con-
stitution is a[)pellate jurisdiction from the inferiorjudicial tribunalsof theconutry. That
I am right in tliis has been settled by the Supreme Court again and again. If my mem-
ory 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 Execu-
tive Departments of the Government. But we have lately had the most marked
case, the most important case that could i)ossibly arise on that question jierhaj^s,
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 claiu^
was valid or not, without any power to give judgment. It could simply report its lind-
ing 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 Supreme Court from this linding of the Court of Claims. The Supieme Conrt
after an elaborate discussion decided that no such appeal could be entertained by the
Supreme Court, because the Court of Claims as then constituted, having no jiower to
lender 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 tribu-
nals, and therefore it was held that the appeals would not lie, and it was dismissed.
Congress, to remedy that defect, theu passed the present law giving to tlie Court of
Claims the power to render judgment; and since that appeals to the Supreme Court
have always been entertained by that court This is the latest and most autLoritativo
decision after great discussion and great consideration, that the Supreme Court can en-
tertain 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 Supremo
Court as a conrt, and for that reasou I am strengthened iu the belief that it is ;i
question which ought to be settled by the Congress.

Mr. CoNKLiNG. Will the Senator let me interpose there for a moment ?

Mr. TiiUHMAN. Yes, sir.

Mr. CoNKLiXG. 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. H*^
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 unpleasantly 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 instrumentality whose fuuctiou is not so limited by tho
Coustitutiou that it cannot receive and perform this duty. That is the quesiion to which
my mind addresses itself — the Senator, I am sure, will apprehend me — whether tlie law-
making power may create an instrumentality for this purpose, although it may be true
that the Supreme Court as such isan instrumentality which by the laws of its own being
would be incompetent to become such an instrument.

Mr. Thurman. I had alreafly said that I would not undertake to define our legisla-
tive power iu providing a mode for the solution of this ))roblem, for the reason that I
fitated it would be dangerous to attempt it. But this I have intimated, and this I say
now more distinctly, that in my judgment we shall act most within the spirit of the
Constitution and nearest to its letter if this matter shall be decided by the Senators.
and the Representatives of the people, and that we ongiit 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.

That brings us to the question, Can we devise such a mode ? The whole difTiculty
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 section of this bill stand and strike ont the second section
would, as I said the other day, have the eflect to throw the determituition of the ques-
tion, iu 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 Senators 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 presenting a single return and

PROCEEDINGS AND DEBATES IN CONGRESS. 555

(sappressinfjthe other, from deterniiniuf? the question ; and it is obviously proper that
he Hhoiilfl 1)0 required to lay iiH the returns before the convention. In fact, the Con-
stiMition declares that he " shall open all the certificates;" and if he is not invested,
as I have argued, with the jiower of determining whieli is the valid certiticate and
wliich is not the valid certificate, then it follows tliat it is his constitutional duty to
«>[)en 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 difiiculty immediately, the possibility, nay, it may
be the probability, that one house may decide in favor of one i-eturn, and the other
liouse in favor of another return, and that therefore neither return could be counted,
ai)d the vote of the State would be lost.

The jiaramount duty of Congress is to see that no State shall l<ise 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 nu;, with propriety put any scheme
upon our statute-book which is so radically defectiv^e as this. We ought to provide
ifir the ultimate decision. When we come to provide for the ultimate decision there is
great trouble. If we take the proposition of my friend from Tennessee, [Mr. Cooper,]
J hat the voice of the House expressed in the manner provided in his amendment shall
predouiinate over that of the Senate, we place before ths House a verj' strong tempta-
< ion to <lisagree with any conclusion at which the Senate nmy arrive, because the effect
of the disagreement is to throw power into the hands of the House. That is certainly
a very serious objection; for although we are bound to consider that the House of
Representatives is a responsible 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 matter ought to be settled by the Senators
iuid Representatives in Congress, and looking also at the Constitution, which requires
the votes to be opened aiul to be counted in the presence of both houses, I have come
to the conclusion that the proitosition of the Senator from Virginia [Mr. Johnston] is
the lu^trest to the Constitution in its spirit and in its letter, and probably 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 convention; and although it does not declare
tliat that joint convention shall act as a convention, although it confers upon it by no
«lirect or express words any function at all, either of decision or of legislation, certainly
none of legislation, 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 represent-
atives of the people, and that all are to participate in the decision of this great ques-
tion, who has been elected to the Chief Magistracy of the repuhlic ? And therefore it
does seem to me that we are abiding by the Constitution more closely, both abiding
by its letter and its spirit more closely, wiien we make both the Senate and the House
<»f Representatives acting together the ultimate umpire where the two houses have
disagreed. I sec. no other solution that is likely to be as satisfactory to the people, to
the country, to the States, and to the recjuirements of justice and truth. Hence, unless
something shall be urged that shall alter my o))iuion on this subject, I am inclined to
fav<u- 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 Ten-
jiessee would be. That will require of us to perform the function which reason and
onr 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 ques-
tion be decided? Shall it be decided by a vote of the two houses sitting as a conven-
Jion, a vote in which the ballot or the voice of each Senator and each Representative
QM to count one, as if it was one body ; or shall it be, as the amendment pro{>oses, that
the vote shall bo taken so that each State shall have one vote f 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 bodj', or a vote as proposed by the amendment by
States; and it is very difficult indeed to make a satisfactory argument, owing to the
fact that there is so much anibiguity in the Constitution upon this suhject. But if I
am right in saying that the mode of counting is left to the law-making power, it would
follow that we have a right to adopt any mode which is fair and just and consistent
with the spirit of the Cmistitution. I have endeavored to show that it is not consist-
ent 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 un-
dertaking to say that possibly I may not be in error Tlien, with that limitation, that
we must confine ourselveii to the halls of Congress, if we have the right to approve the

556 COUNTING THE ELECTORAL VOTE.

mode by law, the only limit upon our discretion is the limit placed by eternal trntb^
the principles of eternal justice, and the spirit of the Constitution nnder which we act.
Any mode, then, consistent with the spirit of the Coustitutiou, 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 ado])t.

I think, therefore, after much reliection on this very difficult subject, that it is com-
petent for us to adopt the mode proposed by the Senator from Virginia ; and then th&
only point that remains is, is that the mode most consistent with the spirit of the Con-
stitution ? As I said, there might be some diiiticulty about that; but, inasmuch as it
is somewhat in analogy to the way in which the vote of the House is takeu wlien tlio-
House elects a President, a pretty far-fetched analogy, I am compelled to admit, I am
inclined to think that that is the l>est mode in which we can solve this enigma.

I thank the Senate for having listened to me again on this subject, and promise not
to trouble them any more.

Mr. CuiiiSTiANCY. Mr. President, so meager is the provision of the Constitution in
reference to the counting of votes for President and Vice-President of the Unite(i
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 Sena-
tors 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, ii» 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 esaminatiotv
that what at first seems to be a vacuum is in fact filled, and becouies solid by some im-
plication from the affirmative jjrovisions of the Constitution itself.

As to the affirmative provisions which it has made, it is very clear that no joint con-
vention of the two houses for the counting of the ])resideutial vote is contemplatedi
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 implied, as the votes are to bu<
opened and counted in the presence of both houses. The language is this:

" The President of the Senate shall, in the presence of the Seuate and House of Rep-
resentatives, open all the certificates, and the votes shall then be counted."

It does not say by whom the votes shall be counted ; and as it does expressly i)ro-
vide that the President of the Seuate shall open all the certificates, and then imun:!tli-
ately 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 iuteuded, the
language in that connection would naturally have been, as already suggested by sev-
eral Senators, " the Pi'esident of the Senate * » * shall open all the certificates aud
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 couut-
iug may be considered as, in legal efiect, the work of the two houses, for whicli 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 diiiicult, 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 indicated ; and the matters of mere detaii
for the purpose of accomplishing this mode of counting and of deciding, as provided
in the first, third, and fourth sections of the bill, would, 1 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, prevent-
ing any vole 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 ex-
cept by the afiirmative vote of the two houses, the question is not so clear as it might
at first appear; the dittereuce between the two houses would necessarily be n[>ou the
authenticity or validity of the return or certificate, as there could be no other ground
upon which either house could honestly reject the votes, and a dishonest lejectinn the
framers of the Constitution certainly did not attempt to provide for. But a difficulty
arises here from the silence of the Constitution, which does not seem to have contem-
plated the possibdiiy of any disagieenieut of the two houses upon the aJithenlicity or
validity of the certificate; and yet we all know that such difi'erence of opinion and
8uch disagreement not only may arise, but have actually occurred. Still this qnestiou
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 therefore within every recog-
nized principle of interpretation must be considered as having been contemplated by

PROCEEDINGS AND DEBATES IN CONGRESS. 5. J 7

tliem, anil yet. they have made no express provision for the decision of the qnesfion
arising iijion sueh a ditlereuce. But is no mode for its decision to be fairly iiiiplied ?

If the mode of deciding such a difl'erence between the two houses is impli( d or iairly
inferable from the provision actually made, that implication is as much a ynvt of the
C-mstitution as if expressed, and uo different mode of deciding the question would be
within the power of Congress.

Now, if it bo true that under the Constitution the counting is to be considered, in
legal ell'ect, the act- of the two houses ; and if, as I have t'Uggested, the quest ion of the
<iue authentic-ation of the certificates of election is tecessarily involved and iiichided
in the counting provided for, then, as there is an absence of any express jjiovision for
any other motle of deeision, it would seem almost of necessity to follow that the decis-
ion u|ion the authenticity and validity of the certiticates should be decided by the
«ame bodies who make the count ; in other w-ords, bj' the two houses, whose act in legal
effect the counting is. But if a decision by the two houses, or, as claimed by some, the
<iecision 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 Con-
gress any more than if the implication claimed had been an express inovision of the
Constitution.

Up to this point no difficulty conkl arise if both houses agree in their decis-
ion ; nor could there be any difficulty if the two liouses weie acting strictly in
joint convention, so that th« vote of each number of (hat joint body sliouid count
as part of the aggregate of the whole. But if they are to act and decide separately,
and not jointly, as seem.s to have been coiceded, each house may come to a differ-
ent conclusion ; on<'. for allowing the eertiticate and counting the vote, and the
other against it. And a similar ditiliculty 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 queetiou is, who or what tribunal shall
decide wh<;n the two houses acting separately disagree! 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 certificates from any State shall be a<liuitted and the vote cijunted
than for holding ) hat it shall not be admitted or counted ? Certainly it cannot be said
that there has been any decisicm in its tiivor; and there may be much difficulty in
finding any more intelligible ground for holding 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 confess, does not strike my
mind as favorable or just, since it jmts it in the power of either house alone to dis-
franchise a Suite. Just reasoning should lead to just results; and when it do(!s not, a
lurking fallacy is to be saisjiected. 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 Con-
stitution itself.

It was said yesterday that when the two hoiises disagree, their authority being
<.'qual, the equilibrium might be overcome and the scales turned in favor of the admis-
sion 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 valiiiity and au-
thenticity 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 overcome the difference between them by
such a presumption from the fac« of the jjapcrs alone. But when we take a little
broader view of the nuitter, and consider tlie 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 uo other return is sent up, and no conflicting claim is |)re-
sented by other certificates or returns, and the strong probability that such would
have been presented had there lieen any ground for them, the probability is so strong
that the one sent up is correct as to amount to a moral certainty; and it is very diffi-
cult to see how either house could honestly decide against its admission, and a dishon-
est decision of one house against its admission ought to be disregarded rather than to
disfranchise the people of ii State. These cojisideiations seem tome to lead to the con-
clusion that in the great majority of c;ises of the kind, justice would be much more
likely to be reached by admitting the returns and connting the vote, when the two
Louses disagree upon a single return from a State, than by excluding it; and that
this conclusion is more in accordance with the tacit assiunptions of the Constitution
Jtself, 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 nmre readily because it
seems to me the same result would fol low 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.

But I am far from being very confident of the correctness of this conclusion or the
reasoning by which I have reached it, and may change my o]jiiiion entirely in the
course of the discussioru The silence, the apparently ult^r hiatus in the Con.slitutiou,

558 COUNTING THE ELECTORAL VOTE.

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 uncertainty" as I can
imagine I miglit feel if tlirowu out into void space beyond sight of the stellar universe,
and should there undertake ti) ascertain courses and distances and to divide that void
space into definite areas. From such a position, so obscured by distance, I feel no
strong confidence of being able to shed so strong a light ui>ou 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
dift'erent men, one house deciding for one and the other for the other, and let us con-
sider the question as it would stand upon the Constitution without the aid of this bill.
If the two sets of returns were equally well anthenticated, and other things being
equal (and a disagreement can hardly be supposed if they were not) no such presump-
tion 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 wdiild be the result without this bill? Could the vote bo
couuted ? Certainly not; unless the President of the Senate is to decide, for other-
wise there is no decision, and one cainiot bo counted unless both are counted ; and if
l)oth are counted, they would neutralize each other, and the result would bo the same*
as if neither had been counted.

The Constitution has i)rovided no tribunal for the decision upon such a disagree-
ment, unless, as I have suggested, that by implication the President of the Senate is
to nuikf the decision. And if, as already suggested, there be any implication in the
Constitution that the two houses are to decide ni)on the validity oj the leturns or
certificates, or that the President of the Senate is to decide it before or after the
houses have disagreed, then this iuijdication, being as much a part of the Constitu-
tion as if exjiressed, it would l)e a violation of the Constitution tor 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 ihere is none expressed) that it could be competent for Congress to establish a
mode or tribunal for the decision. If there be no implication of any mode, and the
Constitution can be said to have entirely omitted to provide for the decision, then,.
])erhaps, it might be said the nitention was to leave the mode of decision to the discre-
tion ol Congress. But the tribunal for this pnr[>ose mnst be one v/hich can act and
decide immediately upon the occurrence of the disagreement, ior the Constitution evi-
dently re(]uires immediate decision.

"The President of the Senate shall, in the presence of the Senate and House of
Keprenentatives, open all the certificates, and the votes 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 etfect the object — a fair and speedy decision.
But there are so nuiuy obvious objections to giving the power to the House of Repre-
sentatives, voting by States, or to them with the two Senators 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 tri-
bunal. It would be far better to provide for a joint vote of the Members and Senators
of all the States, as in joint convention. But the insuperable objection to this would
he that it would be in manifest violation of the affirmative provision of the Constitu-
tion, meager as that provision is ; for in providing for the counting of the votes in the
y)ref^ence 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
disagiee, if there be power to establish any tribunal, I am most incMned to that sug-
gested by the Senator from New Jersey, to call in the Chief-Justice or one of the jus-
tices of the Supreme Court to act with the Sjieaker of the House and the President of
the Senate, and making the decision of the majority of these final. I think, howevei',
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 commission,)
to act with the President of the Senate and the Speaker of the House, and making the
decision of the majority of these four fituil. 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 Htui.se 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 ali
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 motle t|> remedy the evil is by an ameudmeutr to the Con-
stitution itself. f

But, with my present views, I have come to the conclusion to support the present
bill ; but I am still open to conviction, and hojie to derive more light from the discus-
sion.

The Senator from Ohio [Mr. Thurman} said tha,t it was iucompetcut to devolve this

PROCEEDINGS AND DEBATES IN CONGRESS. 559

duty npon tlie justices of tbe Supreme Court; and his objection apparently seemed to
be "based upon tlie 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 nu)de of desi>inatin<f certain persons who
are to act with the Speaker and with the President of the Senate. I am not sure that
even that would bo competent; but I wish to hear further discussion upon the sub-
ject.

Mr. Frelixghiiyskn. The amendment which I offer is to add at the end of the
second section these words:

"The difference" —

Between the two houses —
" 8 all be immediately referred to the Chief-Justice of the Supreme Court, the Presiding
Otidcer 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 word "capital" is printed " capitoI" 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 impret^sions were correct, and that the Constitution does not
contemplate that the Piesident of the Senate should count the vote. The fact that
the Constitution does in terms provide what duty the Pre.-ident of the Senate is to
perform, to wit, that he is to opeu all the certificates, and omits to provide that he
shall count the vote, I think is conclusive that it was not intended that he should do
more than he is exi)ressly authorized to do by the Constitution.

On examining the resolution of the convention that formed the Constitution, (passed
September 17, 17H7,) 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 re-
turned, the resolution provides:

" That the Senators and Representatives should convene at the time and place as-
signed ; and that the Senators should appoint a President of the Senate for the sole
purpose of receiving, opening, 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 counting the votes for President."

It is true that by the Constitution the President of the Senate is to receive and opeu
the votes; but the ])hraseology of this resolution is to be construed according to the
well-known rule, ''Reddendo singula singnlh." The words of the resolution are to be
taken singly, and the only intention of that resolution is that they shall have a pre-
siding ofiicer, in order that the votes may be received, opened, and counted, as provid-
ed in the Constitution.

Mr. TiiURMAN. From what page does the Senator read?

Mr. Fhkijxgiiuysen. Page 3d7 of the Manual.-

The bill under consideration, as it stan<ls, in effect says that when more than one re-
turn is made from any State and the two houses disagree as to which is the true return,
tlie vote 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 President 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 Constitution being silent, it is perhaps im-
possible to invoke its affirmative sanction for any plan that we may propose. No
proposition can be put forward in support of which its advocates can turn to the Con-
stitution and say, " Here is the positive authority for the proposition." The best that
can be said for any jdan is that it is not in violation of any provision of the Constitu-
tion. If I may have the attention of the Senator from Ohio, [Mr. Thurman,J it seems
to me that the plan which he favors comes near to being a violation of the Constitu-
tion. The Constitution has told us what part the House of Representatives 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 dechired and
defined what shall be the province of tlie House in the election. It has said that if
no person has a nnijority of the whole number of electors, then the House, voting by
States, shall, from those having the highest number, not exceeding three, choose a
President. Ti'e Constitution has told us when and how the House of Representatives
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 Con-
stitution.

5 GO COUNTING THE ELECTORAL VOTE.

We concliule tliat the Presifleiit of the Senate is uot to count the vott^p, because the
Coustitutiou says he is to opeu the votes, aud does not say he is to count theui. And
by the same reahoniug we conclude that the House is uot to vote in the exigency we
are conteniphitiug. The Constitution declares wlien aud how the House is to vote.

The amendment which I have proposed is uot contrary to the Constitution, and the
duty is on us to meet the difficulty in some way. The question to be submitted, aud
upon which a differeuce arises between the two houses, is a judicial f]uestiou. It is
a question as to the authenticity of a return, and it is also undoubtedly a political
qucsriou. It, is no less a question than who shall be the Chief Ma<>istrate of the
nation ; and the tribunal to make that deterniiiuition should be one having judi-
cial and political characteristics. The amendment suggests that it shall be the head
of the judiciary, the President of the Senate, and the Sp^-alver of the House. Thus we
have the representative of the States in the Presiding Officer of the Senate.; the rep-
resentative of the popular branch of the legislature in the Speaker of the House of Rep-
resentatives. They probably, in a difference between the House and the Senate, would
in opinion represent their respective houses, and being a judicial as well as a political
question, we invoke the aid of the head of the judicary. The high cliaracter of tliis
tribunal, com|)osed of men who have been selected by the natiou, gives security
against all partisan and all unjust decisions. Their determination would be made
with the eyes of the natiou upon tiiem. The tribunal comports with the dignity of the
great question, and would bo safe and couservative ; aud I doubt whether it is pos-
sible 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 beiug votes which they
cannot count, where the Senate says, " Couut them," and the Housse says, "Let them
not be counted." Intervention tlius becomes necessary. Therefore let us establish
this tribunal, representing each house, and invoking the aid of the judiciary to deter-
mine what is the vote, that it may be counted in the presence of the two houses.

Mr. Johnston. Tiie ameiulment offi-red by me is not properly ))rinted. It purports
to strike out all after tlie word " and " of the amendnu nt of the Senator from Tennes-
see, [Mr. CoopEH,] and insert my amendment. Instead of that, it is to come in at
the end of the second sectiini of the bill, being an addition to that section. On the
top of the second page of the printed amendment the word '' voting" is omitted before
" by States." Then, in order to perfect the amendment, I desire to add after the word
" vote," in the fiffli line on the secoud page, the words, "a majority of such represen-
tation shall cast the vote of the State."

The Pi:k,sii>ing Oi'kickh, (Mr. Camekon, of Wisconsin, in the chair.) The amend-
ment will be reported as modiiied.

The CiiiEi" Clerk. It is proposed to insert at the end of the second section of the
bill the following:

" If tlu^ Senate should vote forfcounting one certificate and the House of Represent-
atives another, the joint meeting of the two houses shall liually determine which
shall be counted, voting by States, the representation from each State, including the
Senators 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 equally divided its
vote shall not be counted."

Mr. .Johnston. I suppose, although strictly speaking the amendment of the Senator
from New Jersey is the one belbre 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 pro-
vides for the decision of a question by one body where the two bodies disagree. lu
the event that the Senate should decide iu favor of one set of returns and the House
in favor of another, the amendment of the Senator from Tennessee provides that the
qutstion 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 nuitter of disagree-
ment 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 arbitrament
of that question, aud it should not be left exclusively to one of the two houses to de-
cide. That would be proper, according to my view, iu any question arising between
the two houses, and it is rendered particularly proper iu the consideration of this par-
ticular question.

The bill is one relating to the election of both President aud Vice-President. The
first and second sections refer to counting the votes for both officers; but the secoud
section especially say-i that the returns of the election for President and Viee-Presi-
• dent in such States shall be opened by the Vice-President " iu the presence of the two
houses when assembled to count the votes." And the amendment of the Senator from
Tennessee proposes a mode of settling a disputed question iu regard to the electiou of
both officers.

The twelfth article of the Constitution of the United States declares that where
there has been no electiou by the people the House of Representatives shall elect the

PKOCEEDINGS AND DEBATES IN CONGRESS. 561

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 President and Vice-President also. The bill is apiilicable to
both of these oHicers, and we must therefore frame a law so as to be operative as to
each of tliose officers, and not to one alone, and that shall not deprive eitlierbody of
its co'jstitutioual right. While the Constitution declares tiiat 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 amendment of the Senator from Tennessee proposes to take away
entirely from the Senate any voice in his election. I think, therefore, tliat the amend-
ment t)f tlie Senator from Tennessee is liable to tlie fatal ol|jectiun that it deprives the
very body which the Constitution itself provided shall decide that question of any
choice in the matter.

Mr. Eaton. Will my friend allow me to ask him a question ?

Mr. .TonNSTON. Certainly.

Mr. Eaton. Does the logic of the Senator's argument carry it to the extent that
under 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 argument, not of the words of the amendment .

Mr. Johnston. I think that the suggestion made by the Senator from Ohio in regard
to the amendment of the Senator from Tennessee has great weight. He suggested
that in times of high party excitement, times which lead not only men but public
bodies from what they miglit do in cooler moments, the House of Representa'ives
might attempt to usurp the functions of the Senate by intentionally differing from the
Senate. Take the case of tlie two houses being under the control of two ditlVrent
political parties. A question arises in which the Senate votes one way and the flouse
another. Then in the face of a disagreement between those two bodies the House
under the amendment of the Senator from Tennessee would have aright to determine
the whole question. That might be an inducement to the House to difler fyimi the
Senate in order that they might thus be enabled to exercise 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 ado])ting such an amendment to enable the
House of Kepresen:atives by ditfering designedly from the Senate to acquire the right
and power to decide the question themselves to tlie exclusion of the other body.
Therefore that amendment is objectionable on that account.

Nor do I think the amendment of the Senator from New Jersey is the proper solu-
tion of this question. I believe that the Constitution intended in the beginning that
Congress should decide these questions. I do not think it was ever contemplated by
the framers of that instrument, or that it is in accordance with its spirit, that any-
body or any set of men but the Congress should decide these very important ques-
tions; 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 occasion. 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
})ower. He is ignored in the Constitution. When they meet in joint a.^sembly, 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 selec-
tion of him to discharge any important" duty as Speaker 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 appointment of the
Chief- Justice as a member of this new tribunal. That was never contemplated by the
Constitution. It was intended in the beginning that any questions which miglit 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 Constitution intended Congress
itself to settle.

It is agreed upon all hands that it is the duty of Congress to provide for a contin-
gency in which there may be two returns from a State when the question aiis s as to
WDicli of those returns shall be counted. All agree that nobody in the beginning con-
templated, and no one contemplates now, that the fair vote of a State should be ex-
cluded. The right of every State to vote lies at the very bottom of our constitutional

562 COUNTING THE ELECTORAL VOTE.

rights. If it is ever concetled that a contingency may arise in wliich the fair vote of a
State shall be excluded, tiien we at once lay a foundation for tlie destruction of our
Goverunient. The Constitution intended that not only the votes of one State or two
States slionid be counted, but that the votes of all the States should be counted ; every
State; not nineteen out 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 eh-c-
tion of President and Vice-President. Therefore, this being a fundamental right lying
at the, very foundation of our Government, it is imperative on u,s to find some mode to
provide against a contingency which may defeat the vote of a State. What seems to
have been the original purj)ose 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 th" t'ramers
of the Constitution or in the Constitution itself, that anybody could exercise that right
except the Congress of the United States.

The Constitution provides that where there is no election by the people the House
of Representatives 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 speci-
tied purposes, namely, where questions aiise to be decided touching any return. In
that case the two bodies are to separate 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 contingency 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 ciinnot be
disiinted.) if the Constitution itself fails to provide for the mode of doing this, can
there be any doubt of the i)ower of Congress, under the general section read by the
Senator from Ohio, to provide for this emergency ? If the machinery is not ]trovided
by the Constitution itself, the power to provide that machinery is given to Congress.
The Constitution says that the votes of the States nhall be counted. If it omits to pro-
vide how it may be done in each and every emergency when an unexpected difficulty
aris s, under its general power C<mgress can give each State its vote, in order to pre-
serve the 8[)irit of our institutions. The Constitution in substance allows the two
bodies together bj' law to provide a mode in which tbat difficulty shall be removed
and that tlie vote Of that State shall be counted. The question is, What mode is most
in consonance with the spirit of the Constitution ? What did the Con8tituti(m intend
in the beginning? W^hat did the framers of the Constitution intend? What mode is
most likely to be the one which was originally intended, and which would carry out
the spirit and intention of the Constitution most effectually ?

As the Constitution has nunitioned no other body but Congress, as there is no
reference anywhere in the instrument to this duty V)eing performed by any body
but Congress, whenever 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
instrnment, 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, what the pur-
])ose t)f it was, that whatever remedy we do adopt we may adopt the one nearest to
the spirit of the instrument. The amendment proposed by myself answers that
end. Here is a law providing how the certificates as to the electicm of the Presi-
dent and the Vice-President, two great officers, shall be determined. We have to count
the returns for both, and we must provide 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 contingency, the election of President
should be settled by the House and the election of Vice-President should be settled by
this body. To propose that the House should have the complete right to settle both
these questions is not in conformity with the spirit of the Constitution. I cannot see
that there is any other solution of the question. If we adopt any other 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. Presi-lent, I would not 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 of them as impressions rather than as a belief; but, whether they are one or the
other, they are so strong upon me that I think it worth while for me to give them to
the Senate.

I agree with all other Senators that this is one of the'most important pieces of legis-
lation that I have seen i efore this body since I have had the honor of a seat here; and
I njay be allowed to say that to me it is altogether the saddest piece of legislation. It
is to me, as I doubt not it is to the Senate at large and the country as well, a melan-
choly reflection that we should at this early period of our history require additional
legislation, special legislation, in order to execute properly the very simjile trust which
the Constitution coutided to the States and to the Congress of the United States. When

PROCEEDINGS AND DEBATES IN CONGRESS. 563

tlie, cf>nstitnMonal convention, after a great deal of discussion, after prolonged delihera-
tion, finally invented the ])lan of having the States make known their choice for Presi-
i\rni through an electoral college, and had declared to that end that they might appoint
a ])rescril)ed numherof electors in anyway the legislature of the State thought best, I
(h) not think it was contemplated by any one member of that convention that it Wduld
ever lie a doubtful (piestion, in fact, among honest men who had been appointed by the
Ifgislatuie of any given State. When the convention said that at a given time the
two lionses of Congress sliouM be convened together, and that there the votes which
lia<l b-en returned from the ditferent States should be spread open, and, in the presence
of all the mendjers of Congress, those votes slionld be counted, I do not think it ever
entered into the uiind of one member of that conventiou to suppose that a ditUculty
sliould ever arise in that joint convention as to which missive purporting to come from
a State should l)e respected as the message of that State. But already we know his-
torically that that conventiou was overconfident either as to the sagacity or tln^ integ-
rity of the men who were to come afterward. Questions of great difiiculty have already
arisen ; anfl this bill, as well as all the amendments )iroposed to it. is full of prophecy
tliat like ditiiculties 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 attention to this subject than I ought to have
done. I will say right here, however, that, upon such consideration as I have be-
stowed upon the subject, if I am called upon to choose between the diiierent expedients
already laid upon our desks, I should prefer myself the provisions of the bill reported
from the Committee on Privileges 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 supi)osed that all the power of every kind \\hicli
the constitutional convention intended should ever be exercised by the Government of
the United States that convention vested in one or the other of the three dei)artments
which it created under this Constitution; and I cannot help feeling to-day that there
is no i)ower which the Government can exercise which is not in its nature legishitive,
executive, or judicial. If it be executive, it belongs to the executive departuic.t of
the Government in express terms by the Constitution. If it be legislative, it belongs
to the Congress of the United States, to the legislative department of theGovernnient,
in express terms by the C(mstitution. If, on the contrary, it be judicial in its nature,
it belongs to the judicial department of the Government, as lixed by the Constitution;
it does not wait for au act of Congress to vest it there ; it does not need a tribunal or
that y(ui 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 provided that tiiose electors shall be chosen by the people, or does the
legislature appoint them itself?

Mr. ANTHO^'Y. They are chosen by the people.

Mr. Howe. Suppose it shall so happen that next autumn there comes to the Presi-
dent 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 VVil-
kins for Vice-President, and that there shall come another letter from the same State,
signed by four gentlemen claiming also to be electors of that same State, saying that
they voted for two other and different people. Or, lo suggest another case wliich pre-
sents precisely the same difficulty, suppose there come two letters from the State 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 every-
body voted ; that one set of those fellows who claim to be elected is absolutely the
right set. In the other case, everybody knows that one of those letters is a forgery.
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 th/^ other case,
which set of four luen 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 suppo-
sition that it is legislative power. If it be, I wish Senators would consider for a moment
whether they can abdicate, transfer, trausmit the exercise of that power to any other
body in the world. The Constitution says that legislative power is vested in a Senate
made so and so, ami in a House of Representatives made exactly so, and in no other
way. Those two bodies, under the correction of the President, are to wield all legisla-
tive 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

564 COUNTING THE ELECTORAL VOTE.

the exercise of any part of legislative power to any otliar tribaual ? I sin.ply state
the question. I do not argue it.

Mv. Ekmuxd.s. And do not answer it.

Mr. HowK. 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 decision of this grave qneslion, this niotuentons question, this question npou 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 wiiicb 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 sev-
eral 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 set-
tled, and that is by bill, going tlirongh all the forms of enactment, becoming a law by
the approval of the President of the United States, or receiving the vote of two-thirds
of each house over bis 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 — 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 iinnd the power wiiieh can
definately settle that question, conclusively settle that question which letter reflects
the voice of Rhode Island, is not the exercise of executive power, is not the exercise
of legislative power, but is the exercise of judicial power.

Who are interested in that (juestion ? If those four votes would change the politi-
cal complexion of the executive department of the Government for four years, it is a
question which interests certainly all the political parties into which the people of the
United States may be divided ; and in that sense it interests all the people of tlie United
States. Nay, the political 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 de.pend
upon the question which of those letters actually represents the will of Rhode Islaml.
But then there are two or more persons who have a peanliar and a pt»curiiary interest
in that question. Who are they? The men who are rival candidates for the Presi-
dency. 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 presidency under our system of government an office or is it not ? If it be
an office, why is not the selection of nn-n to till it asj.'alously guarded and as jealously
controlled as the selection of men to fill any other otiice '1 If the dispute be about the
choice of a municipal officer, the sh -rift" of a county, or anything of that s >rt, 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 suppose, at this day, is under the government of all
our Sta'es 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 IjetA'een two con-
tending candulates for the oftie.e of governor of a State was a question to be settled by
the jiulicial tril)unals of the State. The sitting governor, the occupying governor, has
been oust(Ml frcim office, .and another man has been invested with the office un<ler the
judguieut of a. court of law. In what respect, except in point of mere dignity, does
the office of President differ from the office of governor?

If, then, this be a judicial (piestion, 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 ali )ut that, for the very good
reason that it is not one of the questions nominated in the Constitution over wnich
the Supreme Court has original jurisdiction ; but, if it is a judic al question in its
nature, and a question which arises under the Constitution 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 Uiiited States? What does the Con-
stitution say f Not contenqilating that there may be any dispute, that th;-re may
be any two pretenders to the otflce 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 anything
short of that; no matter what the dispute may be, no matter what the difficulty
may be of determining what are the votes of the State, the command of the Constitu-
tion is explicit that the votes slull be counted. What more ? It says this other thing,
that the man who has the nnijority 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 «hoiu the two houses shall
say; not the man to whom it may be awarded by any arbitration that nuiy be possibly
manufactured, but the man who has the majority. He is the man npou wliom the Con-
stitution, which we are all sworn to support, devolves the office of President. There-
fore I think, myself, that by the express letter of the Constitution this question is a
judicial (piestion, and ail the legislation you want is such as may simplify and expedite
tlie trial and the determination of it.

PROCEEDINGS AND DEBATES IN CONGRESS. 565

I know very vrell tbat it does not matter at all who decides this question whicli may
arise in the States tcinehin<^ the vote of a State, if after all the vote which the State
really <rave is counted in the convention and jjoea into the siimminoj np of the general
result, no matter wlio gets it, whether the president of the convention, the Speaker of
the House, the Clerk, or any member; but, if then; is a dispnte as to which is the trne
VDte, then it has to be decided by somebody. I admit, if yon leave it to the president
of the convention, he may decide it wrong; if yoix leave it to the two honses, they
may; if ynu leave it to any of the trilniuais suggested by the different amendments,
they may decide it wrong; and I admit, if yon 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 nuiy be rejected and a false vote substituted.

But the two reasons why I conclude that this power belongs to the courts, and to
nobody else, are: First, I think it is judicial power in its nature, and so has gone by
tiie express delegation of the Constirutioii to the courts ; and, secondly, if I were niy-
stdf, insteadof being a Senator, a full-fledged constitutional conveution^aud ^\ere mak-
ing a constitution npou this jioint, I would delegate this power to the courts.; not
because they cannot blunder or be dishonest even as well as other tribunals, but
because they have less excuse for blunderiug 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 o})p()rtnnity
is given for so careful a weighing of it; and they act before the whole world, their
judguieuts 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 constitution, I should take
pains in most explicit terms to give this authority to the courts.

Mr. MoKTOX. Mr. President, there are three propositicuis here as amendments to the
second section of this bill. That section provides for a case where there are two re-
turns of electoral votes from the same State, and further 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. Cooper,] is
that in case the two hcuiscs do not agree upon the same leturn 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 iu\he House shall be counted.
The Senator from Virginia [Mr. Johnson] proposes to amend that by providing for a
jiiint convention of tin; two houses, the Senators and Representatives to meet together
and compose one body, but that in that capacity, each Senator and each Representative
having one vote, the vote shall again be take^n by States. For example tha State of
Delaware would have three votes in this joint convention, having two Senators and one
Representative. The two Senators would cast, the vote of the State, or one Senator
and one Representative could cast the vote of the State. In other words, it is pro-
posed to give the Senators a vote in the determination of the voice of the State, just
as a mem!)er of the other house would have in the election of President.

The third proposition is submitted liy the Senator from New Jersey [Mr. Freling-
huysen] to provide that, in case of disagreement of the two houses in determining
which i«4 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-Jus-
ticeof the Supreme Court ; that they shall constitute a tribunal. Of these three prop-
ositions, that of the Senator from New Jersey is, in my opinion, much the best. It is
n uch more fair, equitable, and republican than either of the others, in my judgment.

But, sir, I now present the question as to whetlur you can constitute an umpire be-
tween 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 Rep-
n-sentatives, open all the certificates, and the votes shall then i)e counted."

Two constructions are contended for here. One is that the President of the Senate
himself sliall open and count the votes and shall determine all questions arising upon
the certificates, or, in case there are two certifiates, shall decide 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 ouly 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
constructions. Each is possible under the language. The Constitution says :

" 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."

It does not say who shall count thein ; it leaves it open to inference that they shall
be counted by the two houses on tlie one hand, or by the President of the Seimte on
the other. I will assume, for the sake of the argument, that you can give to it either
construction. I will a.ssume that it is open to both views. Then the question comes,

566 doUNTING THE ELECTORAL VOTE.

Trhich is the more reasonal)le, which is the better, which is the snfer of tlie two: to
adopt that construction which o-ives tliis givafc jjower to one man, the Piesideiit <if rlie
Senate, who may be counting the votes fur hiniSHlF, as it has turned out six tim>-8 in
our liistory; or wouhl it be safer to leave it to the deterniinatiou of the two houses of
Couj^ress, re])resentin<j the States and the people ? If we are open to adopt either one
of these constructions, I say the hitter is the safer, it is the more reasonable, it is in
conformity with the sjiirit of our Government and of popular institutions. I then
adoj)t the latter construction.

If the votes are to be counted by the two houses, a disa<j;reement arising, how shall
that be settled? In the tirs^. place the tirst 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 Constitution 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 doul)ts
upon these quesnous; but still, the return 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 objections is so clear as to require
its rejection. That part of it is safe enough. There is only one return ; the authen-
ticity (fit 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 iu rejecting it. That is safe
for the country.

We then come to the case where there are two sets of electoral votes — two certifi-
cates, and eacli on its face is prima fade the vote of the State. How then sliall it be
determined ? I assume that the Senate is acting patriotically and honestly ; I a sume
that the House would act in the same way. Tin-y may be comjtosed of different par-
ties, but we must leave something to the integrity of men, no difference by what polit-
ical 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 fiom 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 th;it 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 absolutely
necessary to carry on this Government; and yet if the two houses cannot agree about
them the l)ills are lost. It is the nusfortune of the Government, it may be the destruc-
tion of the Government, but you cannot create an umpire in that case to pass an ap-
propriation bill and determine whether the appropriation shall be made.

Mr. Sakuknt. It is because the Constitution prohibits it iu that case. Does the Con-
stitution prohibit it in the other?

Mr. JMoKT' iN. I do not know that the Constitution prohibits it in that case any more
than it ])rohil)its it in the other. It provides that all the powers of this Government
shall be in tlie three departments, the executive, the legislative, and the judicial ; and
when the judicial cannot agree and fails to act, that is the end of it ; and so with the
legislative. I know of no provision iu the Constitution authorizing you to create an
umpire between the two houses in regard to this question any more than iu regard to
a legislative (piestion. 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 aftirmative 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 iu and settle the question iu case of a division of the
Supreme Court.

Now, I want to consider very briefly the amendment offered by the Senator from
Tennessee providing that in case the two houses of Congress shall disagree, then
the House of Eepresentatives, voting by States, shall settle the question. I
would say to my friend that I am opposed to that upon every ground ; first, be-
cause it is inequitable, it is unjust, and I can see no logical propriety iu 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 upon the certitioate, or pos-
sibly, th >ngh 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 iu 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
mo.st dangerous provision in that instrument, and it ought to be out of it. It has been
exercised 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

PROCEEDINGS AND DEBATES IN CONGRESS. 567

that candidate who had a majority of States iu his favor voting by States in the House,
but to whom a large majority of that House personally might be opposed, is too dan-
gerous to be tolerated. I have already shown by a calculation which has been made
that you may take the present House of Representatives, 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 iu 1801 to show that it presents the most powerful tempta-
tion to corruption of any process connected with our whole Government ; and if it
were not for shocking 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 elec-
tion 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 Rep-
resentatives in 1801, a speech made in Congress by one who participated in that elec-
tion. I will ask the Clerk to read from Avhere 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. I should not have introduced it into this debate had it not been called up by
the honorable member from Virginia. 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 pos-
session of personal means or from the accident of political situation. And now, sir, let me
ask the honorable member what his reflections 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 parliamentary proceeding
in the mentioning of names ; but I hope the example which has been set me will be ad-
mitted as an excuse. Mr. Charles Pinckney, of South Carolina, was not a member of the
House, but he wasoneof the most active, efficient, andsuccessful promoters of the electon
of the present Chief Magistrate. Ic was well ascertained that the votes of South Caro-
lina were to turn the equal balance of the scales. The zeal and industry of Mr. Pinck-
ney had no bounds. The doubtful politics of South Carolina were decided, and her
votes cast into the scale of Mr. Jefterson. Mr. Pinckney has since been appointed min-
ister 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 re-
ward of talents and services, although, sir, I have never yet heard of the talents or
services of Mr. Charles Pinckney. In the House of Representatives I know what was
the value of the vote of Mr. Claiborne, of Tennessee. 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 delegation of the State consists of five
members. Two of the delegation were decidedly for Mr. Jefferson ; two were decid-
edly for Mr. Burr. Mr. Linn was considered as inclining to one side, but'still doubtful.
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 of his district conferred
upon him. Mr. Lyon, of Vermont, was, in this instance, an important man. He neu-
tralized the vote of Vermont. His absence alone would have given the vote of a State
to Mr. 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 executive 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 considered 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 preferment 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 proceed further, it might be supposed that I myself harbored the
uncharitable suspicions of the integrity of the Chief Magistrate, and of the purity of
the gentlemen 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 doing 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 honor-
able gentlemen who have been the objects 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 onlv supported what has

36 X

568 COUNTING THE ELECTORAL VOTE.

been considered as a favorite measure. This has been assumed as a sufficient ground
not only of suspicion, but of condtimuation. The present Executive, leaving scarcely
an exception, has appointed to office, or has by accident iudirectly gratified, every man
who had any distinguished means, in the competition for the presidential office, of de-
ciding the election in his ftivor."

Mr. Morton. That extract from a speech of Mr. Bayard, showing very clearly that the
election of President by the House of Representatives 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 danger of that form of election. Aside from
all questions of unfairness, aside from giving to the smallest State in this Union with a
population of not one hundreil thousand the same voice in the selection of a Chief Magis-
trate, 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 distinguished members who has ever had a
seat in this body, long the great leader of his party, as a member of the House of Rep-
resentatives 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 subdividing tlie nation, and giving to each one a voice in the settlement
and determination of this question — a principle which in its amplification and in its
consequences was the foundation of the doctrine of secession, and has brought upon
this country the greatest evils under which it has suffered. I can never consent, 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, wiiich I do not think we have, to create an umpire to
decide where the two hunses disagi'ee, 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 be
80 well satisfied with a tiecision made by the President of the Senate and the Speaker
of the House and the Chief-Justice, a special tribunal, as it would with a decision
made by the Supreme Court of the United States. If we can call in an outside tri-
bunal, one already existing, or if we can create one, would not the Supreme Court of
the United States be more satisfactory to this nation than any other one whose serv-
ices we could invoke f And if, as the Senator from Ohio argued, you cannot confer
the power upon the Supreme Court, because there can be no appellate jurisdiction con-
ferred upon tliat court: that does not come from an inferior 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 tribunal 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 keep-
ing in mind the other suggestion, that we can create a special tribunal, then I say we
can make that s^jecial tribunal to consist as well of the judges of the Supreme Court
as of the Speaker of the House, the President of the Senate, 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 judicially.

Mr. Morton. I think this question cannot come before the Supreme Court judi-
cially ; 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:

PROCEEDINGS AND DEBATES IN CONGRESS. 569

bouses shall fail to agree as to which is the true and valid return as provided for in
this section, tlie 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 si)ecial tribunal be com-
posed 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 en-
tirely useless; it is dangerous; but until that amendment 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 questionis 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. Randolph. Before that motion is put I should like to bring the attention of the
Senate to the fact that the day before yesterday 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 discus-
sion it has not entered into consideration as one of the amendments that might possi-
bly be adopted.

Mr. Morton. I overlooked it. I should like to hear it read.

The President j>ro tempore. The Secretary will report the printed amendment of the
Senator from New Jersey, [Mr. Randolph.]

The Chief Clerk. The proposed amendment is to insert as an additional section
the following :

" 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 Presi-
dent of the Senate shall render a decision of the question, and sucii 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 ia
joint meeting assembled."

Mr. Morton. I will ask to have the amendment which I suggested printed also.

The President j^ro tempore. The suggested 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, 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 amendment will also be printed.

March 20, 1876.

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 anil the decision of questions arising thereon.

Mr. Randolph. Mr. President, under the rules of the Senate the amendment I pro
pose 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 depend upon the exi«tHuce 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 vote
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 alirogated, is admitted on all sides to have been iniquitous in con-
ception, 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
political bastard, whose usefulness was contingent upon a partisan emergency and
whose life closed with the first dawn of purer public sentiment.

570 . COUNTING THE ELECTORAL VOTE.

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, comprehensive 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, confessedly so, in contingencies likely to arise,
that have arisen heretofore. It is imperfect because it leaves the count of the elec-
toral vote of a State entirely dependent upon the concurrent 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 Representatives, 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 individual 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 political in its character.

There has been a general expression that the functions of members of both houses
of Congress are largely, if not altogether, ministerial as to the count of the electoral
vote. The Constitution could scarcely have contemplated the almost instant trans-
formation 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 :

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 conflicting 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 contingen-
cies : first, the easily procured and presented bogus returns so called from a State ;
next, the virtue of one or the other of the great political parties, tested under the
greatest temptation.

Practically the committee's bill gives to Congress a veto power upon the acts of
States.

The danger of adopting the second section of the pending bill can be briefly illus-
trated 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 administration of Federal affairs, is it probable the Senate and House would agree
as to which were the true returns ? No. Then the vote of Louisiana would be re-
jected.

This might leave the remaining three hundred and sixty-two votes standing as fol-
lows :

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 rejection of Louisiana by a democratic
House was a partisan action, and to defeat, as it only could defeat, the election of a
republican President, as the count of Louisiana's vote would do. I choose this illus-
tration, that is hypothetically against my own party, to strengthen its force with my
republican friends. '^^iz:: ,

Aside from this narrow and partisan result there is an objection broader and deeper.
It consists in the crime of deliberately disfranchising 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 jiatriotism, patience, and virtue enough to defend 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, Con-

PROCEEDINGS AND DEBATES IN CONGRESS. 571

gress has uo right — uever had, and never will have, if justice is to prevail — to dis-
franchise the people of any State. The admission of such power is fraught with danger
to liberty herself. Peculiarly as to this matter 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 Cougress 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, (beyond the plain, though admitted imperfect, provisions of the Con-
stitution,) we can provide for all contingencies foreseen as possible. Our duty, sir, is
to leave no chance for injustice, no invitation to fraud.

The amendment of the Senator from Tennessee [Mr. Cooper] proceeds upon the
theory of the constitutional pi'ovision 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 we're to be persons chosen by the State
legislatures — not by the people. They were to be an intermediate body between the
States — not the people — and the executive oflicers selected. Their selection of proper
officials was not expected to be controlled by party conventions, as has turned out to
be the fact. It was anticipated they might dilter in judgment to such degree as to
leave no one person with a majority vote.

So plain is this anticipation that the Constitution provides that only the three of all
the persons voted for by State electors should be subsequently considered.

The electoral vote is a secret one. The pow(!r, once exercised, is ended. Thus the
necessity for anotlier tribunal, another electoral college substantially, in a contingency
possible. That iinal 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 between the agents or electors of all tlie
States ; not between people of the same State. The principle that lodged the first-
named power in the House of Representatives was that of protection to the smaller
States. No such principle 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 Execu' i ve shall be in grave emergencies. In this view it is just now
very suggestive. 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 exists in another emergency. There should
be uo 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 to-
gether to act as a unit in legislation. This power, in Congress, is not generally admit-
ted. Its exercise, if constitutional, is hazardous, and the line that most old-fashioned
democrats deem as indispensable 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 acourt composed
of the Chief-Justice, the President of the Senate, and the Speaker of the House of Rep-
resentatives. Though he does not say so in words, his amendment would seem to im-
ply 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 of Congress to decide
a question " partly judicial, partly political." Yet;, Mr. President, it is just such ques-
tions this body, at least, is often called upon to decide.

But there is another objection to the amendment 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 re-elections of Presidents occur, from the i)erson to whom he owes his original ele-
vation and upon whose continuance in the presidential office, as a matter of fact he is
called upon to decide. However just and honest his vote, this high judicial officer
would stand in imminent danger of being questioned as to motive, and thus of losing
bis 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 with-
out lowering public respect for the 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.

572 COUNTING THE ELECTORAL VOTE.

The Presiding Officer. The amendment submitted by the Senator from New Jer-
sey will be read.

The Chief Clerk read as follows :

"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 Presi-
dent 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 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 I'e-
turns of a State are, join in effect the aggregate vote of both, and those returns which
shall have received a nuijority of all tbe votes of the members of both houses are de-
clared the true returns. 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 afiSnity
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. Tliere 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 liable 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 relegating the decision of the question
to the House of Representatives alone. Another view of the matter will disclose this
fact. Under my plan the practical decision of the question may often rest with the
States through the votes of Senators. Sliould 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 bo reached by the controlling-
vote of the Senate or the House.

So, Mr. President, the amendment proposed seems to be as reasonably free from ob-
jection 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 sys-
tem we can. That which I have proj)Osed 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 la.w regulating the election of United States
Senators. 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 equitable 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 dilfer-
ences or factious opposition that we have assured 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 suggestions I have made in the earnest hope that they may to some ex-
tent lead to a true and legitimate determination of this important, if not the most im-
portant, question now before Congress.

Mr. AVhyte. 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 I did last Monday to the Senate. If that power is lodged now with the
President of the Senate, then it is idle for us to waste time in statute legislation; but
it is the duty of Congress, in case we have discovered an omission, to provide for con-
tested 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 con-
cluded, then what shall be the character of that constitutional amendment 'I

There is a vast diflerence between the ministerial 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 ijlace in the case of a contest, whether as regards the electoral vote of a specific

PROCEEDINGS AND DEBATES IN CONGRESS, 573

State or iu regard to the aggregate votes of all the States. Therefore, whether in re-
gard 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-President be-
fore the people. Hence it is important, if we mean to make any provision iu regard to
the count of the vote, that we should go a step further and provide for a contested
election of President and Vice-President of the United States. I say that it is essen-
tial for us now to amend the Constitution, for, after reading the able arguments of the
Senators 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 examination 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 tlie precedent 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. Thur-
man.] No, Mr. President, let us look at the xioint for a moment, and I shall not oc-
cupy the Senate long ; let us look at the pro[)osition as I presented it to the Senate
upon that occasion.

The Senator from Ohio speaks of the precedent iu the count. I did not call the at-
tention 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 established by the first Congress that assembled under the Con-
stitution. I called the attention of the Senate to the fact that, in the resolution
which sent the Constitution to the Congress of the Confederation and requested its de-
livery to the people of the States for ratification, 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 Confederation ; that Congress sent the
Constitution, 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 iu the very words of this
resolution, complying literally with it; the Senate of the First Congress elected John
Langdon, 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 Sena-
tor from New Hampshire, was the very first man to sigu the Constitution, 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
becomes the hand of the convention to open and to count these very votes under that
very resolution 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
following 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 purpose 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 purpose? 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 Representa-
tives 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 President of the Senate, six had been participants in framing this
very Constitution. There, if I remember correctlj', were Langdon, and Ellsworth, and
Robert Morris, and Bassett of 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 intention in setting the machinery of the Govern-
ment in motion. What did they do? Mr. Ellsworth went to the House of Represent-
atives. The Senator from Ohio when he spoke about this precedent being of no great
force added also that this most admirable compilation or history of the First Congress
made by our worthy Chief Clerk was not an accurate account, and that an opposite

574 COUNTING THE ELECTORAL VOTE.

presumption might be drawn by reading the Journal. He is mistaken. I have exam-
ined another history of Cougress by Mr. Blauchard of the First Congress, and it cor-
responds 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 gen-
tlemen on the ijart of the House and one on the part of the Senate to sit at the Clerk's
table aud 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 Represent-
atives and informed them that —

" The Senate is now ready in the Senate Chamber to j)roceed in the i^resence of the
House to discharge that duty."

I read from the Journal :

"He informed them also that the Senate have appointed 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 message.

" Mr. Boudinot, from the House of Representatives, communicated the following
verbal message to the Senate :

" ' Mr. President, I am directed by the House of Representatives to inform the Sen-
ate 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 aud 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 the 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 ojjened 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
election, aud in that certificate, as the Senate will see, announced that —

" The underwritten, appointed President of the Senate for the sole purpose of re-
ceiving, opening, aud counting the votes of the electors, did, in the presence of the
said Senate and House of Representatives, 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 i^roceeded to consider the resolution of the House of Representatives
that a committee be appointed, to join such committee as may be appointed by the
Senate, to ascertain and report a mode of examining" —

Not of counting —
" a mode of examiniug the votes for President and Vice-President, and of notifying th
persons who shall be elected of their election, aud 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 Presi-
dent of the Senate, and nobody at that day supposed for a moment that Congress could

PROCEEDINGS AND DEBATES IN CONGRESS. 575

dislodge biin from the position in which the framers of the Constitution had placed
him. Now see, pa^re 484, the report of that committee, composed of Mr. Izard and
other gentlemen who had been members of the constitutional convention. James
Madison was one of that committee on the part of the House; and I presume no man
was more 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 6th February, instant, reported.
That the two houses shall assemble in the Senate Chamber on Wednesday nest, 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."

By the President of the Senate, just as it had been done four years before, when he
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. Saui.sbuky. I desire to ask the Senator from Maryland if the object of that res-
olution of the House for examining the votes of the electors of the different States
was not to ascertain whether they were electgral votes or not ? What was the object
of examining on the part of the two houses unless it was with some view 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 announced by the Vice-President. That was the object. What is the mean-
ing 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'tlie enunciation by the Chair. That is all, Mr. President.

" 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 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 Congress was turned to this very question,
and they recognized that the President of the Senate 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 resolu-
tion of the House shows that, it was merely to attend upon the President of the Sen-
ate 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 President 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 questions generally, maintain that the Federal Government 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
regard to the returns of elections of State officers? Certainly in my State, and I be-
lieve in most of the other States, the governor issues a commission upon the returns
made through the clerks' 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 ? What is his duty ? The other day my friend from
Indiana seemed incredulously to smile when he asked me whether I considered it a
ministerial duty to decide between two returns, 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 ofiice is ministerial.
Mr. Merrimon. 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 complied with and if it is a deed to be recorded. If it is

576 COUNTING THE ELECTORAL VOTE.

not, be is not bound to record it. Who would for a moment say that that was the ex-
ercise of a (ji/asi judicial duty ? Cooley on Limitations lays it down so broad that no
man can doubt it, that the power of a canvasser, though you may call it ^»«si 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 author-
ized to issue a marriage license, but not to a minor. A gentleman presents himself at
his desk and asks him for a marriage license. He looks at him and doulits wlii-ther he
is of age. He has a right to refuse it if he thinks proper, and subject that man to the
necessity of a mandamus to compel him to perform that duty. More than that, he has
a right to swear the man, aud ascertain whether he is a minor or not before be issues
a license. It is a purely ministerial duty. It has been recognized by everybody as a
ministerial duty so far as the ordinary boards of canvassers are concerned. 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 direc-
tion of the legislature, appoint electors, and the President of the Senate is the can-
vasser for the States ; and, as such canvasser, performs merely the ministerial duty of
deciding, j^rimo/acje, who is elected President or Vice-President of the United States.
Now, no Senator need answer me by saying that that decides the whole case, because
there is no provision in the Constitution which looks to a contested presidential elec-
tion. That may be an omission in th^ Constitution which ought to be supplied.
Then you can take the contest* d election to the Supreme Court of the United States
to determine who ought to be the lawful occu])ant of the White House; but, until
some such provision is made in the Coiistitutiou, 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 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 ;
aud, 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 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."

Sir, the presumi>tion is conclusive, there being nothing else in the Constitution, the
Constitution not specifically saying by whom, the presumption is, from all the sur-
rounding language, that the two houses are only there as spectators, and that the
President of the Senate is the proper person to count and to declare the vote ; and, if
I am not much mistaken, the distinguished Senator from Indiana thought the same
way when he made his .speech on the 17th of Januarv, 1873 :

"Clearly"—

Said he —
" the framers of the Constitution did not contemplate that the President of the Senate,
in opening and ccvintiug the vote for President aud Vice-President, should exercise any
discretionary or judicial powers in determiniug between the votes of two sets of elect-
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 decision he may make between the
two sets of electors or upon the sufficiency aud 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."

So that the Senator from Indiana clearly accepted that as the true coustruction,
that having 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 i^eople 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 iu no other form.
Let us see what else the Senator said on that same sitbject 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, iu 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 can-
not act and vote as one body ; that the two bodies cannot deliberate and act as sepa-
rate bodies in each other's presence ; that they are simply brought together to wituess
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 ijy 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."

PROCEEDINGS AND DEBATES IN CONGRESS. 577

Can there be any doubt tliat it was the view of the Seuator then that it was con-
ceded on all hands that that was the status of the case nudei* the Constitution of the
United States ? Bat, Mr. President, I may not perhaps bo adding any strength to my
argument with the Senate ; but certainly to my judgment the authority I am about to
quote was a high authority on constitutional questions; and therefore I ask permission
to call the attention of the Senate to this questioa as presented by the late President
of the United States and late Seuator whom we regret to miss from the chair in my rear.
I refer to a veto which he sent to Congress on the 20th of Jnly, 1868 — a veto which I
had the honor to vote to sustain in company with Senator Hendricks and other gentle-
men on this floor. It is not material to read any other portion of the message or to
discuss any other part of the questioa 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 electoi'al votes for President
and Vice-President of the United States are in plain and simple terras prescribed by
the Constltntion. That instrument imperatively requires 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.' Congress has, therefore, 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 this respect the power and duty of the President of the
Senate are, under the Constitntiou, purely ministerial. When, therefore, the joint
resolution declares 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 government
under which a State government shall have been organized,' a power is assumed which
is nowhere delegated to Congress."

And so all the better reasoning in the case of Wisconsin was that way. There is no
argument worthy of the name of argument that can be presented in reply to the state-
ment of tbe case as made by Mr. Stuart, of Michigan, at that time, which Mr. CoUa-
mer 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. Col'.amer's 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 electoral vote, by reason of a snow-storm. We all
know that Mr. Mason did not count Wiscousiu, upon the ground that it would make
no difierence 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 demonstration against the ruling of the President of the Senate. The
announcement was made, and the houses se])arated. The debate was resumed in each
house, and, in the Senate, Mr. Crittenden, after a long debate, otfered this resolution :

" Resolved hi/ the Senate and House of liepresentatives of the United States of America in
Congress assembled, That the electoral vote of the State of Wisconsin in the late presi-
dential election, being given on a day difterent 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 presidential election."

The Senate laid that resolution on the table, after Mr. Collamer's sj)eech, 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 Representatives 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
proposition was under consideration. Various plans were put forward, various
suggestions made as to the manner of choosing a President, and much dififlcultj' was
found in relation to it befoi'e a plan was arrived at, and that so soon resulted in a prac-
tical 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 pi'ovided 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
Congress 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 Congress proposes to elect for itself.

Mr. TiiUKMAN. Shall I interrupt the Senator if I make a suggestion?

Mr. Whyte. Not at all.

Mr. Thurman. Does the Senator think that the question before the_ Senate is-

578 COUNTING THE ELECTORAL VOTE.

whether we can go back of a return admitted to be genuine and regular upon its face ?
If he supposes 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 contest 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. CoUamer
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 fco 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 lirst commenced, or he would have known that that is precisely what I
say. It is tinkering with the Constitntiou if you do not go a step farther. 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 return ; and the State is disfranchised,
which our fathers never meant.

The President of the Senate is the custodian of these votes ; he is the canvasser of
these votes ; aud he is just where the governor of a State is when he is bound to issue
a commission upon the returns that are sent to him. He is bound to look at the returns
and see that they comply with the law, aud 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, aud I should like to be pointed to some
authoritj^ to the contrary. Every governor has to discharge that duty, not as governor,
not in the discharge of those executive functions which are political exclusively 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. Sup-
pose 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 never expected us to legislate for a case where there should be two
executives of a State at oue time. Our fathers never expected us to be iu 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 President 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 electors ;
and on that he has got to answer to the country and to his God that he dischargt-s his
duty faithfullj^. 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 commission to the lawfully-elected officer. That is the
law. Nobody knows better than the Senator from Ohio that governors perform minis-
terial 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 ministerial duty upon his part ; aud 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, aud I ask the attention of the Senate briefly to it. In the case of Magruder
vs. Swann, governor, reported 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 ap-
plication 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 re-
spective 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 elec-
tions the person having the greatest number of votes shall be declared to be elected."

The court held, in regard to the duties devolved 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

PROCEEDINGS AND DEBATES IN CONGRESS. 579

invested with no discretion, but is imperatively required by the organic law to perform
in order to keep the departments of government in motion.

"The clerks' certificates determine 'who has the greatest number of votes,' or
■whether ' the opposing 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 provide to in-
sure the prevention of fraudulent or illegal voting, and this leaves but little discretion
to the inspectors. Their duties, except in the single instance adverted to, are simply
ministerial in the reception of the votes, and entirely so in counting and making re-
turns thereof."

And then, when they come to speak further on of the board o{ county canvassers,
they say :

" It is made the duty of the board of county-canvassers, upon the statement of votes
given, to determine 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 de-
clared to have been elected."

I read now from the syllabus of the case :

" The inspectors of elections are not judicial, but administrative officers. Their de-
cision 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 Reports, 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 cf his argument ?

Mr. Whytp:. Not at all.

Mr. Morton. I venture to suggest to the Senator from Maryland that, as I under-
stand 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; oppposed to judicial; as the
sherilf is a ministerial officer, bound to obey the judicial commands 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 presented 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 returns 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 these returns is the valid
and legal return, from Louisiana is a question that is not ministerial, in my
judgment, at all. It is the highest form of political duty, or, as was suggested by the
Senator from North Carolina, [Mr. Merrimon,] 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. Sup-
pose, 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 Constitu-
tion requires. Is it necessary that the return should show the fact that the Constitu-
tion 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
return must show that the Constitution was complied with. AVho is to decide
that question? In one sense it is a judicial question of the highest character.
The decision of that question is not ministerial at all. Again, the electors are required
to vote for one person for President and another person for Vice-President, 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 Georgia the vote was for Greeley, who was dead
Mr. Morton. The question was whether the vote for Greeley should be counted. In

580 COUNTING THE ELECTORAL VOTE.

that case it was a notorious fact that he was dead ; but it was a very important ques-
tion, because it went to determiue what constituted a majority of all the electors ap-
pointed. 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 ministerial.

One word further. Take the case of common 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 discretionary power reposed with that board
of canvassers 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 conferred 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 absence 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 franiers of the Constitution did not contemplate that the President of
the Senate, in opening and counting the vote for President and Vice-President, should
exercise any discretionary or judicial power 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 witnesses 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 tbe 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 de-
cision 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 contemplated simply a minis-
terial duty. Thej^ did not expect the President of the Senate to perform anything but
a ministerial duty ; but, as stated by Kent and as stated in this report, if the two
houses of Congress tlecline 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 theMcEnery 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 exercising 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 gentlemen claiming to represent the State ot
Louisiana in the House of Representatives, one with a certificate signed by Kellogg,
the other with a cei'tificate signed by McEnery, ask to be put upon the roll, so that
when the I'oll is called they will be there to answer to their names ; and the Clerk of
the House puts one set ou. 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 up the roll of members of the new (Uie
for the purpose of organization ; and should there be two sets of members certified
to by different persons, each claiming to be the governor of the State of Louisiana,
inasmuch as the law authorizes the Clerk to make up the roll, it from necessity gives
to him the choice for the time being, and that far his duty is not ministerial. It is a
higher duty, but it is one devolved upon him by the law.

Mr. Whyte. I will ask the Senator another question, because I differ with him on
that point. Suppose the governor of Indiana is authorized to issue a commission to
the auditor-general of that State, if there is one, who shall be elected by a majority
of the people of the State, and the law requires that the returns shall be made by the
clerks of the courts. Suppose the clerk of the court sends two returns, or there are
returns from two persons claiming to be clerk of a court, and the governor of a state
decides in favor of one of them, is that the performance of a judicial duty ? Is the
determining whether a law has become complied with the i^erformance of a judicial
duty?

Mr. Morton. If I understand the question put by my friend, it is where the governor
of a State is called upon to commission a State officer, the auditor for example, and the
clerks of the counties have sent up two sets of returns. The question supposes that
the governor in that case may choose between these returns and determine which is
the proper return, and issue a commission accordingly. If the law of the State author-
izes the governor in such a case to decide which of the two returns is the correct one,
that ijower of decision is not ministerial ; it is judicial clearly.

PROCEEDINGS AND DEBATES IN CONGRESS. 581

Mr. Whyte. But where it is just as the coustitutiou leaves it, and there is no pro-
vision of law ?

Mr. Morton. Theu the law authorizes hiui to make that decision. If there are two
sets of returns, both certified by competeut authority, the governor has no discretion-
arj- power, he cannot issue a commission to anybody, 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 dis-
cretionary power is uot 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 nullity 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 discretionary power would be judicial.

Mr. Whyte. Toe question has been decided over and over again that where the gov-
ernor is authorized and required to issue a commission upon certain returns made'to
liim, he has to issue a commission, and the contest comes afterward. He is bound to
deliver the commission as the 2>riina /acie title. It is his duty to do it, or the wheels of
government would stop. There would be a hiatus in the ofiflce if there was no provision
of law that the prior incumbent held until his successor was appointed and qualified.

Mr. MoRTOX. Let me say to my friend that in the case he supposes himself, there is
no j^rima 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 authorized to decide which is the cor-
rect return, I submit to my friend that that is not ministerial.

Mr. WiiYTE. I am sorry to differ from so distinguished a lawyer. The courts, as far
as I have examined the question, are unanimous upon that subject, that it is a minis-
terial duty, and governors have been compelled by a mandamus to perform that duty.

Mr. Maxev. Will the Senator from Maryland inform me whether in any case where
an act of judgment is devolv^ed upon an officer his view that the power is ministerial
would apply ?

Mr. Whyte. No, sir. Where he has discretionary 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 ministe-
rial act. The counting of a vote, 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 explained and all the authorities cited. He will see that it is not an act judicial
in its character, but that it is simply attachetl to the ministerial duty that the party
may discharge it intelligently. 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 commission upon the returns made to him. If there are two returns, there
must be a lawful return and an unlawful one. If there are two governors, 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 Coustitution. I am not saying that it is the perfection of wisdom,
because we know ourselves that at the election of Jefferson in 1801, the defect of this
very clause in the Constitution about electors was discovered, and that it Avas
amended ; but our fathers had not got quite as far advanced in political ethics as we
have. They did not anticipate two governors iu one State. They thought the States
were hardly big enough for more than one governor each, aud therefore they
looked to a return certified by one governor. 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 President 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 author-
ity 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 iu which they were coucocted in Louisiana. I do not speak of any party. I
have not much faith iu the men who put them up, aud therefore if you are going to

582 COUNTING THE ELECTORAL VOTE.

determine which of two returns you will take, go behind the returns and propose a
constitutional amendment that will lodge the power to decide upon the ])rima facie
case tirst, and then submit it to bome court or some judicial tribunal to determine 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 mandamus against the President of the Senate not being lodged either with the Su-
preme Court of the United States, exercising original jurisdiction, or with one of the
courts of this District, and then the Supreme Court having appellate jurisdiction in the
case. Why ? Who votes for electors ? Each State votes for electors Each State can
vote by its legislature. It can vote by general ticket, and let a majority of the people
of each State choose the electors. It can vote by districts. It can vote in any way the
legislature of the State shall determine. Therefore the State votes. The State is inter-
ested in having its vote counted. Suppose when the lawful State government sends
its electoral vote here the President of the Senate refuses to count it. Why cannot that
State, through its proiierly-authorized officer, ajiply to the Supreme Court of the United
States for 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 Supreme Court cannot ex-
•ercise original jurisdiction 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 return 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
providing who shall count, who shall declare, in the first instance, the jprima/rtcve title
to the office of President and Vice-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 bj' 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 entitled to it under the Constitution as it now is.

Mr. Dawes. Mr. President, after this j)rotracted debate upon a subject-matter, the
need of legislation in respect to which all of us admit, I should not think of engaging
the attention of the Senate for a moment did either the discussion itself or the bill be-
fore 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 corresponding to the one which has reported this bill here, before
■which this subject was frequently brought, growing out of the apprehensions 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 disappointment that after so long a time and
such a discussion, under circumstances so favorable, in which all parties seem to have
addressed themselves to the question without the bias or passion of party, when no
measure can become a law unless it receives the sanction of both parties, no measure
is agitated that can have any 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 grapple 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 uttei-ly fails. My disappointment is that there is
going upon the statute-book a delusion, 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 fancied 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 legislation, 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 in-
sufficient 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 Govern-
ment, either the Constitution or any legislation ; follow step bj' step all the proceed-
ings ; and the moment you undertake to proA'ide for the question which this bill and
this earnest efibrt of this committee and this discussion is seeking to provide for, you
run at once counter to the very iirovisions of the Constitution itself, and why ? Because

PROCEEDINGS AND DEBA.TES IN CONGRESS. 583

tbe danger is sometliino; else than that which we have discnssed. It does not arise
upon the pai)ers. 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 delil)eration
of two hours' duration is provided in tliis bill. The Constitution provided that the
States should a])point the electors. It was not anybody 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 governor with power to appoint them ; but however 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 Coiistitiition,
hat its act, whatever it was, was to be verified by the State and not by the nation.
The State was to verify its act aud certify it iu such way as each State might deter-
mine so to certify its act.

" Each State shall appoint "—

Is the language of the Constitution —
"in such manner as the legislature thereof may direct, a number of electors equal to
the whole number of Senators and Represeutatives to which the State may be entitled
iu 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 tlie first Wednesday in December, if there is a failure of a
sufidcient number to meet, the college itself fills up the number. But, however they
were to be chosen, it was the act of tlie 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 appoint-
ment. Then the United States takes up the matter, and froui that point provides by
law just what is to be done. These electors bearing the certificate of their State are
bj the pi"ovisions of the Constitution and of the statute to meet at such place as tlie
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 phan-
tom, 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. The President of the Senate is
the sole constitutional custodian of these certificates from the several States. He is to
bring them upon a particular day into the presence of the two houses, of the Senate
and the House of Representatives, and he is to open them. He is not to open any-
thing else but these certificates. Nobody can clothe him with power to open anything
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.
Right 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 tlie 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. Theu
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 amendments that propose to take
these certificates out of the presence of the two houses and submit them to another
tribunal to be created for the purpose of determining what these men shall count, aud
then for us to say that a tribunal created by us determining what shall be counted
does not count !

I am 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 Presi-
dent of the Senate or by the two houses, because so far as my difficulties are concerned
it does not matter. I have heard no one say that they were to be counted by anybody
else, aud 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 Representatives,
they are " then " to be counted. That is, when they are there ; and tlierefore they
cannot be counted in any other presence and before any other tribunal or by any other
tribunal. I think that the Coustitution 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 Consti-
tution kept in their mind, when they prepared for the election of President, the Statues.
They provided, as I have said, that the States should appoint the electors, that the col-

37 X

584 COUNTING THE ELECTORAL VOTE.

le-je of electors should in the first instance choose the President and the Vice-President ;
they provided that, if the college of electors shall fail to do their duty, tiieu 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 throngh, until, as they supposed, they had secured heyond peradveu-
ture 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 Uranch. I am one
of those who helieve in State rigiits, and I am one of these who, so far as State rights
are defined in the Constitution, are for preserving them with sacred care, and I shall
stand tip for them. ]\Iore than any other feature of this whole Constitution this idea
is pioniinent, running from the time when the States reserved to themselves the ))ower
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: n]ion the States in
the House of Representatives to choose the President, 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 he done, not in the presence of the Senate and House of Reprt-sentatives, but in
the i)resence 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 the 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 hy the two in their separate cajiacity as
Senate and House of Representatives. Yon depart at once from the whole theory and
tenor of the provision the moment yon say it is to be done by them in convention in
one body. It' you follow it out and in harmony with all its provisions, as it seems to
nie — I am only suggesting how it strikes my own mitnl — yon must say that this iuci-
dtntal question necessary for the counting of the votes is to be determined by the two
houses as houses ; and so far as this bill recognizes that- principle, so far this hill is but
carrying out what seems to me to be the ])laiu 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 rect-ived by the President of the Senate from
a State, pnri)orting to be the certificates of electoral votes given at the last i)receding
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 Sta,te shall he counted which the two houses acting separately
shall d('cide to be the true ami valid return."

Does that mean two retiiins ])uiporting to come from the same electoral college? If
you retiect how the electoral college acts, you will see that that is a contingency so
remote, so impossible to happen, that for us to spend any time in providing for it
seems to me to be entirely idle. They are to acton a particular day, and they cannot
act on any other day. Each one of theiu 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 tf) 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 contingency which, I am free to
confess, I do not think the framers of the Constitution ever contemplated ; and if that
is what is meant by deciding between two returns from the same college, it is not
worth while for us to spend a great deal of time ou so remote and almost impossible a
contingency.

It, however, it means to meet theca.se of two returns coming from a State, purport-
ing to be the action of two sets of electors appointed 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 election by the people, it is a ques-
tion of fact lying deep down, surrounded by ditficuUies, and to be determined, not
npon inspection of the papers, but upon evidence to be taken outside of the papers, if
such a contingency shall ever arise. Ou those two sets of papers it is proposed here
to determine this question of fact, without any hearing of the question of fact what-
ever, for the papers are to be submitted to the two houses of Congress and to be
decided on a ten-minute debate in two hours. Well, that only puts one's hand on the
month 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 people 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 ou the same day, under their
own seal and under their own band.

Mr. Mehkimon. Suppose, in a State where the electors are elected by the people,
those wlio are in the minority insist that they really got a majority of the votes?

Mr. DaW'e.s. That is what I am discussing. I say, if it meaus that, if it means that
those electors declared to be chosen are to meet ou the proper day and send up a vote,

PROCEEDINGS AND DEBATES IN CONGRESS. 585

and tliosi^ who are defeated but who bclievod that they were really and actually
elected are to do the same thing, so that we have two sets of certiftcates, I can uuder-
stand tiiat that is a danger npou which we are drifting, a danger which we have had warn-
ing 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 cer-
tilicates, and oa the face of the certificates, 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. MirciiKM-. Allow me to ask a question. Suppose a case of that kind just stated
by the Senator, where two returns come up

Mr. Dawes. From two different bodies?

Mr. MirciiKLL. From the same body, in the case stated, where one part of the elec-
toi'al college claim that they were elected and the other part claim that they were
electe<l. and two returns come up.

Mr. D.vWKS. That would be from two different delegations.

Mr. MiTCHK,i.r>. 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 <letermine, 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. MiTcuELi,. I understood the SenatK>r to contend that there eoukl be but one cor-
rect return from a State, and that under the Constitution it is the duty of the Presi-
dent of the Senate to determine, before he breaks any seal at all, which is thai, return.

Mr. Dawes. The Senator will allow me. I do think the Senator will admit that
there can be but one correct return in yioint of fact.

Mr. MrrcHKLL. I admit that; but what I want to know is whether the Senator con-
t<-in(Js that, isnder the Constitution as it now is, it is tlio duty of the President of the
Senate to determine, before he breaks the seal, which is the correct return?

Mr. Dawes. If the Senator will excuse nte from answering just at this point, I will
proceed. Let me go through with my statement again. It is impossible for there to
be more than one correct return ; and in the nature 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, iu
the natni'e of the ease, I do not say it is impossible, but it is next to imi)ossible, that
there can be two returns from the same body of men in the State of Massachusetts or
the State of Oregon ciainung to be the electors. Then I say this provision can ia
practice have no possible application 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 uj) their votes; so that
whe!i they coine to the President of the Senate, on the papers themseU^es there is noth-
ing t(t iiuide him to determine which of them is correct antl which is not.

Ml'. ]\liTOHEt.L. Now in that case, do I understand the Senator to sa^' that it is the
duty of the i-'resideut of the Senate under the Coustitutiou to determine which is the
correct one?

Mr. Dawes. I did say a moment ago that that was a case for which no provision has
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 contingency not only was possible but was
ahnost probable, soiiu! 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 certificates (the right
or the wrong of which lies in a (luestion of fact deep down among the complications
and passions and frauds that exist in the State itself, which the Constituriou has
clothed with the power, and which alone it has clothed with the pawer of making the
appointment) shall be opened and laid before the two houses, and that the decision
upon them shall he 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 of the question of fact.
I regretted to be compelled to say that that was an attempt to stifle with the paUu of
a man's hand the crater of a volcano.

Mr. Mitchell. I do not like to interrupt ray friend, but I wish to ask him one other
question. I am a member of the Committee on Privileges and Elections, and trying
to assist in this matter. What I want to know is whether the Senator means to be un-
derstood 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 determine it for himself.

Mr. Dawes. I am sin-ry, Mr. President, to be compelled to agree with the Senator
from Wise.on.siu [Mr. Howe] on that point. I do not think the framers of the Consti-
tution foresaw that when they clothed the State with the power itself to appoint the

586 COUNTING THE ELECTORAL VOTE.

electors a contingency would ever arise where the State would fail to see to it that its
appoiutmeut was so certain and so verified that no question coukl ever arise about it.
Inasmuch as the State appoints, the State must determine whether the State has ap-
pointed or not; tlie State must determine whether it hajs performi-d its duty in the ab-
sence of any constitutional provision.

Mr. Mom ON. Will my friend allow me to call his attention to the questions that I
think are involved in his aroument f

Mr. Dawes. I am after light, nothing more.

Mr. Mokton. In a case where there are two sets of electors — take the case of
Ehode Island during the Dorr trouble there ; suppose a presidential election had
occurred at that precise time and there were two sets of electors, one certified by
the governor under the old charter government and the other certified by <3roveruor
Dorr under the Dorr government, and those two certificates or paclcages 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 whether that question under the Con-
stitution 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 snch a case. Where there are
two sets of electors and there are two packages, of course the President of the Senate
cannot, without some outside information, determine wbich 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 ou the crater of a volcano ; but the question
goes back to whicii set of electors was chosen by the people or by the State. I svaot to
call my friend's attention to this proposition, that the Constitution admits of no time
for that investigation.

" Tlie President of the Senate shall, in the presence of the Senate and House of Rep-
resentatives, open all the certificates, and tlie votes shall then be couuted."

There is no period of time in which you can go back into a State and inquire who
was actually elected. And then further on it provides that when these votes are thus
couuted, if no one person has a majority of all the electors appointed, the House of Rep-
resentatives shall immediately proceed to the electiou ; so that there shall be no inter-
regunm, there is no pause in the ]>roceedings 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 Constitu-
tion fail to meet the case of a contest upon a question of fact. Those points that the
Senator from Indiana h.as called my attention to are but anticipating 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
constitutional 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 th;i i you have to submit them to a synod of Presbj^-
terian ministers. The ))resence in which they are to be counted is fixed by the Consti-
tution itself; and whether they are to be counted by the President of the Senate or t)
be counted by the Senate and Honse of Representatives, they are to be counted " then,"
in that presence, and " then" means at that time; and " immediateiy " thereafter, 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 certificates come up here to the President
of the Senate, from two distinct and separate sets of electors in the State of Massachu-
setts, each one of them claiming to be the true b'jard appointed bj- 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 thereof, to take these two cer-
tificates, 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. McMiLLAX. 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 bef >re the Senator interrupted
me, that the fact that there is no other provision in the Constitution to meet tliis ques-
tion does not relieve us from the necessity, when there is a i>rovision for amending the
Constitution, of meeting the question.

Mr. McMillan. 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 be-
fore any provision for an amendment to the Constitution cau 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 unfortunate condition.

Mr. Dawes. If the Senator from Minnesota will indulge me, I will endeavor to state

PROCEEDINGS AND DEBATES IN CONGRESS. 587

jnst whiit I think will he the result when we get through and pasis this hill ; and I
propose to vote tV>r it. My ohjection to the hill is that, as I said in the heginning, it is
a dehision ; it pnrports to accomplish what it does not accomplish ; it leads the ))eople
of this country into a snare, because it leads them to think Congress has ])rovided

Mr. Moi; roN. If my friend will permit me a moment, as I am also in pursuit of li^ht,
I want to ask him a qnestiou. 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 Louisiana, if you please, two
packages of electoral votes, each purporting to be certified to by a governor of that
State, and each hearing the facsimile of the seal of 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 aud we have no rule, who is to determine the question between those
two sets of votes ? How is the question to be settled '1 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 wonhl further add that the one is to be counted which is certified to by the gov-
ernor of the State of Louisiana; aud is not the question who is the governor or which
is the government of Louisiana a proper question for the Congress of the United
States to determine ? Wherever there is a dispute in regard to electoral votes or in
regai'd 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
cer tilled by that governor are to be counted ?

Mr. Dawes. I agree with the Senator tliat every disputed question which can pos-
sibly arise upon the papers themselves had better 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 mean-
ing any oftense, under the pretext of deciding it by deciding upon the face of the
paper where the (juestion lies deeper than all that, and I was showing that that ques-
tion, from the very provisions that I have discussed, theie is as yet no provision of the
Constitution to settle; aud an act of Congress only deludes the people by giving them
the idea that it is settled when in point of fact it is uot.

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. MoirroN. Before my friend passes to the other p.iint, will he allow nie

Mr. Dawes. I wish to say but a few words more. The third section dechires :

"That when the two houses separate to decide upon au objection that may have
been made to the counting of any electoral vote or votes from any State, or for the
decision of any other question pertinent thereto, each Senator and Representative
may speak to such objection or question ten minutes and not oftener than once: Fro-
inded, That after such debate has lasted two hours, it shall be in the power of a major-
ity of each house to direct that the main question shall be put without further
debate."

Mr. MoHTOX. 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 uot pass the i)ill and
authorize the two houses to settle the question, how is the question to be settled be-
tween 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 legislator if I stopped with the provisions
of this bill. That this bill is better than none I have said, and that is wliy I shall
vote for it. Thiit it is all that can be done without an amendment to the Constitution,
I have no disposition to deny. I have uot found fault with it, aud I have not criticised
this measure in any such spirit as that. I have listeued with entire sinceiity to see if
it were possible by an act of Congress to meet the exigency ; and having deliberated
in another commitiee a good deal upon that question, I did hope that this committee
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 determine the rules of its proceedings itself, without the consent of
the otlier house aud of the Executive? That this may be trea ed as a rule of the
Senate or of the House just so long as the Senate or the Himse is willing so to do, I
■will admit. It nuiy be said that by passing this hill the Senate consents itself and
the House consents itself to this law as its rule. That may be tiue; but the njoment
either wants to change it, it will have the power to change it without legaid to this
law. If, when the houses are deliberating upon a (lUfstion of this sort they choose lo
deliberate three hours, there is nothing iu thi.s law iu the way, aud it would not be a

5s 8 COTTNTING THE ELECTORAL VOTE.

violation of this law, because this law is an attempt to exercise an anthority over
which the. Constitution says the body itself is supreme ; and therefore this Hecti-)n, in
the interest of dispatch, in the interest of necessity, as the Constitnticn 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 ydeasure. It is as idle to enact what shall he 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 question, what shall we do? I say, meet it
fairly and squarely ; bring forward some measure for an amendment of tlie Constitu-
tion upon a subject which the framers of the Constitution did not think there was any
necessity for amending, but which subsequent experience has shown is vital and essen-
tial. But while such an amendmeut is pending and until it becomes ;t 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 I'ules that existed before the twenty-second joint rule, it is but pro-
viding the uniform usage, and that the moment it goes bey.>nd that it is only advisory
and has no sort of binding force; and it is in vaiu for ns to tell the people that we
have met the peril, for tbe peril exists precisely under this bill as it existed before the
twenty-second joint rule and when nothing but the usage under the Constitution was
the guide of the two houses.

March 21, 1876.

The Senate, as in Committee of the Whole, resumed the consideration of the l)ill
(S. No. 1) to provide for and regulate the counting of votes tor President and Vice-
President, and the decision of questions arising thereon.

Mr. Maxey. Mr. President, no question of so much importance as the one uow
under cf)nsideration has been cousiilered by the Senate during the present session.

The bill proposes to provide for and regulate the counting of v ites for President
and Vice-Presitlent, and the decision of questions arising thereon. We are warned by
the past to provide 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 advantage
of the favoring circumstances.

The Constitution reads:

"The President of the Senate shall, in the presence of the Senate and House of Rep-
resentatives, open all the ctrlifcate.s, and the votes shall then be counted." (Part of 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 Representatives, oi)en all the certifi-
cates. That is mandatory, not directory ; it is unmistakable. The President of the
Senate, and n<me other, shall open all the certificates; not part, but all. He cannot
perform this duty except in the presence of the Senate and House of Repiesentatives ;
not Senators an<l Representatives; not a mass convention of Senators and Rei>resenta-
tives ; but in the presence of the Senate organized and appearing in its organized
capacity, and the House of Representatives there present, organized as such. So far,
then, as oiiening all the certificates by the President of the Senate in the pi'esence of
the Senate and House of Representatives is concerned, there is no dispute ; but it is
insisted liy the Senator from Maryland that the President of the Senate must not <nily
open all the cei'titicates, but must lilcewise 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 are
required to be present, is to witness the performance of these two miuisteiial 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 paft of an iujposing pageant.

I dissent from this constructiou. The duty of counting the votes devcdves in the
first instance, in my judgment, on the Senate and House of Representatives. Why
the necessity of requiring the Senate to a))pear organized and ready for business,
unless it has business? Why require the House of Representatives to be present
organized, unless for business f The very fact that the two houses are required to
appear in their organized capacities strengthens tbe construction which I place on the
clause in question.

Had the framers of the Constitution designed to confer on the President of the Sen-
ate the duty as well as power of counting the votes, then why does it not say so?
Why not read, The President of the Senate shall * * * open all the certifioates
and count the votes ? As the power is, in express terms, conferred upon the President
of the Senate to open all tbe 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 President of the Senate, but was lodged in
the Senate and Honseof Rejiresentatives, then present by the mandate of the Constitu-
tion and organized for business, and none other being required to be present. This

PROCEEDINGS AND DEBATES IN CONGRESS. 589

Tiew is si^pported by the well-kuown rules of coustrnction ami is conson;iut 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 tlu^y, in his presence, count the votes.
I say in his presence, because the Coustitutiou says the votes shall then be counted.

If this view of the Constitution be correct, as I think it undi)ul)tedly is, then it logi-
cally follows that Congress has the power to pass any law within tlie limits of its ex-
press or implied grants necessary and proper to carry out the foregoing provision of the
Constitution.

Mr. Eaton. Will my friend allow me to ask him a question ?

Mr. Maxky. 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 togvther for the pur-
pose 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 Representatives ?

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 of Rep-
resentatives, open all the certificates, and the votes shall then be counted."

The word " Senate" means an organized body; the words " House of Representa-
tives " mean an organized body. If it was designed simply to oi>en the votes in the
presence of Senators and Representatives, it would have said so; but it says " Sen-
ate," which is an organized body ; it says " House of Re])resentatives," which is an
organized body; and I hold that these two bodies as organiz('<l 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 elec-
toral 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 per-
ad venture?

Now, I hold thatthegrant of power to and consequent duty upon the Senate and House
of Representatives is a sacred trust of the very highest character devolved up(m these
two bodies for the soundest of reasons.

The Senators are the direct representatives of the ^tates, or, if you please, the peo-
ple of the States in their organized capacity under State governments, and the House
of Representatives represent the people directly in tlieir primary capacity, and the
highest incentives that can impel man to honest action lie before them. These distin-
guished bodies organized for business, in order to proceed iu an orderly manner with-
out confusion, are presided over by the second office/' of the Government. His incen-
tive to holiest action is of the highest character. Could there be a more enlightened
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 ^lower on earth, and
necessarily deuuiuds sound judgment and discretion. Vfould anyone say that, when
the Constitution says in terms •' the President of tlie Senate shall open all the certifi-
cates," 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 it ?" 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 tbe body of Congress to
count the votes thau 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 implication; the implied grant once established is just as binding,
valid, effectual, and C(mstitutional as the ex[)ress grant. Therefore, as in the case of
the President of the Senate it is clearly antl 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 can-
not therefore be transferred to arbitrators, court, or commission not of the body, how-
ever exalted be the personages. If I am correct in my reasoning, it follows necessarily
that the ametulment of the Senator from New Jersey [Mr. Freliughuysen] falls. Tne
amendment is as follows:

"The difterence shall be imtnediately 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, tlie senior associate
justice of the Supreme Court present iu the Capitol or other place of meeting shall act
iu his place."

And the same is true of the plan suggested by the Senator from Indiana [Mr. Morton]
on Thursday last, and which is:

"That the judges of the Supreme Court of the United States shall be assembled in
the chamb: r of the Supreme Court at the same time that the two houses of Congress
are counting the electoral votes for President and Vice-Piesideut ; and, in case the two

590 COUNTING THE ELECTORAL VOTE.

houses shall fail to agree as to which is the true and valid retnrn as provided for in
this section, the returns shall be innnediately submitted to the said judges, who sluill
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. — . Sbould 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, ^he Presi-
dent of the Senate shall render a decision of the question, and such rendition shall be
iu favor of that Return of a State which shall have received a majotity of all the votes
cast in both houses of Congress, 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 Stales in
their organized capacities as bodies-politic, while Representatives represent the peo-
ple directly in their primary capacity. The books tell us that "State" and " people of
a State" are interchangeable 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, rejtresenting the people, is very differently constituted.
The ^tate 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 wuuld weigh more
than the votes of the New York Senators counted along with her thirty-three Repre-
sentatives. Such a plan follows no analogy of the Constitution, is not iu 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 certificate and the House of Represent-
atives another, the joint meeting of the two houses shall finally determine which shall
be counted, by States, the representation from each State, including the Senators there-
from, 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 Tennessee [Mr. Cooper] is plausible and would
seem to rest upon the supposed analogy between a total failure of the electoral college
to elect and the case under consideration, which is a partial failure, in ascertaining by
the concurrent vote of the two houses how one or more of the States voted, whereby
they would be thrown out and thus make a ])artial failure in the electoral college un-
less a plan is devised to save the vote, and his i^lau is presented, based, I think, on this
supposed analogy. His amendment is:

"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 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 re-
turns of the people's votes through their electors. So are the people directly inter-
ested in their primary capacity. The question is not the same as that which arises in
the House of Representatives when the election of President devolves on that body.
The election in the House takes place from the i)ersons 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 Representatives 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 iu
hand it is not at all a question of choice. It is a questiim of justice and common hon-
esty. The question, and the only (juestion is, which is the true and valid return f
^Yhich represents truly the will of the people as exi)ressed through the electors ? Iu
the one case politics have all to do. In the other case, if we are honest, politics have
uothing to do. But as I believe Congi-ess (always confining the settlement of this
([uestion within itself) can constitutionally adopt this plan, my opposition to it is that
1 do not think it the wisest and l>est. Then cau 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, iu my judgment, substantially correct.
It looks to only one certificate from a State. If the two houses 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 heretofore said all in regard to that section
I care to say.

The second section, so far as itgoes, 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, antl may again : that is to say, wheie two certificates come up from the
same State, both seemingly of equal dignity and validity. \Yhat are you going to do
about it ? That section reads :

PROCEEDINGS AND DEBATES IN CONGRESS. 591

" That if more than one return sl)all be received by the President of the Senate from
a Sratc piuiKntiiifi; to be the certificates of electoral votes given at the last precedini^
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 ; aud
tJKit 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 ceitificate, then there is no contest, and
that certificate ought to be counted. But suppose one house votes that one certificate
is true and valid, aud the other house votes the other certificate true and valid, then
what do you propose to do about that 1 I asked that question of the Senator from
Indiana The other day, and he replied that in that case the vote of the State would
fall. He dei)lored tliis result, but saw no way then of avoidiug it. That cannot be.
We must give force and efl'ect to every part of this constitutional provision, if this be
jmssible. Justice to the States, to the people, to the whole Union, a. sacred regard for
the peace aud stability of the Union, demand that this problem should be solved.

The clause of the Constitution under cousideration reads:

'' The President of the Senate shall, in the presence of the Senate and House of Rep-
resentatives, opc-n 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 ])reseuted, 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 uncommon thing in legisla-
tures and courts that opinions divide; still, in a judiciously-organized court, or in a
legislature, we get a binding decision of the <iuestiou. So I think we can here.

Clause 4, section 3, article 1, of the Constitution reads:

'• The Vice-President of the United States shall be President of the Senate, but shall
have no vote, unless they be equally divided."

Clause o, same sectimi, reads:

" The Senate shall choose their other oflicers, and also a President jyro 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 —
required by the Cmistitution to be present when the certificates are opened aud the
votes counted, and the President of the Senate is also required to be present, and to
open all the certificates. None others are lequired to be present. In an orderly pro-
ceeding, such as this great occasion demands, a presiding officer over these two organ-
ized bodies, assembled for a connnon purpose — the two bodies that comprise the legis-
lature of this I'nion — is necessary in the due order and eternal fitness of things. When
these two bodies thus act, the senior presiding officer should preside, to wit, the Presi-
dent of the Senate, and this bill recognizes this fact aud 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, rejueseuting States, which, as an organizatiou, can
withdraw in an urdeily manner, and the House, representing the people, which cau in
like manner withdraw. Their deliberations concluded, they leturn and report to the
couimon presiding officer, who is the second officer of 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, aud that is the vote of the House. Suppose the Senate decides
in favor of the other certificate, the result is announced, and that is the vote of the
Senate. Now, these two votes are of precisely equal weight and ecpial dignity. In
all like cases thf vote of the presiding officer decides the question, and so it should be
here, aud, in my judgment, this is the true solutiou. The Senator from Maryland read
the opinion of Chancellor Kent, in sui)port of his position. The opinion read by him,
I think, precisely accords with the opinions I have exiuessed. Chancellor Kent pre-
sumes that, in ihe 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 legis-
lation devolving the couuting 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 ibis same opinion of Judge Kenfc. If, in the absence of legisla-
tion, the President of the Senate could count the vote, then, a fortiori, in the presence
of legislation devolving this duty upon him, (he being part of the Senate, and thereby
of Cong^es^s,) most assuredly, in a certain contingency, he could count the vo e.

Now where the two houses fail to agree it is the same in result as if no law had ever
passed autliorizing them to count the vote, in which case, ai)plying the views of the
distinguished chancellor, the count would fall upon the President of the Senate. The
precedent relied on by the Senator was not a iJiecedeut under the Constitution, but a

592 COUNTING THE ELECTORAL VOTE.

plan adopted to put the machinery of the new Government in motion under the Con-
stitution.

I will recall to the minds of Senators a few facts of history at this point which per-
haps throw some light on the precedent from whicii the Senator from Maryland has
read. Tlie Congress of the Confederation was in session at the city of Philadelphia
in 17l<7, at the same time that the convention was in session. The conventinn, having
close<l its labors, through its yiresident, General George Washington, nuide report
thereof to the Congress of the Confederation. In that report you will lind, over the
signature of General Washington, this recommendation, (and I will read only so much
as pertains to the question before us :)

" 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 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 Gov-
ernment under the new Constitution ; and as Congress ha'd never yet sat, as the Con-
stitution had not been set in action, as the machinery of government had not been
put in motion, the convention which framed the Constitution recouimeiuh'.d to tlie
Congress of the Confederation this mode. The Congress of the Confederation sub-
mitted by a resolution the work of the convention to the States for their raMiicatiou
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 Presi-
dent pro tempore oi the Senate should bo appointed for the sole purpose of receiving
and counting the electoral votes. It was not a precedent under the Constitution, but,
a precedent ado])ted for the very purpose of setting the machinery of tlie Constitution
in operation. Therefore I think that precedent is not ap|)licable 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 Senate; still, while in this excep-
tional case the President of the Senate pro tempore acts iu a double capacity, I do
not think it at all changes the conclusions to which I have arrived.

An objection has been urged that the Vice-President may be a candidate for re-elec-
tion or i'or the Presidency. So may any man or men you select, if they possess the
constitutional ([ualifications ; so that if this proves anything it ])roves too much. In
the argMinent I have made I have not in the slightest degree taken into the account
what may be the effect on parties. I h<ave tried to arrive at a plan constitiitioual,
simple, and most likely to prove satisfactory to the whole people. In coucliiaioii, per-
mit 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 frettdo ii
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 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. Jones, of Florida. Mr. President, I do not come before the Senate to-day with
any plan to remedy this great, difficulty. Much h;is been said here which meets my
aiiproval, and many plans have been proposed for ado[»tion ; but I propose to discuss
the question as a constitutional question, and 1 intend to present to the Senate the rea-
sons 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 loath to admit that
nothing but the strongest reasons should induce us to pass it even if we ha<l the powi-r .
It presupposes contingencies and dangers that can never arise under a healthy admiu-
istration of the governments of the States of this Union.

I believe that ibis bill involves a plain departure from the Constitution, and provides
machinery for determining the will of the people iu elections for President aud Vice-
President not warranted by that instrument.

In principle it does not differ at all from the twenty-second joint rule, so much con-
demned by Senators on this floor. Toat rule authorized 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 givesjuri diction to the two houses of Congress to do the same thing
in a less oftensive manner; for it provides that, if objection be made to the certificate
from any State, the vote 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
return shall be received purporting to be electoral certificates, all such returns shall be

PROCEEDINGS AND DEBATES IN CONGRESS. 593

opened by the President of the Senate ; and it is h^ft to the two honses, ncting sepa-
rately, to say whether any returns from such State sliall be received or not.

Lit us analyze these sections, and see what cases they provide for. The first section
provides for the case of a single electoral return from a State to which objection of
any kind is made by anybody and stated by the President of the Senate. The moment
objection is made this law j^ives to the two honses of Congress authority to settle the
disputed question by rejecting the vote of one State, or of ten States, if the two houses
should concur in such rejection.

The law does not inform us what must be the character of the objection or whence it
must come, in order to justify the exercise of snch an extraordinary power or jurisdic-
tion. Shall the objection be technical or substantial ? 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 ? Shall the objection i>revail for the want of a seal to the
certificate, or other formal requirements, or must it go to the very right and title of
the pei'sons claiming to bo 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 and pleasure of these bodies. I
cannot imagine a case where there is but a single certificate of election in which either
house of Congress, 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 snpposable except in a case of revolution. Tlie Constitution vests in the sev-
eral 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 conformity with the
State laws, the same which govern the election of members of the legislature, governor,
and other local officials. They may be appointed by the legislatures or they may be
elected by the people of the several States.

The view entertained of their duties by theframers 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 govern-
ments, and it was intended to operate over them only in that state. In construing the
Constitution we must look to the view which was entertained by its fiamers of the
powers of the electors. They are to be selected by the States in such manner as their
legislatures shall determine. It was intended that they should vote for whomsoever
they i)leased for the two first offices in this Government.

No person holding any office of honor au.l profit under the United States can become
an elector. No Senator or Representative in Congress can become such. The selection
of those officers was left exclusively to the States, and every question arising out of their
election or ai)pointment was left of necessity with the same authority. The laws of
the States provide the numner in which these persons shall be chosen, and they may
provide also who shall determine in cases of contest and difficulty the peisous who
have been duly elected. Whatever may be the decision of the State authorities, 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 ul-
timate decision between two persons claiming a single office is a right which flows
from the authority, and the authority alone, that orders and controls the election. Will
any one deny that the States cannot provide by law for determining cases of contest
between opposing candidates for the office of elector ? If they can, and the tribunal
fixed by the local law is vested, as it must be, with the right of exclusive jmlgment,
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 decide between them when deterujining the electoral 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 bo an exclusive authority, an authority from which there can
be no appeal.

The Constitution contemplates that all the States of this Union shall alwaj'S be con-
nected with this Government by certain constitutional ties. In the very nature of
things, there never can be hut one government in a State with which this Government
can have constitutional relations, or that can claim recognition from the authorities of
the United States.

5y4 COUNTING thp: electoral vote.

The governments of tlie original States, diflt'ering as they did in many respects, were
all recognized as legal governments, and so were all the governments of the Slates ad-
mitted into the Union afterward. But the trainers of the Coustitution 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 domes-
tic violence too powerful 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 Congress wlieu the
electoral vote of the State was counted ? No, sir. They made it the duty of the United
States to gu srantee to each State a republican form of government, and to protect them
against invasion, and, upon application of the legislature or the executive, against
domestic violence.

It is impossible in the very nature of things that the lawful and rightful goverumeut
of a State cau be destroyed, or a rival power established or put in o[)eratiion, if this
authority vested bj' the Constitution in the United States is faithfully aud 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 provided for in case of threatened danger to the local
government.

It is true that it is not every case of local disturbance that will call for the exercise
of Federal power; but; I do say tliat this is the reuiedy provided by the Constitutiou
for uiaiutaining intact the lawful governments of the States, and to enable them to
fulhll the duties which they owe to the people and to the United States.

What right have we to suppose that there will be two certiflcates from two sets of
electors and two governois? The electors must all be elected under the State laws
aud certitied by the; governors of the States. These laws all provide for the canvass-
ing of the votes by State othcers, who are sworn to perform their duties. The goveru-
ois are all sworn likewise to do their duty and are liable to impeachment if they will-
fully fail to i^eiform it.

This bill looks only to the certiincates of the electors ; but it is manifest that under
an authority to look into the certificate of the elector the right will be claimed, and
may be exercised, to inquire into the election of the electors themselves.

Now, I wi>h to know if gentlemen are willing that either house of Congress, in any
event that can be supposed or imagined, shall go into an investigation of an electicm
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 proper, it would be as constitutional to give
to Congress the power to investigate State elections 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 Coustitution, is just as coaiplete aud perfect aud independent as the right to
elect a governor. The act provides that, if more thau one leturn 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 tlie objection 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, in-
stead of providing that the main question 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
elections take place in all States for legislatures and State officers on the same day that
the election is held for President ; that both elections 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
validity of an election held for electors, you opeu up the whole subject of State elec-
tions 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, aud make the right to vote by
ballot at a State election an empty privilege to be exercised subject to the control aud
censorship of Congress.

Why, sir, under the second section of this bill, either house of Congress can bring
the whole returus of a State election here or can send a committee to the State and
investigate anything and everything they please in connection with a local election.
Yes, sir, aud, in defiance of State laws aud constitutions. Congress can disregard the
sanctity of the State ballot, and cau force the citizen under oath to disclose how aud
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, aud that iu the absence of some provisiou of law the same right

PROCEEDINGS AND DEBATES IN CONGRESS. 595

■will devolve npon the President of the Senate. I deny that this is so. The rif^ht to
dfcide whicli is the true return in the case provided for by the bill, if it means any-
thing, means a right of determining whether or not the electors who made them were
legally elected.

How is this question to be settled? Certainly not by looking at the face of the re-
turns. It can ouly be decided by investigating the primary election. The case con-
templated by tliis 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 com-
ing from two rival bodies of electors.

In the first case the only question would be, who received the majority of the elec-
toral body f But in the other case, and the only case which the second section of this
bill provides for, the question always must be which of the rival bodies whose returns
are before ns 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 iu a State might
exist, but the Constitution did not intend to leave the decision of tlm claims of such
powers to recognition to the judgment of either house of Congress. The President of
the Senate was assigned a simply ministerial duty, to count the electoral votes in the
presence of the two houses of Congress, and, in view of the safeguar<ls provided
against usurpations and illegal governments in the States, it was not thought possible
for any returns to find their way here except such as came from the loc;il authorities of
the States having recognized constitutional relations with this Government.

The United States had pledged all their power to the executives or legislatures of
the States iu order to protect them against illegal authority. The sim[>le recognition
by President Tyler of the charter government in Rhode Island had the etiect of end-
ing the contest in that State between the rival powers. Suppose in that case the Dorr
party had elected j)residential electors and they came here with certilicates, would
there have been any trouble in deciding whether or not tliey shDuld be received ? 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 founded in a great part upon the virtne of
the people. It was not expected, sir, that our rulers would require ptMial 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 otMcers
with perjury. If we have arrived at that point when we cannot trust our highest offi-
cers iu 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 priucii)les of our Constitution.

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 certifi-
cate to which somebody may make an objection, and thus devolve npon the two
houses of Congress the unpleasant duty of deciding the question. It is the second sec-
tion that is so full of danger, in my opinion. It attempts to provide a remedy 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 constitute 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 cer-
tificate 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 npon the
body which undertakes to decide between them. If the decision ot the (piestion is re-
mitted 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 sub-
ject. Now does it not occur to every one that the great source of danger iu this case
lies iu the jealousy between the State and Federal authorities?

If a State should fail to vote or should voluntarily refuse to send here her electoral
returns, 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 resistance, nnless the very clearest grounds and reasons could be given for such
a pioceeding. But, sir, the assumptions of this bill amount to the assertion on the

596 COUNTING THE ELECTORAL VOTE.

part of eacli bouse of Congress of an arbitrary rigbt of rejecting tbe electoral vote of
a State. In tbe event of two retnrns coming bere, tbat one shall be received which
both bonses, acting separately, shall decide to be tbe legal return.

This language is calculated, I think, to create a misconception as to its true mean-
ing. It may seem to imply a duty on the part of each bouse to canvass the vote and
count in the return of the State. This is not the case. The sense of the section may
be stated thus : When two returns are received by tbe 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 re-
•jecticni on tlie part of tbe two bouses of Congress.

There is no cause stated in tbe bill which must be found to exist before the State is
disfranchised. There is no mode of trial pointed out which shall precede the judgment
of the H(juse upon this momeiirous issue. No provisiiui is made for securing to the
State interested an opportunity to be beard before a judgment is rendered against her.
Tbe Senate or tbe House may resolve to do this business in secret, and exclude tbe
world from all knowledge of the grounds of their decision.

The Constitution contemplates tbat the counting of tbe electoral vote and all decis-
i' ns affecting it shall be made under circumstances which place it beyond the power
of either house of Congress to withdraw their proceedings from the public gaze. We
know that when they meet together in the hall of the House of Representatives to wit-
ness tbe counting of the electoral vote, they are beyond tbe operation of tiiose rules
and jtrinciples which were intended to control them in their legislative character. The
two houses can do no legislative l)nsiness together, and the whole legislative power of
the Union is vested in them in their separate character as Senate a,nd House of Repre-
sentatives.

As I said a wbile ago, it is insisted tbat the power of decision proposed to be given
by this bill is tbe same that may now be exercised by the President of the Senate in
the emei'gency slated; that this right Hows 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 tbe Senate has a rigbt under the Constitution to decide all questions inci-
dent to tbe counting of the votes, how can Congress take it from him and vest it in an-
other body ? Upon tbe other hand, if no power of rejection is vested in the Presi-
dent 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 Consti-
tnti(m to vest this ])ower iu any body or officer can furnish authority for the two houses
of Congress to confer it upon themselves ?

Tile Constitution has provided the mode and manner of returning and counting the
electoral votes. It took jurisdiction of the whole subject. Its sense and meaning are
to be collected as well from what it has ouiitted as from what it contains.

When the great case of Gibbon (•*■. Ogdeu was before the Supreme Court of the Uni ted
States, Chief-Justice Marshall, for a time, was very greatly embarrassed in his judg-
ment by the powerful arguments that were made at tbe bar.

Mr. Eminett, one of the distinguished counsel, maintained tbat, while tbe Constitu-
tion vested Congress with tbe power to regulate commerce, so long as Congress did not
exeicise the whole power, it was competent for the States to legislate in respect to any
branch of tbe subject not provided for by some positive legislation of the General
Government.

Mr. Webster replied (and this was the argument that impressed itself most upon the
uiind of the great judge) th;it. while there were some powers iu the Constitution tliat
were not in their nature exclusive and were not inconsistent altogetiier witli legislation
on the part of the States, still the commercial power was exclusive, 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 Constitution.

aNow, sir, there are some parts of the Constitution to whicli this argument can fairly
be applied when tbe question is whether a particular power is vested in Congress by
the Constitution. I know that Congress is invested with the power to pass all laws
which may be necessary and proper for carrying out the powers vested iu tbe Govern-
ment or any officer or department thereof.

The authority proposed to be given to the Seuate 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 contaius the delegated powers ou this
subject of counting the electoral v tes. All that the Constitution says iu regard to
the ele(!toral vote is to be found embodied in tbe second article. That article provides
the mode and manner of returning and counting that vote. If it was intended that
Congress should exel'eise authority over this subject by genera! legislation, why is it
that the Constitution, instead of giving as iu other cases a general power to Congress,
has anticipated such legislation by a lengthy provision specifying particularly the
manner in which the voice of tlie electors shall be ascertaiued ? It was not the inten-
tion of tb« Constitution to leave to Congress the power to determine how the Presi-

PROCEEDINGS AND DEBATES IN CONGRESS. 597

dent and Vice-President should be elected. This is clearly indicated by the express
words of tbe first section of the second article. After vesting the executive authority
in these officers, it provides that they shall be elected as follows:

'•Each State shall a))point, in such manner as the legislature thereof may direct, a
number of electors equal to the whole number of Senators and Representatives to
wliich the State may be entitled in the Congress; but no Senator or Re[)reseutative,
or person holding an office of trust or profit under the United States, shall be appointed
an elector."

After having stated in detail how the election 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 choosing the electors, and the day on
which they shall give their votes ; which day shall be the same throughout the United
States."

If the framers of the Constitution had supposed that Congress, under the general
power to pass all laws necessary and proper to execute the powers of the Union, could
d(itermine the time of choosing the electors and tlie day on which they should vote,
they were certainly at fault for having encumbered the Constitution with this unneces-
sary provision.

Thiis clause shows that they weighed this subject with great care, and that they
thought it necessary not to leave to Congress any implied i)ower over the election of
President.

Now, sir, tbe power to decide whether the votes of two or ten States shall or shall
not be counted is a far more important and delicate power than that given to Congress
in exju'ess terms to fix the time of choosing the electors. And am I not warranted in
saying that, if the Constitution intended that Congress should have any more extended
power than is conferred by this clause, it would hav^e said so in plain language?

The right of Congress to exercise implied powers cannot be doubted. Ent it cannot
be denie<l that, in exercising imj)lied jjowers, we are limited by the pur|)()ses tor which
they were granted for carrying into execution the expressly delegated authority of the
Constitution.

We may i)ass laws which are necessary and proper for carrying into execution the
foregoing powers and all other powers vested by the Constitution in the Government
of the United 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 be-
tween 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 apprehended by this bill and the several
amendaunts proposed call for some remedy. And while I am well satisfied that we
have no authority to give to either house of Congress, or to any other body or tri-
bunal, 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 tile lawful governments in the States as to render the difficulty which must
flow from two returns impossil)le.

Now, sir, the guarantee clause in the Constitution was intended, first, to protect each
State against invasion ; secondly, against a usurpation of its government by prevent-
ing the overthrow of a republican form of government; 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 po pie
of each State, independent entirely of their State organizations. It was apprehended
that the ambition of their local rulers, yielding to the infiueuce or seductions of for-
eign enemies, might, as in tlie ancient confederacies, induce them to place the people
under a foreign yoke and subvert their local governments. Hence the right to inter-
fere 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 dimiestie violence, which was intended to pro-
tect the local government, can only be made etiectual when application is made indue
form by the organs of such government — the legisla uie or the executive.

The object of the last guarantee was to secure to each State a single lawful govern-
ment, 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 relations toward this Government, such a difficulty as that provided for by
this bill cannot arise.

Congress, as the representative of the sovereignty and power of the United States,
is charged with the high duty of carrying out these guarantees. It is beyond doubt

598 COUNTING THE ELECTORAL VOTE.

its dnty to secure the rightful government of each State against snch violence as may
])reviMit its authorities fiiltilliug their duties toward the United States by electing
Senators and electors.

When there are two legislatures and two governors, Congress must decide vrhich of
them is legal. This is what Chief-Justice Taney called " political recognition." And
when this is done, the acts and proceeilings of the authorities so recognized, in the
language of the Supreme Court, bind all the departments and the officers of this Gov-
ernment.

The Supreme Court in the case of Luther vs. Borden decided that it was competent
for Congress 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 interposed to protect the
lawful government of a State. Why may not such a tribunal be designated now ; one
which is placed by the character of its judges above all suspicion of partj'^ bias or prej-
udice, and to which the whole country can look up with confidence when difficulties
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. Morton] says it is judicial. I have but this to say, in concluding 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 snch 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 aud
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. Merkimox. 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 Constitution. No judicial function belongs to this body except in the single case
■where the Constitution invests it with such power.

Mr. Mehrimox. 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 connec-
tion with the c(mnt.

Mr. Jones, of Florida. I admit that the case of deciding whether a person is enti-
tled to a seat on this floor or in the other House is an exception, because the Consti-
tution has made it an exception, and we m;iy, in determining upon the right of a Sen-
ator to a seat on this floor, exercise judicial functions ; but when it comes to the dele-
gating of judicial power generally, 1 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 Jer.sey [Mr. Frelinghuysen] to the amendment of the
Senator from Tennessee, [Mr. Cooper.]

Mr. Eaton. Let the amendment be read.

The Presiding Officer. The amendment will be reported.

The Chief Clerk. The first amendment was offered by Mr. Cooper, to add to the
second section these words :

The pending amendment of Mr. Frelinghuysen 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 iu the Capitol or other place of meeting shall act
in his place."

The Presiding Offickr. The pending amendment is the one oiiered by the Senator
from New Jensey.

Mr. Stevenson. I ask for the yeas and nays on that amendment.

The yeas and nays were ordered.

Mr. Johnston. I thought the amendment 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 ofi'ered by the Senator from Tennessee.

Mr. Randolph. I think the Senator, and perhaps the Senate, is under some misap-

PROCEEDINGS AND DEBATES IN CONGRESS. 599

prehension as to which ainenclment is pending. The question is not on the amend-
ment offered by the Senator from New Jersej^ 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, Burnside, Cameron of Pennsylvania, Conk-
ling, Dawes, Ferry, Frelinghuysen, Hamlin, Howe, Logan, McMillan, Morrill of Ver-
mont, Morton, Packlock, Robertson, Sharon, West, and VViudom — 20.

Nays — Messrs. Bayard, Bogy, Booth, Bontwell, Christiancy, Cooper, Davis, Eaton,
Goldthwaite, Gordon, Ingalls, Johnston, Jones of Florida, Kelly, Kernan. Key, Mc-
Creery, McDonald, Maxey, Merrimon, Mitchell, Norwood, Randolph, Ransom, Sauls-
bury, Stevenson, Thurman, Whyte, and Withers — 29.

Absent — Messrs. Alcorn, Cameron of Wisconsin, Caperton, Clayton, Cockrell, Con-
over, Cragin, Dennis, Dorsey, Edmunds, English, Hamilton, Harvey, Hitchcock, Jones
of Nevada, Morrill of Maine, Oglesbj^ Patterson, Sargent, Sherman, Spencer, Wadleigh,
Wallace, and Wright — 24.

So the amendment to the amendment was rejected.

The Presiding Oeeiceh. The question now recurs on the amendment offered by the
Senator from Virginia [Mr. Johnston] to the amendment otifered bj^ the Senator from
Tennessee, [Mr. Cooper.]

Mr. Johnston. I ask for the yeas and nays outhat amendment.

The yeas and nays were ordered.

Mr. Randolph. I suggest that the amendment had better be read.

The Phesidixg Ofkicek. The Clerk will report the amendment.

The Chief Clerk. The amendment offered by Mr. Cooper 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 Constitution when the election devolves upon the House, shall
decide to be the true and valid return."

The amendment to the amendment, offered by Mr. Jobnstor, is to strikeout all after
the word " and," in the first line of the amendment Just read, and insert :

" If the Senate should vote for counting one certificate and the House of Represent-
atives another, the joint meeting of the two houses shall finally determine which shall
be counted by States, the representation from each State, including the Senators there-
from, having one vote; but if the representation 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. Frelinghuysen] 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. Cooper.] I believe, however, the proposition 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 conjunction with the Senators, to be the most objectionable plan
that could be adopted.

Mr. Stevenson. I am aware, Mr. President, of the difficulty involved in the solution
of this question, nor do I undervalue its magnitude. I have given to its consideration
the time and reflection which its imi^ortance demands. I have sought light in the
ways of our fathers in the early Congresses. I have listened with great interest to the
very able discussion which the subject has evoked in the Senate ; and I frankly con-
fess, sir, I have been unable to reach the conclusion that any of the legislation pro-
posed by the pending ameudmeuts is sanctioned by the Constitution.

I concur in the able argument of the Senator 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 power of receiving, opening, and counting the votes for President as
returned by the electoral colleges and of declaring the result of that election. The
Constitution declares that —

" 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 per-
son having the greatest number of votes shall be the President, if such number be a
majority of the whole number of electors app )inted ; and if there be more than one
who have such nuijority, and have an equal number of votes, then the House of Rep-
resentatives 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. 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 be the meaning, if not the very letter of the Constitution. Let us
look to it as I have quoted it, words touching the dutj' of the Vice-President. The
provision on this subject must be looked to as a whole and so construed as to make all
3S X

600 COUNTING THE ELECTOEAL VOTE.

its parts lijirmonize. The Constitution provides for the election 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 be
entitled, but with this important exclusion that no Senator or Representative or per-
son holding!; an office of trust or profit under 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
number 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 sin-
gular and somewhat 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 guiirded from congressional interference in forbidding any I'ederal officer to
become an elector. When these electois had been elected bj' the people and cast their
votes in such manner as the legislatures of the respective States might by law declare,
then tlie results of the respective ballots by these electors in each State for President
and A^ice-President were transmitted to the seat of Government, directed to the Pres-
ident of the Senate.

Then come the provisions of the Constitution already quoted by me above, pre-
scribing the duties of the President of the Senate touching these returns. No one
doubts that the President of the Senate is to break the seals of the certilicates from
the electoral colleges as to the votes for President and Vice-President. No one doubts
that this duty is to be done in the presence of the Senate and House of Representa-
tives. And the votes shall then be counted. That is, the tellers are to put down the
Tvhole 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 by him. This opening and counting by the President of the Senate is to
be done without interferei.ce and without restriction, as I think, from any quarter.
This is what I think is the true language and intendment of the Constitution.

The President of th" Senate shall, in the presence of the two houses, open all the
certificates, and the votes shall then be counted. By whom ? Clearly by him to
-whom they were directed ; by 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 i f 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 Presi-
dent of the Senate whether any one had received a majority of the whole nitmber of
electors appointed, for President and for Vice-President. If so, then the persons
receiving such majority for President and such majority for Vice-President were to be
declared 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 not use the words
" by the President of the Senate " after the words " shall then be counted," that the
two houses of Congress 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 Con-
gress are invested by the Constitution with any such power. I do not believe that
the framers of that instrument ever intended that Congress should have any power or
jurisdiction whatever over the certificates of the electoral colleges. Neither the
spirit nor letter of the Constitution clothes them with any such power. No provision
seems to have been made for a contested election of President or Vice-President by
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 contested election, I do not believe that they
would have intrnsttd it to Congress. They were careful to guard all members of Con-
gress and all Federal officers from being eligible as electors.

The very vice of the legislation proposed by these amendments is to give to Con-
gress 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 Consti-
tution 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 dotibts the power of the President to annotince 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
mu!^t announce this r. suit. It is but a direct legal implication of precedent words. So
I insist that the words "shall then be counted," following the words empowering 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 countin|

PEOCEEDINGS AND DEBATES IN CONGRESS. 601

amouuts to uotbing more or less than the emimeratiugof 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 colle-'es.
He merely ascertains the action of these electors and announces it. If no one has re-
ceived a majority of all the electors appointed in the several States, then the House of
Representatives is to elect the Px'esident, 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 we 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 Constitution providing
for a contested presidential election is proposed and adopted. I may be blindly in error
in despite of my efforts to obtain light, but I see nothing but mischief in these amend-
ments. I see uo warrant in the Constitution for their enactment.

I votefl against the amendment of the Senator from New Jersey, [Mr. Frelinghuysen, |
not only because we, in my judgment, have no constitutional power to select an arbitei
to decide a presidential election, but for reasons of obvious impropriety if the powei
existed.

It might so happen that the power of the Supreme Court might in some extreme case
be invoked to settle judicially the title of an incumbent elected by the people to the
Presidency ; but, the certiticates of the electoral colleges 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 Supreme 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 verj^ probable — where the
people had clearly elected a President of the United States and the certiticates showed
a clear majority 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 result of the vote of the
electoral colleges, and in presence of the Senate and House of Representatives at-
tempted, for auy cause whatever, grossly to violate his trust by fraudulently with-
Lohiing the, certificates with a view of defeating the popular voice, that there might
be relief 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 jiossess such power.
The very fact that such jurisdiction is barely possible is enough to defeat the amend-
ment of the Senator from New .Jersey.

Mr. Howe. I want to ask the Senator to what debate he alludes.

Mr. Stevensox. I think it was the debate in February, lt;57, on the election of Bu-
chanan and Breckinridge, wheu 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 Presi-
dent by the people in case of wrong or fraud. I do not remember that the statement
was denied, although it may have been.

Mr. President, I deny that the power of Congress to witness the counting of the
votes confers any power whatever upon that body to control the election of President,
to correct auy errors of the electors by exclusion, or to regulate a contested presiden-
tial 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 certiticates and count the votes in the presence of the Senate and House of Repre-
sentatives.

Let us stick to the precedents of the early and better days of our fathers. Joh^
Laugdou was elected President of the Senate especially to open aud count the votes
for President and Vice-President. For lifty years we went along under that practice,
without mischief or bad results. Lot us adhere to it. Let us not exercise doubtful
power.

Mr. President, I will never believe, I cannot consent to believe, that any Vice-Presi-
deut or any President of the Senate will ever degrade himself, dishonor his country,
and falsify his official vow by any improper tampering with returns aud imposing on
the people of the United States by fraudulently defeating the election of auy one
legally elected President of the United States. If he did, he would promptly be im-
peached and hurled from oflice.

Mr. Maxev. 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 tempo^-^,
and therefore not liable to impeachment ?

Mr. Stevenson. I suppose if he was President pro tempore he would discharge ail

602 COUNTING THE ELECTOEAL VOTE.

the dtities of Vice-President. Tlie language of tlie Constitution is, the President of
the Senate.

Mr. Maxey. But I ask if be would be liable to impeachment under that decision.

Mr. Stevenson. I do not understand the Senator.

Mr. Maxey. In the Blount case it was decided that a Senator is not liable to im-
peachment. Suppose tlie President of the Senate is a President ^^ro tempore; as a mat-
ter 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 pos-
sible case. If not liable to impeachment, he would be subject to punishment civilly
and to popular degradation. What ofienses of the President of the Senate are impeach-
able is a question which I decline to pass upon without due consideration ; but the
Vice-President of the United State, who is usually the President of the Senate, is sub-
ject to impeachment, and he is the official to whom we look and to whom I have re-
ferred. If Congress possesses the power to legislate on the returns of a presidential
election, why may not Congress determine who has been elected President of the
United States? Why may not Congress then exclude States on some alleged irregu-
larity ? Where, if this power be legislative, is it to end ? The Constitution makes
the House of Representatives, voting by States, the electors of President if no candi-
date 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 exclude
certificates of electors under its constitutional 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 beauti-
fully the action and construction claimed by me have worked. I am unwilling to
change it. I will not anticipate danger. We must trust somebody. It occurs to me
that the safest and wisest course to pursue is to adhere to the precedents which for
sixty years guided our fathers in the selection 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. TnuRMAN. 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 looking at any usage under the Constitution to suppose that the power of counting
the votes is conferred upon the President of the Senate, is almost past my com prehen-
sion. It has often been said that the franiers of the Constitution, and especially that
most distinguished man in letters, 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 aud 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
Eepreseutatives, open 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 Kepresentatives, open all the certificates and
count the votes?" That would have been a briefer expression than is u>ed. That
would have been an expression free from all ambiguity. That would have been an
expression in 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 if nothing of the sort. It is simply said :

" The President of the Senate shall, in the presence of the Senate aud House of Rep-
resentatives, open all the certificates " —

And then it is said —
"and the votes shall then be counted."

Who is there who can say that the Constitution declares in express terms who shall
count the votes? When it simply says, " and the votes sliall 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 declares by
whom the votes shall be counted ? Manifestly there is no declaration on that subject.
Manifestly it is not declared by whom the votes shall be counted. What is the conse-
quence? These votes are to be counted, for they concern the election of the Chief
Magistrate 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 uo declaration by whom they shall be counted, I ask any law^-er in the

PROCEEDINGS AND DEBATES IN CONGRESS. 603

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 Con-
gress—

"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 Uuitel States, or in any department or officer thereof ?"

And, without that clause in the Constitution, does not every one know that of ne-
cessity where a power is conferred upon a government or any department of a govern-
ment \y a written constitution and the mode of exercising that power is not pre-
scribed" that mode is to be pr.^scribed by the law-making power ? Without that ex-
press provision in the Constitution, how could it be doubted that the law-making
power is to supply the mode of ascertaining 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 tor him, how can that
be ? Suppose 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 other 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 de-
cided it against Wisconsin, would not Wisconsin have been deprived of her voice in the
presidential election ? Take any other case that you can suppose, and if you give this
one man this power, may you not deprive a State by this 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 liere. If yon give the power to decide
that question to one man, the President 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 1

How, tlien, 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 the Chief Magistrate ?
No, sir ; give this power to whom you please, to one man or a thousand, it may be that
the people of the State will nnjustly 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
matter 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 f He may say that the return does not show that the electors voted by ballot,
and in his judgmentthat 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. TnuRMAN. But, Mr. President, there is something more, for this goes deeper.
We have no Vice-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 jjro tempore whenever it pleases. It may change him from day
today. Now suppose 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 Repub-
lic. 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
knowledge will decide that question against their party wishes. I make no accusation
against the majority 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 I said the
other day, that the greatest prayer our race has inherited is "lead us not into tempta-
tion." Besides, sir, what inducements would you have to change your presiding offi-
cer 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 inter-
fere ? 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 along
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 controlled in the exercise of that
quasi-judicial iiower, or that power not quasi-judicial, but really judicial in its nature,
by a uiaudanius of any court, is to me the most astonishing proposition. 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 is given
under that clause conferring original jurisdiction upon it, which says that it shall have
original jurisdiction of coutroversies 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

604 . COUNTING THE ELECTORAL VOTE.

compel the President of the Senate to count the vote of the State of Louisiana foe A.
B. What is the answer to that mandamus? The President of the Senate answers, "I
have counted it for CD.; the tliiuoj is done; my function lias ceased; I an\ fmwt us
offcio in the business." 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 ; supiiose, for instance, that Kelloog 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 Louisiana
to apply for a mandamus?

And, sir, when is that question to be decided ? Certainly the Constitution requires
the count of the votes of the presidential electors 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 circuit court of the United States or
in the Sujjreme Court of the United States, in order to find wliether the President of
the Senate correctly 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 decree, how are yon going
to turn the incumbent out? Suppose that the incumbent has a majority of both
bouses 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 ? Tlie man
who is declared to be elected must be inaugurated. You propose, then, a litigation
after he is inaugurated, for there cannot be an interregnum, and that litigation may
last for years, and when that lit'gatiou ,is determined and the decision 's against the
man who is iuaugur.ited, where is the power of the Sun-erne Court to enforce it ?
Where is its army? Where is its treamre ? How can it enfor e it, and especially how
can it enforce it if Congress is of the same political party wiMi the President in pos-
session ? Is it possible that our forefathers, those whom we have been accustomed to
venerate as men the wisest in the history of nations, as the fountain of government,
as men before whom the Solous and Lycurguscs of the world must hide their dimin-
ished heads — is it ]U)ssible that they have franu^d such a government ? I do not believe
it. I believe that the Constitution is perfectly framed. I believe that our forefathers
did not foresee the contingency that has happened. I believe, however, that tlie Con-
stitution 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 language of the Constitution does not cover. That is the
wonderful merit of our Constitution. It was well expressed by Chief-Justice Marshall
when, in answer to an argument that the frainers of the Constitution never contem-
plated a particular case, he said, "It is not sufficient to negative a power that the
framers of the Constitution did not contemplate 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 intended 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 counted ; " it admits of no delay. I find it in the further fact
that if there is no choice by the people, " the Ho)ise of Representatives shall immedi-
ately 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 mem-
bers of Congress, and therefore I have been in favor and am in favor yet of so decid-
ing it either by the adoption of the proposition of my fnend from Virginia, [Mr. John-
ston,] 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 proj)Osed by the Senator from Virginia. I am
in favor of deciding this vexed question.

I know very well that the decision can only be for a time. I feel as strongly as any
Senator 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 tbat these electors were to
make the choice of President 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 pi-esidential election whicli they now enjoy, and I believe
it ought to be done. I believe that some mode, clear and specific, free from doubt,
ought to be constitutionally adopted for the counting and verification of the votes for

PROCEEDINGS AND DEBATES IN CONGRESS. 605

President and Vice-President. But, sir, we cannot make a constitntion in a day; we
cannot amend tlie Constitution in a day. Tbe necessity for action is a present neces-
sity ; it is npon us now, and tlie question is, sliall we exercise that power wiiich tlie
Coustitntiou does confer upon us, to provide for ascertaining the voice of the people
according to tlae Constitution as it is ?

Tliese considerations, and the firm belief that there is danger unless we settle this
matter, 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 attempt to solve it.

One word more, sir, and I have done. The Senator from Maryland read a passage
from Kent. With -^reat 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 decla-red."

Every one must admit that. Then Kent goes on to say :

" In the case of questionable votes and a closely-contested election, tliis power may
be all-important ; and I presume — "

It is a mere presumption —
"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 tlie 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 ])rovision on the snbjeet," which implies that if there
is legislative jirovision on the subject the President of the Senate does not thou count
the vote and determine the result. Tha*^^ is what he means.

Mr. Wkyte. May I ask the Senator from Ohio whether Chancellor Kent I'efers to
legislation in regard to organic or statute law ?

Mr. TiiuiiMAN. Statute law, plainly.

Mr. Whyte. I do not think so.

Mr. TiiURMAN. My friend, I think, will 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 of the country, not so much for their great grasp and breadth as for the won-
derful clearness that marks them. Would he have talked in ambiguous language on
this subject ? If the Constitution had said that the President of the Senate was au-
thorized to count the votes, if the Constitution had conferred on him alone the author-
ity 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 declared."

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, iu the absence of legislation, he pre-
sumes the President of the Senate declares the result, clearly recognizing that the
law-making power had control over the subject.

Mr. President, I beg pardon for having occupied the time of the Senate again on
this subject. I believe I promised the other day that I should say no more about it.
I once more aftirm, and I affirm it in all sincerity, that if it were not for the real respect
I entertain for the legal and statesmanlike opinions of my friends from Maryland and
Kentucky, I should not have said one word to-day.

Mr. Stkvenson. I desire to add a solitary additional word. I had no purpose what-
ever of entering into the debate. I was not prepared to do so. I rose brieiiy to state
before the vote was taken the ground upon which my opposition to these amendments
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.
Thurman,] for whose opinions I have the highest possible respect and in whose judi-
cial 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 th^uk it profoundly strange that any human intellect should seriously
persuade itself tiiat the President of the United States was the constitutional instru-
mentality through which the votes of the electoral colleges iu 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
expression of wonder on his part for opposing views on any part of the Federal Con-
stitution. It is an instrument whose opposite constructions have arrayed in fierce op-
position parties and men from the moment it was ratified by the States. The fathers
who framed it have difiered widely aud warmly as to the true coustruction of many of

606 COUNTING THE ELECTORAL VOTE.

its provisions. That antagonism of construction still continues. It seems to me some-
what stianj^e that when the views entertained by the Senator from Maryland and my-
self of the precise clause of the Constitation which we are discussing was sustained
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 think the language of the Constitution
not less than the early precedents fully sustain us.

John Laugdon 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. Thurmau] won-
ders that any human intellect should conceive was conferred by the Consti-
tution on the President of the Senate. The message sent from the Senate of
the United States to the House of Eepreseutatives by Mr. Ellsworth was that
■John Langdon had been elected President for the express purpose of opening the cer-
tificates and counting the votes of the electors of the several States in the choice of
President and Vice-President of the United States. Oliver Ellsworth, who bore the
message, and John Langdon, whom the Senate made its President, and who did open
and count the vote for President 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 my-
self; and yet in their time no wonder was expressed in any quarter as to theirconstruc-
tionof 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 certifi-
cates of the electoral colleges of the vote for President and Vice-President of the United
States was sanctioned 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 certi-
fying the votes for President and Vice-President, and which is assered in the pending
bill, was, so far as history and precedent go, absolutely unknown to the framersof the
Constitution and to the members of the early Congresses. Tliis is a most astounding
fact if any snch power existed. If there is any fact patent in the Constitution it is that
Congress was exjiressly exciided by the letter and spirit of the Constitution from any
power to interfei"e with or coatrol the certificates of the electors certifying the votes
for President and Vice-President of the United States. The Senate and House of Rep-
resentatives 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 an-
nounced the result of the election as evidenced by these certificates of the electors.
What is there then to astound or surprise the Senator from Ohio that any Senator now
on this floor should feel disposed to follow the fi'amers of the Constitution in the con-
struction and practice under this clause of the Constitution 1 The wonder, it seems to
me, should be how so acute a lawyer anfl orthodox a constructionist as the Senator from
Ohio [Mr. Thnrman] undoubtedly is should abandon the old landmarks of the fathers,
ignore their usage of construction 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 Repre-
sentatives"—

In their presence, do what?
"open all the certificates, and the votes shall then be counted."

Mr. Thurmax. Allow me to interrupt my friend.

Mr. Stkvenson. Certainly.

Mr. Thuuman. I ought to have mentioned, perhaps, that the reason of those proceed-
ings in the First Congress is very plain. The Constitution provides that the Vice-
President 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 reconiniendatiou of the convention, which Avas read by the Sena-
tor from Maryland, John Langdon was selected President of Senate for the sole pur-
pose of opening and counting the votes for President and Vice-President. The lan-
guage 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. Stevexsox. 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 Con-
stitution is, the President of the Senate shall open, «fcc.; and the olfice of President of

PROCEEDINGS AND DEBATES IN CONGRESS. 607

tbe Senate is an office created by the Constitution as much as the office of Vice-Presi-
dent. It was the President of the Senate — whether Vice-President or President pro
tempore — who is empowered and designated to open and count tlie votes. He did it in
a ministerial capacity. He had no discretion. He was the instrument of the Consti-
tution 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 withhold one
solitary certificate sent to him by the electoral colleges. The Senate and House of
Representatives were to witness the discharge of this constitutional duty by the Pres-
ident of the Senate. The tellers were to record the votes for President and Vice-Pres-
ident evidenced by these certificates, and the President was then to announce the re-
sult. If the certificates showed that a majority of all tbe electors of all the States had
voted for one man as President, he was then to be declared elected by the Piesident.
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 opening, 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 Vice-President, as opened, counted, and announced by the President
of the Senate. That result, the fact disclosed by those certificates, untouched, unin-
terfered 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. Thurman] 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 result of the electoral colleges in the States in
electing President and Vice-President.

The Senator from Ohio attempted to deduce the power from that clause of the Con-
stitution coni'erringon Congress all authority, legislative authority, to efl'ectuate cer-
tain granted powers. That clause has no application whatever to the subject of the
election of President and Vice-President by the people of the States. Congress can-
not interfere with that subject. If there is a tie in the electoral college or no candi-
date 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 President and Vice-President. Whenever
such a power is usurped and exercised then our constitutional liberty becomes extinct.
Neither house of Congress can reject the vote of a State, singly or combined. The
only constitutional function assigned to Congress is to witness 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 the result as
shown by the certificates of the electoral colleges is correctly reported and correctly
announced.

Had Congress the power to count and regulate these returns, then Congress can reg-
ulate the election of President and Vice-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, the grant and exercise of such a power ?

When I look to the language of the Constitution, or to the coutemporaneous action
of the early Congresses, when the President of the Senate alone exercised this power of
opening 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 distin-
guished 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 sanc-
tions this amendment. I confess I have never seen nor heard it. The language and
precedents of the early Congresses are all against the existence or the exercise of so
dangerous a power.

Is that circumstance entitled to no weight ? Are we to overturn all the rules of con-
struction which loolc to the opinions and contemporaneous action of those who framed
the Constitution and put the Government in operation as evidence of its true intend-
ment and meaning ? Is action of Congresses for fifty years in allowing the President
of the Senate to count the votes to be utterly disregarded ?

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 spectators, to witness the fairness and accuracy of the transaction." What
transaction I Opening the seals ; counting the vote of the electors in every State as

608 COUNTING THE ELECTORAL VOTE.

certified by tbeir colleges to the President of the Senate, as the sole instrumentality
■which the Constitution desijjnates for the discharge of that duty. If this power be
possessed by the two houses of Congress as a legislative power, it must follow tliat the
power to correct and to revise, to set aside and to add t >, 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 powt-r to count and control
the returns of the electoral colleges.

Mr. Whyte. Will the Senator from Kentucky allow me to make a suggestion f

Mr. Stevexsox. With the greatest pleasure.

Mr. WiiYTE. It is a remarkable fact tliat in tlie convention the proposition origi-
nally agreed upon was that the President of the Senate should, in the presence of the
Senate, open the certificates, and the votes should tlien 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 Representa-
tives" were j)ut 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 certificates should be opened and counted in the presence of the
Senate and House of Representatives.

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 vote certified by the electoi-s to him. Chancellor Kent tells us the House and Sen-
ate were to be spectators 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 colleges in voting for President and Vice-President.
The President of the Senate opened and read the returns. The tellers recorded the
votes.

It is with extreme deference that I find myself differing on a question of constitu-
tional 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 constrained to believe the bill wholly unconstitutional.

I agree with my friend from Ohio that human nature is not perfect. There may be
dangers and difSculties that await us whatever construction shall prevail. I can see
more from my stand-point as likely to flow from his construction than from mine.
Nothing so a|5palls me as to hear the honorable Senator from Ohio say that Congress
possesses the constitutional i)Ower to count and I'egulate 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 danger to free
elections.

Mr. TiiunMAN. I beg my friend to allow me to ask him bow he will avoid that by
allowing one man to analyze the vote.

Mr. Ste\^p:nson. I reply that if he is the sole instrumentality named in the Consti-
tution 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 disregard that mandate of the Constitution. It has operated well in 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 juris-
diction issuing a mandamus.

Mr. TnuKMAX. 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 memorable 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 vs. 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 mandate of the Con-
stitution 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, but the plea was overruled. The court held that they possessed the power to

PROCEEDINGS AND DERATES IN CONGRESS. 609

issue the writ against Dennison as governor of the State of Oliio, who they held was in
(lefanlt in not surrendering the fugitive to the governor of Kentucky. They decided,
however, that they luid no power to coerce a State or its governor.

I will not say that the Supreme Court of the United States would or would not under
take to require the performance of a clear ministerial duty by an ofticer whom the
Constitution of the United States has named and designated for receiving, opening,
and counting the votes of the electoral colleges for President and Vice-President. I
will never allow myself to believe that the President of the Senate, elected of any po-
litical party, will be so far recreant to his duty as to require the exercise of such a judi-
cial poxver. I will never believe it. If such an instance should ever occur, I have no
doubt a remedy will be found. Therefore 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 future. If it does, I neither asseit nor deny the power of the judiciary to afford
relief by a proper correction. The danger of abuse is more likely to occur by allow-
ing Congress to interfere with the returns of the electors of the States. Wo 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 con-
clusion. Jacob Collamer in his time was regarded as a pretty good lawyer; he was
primus inter pi- im OS before any judicial forum, and as a leading and prominent Senator
from Vermont for many years in this chamber he was regarded primus inter pares. He
construed this clause, in 1857, as I do. Ho thought the President of the Senate could
alone count the votes of the electoral colleges. I re^ieat, 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 unexpectedly and reluctantly into this debate.
Now I liave spoken hurriedly and without preparation. I have no feeling on the sub-
ject whatever. I have tried to gain light from my distingnished friend from Ohio [Mr.
Thurnuvn] to guide me in my vote on the pending bill. I have listened to him atten-
tively. His learning, his clear, discfimiuating 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 donbtfnl powers or seek to clothe Congress with un-
limited discretion 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
wituesses of that solemn and august ceremony in which he only announces to the Sen-
ate and to the House of Representatives 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 polit-
ical 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 staiuT where we are. I see possible difficulties,
no matter what Congress shall do. It is impossible to guard against possible danger.
Let us adhere to the limitations of the Constitution and seek to restrict, not to enlarge,
conj;ressional power.

Mr. Wn HEiis. Mr. President, at the risk of being very presumptuous, I propose to say
a word or two in the discassiou of this question. I am no lawyer, and consequently
do not propose to quote any legal authorities for or against any proposition which I
maj' advocate ; but I am inclined to take what we call in our country a plain, common-
sense, plantation 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 jiaragraph and the same sentence to prove
identically opposite propositions.

I have listened lij^ith great attention to the whole of this discussion. When I first
suggested the difficulty which presented itself to my mind upon reading the bill as it
was proposed by the committee who reported it here, I thought that it was a manifest
defect ; that the bill provided no agency by which the decision 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 dem-
onstrated that the objection was well taken ; because it is admitted by a large proper-

610 COUNTING THE ELECTORAL VOTE.

tion of those who have discussed the question that some agency or other should bo
provided, if indeed it does not already exist, for the coutiugency which the second sec-
tion pro}>oses to meet.

Now, the discussion has drifted off into two great channels, if I may so express my-
self. One is upon whom the constitutional right devolves to count the vote of ordi-
nary elections. The other is the proposition for which the amendmeut 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. Whyte] was, to my mind, almost con-
clusive 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 of that specific provision, we were there-
fore to assume that the power did not exist there, but that it existed to a much greater
degree with the law-making branch of the Government, I think is defective in this,
that while the ministerial agency of the Vice-President is invoked by the Constitution
to a certain degree in the ceremonial of deciding this question, to wit, in opening the
vote, and while it is true that it says that vote shall then be counted, without specify-
ing that the Vice-President shall count it, there is not one word of the agency provided
by the Constitution which shall be played by the legislative branch of the Government
further than that they shall be then and there present. No ministerial function uuder
the Constitution devolves upon them at all. They have no right, so far as the Consti-
tution shows us, of touching the returns in any manner, shape, or form. When I take
this fact into consideration, coupled with the additional circumstance that clearly at
the first meeting of the Senate and House of Eepresentatives after the adoption of the
Constitution the President of the Senate did not only open the vote but count it, and
the additional fact that at the next presidential election the same duty was performed
by the same officer, I think the objection of the distinguished Senator from Ohio [Mr.
Thurman] can scarcely hold good when he asserts that it is a most remarkable exhi-
bition of the wonderful obliquity of intellect on the part of any person to suppose that
under the Constitution the Vice-President was intrusted with this power.

The Senator with his usual ability brought to liis aid the force of the argument
based on the primary action under this Constitution by asserting that the then Presi-
dent of the Senate, Mr. Langdon, was elected for the sole purpose of opening and
counting the vote, for the reason ouly that the Senate had uot been organized under
the Constitution and that there had been no organization of Congress under the Con-
stitution. It seems to me, taking another branch of his argument and considering it
in this connection, that if the legislation necessary by Congress under the Constitu-
tion to designate the officer or power that should have the rigbt to count the vote had
never been had previously, it was then had. The very resolution which empowered
Mr. Langdon to preside for the sole j)urpose of opening and counting the vote was leg-
islation, defining on whom this trust should be imposed. Therefore we have the ad-
ditional precedent established by the election of Mr. Langdon for this purpose to show
that it was the 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 question upon whom the counting of the
votes should devolve. One is sustained by the implication which I have mentioned,
the only legislation which has ever been enacted by Congress U]ion the subject, point-
ing to the President of the Senate as the person by whom this duty should be per-
formed, 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 Constitution, there is
not a letter or a syllable in it, to indicate by indirection or by imiilicatiou that the
/duty should devolve upon any one else.

Assuming, however, that this duty under the Constitution could be properly exer-
cised by the Vice-President or President of the Senate, I cannot go beyond that point
and declare that, because of this legislative provision and because of the action under
it, the Vice-President 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 the
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 exer-
cises certainly 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. John-
ston,] 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 tlie 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

PROCEEDINGS AND DEBATES IN CONGRESS. 611

into three ^reat branches, executive, legislative, and judicial, yet there are certain
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
Constitution specifies that this body "shall be the judge of the elections, returns, and
qualifications of its own members;" and so witli the lower house. In cases of im-
peachment, the Senate constitutes the highest judicial tribunal known, and must of
necessity exercise judicial powers. I, therefore, see no constitutional difficulty in pro-
viding by legislation that this judicial power shall be exercised either by the Vice-
President, or by the House of Representatives, or by the Senate and House of Repre-
sentatives. I think it is clearly competent for the law-making power to delegate thia
judicial duty to any or all of these.

The principal proposition, after the amendment offered by my colleague, is the one
which proposes to substitute the judges of the Supreme Court as the umpire to decide
in cases of doubt. It does seem to me that there does exist a constitutional difficulty
ill that case. The argument of the distinguished Senator from Indiana [Mr. Morton]
the first day this question came up for discussion was to my mind perfectly conclusive
and satisfactory, that we could not, under the Constitution, and with a duo regard to
its provisions, delegate this dnty 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 Senator from Indiana contemplates, for two
reasons: First, the Constitution requires that the decision shall be then made; and it
contemplates the presence of no person other than the Vice-President and the two
houses at the time the decision is made. If the Constitution had contemplated the
possibility of any power other than those mentioned discharging any duty w'hich
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 additional tribunal was authorized by the Con-
stitution ; but no other person, so far as the provisions of that iustruinent go, is con-
templated to be present or anywhere near; and in addition 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 Congress 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 Su-
premo Court to act as umpire in the decision of a question which they might subse-
(piently be called upon to decide as the highest judicial tribunal of the land. Although
it may be asserted that in the one case they would actiu 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 individual
when acting as an umpire. Therefore I think that the in'oposition to refer the decision
of this question to the judges of the Supreme Court, as provided for in the amendment
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 wliatever 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 Avith a con-
dition of things which will test, in a degree beyond any to which this Constitution has
ever heretofore beeu 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. Tlierefore I am prepared
now, if I cannot get the legislation which I desire, to take what I regard as next best,
and having the priujary purpose of securing some proper tribunal for the decision of
such a question as will probably arise in the count of the next prrisidential vote.

In providing these agencies, among all the confiictiug propositions which have been
submitted by diti'erent Senators, it does strike me, after due deliberation and considera-
tion, that that presented by my colleague is mcu'e in accordance with the principles of
tlie Constitution, more in accordance with the usages which have prevailed in other
departments of the Government, and that the spirit of our Constitution is carried out
more fully thereby than by any of the propositions which have been offered in com-
petition. If it were a question 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 Rep-
resentatives, who come forw rd and skand here as the representatives of the popular
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 conflict-

612 COUNTING THE ELECTORAL VOTE.

ing returns come np claiminoj to be the return of a State, we Lave to decide not only
who is President but who is Vice President as well. That decision should accordingly
be had by the joint voice of the House of Representatives, who stand as the exponents
of the popular will, and of the Senate, who represent the will of tlie States.

The objection urged by the distinguished Senator from Indiana that the vote by
States would be repugnant to the very spirit of our 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 frani-
ers of that instrument in the construction of the theory and machinery of our Govern-
ment. This Government is not a democracy purely ; is not a government of the people
perse; but it is a representative government. It is a federal government. All the
provisions of the Constitution, and especially and a fortiovi this one providing for the
election of a President when there should be no choice by the people, indicate a pur-
pose and intent on the part of the framers of the Constitution to provide a tribunal
other than that of the popular vote to decide who should perform the functions of
President in the contingency therein contemplated. They provided that this vote should
be taken by States. Therefore I say it is no violation of the spirit of the Constitution,
but on the contrary it is in strict accordance witli the provisions of that instrument,
that in such a case as the one now under discussion, where two conflicting returns
co!»"e up here, and when the question is as to who shall be elected both President and
Vice-President, both these bodies should exercise a voice in the matter, and the vote
should be taken by States, inasmuch as it is provided that the vote for President shall
be taken bj^ States in the House of Representatives in the event of no election being
had by the people. The proposition of my colleague is, therefore, I assert, strictly in
accordance with the spirit and letter of our Constitution, and, for that reason, to my
mind it is preferable.

I do not hesitate to say, however, that if I cannot get my first choice, if I cannot
secure the adoption of this amendment, I will take some other amendment, my primary
purpose being, as I designated in my opening remarks, to secure by legislation some tri-
bunal, some authority, to have the right to decide this question when the dithcnlty
presents itself, rather than to leave it open to be decided and become the subject of
future squabble, and perhaps much greater ditiScnlty than squabble; because we all
recognize, not only the possibility but the certainty that if no legislation is had to
provide for the difficulty that may arise, if, in the event it shall arise, we are left with
nothing but the constitutional provision, there will be no concert of action, no unity
of opinion, as to the power in whom the right of decision shall then be vested.

Mr. MoRTOx. It seems that the purpose of these several aiiirfudmeuts is to provide
some way by which the vote of a State shall not in any contingency be lost. The sec-
ond section of the bill provides that where there are two reauns that return shall be
counted which receives the vote of both houses as the valid return. If the two houses
do not agree as to which is the valid return, then no vote from tliat St^ate shall be
couiited. The amendment we are about to vote upou provides that; in such a contin-
gency, where the houses disagree, the two houses shall be together as one body. Sena-
tors 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
Senators, and they would cast the vote of that State, which would count one. Nesv
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 inequality and the anti-republican character of sucii an election, the gross
injustice to the people, the absolute stilling of the public voice, there are other objec-
tions 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 l»e next
fall, and the States should be equally divided, then the question is lost. lu that case
the contingency would happen under which the vote of a State wouhl be lost, because
the last tribunal 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 ameudment provides for not counting the vote of a State in de-
ciding the question where the delegation is equally divided ; and that is a con-
tingency very likely to happen. It will not happen very often, I 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 contingency will never occur again ; but it
may. Then, if there should be such a contingeucy, 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

PROCEEDINGS AND DEBATES IN CONGRESS. bid

lost in tbat, way, in determining 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 Indiana allow me to suggest an amendment
which I have prepared, in order that I may get his views upon it?

Mr. MoRTOX. I will give way to my friend in a momeut, when I get through with
the point I am now making. I want to call the attention of the Senator proposiug this
amendment to a fact in our history, in the hrst election of a President by the House of
Representatives in 1801. When that election took phice there were sixteen States in
the Union. The delegations from two States were equally divided, and the votes of
those States were not counted. From tlie very first ballot the delegations from Ver-
mont and Maryland were equally divided, and so those States were not counted ; and
that remained the ca^e from the'lltli of February until the 17th of February, and after
thirty-live 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 tbirty-sixth
ballot, Mr. Morris, of Vermont, was absent, and the two Maryland Federalists, Craig
and Baer, put in blank ballots, tbus giving two more States to JeftVrson, which, added
to tbe eight which had always voted for him, made a majority. There were two States
divided in the very first 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. Thurman,] it seems to
me tbat 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 thiuk the final conclusiou was
not in harmony witli 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 Sen-
ate, the House as a House ; not merely the members of the two bodies. In that I think
he was entirely right; and he took tiie ground that these two houses weie to count
the vote. It is a duty, then, devolving upon the two houses, and I understood the Sen-
ator to argue tbat it was not competeut for these two houses to cast the duty of couut-
ing the votes or determining any question upon tbe Supreme Court of the United
States, because it belonged to the two houses in their legislative capacity; but, if I
understood my friend at the close of his reuiarks, he came to the conclusion tbat we
could authorize the Presideut of tbe Senate to count tbe vote iu case of disagreement
between tbe two houses. If we cau authorize the President of tbe Senate to <lo 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. Maxev. If tbe Senator will permit me, I will state the position I took. The
position which I assumed, as is very correctly stated by the Senator from Indiana, was
tbat tbe 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 Constitution you could not go outside of Congress to devolve tbe duty on
anybody ; that it was a personal trust. I further took tbe position tbat 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 ques-
tion where there was a divided vote between the two houses could be devolved legiti-
mately upon tbe Presideut of the Senate, the Presiding Officer, and you could not go
outside of the body to decide it.

Mr. MoraoN. I understood tbat 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 uuder
the Constitution. Tbe Vice-President has the casting vote iu the Senate on an equal
division of tbat body, by virtue of tbe Constitution. The Presideut of the Senate j;j-o
tempore has no casting vote under tbe Constitution, but he simply votes as a Senator.
If you give the President j;ro tempore a casting vote where the two houses fail to agree
in determining which is the true vote of a State, that right thus conferred upon the
President of tbe Senate is given to him by virtue of a law, and does not belong to him
uuder the Constitution; so that after all we are deputing to an umpire or to a third
party the exercise of a duty which according to tbe argument of the Senator from
Texas, and I think very clearly, too, belongs to the two houses as a part of the legisla-
tive power of the country.

Mr. Maxev. Tbat umpire is a part of our own body. He is not an outside body, but
is a part of Congress.

Mr. MoirroN. That may be true. He is a member of this body either as Vice-Presi-
dent or as a Senator ; but the power conferred upon him is not given by tbe Constitu-
tion ; it is a new power which we are conferring upon him. Our right to confer it
does not depend up"on the fact tbat he is a member of this body. If we have tiie power to
conler this extraordinary function upon anybody, that power does not depeud upon

614 COUNTIING THE ELECTORAL VOTE.

the fact that the person upon whom we confer it belongs to this body. We may con-
fer 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 difliculty. He started ont on the presumption that the two houses must count
the vote as a part of their legislative powers, but he ended by agreeing to the amend-
ment of the Senator from Virginia [Mr. Johnston] that we miglit 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 con-
vention, a body nnknown to the Constitution 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 anybody else ; so that I think
my friend's conclusion was wrong. I deny the power to create an umpire to decide be^
tweeu the two houses in a matter which is devolved upon the two houses by the Con-
stitution ; l>nt 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 to create an
umpire or to call in a new tribunal, then I think the safest umpire, the one most satis-
factory 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 somewhere.

Mr. Maxey. I think 1 understood the Senator's position, but, that he may under-
stand 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 exercised in a certain con-
tingency, if tolerated at all.

Mr. Morton. 1 failed to hear that part of my friend's remarks.

Mr. Maxky. I do not know but that I elaborated it. I referred to the page of the
Record of Thursday last, which shows for itself, page 13.

Mr. Mkruimon. How would you give the Supreme Court jurisdiction ?

Mr. Morton. If we have power to give any outside tribunal jurisdiction, we have
})ower to give it to the Supreme Court, and that would be the most satisfactory tri-
bunal to which we could refer so great a question. The people of this country would
submit with more satisfaction to the decision of that body than they would to the de-
cision of any one man, I care not how wise or how great he might bo, or to any special
tribunal that we might create.

In answer to the question put by my friend from North Carolina, I say we cannot
confer the jurisdiction upon the Supreme Court as a Supreme Court. Still, if we have
the power to create a special tri!)unal, we can confer it upon the judges of the Supreme
Court because they are judges of that court.

Mr. Merrimox. I ask the Senator where we get the power to confer it upon any
tribunal.

Mr. Morton. I have been trying to argue that wo have not that power. I do not
believe we have that power. I have said that if the unfortunate contingency should
happen that the two houses cannot agree which return shall be counted, the vote of
the State is lost ; if it is left to the President of the Senate, and ho is not able to make
up his mind which vote shall be coitnted, the vote is lost; or if you refer the whole
matter to him and he comes to the conclusion that the certificate is defective where
there is only one, the vote of the State is lost. The vote of the State may be lost in
any contingency. In any way that you may dispose of this question, that is possible.
You cannot devise any scheme under which the vote of a State may not possibly be
lost. Under the very plan proposed by my friend from Virginia it is i)robable that the
vote of a State would be lost. I have just shown that in the very first election made
by the liousc two States were evenly divided and so remained for seven days, until
the thirty-sixth ballot was taken, and then the dead-lock was broken by one member
dodging and two members 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 Indiana says that, under any tribunal that may
be adopted, or that has been suggested, it is possible to lose the vote of a State. I
think if he will refer to the plan I suggested yesterday he 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 Senator was present at the timeor not. My proposition was this :
That the two houses should ^■ote 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 declare which the true returns were ; but that declara-
tion should be based upon aggregating the votes of the two houses, and a majority in
that aggregation should determine the result. I would like to know from the Senator
from Indiana whether that does not preclude the possibilitj' of rejecting the vote of a
State.

Mr. Ca:sieron, of Pennsylvania. I rise for the purpose of making a motion to go into
execuiive session. We cannot get through with this subject to-day, and it may as
well be disposed of hereafter.

PROCEEDINGS AND DEBATES IN CONGRESS. 615

The President pro tempore. Does the Senator from Indiana yield for that purpose ?

Ml'. Morton. I yield for that purpose.

The President j^ro tempore. Pending the motion, the Senator from Texas [Mr.
Maxey] desires to present an amendment.

Mr. Morton. Let it be read for information. I desire to hear it.

Mr. Maxey. I move to insert at the end of section 2 the following :

"Put if the two houses fail to agree as to which of the returns shall be counted,
then the President of the Senate, as Presiding Ofticer 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 seud to the Clerk's
desk, a'ld which I ask to have read for information.

Tlie President pro tempore. The amendment will be reported.

The Chief Clerk. It is proposed to insert after the word "which" in section 2, line
7, tlie words :

" Shall be duly authenticated by the State authorities, recognized by and in harmony
with the United Sfates, 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
hy the State authorities, recognized by and in harmony with the United States, as pro-
vided by the Constitution."

Tbe President pro tempore. The Senator from North Carolina proposes to olfer 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 Pkesident ^ro tempore. The amendment will be printed.

March 22, 1876.

Mr. Whvte. I call for the regular order of business. The Senator from Indiana is in
his seat. The regular order was only postponed temporarily until he should come in.

Th(; President pro tempore. The Senator from Maryland calls for the regular order,
which is the unlinished business of yesterday, being Senate bill No. 1.

Tiie 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-Presi-
dent and the decision of questions arising thereon.

Mr. Morton. I desire to ask Senators to remain here to-day until this bill is dis-
posed of. It has been before the Senate for some time ; it is a very important measure,
and I hope Senators on this side of the chamber at least will tind it convenient to re-
main 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 sug-
gest 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 u]i the diplomatic and consular approijriatiou bill. I propose to do so 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 Senator from Kentucky [Mr. Stevenson] and myself yesterday by the Senator
from Ohio, [Mr. Thurmau,] when, with uplifted hands, in wondering astonishment, he
declared that it was past his comprehension how the idea could enter the brain of any
man, upon reading the Constitution as it is, that the duty of counting the presidential
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 laurel 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 position, which was that, as the Con-
stitution 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 Washburn 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 gentleman, 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 casus omissus ; that there was no power either in thi
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 wheu the country would be

39 X

616 COUNTING THE ELECTORAL VOTE.

shaken to its center on this point." — Congressional Glohe, Thirty-fourth Congress, third
session, page 657.

That ^vas the sole purpose for which I referred 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 comprehension how it could
enter into the hrain of any man so to construe it, he failed to remember that it entered
into tJie brain of Chancellor Kent so to construe it.

Nor is that all, Mr. President. Mr. Stuart, of Michigan, who was a prominent law-
yer and a most honored member of this body, in this same discussion wherein I before
referred to Judge Collanier's view, 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 of the Senate." — Ihid., page 6G4.

And again :

•'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 fairness and accuracy it is a public count before two responsible or-
ganized bodies under the Consstitntiou."

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 da3' 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." — /Z)id.,page
665

Recognizing that the President of the Senate was the proper person to count the
vote and no one else. And so Mr, Toucey, of Connecticut, a gentleman who had held
the high and honorable position for fuurteen 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, authentic way, the actual state of the vote, and when that is ascer-
tained truly, the President who is chosen by that vote is President, let Congress do
what it may. * * * And any law of Congress which undertakes by its operation
to change the actual result as found upon an nuspection 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 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 Honseof 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 notwith-
standing, I wish to go a step further and show that not only was this count the mere
disclosure in the presence of witnesses 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 talent no fair-
minded man could deny, whose legal learning no man truthfully 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 shamrock in the hearts of the republican party of the United States —
I refer to Hon. Henry Winter Davis. On page 0.58 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 trouble,
let us listen to his warning note as to the difficulty which nuiy arise by Congress
tampering 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 bj- the House of Repre-
sentatives, or by the tellers, or by the Speaker of the House."

Every one, except the President of the Senate, is enumerated here by Mr. Pavis.

"I think that the Constitution of the United States has defined with perfect pre-
cision 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 separately, and of the House sitting separately, as separate houses. It does

PROCEEDINGS AND DEBATES IN CONGRESS. 617

not say that any result sliall 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 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 diffi-
culty, this amliiguity in the phrase we are using. I appreheud 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 ministerial 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
qnestion, unless some gentleman shall rise and move, in pursuance of the Constitution
of the United States, that the House now proceed to the election of a President; and
when that shall hav^e been done, and the question shall have arisen whether the ])apers
laid upon the Speaker's table, identified by their official certificates, counted i)y 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 practi-
cal question which can be raised in this House upon which our decision would be final.
Although this House should go on and ])ass separate votes upon every vote before
them, I apprehend they would be extra-judiiial oi)inions 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 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."

And now, Mr. President, fortified with these views of eminent statesmen, I invoke
another fire from the battery of the distinguished Senator from Ohio.

Mr. TiiUKMAN. 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 cer-
tainly did not intend to wound anybody's sensibilities. 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 anybody's head, looking to the Constitution alone and not at any practice
under it, that the President of the Senate was the judge in the case that is supposed by
this bill.

Mr. W^HYTE. The Senator must not suppose that I ever said he was the judge.
Counting the vote, and judging of an election, are difterent things.

Mr. Thurman. 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
beiag a judge are not one and the same thing where any judicial question arises.
When, for instance, the (juestion is whether a return is in conformity with the statute,
it seems to me the 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 of 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 in-
volve 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 Constitution the idea can be entertaiued 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 apprehend 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 ai'e 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 determined
by the House of Representatives alone on a motion to go into the election of a Presi-
dent 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

618

CO[TNTING THE ELECTORAL VOTE.

or not. That, I uuderstiind, is bis theory. It seeinsto me that it is not a sound theory ;-
but if it were a sound theory it would certainly show that the decision does 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 uudei'stand that reas(inin!j. 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 preseut
at the opening of these votes to identify the returns, the Senate as a Seuato and the
House of Representatives as a House; that they are there to ideutify them.

Mr. MoHTON. How ?

Mr. Thukman. How they are to identify them he does not say. He says they are there
to identify them. Identify what ? Ideutify certain pieces of paper which are laid upon
the desk, or identify which is the true return ? If it is meant simply to ideutify the
papers which have been opened by the President of the Senate and laid upon the desk,
then they are there simply as witnesses to testify that two papers from a single State, iu
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 can-
not be decided ; the vote of the State cannot then be counted. The Constitution says
the vote shall then be counted. His phiu says the vote shall not be counted. That is
what it comes to. If there are two returns, and if there is no power of decision iu the
President of the Senate, as he seems to admit, nor any power of decision in the Senate
and House of Representatives there, then tlie plain provisiou of the Constitution that
" the votes shall then be counted" becomes a nullity, 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 cham-
ber without any count of the votes of the State from which two returns 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 certificates for that State shall be counted. Is that the Constitu-
tion ? 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 Rep-
resentatives shall " proceed immediately " to electa 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 wandering about, with this plan, that pl.iu, and the
other plan, this interpretation and that interpretation, comes from losing sight of the
plain provision of the Constitution and the fundamental principle of government, that
where a thing is directed to be done and the mode is not prescribed by the Constitu-
tion, it Ijelougs to the law-making power to provide for it.

Mr. Johnston said :

Mr. President, in considering this question we have to take the Constitution as it
is, and not as we think it ought to be. It is agreed, I believe on all hands, that a
better mode thau the present for the election of President and Vice-President of the
United States ought to be provided if possible; but until that is done by an amend-
ment of the Constitution of the United States, we have to adapt our legislation and
whatever we do in this regard to the existing provisions of that instrument.

The electoral college is just as much a constitutional 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 au election of President and
Vice-President partly by the States. The election of President and Vice-President is
not merely the act of voting by the people, but it consists in everything necessary to
elect the President and declare the result. The election consists, first, of the voting
by the people; next, of the meeting of the electors in the several States and the cast-
ing of their votes; and then the certifying of those votes to the President of the Sen-
ate, and of the assembling of the two houses together and ascertaining the result iu
joint convention and declaring such result. All these things are necessary to make a
complete election. If you stop at the vote of the people, the result is never ascertained.
Altogether they constitute what we call the election of President and Vice-President ;
and in framing any law for the purpose of settling a disputed question connected with
it, or to do anything necessary to carry out the constitutional provisiou relatiug to it,
we must have regard to the provisions of the Constitution regulating the whole mat-
ter and what was intended by the instrument itself by the framers of tiie Constitution.

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 Constitution 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 iu size and popnlati(jn, but that that
same iuequality 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 Coustitutiou giving the Stales their due weight in the

PROCEEDINGS AND DEBATES IN CONGRESS. 619

election of these two ofSficers should be disregarded. It was a provision intended for
the protection of the smaller States. They were bodies politic ; tiiey had tlieir rights ;
there was danger that they wonld be overslaughed by the larger States, and that their
rights woidd l)e destroyed by the greater representation that other States had iu the
House of Representatives. In order to protect them against that, the States were given
a representation without regard to size in this body and also in the electoral college.
Then I insist that any law passed on this subject must be passed with respect to these
particular features and purposes of the Constitution, which were to protect the smaller
States against the dangers arising 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. TLo State of Delaware elects three, the State of Virginia eleven, the
State of New Y(n-k thirty-five. Wlieu these electors meet together, those represent-
ing 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 ma-
jority casts it, if that majority be only one.

Now, to keej) up the analogies of tbe Constitution and the unities of the Constitu-
tion, I insist that whatever we do in this regard shall be done iu the .same meaning,
and in the same sense, and for the same purpose that the electoral college acts. We
must endeavor to preserve 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 electoral
college and the nu)de of electing the President and Vice-President. Any departure from
that, anything going outside of that, is a violation of the purpo.ses of the Constitution
and the intentions of the framers of it, and should therefore not he adopted.

Hence, when it comes to the decision of any important question connected with the
election of these officers, and to deciding which of two returns is the vote of a State,
upon which decision the result of the election nuiy turn, why is it not proper that that
question should be decided upon the same principle, rule, and reasons that regulate
the election of President in its other yjhases T 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
difterent from or beyond that, we depart to that extent precisely from what was in-
tended iu the original framing of tlie Constitution; and, therefore, 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 sit-
ting as a court but as individuals, decide this question 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 Stares should be represented iu all
these questions, it cannot bo contended that it is anti-republican. It is the purpose of
the Constitution itself that the States should be represented ; and when an amend-
ment is otfered which declares that the States shall not be represented as to any par-
ticular thing arising in this election, to that extent we depart from the Constitution
and from our republican institutions. The members of this body and the members of
the House of Representatives were elected by the people partly to perform these very
functions. They were chosen for the purpose, among others, of deciding who in a cer-
tain 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 pur-
pose as well as other purposes ; and when we leave the question with the men 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 selected 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 connection with them. I can imagine no provision that would be further from
the spirit of the Constitution and of our republican institntious, 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 proposition submitted by the Senator from Indiana. I think,
therefore, that his amendment is wholly inadmissible.

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 particu-
lar, and that is iu its practical working. Now observe iu what that defect consists.

620 COUNTING THE ELECTOKAL VOTE.

The two houses meet together in the hall of the House of Representatives to count the
votes. If there is no objection made and the votes are simply counted throughout
"without any question arising, the two houses do not separate at all until all the votes
are couutetl and the result announced ; but whenever a question arises to be decided
the two houses separate at once, and the Senate returns to its chamber and the House
remains in its, and each proceeds to act for itself on the disputed point. Suppose
there be two returns from a State, and it becomes necessary to decide which is the
right one. The two houses separate, and each proceeds to act upon the question.
After they have acted, the Senate is notified of the readiness of the House to receive
them and retitrns to the hall of the House of Representatives, and there it is ascer-
tained that the House has decided in favor of one return aud the Senate in favor of
the other. Now, the proi)Ositiou 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 absence of the
Senate and of the President of the Senate; he does not know what it was; aud the
amendment provides no means of ascertainiug what vote the House has given.

Mr. Ra>'dolph. 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 ascertain-
ing that the House has disagreed at all ? If he is competent to receive one message he
is competent to receive both ; and therefore the information is within his grasp, aud
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 as-
certainiug. It is announced merely that the House has determined to accept one set
of returns. By what vote the House has done that is not announced. The proposi-
tion of the Senator from New Jersey leaves that as a difficulty likely to Impend, aud
does not uudertake to remove it.

Mr. Randolph. That is a mere matter of detail.

^Ir. Johnston. It may very well happen that tlie vote may not he taken by yeas and
nays, aud it might hai)pen that that vote would be taken so that those who voted for
the proposition 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 sny ay, and
the contrary, no." It would be out of the power of the Presiding OtBcer of the House
or anybody there to say how the vote was. Nobody could tell who were the members
who constituted the majority.

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 indicated by him ; that so undignified a proceeding 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 contingencies, let us provide agaiust ail. 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
details 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
provide for that; hut, as it stands now, that difficulty exists, ai^d, to my mind, it is a
serious one.

The Senator from North Carolina [Mr. Merrimon] 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, liue 7, and
insert :

" Shall he duly authenticated by the State authorities, recognized by aud in harmony
with the United States, as provided by the Constitution."

It seems to me that that amendment of the Senator from North Carolina is open to
very serious objection. What is meant by being in harmony with the United States?
Suppose 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 investigation and construc-
tion ? What is the United States ? The United States is the whole Governmeut. It
is the executive, the judicial, aud the legislative departments of the Government. All
these combined constitute the United States, and no two of them do it. It takes them
all ; and when we say that the government 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 President belongs to the republican party ; the
Senate is republican ; the House of Representatives is democratic ; the Sujireme Court

PROCEEDINGS AND DEBATES IN CONGRESS. 621

and the jiirliciary are neither one nor the other, but are, as they ought to be, not poli-
ticians. Suppose the question should come up, whether or not a particular State gov-
ernment is in harmony 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 legislative branch ; and
a case might arise in which the government of a State could not be in harmony with
the whole Uiuted 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 ou in November. Most of the gov^eruors qualify in January. These
returns are to be counted in February. No act of anybody, neither the legislative,
executive, nor judicial branch of the Government, may have recognized the govern-
ment of a State from the time of its inauguration up to the time of counting the elec-
toral vote. I understand a recognition to mean some act of the legislative body recog-
nizing a particular governor and a particular legislature as the legal government of a
State, or through some proclamation 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 coustitutional power. All that either can do is, when a man claims to be
the govei-nor of a State, to recognize him in such intercourse as may take place between
hiui and the Uuiied States or between him and a particular department of the Govern-
ment in such manner as the Constitution and laws authorize States to have intercourse
with that department. That is all we can do. We can only recognize him as gov-
ernor when the occasion arises for the recognition. We cannot make a solemn recogni-
tion 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 harmony with the United States. The State government may have
never been recognized ; and if the question of the returns comes up then, and it is to
be tried 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 nay a few words in regard to the proposition of the Senator from Mary-
land, [Mr. Whyte.] I differ as widely from him as I can, both upon the construction
of the authority he quotes from Kent's Commentaries and upon the construction he
puts upon the Coustitution 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 uuder 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-important" —

That is, the power to count the votes —
"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 two
houses are present only as spectators, to witness the fairness and accuracy of the trans-
action, and to act only if no choice be made by the electors."

Now 1 read that to mean this. There is a wide difference between constitutional
provisions and legislative provisions. A constitutional 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 legislative and a constitu-
tional proceeding; and when he used words intimating that there might be a legisla-
tive provision on this 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 question upon the right of amendments to the
Constitution. He could not, therefore, have referred to amendments to the Constitu-
tion, nor could he have referred to any question connected with the Constitution itself,
because certainly so learned and so accurate a man as Chancellor Kent knew the dif-
ference between the words " constitutional " and " legislative," and he would not use the
word "legislative" where he meant "constitutional." That any man, especially a
learned law-writer, writing an elementary 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 "constitu-
tional" 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 declare who shall count
the votes. In that sense, if that view is true, he cannot be held to mean that the Con-

622 COUNTING THE ELECTORAL VOTE.

stitution gives the Vice-President the right to count the votes, becatise if the Constitu-
tion did give that right then it could not hold that Congress could legislate ou the sub-
ject, 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 proi)0-
sitiou it seems to me is very plain. If the Constitution vested in the Vice-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 Chancellor Kent says tlais is a sub-
ject upon which Congress may legislate, that Congress may provide who shall count
these votes, of course his opinion is that the Vice-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 convention that framed the Constitution of the United States, and was
adopted by that body. In construing the two instruments, therefore, if we tind any
difference in phraseology between 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 iustruments, and if in making one they use particular language and
in making the other they use other language 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 tlie Vice-President should open the votes and they should llien be counted ;
just as the twelfth article of the Constitution now provides. After tlie Constitution
■was constructed the report was made. The object of the report was merely to put in
force the Constitution. We then had no President, no Vice-President. This report
vras in the nature of a schedule, such as accompanies all new State constitutions, speci-
fying the means of putting it in operation, and nothing more. The Vice-President
could uot count the voles and determine who was regularly elected, because he did not
then exist. Somebody had to do it. Thei'efore they had to provide some temporary
ex])edient, 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, tliey pro-
vide 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 Presiilent, and
should transiint 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 Pres-
ident of the Senate.

"That the Senators and Representatives should convene at the time and place as-
signed ; that the Senators should appoint a President of the Senate for the sole purpose
of receiving, opening, and counting tlie votes for President; and that after he shall be
chosen, the Congress, together with the President, should, without delay, proceed to
execute this Constituti(m."

Now, then, that officer was elected for a single purpose. He was particularly deputed
by this report to receive, to open, and .to cvmit the votes ; but when you come to tlie
Constitution itself it authorizes him to receive and open, and omits to direct that he
shall count the votes. Then what is the rule of construction by onr courts'? When
this report i)rovides that the Vice-President or the Presiding Othcer shall receive, shall
open, and shall count the rotes, and the Constitution says that he shall receive and open
them, by ■what rule of construction, 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 determine
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 iu the Constitution; when we recollect that the Constitution
specially takes away from the Vice-President that particular power, I cannot under-
stand how it is that any one can contend that the framersof the Constitution intended
that it should give to (hat officer the right to count these votes. Every rule of con-
struction and every court iu the laud 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. There-
fore, I respectfully submit to the learned Senator that his argument is in default in
that respect.

Upon reviewing all the propositions that have been made, I still insist that the
amendment 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 institutions. It preserves
the legitimate and constitutional weight of the States, and it is the only mode sug-
gested that does. It presents the same features that the electoral college has, and it
is the only provision that does it. It carries out just what the framers of the Consti-
tution seemed to intend, and it is the only one that does it. It remits the decision of

PROCEEDINGS AND DEBATES IN CONGRESS. 623

an important question to the two Louses acting in their capacity uudor the Constitu-
tion and acting in the way that the Constitution intended them.

It seems to me, therefore, with all due deference to the opinion of otlier Senators, that
this proposition is the true solution of this question and should he adopted.

The Phesidjng Officer, (Mr. Mitchell in the chair.) The question is ou the amend-
ment olfered hy the Senator from Virginia [Mr. Johnston] to the ameudmeut 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 amendment he reported.

The Pkesiding Officer. The amendmeut and the amendment to the amendment will
be read.

The Cjiikf 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 man-
ner provided by the Constitution when the election devolves upon the House, shall
decide to be the true and valid one."

It is pro])osed 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 certificate and the House of Representa-
tives another, the joint meeting of the two houses shall finally determine which shall
be counted, by States, the representation from each State, including the Senators there-
from, having one vote ; bnt if the representation 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 amendmeut.

The Presiding Officer. This is an auiendmentto the amendmeut of the Senator
from Tennessee, and if adopted it will be still subject to ameiulmeut.

Mr. Sargent. It cau be superseded by another amendment ?

The PREsiDiNci Officer. It will be open to amendment of course. The question is
on the amendmeut to the amendment, upon which the yeas and nays have been or-
dered.

The question being taken by yeas and nays, resulted — yeas 11, nays 39; as follows :

Yeas— Messrs. Allisou, Bogj', Davis, Johnston, Kelly, McCreery, Ransom, Sargent,
Saulsbury, Thuvman, and Withers — 11.

Nays — Messrs. Booth, Boutwell, Burnside, Cameron of Pennsylvania, Cameron of
"Wisconsin, Christiancy, Cockrell, Conkling, Cooper, Dawes, Dennis, Eaton, Ednmnds,
Ferry, Frelinghuysen, Gordon, Hamilton, Hitchcock, Howe, lugalls, Jones of Florida,
Key, Logan, McDonald, McMillan, Maxey, Merrimon, Mitchell, Morton, Norwood,
Og'lesby, Paddock, Randolph, Robertson, Sharon, West, W^hyte, Windom, and Wright —
39.

Absent — Jlessrs. Alcorn, Anthony, Bayard, Bruce, Caperton, Clayton, Conover, Cra-
giu, Dorsey, English, Goldthwaite, Hamlin, Harvey, Jones of Nevada, Kernan, Morrill
of Maine, Morrill of Vermont, Patterson, Sherman, Spencer, Stevenson, Wadleigh,and
W^allace — 23.

So the amendment to the amendment was rejected.

The President j)ro tempore. The question recurs on the amendment jiroposed by the
Senator from Tennessee, [Mr. Cooper;] which will be read.

The Secretary read the amendmeut, as follows:

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, Ransom, Saulsbury, Thurman, and Withers — 13.

Nays — Messrs. Allison, Booth, Boutwell, Burnside, Cameron of Pennsylvania, Cam-
eron of Wisconsin, Christiancy, Cockrell, Conkling, Dawes, Dennis, Eaton, Edmunds,
Ferry, Frelinghuysen, Hamilton, Hitchcock, Howe, Ingalls, Jones of Florida, Key,
Logan, McMillan, Maxey, Merrimon, Mituhell, Morton, Oglesby, Paddock, Robertson,
Sargent, West, Whyte, Windom, and Wright — 3f>.

Absent — Messrs. Alcorn, Anthony, Bayard, Bruce, Clayton, Conover, Cragin, Dor-
sey, English, Goldthwaite, Hamlin, Harvey, Jones of Nevada, Kernan, Morrill of Maine,
Morrill of Vermont, Norwood, Patterson, Randolph, Sharon, Sherman, Spencer, Ste-
venson, Wadleigh, and Wallace — "25.

So the ameudmeut was rejected.

624 COUNTING THE ELECTOEAL VOTE.

Mr. Maxey. I lianded in yesterday an amemlment wlaich I propose to offer at the
proper time. I believe this is the proper time.

The Fresidknt pro temjwre. There is no amendment pendinoj; the bill is open to
amendment.

Mr. Maxey. I offer the amendment and ask that it be read.

The President 7jro tempore. The amendment will be reported.

The Chief Clerk. The amendment is to add to the second section the following:

"But if the two houses fail to a<^ree 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. Edmunds. I ask for the yeas and uaj's 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 j»'o tempore. The section will be read as it will stand if this amend-
ment be agreed to.

The Chief Clerk read as follows:

" Sec. 2. That if more than one return shall be received by the President of the Sen-
ate 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 oi)ened by him in the presence of the two houses when assembled to count the
votes ; and that return from snch State 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 tlie 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 have two objections to this amendment. The first is one perhaps
of mere phraseology. It declares that " the President of the Senate, as presiding ofB-
cer 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 presidingofficer of the two houses,
which implies a strict joint assembly, and logically to my mind would imply that the
two houses then and there assembled, as they frequently do in the States, as they do in
my State, should act in a consolidated way and decide any question that might arise
just as either house would alone. Therefore, phrased as the amendment is, I cannot
vote for it for that reason, for I do not understand that the President of the Senate is
the jiresiding officer of either House when he is performing that duty, in any legal and
constitutional 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 he very easy to change that phraseology.

The objection that I have in substance to this amendment, and which to my mind is
absolutely fatal, is that the President of the Senate may be, sometimes has l3een, and
very likely often will be a candidate for President or for Vice-President himself, and
this amendment proposes that that very person, selected by designation, shall, in a
c;ise of great doubt and dispute, when the two houses acting with a patriotic disposi-
tion to foUow 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 unsafe and
dangerous proposition. It is wrong in principle, as I think ; and that it would be
dangerous in the last degree in practice, I have no doubt at all.

Mr. Merrimon. Mr. President, I cannot sitpport this amendment. In my judgment,
after very considerable reflection, the duty of counting the electo al vote for President
and Vice-President is devolved upon the Senate and House of Representatives as com-
posing 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 ven-
tured 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 detain the Senate to express. Entertain-
ing 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 I'ight to decide
any controverted question arising upon the count of the votes. It must be done by
the Congress ; by the Senate and House of Representatives. As I said, I will not de-
tain 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 detain 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 minils of the land; but I am well convinced
that, if a constitutional mode could be adopted for perfecting the electoral returns
belore they come before the joint convention of the two houses, it would be a desira-
ble thing to do, and we should direct our efforts to bring that state of affairs about.
There should be no bone of contention in the joint convention when it meets. The
gieat danger is that there may be a difference of opinion there which might create

PROCEEDINGS AND DEBATES IN CONGRESS. 625

such groat discord as to endanger the peace of the country. Now, it does seem to rae
that it is within the province of the law-nial\ing power of the Government 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 bank-
ruptcy and the organization of bankrupt courts. Tljese duties were quite outside of
the specific duties of the Supreme Court under the Constitution, and it seems to rae
that all agents of this Government, whether cabinet ministers, courts, or officers of anj"^
kind, can have reasonable extra duties imposed upon them by Congress, 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
he had here as to remove all doubt as to the prima facie legality, if I may so say, of
these returns before they come to the joint couveutiou. If the electors were nuide to
meet, say, on the last 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 iu January, ample time would be
given for an examination of these returns. I do not mean an examination of the mat-
ter inclosed in the envelopes, but au examination of the conditions under which the
votes were cast. If the electors were obliged by law to subscribe their names on the
envelopes inclosing 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 necessary information to determine their legality or illegality.

If these returns could be submitted by the President of the Senate to the Supreme
Coart, either as a court or as a board of examination organized under a law of Con-
gress for the purpose of examining the returns, the fact would develop itself at once
if there were irregularities of })rocedure, 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 deternnne which were the
legal returns. After the necessary 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 intrusion 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 iu some form. It seems to
me an equitable way of arranging the matter, and one that would be acceptable to the
people. The President of the Senate, in my opinion, could be authorized by Congress
to part with these returns, for the time being, for the purpose of this examination.

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 i)artisan
feeling, and we should endeavor before we leave the subject to have it iu such condi-
tion as to leav^e no ground for such a display at the meeting of the joint convention.

I merely thro w out these remarks for consideration. I have draughted au amendment
to the bill covering these points which at the proper time I may olfer.

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 disagreeinent. 1 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 indi-
vidual. Especially would I oppose the vesting of such great power iu the Vice-Presi-
dent 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, cer-
tified from the same State, should be counted.

I fully realize the importance of the subject which has been brought to the atten-
tion of the Senate by the bill under consideration, and in the Committee on Piivi-
leges and Elections where it was under discussion I think the feeling 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 re-
spective members of that committee were not bound by the simple fact that the
bill was reported to adhere to its provisions. I should have preferred the amend-
ment 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
history of this country when, if we have nothing but the constitutional provision
on this subject, great difficulty and embarrassment may result. I have listened to
this debate; I have he.ard the views of Senators in reference to the true meaning of

626 COUNTING THE ELECTORAL VOTE.

the constitutional provision in regard to the connting and ascertaining of the result
of a presidential electi'in ; and I must confess that I widely differ from my learned
friend from Maryland [Mr. Whyte] in bis view of that snV)ject. The constitutional
provision is simply that the Presiding Ollicer of the Senate shall receive and o]>en
the votes. It does not say nor does it implj', in my opinion, that he shall count the
votes.

In fact, the argument of the Senator from Virginia this morning showed that if
any ini]>lication arises from the language of the Constitution and the ]>ractice at the
First Congress, it is adverse to the conclusions of tiio Senator from Maryland, and
the implication is the other way, that he shall not count. Mr. Langdon, the first
Presiding Officer of this body nuder the Constitution, before its adoption, was spe-
cially required and authorized to count the votes by resolution of tlie Senate when
no such authority was conferred upon the Presiding Officer of this body under the
language of the Constitution. Tlie Presiding Officer at tliat tinn-, Mr. Langdon, was
api)ointed to receive, to open, and to count the votes; but under tlie constitutional
provision, the President of tlie 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 ajjprehend tliat it would have been perfectly com-
petent at any previous period in the history of tliis country for tlie Congress of the
United States to have determined for themselves, in the absence of an express pro-
vision on the subject, who should count the votes, whetlier the President of the
Senate, or tlie Speaker of the House, or persons appointed by their respective hcjuses.
There is nothing in the Constitution to inhibit it, neither by express provision, nor,
as I conceive, by implication.

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 i)ractice has been, and the jirecedents
establish the practice, that the Presiding Officer of this body counts when there is but
one return ; but those precedents do not incorporate any provision into the Constitu-
tion, and in the absence of such a provision, I maintain that it would have been com-
petent, on any occasion when the vote for President was to be counted, for the re-
spective houses of Congress to have designated some other jiarty 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 incorporates nothing into the Constitution that is not there, and that
in the absence of any constitutional provision on the subject as to who shall count the
votes, it was competent for Congress to provide some person otlnu' than the President
of the Senate to have counted them, if in their wisdom they had seen ])roper so to do.

Now, the bill as reported from the Committee on Privileges and Elections fails to
provide for one contingency that may hapjien. I do not know that I have any serious
objection to the bill except upon that ground, that it fails to jirovide for one con*^iii-
geucy that may happen in the future history of this country, and that is that when
two returns have been sent np from any State, and the two houses of Congress are at
disagreement in reference to which of those two returns are the true returns, then, if
they cannot agree, but disagree, the vote of that State shall be thrown away. That
such a contingency may arise is unquestionable, because it has arisen at one time, and
Jtt the very last presidential election such a contingency did arise, aud the vote of
Louisiana was east 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 condition, if there is no concord and
agreement between the two houses. The bill is defective 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 judguient, upon the
true and proper ground ; that was, to give to the two houses of Congress, voting by
States, the riyht and the power to determine tliat question, but that amendment has
been voted down. And now an amendment is presented by the Senator 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 conferriug on him a most fearful power; and the exercise ;)f that power cm
his part, I ajipreheud, 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
acquiescence in the decision of the Presiding Officer of this body, aud especially if his
decision was cast in harmony with the views of his party on that subject. To avoid
any such danger, to avoitl the possibility of questioning the correctness of his action, I
should be nuwilling to see liiui plac(Ml iu 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 couteunilated by the Constitution, aud

PROCEEDINGS AND DEBATES IN CONGRESS. 627

for which no provision has been made ; and if I could admit (whicli I do not admit)
that the Constitution confers upon him now the power of counting the votes, that bein^
a mere ministerial act, it does not confer upon him the power of .judfring as to which of
two returns is the correct return ; it does not devolve upon him tlie fearful power of
deciding a question of that magnitude. Certainly it will not be contended that when
there are two returns presented to the Presiding Officer of this body where he must
exercise judgment, where he must exercise discretion, the decision of that is the exer-
cise of a ministerial act. It is a judicial act, to all intents and purposes.

The Senator from Maryland, if I understaiul 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 which he may render between dif-
ferent returns is a ministerial act, I differ entirely and essentially from his conclusion.
Wherever there is the exercise of judgment required, wherever there is discretion
involved, then the act ceases to be a ministerial act and becomes, not quasi-judicial,
but judicial in fact. So then, if I were to admit that- under the Constitution the Pres-
ident of the Senate is invested with authority and power, not only to receive 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 authority under the Con-
stitution of deciding whicli shall be counted. That being the case, I was in favor of
some ameiulment to the bill proposed by the Senator from Indiana which would meet
that contingency. But nothing that I have seen yet fully meets with my approval
except the amendment, which has been rejected, offered by the Senator from Virginia.
It is true I voted for the amendment of the Senator from Tennessee [Mr. Cooper] as
the next best proposition to meet the difficulty, but that likewise has been defeated.
Now the proi)osition of the Senator from Texas [Mr. Maxey] is of such a character, in-
vesting the Presiding Officer of this body with such fearful power, that I am unwilling
that that should become a part of this bill, preferring, if it is to pass, that it pass with-
out any such amenduient. I shall therefore vote against his amendment, and it was
more f">r the purpose of announcing my determination to do so that I arose on this
occasion than to enter into any general discussion upon the bill or the suijject which it
brings to the attention of the Senate.

Mr. Fkklinghuysen. Mr. President, some days ago, in making some remarks on this
subject, I expressed myself as favorable to such an amendment as that whicli has since
been proposed by the Senator from Texas. On retlection, however, I became so im-
pressed with the fact that our past history shows ns that the President of the Senate,
either on a re-election as Vice-President or as a candidate for President, is so likely to
be interested in the result of the question which he may thus be called upon to decide,
that I abandoned that proposition and introduced an amendment, which is not perfect,
but which has hitherto" commanded the most votes, that the Speaker of the House of
Representatives representing the popular branch, the President of the Senate repre-
senting the States, and the Chief-Justice, the head of the judiciary, should be a tribunal
to decide the question. That, I concluded, was the best tribunal we could have; a
tribunal further removed from political influence than any other ; and unless some
other amendment is adopted, when this bill passes into the Senate I think I shall
renew that proposition.

I simply rose to say that it seems to me the probability of the Presiding Officer of the
Senate being interested iu the q;uestion is a reason why I shall not vote for this amend-
ment.

Mr. Sargent. Mr. President, I think it is a matter of regret that we cannot agree
upon some plan for the decision of a question almost inevitable in the future, and
where for the want of a decision the consequences are certain to be so grave. With
what time and attention I have been able to give to studying the various amendments
pro))osed, I have thought that the one proposed by the Senator frcmi Texas was
preferable to any other, although not entirely satisfactory. The Constitution contains
iu a single clause all power and all direction there is upon tliis matter:

" 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."

It must either be done by the President of the Senate or by the two houses. Cer-
tainly 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 retnrus shall l)e devolved
upon the President of the Senate as upon the two houses. The jjropo.sitiou that the
houses, acting either separately or together, shall decide, has been already rejected ;
and the only portion of the Constitution which has any operative effect left for us to
act upon is the first portion of it, which says that this duty, so far as the opening 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 ])('rliai)s 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 condition of things, leave it to the fair judgment of any man

628

COUNTING THE ELECTORAL VOTE.

of sufficient character to be intrusted with the position of Presiding Officer of the Sen-
ate than to leave it to either house, or to both houses, or to any tribunal where it will
be determined simply upon party considerations. I suppose there is no doubt that a
decision by States in the House of Representatives would be influenced almost wholly
by questions of party, and adding the Senate to them would not change those consid-
erations 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 deter-
mined by mere party considerations ; 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, Avho should wrongfully, and obviously wrongfully, decide, whereby he
became a gainer and attained high oftice, the office of President or Vice-President, such
contempt 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
jjublic opinion, of the facility for making known all facts, of sifting things to the bot-
tom, any man who should fraudulently decide in favor of his own claims by wrong-
fully declaring upon these returns, would place himself in a more unenviable position
than that of Benedict Arnold, I might say even than that of Judas Iscariot ; and it
would 1)e impossible for any man, under any temptation or for any office, even if he
would hold it after such an act, to shield himself or to encounter contempt like that
"which would fall on his head from the whole American people and from the inhabitants
of this globe. Therefore I believe that that in itself would be a safeguard for the pu-
rity 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
power where it would seem that by some plausible interpretation of the Constitution
the fathers intended that it should be lodged. There maj' be some difficulty in the
wording of the amendment. 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 cer-
tainly the idea carried in the Constitution that the President of the Se;iate is the pre-
siding officer of the body :

"The President of tlie Senate shall, in the presence of the Senate and Hiuse of Rep-
resentacives, 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 honse.s,
assembled 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 presidiugofficer of the body, but the inference is certainly
carried by the language 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 corrected in that respect, and may conform perhaps more nearly to
the language of the Constitution by leaving out the words " as presiding officer of the
two houses," and simply require this duty of him m the presence of the two houses.

1 give thus briefly my reasons for voting for this amendment. I think it is the best
we have had.

Mr. Edmuxds. 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 understand 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 ease, in order to gain the election, if he were
a candidate himself, he would be so followed by obloquy and moral perdition in this
w^orld that he would be restrained from doing it.

Mr. Sargent. I spoke of coiruptiou ; not of an error in judgment. Errors of judg-
ment we are all liable to; and so is any human tribunal.

Mr. Edmitnds. So we are ; but I have always been taught to suppose that those
people AA'ere least liable to errors of judgment Avho had no interest in the question to
be decided. That is the verj' 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 bis own cause. It is not because any man who may happen to have a cause
and be a judge is corrupt, or would mean to be corrupt if he decided his own cause;
but it is because we know, as human nature is, that no num in his own cause can
generally be considered as impartial, that his mind is biased, and his intellect, there-
fore, 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 njjon which we do not allow people to act themselves where they themselves
are concerned. That is the reason why we do not allow a Senator here to vote upon a
measure in which he is directly and personally interested, peculuir 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 iJerfectly impartial mind.
I think that is the. principle.

Now, here you propose by a distinct affirmation of law that a person who may be,
aid who often is, and is likely often to be, the very i)erson whose right to the office ia

PROCEEDINGS AND DEBATES IN CONGRESS. 629

in question, shall in a case of the greatest doubt, when tbe two houses disagree, and
■when the diioctiou in which that doubt may be solved is to taru the scale, be the
judge himself. Mr. President, 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 au-
thorized to exercise any judgment to determine a disputed question it is that man
who is interested in it; and yet this amendment selects the very person who in our
past history has sometimes been, and in our future history otten will be, the person
voted for as eirlier President or Vice-President of the United States. I do not think,
therefore, that the reasoning of my learned frit-nd from California is well founded.

Mr. Sargent. I might add another suggestion. This case, of course, is encompassed
with difflcnlties. I i)resume that any one who addresses himself to it does it with some
doubt, with some fear of the correctness of his own conclusions. I have endeavored
to inform myself by the progress of this debate of the difficulties that were to be en-
countered, 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 Con-
stitution, and in view of such differences of opinion among those around me, to arrive
at a conclusion in which I can have entire confidence ; bnt I can suppose a case where
if the Presiding Otiicer of the Senate was a candidate for the Presidency of the United
States, nominated by any party or receiving any electoral votes, and it became hia
duty under a law like this to open and decide upon the returns, he would retire from
the office ; he would resign ; and then it would be in the power of the Senate to choose
some person who would not have this disability.

I am not sure that if it was decided that the responsibility had better be concen-
trated ui)ou a single individual of high character rather than be diifused through a
body where responsibility is entirely lost, so many partaking of it, and it becomes
merely conventional and party, the law might not require that the presiding othcer
of the Senate should vacate his office if he became a candidate for President of the
United States, or rather in case any electoral votes should be cast for him. That cer-
tainly would remove the difficulty. Then the Presiding Officer of the Senate does not
pass upon a ([ucstii n the result of which is to give him either the Presidency or Vice-
Presidency of the United States. I would suggest that to my friend from Vermont as
entirely obvniting the objection which he makes to the amendment. That is to say,
the amendment might be so framed that in case the Presiding Officer shall receive
electoral votes from any State in the Union he shall retire from his office, and the Sen-
ate shall select a i>residing officer whose duty it shall be to open the returns.
Mr, Edmunds. How do you get the constitutional power to do that?
Mr. Wkigiit. Mr. President, I was impressed, when the question was first mooted of
the necessity for an amendment to this sec(md section, that some plan should be devised
to avoid or prevent what it was said would inevitably follow in case of a disagreement
between the two liouses, that a State might be disfranchised. I then turned over in
my own mind what phm would be better, which of the seveial amendments that have
been suggested it would be better to adopt in older to meet the contingency that might
arise. The more I have reelected upon the suhj/ct, the more I have been brought to
the opinion that I believe it to be better and safer and more 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 ct-rtainly cannot agree to the reason-
ing or argument jjresented by the Senator from California. It occurs to me that if that
argument be 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 deciile this (inestion 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 prejudices than of anything on earth ; and there
is no one thing upon which we are such unsafe judges as when we come to de'^ermiue
how strong our ()reiudices nr feelings or interests may be on a given question. If self
in any instance this wavering balance shakes, it is rarely, if ever, right atljusted. We
may think it is, but it is inevitably true that it is not right adjusted.

Now take the proposed amendment; however much may be the interest, however
much may be involved in the question, personally or otherwise, to the person who has
to decide it, be may atteui|)t to divest himself ot all prejudice and all feeling and all
interest, and yet, all unconsciously it may bo, he is thus influenced. It is dangerous
for that reason to intrust him with the determiaation of that question.

There can be but one reason, it seems to me, in logic for leaving this question to the
presiding officer, and tliit is b}' reason of his relations tt) the the two bo lies. 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 possi-
ble and in many instances his actual relation to the question; and for tbat reason,
without mentioning others, it seems to me that the argument against intrusting the
l^ower of deciding the question to him is all-couclusive.

630 COUNTING THE ELECTORAL VOTE.

Now, suppose the presiding officer sLall 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. Andther proposition is that it shall be left to
three persons perhaps — the presiding ofiftcers of the two houses and the Chief-Justice
of the Uuited States; and other tribunals have been named. It occurs to nie 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 Government,
that an outside tribunal shall be selected as umpire. It seems to me to be just as log-
ical that in a case where the two houses are unable to agree upon a bill, upon ai joint
resolution, or any other measure, you shall provide that an umpire shall be called in
to settle this difterence. If the presiding officer of the Senate can be trusted by rea-
son of that sense of duty that he feels is imposed upon him, and that fear of public con-
demnation, 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 dis-
charge of the duty impressed with the solemn obligations that are upon him. Now,
when the two houses, acting honestly, faithfully, with a sincere desire to arrive at
what is right, as we must presume they are thus imjjressed, are unable to determine,
why not there leave the question, and why seek for an outside tribunal to settle this
question that they are unable to determine, a question that they have struggled to
settle honestly and faithfully and under their oaths ?

It is said that it is unfair and that it is unjust to a State that its electoral vote shall
be rejected, and that unless you provide some tribunal it may occur, the two, houses
disagreeing, that the vote cannot be counted. Now supjiose that shall occur. It
occurs after an honest and faithful eflfort 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 question 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,
unfaithtul conduct on the part of the officials of a State, because i>ersons representing
the State have sent up their returns in such a form that the two houses, acting iu
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, whether by reasen 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 provide 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 op[)osed to the present amendment. I am
opposed to the erection 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 canuot safely provide for perhaps
as the Constitution stands.

Mr. Dawes. Mr. President, my difficulty with this amendment is that it derives its
whole authority from a statute. A statute of the Uuited States in this amendment
devolves upon the President of the Senate, or, iu 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 President of the United States for four years. Their authority is
derived solely from a statute of the Uuited States, for nowhere in the Constitution of
the United States is the idea broached that upon any individual iu tlie Unite;! States
shall be devolved the power of selecting the President of the Uuir.ed Spates. 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 se-
lected in the amendment of the distinguished Senator from New Jersey could be, or
those high characters who constitute the Supreme Court of the United States, (which
is, in mj' 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 Coustitutiou of tbe Uuited
States took what its framers thought was all necessary pains at that time to gnanl 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 designate a man or men wiio will
select for us a President of the United States. Sir, that is such a departure from the
Coustitutiou that I canuot vote for it. If there were no other objection, it is a power

PROCEEDINGS AND DEBATES IN CONGRESS. 631

roposed in one man or in ten men, liowever hicjli their character, that it wonld not be
safe to confer. It is in violation of all the analogies and all the theories npon which
the Government itself is based, and it wonld be tlie stranj^est anomaly in what wonld
otherwise be called a free jiovcrninent of the people, that althoni^h in all thinnjs else
the nation and the Constitution had studieil to fjive effect to the voice of the people,
we had here deliberately, by a short section of tliree lines, selected a man and clothed
him with the power of saying who shall be the Presi<le it of the United States.

It miiy be bnt the best way out of a difficulty, whicdi I admit (as the Senator from
Indiana has over and over a^ain impressed npon 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 ajjree with what has just been said that while the Con-
stitution does clothe these two houses with power, if they fail to ao;ree, 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 tpiestion arises about the
opening of a vote, whi-tlier you shall count it or not, and those on whom the Constitu-
tion has devolved the duty of deciding it fail to agree, the legal consequence is precisely
what this bill says shall be the consequence. It cannot be counted, because those npon
whom the Constitution has devolved the power of determining it have failed to agree
fhiit 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 dis))ose of the question, we propose to
<lo so by a statute. The ingenuity of members of the Senate and the House may be
exhausted npon selecting the best and the safest tribunal; but still it will lack
constitutional authority, and lacking constifntionul authority it is naught, and being
naught, to set u]i a nniii as President of the United States without authority is another
delinition of nsurpntiou.

Mr. Fi{i<:LtxGiiUY8t:N. Mr. President, I cannot agree with my friend from IVIassachn-
setts that these amendments, or any of them, look to defeating the will of the people,
and that this um]tire, this tribunal, designates who is to Ijo the President. The people
■who have voted, the eleetor.il colleges, the States whose votes have been counted, have
all had much to say as to who shall be President, and the object of these amendments,
one and all, is nor to defeat the will of the people, but to prevent the will of the peo-
itle from being defeated. It is in the event of there being two returns that we wish to
have a tribunal to sehict the true one, because we believe that the Constitution cou-
tem})lated that in that event the vote of each State should be counted. So it seems to
itie that these amendments cannot be characterized as usurping the rights of the
people.

Again, I cannot agree with my friend in his proposition that these amendments have
nothing to rest npon excepting statute, that they have not a constitutional basis. Of
course if they have not a constitutional basis, that is fatal to them. Eat I niulerstand
that when the Constitution says that " the votes shall then be connted," a duty is
devolved upon the legislative branch of the Government. We are not told bj' the
Constituticm how we shall discharge that duty ; and according to all the analogies of
the Constitution, where any subject is devolved npon a legislative department of the
Government and we rtre not told how we are to discharge the duty, we do it by legisla-
tion ; we are authorized so to do by the Constitution. The Constitution says that
there shall be courts inferior to the Supreme Court. We go on and organize them.
So here it says these votes shall be counted. We go on by legislation and say how
they shall be counted. There is a difficulty in finding a tribunal upon whom we have
a right to impose the duty against their will. This is a difficulty perhaps which would
exist in reference to making the judges of the Supreme Court, not as a court, bnt as
individuals, the tribunal in this case. If it is a new office created, they may accept it
or not as they please; and that is the only difficulty that I see in our arriving at a
perfectly satisfactory amendment.

Mr. Dawes. Of course the Senator from New .Jersey knows that I did not mean to
say that these amendments were designed to defeat the will of the people; but the
amendments may have that result, inasmuch as the will of the people cannot be ex-
pressed by both of the certificates, and must be expressed thiongh one or the other,
and yon 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 between the two, and you give him the power to pervert
the will of the people. That is what I lueant to say.

Mr. Edmunds. Yon do evtry judge in all cases.

Mr. Dawes. I know it ; and therefore the Constitntion 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 compe-
tent by legislation to prescribe a method for counting; but I have not understood any
one, and certainly do not myself understand the meaning of the Constitntion to be,
that the votes shall be counted in such manner as the two houses may by law pre-
scribe, bnt 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.

40 X

632 COUKTJIsG THE ELECTORAL VOTE.

I have nnderstood all to ajjree 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 tlie presence of the two hoasi\s, then it
cannot be done l)y anybody else ; anfl the attempt to clothe any other tril)iinal with
the power to count tlie votes is to depart from tiiat provision. 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 cmnot devolve t:hat trust on aiiybody else, nor can.
any law clothe anybody else with the power. That is my difficulty as well as objec-
tion, that it wouhl 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 teti men picked out
of the Senate of the United States with it, because underneath tlie point'to be decided
lie questions of fact j^rowing out of ihe corruption and fra\id and passion and disori;;;in-
ization and demoralization in a State, which has so weakened and perverted its 'gov-
ernment that the State cannot make manifest who are the men it has appointed to be
electors. There is the ditticulty, there it lies, and nothinj;' will remedy it that does not
reach that. Least of all will it remedy it tor ns to undertake to liiid an outside tribu-
nal and clothe it by force of law with this extiaordinary power.

May I ask the Senator from New .Jersey where in the Constitution he tjets the ide.a
that the President of the Senate and Sneaker of the House and the Chief-.Justice of the
United States shall be a tiibunal to count these votes by determining which of the two
votes shall be counted, for that is ecinivalent to countinfj them? I do not mean to
criticise the propriety ot such a tribunal if it were within the power of the C<mstitution,
though I say that, of all tiibunals 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. Fi;KLiNGnuY8i< X. I have no objection to stating to my friend that I cert.aiuly 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, man-
datory upon us, that we shall see that the vote is counted, without telling us how the
vote is to be connted, and thereby imposing upon us as legislators the duty, I think, to
make provision that it shall be fairly and justly counted.

Mr. Dawes. Then I understand the reading of the Constitution by the Senator from
New .Tersey to be that, when the votes are to be counted, the " then " in the Constitu-
tion (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 "thou"
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 Senate and House shall
count the votes.

Mr. Fkklingiiuyskx. My friend doo« 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 tish,
yon must catch it first. So you must know what you are going to count before " the
votes" can "then be connted."

Mr. Uawes. In other words, if there are two certificates coming up from the State
of Massachusetts, one having thirteen votes for John Smith and the other having thir-
teen votes for William VVilkins, and if the two houses, clonhed with the power of count-
ing the votes, cannot dettrmine whether thirteen votes shall be counted for .John Smith
or thirteen votes for theother man, we refer it to a tribunal to determine whieti of 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 counting them! I do not so understand it. I
think, if this tribunal determine which thirteen shall be connted, they have counted
them. They have determined the fact ; they have to all intents and pnrpcjses 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 thirteen more shall be added to
John Smith instead of William Wilkiiis. That is not counting the votes by the two
houses. That is trifling with the question. Somebody else counts those votes, iind I
do not find that somebody else in the Constitution.

Mr. Howe. Mr. President, I cannot understand myself what difference, except in one
point of view, it makes whom you select to decide the controversy that you have in
contemplation. If the legislature has authority to name a tribunal to decide that
controversy at that time, it does not make much dilference who composes the tribunal,
except in one point of view. If you Avant a republican decision, 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 better take care to frame your law so that you have a democratic
tribunal. You see the controversy is a very peculiar one that j^on are trying to have
decided. It is a controversy upon which hangs the title to the highest ottice 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 oue side or the other. It is a con-

PROCEEDINGS AND DEBATES IN CONGRESS. 633

ti'oversy so difficult of solution, a controversy the facts or the law couceruing which
are so involved, that, havin;jj been sabniitted to tliH House of Representatives and to
the Senate separately, they have disagreed about it and do not eonie to the same con-
clusion. Cue thinks the right is one Avay and tlie other thinks the right is the other
way. That is the sort of controversy. Now yon want to pick out a man who shall
sny off-hand wh.nt shall be done with that question. Take a blind man, take a tool,
take a sage, it will happen, whoever you take, that if he is a republican he will count
the republican 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 <lo a thing with only so mucli
light l)ef.ire him as has led all the rest of the world to stumble. He liuds every repub-
lican in tlie United S ates on one side of that controversy. He finds everj^ democrat
in the United States on the other side of it. He finds one house of Congress on one
side of it and one house on the other side of it.

Mr. Mitchell. Suppose we appointed an independent power f

Mr. HowK. No matter how independent he is, what means lias ho within his reach
of determining tiiat (luestion with anything like precision aud accuracy f Wlnit you
want is not a tiibunal, 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 conclusively without a form of proced-
ure befu'-e a judicial tribunal, where evidence is he^rd from the months of sworn wit-
nesses, witnesses who are examined and cross-examined, and where every point of law
is settled by one learned in jurisprud(!nce. When you have obtained a judgment in
snch a tribunal, then yon allow the title to that horse to be disposed of, considered,
concluded, known. That judgment imports absolute verity. You know then who
owns the horse ; nobody in the world can dispute it. But here the gravest controversy
in the world, wc suppose, is going to bo settled by a man or a tribunal who cannot
swear a witness, who cannot read a newspaper, who cannot have a deposition read be-
fore it, who cannot have an argument. Off-hand, from what he liappens to know or to
have heard, he is to pronounc(i 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 authority to create any snch tribunal, and, secondly, if it had power to legis-
late 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. JoiiNsTox. It h 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 questions that ever arose to th»i very
man in all the U^nited States most likely to have an interest in the result — the Presid-
ing Officer of the Senate.

Mr. Camrkon, of Pennsylvania. I did intend to say a word when the Senator from
Wisconsin [Mr. Howe] sat down, but I did not get the lioor then. I may perhaj)s as
well say now what probably I would .have said then. While the Senator from Wis-
consin said justly that men generally vote according to their prt^judices and vote with
their party and with their friends, yet it often happens that tliey do go with their
consciences in preference to their friends. I believe a case might be found where the
Presiding Otiticer of this body, although interested himself in the decisiou of this (jues-
tion, would vote with his adversaries. I might bring to the Senator's mind by way
of illustration a case which occurred here only a little while ago, when several Sena-
tors on this siile of the house gave the doubt to their adversaries.

Mr. Edjiunds. We gave the certainty to our adversaries.

Mr. Camki!ON, of Pennsylvania. Undoubtedly not one of them would have done
anything but what he believed to be right ; but in the case of Pinchback, the presumed
Senator from Louisiana, the doubts were given by enough of our friends on this side
to deprive him 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 ac-
cording to their consciences. I believe it is always right to give the doubts to your
friends, personally or politically; but I am sure a good man will always act accord-
ing to his conscience, no matter what the responsibility may be, no matter bow great
his personal interest may be in the decision.

The Pi'vKSiDENT pro tempore. The question is on the amendment iiroposed by the
Senator from Texas. [Mr. Maxey.]

Mr. Maxey. I presented this amendment because I believed it was a constitutional
solution of a very difficult problem. I did it believing, as I yet believe, that the mode
provided is sustained by the Constitution. I do not propose to review one solitary ar-
gument that I made yesterday, nor to change anything I then said. I do not care,
however, that the 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.

634 COUNTING THE ELECTORAL VOTE.

Upon Tvlint authority of tlie Coiistitntioii, upon "wliat antliority of the law, does he
assume that in givinji; the settlement of the<inestion to the Vice-President of the United
States, presiding over the Senate, he is giving it to tliat man most of all otliers inter-
ested in the settlement of the question ? If he he the old Vice-President and the count
is of a newly elected ticket, he goes out with that vote. He therefoi'e does not count
himself in, because he goes out of oftiee 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 re-election or a candidate for President. It is assuming that because a
man happens to be Vice-President he necessarily must be a candidate for re-election
or a candidate for President. I have only this to say in reply to that : Under tho
Constitution of our common country any man haAing the constitutional reijuisites has
just as much right to be a candidate for the office of President or Vice-President as the
Vice-President or Presiding Officer of tlie Senate; so that the reason amounts to noth-
ing. It is assuming that which is not necessarily true. It may be so or it may not be
80. The same reason will apply to any tribunal whatever that might be selected for
the settlement of this (piestion, because every man has tlie same right il: he has the
constitutional qualilication. It is a surpassing strange thing to me that gentlemen
should oViJect to rejtosing this trust in the Vice-President at this late day and hour,
after the Government has followed it from its organization down to the year 1609.
Mr. Mehrimox. Eighteen hundred and sixty-live.

Mr. Maxjcy. Eighteen hundred and sixty-live was the time of the passage of the
twenty-second joint rule, but I believe tho election wliich tixdc i)lace in November,
1868, was the first election lield under the joint rule of Eebiuaiy, 18(15. Up to the
year 18u9, according to the authorities, the A'ice-President. or President of the Senate,
had always counted the vote; and yet gentlemen pretend now that this power is so
dangerous that of all men in America the last man to intrust with it is the President
of the Senate. They s])eak of it as something strange, and yet if I remember history
correctly, at the very time of the contested election between Mr. Jetferson and Mr.
IJurr, the most excited race that ever was run in the United States, requiring tliirty-
six ballots to settle the question, Mr. Jetlerson himself was Vice-President. I ajjpeal
to gentlemen if it is not a correct statement of history that at tliat time Mr. .lett'eison
■was Vice-President of the United States, having been elected under Mr. Adams at tlni
time he Avas elected President, following General Washington's election. Over and
over again the Vice-President has presided when he liimself was either a candidate
for re-election or for President ; and yet during all that long period of our history we
have nevei liad one man in America who was so low, so utterly h)st to every sense of
honor, and justice, and of proj)riety, that we should have to leave, when we came to
arrange the pictures of the Piesideut 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, uotwith-
.standing the fact that on every occasion up to the year 18(38 this vote was counted by
the Vice-President. It does seem to me, wlien that remark is made, it is prostituting
into the very dust the character of the men whom the]ieople of this broad land of ours
luive thought tit to vote for as President and Vice-President of the United States.
Are the jieople of this country so lost to honor, so lost to integrity, that they them-
selves would select a man to run for one of these high offices who was so corrupt, 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 reganl for the character of the
American people. I have a higlier regard for the men whom the American people
have brought to the front. The position will not do. It is degrading our own peox^le
and degratling the men whom our jieople liave vested with high trusts.

When is it, under the amendment that I had the honor to oti'er, that the Vice-Presi-
dent has the power to decide ? Never when there is but one certificate of election, be-
cause if both houses reject the certificate it goes out, and if one hotise goes one way
and the other house goes the other way, it is counted. When there are two certiticates,
null 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 etibrt has been
-jiade, and the two houses cannot agree. In that case you have got to do one of two
things. If you reject the vote of the State, yoa may put a man in the lu'esidential
office who has not, as the Constitution recinires, received a majority of the electoral
votes of the peoyde ; 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 Con-
stitution 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 cm a single occasion has he betrayed his trust notwithstand-
ing that he was a candidate, I ask why, when only in one single state of the case
power is to he intrusted to him, has he become so dangerous ? Have the people of
America been so forgetful of their <luty in selecting good men and ti'ue 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.

PROCEEDINGS AND DEBATES IN CONGRESS. 635

I admif, as has 1)6011 stated often here, tliat this is a daTi<i:eroiis and a difficult prob-
loiii. Wii must believe that there are some honest men in this world. While rumors
are afloat all over the land of high crimes and misdemeanors committed by men in
hij^h ])laces. while men have covered themselves from the crown of the liead to the
sole of their feet with infamy and Avith crime, and have fallen from their high posi-
tion, yet I thank God He has put it into my heart not to believe that all men are dis-
honest and that I yet have confidence in man. I yet believe that the American peo-
ple have the intelligence to X)ut in position, whatever may be their politics, men of
integrity, men who want to do right. I believe that tlie two houses of Congress will
Avaut to ilo right ; but, when the question comes up before them, honest men may dilfer.
One of tlie 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 may un-
questionably be lost. By the very losing of that vote a man may be placed in the
presidential chair who had not a majority of the electoral votes by the people, as re-
quired by the Constitution.

Tiie 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."

Not part of that vote shall be counted, but all of It. He wlio desires to stick to the
Constitution as closely as I hope I do wants to see it carried out in its letter and in
its spirit. The letter and spirit of tlio Constitution are that the votes contained in
every valid certificate must be counted then and there and by the authority which tho
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 which
has been assumed here is tenable, unless you hold out the banner and write upon it in
the face of all mankiud that we have no confidence 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
confidence which the peoi)le have placed in him, that he will ])rostitnte 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 wisli to carry out the will of the peo-
])le, we must trust somebody. I am willing to trust the uian that the Constitution
trusts, according to my construction 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
lue, for I have noue. I have done what other gentlemen here say they have been
doing: I have been seeking light. If any Seuatoi' on this lloor will point out a better
and clearer jdan than the one I have suggested, one that more thoroughly carries out
the spirit and the letter of the Constitution, I will adopt his )dan. All tliat I want to
do is to secure to the States of this American Union their right beyond peradventure
to have their vote counted in the election of President and Vice-President of the
United States.

Mr. CAMKiiox, of Pennsylvania. I would suggest to the Senator from Texas to make
a correction in his amendment by blotting out the words "as presiding officer of the
two houses."

]\Ir. ^I.\xi;y. I will state to Ihe Senator from Pennsylvania that my attention was
called to that by the Senator from Vermont. I think the expression "President of the
Senate " is sufficient, ami that the words '' as presiding officer of the two houses " are
nniiecessary. I ask that that modification be made.

Tin' VREsimisr pro Icmporc. The .Senator has that right. The Senator from Texas
mollifies his auiendnient, and the Secretary will report the amendment as modified.

The CiiiKF Cleuic. It is proposed to insert at the end of the second section of the
bill the following:

"But if the two houses fall to agree as to which of the returns shall bo counted,
then the President of the Senate shall decide which is the true and valid return, ami
the same shall theu be counted."

The PuESiL>ENT j^ro tempore. The question is on agreeing to this amendment, upon
Avhich 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 tho
Senator from Minnesota, Avhom I do not see in his seat, [Mr. Windom.j I should vote
"nay" and he would vote "yea."

Mr. West, (when his name was called.) On this question I am paired with the Sen-
ator from Kentucky, [Mr. Stevenson,] who would vote against the anieudment, and I,
if at llherty, would vote for it.

The Secretary resumed and concluded the call of the roll ; which resulted — yeas 7,
nays 38, as follows:

Yi'^AS— Messrs. Bogy, Cameron of Pennsylvania, Hamlin, Maxey, Robertson, Sar-
gent, and Withers— 7.

Nays— Messrs. Allison, Anthony, Bayard, Booth, Boutwell, Burnside, Cameron of
Wisconsin, Caperton, Chrlstiancy, Coiikling, Dawt^s, Dennis. Eaton, Edmunds, Eng-
lish, Ferry, Frelinghuysen, Goldthwaite, Gordon, Hamilton, Howe, lugalls, Johnston,

638 COUNTING THE ELECTORAL VOTE.

Jones of Floridn, Jones of Nevada, Kelly, Key, McCreery, McDonald, Merrimon,
Mitchell, Morrill of Maine, Morton, Norwood, Oj^le'^sby, Sharon, Whyte, and Wright— 38.

Absent — Messrs. Alcorn, Bruce, Clayton, Cockrell, Conover, Cooi)er, Cragin, Davis,
Dorsey, Harvey, Hitchcock, Kernan, Logan, McMIHan. Morrill of Vermont, Paddock,
Patterson, Randolph, Ransom, Saulsbnrv, Sherman, Spencer, Stevenson, Thurmau,
Wadleigh, Wallace, West, and Windom— 28.

So the amendment was rejected.

March 23, 1876.

The Senate, as in Cnniniittee 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-Presi-
dent and the decision of (piestions arising thereon.

Mr. Meriumox. I now offer the amendment which I suggested the other day I
would offer at the appropriate time.

The PuESiDENT pro tempore. The Secretary will report the amendment.

The Chief Cleuk. It is proposed in section 2 of the bill, lines 7, S, 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 —

"Shall he duly authenticated by the State authorities, recognized bj^, and in har-
mony 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 Pre.sident of the Senate from
a State, purporting to be the certilicates of the electoral votes given at the last pre-
ceding election for President and Vice-1'resident in sneh 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 au-
thenticated by the State authorities recognized by, and in harmony with, the United
States, as provided by the Constitution."

Mr. Meimmmon. Mi'. President, I (itler no apology for venturing to present some
views of my own in reference to the important question under discussion. It is confess-
edly one of the most serious moment, surrounded by a great multiplicity of complica-
tions and perplexing doubts. If I shall be able in any degree to assist in removing
such diflicnlties I am sure the Senate will bo satisfied; at all events, I will have the
consciuusness of having endeavored to discharge an imjiortant public duty.

It is very much to be regrt»tted that the ])rovisions of the Constitution in reference
to the election of President and \'ice-President are so general and so meager 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 couje down to
us, are very limited, and not calculated to afford us any, or very little, light on the
subject. Besides, there has b(>en no oflicial act or decision anywhere that is calculated
to do 80. 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 tlie
light of precedent or authority binding in any clegree the action or judgment of Con-
gress.

The terms of the Constitution are very general, they are meager, upon the subject,
and almost everything is left to implication, to c(uistruction, ami inference under the
rules that govern us in the interpretation of instrununits like the Constitution. I think
I may say with confidence that we are left exactly in the condition of a court that has
no prior lights in which to construe a constitutional instrument submitted to it. This
being the case, it is imjtortant, 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 investigation
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 shall
consider particularly and accurately the clause of the Constitution immediately pre-
ceding that which has been discussed. Ui)on that rests the clause that has been
debated. It is essential that we shovild understand the ground-work before we cau
understand thorouglily and accurately the superstructure.

The second clause of article 2 of the Constitution 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 Rejtresentatives to
which the State may be entitled in the Congress; but no Senator or Representative,
or pers(m 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 establishes 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 cau
comxiel the State to exercise, which no Federal authority cau in any way cou

PROCEEDINGS AND DEBATES IN CONGRESS. 637

trol or (liroct. It is as mucli a matter under the control of the State as the
election of the cbief magistrate of the State or the legislature or the judiciary
of the State. It is a matter that they have complete power to regulate and to de-
termine as they will. The State is more interested in the subject— exei'cise of the
ri<i;ht and power— than any other State or than the Federal Government. It is a right
tor the benelit of the particular State and by aud through which the people may have
a voice in the selection of Chief Magistrate" of the National Government. The Con-
stitution provides that the State shall participate in the election, and how its right
shall be exercised through its legislative authority. It provides that the legislature of
the State may desiguatethe manner of selecting electors to cast the vote of the people
of the State or of the State for Presuleiit 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 nmy provide that the governor shall ai)rioint them. It may provide
that the supreme court of the State shall appoint them. It may provide that a com-
missioner shall appoint them. It may jtrovide timt the p3o])le of the State as a
whole and by general ticket shall elect them ; or it may provide that the people of
each congressional 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 Inive acted, whether in one way or
another, ami an election shall take ]tlace or an ai>pointmeut shall be nnvde by the
authority designated by the legislature, neither Congress nor any Federal authority
has any power or riglit whatever to inquire into the legality of such election or ap-
pointment. Why? Because it is a matter coin])letely within the jurisdiction of the
State. Suppose, for example, that according to the present prevailing custom in the
several Sf-ates, a general election shall take ]dace in a State and there shall be two
political tickets before the people for election; that it shall appear by the hnal count
of the popular vote that the democratic ticket shall have the majority, but the frieiuls
of the other ticket insist that the republican ti(diet really, in fact and in truth, apart
from fraud, fraudulent ami other irnlawfiil considerations, have a majority. Suppose
that shouhl become a matter of great monu>nt in the State, ami not only in the State,
but that it should become a matter of the greatest moment to the nation, the electiim
of I'resident and Vice-President turning upon the vote iu that State. Congress would
have no right or ])o\ver to interfere in any respect whatsoever to defernnne whether
the one ticket or the other was elected. That is a matter with the State, and it is
competent f(U- the legislature of the State to i)rovide the proi)er means of contesting
the election in that case. The State legislature alone is vested with power to pro-
vide reasons 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 i)erpetrated by one jiarty or the orher ; that votes have been
bought by the score and by the thousand, and that force and intimidation have been
used, that would be impertinent 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 entii(dy by the State; and, if the State will provide no means to investigate aud to
settle fairly and justly iis between contendiirg partitas, if it will not provide for a con-
test of sucii election, it is the folly of that State ; it is the misfortune of that State.
But, as I said, it would he perfectly competent for the State to provide a means of
contest, just as the States provide means and tribumils of contest for the election of
members to the legislature, or the election of governor, or the election of any other
officer. The point I make is that this is a matter completely within tlie jurisdiction
of the State, and it reuniins there until the eleotitm takes place and the electoral col-
lege shall be organized in pursuance of law. After the election of electors has taken
place or the api>oiiitinent has beeu made, as may be jirovided by the legislature of the
State, and after any contest has been decided, should there be any ])rovision in the
State for a contest,'then, under the law, the chief magistrate of the State gives to the
person elected the certilicate of election or appointment, which is the evidence of his
right to sit ami vote in and make part of the electoral college. The govern.or gives to
each of the electors elected or appointed according to the law of the State a certifi-
cate, which is the evidence of his election, and, armed with that certificate, the
electors who receive such certificate assemble together at the time and place pre-
scribed by law and organize themselves into what is commonly called the electoral
college of that State. When the electoral college is duly organized, then it is in con-
dition to come in lawful contact with and to establish lawful, cognizable relations
with the United States through Congress. 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 Congress in the way and manner I will explain
after a whih', it is then, and not till then, c<)mpetent for Congress to inquire whether
the electoral college proceeded according to law. For example, supjiose it should be
suggested when the time shall come for Congress to count the vote— I shall show, I
think, it has the power aud the right and it is its duty so to do— aud it should be sug-

G38 COUNTING THE ELECTORAL VOTE.

gesterl by a Senator, upon affidavit of some person or on any iufoi'mation of A\'liicli
Congress wonld take cognizance, that one, two, or three of the electors had been
bribed to give the vote cast by them, or any other consideration touching tlie integrity
of the vote cast Ijy the electoral college sliould be suggested iu a proper way, it would
bo perfectly competent for Congress to inciuire into and settle the matter.

It is not competent for Congress to inquire into the organization of the college, the
manner of appointment or election, -whether that "v^•as accomplished by fraud or by
other unlawful means; that is for the State; but the college must be established
according to the laws of the State, and then, after that, it is competent for Congress
to inquire into the action of the college, in order to see whether that was fair and, just
and lawful, and iu that respect it may become of the very gravest moment that Con-
gress should inquire whether the votes of the electors had been bought for the puri)Ose
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 exami)le,
when a Senator-elect from that State, or one purjxjrting to have l)een elected by its
legislature, shall make apjdication for admission here, to inquire whether two, three,
four, or a dozen members of the legislature were elected by fraudulent means or unlaw-
fully in any respect. That is a matter within the jurisdiction of the State authorities,
-within the jurisdiction of the legislature; and when the legislature decides, whether
its decision l)e right or wrong, there is the end of the matter, and Congress has no
jurisdiction to incpiire into it. Congress can have no jurisdiction for any such purpose.
It must take the legislature of the State as it is ascertained and estaVilished uiuler the
constitution and laws of the State. But when such Senator conies here and asks to
be admitted, it is competent for the Senate, coming thus in relation with the legisla-
ture of the State under the Constitution of the United States, to inquire whether the
applicant bought one, two, three, or a dozen votes to secuie his election. Nay, they
not only have ihe i)ower to do so, but it is the duty of the Senate to do so. Just so iu
the case where tbe electors comprising the electoral college are elected or a]>])ointed,
according to the laws of the State, and when the college lias been duly oiganized and
proceeds to cast the vote, if it shall be alleged that fraud was perjtetrated l>y the col-
lege thus proceeding, it is not only the right of Cougiess, but it is the duty of Con-
gress, and one it cannot iu conscience, if it Avould, evade, to inquire whether such
fraud was perpetrated.

This ]iart of my argument is not immaterial ; it is vei.v material as tending to show
how lights and i)Oweis and duties spiing up under the jirovisions of the Constitution,
■which are so meager in their terms, the meaning of which we must ascertain and un-
derstand by inference, implication, and construction.

I trust those who do me the honor to i>ay 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 light m;iy be, l>ecause,
as this is material, this fact goes far toward showing that the Picsident of the Senate
is not adaj)ted 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
Avhich I have just undertaken to expound. So much of the twelfth article of the
amendment as is material for my ])urpose is in these words:

'■ The electors shall meet in their respective States and vote by ballot for President
and Vice-1'resident, one of whom, at least, shall not be an inhabitant of the same State
with themselves ; they shall name in their l)allots the jierson voted for as President,
and in distinct ballots the person Aoted for as Vice-I'resident, and they shall make
distinct lists of all persons voted for as Presiileut. and of all persons voted for asA'ice-
President, and of the number of votes for each ; which lists tliey shall sign and certify,
and transmit sealed to the seat of Government of the United States, directed 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 Reii-
resentatives, open all the certificates, and the votes shall then be counted."

I want to call attenti(Ui now ]>articnlaily to the manner in which the electoral col-
lege, the State, and the people of the State, come in conneetimi and contact with Con-
giess. Is it not manifest that there must be somi> means by which whosoever shall
• cunt the electoral vote can see that the electoral cf>llege was indeed the lawful college?
It is not expected, it cannot reasonably be ex]iected, that Congress 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 Constituti(Ui imjtlies by every rule of
reason and construction that there must be a means of evidence — muniments — by which
it shall ap))ear to Congress, the counting power, that there was a college duly ascer-
tained and established, and that the college did act. Congress iu the past has not

PROCEEDINGS AND DEBATES IN CONGEESS. G39

1)0011 niiniindfiil upon that subject, for it lias provided — it was originally provided by
the act oi' 171>2 — in the Kevised Statutes, section V.io, as follows :

" It shall be the duty of tlie executive of each State to cause three lists of the names
of the e]in:tors of such State to be made and certified, and to be delivered to the elect-
ors on or before the day on which they are required, by the preceding section, to
meet."

That provides for the evidence by which the elector shall know that he is an elector
and a member of tlie electoral college, and by which Congress as the authority to count
shall lawfully know that he was an elector. Now see how the relations — contact — is
formed, iixed, and ostablished by ])roper evidence — muniments — between the electoral
colh'ge and tiirongli it between tlie State and the Congress, or the counting power,
whatever that may be. This is yet further provided for, by section 138 of the Revised
Statutes, as follows:

"Tlie electors shall make and sign three certificates of all the votes given by them,
each of which certiiicates shall contain two distinct lists, one of the votes for Presi-
dent and the other of the votes for Vice-President, and shall annex to each of the cer-
tiiicates 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 direc-
tion 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 college, and to participate in the col-
lege as a member; but it is not only material for that purpose ; it is material for the
further jnirpose that the counting authority, whether it be the President of the Senate
or whether it be Congress, may see that he was elected or appointed according to the
laws of the State in which he ]n-oposcd to vote for President and Vice-President. That
IS the means; that is the evidence; that is the connecting link between the State
and tlie counting jiower ; and it is through and by means of that that the Jurisdiction
of Federal authority attaches, to the end that jiroper action in that l)ehalf may be
taken. Through and by the means so provided 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 tlie ccdlege should assemble and cast the vote if no means were pro-
vided by which it could be delivered to some i)roper,- lawful, constitutional authority
to comnare and count the vote, to the end that it might be seen who was elected
President and who was elected Vice-President. The Constitution jirovides 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 i)ersons voted
for as Vice-President, and of the number of vates for each, which lists they shall
sign ami 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 ; the,y are —
•' directed to the President of the Senate."

Why " directed to the President of the Senate?" Is there any peculiar function in
his ottice 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 jiersou 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 ((uestion 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 tit to take charge of the returns,
unless there were some special reason why he should do so. Then, besides, he is but
one man. He is more liable to be entrajipeil, to be deceived, to be misled by one con-
sideration or another, infinitely move 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 de])osit Ihis vote than the President of the Senate.
The debates in the convention that framed tins Constitution do not show, any official
action taken or decision that has been made since the ado]ition of the Constitution does
not show, anything which jioints him out as the appropriate, the essential depositary
of the returns of the election any more than any other officer of the Government ;
and there are the considerations suggested, and perhajis others that I bavo not ad-

640

COUNTING THE ELECTORAL VOTE.

verted to, whicli disq^ialify, unfit him to be eliiirged witli so grave a matter. In view
of these considerations, I do maintain, witli all respect to e\-erybody 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-President.

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 Constitu-
tion use the words " directed to the President of the Senate? " If it was contemplated
that the Vice-President should count the vote, why did it not say so ? It was not c:)n-
templated that the Vice-President in his character as Vice-President slmuld 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-Presideut ;
there might only be a President ^jro tempore of the Senate, and then they are seiit to
him. But there was a motive for using the words "direct'^d to the President of the
A'<3n«/e," 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
Otticer in Congress, and by courtesy he has precedence in place and privilege wherever
the two Presiding Otificers of Congress are brought in contact in their otticial capacity.
The convention had to provide 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 Con-
gress as to the chief Presiding Otficer in Congress, to wit, the President of the Senate?
It was provid(.'d that the electoral returns should be sent to the President of the Sen-
ate as the most appropriate, the most direct, the most reasonable, the most orderly
channel through which to bring tlie 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 view; none other.

It does seem to me that one, looking with the ])ure 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 returns, that he should be further charged, in express terms, to do a particu-
lar act, to wit, to open the returns in the presence of the Senate and House of Repre-
sentatives, and the last and most important duty of counting the vote devolved upon
liim by im])lication and inference? Can any reason be assigned for such a strange
and illogical i)rovisi()n as that? It seems to me not. It was not intended that ho
should have any absolute control of the returns. Thoiigh they may have come to his
possession the next 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 particular 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 Presi-
dent 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 conies 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 message, 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 Scniate. He says: "The Chair lays before the Senate the following executive
message," or "this memorial," or whatever pajier he is requested as President of the
Senate to present, and to the end that the Seiutte may get .jurisdiction of the matter
he thus lays before it. And all this harmonizes with the ])rovision of the Constitution.
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 jn-esence 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 Representatives; 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
fhere 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 ap[)ro-
priate to that end but Congress? The Congress represents the sovereignty of the
American jieople ; it represents the sovereignty of the people en Hirtssfi through the
House of Rei^resentatives; it represents the sovereignty of the people as comjiosing

PROCEEDINGS AND DEBATES IN CONGRESS. G41

States through the Seuate. All power in the Federal Government, the aggregated,
the absolute power of the National Government, is vested in Congress, except in so
far as certain ])owers of government are limited to the executive and to the judicial
departments of the government by the Constitution. All power is in the Senate and
House of Rejiresentatives, with the limitations I have mentioned. In the absence of
any express provision of the Constitution, or necessary implication of tlie Constitution,
(and it is not pretended that there is any in this case.) I ask tlie question again, is
there any power as apiuopriate to count this electoral vote and determine all ques-
tions in connection witli it as the Congress representing tlie sovereignty of the Amer-
ican people as one nation en masse, throuuh the House of Representatives, and as com-
posing (States through the Senate 1 Sir, it is imitortant in another view of sound policy
and reason. Would it be possible to corrupt seventy-four Senators? Would it be
l>ossible to corrupt three hundred Representatives 1 Would it be as easy to corrupt
the Congress as to corrupt one single otticer, or the Supreme Court, or the Chief-Jus-
tice, or one ofhcer, 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 imi)ossibility to do so ; it would be an undertaking that the
most ambitious, tlie juost unscrupulous and })o\verful, never would contemplate, and
because of the very imi)ossibility.

But tiiere is another consideration why Congress is the appropriate power, and the
law lixes it there, and that is this: Congress are responsible directly and indirectly
to the people, the H(uis(! of Rejiresentatives more particidarly. The H(uise of Repre-
sentatives are elected directly by the peojtle. They are responsible to them by their
election every two years. What better tribunal to eti"ectuate the po]iular will in a
pr<q>er way as charged by the Constitution and law? The Senators are responsible
to the jieople 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 ho
shall cast his vote on a particular question, and if he does not do so, then to ask him to
resign his place. At all events, he is responsible to the people of his State through
the State legislature every six years. The Supreme Court is not responsible, and the
President of the Senate is not responsible to the people. He is in no sense dependent
uiKui them, he is above them, and out of their way and reach.

I subuut that these are grave considerations going to support the legal, logical, and
necessary inqjlication contained in this provision of the Constitution that the Con-
gress is the proper authority to count the electoral vote.

There is one other consideration which I will mention here in connection with the
Presiding Ofhcer. The Senate has 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 pariy in the
Senate slxuild api)rehend that the Presiding Ofticer would not do their will — I make
no intimation of any such purpose on the part of anybody, but only make the sug-
gestion to illustrate the force of my argument — how easy it would be for the majority
to remove the Presiding Officer and appoint a supple tool to take the responsibility to
do the lawless, wicked work of party. The franiers of the Constitution were too in-
telligent and rational to make any such provision, or to contemplate that any such
thing should transpire in this country. To say that, liy implication and inference from
the provisions of the Constitution to which I have adverted, the President of the Sen-
ate is charged with power to count the electoral vote, is to contravene all rules of con-
struction, the reason of the thing, and sound policy, as I have endeavored to make
plain.

Having thus shown, as we must he directed and governed hy implication and infer-
ence, that reason and sound ])olicy force us to the conclusion that Congress should be
the power to count the electoral vote, let us see where the law fixes the power by its
terms and necessary implication. It is provided that the Presiding Ofticer, in the pres-
ence of the Senate and House of Representatives, shall open all the certificates, and
then it is fuither provided that " the votes shall then be coiuifed." Counted by whom ?
By the President of the Senate ? Surely not. It is provided in express term's that he
shall open the returns. Why, I repeat, this the most important duty left to infer-
ence ? The Senator from Ohio [Mr. Thurman] the other day I thought jmt this argu-
ment with tremendous power. He called upon every lawyer to say, in the absence of
any oilier provision and express words, to what authority Avas assigned the counting
of the votes by that express provision. He insisted that, jjer /orce of this provision,
the Congress, and Congress alone, was charged with the power ; that by no rule of
law could any other body or ofticer be charged with it; that intuitively the legal
mind so assigned the power. He argued that it shocked the legal mind to contend
otherwise. His argument impressed me forcibly. I concurred then most heartily and
without hesitation — and reflection has only strengthened my conviction — that it is
assigned to Congress. Why ? Because it did not charge the President of the Senate

642 COUNTING THE ELECTORAL VOTE.

to flo it, bnt it did to do another thing. It, did not charge the Supreme Court to do it ;
it did not cliiirge any other functionary to do it; and in the absence of any sucli pro-
Aision or cluirge, by the operation and tlie force and effect of tlie Constitution and
legal principle exii termhii, Congress is charged with that power. Congress is charged
with every power of government unless it be lodged somewhere else by express ternivS
or by necessary im])lication. In the absence of such provision it tixes it there iuevi-
tably. So that it follows, by the necessary fact of the express provision of the Con-
stitution as well as necessary implication and by every argument founded upon sound
and I'ational })olicy, that Congress has tlie power to count the vote and no otlicr power
can do it, and because Congress is thus charged therefore Congress cannot delegate
its power to the Supreme Court, or to commissioners, 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 rev(niue law or any other act of legislation. It
is tixed tli(?re. They cannot delegate it, however they may regulate the manner of
counting the vote and deciding questions arisiug iu connection tlierewith.

Tlie Senator from Maryland [Mr. Whyte] and the Senator from Kentucky [Mr.
Stevenson] argued ingeniously and with much ability, the other day, to show the con-
trary of what 1 have advocated ; and instead of resting their argument, as I humbly
conceive, upon their own reason and a clear and critical discussion of the ]irovision.s
of the Constitution, they relied greatly upon wlnit they treated as precedents and
speeches which had been made by various distinguished men in the past. Now, sir,
with all respect and dcdVrence, I (lo insist tiiat there is no precedent to sustain such a
view as they held and conteiuled for, and there is no precedent which contravenes the
view of the Constitution which I have been presenting. Take the authority insisted
upon by the Senator from Maryland. Before the Constitution went into operation,
and iu order to put it iiito operation, the convention that framed it i>assed an order
}U'oviding —

" That the Senators should appoint a President of the Senate for the solo purpose of
receiving, opening, and counting t^ie votes for Piesident."

I have to say of this action on the part of the convention that it preceded the
organization of the Governoient ; it was an oi-der passed by the convention in t)ider to
])ut the new Government into operation; it therefore cannot be regarded as setting a
precedent for proceedings under the Constitution ; but there is more than that. It
does not i)iovi(le that he — the President of the Senat(^ — shall count the votes; it pro-
vides— that is the legal eti'ect — that he is to be the presiding oiliccr for that occasion,
that he is to be the officer for the purpose of the count then to be nuule, and for no
other purpose or occasion ; and therefore, if a question had been raised, as I have
shown a qu(\stion might be raised, as to w'hether the electoral college had acted
honestly and fairly and lawfully, I take it that Congress on that occasi(m would not
liaA'e allowed Mr. Laugdon to decide that questi(ui. The convention did not direct
that he should count the votes ; it directed that for a particular ])urpose, the opening
and counting of the electoral votes for President and Vice-President, he should be the
presiding otlicer; 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
consequence that can properly be assigned to that action of the convention.

Then, to show, furthermore, that the Congress did assert its power, let us see what
it did do in that behalf. The Senate direeti'd Mr. Ellsworth to proceed to the House
of Kepresentatives and notify the House that the Senate was ready to proceed, in
conjunction with the House of Kepresentatives, 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. He informed them also —

" That the Seuate have ai>pointed one of their members, submitting it to the wisdom
of the House to ap])oint 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 Kepresentatives at that very moment recognized their
right and their j^ower iu that behalf, for in counting the tirst electoral vote they ap-
pointed tellers. Tellers for what? To count and compare the vote when it should
be opened by Mr. Laugdon. If the Constitution charged Mr. Langdcni, as is cAm-
tended, with counting the votes, and if the Senate; and House of Representatives
were merely there as spectators and witnesses, what right had they to appoint tellers,
what right had they to do anything iu that behalf but to sit there merely as specta-
tors ancl witnesses ?

Mr. Stevex.son. May I ask the Senator from North Carolina a question ?

Mr. Mkrhimox. Certainly.

Mr. Stevknson. Does the clerk who records my vote at a State election count that
vote ?

Mr. Mehrimox. No, sir.

Mr. SxEVKXSOX. Then the tollers are merely to record what the Presiding Officer

PROCEEDINGS AND DEBATES IN CONGRESS. 643

(Toes. The Senator attempts to escape the force of the arncument that a President of
the Senate was elected to count tlie votes l)ecanse the Governniont had not then been
organized. Conhl not the House and Senate have then connted^at that time as well
as at any other time? And if it was a constitutional obligation on them, as is now
argued i)y the Senator, to count that vote, why should they have allowed the Presi-
dent of the Senate to count it?

Mr. MEiJitntox. For the plain reason that the Constitution provided no means to
bring the electoral college and the Senate and House of Representatives iu connection
witli each other. It had provided no means wliatsoever to that end. and the conven-
tion in the exercise of snprerae power in that respect saw lit to provide how it shouhl
be done on that occasion, conforming their action to thex)rovisioa of the Constitution
wliich was to go into etiect f rom and after that time.

I3ut, further, if he was charged with power to count the vote and it was necessary
to have tellei-s or a clerk to do the clerkly work of counting — adding n]t — the vote,
wliat light had tlie Senate and House of Re])resentatives to a])p(>int them ? ^Yas it
within their juiisiliction to appoint f That was a matter within the power and dis-
cretion of the President of the Senate, as they contend, and if he needcid any persons
to aid him in counting the vote, it was his right and his duty to apjioint them. But
Mr. Langdon did not assert the right and did not exercise the right to do so, but it
was proposed by f lie Senate and i)y the House of Representatives that they shonld
each ai)|K)int a teller, and they did ap])oiiit tellers, and the tellers counted the vote.
And thus the Senate and Honse on that the first occasion were not mere spectators
and witnesses, they exercised power in connection with the count of tlie vote ; and if
any questiiui had arisen, who can say they would not have insisted on deciding it ?
Suppose it had then been suggested that a return Avas forged, does any one think that
the Congress would have allowed Mr. Langdon to decide the question whether it
was or not ? I do not think so.

Mr. WiiYTi:. Will the Senator from North Carcdina allow mo to ask him where he
liiids anything about tellers in that original count; whether they were not appointed
to sit at the Clerk's desk, and that was all ?

Mr. Mkkimmox. If my t'riend is going to " stick in the bark " that way, I stand cor-
rected. The language of the entry is that he informed them also —

"That the Senate have appointed one of their members to sit at the Clerk's table,
to make a list of the votes as thev shall be declared.''

Mr. WiiYTK. "As they shall be declared."

Mr. Mkkhimox. " SuUuiittiug it to the wisdom of the Honse to appoint one or more
of their members for the like purpose."' I suiunit to everybody iu all candor whether
that is not the exercise of a power on the part of the Senate and House (d' Representa-
tives which goes to show that they claimed authority in that behalf. I submit they
had no such power, if the view contemled for by the Senators from Maryland and
Kentucky is correct. It was within the ]»ower ami jurisdiction of the President of the
Senate to ap])oint those persons to sit at the tal)le and takt; a list of the votes. The
fact that Congress asserted the power makes it a precedent to show that such power
has been exercised by Congress and may do so on all proper occasions, treating the
President of the Senate as their official organ.

At the next counting of the electoral vote the record shows that —

"The Senate proceeded to consider the resolnti?)n of the House of Representatives
that a committee be ai)pointed, to join snch committee as may be api)ointed by the
Senate, to ascertain and report a mode of examining the votes f(U' President and Vice-
President, an<l of notifying the persons who shall be elected of their election, and for
I'egulating the time, place, and manner of administering the oath of office to the Pres-
ident.

"Mr. King, from the joint committee appointed the 6th Febrnary, instant, re-
ported. That the two houses shall assemble in the Senate 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, and that the resnlt shall
be delivered to the President of the Senate, who shall announce the state ef the vote
and the persons elected to the two houses assembled as aforesaid ; Avhich shall bo
deemed a declaration of the persons elected President and Vice-President, and, to-
gether with a list of the votes, be entered on the journals of the two houses."

So that at the second counting of the electoral votes for President and Vice-President
the Senate and House of Representatives did exercise power, did exercise control, did
appoint tellers — not persons to sit at the Clerk's desk to make a list — but did appoint
tellers; so that so far as that goes as a iirecedeut at all it goes to support the argument
I have submitted.

But, sir, as I said a moment ago — and if any Senator knows to the contrary I shonld
be glad to be corrected — whatever has been done in connection with the counting of
the electoral vote in the past has been done by toleration, without question and with-
out debate If there is a solitary exception to that rule, it is the case in which, in
1857, Mr. Mason, the then Presiding OtMcer of the Senate, would not allow a questiou

644 COUNTING THE ELECTORAL VOTE.

to be raised as to whether the vote of Wisconsin was lawful or not, on a motion to re-
ject the vote. He honestly assnuieil to himself the great ])ower to decide that all ob-
jections were ont of order and wonld nob allow debate. But history shows, and it is
within the recollection of Senators here now, that the Senate was dissatisfied, and the
Honse was dissatisfied, and that, if the election of President and Vice-President had
then tnrued nj)on the vote of Wisconsin, his act might, it probably wonld, liave pro-
dnced a revolntion. According to the strength of reasoning and justice and right,
a7ul in the provision of the Constitntion, in my jndgnient, rind witli all dne respect to
his memory, he exercised an nnwarranted ])o\ver on his pint. I make no (j[nestiou
that he did it in good f;iith and nnder a liigh conviction of duty.

Mr. Stevexsox. I will state to the Senator that INIr. Mason, who then presided, ex-
pressly said at the time that he claimed no such power.

Mr. Merrimox. But he exercised it.

Mr. Stevexson". Ho said he did not exercise it ; he merely acted under that duty
confided to him of declaring tlie vote returned.

Mr. Merrimox. I have no donljt that Mr. Mason did exactly what he thought was
right and honest. I do not ((uestion his integrity, biit I question the wisdom and the
lawfulness of his view and his action, and it was questioned in Ijoth branches of Con-
gress, and the action, I take it, would not have been allowed to stand if the election
lor President and Vice-President had turned upon the electoral a ote of Wisconsin.
That is the point I make. So, I rei>eat, there is no precedent, where there was a ques-
ti(m and debate made, that coutradicts the argument that I have submitted here to-
day.

The honorable Senators from Maryland and Kentucky have cited speeches made by
distinguished 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 autlK.riry ; and tiiey 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
fjuestion as we are ; and their opinion was worth no more than onrs, except as some of
them miglit be more intelligent and able than some of us. I could jioint to the con-
vincing arguments of able and distinguished men, delivered during this debate ; they
will probably be ]iointcd 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 annuint to, except as an expression of opinion? It is no prece-
dent; it is my opinion and my argument ; it is to be measured l)y its strength and its
power, if it have any. If it has ])ower in it, if it has strength in it, if it has convinc-
ing reasoning in it, it will control the mind of somebodj^ here to-day, or somebody in
the next Congress, or in the next age ; but its weight as a precedent amounts to notli-
iug. ,)ust so as to the arguments cited by the Senators to support the view they have
insisted upon. They were simply the opinions — some of thtMU expressed hastily in a
running debate— of Senators or orhcrs, and have no authoritative significance.

There is no official precedent, there is no official act that contravenes the view that
I have insisted upon here to-day, or the jtower or right of the Senate to pass this bill,
or one substantially like it, providing for and regulating the counting the electoral
vote. Not only are tlie 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. Ho was a great lawyer, and fit
an(i worthy and able to express an oi)inion on this subiect ; 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 lor his learning, his alnlity, and his opinions as a
great judge and law-writer. But so far as be expressed any opinion in this respect —
and it is strange that he did not say more— it goes to show, meager as it is, that Ire
recognized as existing in Congress a power to pass some bill like that which it is pro-
pose<l to pass now, regulating the nninner of counting the electoral votes for President
and Vice-President ; for he says that, " in the absence of legislative authority," he/»r-
snmes that it would be the duty of the President of the Senate 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, because 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 Constitutii)n, or any interpretation of it, or
any inference from its provisions. His opinion, so far as it goes for anything, in my
judgment, goes to show that he contemplated that such a power did exist, and that
Congress might, when it saw lit, 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, Avhich when scrutinized could not be tolerated if the touch-stone of truth
were api)lie(l. We tind ourselves compelled every day to take some new view, to call
into action some new provision of the Constitution in many of its features. AVhy, sir,
the late war has developed views of the Constitution that would have startled the men

PROCEEDINGS AND DEBATES IN CONGRESS. G45

who framed it, that wonhl have amazed the most advanced statesman before the Late
war; and it is the province of Congress now to scrutinize in cooler times whether 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 jn-oper construction of the Con-
"stitutiou. Many of its provisions are to bo settled in the future — settled ditt'erently
fntm the action'of the ])ast, where tlie action of the past went unquestioned at the
time. The decision of a court is only valuable as a precedent where tlie question was
scpiarcly presented and aigiu'd bef(n-e the court, and when the court considered it, and
upon mature deliberation decided it. In such a case the precedent is worth something;
it commands respect and conhdence. If Ave 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, becaus(», upon due considera-
tiou of all the issues raised, the whole subject will have been discussed and examined
j)ro and con in every light, and tlie proper authority to decide it will have come to a
conclusion and taken action, and thus a precedent for all time will have beeu estab-
lislied. But if the bill shall iu)t 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
judguu'nts may lead them.

It will be observed, Mr. President, that the bill under consideration provides, in the
interest of the States, that ''no electoral vote or votes from any State to the counting of
which objections have been made shall be rejected excejjt by the attirmative 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
t.hall concur in the o](inion that it ought not to be counted. Suppose the electoral
vote from North Carolina is sent, and it shall be suggested that it is a forgery; the
Senate ami House of Representatives have the right to incjuire whether it be a forgery ;
they have the means of inquiring whether it be a forgery ; they can send out a commit-
tee composed of Senators and memlters of the House to take testimony and ascertain
whetht-r it was indeed a forgery; or sui)pose sonu; formal defect is suggested, they have
tlie right to in(]uire into tliat, and debate tl\e nmtter. Nevertheless, the vote shall be
counted, unless both branches of Congress sliall concur in rejecting it. It may be that
there are defects about it tluit one Ilouse oH Congress think would warrant Congress
in rejecting it. and the other House of Congress may be of a dilt'erent ojjinion. In
such a case the vote nuist be counted. This is a liberal provision of the bill, and it
seems to me a wise one. It is true Congress nury decide against the vote of a State
and reject it ; btit any power — the President of the Senate — might likewise decide
against it if charged with the jiower to count the vote.

Now I ]iut this view of this view : Would not the American people be better satis-
fied 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 interested, should
decide it? What other tribunal within the whole range of tribunals in this Govern-
ment is so well calculated to decide that question as Congress? What other tribiiual
could decide it viove to the satisfaction of the people of the United States than the
Congress — the Senate and House of Representatives? And when both branches con-
cur ill making sucli a decision rejecting a vote, can anybody doubt that the American
people would submit quietly and cheerfully to a decision so made? 'J he decision
would be made by a body representing the sovereignty and the will of the people.
The great mass of them would be content, whatever their piedelictions.

I say, therefore, sir, that the provision is wise, it is in the interest oi the States, it is
in the interest of the peo])le, the vote will be counted unless both branches of Congress
shall concur in rejecting it, in which case it ought to be rejected, and the proper tri-
bunal will have ri'jectcd it, and according to reason and theory and the Constitution
it (uight to be rejected, and therefore the people will be satisfied with it at all events,
and better satisfied than if it had beeu 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 pro-
vides—

" That if more than one return shall be received by the President of the Senate from
a State ])urporting 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."

In my opinion the last clause of that section ought to be stricken out and the amend-
ment which I have ottered ought to be substituted, and for reasons which I now pro-
pose to submit. Acc(U'ding to the Constitution and the law, the State governments
are at all times in otticial and harmonious and lawful relations with the Federal Gov-
ernment,, and the Congress and the President and all ohicial authorities of the United
States take ofldcial notice of such harmonious relations. We are bound to know suck

645 COUNTING THE ELECTORAL VOTE.

a state of tilings, "whether we actually know it or not. A judge is hound to 1-cnow the
law whether he knows it or not. He takes judicial notice of the law. Many thiiigs
that corne within liis jurisdiction he is bound to know, whether he does or not. Just
so in reference to the relations between the State and the Federal GoveruTiient. The
authorities of the Federal Government take ofhcial notice of the proper lawful tri-
huuals of the several States. But it is suggested, suppose a state of things where there is
confusion in a particular State and there are two classes of persons purporting to be the
officers of the State and to administer its government, and each class sends up an elect-
oral vote so that there are two electoral votes for President and Vice-President; what
is to be done in that case ? I say that that vote must be counted which is properly
authenticated by the certificate of that governor who administers the government of
the State in harmony witli the Government of the United States. The President recog-
nizes the governor of N(nth Carolina; the authorities ot the Federal Goveinment — •
the Congi-ess and all other authorities — are in proper rehitions witli him; tliey have
been in constitutional relations with him ; they recognize liim to-day ; they recognize
him at the time the electoral vote comes, at the time the electoral vote is to lie counted
and it appears by the signature of that executive and by the seal of the State in con-
junction with it that the electoi'al ccdlego was elected by the law of the State as he
re])resents it. Then that vote so authenticated is to be counted.

But it may be said tliat simply official notice of the existence of State officers is
sometimes im])racticable, and positive action must be taken. Wliat then shall be
done ? It is within the power of the President under the act of 179.j to recognize tlie
lawful goverinnent of tlie State ; and, wlnm he recognizes a particular governor an<l
a particular class of officers as the lawful governor and officers of the State, that is
the State government in harmony with the United States, and the electoral vote sent
forward by tlnit authority under the amendment tliat I have submitted would be
counted, or, if Congress had recognized a governor, then the electoral vote sent for-
M'ard and accompanied by his certificate Avonld be counted.

But there is another power than the President. His power to recognize a State gov-
ernment is derived from the act of 1795. He derives his authority from that, ami from
that alone. His act is snliject to the review of Congress. Congress is the last power to
determine Avhat is the true and lawful State government. Congress may by concur-
rent resolution, and perhaps in other ways, recognize the governor and the other offi-
cers who re])resent the true State government. "When Congress iias thus recognized
them by express resolution or in any other way as a Congress, the electoral ticket sent
forward by the government as administered by such officers is the electoral vote which
should be counted. That is the government which the people of the United States
will be satisfied with, that is the lawful government. I say they will be satisfied with
it because the Constitution charges Congress, whenever it shall be necessary for it to
determine the relaticms of the Federal to the State autiiorities, to decide it. and when
they decide a matter thus within tlieir jurisdiction tlie])eople submit to it, just as they
would to a decision made by the Supreme Court touching a matter that came com-
pletely within its jurisdiction, and cheerfully. If they will not, theGovernment would
he at an end and the people but a mob.

That is so, Mr. President, according to the terms of the Constitution, and a reason-
able view of it, and it has been so expressly decided ; and I take pleasure — I have done
it before on former occasions and I do it again — in calling to the attention of the Son-
ate the language 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 Govern-
ment. We cannot study them too much. I do not believe in t!ie idea that wo are not
one people under the Constitution. I believe that this is a nation. I believe that the
States make n\) the Union ; that they are of the Union and the Union is of the States ;
that each is nuide an organ for the other and supports the other, and there is no hostile
element anywhere existing, there is no hostility or adverse right; and wherever hos-
tility appears, it is because the machinery is not properly adjusted and is not properly
operating; it is because of maladministration somewhere. This Government is impe-
rtum in. impcrio ; it is a national Government and State governments combined. Our
system is a mixed government, composed of State and Federal Governments. The Na-
tional Government within its sphere is absolute and sovereign; the States within
their sphere are absolute and sovereign; but the whole nuike 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
co-operate each with the other, and each makes u]i a part of the machinery of the other.
The people of the Union and the Government of the Union are interested in every offi-
cial act done in North Carolina and the people of North Carolina are interested in
every official act done by the ])eoi>le of the Union in every State, and by the authorities
of the Union under the Cmistitution and the laws. This is one system of government ;
it is one whole; and the only difficulty that Senators and statesmen can have is in
ascertaining how the machinery shall bo kept in harmonious action, and that is the

PEOCEEDINGS AND DEBATES IN CONGRESS. 647

<inestiou, 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 mention. In Luther vs. Bor-
den, Chief-Justice Taney, delivering the opinion of the court, said :

" Under this article of the Constitution it rests with Congress to decide what gov-
ernment is the established one in a State; for, as the United States guarantee to each
State a republican governmeut, Congress 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. Ajid its
decision is binding on every other department of the government, 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 under 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-mentioned 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 Government to inter-
fere. But Congress thought otherwise, and no doubt wisely, and by the act of Feb-
ruary 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
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.'

" By this act the power of deciding whether the exigency 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 consequently
he must determine what body of men constitute the Legislature and who is the gov-
ernor 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 ai-nied conflict,
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 government. And the President
must, of necessity, decide which is the government, and which party is unlawfully
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 Governments 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 recognized the proper authorities of the
State, the electoral ticket sent forward by those authorities 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 Congress 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 Congress, and par-
ties 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. MoRTOX. 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 ob-
jection. He proposes 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 such State shall be counted which shall be duly authenti-
cated by the State authorities 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
undertakes to prescribe a rule by which the two Houses shall decide a question arising
upon two returns. Congress would be bound to decide it that way if there was nothing
41 X

648 COUNTING THE ELECTORAL VOTE.

else in it. If there are two returns, aud one comes certified by the recognized govern-
ment of the State and the other comes from a pretended government, if there be no
other objection, that -which comes from the recognized government of the State must
be counted. If Congress should recognize the spurious government or should fail to
recognize the only government 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 anyhow. But the question is whether it does not go too
far. It says "that return which shall be duly authenticated by the State authorities
recognized by and in harmony with the United States as provided by the Constitution "
shall be counted. Now, suppose there are two returns, one from the recognized gov-
ernment and one from a pretended government. Of course, as between the two, we
must take that which comes from the recognized government. But are we bound to
take that return ?

Mr. Merrimox. We ought to be.

Mr. Morton. So far as the government of the State 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 recognized govei'ument is so defective,
or shows such facts, that we cannot receive it. For example, suppose it does not show
that the Constitution 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 ; sup-
pose the return shows upon its 'face that they voted viva voce? 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 authorized to reject a return under the
first section. Suppose, if you please now, that the return which comes up from the
recognized government shows tliat the persons voted for for President and Vice-Presi-
dent both resided in the same State, in violation of another provision of the Constitu-
tion, are we bound to receive it? We should be under this amendment. Under the
first section if there was but one return we should not be bound to receive it. There-
fore I suggest even where the return comes from the recognized government Congress
should be 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. I think I comprehend the honorable Senator.

Mr. MoRTOX. As the amendment stands, if there are two returns, then the case is
taken out from under the operation of the first section, and there being two returns,
that return which is authenticated by the recognized government 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. Merrimox. The object of my amendment 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 forward by the State authorities
in harmony with the United States. The object of this amendment, the legal effect of
it, is to put the electoral 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 bv the government not so recognized out of the case en-
tirely ; and if it should turn out that there is any defect in the returns sent forward
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 concurrent vote under the first section
would i-eject it.

Mr. MoRTOX. The precise point I call attention to is whether that would be the
legal effect of the second section if amended as proposed. I ask the Secretary to read
the second 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. Merrimox. Not necessarily. The only effect I intended it to have is to put the
return that is sent by the authority not in harmony with the United States out of the
case altogether, and put the return sent forward by the lawful authority of the State
aud recognized by the United States on a footing" with the returns sent from other
States. I think that is legal and fair.

Mr. Mortox. Will my friend listen to|the reading as amended? I ask that the sec-
tion be read as it will stand if amended by this amendment.

The Chief Clerk read as follows :

" 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 elec-
tion 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 re-
turn from such State shall be counted which shall be duly authenticated by the State
authorities recognized by and iu harmony with the United States, as provided by the
Constitution."

Mr. Merrimox. I think that a legal construction of that amendment will give it this^

PROCEEDINGS AND DEBATES IN CONGRESS. 649

effect : that, if two returns are sent, that one vrliicli is sent by the authorities of the
State not in harmony with the United States is put out of the count altogetlier and
cast aside ; and then it leaves the returns sent by the authorities recognized by the
United States upon an exactly equal footing with the retui-ns sent from every other
State.

Mr. MORTOX. Let me suggest an addition to my friend's amendment to obviate the
objection, so that he may present the proposition fairly as I think :

"And that return which shall be duly authenticated by the State authorities recog-
aized by and in harmony with the United States, as provided by the Constitution :
Provided, That such return shall be otherwise the true aiul 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 simply to put the returns sent for-
ward by the authorities 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 United 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 authorities ; and, when an emergency
arises so that positive action must be taken, first the President, if called upon, recog-
nizes 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 reverse his action by a joint resolution or otherwise, and declare that
the other authority is the lawful one, the vote sent by it must be counted. This pro-
vision cuts oft" 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 law-
ful government or another government was the lawful government. We need to keep
that (piestion just as far from the occasion of counting the votes as possible.

Let me illustrate this point by putting a supposed case. I will take the case of
Rhode Island during the Dorr rebellion. Suppose that Dorr's rebellion liad succeeded
further than it did and that it had gone on to the extent of electing or appointing an
electoral ticket for President or Vice-President and the charter authorities had done
likewise. Suppose the rival governments had gone to that extent, and the Dorr gov-
ernment had sent forward an electoral return to Congress, and the charter govern-
ment had done likewise. In that case, under the amendment that I have oftered, 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 chartei- government, and Congress might therefore have recognized the governor
under the charter government by joint resolution. In that case, under this amend-
ment, the Dorr return would have given rise to no trouble at all; it would liave been
cast out. There would have been no doubt about it ; and the regular return under the
charter government would have been counted just like the return from any other
State. That is exactly what I want to eftectuate. I wish to cut oft" disputes and quar-
rels that miglit arise at the time of counting the vote by excited factions or excited
parties that might attempt to do an act unlawful in itself to aftect the result at that
momeut.

But, Mr. President, I will not avoid any difiiculty about this question. I want to
meet it, and meet it as fairly as I am able to do. Su[q>ose the case, as it is alleged,
was the case of Louisiana lately, where an election has been held — and, under such
circumstauces 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 Stategovernment. The Kellogg faction sends forward an electoral return ; the Mc-
Enery faction sends forward an electoral return ; and there has been no positive recogni-
tion 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 recognizes one and the other House the other ?

Mr. Merrimon. In that case I think they would be bound to count the one recog-
nized by the President, unless Congress should overrule his action.

Mr. Johnston. Would a State government in harmony with the President, but not
with Congress, be in harmony with the United States ?

Mr. "Ierrimon. Most assuredly not ; the Congress is the supreme authority in such
a case. But that is to say the President is corrupt and has prostituted his office. We
cannot proceed upon such a supposition. Laws are passed on the supposition that the
authorities of the Government will do their duty as they understand it and faithfully.

650 COUNTING THE ELECTORAL VOTE.

Mr. Wh ytp:. Mny I ask the Senator from North Carolina where he gets the authority
from the Coustitutiou to require any certificate from the executive authority. I ask
whether the electoral college itself may not certify its own vote ?

Mr. Morton. The act of 1792

Mr. Whyte. I ask in the Constitution. I knoM^ 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?

Mr. Merrimon. Plainly, by the necessary, the essential, the inevitable implication.
Unless some provision of that sort were made by act of Congress, how could Congress
ever come in connection and contact with the electoral college? It is necessary that
Congress should take some action to provide some means, some evidence by which the
Congress, the counting power, shall know that the State had done its office or the peo-
ple of the State liad done their office in electing electors who make the electoral col-
lege. There is where the authority comes from. It comes by necessary and inevitable
implication ; and therefore the act of 1795 provides that the executive of the State shall
give the elector a certificate of his election, and he shall send it with the certificate of
the return. It is in that way the power is manifest and proceeds from the Constitu-
tion, or, rather, is inherent in it. And in answer to my friend from Virginia, if the
President shall recognize an insurgent government, if he is corrupt enough to do it
when he knows it ought not to be done, I see no other remedy than that the Congress
must be bound by it, unless Congress will reverse his action ; and to say to me that he
is corrupt, deciding with his party for his party's sake, is to say to me that there must
be the end of government, is to say to me the Senate will not act with the House and
count the votes, and Congress will not perform that act, or will not do any other act that
the Constitution charges it to do. We cannot proceed and act upon the supposition that
the President is corrui)t or that Congress is corrupt in any particular manner. The
Constitution supplies the remedy ; and if the President should recognize the State gov-
ernment in the case supposed, and evidence should be oftered tending to show that he
did it corruptly and prostituted his power, he could be impeached for it ; but that is
not a supposable case in debating a question like this.

I do not think that in the case of Louisiana the State government was dismantled
for reasons which I have given repeatedly on former occasions. But suppose a case —
and it is a barely possible case — where a State government is completely dismantled ;
in the first place, I say, it is barely possible that such a case could ever happen. In
the next place, I say that, if it could, it is scarcely possible that when such a return
vrould come to Congress the two Houses of Congress w^ould not concur in rejecting it,
and when they did concur in rejecting it the American people would sanction it. If
the people of a State should behave so badlj', if they should conduct the State govern-
ment in such a way as to dismantle it and prostitute it by general disturbance, so as
not to be able to tell Avhether they have any government at all, the American people
and the people in that very State would say that Congress ought to excludesuch a vote
from the count. Supposethat inthat case the political 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 of March would come ; and, as the law now
exists, when that time came, the controversy would be over. The President of the
Senate jjro tempore, under the act of 1792 would be President and would remain Presi-
dent until, iinder the Constitution, a new election for President and Vice-President
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 jiossible
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. My only apology is that this is a very interesting subject, and I want
to get and give all the light I can. I Avish to consider how the twoHouses sit together
in counting the electoral 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 fail* argument 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 gratified to hear what they have to say on that subject. The strong inclination of
my mind however, is the other way after very considerable reiiection, and I will submit
one or two reasons that have brought me to that conclusion. The Constitution says :

" The President of the Senate shall, in the presence of the Senate and House of Eep-
resentatives, 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
presence of the Senate and House of Kepresentatives sitting in joint session, and I do
not think by any implication we can supply those words. It is not necessary to do it.

PROCEEDINGS AND DEBATES IN CONGRESS. 651

Tbe Constitutiou can operate leaving these words to liave their natural meaning and
force, and by implication or inference we cannot interpolate the words " sitting in joint
session." If the Constitution read : " The President of the Senate shall, in the presence
( i the Senate and House of Representatives, sitting in joint session, open all the certifi-
cates," &c., then I would say without 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 Rouse of Representatives. The
" Senate " has a technical meaning. It does not imply the seventy-four men who com-
pose the Senate as Senators in their individual capacity. It implies the seventy-four
men, or a quorum of them, sitting in this Hall, organized, with a presiding officer, and
proceeding to business under the Constitution and laws. That is what is meant by " Sen-
ate." It has a technical meaning. It means the Senators composing the Senate, organ-
ized 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 question 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 practicable 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 legislative 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([uires the joint action of the two Houses :

"And that return from such State shall be counted which the two Houses, acting
separately, shall decide 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 authorities recognized by and in harmony with the United States as pro-
vided 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 re-
turn to be counted which " shall be duly authenticated by the State authorities recog-
nized by and in harmony with the United States." There is the question still to be de-
cided 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 pretended govern-
ments, somebody must decide that question. We say the President of the Senate can-
not 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 harmonv with the United States ; in other words, which is the lawful gov-
ernment 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
oi^en i ust 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 authority of the State government in har-
mony 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. Some-
times 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 republican form of gov-
ernment. In that case, where the President has recognized the authority, if Congress
has not t. ken 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 provision of the law. Then I go
furtlier and say that, if it was contemplated that such contingencies could arise about
a particular State, it would be competent for Congress in advance of the meeting of
the two branches of Congress to count the electoral vote, to declare by concurrent reso-

652 COUNTING THE ELECTORAL VOTE.

lution, over any action of the President, which was the lawful State government. But
suppose that the wrangle, the conflict, that the Senator suggests, should arise, (which
I endeavored to show was a bare possibility,) anci the two parties, or the three parties,
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 jj>-o tempore of the Senate
would be the President of the United States temporarily, and a new election would
take place under the Constitution and laws.

Mr. Morton. I fear I did not make myself understood by the Senator from North
Carolina. It comes right back to this point : here are two returns opened by the Vice-
President 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 government of the State ?

Mr. Merrijion. I go on the ground that it has been decided before that time.

Mr. Morton. I submit that is to be decided by both Houses, and my friend in his
amendment strikes out that part which requires 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 necessary for him to take action, or act-
ively by Congress ; and if there is a conflict of the parties 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, by lapse of time
and by operation of law, the presiding ofticer of the Senate would become President,
and a new election would have to take place.

Mr. Morton. The Senator says the decision would be made before as to which was
the lawful government of the State ; but who is to decide how that decision was made ?
Who is to decide that question ? Suppose that question arises. I say the President
has decided it, and we are bound by his decision. Another says no, the President
never decided that question ; he did a certain act, but that was not a recognition of
the State government. I will call my friend's attention to an illustration of this very
dithculty on this floor. I have argued in the case that arose from Louisiana that the
President, under the act of 1795, had the power, and that he was authorized thereunto
by Congress, to decide which was the lawful government of the State, and that that
decision was binding npon the whole Government until the United States, through
Congress, by the action of both Houses, determined otherwise. I thought that was
the law then ; I think so now; but that view was disputed, I believe, by nearly every-
body on this side of the Chamber and some on the other side of the Chamber. Then
it was argued that, although the President had so far recognized one government in
Louisiana as to keep the peace under it, he had not done an act which recognized it as the
lawful government. So, after all, the question comes right back. Here are two 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 ({uestion 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, sir.

Mr. Johnston. I uudei-stand the Senator suggests as a mode of avoiding the diffi-
culty that the two Houses may settle in advance the question suggested by the Sena-
tor from Indiana, but he provides no means of informing the two Houses officially that
two returns exist. The returns are required to be sent to the Vice-President and re-
main 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. Merrimon. 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 officially, 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 condition of the State and take jiropex 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. Merrijion. I endeavored to explain th:it a moment ago. That case is barely a
possible one, and not at all pn)bable. In that case the controversy would go on until
the 4th of March, as tlie law now stands, and the count of the vote for President and
Vice-President would lie defeated, aud another election would have to take place under
the Constitution and laws.

Mr. Johnston. I ask the Senator this question : The Coustitution provides that the
certificate of returns shall not be opened until the two Houses meet iu joint convention.
How can the question as to which are the true returns be said to be up until the re-

PROCEEDINGS AND DEBATES IN CONGRESS. 653

turns are opened ? The Constitution provides tliat they shall not he opened until the
two Houses meet in joint assembly. How is it possible to settle the question in advance I

Mr. Merrimon. I thought I had answered that, but I will do it again.

Mr. Johnston, I do not think the Senator can answer it very well.

Mr. Merrimon. I think I can. My friend does not make it so by simply saying so.
I cannot make anything so by simply saying it is so ; I must have some reason to
underlie my assertions. 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 covmt the votes
arrives for a member of Congress to bring it before the House or the Senate 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 resolution, uuder the decision of the Supreme
Court which I have read from, it would be the duty of Congress, the duty of the Su-
preme Court, the duty of the President and all other otificials of the Union to recognize
that as the true and lawful government.

But then ray friend's question goes further than that. He says, how could you tell
until the returns were opened which was the lawful return 1 Suppose the moment the
return is opened and it is handed to the tellers appointed 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 Presi-
dent, Congress having taken no action, and the count wouhl 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 working 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 question is on the amendment proposed by the Sen-
ator 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 substance 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 laidupon 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 Senators 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 ol>jections urged by the Senator from Virginia [Mr, Johnston] and the Sen-
ator from Texas, [Mr. Maxey,] among others. I have offered it in the spirit of com-
promise. It seems to me to cover some of the objections that have been offered by the
Senators from Virginia and Texas, and I believe by the Senator from Tennessee, [Mr.
Cooper.] I now offer as an amendment to the pending bill the additional sections
which I send to the Chair, and I ask the Clerk to read them.

The Chief Clerk, It is proposed to insert as additional sections to the bill the fol-
lowing :

" 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 immediately forward to the other a true and detailed return 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 re-assemble, and the President
of the Senate shall announce those 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,

" 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,"

654 COUNTING THE ELECTORAL VOTE.

Mr. Randolph. The Senator from Indiana, 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 atteution 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 Con-
gress in one way or another will decide, and must decide, which the true returns of a
State are, and the difflculty that has been so frequently suggested in the course of
this debate is overcome by it, and that too in a plain, practical manner.

Mr. Christiajsxy. 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 Constitu-
tion for the two Houses to meet and act in joint convention. It appears to me from
the reading of the Constitution that they act in their separate 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 competent. It ]}vo-
vides that :

"The President of the Senate shall annouiice 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."

If that does not make a joint convention I am incapable of understanding the lan-
guage. 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 iioint, however. The main thing, and it seems to me the
sufficient one, is that it attempts to make a joint convention where the Constitution
requires the two Houses to act in their separate capacities.

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 .lersey. It proposes
to have the effect of a joint convention withoiit having it in fact. The two Houses
shall vote separately, but, if they disagree, then we shall count the number of votes in
the House and the number of votes in the Senate, the number on the oue side and the
number on the other side, and whichever aggregates the largest in favor of the return,
that shall be counted. For example, there are two hundred and ninety-two votes in
the House: one-half is one hundred and forty-six; seventy-four 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 favor of one set of returus and one hundred and forty-six votes
in the House in favor of the same set, then add those two sums together and that makes
the majority, and decides it. I state it correctly?

Mr. Randolph. Yes, sir.

Mr. Morton. I think that would be a very great anomaly under our Constitution,
and it would hardly work.

Mr. Randolph. I endeavored to show, in presenting the original amendment, that
so far from this being an anomalous condition of affairs, as the Senator from Indiana has
stated, in certain contingencies the States would practically decide the result through
the vote of the Senate ; that in other contingencies the House of Representatives, and
thus the people, would decide ; and that in still other contingencies, when the aggre-
gate vote of the two Houses left the matter evenly divided, then, and in that event
only, the President of the Senate with his casting vote would decide, as was contem-
plated by the amendment of the Senator from Texas. So then, it seems to me, if I
may use the word, that the chances are equal in favor of one or the other of these
plans ; that no special advantage is given under the proposition I have made either to
the Senate, to the House, or to the presiding oiBcer of the two bodies. I am aware
that the plan is 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 fix-
ing 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 amendment 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, being taken, resulted — yeas 15, nays 37; as fol-
lows :

Yeas— Messrs. Bayard, Caperton, Cooper, Davis, Gordon, Johnston, McCreery, Randolph,
Ransom, Saulsbury, Thurman, and Withers — 12.

Nays — Messrs. Bogy, Boutwell, Burnside, Cameron of Wisconsin, Cbristiancy, Conkling,
Cragin, Dawes, Dennis, Dorsey, Eaton, Edmunds, Ferry, Freliughuysen, Goldtbwaite, Ham-

PROCEEDINGS AND DEBATES IN CONGRESS. 655

lin, Howe, Jones of Florida, Kelly, Key, Logan, McDonald, McMillan, Merrimon, Mitchell,
Morrill of Maine, Morton, Oglesby, Haddock, Patterson, Sargent, Spencer, VVadleigh, West,
Wbyte, Windom, and Wright — 37.

Absent — Messrs. Alcorn, Allison, Anthony, Booth, Bruce, Cameron of Pennsylvania,
Clayton, Cockrell, Conover, English, Hamilton, Harvey, Hitchcock, Ingalls, Jones of Ne-
vada, Kernan, Maxey, Morrill of Vermont, Norwood, Robertson, Sharon, Sherman, Steven-
son, 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 chairman 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 necessity 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 sentence is :

"And any other question pertinent to the object for which the two houses are assembled
may be submitted and determined in like manner."

It seems to me that if a question is submitted and the two houses do not concur in reject-
ing it or in the negative, then, under that language, it would be determined in the affirmative.
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 consideration , and such question ought to be determined 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, "de-
termined in like manner," if the " like manner" refers to the provision 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
presented and the two houses do not agree against the motion made, it seems to me it logi-
cally follows that it would be adopted.

Let me put an illustration: Suppose that during the time of counting the votes some per-
son shall move that a committee be appointed, that the subject under consideration be re-
ferred to a committee of three or five. The two houses separate and vote upon that question.
That is a question legitimate and pertinent to the matter under consideration. The House
of Representatives determines to vote for the committee, the Senate against it. It seems to
me from this language it would follow that the committee would be raised.

Mr. MoRTOX. I would say to my friend from Iowa that if he makes a motion to strike
out that sentence, as far as I am concerned 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 following
words :

"And any other question pertinent to the object for which the two houses are assembled
may be submitted and determined in like manner."

Mr. Thtrman. 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 Fresident pro tempore. The question is on the amendment of the Senator from
Iowa.

The amendment was agreed to.

Mr. Wright. I suggest also an amendment 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 intended
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 recess of
the other. I therefore suggest that in line 16 of section 4, between the words " recess " and
" not," the words " of such house" be inserted.

Mr. Morton. That is what it was intended to mean. I have no objection to the amend-
ment.

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 thereto."
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 omitted 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 con-

656 COUNTING THE ELECTORAL VOTE.

strued 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
misconstruction as to the rule that would obtain in deciding such questions.

Mr. Thuriman. I think the words ought to go out. They were stricken out of the pre-
vious bill, and I 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 objec-
tionable 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 proceedings, 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. I hope
therefore there will be no objection to striking those words out. I want this bill to com-
mand as universal assent as it is possible to obtain for it, and these words are very obnox-
ious to some.

The President ])ro tempore. The question is on the amendment of the Senator from
Ohio.

The amendment was agreed to.

Mr. Thurman. I wish to call the attention 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 provides : " 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. I 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 part of
the Senate and two on the part of the House ; but I see no reason for that. I have no ob-
jection to the amendment.

The President ;iro tempore. The question is on the amendment of the Senator from
Ohio.
The amendment was agreed to.

Mr. THURiMAN. 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 calling 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 contrary, they call the States in the order in
which they were admitted into the Union for petitions 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 chairman
of the committee says he has no objection to the amendment.

The President j)ro tempore. The question 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 Representatives shall assemble in the hall of the House
of Representatives at one o'clock, "&c.
The amendment was agreed to.

Mr. Merkimon. 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 Commit-
tee 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 desire at this late hour, after the prolonged discussion
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 himself 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 dis-
cussing amendments, and my good friend the senior Senator from the State of Rhode
Island [Mr. Anthony] gave the key to it. When a proposition was made that the House

PROCEEDINGS AND DEBATES IN CONGRESS. 657

of Representatives as States should vote upon this subject, my good friend the Senator from
Rhode Island su^gjested, why not put in the words " the next democratic national conven-
tion ?" This question ought not to be approached in any way in a party spirit. I will not
be accused of discussing: this question from that stand-point, because I undertake to say
now that the Constitution is perfect to-day.

Mr. Hamlin. I was going to make this suggestion with the consent of the Senator from
Connecticut : I ask that this bill be informally 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.

March 24, 1876.

The Senate 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 passage of the bill.

Mr. Eaton. Mr. President

Mr. Bl'RNSiDE. 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 ofter in
the Senate the amendment of the Senator from Tennessee, [Mr. Cooper, ] 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, there-
fore, understanding the motion of the Senator from Rhode Island to be for the reconsidera-
tion of the vote by which the bill passed to a third reading, it will prevail, and that no ob-
jection 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 the bill is now open to amendment.

Mr. BURNSIDE. I now otfer my amendment. There is a misprint ; the amendment is in-
tended 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-President in such State, he shall immediately make a report 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
before the last Tuesday 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 electors were
legally elected ; and|the returns sent by the electors so designated shall, if in all other respects
they are legal, be counted before the two Houses."

Mr. Bl'RNSiDE. 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 be adopted before the presidential election of 1880,
I 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 discord that may arise from double sets of re-
turns 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 re-
turn from that State decide the election,jit is clear to me, and must be clear to every Senator
here, that the two houses would disagree upon that subject. It is clear to me that the present

658 COUNTING THE ELECTORAL VOTE.

House of Representatives, the same House which is to act when w^e count the electoral votes
at the next presidential election, would declare 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 eifect.

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 electoral votes are counted next February ? Does any
Senator believe that there would not be great discord in the country if that state of affairs
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 coastitutioual 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 Constitution. It
is simply a call from Congress on the Supreme Court to perform the reasonable duty of in-
structing them as to which is the legal government, and which set of electors were legally
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 jurisdiction.

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 directly 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 co-ordinate branches of the Government, to perform this work for Con-
gress ?

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 ac-
customed to regard the decisions of the Supreme Court as of great authority ; they are ac-
customed to respect them, whether they are for or against them. There is no mode I can
think of that would give such rrniversal satisfaction to the whole people.

Another thing is very clear to me, that it was never the intention of the framers 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 Con-
gress has any right to judge of the qualifications of the electors.

The framers of the Constitution probably never expected a difficulty of the kind we are
discussing would arise. It is an unforeseen trouble which is presented to us, and we as rep-
resentatives 6f 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
tilled. 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 Connecticut for yielding me the floor.

Mr. Eaton. I had supposed, Mr. President, 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 be-
fore I proceed to the discussion of the bill, I will say a word or two in regard to the amend-
ment which has been offered by my distinguished friend from Rhode Island, [Mr. Burn-
side.]

In my view of the Constitution of the United States, it is not competent for Congress to
legislate 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 Con-
gress 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 p<'oposition, and, in
my judgment, in no other manner. Therefore, Mr. President, I shall vote against that
amendment.

Mr. Bavard. 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 Presidknt pro tempore. The amendment 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 amendment which has just been offered by the Senator
froai Delaware I have no question as to the constitutionality of. If the House and Senate

PROCEEDINGS AND DEBATES IN CONGRESS. 659

see fit to legislate on this question, it is competent for tbem to adopt an amendment of that
character in accordance with the Constitution of the United States, as I understand that in-
strument. Objection was made the other day to this amendment, or one of a similar char-
acter, by the honorable Senator from Indiana [Mr. Morton] because it g^ave to the States
too much power, because it g^ave to tlie 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 ot the United States, under certain circumstances the States
hold that power, and I know of no reason why Connecticut and Delaware and New Hamp-
shire and Massachusetts, States belonging 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 amendment.

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 laud, I trust will prevent from allowing
any partisan feeling to appear.

It may not be unimportant to allude to the great contest in If'Ol, which contest discovered
to the people of the Union that there was a great and lamentable defect in the Constitution
of the United States. By the very means ot that defect in the Constitution the
wishes of a large majority of the people of the United States came very near being de-
feated ; an individual came very near being elected President of the United States who did
not receive in fact one single vote within the limits of the Union for that high office.
Thomas Jetlerson and Aaron Burr were the candidates of the then republican party for the
offices of President 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 be-
cause a majority 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 contest 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 ]80l honest public men, as I believe there
are in 1876 honest public men. There were on that occasion men who trod under foot
their political 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,
without regard to their political opinions. Mr. Jefferson was elected. Mr. Burr, of course,
by the terms of the Constitution was elected to the second office. An amendment to the
Constitution 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 186.5 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 unwiseness, the absurdity, the foolishness of that
action. I take occasion now to say that we had better not again be guilty of any such ab-
surdity or foolishness of that character.

Sir, there are two questions which each Senator ought to answer to himself. First, have
we the power to legislate on this subject? Under a clause ot the Constitution, I have no
doubt that where the instrument is not plain in its terms, where its implied powers are not
thoroughly understood and agreed upon, it is within the province of Congress to legislate
upon tlie subject. Therefore in my judgment, as in the opinion of other Senators, legisla-
tion may be had when necessary to carry out the implied powers of the Constitution ; but I
desire to impress it upon every Senator in this body that all such legislation should be
avoided, if possible. 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 of Repre-
sentatives, 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
occasion, 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

660

COUNTING THE ELECTOKAL VOTE.

any difficulty, there never was even (and that is the trouble 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 my judg-
ment, it has not ever been thoroughly discussed before, because there has been no necessity
for the discussion.

But, sir, in 1865 — and why, I do not know; why, I cannot conceive; why, I have never
heard anybody say — honorable gentlemen, acting under doubtless a hisrh 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 difficulty under the Constitution. Right in the throes of war, with a Vice-President
occupying the seat which you ho^or 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 necessity, 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 personal 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 disfranchising a people, but I say it has had the effect.
But no matter why ; the very fathers of it disown the child. It is no longer the rule. It is
repealed. Now, sir, where does the repeal of that rule leave us 1 That is the question. One
good thing was done when the rule was repealed; but where does that leave us'? The re-
peal of that rule leaves us exactly where we were before the rule was passed. The Consti-
tution of the United States is now the governing power of the Senate and House of Repre-
sentatives with regard to the election certificates of which I have spoken. The action of the
Congress of the United States, or, if gentlemen desire to be technical, the action of the Sen-
ate and House of Representatives of the United States, under this clause of the Constitu-
tion, was for seventy years honest, honorable, upright, just. What business has any man
to suppose that it is going to be dishonest and corrupt hereafter ? Sir, it is an old saying,
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 aloug 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 btit what its advocates could find
reasons, poor ones, not unfrequently ; 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 thor-
oughly discussed by the legal talent of the United Slates; it has been discussed, but not
thoroughly. Does it rest with one man ? Not in my judgment would the exercise of the
power 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 sup-
pose it does ; let us for one moment consider the question from that stand-point. Suppose
it does rest in the hands of the Vice-President of the United States or the President ;;ro tem-
piire of the Senate. For 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-Presi-
dents wtio have been candidates for re-election or for the presidency have exercised this power.
Six times in 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 laud, and why beg
a fight now 1 Why insist upon it that there is to be corruption hereafter ?

Mr. President, one would suppose, I have been almost induced to suppose, that houorable
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 before 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 particu-
larly 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 vot«s were opened,
the certificates were counted, the election declared ; everything went along as pleasant as
a mariiage-beil.

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 vote of Wisconsin ; but the danger that the
nation passed through at that time, and avoided simply by the fact that the vote was not im-

PROCEEDINGS AND DEBATES IN CONGRESS. 661

portant 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 elec-
tion 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 upon
this bill. In the minds of many men whose opinions are deserving of great respect, among
them the honorable Senator from Indiana and my distinguished friend from Ohio, [Mr.
Thurman, ] 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 Representatives, open
all the certificates, and the votes shall then be counted." By whom? I insist, and I assert
without fear of successful contradiction, giving due weight to the argument of my distin-
guished friend from North Carolina [Mr. Merrimon] made yesterday, that the votes are
counted by the Senate and the House of Representatives, and not by the Vice-President or
the presiding oflicer of the Senate. In my judgment, the Vice-President is the organ of the
two houses, and nothing else. It has never been my fortune, whether good or ill, to be
present there as an actor or a spectator when the votes have been counted for President and
Vice-President.

Mr. Saulsbury. If the Senator will allow me, he says the presiding ofiicer 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. Saulsbury. To count ?

Mr. Eaton. No ; to open. Will my friend state the question again?

Mr. Saulsbury. I understand the Senator 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 1 under-
stood him correctly. Then I follow the precedent. 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 f

Mr. Eaton. They do now. They do it every time they meet. They always do it.

Mr. Johnston. 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 distinguished friend from Delaware consisted
in this : I said that the President of the Senate was the organ of the two houses for a cer-
tain purpose. 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 1860-6 1 , and I will read from page 894. I think I am entirely right. The
manner of going into the House, &c., I will not read :

" The Vice-President took his seat on the right of the Speaker of the House of Representa-
tives, and presided over the joint convention of the two houses. The members of the Sen-
ate occupied seats provided tor thein in the area of the hall.

" Mr. Trumbull, the teller appointed on the part of the Senate, and Messrs. Phelps and
Washburne 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. " The teller appointed oil 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-President 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 Constitution, to
open the certificates of election in the presence of the two- houses of Congress. I now pro-
ceed to discharge that duty."

That is all he had.

" The Vice-President then proceeded to open and hand to the tellers the votes of the sev-

662 COUNTING THE ELECTORAL VOTE.

eral 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 constitu-
tional lawyer than that 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 Eepresentatives, through their 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 laud. Take the other view of
this case. What are we, if we should live until the time arrives, and what are the members
of the House of Eepresentatives? Witnesses 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 Representatives or
somewhere else as mere witnesses of a pageant ; under, as some Senator observed, a sepa-
rate organization : the House under its Speaker, the Senate under its President. Our fathers
who formed this Constitution 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 to 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
into 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 tempore of
the Senate occupies the position. Further, for I propose to meet this whole question. I will
suppose that we are in joint convention next February. Our distinguished friend, the Pre-
siding Officer of the Senate, who, I take the liberty to say has been exceptionally fair as Pre-
siding 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 seal of the "Nutmeg " State and get two returns here ; but I will suppose that
two returns do come up from Connecticut. I will suppose that, not the distinguished Sen-
ator from New York [Mr. Conkliug,] (for he might not like to count on that occasion,) but
my good friend the Senator from Massachusetts nearest me [Mr. BoutwellJ is the teller ap-
pointed by the Senate. Two tellers have been appointed 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 State of Connecticut. Does he count them ? No ; a thousand times, no. He has
no warrant for it. There is no wanant in the Constitution ; there is no warrant in practice
for it. What does he do with those two returns? He passes them over to the honorable
Senator from Massachusetts, our teller, and the two honorable tellers from the House of
Representatives, 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 mem-
ber 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 Presi-
dent 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
question would be tried, tried there, and properly tried. Then the joint convention would
determine which was the true return ; and, after the joint convention had spoken, the world
would be satisfied. I say that, after the joint convention of the Senate and House of Repre-
sentatives of the United States speaks authoratively 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 Representa-
tive having one vote ?

Mr. Eaton. Undoubtedly. Under my view, it is decided by a majority vote of the con-
vention. I am very well aware that the Constitution does not expressly say that.

Mr. Johnston. Will the Senator allow me to ask him a question f

Mr. Eaton. Certainly.

PROCEEDINGS AND DEBATES IN CONGRESS: 663

Mr. Johnston. Does not the Constitution provide that tl;e 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 poi it it out
to me.

Mr. Johnston. It applies to all questions that come before that joint convention.

Mr. Eaton. It ajtplies to this I admit. I do not see the point, and there is not any, 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 nui to ask a question ?

Mr. Eaton. Certainly.

Mr. Whyte. I ask if that very question did not come up in 1857 ; whether Mr. Majoa
did not walk out with the Senate, without having any vote iu the bo-^y at all ?

Mr. Morton. Held it was not in order to nmke any motion.

Mr. Why'TK. Refused to hear any proposition.

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 precedent ?

Mr. Eaton. It will be; but, to use a common expression, "that skewer will not hold
water," in my judgment. It is a joint convention. I have not time to go back and find,
but I presume that the very Glol3e in which the account is printed calls it a joint con-
vention. 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 disenfranchising 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 iu the Constitution ; but time forbids. Is there any danger to be apprehended to
the country— that is the point that I desire to be camly 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 Constitution ? Why, sir, the great right of the people is
preserved intact, the right to have the certificates opened and counted and the result de-
clared.

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 rale." That is true. Party majorities rule everywhere. I recognize the objection
and its force ; but let the construction of the Constitution bo final ; let us kno " 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 conies in
everywhere. The very amendment that has been offered to-day in good faith by the dis-
tinguished Senator from Rhode Island gives to a party man the decision of this question.
There is nobody in the United States that is worth having, there is nobody iu the United
States that can decide the question intelligently, that is not in some way connected witli
some party organizatiou Of necessity he will not be a partisan in the decision of this
question. God forliid ! If you should give to the Supreme Court, if you could, the right
to decide a question of this magnitude, while I should know that a majority of them be-
longed to a party different from the one to which I was attached, yet I should believe and
expect that their decision 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 pertorui 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 be — let nie suppose that under the Con-
stitution the power is vested, not as I claim it to be vested in the Senate and House of Rep-
resentatives, 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 Pres-
dent of the Senate I have entire confidence. Therefore I say that if I am wrong in my con-
struction, let us have no legislation and let this power rest where our fathers placed it.

Again, by a decision of the Senate the power is claimed — and I will not undertake to say
■wrongfully — that they have the right daily or hourly or fifteenminutely to make a new presiding
officer of the Senate. If that is suggested as an objection, 1 have to say that I have confi-

42 X

664 COUNTING THE ELECTORAL VOTE.

dence in the American Senate. I do not believe a majority of the American Senate would
place a man in that chair to disg-race 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 is wrong and that taken by others is right, whoever
occupies that chair in February next will have the proud honor of declaringand an'nouncing
the tuture President and Vice-President of the United States ; and, sir, he will do it hon-
estly. With the eyes of the Senate and House of Representatives, with the eyes of forty
millions of free people, with the eyes of the whole civilized world upon him, he cannot dis-
grace himself. Whatever other men may think, I will not believe that integrity is a myth;
I will not believe that our form of government has become 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 tp this hill, 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 frand ; not that my distinguished and honorable
friend from Indiana [Mr. Morton] and my equally distinguished and honorable friend from
Ohio [Mr. Thurman] so intended it; God forbid. They cannot think that I 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 de-
stroy and disfranchise the vote of a State. Therefore I will vote against the bill!

No legislation in my pulgment 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
require 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 Constitution 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 my judgment answer for the people in the future ; but no legislation upon this
matter is required, especially no legislation under 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 Vi e-President of the United
States.

Mr. B.W.ARD. 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 ol direct provision in the Constitution
in relation to this question of the count of 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 American people, they will
have expressed their will in regard to their candidates, and it would simply seem that noth-
ing more was left than a declaration of results which had already been completed. From the
foundation of this Government up to ]t^72 there had been one remarkable feature, the com-
plete 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 contest 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 consideriug a question like this, a very grave and important lesson
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 gratification. 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 those people as their representatives, 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 mav, 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 traud in a matter touching
their interest^ so deeply as their 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 Government has been framed 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 be reached in this important matter of counting
these votes, I have felt the truth of Lord Bolingbroke's saying, versified by Pope :

For forms of government let fools contest,
Whate'er is best administerd 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 appointed for the mere arithmetical calculation of the

PROCEEDINGS AND DEBATES IN CONG^iESS. 665

votes cast never was questioned in this country until in 1872. Then, under the maleficent
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 one or more communities at
will. It was done. It was done in the case of Louisiana. It was done in the face of
ballols then in existence, done in the face of returns then in existence which proclaimed
palpably that the election had 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 declaration 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, unsatisfactory 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 judgment, no sugges-
tion of discretion, but simply the power to recite in a public meeting the result of action
which has taken place theretofore in the States, and which is certified, accordmgto the Con-
stitution of the United States, to a certain officer of the Government. If the spirit which I
trust will yet be t e ruling spirit of this country, of self-respect in officers, of self-respect in
people, of duty and fidelity to tiie great trusts of government — if this spirit shall prevail, I
shall not fear that low fraud can ever be perpetrated in high places without instant 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 recognizes that fact as a possibility, that without the machinery
for conducting a contested election 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 confed-
erates, ten in number say, from the same State, are voted for against ten other men as elect-
ors 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 declara-
tion, meet and go through the forms of casting their electoral votes for a candidate, and
send up here to the President of the Senate that which purports to be the result of their pro-
ceedings and a certificate of how their votes were cast. It has been done ; the evil sugges-
tion has been made, and this bill proposes 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, because 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 peruiauent form of a law, which can only be rescinded
by the vote of each House and the signature of the President. Therefore to provide for
meeting this question by legislation seems to mc the proper way ; and the only remaining
consideration is whether we have the power under the Constitution so to deal with the sub-
ject.

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 necessity 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 satisfaction and with safety. But until that may be done, I still hope
that there may be found warrant for some action which will make confusion, injustice, fraud,
and escape from popular results difficult, if not absolutely impossible.

Here, by this first section, provision is made for the orderly count of the votes, and that no
votes shall be rejected without the concurrent 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 which the concurrent
voices of the two houses, acting 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 Constitution, 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.
1 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 electmal vote shall not be excluded from the canvass.

Many propositions have been made, and chiefly on this side of the chamber, to insure this

666

COUNTING THE ELECTORAL VOTE,

result. That wliicli was offered by my friend from Tennessee [Mr. Cooper] came nearest to
meeting my approbation, i was absent accidentally from the chamber, as was he, at the time
the vote was taken upon it. and for that reason I have renewed the amendment, and now oc-
cupy the attention cf the Senate for a few moments while I discuss it.

It will be observed that the sole duty and the sole power of the two houses meeting' to
witness this counting, and the sole result of that joint convention under the Constitution iu
the hall of the House of Representatives, is tiie ascertainment of a majority of the electoral
votes for a candidate for the Presidency and likewise for the Vice-Presidency. The Consti-
tution requires that the person taking this office shall have a majority of all the votes of the
electoral college; and, unless that majority shall be found and shall be declared, no election
has taken place; and then, immediately upon the failure to ascertain and declare such ma-
jority, the power and the duty at once devolve upon the House of Representatives to choose
by ballot the President from those two persons having the highest number of votes. What
shall defeat the possibility to declare a majority if there be but one return from each State,
as there should be it decorum, if self-respect and decency shall govern the American people
as heretofore, with the single exception of the case of Louisiana in 187'2 ? Then there will
be nothing but the arithmetical calculation of the votes as contained in the single certificates
sent by each State to that joint assembly. But if there be a double return, the impos.sibility
of declaring the majority becomes manifest ; and then what is the course plainly provided
by the Constitution ? An election by the House of Representatives, the States voting as
States. I do not propose to discuss — it is not necessary — the advisability of this feature of
the Constitution. I think a great deal could be said to show why it was wise and right ;
but, whether wise or otherwise, it is the method pointed out by the Constitution, which we
are all sworn to obey ; and it seems to me that, when we have reached a point when a de-
cision must be made in regard to matters not apparently provided for, we can show our
duty to this Government and our subordination to the provisions of this charter in no way
so well as by adapting them to the case in hand. Therefore, if it shall be that two returns
come up and the two houses do not agree that the proper return shall be counted, then the
amendment of the honorable Senator from Tennessee proposes instantly that the tribunal
shall settle the question of the proper return which the Constitution has required to choose
the President, in case a majority has not been declared of the electoral votes iu favor of one
the candidates. The method proposed is in precise analogy, it is not only in analogy but
it is iu direct obedience to the requirements of the Constitution that confide the question of
election immediately to the House of Representatives, that they shall vote as States indi-
vidually in the 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 candidate.

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 verj' important in my opinion that an arbitrament should be provided in advance
for this question of double returns. Double returns are iu their nature and suggestion
fraudulent on one side or the oiher, because there can be but one set of electors chosen, and
those who contest it unjustly necessarily are fraudulent. Now, if it shall be known in ad-
vance that we have provided a test for this, if it shall be known that we have pro-
vided 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 auy idea that the House of Representatives will be
called upon at all to act under the provisions of the amendment which I have sent to the
Clerk's table. Those who propcjse this species of contest — because there must be of these
two returns but one that is rigi t— 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 ma-
jority 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 sub-
ject, when that power and duty is confided to them, we may be sure that the attempt at a
double returu will never be made, and the count of the electoral vote will proceed with all
that dignity, with all that simplicity, with all that impressiveness which marked it in days
gone by.

The spectacle of an administration charged and possessed with all the gre^t 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 iu other
lauds to the violent amotion of rulers no longer desired by the people, but it has been, I be-
lieve, 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 order, with dignity, and with simplicity.

It is my earnest desire that all causes of dissatisfaction, of conflict, of misunderstanding,
of possible difference should be removed, if possible, in advance by some action now in the
shape of legislation by Congress. I believed at the beginning of this session, and still be-

PROCEEDINGS AND DEBATES IN CONGRESS. G67

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 seclusion and retirement, without any of the excite-
ment of debate, arraufre 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 concurrence
of the House, a committee of conference may yet arrange it. I cannot conceive how any man
tan so degrade this subject as to biing it down to a mere partisan level. I cannot see how
any man contemplating- the great difficulty of this subject should not be willmg 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. IJelieving that the amendment
ottered 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 somewhat of inadvertence, I trust
It now will receive the approval of the Senaie.

As I have said before, I believe the constitution 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, because
defeat certainly will await it. " Forewarned 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 contest 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 opinioa
that lias 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 tjecessity
•of having some established rule when the time comes to count the presidential vote.

Let me suppose, for the sake of the argument, that the two houses have assembled in the
ball of the House of Kepresentatives to count the votes ; let nie suppose that two sets of
electoral votes have bten sent here from the State of Connecticut, and they are opened by
the President of the Senate. Wliat shall be done ? The Senator from Maryland [Mr. Whyte j
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 Kepresentative having one vote ; that is the only constitutional method of settling this
question between flu se electoral votes." He takes his seat. Then the distinguished
Senator from Ohio [Mr. Thurnian] rises in his place and says, " No, a thousand 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 cen-
tury." I understood my friend from Conuectunit to say to-day that for three-quarters of a
•century the idea of a joint convention had been recognized. I submit that my friend was
mistaken in this, that for three-quarters of a century it never was recognized, and I think
was never seriously proposed by anybody. The Senator from Ohio says the Senate and the
House of Representatives 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 con-
vention utterly unknown to the Constitution, entirely anomalous under our system of gov-
ernment ; but it must be decided like any other question, by the Senate and House of Rep-
resentatives, 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
confusicm equal to that which prevailed at Babel. How is it to be settled ? Shall the two
houses separate, go to work, and legislate on that question ? That may take days. It has
taken us seven days here now, in a time of profound repose, to consider this bill, and I am
not sure that we shall get through with it to-day, for I am in momentary apprehension that
some Senator will get up and move an executive session. But here the votes are to be
counted. The 4th of March is close at hand. An utter diversity of opinion exists as to
•where the power is. The two houses cannot separate and legislate. What is to be done'?
We can easily understand what will intervene. It was suggested by the Senator from Dela-
ware a while ago that, in case an officer shall make a wrong decision, the moral reprobation
of the world would fall upon him, and he said perhaps physical punishment; that is, he
might fall like Caesar. We can understand when such vast consequences are to depend^
upon the exercise of a power that may be a clear usurpation, and would be in the opinion of
a majoiity of the people of this country, that that usurpation could not pass with impunity.
How, then, can we decide that it shall be done by a joint convention in the passion and ex-
citement of the hour and with such vast consequences depending upon it? How, then, can
we decide that it shall be done by the two houses, acting separately? It might be under-

668 COUNTING THE ELECTORAL VOTE.

stood that, it the two houses were to act separately, the question niigjht be decided one way
if by a joint convention, another way; and if by the President of the Senate, possibly an-
other way ; and the immediate result of the adoption of one or the other of these methods
would come in largely to influence the judgment and increase the confusion and the dangler
of the hour. Therefore, I exhort >Senators to avoid this danger by agreeing upon some
method. It is not so important what that method is as that there shall be some plan agreed
upon that will avoid these dangers which are right before us.

Mr. BAYAnD. I concur most earnestly and warmly in this invitation of the Senator from
Indiana ; and there is now, by the amendment of the Senator from Tennessee, which I have
offered again, a fair and a constitutional arbitrament, where the two houses shall disagree,
to prevent the occurrence of tliat which my honorable friend from Indiana and I both so
justly dread and deplore. The proposition is this, that we shall leave it just where our fathers
left it ; we shall leave it to the same body, acting as they said that body should act when
the broad question of thf^ election of President, without respect to the mere contest of votes,
should be before them. Leave it jnst as they left it, to that body for its decision which
they said was the proper one to decide the great question of elections, when a majority of
the votes of the electoral college had not been declared by the houses in joint convention to
have been cast in favor of any candidate. I agree with my friend that it is not so niucli the ques-
tion as to how you shall have this matter settled, although it is important to us as citizens
under a constitutional government and acting under its limitations, that we should not cre-
ate a tribunal unwarranted by the Constitution ; but here is a tribunal pointed out by the
Constitution as the peculiar and tilting one upon whom immediately shall devolve the duty
of electing a President and Vice-President in case a majority of the electoral votes have not
been ascertained to have been cast for any particular candidate. What objection can there
be in my friend's mind to adopting this proposition now, offered by tLe Senator from Ten-
nessee ?

Mr. Morton. Very briefly will I attempt to answer the question of the Senator from
Delaware and to state the objection to referring the decision ol' the question to the House
of Representatives voting by Slates. First, because the Constitution has made no provis-
ion 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, dangerous method, in a certain case ; but in no
other contingency is ihere 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. Whvte. I want to ask the Senator from Indiana if he does not really, under the
second section of this bill, in a certain contingency, do the very thing that he now objects to
doing; that is to say, upon a certain contingency throw the election into the House of Rep-
resentatives ? 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 !^4 undisputed votes, which he could do by getting
Illinois and Nevada and Nebraska. Suppose the democratic candidate gets ItiO undisputed
votes, leaving 8 votes, the votes of Louisiana, to determine whether the republican candi-
date was elected or not. Suppose that in Louisiana there is a contested electiou of great
violence. The independent candidate is supposed by one party to be elected ; the republi-
can 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 republican
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, cer-
tify under the Constitution, if there is no provision for the executive authentication of their
election, that they have voted for the independent 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 candidates
were elected. They separate. The House stands by the independent organization, the
Senate stands by (he republican election, thus defeating the election of President and
throwing it into the Hou>e of Representatives under the second section of the bill.

Mr. MoirroN. I think the precise contingency 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 iavor of an independent candidate: but that is the precise contin-
gency which the Constitution has provided lor when it declares that unless some one per-
son shall have a majoiily of all the electors appointed, the House shall immediately proceed
to elect by Mates. How does that change the principle ? The Constitution has provided
for the action of the House by States only in one case. Shall we extend that principle?
The Constitution does not provide lor the House ever deciding any legislative or judi-
cial 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 ot an election ?

PROCEEDINGS AND DEBATES IN CONGRESS. 669

The first election of President by tire House took place in ]801, the House voting by-
States. The delegation from two States was divided from the 10th of February to the 17th,
from the first to tlie thirty-sixth ballot, Vermont and Maryland. The dead-lock was finally
broken by an iiitris^ue, one member from Vermont dodginpr the vote, going out of the
House, and two members from Maryland casting blank ballots. The history of that elec-
tion, 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 Rep-
K sentatives to office. More, there is an affidavit on tile — 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
Jefffrson was finally made, was controlled by an agreement that the collectors of the dis-
trict of Delaware and of the port of Philadelphia should not be removed by Mr. Jetfersou.
That election came near making shipwreck of the Government at that time. What fol-
lowed in 1"<25, 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
18^.5, and this form of election presents the opportunity and the power of doing that
always. It presents the greatest possible inducement and the greatest possible opportunity
for corruption. God grant we shall never have to pass through the ordeal of another elec-
tion 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. Barnside;] and what I shall say will touch the whole question of
furnishing 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 scon as the electoral certificates are sent to the President 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 Indiana 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 certificates
are made up by the electoral colleges they shall endorse on the outside of the envelope, so
that it can be read, (because the envelopes 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 deteruune, by an inspection of the outside of the
envelope, whether or not those electors were chosen under the recogtiized State 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 Supieme Court of the United States one of the great powers expressly
reposed in Congress under the Constitution. Tlie 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
caimot be transferred or deputed except for a single purpose, and that is to enable the Pres-
ident to determine what government he will sustain in a case of insurrection or domestic
violence. In the case of Luther vs. Burden, a case familiar to you all, the court say :

"Under this article of the Constitution, it rests with Congress to decide what govern-
ment is the established one in a State ; for, as the United States guarantee to each State a
republican government. Congress 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 recog-
nized by the proper constitutional authority."

In the case supposed, where there are two sets of electors certified from two different pre-
tended 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 Congress under the Constitution. We cannot trans-
fer it to the Supienie Court in advance. We cannot transfer it to any other power, except
for the single and sole purpose of carrying out another provision, and that is to enable the
President to protect the State against invasion or domestic violence, where it may be neces-
sary, under the act of 1795, for the President to determine, when Congress is not in session,
which is the lawful government of the State, as he undertook to do in the case of Louisiana.

Mr. BuKNSiDK.. I will ask the Senator from Indiana if there can be no case before the
Supreme Court by appeal which would require thein to decide which is the lawful State
government? Could there not be a case by appeal from a lower court by which the Su-
preme Court would be called upon to decide which was the State government ?

I want to ask the Senator from Delaware [Mr. Bayard] one question. He says that in
settling this question we should adhere to the rule established by the framers of the Consti-
tution, and allow the same method to be used in determining which are the coriect returns

670

COUNTING THE ELECTORAL VOTE.

as is used to elect the President when no one of the candidates has a majority. I submit
to him and I submit to the Senate that in case no one candidate receives a majority, every
State has a right to vote as a State, according to its political proclivities. It becomes a po-
litical question. They are bound to adhere to their separate political parties, in honor bound
to vote for the men who represent their party, no matter whether they have received the
highest number of votes or not. The question under discussion should not be decided po-
litically ; but if you leave it to be decided in the same way that you elect a President, iu
case neither candidate receives a majority, it will be decided in a partisan spirit; whereas
by the method I propose, it will be decided upon its legal merits.

I submit that no party ties are so loose as to allow a member to vote just exactly as a
judge <jn the bench of the Supreme Court would vote on a question of this kind. It is quite
clear iu my own mind that the proposition made by the Senator from Delaware, which he
intended to make in all fairness, is not fair.

Mr. Morton. It would perhaps be very desirable to have the solution of every question
submitted to some tribunal entirely outside of political influences; and yet it so happens
that the Supreme Court have said in this very case that the decision of the question as to
which is the lawful State government iu a State is a political question to be decided by Con-
gress, and when decided by Congress that the Supreme Court of the United States and
every other branch uf the Government must abide by that decision. The power to settle
that question has by the Constitution been placed in Congress, and I am trying to argue
that we cannot take it out of Congress and lodge it any whei-e else,

I come now to the other question asked by my friend, whether under certain circumstan-
ces the Supreme Court could not decide which was the lawful government of the State. So
they can and did in the Rhode Island case.- In that very case they recognized the doctrine
that 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 occasiou to argue in another matter before this body,
that the supreme court of Rhode Island not bi ing iu question, its legitimacy not being ques-
tioned, the courts of the United States would follow the decision of the supreme court of
the State of Rhode Island in determining which was tlie 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 charier governineut as being the lawful government of Rhode Island.
In that case the Supreme Court did decide it ; but as a question coming up not from the de-
cision 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 uiay certify to the electoral vote, that
is a power that has been lodged in Congress, and it cannot be divested. We cannot com-
niit it to anybody else.

I agree with my friend that if we could create an umpire, if it was in our power to refer
the decisi n of this question to any other tribunal, 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 tribunal we could create. Therefore I should prefer
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 Senate 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 iu a case
where the right of the State to vote at all was denied. I refer to the case of the State of Michi-
gan. 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 joiut resolution was adopted by
the two houses, showing that at that time the two houses of Congress assumed the power
to determine whether the vote should be counted in that case. The resolution was adopted
by a vote of 34 to 9 in the Senate, and reads as follows:

"That, in relation to the votes of Michigan, if the counting or ouiitting 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 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."

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. Edmuuds] in 1869 was copied
from that in regard to Michigan iu 1837.

Mr. WiiYTE. I would suggest to the Senator 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 contested votes long ago, and that seems to have
been the better judgment of members of the two houses at different periods of our history.

PROCEEDINGS AND DEBATES IN CONGRESS. 671

Jlr. MaXF.V. T should like to ask the Senator from Indiana a question, as he has the
floor, and I desiie his opinion upon it. The amendment ot the Senator from Rhode Island
in su'isiaiice is that where two eertifii-ates come up from the same State, purportiug; to be
the certilieate of ilie electoral vote cast by that State, those returns are to be turned over or
transferred by the President of the Senate to tiie Chief-Justice of the Supreme Court —

" Who shall at once cause the said Supreme Couit 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 before the last Tuesday of January next succeeding: the
meeting of the electors of President and Vice-President, report to the President of the Sen-
ate which of the said electors were legally elected."

The Constitution declares that —

" Tiie President of the Senate shall, in the presence of the Senate and House of Repre-
sei.tatives, 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 do3s the opportunity come in for ttie actioa ot
the Supreme C >urt as contemplated by this ameudment ? Th it is a question I cannot uu-
derstand myself, aiid I should like to have the Senator's opinion upon it.

Mr. Morton. The Senator from Texas I think is quite right iir his suggestion. If I un-
derstand it, his suggestion is that the President of the Senate is the custodian, and the sole
custodian, of these certificates from the time they come to his hands ; that he cannot trans-
fer the custody of them to anybody; that he is responsible for them, and if they shall 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 hou.ses. Not until that moment is anybody entitled to
know what the contents of these envelopes may be.

Mr. Maxev. And then the votes must be counted.

Mr. Mokton. 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 independent
men, acting entirely independent of pledges, of all outside influences, who should come to-
gether, and without each other's knowledge vote by ballot, so that one should not know
how the other voted ; and then that thej' 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 provision of the Constitution of the United States.

One word in regard td 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 re-
jected except by a concurrent vote of both houses. There seems to be little diffen-nce of
opinion about that, and that is the most material provisioir. Nearly all the questions will
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 fiom 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 two houses of
Congress, acting under the pressure of hi^h and solemn considerations of duty, would not
be able to agree as to which return should be counted ; so that that contingency in regard
to which all this debate has sprung up is very remote indeed. There seems to be a desire
to get seme tribunal which shall decide .the question, and the introduction of the House,
voting by States, is suggested, the one way of all others which is the most liable to have a
dead-lock ; for if there should be an even number of States upon each side, or if the delega-
tion from the States should be divided, as occurred in two States in the very first election
even, then there is no decision. So that you can hardly imagine a tribunal that might be
created, even if we had the power, where tliis contingency would not happen ; but it the
second section of the bill were stricken out altogether the tirst is of inestimable importance.
If there be a contingency in the second section that is not quite provided for, still it does
not take away the importance of passing the first section, or the second section either, be-
cause that contingeuc3' is exceedingly remote. We can understand iu view of what took
place three years ago last month the necessity of providing some method for couutiug these
votes. We cannot as common lovers of our country and patriots, sworn to stand by this
Government, pass over the duty of providing against such dangers as lie right at the door.

Therefore I trust, Mr. President, that this 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 fairnt-ss — I am not
now able to see where the bill can be improved.

Mr. Frelixghuysen. I would call the attention of the Senator from Indiana to the sec-
ond 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 questiou has
been suggested to me as to what is to happen iu case the two houses acting separately do
not agree as to which return is the valid return.

Mr. MoRTOx. I suppose there would be no vote counted in that case.

Mr. FiiELiXGHUYsiEX. Ought it not to say so ? It might be insisted by those who hold

672 COUNTING THE ELECTORAL VOTE.

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 iu 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 return only irom such State shall be counted."

Mr. Freltnghuysen. 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 constitu
tional right by legislation to do everything that is necessary to the safe counting of that
vote. We have a perfect right by legislation to carry it out by creating a tribunal, and
doing everything that it is necessary to do iu 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 plan of referring the question to the House of Representatives, that house voting
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 proposes, 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 colleague,
though I would have preferred to have the amendment adopted as it was offered originally
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 measure which provides that the vote of any State of
this Union shall be rejected, because I believe 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 mj' colleague is one mode, and per-
haps the fairest mode that we can now hope to obtain for reaching that result. I shall there-
fore support the amendment, 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 amendments are, as I conceive, of vital importance.
If I understood the Senator from Maryland [Mr. White] 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 constitutional 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. Con-
gress may determine the mode by which tlie 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 subject. I do not believe the discussion that occurred io
the year 1800 upon this very question has been referred to in this debate, and perhaps it may
not be amiss to call the attention of the Senate to that debate. The Senator 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, Th&t a committee be appointed to consider whether any, and what, provisions
ought to be made by law for deciding disputed elections of President and Vice-President of
the United States, and for determining the legality or illegality of the votes given for those
officers in the different States."

On the next day it was —

^'Ordered, That Messrs. Ross, Laurance, Dexter, Pinckney, and Livermore be the com-
mittee."

And that committee reported a bill the prov sions oi which in full I have not been able to
ascertain. On February 14 —

"Mr. Ross, from the committee appointed the 28th of January last, reported a bill pre-
scribing the mode of deciding disputed elections of President and Vice-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 pro^-ided
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

PROCEEDINGS AND DEBATES IN CONGRESS. 673

all the petitions and reports tliatvvere made from the several States in connection with those
votes, and to determine upon the leg^ality of the votes thus cast.

Mr. Mkrrimon. Where did it lodfi^e the power ?

Mr. Sauls^BURY. It lodofed it in the two houses of Congress, so fir as I have been able
to gather from such provisions of the bill as I have been able to fiud in this book. On
March ^^ —

" 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."

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 Representa-
tives of the United States shall each of them elect six members, who, with a chairman, be
appointed by the latter from a nomination of tlie former, would form a grand commlttee,who
should, sitting with closed doors, have a right to examine all the votes given by tlie electors
in the several States for President and Vice-President, and all the memorials and petitions
respecting them, and have power finally to decide respecting them, and to declare what
votes of different States shall be rejected and what admitted, and, in short, that this com-
mittee, thus chosen, and sitting with closed doors, shall possess complete, uncontrollable, and
irrevocable power to decree, without appeal from their decision, who lias 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 limes during the session
and various amendments were offered. One amendment I will read :

"The bill prescribing the mode of deciding disputed 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 fol-
lows :

" 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 legisla-
ture of his State or not ; whether the time at which he was chosen and the day he gave his
voce were those determined by Congress ; whether he was not at the time a Senator or Rep-
resentative of he 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, 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 al the time of the adoption of the Constitution, were thirty-five years old, and
had been fourteen years resident within tlie United Stales; and the Constitution of the
United States having directed that ' the President of the Senate shall, in the presence of tlie
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 oilice, no
other being assigned them ; and inferred the more reasonably, as thereby the constitutional
weight of each State in the election of those high officers is exactly preserved in the
tribunal which is to judge of its validity, the number of Senators and Representatives
from each State composiu'g the said tribunal being exactly that of the electors of the same
State."

And then follows the amendment in the form or a section to carry out the objects proposed
in the preamble. I will read the section :

'SECTION 1. Be it enacted by the Senate and House of Representatives of the United States oj
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 siiall be
drawn at a time ; and so soon as one is drawn the packet containing the certificates cf that
State shall be opened by the President of the Senate, and shall then be read, and then shall
be read also the petitions, depositions, and other papers and documents concerning the same ;
and, if no exception is taken thereto, the votes contained in such certificates shall be
countiid ; 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 be-
ing 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.

674 COUNTING THE ELECTORAL VOTE.

" A division of the question was called for, aud that it first be taken on striking out.

" A motion was made to strike out of section 1, lines 10 and 1], tliese words : ' and final-
ly 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."

Atter several amendments were considered the bill was finally discussed at length by Mr.
Piuckney, 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 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 instrument, to give to Congress no interference in or
control over the election of a President. It is made their duty to count over the votes in a
convention of both houses" —

That favors the idea of the Senator from Connecticut, [Mr. Eaton] —
"and for tiie 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
tlie qualifications of the electors, taking it entirely away from the State ; and he seemed in
bis 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. Pinekney 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 seern&d to meet it as my friend from Connecticut met it this
morning, by expressing his confidence in Congress and his confidence in every public man
in the country. He could not anticipate that there would be any difficulty ; he could not in
the first place anticipate that such returns would be made. He had then the unbounded
confidence that is exhibited by the Senator from Connecticut today. And yet our history
proves that Mr. Pinekney was mistaken, just as I fear the subsequent history of the country
will prove that the Senator from Connecticut is mistaken when he expresses such un-
bounded confidence, not only in the Senate of the United States, but in every public man,
the Vice-President, the Speaker of the House, and the members of this house and of the
other. I share largely in the confidence which he has expressed in reference to humanity,
but I have seen enough of life to know that our confidence is frequently misplaced, aud I
■want to prepare against any contingency that may happen.

That bill came finally to a vote in the Senate oV the United States after the exhaustive
argument of Mr. Pinekney, aud 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 determined in the affirmative — yeas 16, nays 12; as follows:

"Yeas— Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Hillhouse,
iiatimer, Lloyd, Paine, Read " —

From my own State —

" Ross, Schureman, Tracy, and Wells.

"Nays— Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon,
Livermore, Marshall, Mason, Nicholas, and Pinekney."

The proceedings to which I have referred show that at that early day the power was
claimed 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 o'f counting the electoral vote by legislation, especially
wheie there is a seeming omission in the Constitution itself, was then fully recognized, and
these proceedings clearly indicate it.

I would not attempt to confer upon one house or both houses of Congress any power
which is not expresslj' 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 jiven in the Con-
stitution. I would not usurp any power whatever. I am as free from doing that as my
honorable friend from Maryland or my honorable friend trom Connecticut ; but I do contend
that the criticisms upon the position of my friend from Ohio are not warranted by the pre-
.cedeuts that have been referred to as conclusive upon the contemporaneous iuterpretation of
the provisions of the Constitution in this behalf. I hold that the incident which I have cited
rshows 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 formation of the Con-
stitution were there and voted upon the question. 1 would not, I repeat, invade that Con-
stitoition. I believe that the true interests and the true destiny of this country require a
strict adherence to the provisions of the Federal Constitution I would not usurp the power
by Congress, but I would carry out the provisions of the Constitution. 1 would count the
vote as it is. There is a provision in the bill of the Senator from Indiana that in a certain
contingencj' the vote of a State shftU BOt be counted, and I am opposed to that bill without

PEOCEEDINGS AND DEBATES IN CONGRESS. 675.>

some anicuduient to secure to every State in this Union the right to have her electoral vote
counted.

Mr. President, 1 conceive that this is an important 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 ac-
tion will be taken, but that some action may 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 siiid mtich more on this question than I designed to say at the present time.

Mr. BURNMDE. Mr. President, 1 desire to make but a single remark, and that is, that the
Supreme Court of the United States substantially 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 Supreme Court of the United States for a decision-
upon that point, it has the right to do it in this case. Sume of the most distinguished Sena-
tors have said that this amendment presented 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. JoNKS, 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 recognizeci-
as the legitimate power, with a view of obtaining the assistance contemplated by the Consti-
tution to be extended by the Union. That was decided, beyond all doubt.

Mr. Merkimon. Have you the decision before you ?

Mr. Jones, of Florida. I have not. The court said that Congress had delegated the au-
thority to the President by the act of 179."), and that it had done so wisely ; but tiiat 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 p?'o tempore. The question is on the amendment of the Senator from
Delaware, [Mr. Bayard,] upon which the yeas and nays have been ordered. The amend-
ment is to modify the second section before the question is taken on the amendment of the
Senator from Rliode Island [Mr. Burnside] to strike it out and insert a substitute. The-
Chair understands that this is the same amendment originally 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, Bos:y, Caperton, Coopir, Davis, Goldthvvaite, Johnston, Kelly,
Key, McCreery, McDonald, Maxey, Randolph, Ransom, Saulsbury, Thurman, Wallace^,
ami Withers— 18.

Nays — Messrs. Allison, Anthony, Booth, Burnside, Cameron of Pennsylvania, Cameroia
of Wisconsin, Christiancy, Conkling, Dawes, Dennis, Dorsey, Eatou, Edmunds, Euglisb,
Ferry, Frelinghuysen, Hamilton, Hamlin, Howe. Jones of Nevada, Logan, McMillan, Mer-
rimon, Mitchell, Morrill of Maine, Morton, Oglesby, Paddock, Patterson, Sargent, Sher-
man, Whyte, Windom, and Wright — 34.

Absent— Messrs. Alcorn, Boutwell, Bruce, Clayton, Cockrell, Conover, Cragin, Gordon,
Harvey, Hitchcock, Ingalls, Jones of Florida, Kernan, Morrill of Vermont, Norwood,
Robertson, Sharon, Spencer, Stevenson, Wadleigh, and West — 21.

So the amendment was rejected.

The President pro tempore. The question recurs on the amendment proposed by the
Senator from Rhode Island, [Mr. Burnside.}

The amendment was rejected.

Mr. Wricjht. I suggest an amendment to come in the second section — 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 sepa-
rately, shall decide to be the true aud valid return."

I propose to insert after the word "return " in line 7 the words " and that return only."

Mr. Mortun. That is what it is intended to mean, but 1 have no objection to the word
" only" going in.

The President ;jro tempore. Is there objection ?

Mr. Johnston aud others. Let it be reported.

The Chief Clerk. 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 shall be received by the President of the Senate from a
State, pinporting to be the certificates of electoral votes given at the last preceding election
for President aud 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.

676 COUNTING THE ELECTORAL VOTE.

that only, fioni 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 " onl^' " would be sufficient ; but I have no objection to
the words " and that only."

The amendment was ag^reed to.

Mr. Whyte. I desire to offer an amendment merely to take tlie sense of the Senate. I
move to strike out all after the word "certified," in the tweuty-sixth line of the first section,
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 instance 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 resitlt according to his decision. After the whole count has
been so made and the result thereof announced, 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 bouse
may appeal 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."

The President ;;ro tempure. The question 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 pas'sage ot the bill.

Tlie yeas and nays were ordered ; and being taken, resulted — yeas 32, nays 26 ; as fol-
lows :

Yeas — Messrs. Allison, Anthony, Booth, Burnside. Cameron of Pennsylvania, Cameron
of Wisconsin, Christiancy, Dawes, Dorsey, Ferry, Frelinghuysen, Hamilton, Hamlin, Hitch-
cock, Ingalls, Jones of Nevada, Key, Logan, McMillan, Merrimou, Mitchell, Morrill of
Maine, Morton, Oglesby, Paddock, Patterson, Sargent, Sherman, Spencer, Thurman, Win-
dom, and Wright — 32.

Nays — Messrs. Bayard, Bogy, Caperton, Cockrell, Conkling, Cooper, Davis, Dennis,
Eaton, Edmunds, English, Goldthvvaite, Howe, Johnston, Jones of Florida, Kelly, McCreery,
McDonald, Maxey, Randolph, Ransom, Saulsbury, Stevenson, W^allace, Whyte, and With-
ers— 26.

Absent — Messrs. Alcorn, Boutwell, Bruce, Clayton, Conover, Cragin, Gordon, Harvey,
Keruan, 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. J, relative to counting the electoral votes; and
I wish to say a word. U'he 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 il(»jn 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 niay
not, on that question. I am strongly impressed with the belief that unless the Senate can
become more harmonious than it is on this bill, we have no chance to get a law on the sub-
ject at this session. Therefore, I, for one, am anxious 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 considered.

Mr. Morton. Do you propose to have it considered to-night?

Mr. Thurman. No ; but 1 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.

April 3, 1876.

Mr. Morton. There is a motion pending to reconsider the vote on the passage of the bill
(S. No. 1) to provide for and regulate the counting of votes for President and Vice-President,
and the decision of questitms arising therenn. The motion was entered by my frien<l from
Ohio, [Mr. Thurman.] I hope, if the motion is not to be withdrawn, the Senator will be
prepared to have it taken up and disposed of to-morrow morning.

Mr. Thurman. I wish to say that if I cannot be ready by to-morrow morning, I will try
to be ready by the day after to morrow, or at the very earliest moment. I have been so
much engaged in other matters that I could not attend to it. I want to prepare an amend-
ment, and desire to have the case considered without delay. I will try and call it up at the
earliest possible day 1 can.

April 17, 1876.

Mr. Thurman. I rise merely to give notice that at the earliest time I can have opportu-
nity I will ask the Senate to take up the motion submitted by me to reconsider the vote on
Senate bill No. 1, to provide for and regulate the counting of votes for P'-esident and Vice-
President, and the decision of questions arising thereon; and I will ask the Senate to hear
me for a very few minutes to give the reasons why I think the vote ought to be reconsidered.

PROCEEDINGS AND DEBATES IN CONGRESS. 677

April 19, 1876.
Mr. Thurman. I want to fulfill a promise which I made the Senator from Indiana, [Mr.
Morton,! that I would move to take up the motion to reconsider the vote on the bill relative
to counting the electoral votes for President and Vice-President. I move to take up that
motion to reconsider.

The President j;ro tempore The Senator from Ohio moves to proceed to the considera-
tion of the motion to reconsider the vote by which Senate bill No. I was passed.

The motion was agreed to ; and the Senate proceeded to consider the motion to reconsider
the vote on the passage 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. Thurman. Mr. President

Mr. Thijkman. 1 understand from the Senator from Indiana [Mr. Morton] that he desires
to leave the chamber soon, and I hope therefore we shall proceed with the electoral bill. I
shall not occupy more than ten minutes of the time of the Senate, I tliiuk, and there will be
ample time after that to take up the bill of the Senator from Nebraska.
Mr. Hitchcock. Very wt-U.

The President ^ro tempore. The question before the Senate is the motion of the Senator
from Ohio [Mr. Thurman] to reconsider 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 decision of
questions arising thereon, was passed.

Mr. Thuraian. 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 tliat if this bill
should go to the House of Representatives with no larger majorit}' 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 Representatives, 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 wUl 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 Senate 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 ob-
vious 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 arbiter or tribunal to decide in cases where there
were two or more returns from a State. The omission in that bill was considered by a large
number of Senators to be an invitation in fact, or tliat it would operate as an invitation, to
bad men in some of the States to make a second return 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 aflect the general result, two I'eturns, and that then the opera-
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 subject 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 opposition, but it was upon the ground and the sole ground that here was a fatal
omission in the bill, the eftect 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 unani-
mous 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 Representatives 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 b'^ amended in the House and that the result would be a con-
ference committee between the two houses, I shoirld 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 I'esult, and therefore 1 am anxious that one more e&'<jrt 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 proceedings in Congress more than three-quarters
of a century ago upon this very subject, proceedings that I think might be read and studied
with great advantage by every Senator; but it would take up too much time to go into them

678 COUNTING THE ELECTORAL VOTE.

now. If, however, the vote shall be reconsidered, then I shtll 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 Senate. It the House of Representatives does not
like this 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 committee is by a committee of conference ; and I have-
faith to believe that, whatever may be the first action of the House of Representatives, the
two houses will finally come together 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 puint in dispute ? There was but one, substantially but
one 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 m 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, although the parties controlling the two house*
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 decis-
ion of both houses, just like every other grave question of legislation that comes before
Congress.

Since that vote was taken a circumstance has been brought to my knowledge, a historical
fact which I am sure will surprise and astonish 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. Bavakd. Will the Senator state the nature of it ?

Mr. Morton. I ^yill not give the name of the Vice-President or the names of the parties-
concerned ; but it was where a Vice-President was counting the vote, himself being a can-
didate, and he counted a false or null return in his own favor, a return that was no return at
all. The facts are in possession of the 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 expec-
tation 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 Senators, representative men of their party, voted
to make the House of Representatives, voting by States, the umpire in deciding upon a
question of that kind. It was simply going back a hundred years in this Government ; it
was simply going back to the confederation, where every quesrion was decided in the Con-
gress 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 retrogres-
sion 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. It it comes
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 majority than you
will get again. My opinion is that if this bill is now reconsidered 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 meas-
ure 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
Avas 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 almost of dislike, for the very name of State
existence or the exercise of State power or the recognition of State individuality. W'hy, sir.

PROCEEDINGS AND DEBATES IN CONGRESS. 679

it seems to mo that he is forgetting constantly the very federal nature of our system; and
everything that tends to give a State individuality, 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 the people in the choice of their Chief Executive Magistrate to the tribunal deliberately
selected by those who framed the Constitutiou, 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 ? WLy,
Mr. President, if it be true that there was a more distinctive recognition of separate State
existence 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 Confed-
eracy, the States resolved themselves into a Union under a national form of government, and
carried into that, on this very subject which we are now considering, the recognition of the
right and power of the States, as separate communities, 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 proposed by an amendment offered by my friend
from Tennessee, [Mr. Cooper,] and subsequently renewed by me, and on both occasions, I
am sorry to say, rejected by the Senate, that in event of the two houses of Congress not
having reached that happy condition of mind which enabled them to judge totally irrespect-
ive 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 calculating the electoral vote, then, in the
event of that disagreement, the House of Representatives, following the analogies of the Con-
stitution 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 over-sanguine ,
but I am afraid that he is over-sanguine in supposing that that day of political millennium
has arrived 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 decide them as though we were entirely
indifferent 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 Lou-
isiana, 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 astonished 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 separate and distinct decision, the result
of a difference of opinion between them being the total 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
liome to yourself, sir, (Mr. WaLL.ack in the chair,) a 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 cer-
tificate, so that from Pennsylvania a double return should be made to the Presiding Officer of
the Senate, and then came the question of counting them, the vote of that State determin-
ing 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 difierence of opinion as that, it provides no arbitration to settle it.
The Constitution has provided and to-day provides for an arbitration where the original
electoral vote has failed to contain a clear majority in favor of one or the other of the candi-
dates. Is it not analogous, not simply to the Constitution, but is it not analogous and amen-
able to reason, justice, propriety, expediency, 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 maj' 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 from
Indiana, however, will agree with me in saying that tliere 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 reconsideration of this vote and a re-argument 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 occupants; 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 possible, their attention to this matter of making their vote even more

43 X

680 COUNTING THE ELECTORAL VOTE.

deliberate than it was before, that I shall vote for the reconsideration of the vote by which
this bill passed the Sena e.

I did believe, and still believe, 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, selected
tor 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 somewhat the object
which I originally proposed. But still, sir, as I was one of those who did not concur in tlie
■ action of the Senate, and believe still that there should be further consideration before we
come to adopt as a measure, by a vote of the Senate, that which I scarcely believe will meet
the approval (judging 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 Senate will consent to liavo this vote reconsidered.

Mr. Morton. No Senator, Mr. President, was more gratified at the tone and character of
the debate on this bill tlian 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 siuprise when
the vote was taken. As the Senator from Delaware 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 adjouru 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 because they may 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 lft57, as it was in 160], as it was in 1805, and
in 182^1, 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 simpl3'-
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 nmst
be left just where it has been from the beginning, to the decision of the Vice-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 impor-
tant character. We cannot have a subject demanding more important consideration beiore
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 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 may just as well give it up. I
have no more interest in it than anybody else. It is a matter of no personal importance to
me over any other Senator, and I have no feeling about it.

Mr. Mf.urimon. Suppose the House should reject the bill, then we could have no confer-
ence at all.

Mr. Morton. That woirld be because they do not intend 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 possi-
bly upon some measure. 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 mat-
ter: 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 Senator from Indiana a question. I understood him
to say that a Vice-President of the United States counted a vole that was fraudulently re-
turned. 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
anybody, slating that so many votes for one mau 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 statement now. There is a Senator here who has the
record in his possession.

Mr. Saulsruky. Mr. President, the conclusion 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 i-eferenco to the main
question which was under consideration, the constitutionality of this bill, the power of Con-

PROCEEDINGS AND DEBATES IN CONGRESS. 681

stress to pass laws and make the provisions contemplated by the bill, I was with the Senator
from Iniliana, I submitted my views upon tliat point and they wore in harmony with his
own. I believe that a majority of the memljers on tliis side of tlie cliauiber coueurred with
the view of the Senator from Indiana as to the power of Congress to make provisions for
countinn;- tlie electoral votes. But tliere were provisions in the bill which we did not like.
I was fully impressed with the importance of making some provision for ascertaining tlie
vote of the people of this country iu reference to the election of President, believing that it
onglit to be (h)ne at the present session. I tried in my humble way to so shape tlie bill that
it should be perfectly fair and right, proposing such amendments to tlie 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 affir-
matively for the rejection of the vote of a State. There is no such provision as that in the
Constitution, and I was unwilling to assume the responsibility of voting for a bill which
afifiriuatively provided for throwing out the vote of a State.

Mr. Morton. Let me suggest to my friend on this point that ttie bill cannot be said to make
provisions for throwing out the vote of a State, but it simply provides for the decision of a ques-
tion arising upon tiie 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 thnre are two returns one
of those returns must be rejected. It must be rejected by somebody. Who will be that person?
It will be the President of trie Senate. Nobody else can act upon it, because there would be
no rule under which anybody else could act. Vou 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 tiiat the two houses can-
not agree upon it, then, as a matter of necessity, in the very nature of the case, it goes out.
That is all tliere is of it.

Mr. Sai'F.sbuuy. I contend, nevertheless, that a fair interpretation of the bill proves this
lo be an affirmative provision that upon a certain contingency the vote of a State shall not
be counted. To such a proposition I was unwilling to commit myself. I am aware that
grave difficulties may arisn if the matter is left to stand as it is now. I would prefer there-
tore to remedy it, and I will assist the honorable Senator from Indiana in shaping the pro-
visions fif a bill that shall provide for every possible C(mtingency in order to secure to the
people of every State in the Union a voice iu 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 tlie importance of such a provision fully as much as the Senator from Indiana ;
and I tried in my humble way, as iionestly as the Senator from Indiana tried, to make some
provision It was because, and only because, the bill of the Senator from Indiana did not
do what I in my judgment thought it ought to do, because it did not |)rovide for the count-
ing of the votes of every State in the Union, that I cast my vote against the bill. I was gov-
erned by no party consideration. It is a question that ought to rise iufiuitely above party
feeling and party interests. It addresses itself to the nobler sentiments of our being, and we
ought not U) be governed by parly 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 gov
erned in the vote it cast by anything of party c msideration. We were governed by the fact
that the Senator's bill did not make proper provisions for ascertaining the popular will iu
reference to a choice of the people lor President of the United States.

I liope 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 people of
every State in the Union their just voice in determining the election of a President.

Mr. Thurmax. 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 anything
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. Tliere 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 Senate. They would rather trust to one man to
decide the grave question of which return should be counted, and leave it to his conscience,
liis honor, his official responsibility to the American people, than leave it open to any possi-
bility that a State snould be disfranchised.

It cannot be denied tliat 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 rrnable to form its judgment; but there are Senators
here who would, as I said before, follow the early usage of the country and let the President
of the Senate, though opposed to them in political sentiment, decide the question, rather than
open the door to the possibility of depriving a State of her voice in the election of a President.
That is tiie reason which induced so large a vote against the bill. This reason and the be-
lief that, although no such thing was intended, although any such idea was the farthest pos-
sible from those who supported the bill, yet that bad men might take advantage of the second

682

COUNTING THE ELECTORAL VOTE-

section of tbe bill, and, taking advantage of that, send np double returns 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 actuated 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 be-
lieved, as I still believe, it will not be by amendment there in all probability 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 discus-
sion. I say this not to reproacli any other departmentof the Government, but because from
the very nature and necessity of the case such is the trutli. A measure like this (and no
greater measure can engage our attention than this very bill) ought, if possible, to be per-
fected here where there is deliberation and discussion without trammel aud restraint. The
Senator from Indiana certainly 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 reconsideration 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
somethiug had been said more definitely about it. It was said that a Vice-President of the
United States once counted for himself the votes of a State without anj^ return from that
State. I have seen it stated in the newspapers that when his attention was called by the
tellers to the fact he directed them to record the vote and then tore up the paper in order to
prevent a detection of the fVaud. I venture to say tliat 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 con-
clusive 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 affected 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 this great man who is charged with
this offense. It is no less a man than he whose hand wrote the Declaration of Independ-
ence. 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 ia
his own interest the vote of a State without any evidence whatsover that it had been cast
for him. O, no, Mr. President, it will not do now to make such a charge. I await the
production of the evidence 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 f'ullj as the Senator from Indiana can argue, that there is danger. I grant, as
fully as he can assert, that the President of the Senate ought not to be the man to count the
vote, he himself being interested. I read the Constitution as he reads it, that the duty of
the President of the Senate is to open the votes, and not to count them. I know the piece-
dents, when he did count them, iu support of his counting them. I understand all that ;
but I know too, I think, the value of precedents where there was no contest and where there
was no question. I therefore agree, as the Senator knows, with him in his view of the con-
stitutional power of Congress to regulate this matter; and I urged, therefore, the passage of
hi sbill. I did so at the last session as well as at this, and I hope that it may yet be passed ;
but I say to him in all frankness that I do not believe that any measure which, so to speak,
creates a possibility of depriving a State of her voice in the election of President can pass
this Congress.

Mr. Morton. I did not intend to impugn the motive of any Senator who voted for any
amendment to which I referred or who desires to reconsider the vote by which tlie bill was
passed. All I said was that I was surprised at the final vote in view of the general tone of
the discussion. I think I was no more surprised than my friend from Ohio, and perhaps
not so much as he was. The Senator says that no bill can become a law that leaves a pos-
sible contingency by which a State can be deprived of a vote. I tell my friend that we
can pass no bill that will not leave such a contingency. He said he would rather leave it
to the Presiding Officer of the Senate to decide. Can we compel the Presiding Officer of the
Senate to decide ? Suppose there are two returns, and the Presiding Officer says, "I will not
take the responsibility of deciding between tliese two returns ; I will refer the matter to the
two houses," a thing the Presiding Officer of this body often does ; you cannot make him
decide it. And then, if the two houses, having no knowledge about it, cannot decide
it, if they separate and vote by common consent, they may not agree, and in that case the
vote is lost. How will you prevent the vote from being lost 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

PROCEEDINGS AND DEBATES IN CONGRESS. 683

for the votes of States to be lost. I have that amendment here. In voting by States the
amendment provides:

"But if the representation of any State shall be equally divided, its vote shall not he
counted."

As a matter of course, if you vote by States, and the State has two, four, or six Repre-
sentatives, and they are equally divided, the vote of the State is lost.

Mr. Withers. O, no ; the vote of the State in deciding the question in the House is lost ;
but the vote of the State is not necessarily 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 f

Mr. Withers. That is very remote indeed.

Mr. Morton. I will bring the question right home to my friend from Virginia. Suppose
it 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 Slates. 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 contingency, possibly, than the other.

Mr. Morton. If yon come to count contingencies, that maybe a little more remote; but
my friend fiom 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 decide 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
deadlocked from the first to the thirty-sixth ballot, and then they were only released from the
deadlock by one member dodging and the other two changing their votes.

Mr. Ranudlpii. The Senator from Indiana has said tlu'ee 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 opportunity of passing a bill so framed as to pro-
vide for every contingency. I beg to remind the Senator that during the previous discus-
sion 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 renew 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 amendment f Will my friend read it f

Mr. Randoi I'H. The amendment has almost passed out of my mind, because the debate
occurred some time ago.

Mr. Morton Has my friend his amendment?

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 :

" ijhonld the two houses of Congress, acting separately, fail to agree as to w^liich is the
true and valid return of a State, then, and in tliat event only, the President of the Senate
shall render a decision of the question, and such rendition shall be in favtn- 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 asseni):)led."

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. Randolrh. Has the Senator from Indiana the last one ?

Mr. Morton. My friend from New Jersey thinks he has found the nsethod 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 msjoiity of all the votes cast in both houses of Congress, consideied as if both
houses had cast their votes in joint meeting assembled," counting so many votes in the
Senate and so many votes in the House, and then adding them togetlier 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 is lost on my friend's own hypothesis.

Mr. Randoli'H. In the amenduient, 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 contingency,
leaving the President of the Senate to give the casting vote in that exceedingly remote con-
tingency. 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 Presi-
dent of the Senate. If he should be a President ^^ro <cw(;jerfi, 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 ex-
traordinary power of voting twice on the same thing. My friend from New Jersey [Mr.
Frelinghuysen] suggests that he may himself be a candidate for President or Vice-Presi-
dent and it would place him in a very delicate position. He would not want to be embar-
rassed and might decline to vote at all.

684

COUNTING THE ELECTORAL VOTE.

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 diffi-
culty as the Senator has suggested. [Laughter.]

Mr. Morton. I appreciate that difficulty, because my gaze falls upon about twenty-five
distinguislied 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
iu that case. [Laughter.]

Mr. Maxky. Mr. President, I gave the bill to count the electoral vote as much care and
deliberatiun conscientiously as I was capable of. I regarded the bill as the most important
that has been before the Senate during 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 mani-
fest to everybody during the progress of the discussion. If the two certificates are pre-
sented and the two houses disagree, one voting for one certilicate and the other voting for
the other certificate, both coming from the same State, then according to the bill as it passed
the vote of that State is lost. Various propositions were presented to cure that defect. I
had the honor of presenting one myself. The Senator from Indiana states that no proposi-
tion could come up that would cover every possible contingency. With all deference to the
opinion of the distinguished Senator, it does seem to me that the amendment which I presented
covered any sort of contingency. That was that where the two houses disagreed, one voting
for one certificate and the other voting for the other, the Vice-President should give the cast-
ing vote. A great many of my friends were so very fearful of the power of the Vice-President
that they placed themselves in this condition, in my humble judgmeut, that by refusing to
give him a right to the casting vote in that contingency, (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
swallow 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. 1 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 invita-
tion to fraud ; for if an election for President is coming to a close vote, and there is the
slightest excuse for a State to send up two certificates, 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
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 happen,
under the bill as passed, that the voice of the people would not be heard in electing their
President. For that reason I voted against the bill. It was not with me a party question.
As I stated in the argument when that question was here before, it was a great constitu-
tional question, rising high above and bej'ond all party considerations ; and I should regard
myself unworthy of a position on this floor if I were to jiermit party to control my vote in
a matter where the great rights of the people were concerned in the selection of a President
of the United States. So I can say for myself at least that I did all that my poor judgment
could do to relieve the difficulty. I presented an amendment which I then thought would re-
lieve that difficulty. The wisdom of the Senate saw proper to vote down that amendment,
and the bill passed without anj' amendment. The bill contains a defect which, in my judg-
ment, is an invitation to fraud unwittingly embodied in the bill. So believing I voted
against it.

Mr. Merrimon. Mr. President, I felt a very serious interest in the bill and gave it the
most serious attention when it was before the Senate. I did not regard it from a party
stand-point at all. The idea of party never entered into my consideration of it for one
moment. My vote went upon the grounds that the Constitution cha'-ges Congress with
the duty of count ing the vote. I believe that Congress is as much charged by the Consti-
tution with counting the electoral vote for President and Vice-President as it is charged to
pass a revenue law or any other law ; and so believing, I was logically constrained to vote
against every ]noposition which provided an umpire in the case of any difterence between
the two houses. I cauuot conceive a case in discharging the ordinary legislative duties of
Congress, where the two houses disagree about a passage of a bill, where Congress would
have the po^ver to provide an umpire to decide what amendments should be adopted and
what amendments should be rejected, or what action of any character should be taken upon
a bill passing between the two houses. No more can I conceive of any possibility that
Congress in counting the electoral vote shall provide that the President of the Senate, or
the Chief Justice, or the Supreme Court, or any other tribunal shall decide whether the
vote of a State should be accepted or rejected in that count. It is a duty that devolves upon
Congress exclu.'-ively, after the President of the Senate, being the medium by wliich Con-
gress comes in contact with the States, shall have opened the returns and laid them before
it. It cannot escajie the duty. I adaiit that I have some embarrassment about the question
when two electoial returns shall be made from a State; but I cannot see that if the matter
is permitted tii 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 re-
mote that we need not trouble ourselves a great deal about it. I bad the honor to ofler an

PROCEEDINGS AND DEBATES IN CONGRESS. 685

amendment which I thoue:ht would relieve the difficulty. The jiidfrment of the Senate,
however, was ag^ainst it. Still I was willinc^, thoncrji not entirely satisfied, to accept the bill
as it passed. After having' griven the matter considerable deliberation since the bill passed,
I have not come to any couclnsiou variant from that which I sanctioned by my vote. I
should be willino^ to stand by that vote to-ilay, unless I thoup;ht the bill could be amended
in such a way as to obviate the difficulty that we have all talked about so much. I hear no
plan siigffjested by which that difficulty can be obviated. 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 we were at the time the bill passed. If we had to vote
again, I should give the same vote under similar 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 wo
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 satisfactory. Upon that ground alone I vote to reconsider.

Mr. BuRNSiDK. 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 lias
a right to delegate to a court the power to decide as to the electoral returns where there is
a dispute in regard to them. In the famous Rhode Island case to whicli 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 importance to a court. What was that case?

"The fourth section of the fourth article of the Constitution of the United States provides
that the United States shall guarantee to every State in the Union a republican form of gov-
ernment, and shall protect each of them against invasion, &c."

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 guarantee."

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 advisable to do so, have placed it in th^ powqr
of a court to decide when the contingency had happened which required the Federal Govern-
ment 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 Congress to see that the electoral returns are proi>9rly
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 decision from which
I have read. If, as the court there hold, Congress had a right to determine when it was nec-
essary for the Government to interfere in a State under the guarantee clause of the Consti-
tution; if, in other words, Cougress 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 presented.

It seems to me 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 would 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 impar-
tial arbitrament can be selected, in my opinion.

Mr. Morton. Mr. President, my friend from Rhode Island, before the conclusion of the
former debate, had his attention called to this decision. The remark that he quotes as hav-
ing 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 Congress to establish an umpire to decide the thing
other than Cougress 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 so, have placed it in the power of a
court to decide when the contingency hnd happened which required the Federal Government
to interfere. But Congress thought otherwise, and no doubt wiselj', and, by the act of
February 28, 1795, provided that "in case of an insurrection in any State against the gov-
ernment thereof it shall be lawful for the President of the United States, on application of

686 COUNTING THE ELECTORAL VOTE.

the lefjislature of such State, or of the executive, (when the legislature cannot be con-
vened,) to call forth such number of the militia of any other State or States as may be ap-
plied for as lie 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 1795-'it6. I think tlie language of the court falls short of the principle my
friend refers to, and it is mere olnler anyhow ; it is not in the case at all.

Mr. BuRNSiDE. I am quite aware that the court made no deiision 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 re-
turns 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 deter-
mination of to a court.

The Presiding Officer, (Mr. "Wallace in the chair.) The question before the Senate
is. Shall the vote by which this bill passed be reconsidered ?

Mr. Steven.son. 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 fol-
lows :

Yeas — Messrs. Bayard, Bogy, Caperton, Cockrell, Conkling, Cooper, Davis, Dawes,
Dennis, Eaton, Edmunds, English, Goldtlnvaite, Gordon, Hamilton, Howe, Kelly, Ker-
nan. Key, McCreery, Maxey, Merrimon, Norwood, Paddock, Randolph, Ransom, Sauls-
bury, Stevenson, Tharman, Wallace, and Withers — 31.

N.-VY-S — Messrs. Anthony, Booth, Boutwell, Burnside, Cameron of Pennsylvania, Cam-
eron of Wisconsin, Clayton, Cragin, Ferry, Frelinghuysen, Hamlin, Harvey, lugalls, Jones
of Nevada, Logan, McMillan, Morrill of Maine, Morrill of Vermont, Morton, Oglesby, Rob-
ertson, Sargent, and Wiiidom— 23.

Ab.^ent — Messrs- Alcorn, Allison, Bruce, Christiancy, Conover, Dorsey, Hitchcock,
Johnston, Jones of Florida, McDonald, Mitchell, Patterson, Sharon, Sherman, Spencer,
Wadleigh, West, Whyte, and Wright— 1!).

The Presiding Officer. The motion to reconsider is agreed to. The question recurs
on the passage of the bill.

Mr. Morton. I give notice that I w-ill call up the bill to-morrow.

Mr. Edmunds. The bill is before the Senate now. The motion should be to postpone it
until to-morrow.

Mr. Morton. That is to be done by common consent.

The PREsroiNG Officer. That is the understanding of the Chair.

Mr. TiiURMAN. Before the electoral bijl passes over, I wish to suggest that it cannot be
amended without a further vote of reconsideration, which I suppose is a mere matter of
form, and that is to reconsider the third reading. I make that motion.

ThePRESiDiN<; Officer. It is moved to reconsider the vote by which Senate bill No. 1
was ordered to be engrossed for a third reading.

The motion to reconsider was agreed to.

The Premding Officer. The bill will be regarded as postponed until to-morrow by
common consent.

AUGU-ST 1, 1876.

Mr. Thurman. It vrill be remembered tiiat in the early part of the session a bill was re-
ported by the Committee on Privileges and Elections respecting the counting of electoral votes
for President and Vice-President, and after a long discussion was hnally passed. I voted
for it, and moved to reconsider the vote by 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 this 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 ;;r« <cw/;orc. The vote on tlie passage 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, was reconsidered, as the record shows ; and the question is on
ordering the bill to be eugrossed for a third reading.

Mr. TiiURMAN. I do not think any vote was taken on the reconsideration.

Mr. Edmunds. I move that the Senate take a recess for liften minutes and we can look
into that.

ISIr. Conkling. Was the vote reconsidered ?

The President /(TO tempore. It is so on the record.

Mr. Conkling. Therefore another vote is necessary to pass the bill.

The Presidlnt pro tempure. The question is on the third reading of the bill. The
Senator irom 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 Senate
took a recess for fifteen minutes.

'1 he President pro tempore, (at two o'clock and forty minutes p. m.) The recess having
expired, the Senate resumes its session.

PROCEEDINGS AND DEBATES IN CONGRESS. 687

August 5, 1876.
counting of electoral votes.

Mr. TnuRMAN. I ask the unanimous consent of the Senate to take up the bill reported by
the Committee on Privileges and Elections in reti^ard to counting the electoral votes. I
made a motion to reconsider the vote by which the bill was passed, and I thought that my
motion was still pending. The other day when it was called up I was told that the recon-
sideration had been ordered. I now propose that we take up the bill and act upon it with-
out 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 consider-
ation of Senate bill No. 1

Mr. SARGiiNT. 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. \Vrig!it. 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 PRESfDENT pro tempore. The question 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. Tuurman. If we order the yeas and nays, it may give vise to debate.

Mr. Edmunds. It need not give rise to any debate, but I do not want the bill to pass with-
out mj' 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. CiiRiSTiANCY. I ask that the bill be read.

The Chief Clerk proceeded to read the bill.

Mr. Mkrrimon. Is the clerk reading the bill as amended ?

The President pro tempore. One amendment 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 Representatives shall assemble in the hall of the House
of Representatives at the hour of one o'clock p. m. on the last Wednesday in January
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. Two tellers shall be
appointed on the part of the Senate and two on the part of tlie House of Representatives, to
whom shall be 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 alpha-
betical order of the States, beginning with the letter A ; 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 of the same shall be delivered to the President of the Senate, who shall thereupon an-
nounce the state of the vote and the names of the persons, if any, elected, which announce-
ment 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 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;
and no electoral vote or votes from anj State to the counting of which objections have been
made shall be rejected except by the affirmative vote of the two houses. When the two
houses have voted they shall immediately re-assemble, and the Presiding Officer shall then
ann(junce the deci.'iion of the question submitted.

" Siic. 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-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 decide 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: Prodded, That after such debate has lasted two hours it shall be the duty of each
house to put the main question without further debate.

688

COUNTING THE ELECTORAL VOTE.

" Sec. 4. At snch joint inpeting^ of the two houses, seats shall be provided as follows :
For the Presideut of the Senate, the Speaker's chair ; for the Speaker, immediately upon
his left; the Senators in the body of the hall upon the rig-ht of the presiding offiL-er ; for the
Representatives, in the body of the hall not provided for the Senators ; for the tellers. Sec-
retary 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 dcisk and upon each 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, acting separately, in the manner hereinbefore provided, to direct a recess of
such house not be3'ond the next daj' at the hour of ten o'clock in the forenoon.'

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 Congress,
provides for the length of the 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 regu-
late its own proceedings.

Mr. Thukivian. The ioint 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 thiidi we have — and this whole bill goes upon that founda-
tion— 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. P^DMUNDS. Then you might pass a law as to all bills.

Mr. Hamlin. 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 ; W'hen 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. Edmunds. But the bill refers to their action when they are separate. Your answer
would be perfect when they acted together,

Mr. Fkklinghuysen. I suppose the object 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. TnuRMAN. I do not object to that.

Mr. Frelingiiuy-sen. It seems to me, as I recollect the bill, there is an omission in it.
There is no provision inade 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 because 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 Justice 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, I think, reported to the Senate a constitutional
amendment covering this case; but that of course does not apply to the present year. I
am 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. TnuRMAN. I have not the least objection 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. Mor-
ton,] the chairman of the committee, who reported the bill, and who thought it had better
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 disagreement have a committee of conference ; but for my
own part I am perfectly' indifferent which course may be taken. I think something ought
to de done, 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 result
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 provision 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 perfectly 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 sa^' that if I can get nothing else I will vote for the amendment, if I understand it
correctly, 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
amemlment, a d 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

PROCEEDINGS AND DEBATES IN CONGRESS. 689

not, tliat it mig'ht resnlt-in a conference committee that ■'.vould agree upon somethino^ 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. FUELiNGiniYSEN. I will test the view of the Senate bj- making that motion.

The President yro tempore The Senator from New Jersey moves to reconsider the vote
by which the bill was ordered to be engrossed for a third reading.

The motion was agreed to.

The President pro tempore. The bill is now open to amendment.

Mr. Freeing HUYSEN. L would suggest to the Senator from Ohio that the bill be passed
over for the pres^ent, aud taken up after I can prepare the amendment.

Mr. TiiURMAN. 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. TiiURMAN. I hope so.

The President pro tempore. Is there objection ? The Chair hears none.

Mr. Edmunds. That general understanding must take its chances with everything else.

Mr. Howe. It is to be taken up at some time when nothing else is pending I suppose.

The President pro tempore. The Senator from Rhode Island asked unanimous consent
that it be taken up as soon as the amendment was prepared. The Chair heard no objection
to that suggestion, and so stated.

Mr. Edmunds. I object, not that I shall make the slightest opposition, but in the present
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

ra Rhode Island '? The Chair hears none.

APPENDIX

SPEECH OF HON. ABRAHAM BALDWIN, OF GEORGIA, IN THE UNITED
STATES SENATE, JANUARY 'i:j, ]dOU.

Mr. Baldwin, of Georj^ia, expressed his regret 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 iiarliamentary assemblies, by a single proposition, viz, " That it is expedient that fiutlier
provision be made respecting disputed votes for President and Vice-President of the United
vStates." It was manifest from the debate that several different questions had been under
consideration at the same time, and diii'ereni gentlemen were in fact directing their remarks
to ditterent questions.

The first question was the one he had just mentioned, whether there was so great a defect
in the present provisions which exist on this subject as to renderfurther provisions necessary.

The second is, if further provisions are necessary, must they be made by amendment to
the Constitution? or.

Thirdly, whether they can be made by law ?

He must say for hiuiself that he did not agree that the present provisions on this subject
were so defective and absurd as had been represented. His general respect for those who iiad
gone before liim in this house, and especially for the venerable assembly of the most expe-
rienced statesmen of the country, by whom the Constitution had been formed, forbade him
to enterlaiu the belit;f that this subject, which is the strong feature that characterizes this
as an elective government, could have been till now so entirely out of sight and neglected.
Gentlemen appeared to him, from tlieir observations, to forget tliat the Constitution, in di-
recting electors to be appointed throughout the United States equal to the whole luimber of
the J^enators and Repiesentalives in Congress, for the express purpose of intrusting tins
coil; ti:iuional branch of power to them, had provided for the existence of as respectable a body
as ConjMess, and in whom the Constitution on this business has more confidence 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 ques-
tions which can aiise on the subject intrusted to tliem, to which they are incompetent, oi" to
which Congress is so much more competent ? The questions which present themselves
seem to be :

1. Those which relate to the elections, returns, and qualifications of their own members :
shall these be taken away from that body, and submitted to tlie superior decision and control
of Congress, without a particle of authority 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 receive votes for
a person under thirty-five years of age, or one who has not been fourteen years a citizen of
the United States, &c. It is true they, as well as any other constitutional branch of this
Government, acting nnder that instrument, may be guilty of taking unconstitutional or cor-
rupt step'^, but tliey do it at their peril. Suppose either of the other branches of the
Govemuient — the Executive, or the Judiciary, or even Congress — should be guilty of taking
steps which aie ^unconstitutional, to whom is it submitted, or who has control over it, except
by impeachment? The Constitution seems to have eqtial confidence in all the branches on
their own proper ground, and for either to arrogate superiority, or a claim to greater confi-
dence, shows them in particular to be unworthy of it, as it is in itself directly unconstitu-
tional.

3. The authentication of their own acts. This would seem to be as complete in them as
in either of the other branches of the Government. Their own authentication of their act
fiinshes the business intrusted to them. It is true this must be judged of by the persons
who are concerned in carrying it into execution ; as in all laws and otficial acts under this
Government, they to whom they are directed, and who are to be bound by them, must judge,
and judge at their peril, whether they are duly authenticated or whether they are only a for-
gery.

If this be the just view of the subject, (and he could see no other which did not involve
inextricable difficulties,) it leaves no possible question for the Senators and Representatives,
when met together to count the votes agreeably to the Constitution, but to judge of the authen-

692 COUNTING THE ELECTORAL VOTE.

tication of the act of the electors, and then to proceed and count the votes as directed. If
this body of the electors of all the States had been directed by the Constitution to assemble
in one place, instead of beins^ formed into different electoral collecjes, he took it for granted
none of the questions on which this resolution has been brought forward would liave occur-
red ; every one would have acknowledged that they were to be settled in that assembly. It
having been deemed more safe by the Constitution to form them into ditfereiit electoral col-
leges, to be assembled in the several States, does not at all alter the nature or distinctness
of their powers, or subject them any more to the control of the other departments of the
Government.

He observed further, on the other points to which gentlemen had spoken, that if such
radical and important changes were to be made on this subject as seemed to he in contem-
plation 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 geutlemiu from Massachusetts (Mr. Dexter)
tliat 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 vesteil by the Constitution in the Goverumeut of the United
States, or in any department or officer thereof, could be extended to this case. That speaks
of the use of the powers vested by the Constitution ; this re-olation relates to the formation
of a competent and essential part of the Government itself. That speaks of the movements of
the Government after it is organized ; this relates to the organization of the executive branch,
and is therefore clearly a constitutional work, and to be doae, if at all, in the manner pointed
out by the Constitution, by proposing an article of amendment to the Constitution on that
stibject. His own opinion, however, was what he had before staled, that the provisions on
this subject were already sufficient; that all the questions which had been suggested were
as safely left to the decision of the assemblies of electors as of any body of men that could be
devised ; and that the members of the Senate and of the House of Representatives, when met
together in one room, should receive the act of the electors as they would the act of any
other constitutional branch of the Government, to judge only of its authentication, and then
to proceed to count the votes, as directed in the second article of the Constitution.

SPEECH OF HON. CHARLES PINCKNEY, OF SOUTH CAROLINA, IN THE
UNITED STATES SENATE, MARCH 28, 18UU.

The Senate resumed the consideration of the bill prescribing the mode of deciding disputed
elections of President and Vice-President of the United Statess. Before the question was
taken on the passage 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 hav-
ing been understood, as agreed, that we would reserve ourselves on its constitutionality
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 seri-
ous invasion of some of the most important riglits solemnly and explicitly reserved by the
Constitution to the State legislatures ; that it is a bill more alarming in its consequences
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 tliat such laws have ever existed ;
while the act before you is to continue as a perpetual one, unlimited in its consequences and
duration, and is to exist as a check or diminution of those important rights which, by the
Constitution, are solely and exclusively vested in the State legislatures, or, under their direc-
tion, with the people, and with which Congress have no power to interfere, except in the
manner I shall hereafter detail. I am, indeed, more anxious on this subject, as on many
important points the majorities in the Senate were small, and as I well know the subject
■will excite very great public attention. The States and the State legislatures will feel them-
selves particularly concerned, and I have some reason to suppose that sudh of those as I
represent, and who are of my opinion, will expect from me a defense 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 Government ; that without any express declaration
on the subject, or any amendment to the original instrument, this is the construction we are
obliged to give it ; but tliat when we couple with this construction the twelfth amendment,
whicii the jealousy of tiie States insisted upon, there can be now no question that, in the
language of that amendment, the powers not delegated to the United States, nor prohibited
by the Constitution to the States, are reserved to the States respectively or to the people.

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 Consti-
tution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that

APPENDIX. 693

further declaratory and restrictive clauses should be added ; and as extending; the p^round of
public confidence n the Government will best insure the bcucticcnt 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 ot^cially directed to be
annexed to the Constitution."

By this caption it appears that jealousies and suspicions existed in the States ; that they
were anxious to have some declaration of the principle 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 parties would arise, and that, as 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 explicit constitutional declaration should be an-
nexed expressly stipulating that the powers not specifically delegated were reserved, and
that the prohibitions and reservations mentioned 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 they had placed the hand of their own
authority on the rights of religion and the press, and the as sacred right of the Stateti in the
election of the President ; that they could with safety say to themselves, " On these sub-
jects we are in future secure; we kuow 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 them-
selves ; no inferior power can touch them. In our adorations to our Maker^ our right to
remark on public men and measures, and the exclusive right of the State legislatures and
people to elect the supreme executive, Congress have no authority to interfere. 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 the one I shall ever contend for. and it is on this
ground I shall endeavor to show that Congress have no right to pass the bill before you, or
to legislate at all further on the subject than they have done by the act of 179'i.

I suppose it will hardl}' yet be denied that the people are the common fountain of au-
thority to both the Federal and State governments; that the Constitution reposes exclus-
ively in the State legislatures for the formation 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 formation of
the Federal Government, the people found that their safety consisted in giving certain ex-
clusive rights to the State legislatures in the election of Senators and of their President,
the first to insure to the State governments their existence as such, and their equality in the
second branch, and the other to make their executive completely independent of the national
legislature.

In examining these exclusive riglits, 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 determina-
tion whether a Senator is constitutionally qualified or properly commissioned, and in dis-
cussing this neither the President nor House of Representatives can interfere.

With respect to the House of Eepresentatives, 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
subject, 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
Eepresentatives 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 difference there is between them, and the reasons for
this difference.

By the Constitution, electors of a President are to he 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 Con-
stitution 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. The right to make these directions is complete and conclusive,
subject to no control or revision, and placed entireh' with them, for the best and most unan-
swerable reasons. It was intended to give your President the command of your forces, the
disposal of all the honors and offices of your Government, the management of your foreign
concerns, and the revision of your laws. Invested with these important powers, it was
easily to he seen that the honor and interest of your Government required he' should exe-
cnte them with firmness and impartiality; that, to do this, he must be independent of the

694 COUNTING THE ELECTORAL VOTE.

legislature; that they must have no coutrol over his election; that the only mode to pre-
vent this was to give the exclusive direction to the State legislatures in the mode of choos-
ing 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 different 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 President would really hold
his office iudependent of the legislature; that, instead of being the creature, he would be
the man of the peojile ; that he would have to look to them, and to the confidence which he
felt his own meritorious actions would inspire, for applause or subsequent appointments.

Instead of this, what is the mode proposed by this bill? That the Senate and xlouse of
Kepresentatives of the United States shall each of them elect six members, who, with a chair-
man, 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 tiie me-
morials and petitions respecting them, and have power finally to decide respecting them,
and to declare what votes of different States shall be rejected and what admitted ; and, in
short, tliat this couunittee, 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 accustomed to examine this bill and consider its con-
tents, 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 election 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 de-
cide on libels, a right which we contend belongs exclusively to the State courts, and nf which
we think they cannot constitutionally be divested, and the untenable doctrine, avowed by
the Federal judges, that there is a connnon law, such as is in force in Great Britain, com-
mon to the courts of the United States, may be considered as preparative. Had the people
quietly acquiesced in these doctrines, and generally expressed no disapprobation 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 diminution of the authority of the
State legislatures. Put 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 constitutional mode of remonstrance
and argument; when we have found not only the tables of the State legislatures, but of
Congress itself, covered with memorials against them, lamenting in the most affecting lan-
guage 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 freedom, 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
iudependent of the Federal legislature, I well remember it was the object, as it is at pres-
ent 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. It is made their duty to count over the
votes in a convention of both houses, and for the President of the Senate to declare who has
the majority of the votes of the electors so transmitted. 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 properl}' given. This right of determining on the manner in which the electors shall
vote, tiie inquiry into the qualifications, and the guards necessary to prevent disqualified or
mproper men voting, and to insure the votes being legally given, rests, and is exclusively
iested, in the State legislatures. If it is necessary to have guards against improper elec-
vons 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 ex-
ercise 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 gross and dangerous an absurdity as the framers
of the Constitution never could have been guilty of. How could they expect that, in de-
ciding on the election of a President, particularly where such election was strongly con-
tested, party spirit would not prevail and govern every decision? Did they not know
how easy it was to raise objections against the votes of particular elections, and that in de-
termining upon these, it was more than probable the members would recollect their sides,
their favorite candidate, and sometimes their own interests ? Or must they not have sup-
posed 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 assuming and exercising that independence in the performance of his
duties upon which the safety and honor of the Government must forever resr ?

But it is said, are Congress bound to receive every vote of an elector, whether it is consti-

APPENDIX. 695

tutionally p^iven or not? Suppose votes are sent for a person not a citizen or tourteen years
a resident of the United States ; or under tliirty-five years of age ; or tliat the legislature of
a State has not authorized by their act the votes of the electors ; or that double returns are
made, who are then to decide ? Or lias not Congress, under these circumstances, a power
to determine which of the votes shall be received or rejected ?

These being the avowed reasons for introducing 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 legislatures 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 lirst that no officer of the United States shall be an elector ; and the other, that
no member of Congress shall ; tlie first, an indispensable one, because every officer of the
United States is nominated by the President, and (except judges) 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 Congress from having any agency in the election,
except merely in counting the votes.

They well knew that to give to the members of Congress a right to give votes in this elec-
tion, or to decide upon them when given, was to destroy the 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 age, shall be eligible. These are all the provisions in the
Constitution, 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 legisla-
tures conform their directions in the appointment of electors to the directions of the Con-
stitution f Have they not always determined that persons qualified as the Constitution di-
rects shall be chosen as electors ; and, in the three elections which have taken place, has there
been a suigle 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 val-
uable 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 Unite i States, or members of Congress ; men
who were not only disqualified, but who must, from their connections with the Govern-
ment, be always unsafe depositaries of this trust.

Who, when he reflects on the immense power the President possesses, can suppose that
any man, honorably selected by his fellow-citizens 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 was doubtful, and who was not of sutScient
age? Gentlemen who support the bill have confessed 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 improbable, that I am astonished they are
mentioned ; so far from having auy 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 hon-
orable 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 nominated as catididates as are the most con-
spicuous 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
cau'lidates. There is a jealousy against young men, or men not much advanced in years,
which will forever furbid their being noaiiuated for this office with much hope of success.
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 linowledge than themselves ; they erroneously 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 invidious sensations^
and whose age and long employment in public lite 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 young men being pro-
moted 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 sustaining the great and increasing
weight of an important and arduous situation.

To prevent, therefore, candidates of doubtful residence or citizenship, or under the
requisite age, being elected as President, can never be sufficient reasons with the House for
adopting this bill in the face of the Constitution, even if they had the power. I suppose
there must be more weight in the other reasons, 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, notwitiistanding, assemble and elect under
44 X

696

COUNTING THE ELECTORAL VOTE.

a different authority ; would tbe votes of the electors, under these circumstances, be receiv-
able ? Or suppose that two different sets of electors should insist that they were constitu-
tionally elected, and that double returns should be transmitted, one certified by the gov-
ernor 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 miitual confidence to ex-
ist between the Federal and State governments ; that not only in its formation, but in the
strict and honoiable performance of their relative duties, there will he the greatest punctu-
ality and exactness ; that neglect, and particularly refusal on the part of either, must
endanger the existence of both ; and that until the case does actually arise it is extreuielj' im-
politic in either to suspect it, and particularly to adopt measures in anticipation on suspi-
cions unsupported by proofs, to meet situations that have never yet occurred, or probably
never will ; that it ought to be a federal piiiiciple and a rule with the Government never
to doubt the attachment of the States in the performance of their constitutional duties ;
that as they have hitherto regularly appointed electors and Senators and members of the other
branch, that they will contiiuie to do so, and cheerfully to contribute to the general
expenses; that, in return, they will expect from the Government complete and adequate
protection in their public and private rights, and a constitutional attention to such as are ex-
plicitly reserved to the people and the State legislatures ; that they will govern themselves
by the Constitution, and suffer no suspicions, jealousies, or unfounded reports to hurry them
into acts invading the State right ; 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 maj' sur-
mise or threaten, that when the time arrives no few men will dare to oppose numerous and
important States expressing 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 government would break the Constitution than they had to think that Congress and
the President would do so ; that if the General Government went into measures to restrain
or control 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 itself, 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, and perhaps, in one or two particulars of no importance, even farther than the Constitu-
tion warrants.

To show the extreme impropriety of adopting this bill, I will, for argument's sake, sup-
pose 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 circum-
stances, it would not be safer, and less injurious to the interests of the people, that th<-se
few irregular votes, if transmitted and certified by an executive, should be received and
counted, than that a new and unknown power like this should be created, under whose con-
trol not a few, but every vote that is given, must be reviewed, 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 sen.se and integrity of their executives. We have, particularly 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 suffers party views or private interest or resentment to
govern his conduct, that he stands alone, and is individually responsible ; that so far as
respects his agency in the authentication of the election of the electors, he has no body of
men under the cover of whose advice he can shield hiuiself ; but that in case of misbeha-
vior, he must alone meet the public censure ; that to deserve the confidence of his country,
he ought never to submit to temporary expedients, or court the fleeting breath of popular
applause ; be 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 depend-
ence 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 returns,
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 forward 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 Cougress to which candidate the majority of that body inclines,
and whose friends will compose the committee that are to be thus packed and selected. If
a minority in a particular State find that the candidate they have unsuccessfully supported
is the favorite one with the majority of Congress or their committee, they will easily dis-
cover the means of raising objections to the validity of the returns of the electors insist that
they themselves are elected, proceed to the length of meeting and voting, and transmit to
■Congress a double return.

APPENDIX. 697

It will not be difficult for them to accompany thoir return with plausible reasons, and per-
haps with such unfounded assertions, and specious althouj^^h false documents, as to give to
the committee some colorable reason for rejecting 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 Congre-^s have been for
some years on certain great and trying subjects, 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 measure so calculated to produce unceasing disputes, and
to throw almost every State into scenes which can never arise but from this bill ?

Can there be any one who woirld thus hazard the reserved rights of the State legislatures
and the people, and commit them to a body unknown to and unauthorized by the Constitu-
tion ? Why should we suppose that the Congresses which have preceded us did not under-
stand 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, "»fec., directing
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 executive of each State in certifying the lists of
electors chosen ; of the Secretary of State on the non-receipt of votes ; that Congress shall
always be in session on the second Wednesday in February in every fourth year, for the
purpose of opening and counting the votes, and declaring a Piesident elected agreeably to
the Constitution ; ascertaining the duties, allowances to, and penalnes 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 service commences.

It is very important, in deciding on the bill before you, to peruse this act with great atten-
tion ; to recollect by whom, and when, and under what circumstances it was made. This
law was jmssed 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 honors to private life, filled
the seats of both houses of Congress, when the Executive authority was held by General
Washington, for whom your whole nation at present motirns ; by him who had no rival
in the public affection, whose honors no man envied, and whose re-election 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 tlius ably formed,
and from an Executive thus discerning and independent, as much knowledge of the Consti-
tution, 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 present?
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 Congress, or to au-
thorize them to delegate to a committee of their body, powers contemplated by this bill,
could the Congress or the President of 179i 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 mistakes or ignorance of
the Congress and President of that day can be passed than this bill. It will exhibit to the
world our decided opinion that they were both ignorant of the powers of their respective
departments, and both neglected to declare and assert them. An impartial public will, how-
ever, feel themselves interested on this very important occasion to recollect the circum-
stances under which the act of 1792 was passed, and those under which the present attempt
has been made, and, upon comparing them, to examine 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 contending nations divided their councils ; respecting
and alike respected by the whole family of the civilized world, their country was the resi-
dence of peace and industry, and the asylum of the oppressed of every nation. Their
Constitution was universally admired ; it was drawing to tiiem 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 sum-
moned to occupy it. Under circumstances so favorable to the impartial exercise of those
legislative duties, will not our citizens be inclined to suppose that the act of 1792 was a
proper one, and that there was more probability 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 depreda-
tions, or that strong contending parties do not divide our councils and citizens, as well with
respect to foreign politics as to him who is hereafter to fill the Executive department ; a
time when it is out of the question 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 second arti-

698 COUNTING THE ELECTOEAL VOTE.

cle of the Constitution, it is to be seen that on the day fixed by law, which is the second
Wednesday in February, the President of the Senate shall, in the presence of the Seiiate
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 President, if such number be a ma-
jority of the whole number of electors appointed ; and if there be more than one wlio have
such mHJority, 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 hig-hest on the list, the said House shall in like manner choose the Presi-
dent. From this part of the Constitution it is evident that no power or authority is given
to Congress, even when both houses are assembled in convention, further than to open and
count the votes, and declare who are the President 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 ma-
jority, then the House of Representatives are (voting by States) immediately to choose, out of
the five highest on the list, the President, »fcc.

In order that every man may understand what is here meant by the Constitution, and
■what is its express directions and letter as to this electi(m, let us examine what is the literal
meaning of the word immediately, and why it was introduced here. The best and most
generally admired expounders of the English language give this explanation of the word
immediately. They say it means "instantly" — at the present time — without delay. This
is the meaning the fiamers of the Constitution intended to give it, and it admits of no other.
The plain, express, literal direction of that instrument, 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 live highest 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 calamities 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 respects the West Indies, South America, and the
powers having possessions in Iroth, it was easily to be seen that, in any cnnflict between
these powers, our friendship or liospitality 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 f om 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 intluence would be left untried. To pre-
vent this, therefore, and to make the Executive independent of Congress, the election has
been given exclusively to the States, under the direction of the State legislatures. 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 interference of for-
eign influence, is completely answered; 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 amajoiity of the whole of the electors ap-
pointed, and an election must take place by the national Legislature, or a branch of it; the
question then arose, How was this election to be guarded to prevent, as far as human pru-
dence could, improper domestic combinations, or, what is infinitely worse, foreign interfer-
ence? It was a difficult thing, and required much deliberation. The Constitution directs
that the electors shall vote by ballot, 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 piactice, is unconstitutional and dangerous, and goes to defeat in
some measure the wise provisions of that instrument in declaring that when the House of
Representatives are to elect, that it shall be done immediately. The electors, therefore,
ought never to divulge their votes. The votes being thus unknown, it would be impossible
in most instances to say who were elected or who had the five highest numbers on the list.
Tlie leaders of domestic intrigue and foreign emissaries 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
uninfluenced, as they ought. And is not this, sir, safer; is it not better than that the
smallest delay should take place in determining it f You are to choose, out of the five high-
est candidates on the list of the electors' votes. It never can be supposed that men thus
deliberately 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
tliat either of them, if chosen, will be well qualified to fill the office ; and it will be less dan-
gerous to the public interest that even one who may not be the most tiualified of the five
i-hould 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 attacks that
will be made on their integrity.

APPENDIX. 699

It is to be remembered that around the seat of Conofress will be placed all the open and
accredited ministers, as well as secret emissaries, of foreign powers. Here, too, will be
assembled the concealed leaders of domestic faction ; all the arts and intrigues that have beeu
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 immediate one by the House of Representatives does not
take place, we shall soon have the scenes of Polish diets and elections re-acted here, and in
not many years the fate of Poland may be that of United America;

Wisely foreseeing this, the Constitution expressly orders that the electors shall vote by
ballot; and we all know that to vote by ballot is to vote secretly; that the votes shall be
sealed up, and not opened until the day appointed by law ; and that, if no election has been
made by the electors, an immediate one shall take place by the House of Representatives ;
that so far from appointing committees to receive memorials or petitions respecting the
election, or decide upon it, or so far from having auy right to delegate an authority on this
subject, that Congress shall not themselves, 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 immediately ; and to show how utterly unconstitu-
tional it would be for Congress, either acting in their separate chambers or in convention,
to attempt to assume to themselves the power to reject a single vote ; and how inadmissible
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, authorized irrevocably
to decree who shall be proclaimed President ; a committee not even to be appointed by
lot, as was proposed, in imitation of the election conunittee 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 afterwards 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 committee chosen by the majorities of both houses
just as their own political opinions and prejudices shall prompt.

Extraordinary and unconstitutional as this mode of choosing a committee must appear,
and new and unknown as are the powers intended to be given to it, perhans no part of the bill
strikes us with more astonishment than that the deliberations on all these great and impor-
tant questions are to be in secret, and that the committee are to sit with closed doors. We
have hitherto been taught to believe that- only on executive business or communications
deemed by the executive of either branch to be of a secret nature, that our citizens were to
be denied the right of being present if they please ; but that on all legislative subjects,
most particularly on all questions respecting elections, the deliberations of the body who are
to have power iinaily to decide must, from the nature of our Government, be open and un-
covered.

I have heard that at a time when upon all other questions the doors of tlie 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 uivestigated, you deemed it proper the debates 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 sujjposed 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 unbarred the
doors of the Senate, and opened your legislative deliberations to the public view, will
scarcely suppose that an investigation, so much more important than any legislative act,
should be veiled from a jealous inspection '! Will they not remember that in all contested elec-
tions of members of either house the debates are in public ; and by concealing these will it
not be a reason with them to believe you doubt your right to act at all ? If upon elections
in a State legislatuie, or the national one, petitioners have a right to be heaid 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 committee, 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 necessity for delibera-
tive bodies in free countries sitting with open doors ; it is that the public eye may be con-
stantly upon them; that all their movements may be seen, and all opinions they give on
public questions or in debate carefully attended to. When a single member in the House
of Representatives may represent the interests of above thirty thousand citizens, and in the
Senate upwards of hundreds of thousands, or where a committee of thirteen are to decide on
the election of the officer who is to preside over upwards of five millions of peoi)le, most
surely every opinion and every motion of each member should be strictly scrutinized. If ever

700 COUNTING THE ELECTORAL VOTE.

there could be g^ood reasons for opening the deliberations of 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 receive the votes of the electors as they please,
and filially to decide. It is a power too important to be exercised in the dark ; it is contrary
to what ought to be the practice of every government, whose pride it should be to invite the
investigation of their constituents, and instead of retiring from the public eye to wish " 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 improper 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 or
revenge are sometimes so 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 tempta-
tion been held out than this bill ofiVrs to the House of Representatives. If the election by
the electors can be destroyed by any means, the Constitution gives to that House the elec-
tion of the President ; if, therefore, their favorite candidate has not the majority of votes, but
come 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 nominated by the Senate whom they
can most depend 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 ? Con-
sidering the influence and authority of this officer, 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 candi-
date, and placed himself 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 construction, had ever permitted or intended such an event, whether it would have
deserved the encomiums it lias hitherto received 1 whether, instead of having a really inde-
pendent Executive, chosen under the direction of the State legislatures, in a manner to pre-
vent the influence 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 depend — whether, instead of
having an officer like this, you would not have a fettered, dependent creature of the legisla-
ture, the production of their little packed committee, a thing with a chain on his pen, and a
curb in his nioutli, 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 thirteenth section it is said that persons petitioning against the votes given by any of the
electors of President or Vice-President of the United States, and persons desirous of sup-
porting such contested votes, may respectively obtain testimony in the same manner and
under the same rules and regulations which are provided by the act entitled "An act to pre-
scribe the mode of taking evidence in cases of contested elections for members of the House
of Representatives 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 tlie courts of the United States or of a
State, or, if they cannot be conveniently obtained, two justices of the peace, are, on applica-
tion of the parties contesting elections, to issue a warrant 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 $20. The party
whose election is opposed is to be served with noiice 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 the 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 tlie election of members of the House of Representatives; but that should it
ever be relied upon in the decision of the election of a President of the United States, and
the choice of this important officer, this intended 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 I'iva voce examination of witnesses before Congress
or the committee ; that examination which on the trial of the meanest culprit and for the

APPENDIX. 701

smallest offense your just and equitable laws render indispensable; that mode which allow
you to look a witness steadily in the face, to view in it the calmness of conscious innocence
or the agjitation of falsehood and the fear of detection ; in the presence of an anxious and
inquiring' 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 manner that must forever open a door for the
grossest impositions ? If a judfje of some superior or inferior court is not to be conveniently
found- and in the interior and frontier parts of a number of the States this will frequently 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 testimony to
writing and transmit it to the seat of Government. I trust I shall be believed when I say
that few men have, indeed, that no man has, a higher respect or affection for the people of
the United States than I have ; that I believe them to be the most immaculate and easily
governed, and at the same time the best iutentioned people in the world. I cannot, there-
fore, be suspected of the most distant reflection 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 men of good character or men of sufficient knowledge or
technical skill to be intrusted with the taking of the testimony or the cross-examination of wit-
nesses 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 suflreiently informed 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 amidst 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 mangled or partial manner, to omit or add, as they niay be tempted, the
alarming consequences that might flow from their misconduct scarcely need to 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
delivery of the notices as that the elector or person whose qualifications or election is con-
tes-ted may not receive them at all, or receive them so late as to make his appearance iu
tnue before the justices impossible ! In short, if we view the difficulties that must attend
the attempt 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 contemplated 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 determined that the inquiry into the election and
qualifications of the electors, and the constitutionality 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 wa^ not to be the case, and the bill before you was to be-
coQie law, as you have now determined that the seventh section should be struck out, and that
the committee shall have power finally to decide without restrictions, I wish to be informed
where are the committee to stop their inquiries. 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 couuuittee 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 legislature, are the commit-
tee 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 inquiries, so as to be able to determine with exactness or with justice to the
parties ?

But let us suppose that this committee, or even Congress itself, are determined to exercise
this pouter, and should receive memorials and petitions 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 f As the Constitution directs they are to vote by ballot, the votes of the election
ought to be secret. You have no right to require 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,
difierent 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 the whole because
one or two illegal votes have been supposed to be given.

From the most attentive consideration of this part of the subject, I believe no satisfactory
answer can ever 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 instrument's vesting it exclusively in the State
legislatures.

702

COUNTING THE ELECTORAL VOTE.

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 States 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 number of the legislatures of
the most important States in the Union should be of opinion with me that this is a right
exclusively vested in them by the Constitution, which they have solemnly sworn to pre-
serve, and that consistently with their oaths they cannot quietly acquiesce in a diminution
of it, or suffer auy invasion by a body having no constitutional authority to interfere, might
not such sentiments, firmly expressed and adhered to, unnecessarily give rise to a coutlict
of opinions, at least, that had better always be avoided? We kuow 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 ? Aie the opinions of individuals, or, perhaps, unfounded anonymous publications, to
precipitate you into differences with the States, at a time when harmony is so essential to our
general 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 clashing
of opinions between Congress and the States on the subject of their reserved rights at a time
when not only this but every constitutional 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 integrity of the Government, particularly
as it respects the election of their President. They now know that chosen by elect
ors, elected under the exclusive direction of the State legislafures, 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 factions, 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 rejecting or receiving them, as they please, to thirteen men, all of the same
political description, all wishing the same men, sitting with closed doors, and whose
deliberations are removed from the public eye, and you will find it difficult to avoid
just suspicion. Your jealous citizens will remember that secrecy always accompanies cor-
ruption, and that even if this committee were to act in the most honorable manner, yet still
that the friends ot the candidate 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 rea-
son had influenced the decision. I could urge a variety of other objections 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 Constitution at present insures, both to the States and the General
GoveruQieiit ; a safety which must depend on a strict adherence to its principles, and to the
judicious distribution of its authorities ; that while the States are wisely prohibited from in-
terfering with those really national powers which can alone be safely exercised by the Gen-
eral Government, for the purposes of national defense and protection, that Government is, in
its turn, checked from overstepping 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. Instead of injuring, let it be our care to preserve unimpaired this val-
uable 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 affection 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 intended by the Constitution once in every four
years as an appeal to the people for their opinions respecting the preceding Administration.
If the conduct of the Executive has been wise, disinterested, and impartial, there can be
no doubt that the good sense and virtue of our citizens will continue him in otfice, 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 accord
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 different
political conduct and opinions. This appeal, however, can never be fairly and indepeud-
ently 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 meas-
ures of administration. The President can never proceed without the support of Cougress ;
their approbation must sanction all the laws and all the supplies which his views have occa-
sioned ; and the people, in expressing 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 rejecting the bill ; and as it appears, since the seventh 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 legislatures will be preserved inviolate.

APPENDIX. 703

REPORT OF HON. GEORGE McDUFFIE. OF SOUTH CAROLINA, ON PROPOSED
AMENDMENTS TO THE CONSTITUTION.

In the House of Representatives, December 5, 1823.

On motion of Mr. McDuffie, of South Carolina, it was —

Ih-soltrd, That a select committee be appointed to inqnire into the expediency of
recommending to the several States the propriety of amending the Constitution of the
United States in such manner that the mode of electing members of the House of Rep-
resentatives in Congress may be uniform throughout the United States ; also, that the
mode of choosing electors for President and Vice-President of the United States may
be, in like manner, uniform ; and also that the election of the said ofiticers may in no
event devolve upon the House of Representatives.

Messrs. McDufhe, Alexander Sniyth, Reed, Storrs, Buchanan, Wickliffe, and Gary
were appointed a committee pursuant to the above resolution.

In the House of Representatives, December 22, 1823.

Mr. McDuffie, from the committee appointed " to inquire into the expediency of
recommending to the several States the propriety of amending the Constitution of the
United States in such manner that the mode of electing the members of the House of
Representatives in Congress may be uniform throughout the United States; also, that
the mode of choosing electors of President and Vice-President of the United States
may be, in like manner, uniform ; and also that the election of the said officers may
in no event devolve upon the House of Representatives," made a detailed report, ac-
companied by a joint resolution, proposing an amendment to the Constitution of the
United States in respect to the election of a President and Vice-President of the United
States; which resolution was read twice and committed to a Committee of the Whole
House on the state of the Union. The report and resolution are as follows :

The committee, profouudly impressed with the importance of the propositions em-
braced in tlie resolution under which they have been appointed, have felt a correspond-
ing sense of the magnitude and difficulty of the duty imposed upon them by the order
of the House. To devise a plan for the election of members of the House of Represent-
atives, and of the President and Vice-President of the United States, which will cor-
rect existing and obviate impending evils, and, at the same time, harmonize the con-
flicting views of States, variously situated, and variously affected by it, has been the
anxious desire and laborious effort of the committee. How far they have been success-
ful in accon)plishing these great objects, they submit it to the indulgence and liberality
of the House to determine.

The Constitution of the United States provides, that " the times, places, and man-
ner of holding elections for Representatives shall be prescribed, in each State, by the
legislature thereof; that Congress may, at any time, by law, make or alter such regu-
lations." It also provides that ''each State shall appoint, in such manner as the legis-
lature thereof may direct, a number of electors equal to the whole number of Senators
and R'^presentatives to which the State may be entitled in Congress."

The plan submitted by the committee proposes that each State shall be divided into
as many districts as will equal the number of Representatives to which the State may
be entitled in Congress, and that each of the said districts shall elect one Representa-
tive. It also proposes that each of the said districts shall choose one elector of Presi-
dent and Vice-President of the United States; and that the electors thus appointed in
each State shall have the two additional electors to which the State is entitled.

From this collated view of the existing provisions and proposed amendments of the
Constitution, it will be seen that a fundamental change is contemplated in reference
to the mode of choosing members of the House of Representatives and electors of
President and Vice-President of the United States. It is a change, however, which
counts among its strongest claims to our favorable consideration its absolute efficacy
in preventing changes. For it will fix upon uniform principles those creative opera-
tions of ijojiular sovereignty which are now liable to be controlled by the diversified
and clashing expedients of twenty-four States, mutually independent. Indeed, an at-
tentive consideration of the nature and functions of a written constitution will lead
us to the extraordinary but manifest conclusion that, in relation to the mode of choos-
ing the i)opnlar branch of the national Legislature and of the Chief Executive Mag-
istrate of the Republic, we have no constitutional provision at all. A fixedness and
permanence, not liable to be disturbed by ordinary acts of legislation, are essentially
involved in the elementary notion of a constitution. Accordingly, in all governments
having any just pretensions to civilization or freedom, it has been a primary object to
secure those fundamental canons which give organization and impulse to the political
system, against any changes proceeding from an authority less solemn and weighty
than the source of sovereignty itself. To secure liberty against the violent tyranny of
successive and temporary factions, and also against the more systematic encroach-

704 COUNTING THE ELECTORAL VOTE.

ments of ambition, this extraordinary stability of the law, which constitutes the gov-
ernment, has been found, by universal experience, to be an indispensable safeguard.
Yet, in direct violation of this primary and esseutial principle of regulated freedom,
the very foundations of the two most important branches of this Government are
permitted to fluctuate with the mutable counsels of twenty-four separate legislatures.
The committee, therefore, believe that the plan proposed is recommended not less by
the consideration that it permanently and unifermly tixes the rule which it introduces,
than by the intrinsic superiority of that rule to any other that has been adopted
amidst the changes incident to the existing state of constitutional laxity.

Under the existing system, if system that may be called which is without system,
the inquiry in the respective States is not which is intrinsically the best mode of
choosing Representatives in Congress and electors of President and Vice-President of
the United States, but what is the best, defensive expedient to counteract the regula-
tions of other States and secure the utmost relative weight in the aifairs of the Union.
The party which happens to have the ascendency will thus be furnished with pretexts,
at least plausible and im,posing, for the adoption of meiT.sures calculated to deprive the
minority of their just rights, and tending to produce, as they invariably have pro-
duced, that acrimonious political excitement which inevitably results from injustice
and oppresvsion, however disguised or palliated by motives of public expediency. To
prevent majorities from exercising this sort of oppression is one of the primary objects
of a written constitution.

With tliese general preliminary views, the committee will proceed to the separate
consideratioji of the amendments embraced in the plan submitted to the House,

It has been seen that the " times, places, and manner" of electing the members of
this House are now liable to be prescribed by the legislatures of the several States,
subject to the controlling and superseding power of Congress.

In addition to the remarks already made on the political solecism of placing it in
the power of every State government virtually to change the Constitution of the
Union, the committee feel bound to examine briefly the nature and tendency of the
power thus vested in Congress.

If it should happen to this as it has happened to all other free countries, that the
administration of the Republic should fall into the hands of a faction of men who,
having acquired power by corrupt combinations, would be disposed to retain it in op-
position to the will of the people, and to exert it in opposition to their interests, the
power in question would become exceedingly dangerous. It is in such periods that the
barriers of the Constitution are most essential, because it is in such periods that those
from whose reluctant grasp the scepter of dominion is abo(it to be arrested by an in-
dignant people are exposed to the strongest human temptation to perpetuate their
authority by every desperate expedient not absolutely prohibited.

And does not the Constitution almost literally place in their hands precisely such an
expedient in the jiower of regulating the elections of the members of this body ? It
is susceptible of demonstration that the elections might be so arranged by a party
in power that a small minority of the people would elect a majority of the national
representatives. The mode of operation would be various, according to varying cir-
cumstances. Sometimes the object would be accomplished by changing the district
into the general -ticket system ; sometimes by an artificial arrangement of districts;
and sometimes by a skillful combination of both.

As nothing is too desperate for a faction struggling for existence, let us suppose that
they should prescribe, as they would have the unquestionable power to prescribe, that
in all those States where a majority of the people were favorable to their purposes the
representatives should be elected by a general ticket, thus suppressing the voice of the
minority ; and that all the States opposed to tbeir domination should be divided into
districts in such manner that the minority of the people should elect a majority of rep-
resentatives. As examples of such higii-hauded proceedings are already to be found in
the history of several of the State governments, the supposition that the General Gov-
ernment, with more powerful inducements to mislead it, will, at some future period,
pursue a similar course, caunot be considered extravagant or improbable.

The committee, therefore, feel the deepest conviction that the power now vested in
Congress of controlling the election of its own members is utterly inconsistent with
every just conception of constitutional liberty, aud ought no longer to exist.

Having thus attempted to show the necessity of a plan of such permanence as equally
to exclude the disturbing influence, both of the General and State governments, the
committee propose to examine the comparative advantages of the general ticket and
the district systems of electing the Representatives in Congress.

It will scarcely be denied that a just regard for the relative weight of each State in
the affairs of the Union, requires that one or the other of the systems should prevail in
all the States. Upon any question of national policy, in relation to which the interests
or wishes of two States should stand mutually opposed, it would be obviously unjust
that the one should have, by means of a general ticket, an undivided vote in this
House ; while the other, electing by districts, might be almost neutralized by her divis-

APPENDIX. 705

ions. It remains, therefore, only that we inquire which of the two systems is intrin-
siually the best.

In favor of the general ticket system, it has been urged, with considerable plausi-
bility, thar, by extending the sphere of selection, the number of competitors, of com-
petent qualifications, will be proportionally increased, and that the influence of dema-
gogues, who can only operate effectually in a small sphere, will be greatly diminished.

It cannot be flenied that it sometimes happens that a particular district might select
a representative residing out of its limits, better qualified than any residing within
them ; but, it is to be remarked, that there is nothing in the system proposed which
will prevent a district from electing any resident citizen of the State, without regard
to the particular place of his residence. It is true that each district will generally elect
one of its own citizens, from obvious considerations justifying the preference. But this,
so far from being an objection, would tend to produce a distribution of the talent of
the State, in every view desirable; for it has been found that talents, like everything
else, will naturally seek the market which promises the most appropriate reward.

That part of the argument under consideration which assumes that the district
system is calculated to give to the arts of demagogues an undue ascendency, is worthy
of a more serious consideration. It will be admitted that this system enables the con-
stituent to become better acquainted with his representative than is practicable under
the other. Can it be maintained, then, that, in proportion as we increase the oppor-
tunities of the people to obtain a knowledge of the character and qualifications of the
candidates, we diminish the chances of a judicious selection? Is it true that, in a
fair competition before the people, art and hypocrisy will prevail over talent, integrity,
and independence? On the contrary, it is confidently believed that truth will ulti-
mately prevail in all competitions before the people, if maintained with an ability and
firmness equal to that by which error is supported. This proposition is the basis upon
which only a representative democracy can be sustained. If it be not true, it then,
becomes expedient to devise some scheme which will virtually take from the people
the elective power. And the committee are of opinion that the general ticket system
is precisely of this description.

In a State of any considerable extent, almost every candidate must, in the nature of
things, be unknown to the great body of the people. They, of necessity, vote by
faith, and not by knowledge ; and the few distinguished politicians who are selected
to concentrate the popular opinion, acquire a control over it little short of the power
of absolute dictation. Universal experience teaches ns that few men are to be found
of sufficient firmness and purity to resist the temptation to abuse such power. Cabals
and factious combinations, stimulated by selfish views of aggrandizement, are the in-
evitable consequences.

But it is not to be expected that this sort of dominion will be quietly submitted to
by those politicians who have no participation iu it. A contest for the dictatorship
ensues, agitating the community and destroying the harmony of society, by mere per-
sonal and family feuds, when there is no difference of principle between the contend-
ing parties.

Nor would the evil effects of this state of things be confined to the State. As the
political course of opposing parties is very much determined by feelings of mutual
antipathy, it would frequently happen that when one party supported the existing ad-
ministration of the General Government, the other would stand opposed to it.

Under these circumstances every revolution produced by the alternate successes and
defeats of these rival parties might increase or diminish the supporters of the General
Government by the whole number of the Representatives of the State in Congress.

Besides the mutability which would be thus communicated to the national councils,
the General Government, feeling its power to be identified with the fate of a State
party, would be tempted to interfere in the political struggles of that State. And
when we consider the effect which might be produced by the judicious distribution of
patronage amongst the leaders in such contests, we cannot doubt that the facility and
the means of such interference are equal to the temptation.

It may be justly said of the plan of voting by a general ticket, that it is not consistent
with the true theory of a popular representation. The'popular branch of the national
legislature should exhibit a faithful image of the people. When, for example, a State
is divided in its interests and opinions, when some districts are agricultural, some
manufacturing, and some commercial, and, if you will, when some are republican and
some federal, each of those districts of people should have a fair representation in Con-
gress. Because one interest or one party happened to be predominant in a State, it is no
adequate reason that the rest should be disfranchised and have no voice in the national
councils. This, indeed, would not be a representation of the people, but of the States,
giving to this House a federal, instead of a popular origin and character.

A little reflection will convince us that this is not a mere nominal distinction.
Upon all the great political questions by which this, like all other free governments,
must be often divided into parties, the general-ticket system, by entirely suppressing
the voice of the minority, would cause the representation from each State, in Congress,

706 COUNTING THE ELECTORAL VOTE.

to be unanimous on one side or the other. Thus would States be arrayed against
States on this floor, stimulated by pride, heated by collisions, and estranged by feel-
ings of rivalry, and throwing into the discussions here all the violence of local feelings
and local prejudices. By the inevitable tendency of this state of things to produce a
geographical formation of parties, we need not the prophetic spirit of Washington to
warn us that the harmony of the Union would be destroyed and perhaps its existence
endangeied.

Everything that tends to strengthen the peculiar and exclusive feelings of State
pride and sectional prejudice inevitably weakens the bonds of the Union. We are
therefore urged, by all the considerations that attach us to this great palladium of our
security and happiness, to adopt such an organization as will break those large masses
of political power, whose collisions can never fail to shake our system to its deepest
foundation.

It ought never to be forgotten that the citizens of this republic, though subdivided
into States for certain essential purposes, are one people in all that relates to the Gen-
eral Government. Born to a common inheritance purchased by the toils, the sacri-
fices, and the blood of their common ancestors, they should be united not less by the
ties of common sympathy and kindred feeling than by those of common interest. With
a view to give strength and durability to these essential bonds of union, it is of the
utmost consequence that the local minorities in the several States and various geo-
grai^hical divisions of our extensive country should have a fair and full representation
in Congress. In periods of deep political excitement nothing is better calculated to
allay sectional animosities and subdue the angry spirit of faction than the mediatorial
influence of such representatives.

The committee i>ropose now to consider more particularly that part of the resolution
committed to their charge, which makes it their duty to inquire into the expediency
of establishing a uniform mode of appointing the electors of Presidtiut and Vice-Presi-
dent of the United States.

Three modes now prevail in the different States. In some the appointment is made
by the legislature; in some by the people, jvoting a general ticket; and in some by the
people, voting by districts. By giving each of these modes a separate consideration
we shall be the better enabled to ascertain the relative merits of that which is sub-
mitted to the House for its adoption.

Pre-existing bodies, sufficiently small and permanent to be exposed to the tampering
and seductive arts of intrigue and corruption, ought to have no agency in the election
of a President of the United States, upon any ground short of absolute necessity.
State legislatures are bodies of this description, and there is no pretense of a necessity
for interposing them between the people and the electoral college. According to the true
conception of our political system, the people exercise the elective power. When, from
considerations of convenience, agents are appointed for this special purpose, it is not,
as in the case of a legislative trust, to exercise their own judgments, but simply to ex-
ecute the popular will. The assumption that the legishitures would make a better
choice than the people involves the admission that their choice would be different from
that of the people; an admission which, if the foregoing view be correct, furnishes in
itself an unanswerable objection to the interposition of such an agency. In propor-
tion, therefore, as the number of intermediate agencies is increased, the chances are
multiplied that the will of the people will be defeated in the choice of a Chief Magis-
trate.

The committee have no confidence in that sort of artificial and complicated ma-
chinery, through which some suppose it necessary to filtrate the popular will in order
to purify and enlighten it. The stream of elective sovereignty is nowhere so jmre as
at its source. Every remove from this is an advance in a course inevitably ending in
corruption. Indeed it is apparent that the framers of the Constitution, by ordaining
that " each State shall a^jpoint, in such manner as the legislature thereof may pre-
scribe," the electors of President and Vice-President, intended to exclude the legisla-
tures from making the appointment themselves.

That this is the true interpretation of the Constitution is abundantly obvious, as
well from the fair import of the words of that instrument, as from the profonudest
commentary ever written on it. The authors of the Federalist, iu speaking of the
election of the President, use these words : " It was desirable that the sense of the
people should operate in the choice of a person to whom so important a trust was to
be confided. This end will be answered by committing the right of making it, not to
any pre-established body, but to men chosen by the people for the special pur^jose, and
at the particular conjuncture."

Whatever objections may be urged against the appointment of the electors by
the people, no one, it is presumed, will allege that corruption will find, in that mode
of proceeding, any scope for its operation. Neither have we any just ground to appre-
hend that intrigue, operating by means less palpable than corruption, and appealing
to motives less profligate than venality, will produce any impression upon the vote of
ten millions of freemen, scattered over the vast domain, which is their favored iuher-

APPENDIX. 707

itance. The fact that these principles are, from their very nature, incapable of acting
upon multitudes, would prevent them from operating upon the people, even if we had
not the higher security furnished by their virtue and patriotism.

But it is frequently objected, that the great mass of the people are not sufficiently in-
telligent to decide upon tlie qualiiicatiousof so important an officer as the Chief Mag-
istrate of a great republic; aud jet that in voting for electors, who are merely the
organs of their will, they in fact determine that question. As the history of all
nations, of any considerable extent, gives at least a plausible coloring to this objection,
it deserves to be deliberately examined. No political principle is more firmly estab-
lished by the experience of nations, than that the freedom of political institutions
cannot rise higher than the intelligence of the people.

All attempts to erect free governments upon any other basis than an intelligent
population, have always resulted and must ever result, in reaction and disaster.

If therefore, the connuittee could believe that the people of the United States are
not sufficiently intelligent to perform so essential a function of popular sovereignty
as the election of their Chief Magistrate, they could not resist the unwelcome conclu-
sion, that our system of government is but a delusive hope, resting upon unsubstan-
tial foundations, and containing within itself the principles of rapid degeneracy aud
certain dissolution.

Eesponsibility to the people, all must admit, is the only adequate security for free-
dom, the great conservative principle of a representative government. And what
would be the value of the responsibility of a public agent to a people not capable of
electing him ? If therefore, it. could lie shown, that the people are not competent to
elect the President, an argument would result, which it would be difficult to resist, in
favor of those political combinations which, under various forms and pretenses, are
ever ready to assume the province of dictating to the people, aud which can only be
regarded, when habitual and permanent, as synonymous with corruption.

Under these circumstances, we have a source of just consolation iuid pride in the
reflection that, in all that relates to the maintenance and enjoyment of a system of
practical freedom, history has left no record of a jieople at all to be compared to the
citizens of these United States.

A very brief notice of the prominent circumstances which distinguish our social and
political condition from that of the republican nations of antiquity, and of the civilized
nations of modern Europe, will furnish at once the evidence and the explanation of
this superiority.

No estimate of the comparative condition of this and the ancient republics can be just
which does not embrace the invention of the art of printing, and the consequent estab-
lishment of a free press. These causes alone have produceil a permanent revolution in
the ])olitical condition of the human race. Societies of freemen have been improved
and enlarged to a degree utterly unattainable without these efficient means of diffusing
intelligence, and the republican system has consequently received a modification and
extension which the wisdom of antiquity would have pronounced impossible. The
harangues of their orators, delivered to collected multitudes, were almost the only
meaiiis of political intelligence enjoyed by the people of the ancient republics. The
extent of a rei)ublic, or, in other words, of a government, emanating from the people,
and responsible to them, is confined by an imperious political necessity to such limits
that the proceedings of the central administration may be promptly, certainly, and
generally communicated to the extremes of the couutrj^.

Adverting, therefore, to the limited means of communicating intelligence possessed
by the ancients, the reason is api)arent why their republics were so extremely con-
tracted. They were, of necessity, simple democracies; and, in the days of their great-
est purity and splendor, the portion of the people which really governed was confined
to their chief cities, because that portion alone was within the reach of the only exist-
ing sources of political intelligence.

On the contrary, the great tiody of the people of the United States, dispersed over
an immense region, to whose soil they are attached by the strongest ties, receive daily,
in the tranquillity of retirement, from books, documents, legislative discussions, and
the chronicles of passing events, that knowledge of the affairs of the Republic which
the Greeks and Romans received almost entirely from the occasional debates of their
orators before the assemblies of the people. It is, therefore, extremely obvious that
any inference unfavorable to the political capabilities of the American people, which
can be drawn from the history of those republics, must be founded upon loose analo-
gies, calculated rather to delude than to enlighten.

A comparison between the United States and the civilized nations of modern times
will lead to results equally flattering.

All the great political societies of modern Europe, having a feudal origin, are con-
structed upon feudal principles. A permanent inequality of property, maintained by
law and consecrated by us;ige, has naturally produced the extremes of a proud aris-
tocracy and a degraded populace without any intermediate power sufficient to control
their irregular tendencies. In such a state of things it is not difficult to conceive that

708 COUNTING THE ELECTORAL VOTE.

a popular election of the Chief Executive Magistrate would throw the hostile elements
of society into such violent collision as to involve in anarchy and ruin all that is
sacred in the institutions of the country. But all the American communities which
compose the United States are essentially different, both in their origin and construc-
tion, from those of modern Europe. Our ancestors, in the full maturity of reason,
with no consecrated errors to embarrass them, reared up, from its simplest elements,
a system of practical freedom ; and from the first settlement of the country, every suc-
cessive generation has been accustomed to exercise the functions of self-government
in every form and in every variety of combinations. Nor are we less favorably distin-
guished in the composition of our social system than in its origin.

The abolition of the laws of primogeniture has produced a general equality of prop-
erty, and this, again, together with the equality of civil aud political privileges, has
produced a general diffusion of knowledge, of which history furnishes no example.
Almost the entire mass of our popitlation corresponds, in character and situation, with
what is denominated the middle interest in England, and which is justly considered,
by her most enlightened statesmen, as the soundest part of her population.

Ih extending tire elective system in the United States, therefore, beyond all former
precedents, we do nothing more than adapt our political to our social system. In fact,
so widely different is our situation from that of any other nation, that it may be truly
said that the people would be less liable to make an injudicious choice of a Chief Magis-
trate than of any other important officer of the Government. Such is the admirable
distribtition and subordination of political powers in our system, and such the variety
of practical schools of preparation and trial through which a statesman must pass be-
fore he can aspire, with any just or reasonable expectations of success, to the highest
office in the Republic, that tLie qualifications and pretensions of the candidates can
always be determined by the wisdom of their past measures and the importance of their
past services. As these are the only indications of wisdom upon which it would be
safe to rely in the selection of an officer of such vast respousilnlity aud importance, it
is satisfactory to reflect that they are indications also of so palpable a kind that they
cannot fail to make their just impression, both upon the intelligence and gratitude of
an enlightened and patriotic people.

But another objection, of a kindred spirit with that which has been just considered,
is frequently urged against the change proposed.

It is said that the appointment of electors by the people would so directly involve
the canvass for thePresideucy itself, as to produce a degree of popular excitement sub-
versive of the order and peace of society. The remarks already offered, in relation to
the dispersion of our population, the peculiar structure of our society, and the general
diffusion of intelligence, are sufficient to show that nothing in the experience of other
countries can be regarded as a just foundation tor such an apprehension. But there
are other views of the subject which will lead us to the conclusion that the tendency
of the proposed change, upon which this object is founded, is one of its strongest
recommendations.

The order of social virtues and social duties in the United States is nearly the reverse
of that Avhich existed among the Greeks and Romans. In an ordinary state of thiftgs,
when no great emergency calls for patriotic sacrifices, the duty which principally
engrosses the feelings and the effi)rts of an American citizens is to make provision for
his comfortable subsistence, and to satisfy the claims of his family. Whereas, the first
consideration of a Greek or Roman citizen, both in peace and in war, was the glory of
his country. Our tendency, therefore, is to give too exclusive an attention to private
pursuits, and sink into indifference in relation to the general concerns of the Republic;
while the tendency of the Greeks and Romans w^as to intermeddle perpetually in pub-
lic affairs to the neglect and detriment of their private concerns.

Our danger, therefore, is too much popular apathy ; theirs was too mucl^ popular
excitement ; and though the state of things existing here is more deeply founded in
nature, and furnishes a more substantial basis for a durable and extended sj'stem of
liberty, it certainly indicates the necessity of such constitutional arrangements as
will rouse the attention of the people to so great a national question as the election
of a chief magistrate. No stronger evidence need be ottered of the existence of such
a necessity than the actual state of public opinion on that subject at this moment in
many parts of the Union. The people have been so long accustomed to have no prac-
tical agency in the election of a President, that the idea is not uncommon that they
have nothing to do with it. As the inevitable tendency of this state of popular indif-
ference is to increase the power aud influence of political managers and unprincipled
combinations, it is of the last importance that it should be corrected, if possible. The
committee are of the opinion that the plan submitted will furnish the remedy.

But it yet remains that we inquire whether the people should vote by a general
ticket or by districts. The committee will therefore proceed to state the considera-
tions which have induced them to adopt the latter system. It was as evidently the in-
tention of the framers of the Constitution as it is the dictate of sound policy that the
President of the United States should be the choice of the people, and not of the States.

I APPENDIX. 709

It is true they contemplated an infusion of the federal principle into the election in the
proportion of the Senators to the Representatives iu Cougress, aud this proportion is
retained in the plan proposed hy the committee.

But to extend the federal principle to the whole body of electors would be noth-
ing less than sacrificing the rights, the interests, and the power of tha people to the
false and imaginary idol of State consolidation.

Assuming it as an undeniable position that a majority of the people of the United
States have a right to elect the President, and tliat tlie will of such majority ought to
prevail, it can be demonstrated that the system of voting by a general ticliet would
render this fundamental principle of our Government the sport of accidental combina-
tions.

Six of the States, for example, if they give a unanimous vote, can elect the President.
But if they vote by a general ticlcet, the candidate who obtains a bare majority of the
popular vote receives the unanimons electoral vote of the State; so that, assuming the
population of the United States to be eight millions, a little more than two millions
of the people might elect the President.

Let us again supjiose that there are two States, one containing nine hundred thou-
sand people and entitled to thirty electoral votes, and the other containing eight hun-
dred thousand people, and entitled to twenty-six electoral votes. Let us further
suppose tliat there are two candidates for tlie Presidency, of whom one is supported
by five hundred thousand of the people of the first supposed State, aud the other by
the remaining four hundred thousand and the entire eight hundred thousand of the
other State.

Under tiiese circumstances, the candidate who obtains the support of only five
hundred thousand of the people could receive thirty electoral votes, while twelve
hundred thousand people could give the opposing candidate only twenty-six. Accord-
ing to this system of false equatious, a large minority of the people is precisely equal
to no minority at all.

By thus entirely excluding the State minorities from the calculation in making up
the general aggregate, the people are literally immolated by hundreds of thousands at
the shrine of an artificial and delusive system, which, by making a majoritj' equal to
the whole in each State, gives a minority an equal chance for the ascendency in the
Union.

The true popular principle, in the opinion of the committee, is that which prevails in all
other po^iular elections throughout the United States. In the election, for example, of
thegoveruor of a State by the people, a candidate does not count the unanimous vote
of every cotinty where he happens to obtain a majority, but the respective majorities
of the several candidates are added to their resiiective minorities, and the aggregates
thus produced are taken as the true expression of the popular will. If, then, iu all
that relates to the " common defense and general welfare," the people of the United
States are really to be regarded as one people, if all the citizens of the Republic,
whether their lot happens to be cast on the one side or the other of an imaginary line,
axe equally entitled to their vote andtheir voice in the common concerns and common
councils of the Union, if it be wise to exclude from those councils the peculiar and
exclusive feelings of States, and if the man who is to preside over the common desti-
nies of all should have peculiar obligations to discharge and peculiar feelings to in-
dulge toward none of the States, we are under the most solemn obligations to reject a
plan for electing the President which would array States against States in ambitious
conflict for the mastery, and equally sacrifice the inalienable rights of the people and
the general liarmony of the Union.

But there is another objection to the system of voting by a general ticket which the
conmiittee consider unanswerable. It is a practical proposition, conclusively estab-
lished by the experience of all the States where the experiment has been made, that
this system tends by an inevitable necessity to transfer into the hands of a few the
power of controlling the entire suffrage of the State. In a State entitled to thirty
electors, and composed perhaps of fifty counties, it must be apparent that almost every
county would vote for an entire ticket of its own, aud that the popular will would be
thus exposed to such distraction as completely to endanger its success without some
means of giving it concentration. Aud as the power of the individual selected for
this purjiose must be co-extensive with the wills which it w(nild be their objects to con-
centrate, it would follow that they would virtually decide which of the presidential
candidates should receive the whole electoral vote of the State. At the first com-
mencement of such a system, when the persons clothed with the authority of uniting
the popular will were really its representatives, no great evil would be experienced.

But the slightest attention to the history of ambition, the tendency of power, or the ■
lessons of our own experience will convince us that such combinations change in the
natural course of things from temporary expedients to permanent institutions, aud
that from beiug the mere organs of the will of the people they assume, under pretexts
which ambition is seldom at a loss to devise, the power of dictating to the people. In
making these general remarks, the committee feel conscious that they are rather

710 COUNTING THE ELECTORAL VOTE.

recording the history of the times in which they live than their own speculations.
And it is upon this high authority that they predicate the opinion that if the plan of
voting by a general ticket were established, a central power would spring up in almost
every State, consisting of the ruling politicians of the day, who would be bound to the
people by no ties of regular responsibility, and be in every respect more liable to cabal,
intrigue, and corruption than the legislature itself. And when we reflect that the
entire electoral vote of a State, upon which the presidential election itself might turn,
would frequently depend upon the integrity of a few men, perhaps of a single individ-
ual, it is difficult to conceive a state of things in which there would be stronger induce-
ments or greater facilities for intrigue and corruption.

By dividing the States into districts all these evils would be avoided ; the will of
the people would be fairly expressed ; no political combinations would be necessary or
practicable. Every district would at least have its own center of operations, upon
which corruption would be brought to bear with its inducements vastly diminished,
and its consequences proportionably less to be dreaded.

The last branch of the resolution under which the committee are acting remains to
he considered. They have found it impracticable absolutely to exclude the possibility
of the election of President and Vice-President devolving in any event upon Congress;
but they believe under the plan submitted the contingency would not happen once in
a century upon which the election would devolve upon that body. They propose, in
the event of no person receiving a majority of electoral votes at the flrst balloting,
that the electors shall again meet forthwith in their respective States and vote for the
two persons having the highest number of votes in the first instance.

This will almost invariably insure an election by the electors at the second ballot-
ing. Indeed, it may be fairly presumed that every candidate who is convinced he
cannot be one of the two highest in the first instance will withdraw from the contest,
and in this manner the probability of an election at the first balloting will be very
much increased. This branch of the amendment is recommended by all the reasons
which can be urged against the election of the President by tlie House of Representa-
tives. And these, in the opinion of the committee, are cogent and conclusive. All
history teaches us the melancholy truth that in the election of a chief magistrate of a
great republic, intrigue and corruption, under the various and insidious disguises which
they are capable of assuming, are the deleterious principles against which the precau-
tions of human wisdom are least capable of providing an effectual resistance. The
danger to be apprehended from these principles is in direct proportion to the tempta-
tion and the means of rendering them efficient instruments in promoting the views of
ambition. And what prize can hold out more attraetive temptations to the ambitious
than the Presidency of the Unioed States ?

In pursuit of what object is even a virtuous mind so much exposed to the blandish-
ing delufsionsof that wretched casuistry which makes the end sanctify the means?
And when we advert to the immense store of i)atronage which would be placed for dis-
tribution in the hands of the successful aspirant, it cannot bo disguised that he would
have precisely those means of tampering with the members of the House of Representa-
tives, by which the wages of wickedness might be received in the disguise of virtuous
recompense, and the wretch who sold his integrity might almost delude himself into the
belief that he was serving his country. It is exceedingly unpleasant to indulge the
idea that the representatives of a virtuous and enlightened people could ever be
swerved from any duty by selfish or sinister views, but we have the authority of more
than human wisdom for saying, "Lead us not into temptation." It is, therefore, the
deliberate opinion of the committee that the only effectual mode of preserving our
Government from the corruptions which have undermined the liberty of so many other
nations " is to confide the election of our Chief Executive Magistrate to those who are
farthest removed from the influences of his patronage."

As long as the national legislature continues to have so direct an agency in the
election of the President, even excluding the suppo.sition of corrupt influence, the
most injurious effects must be produced upon the character of its members and the
temper of its deliberations. The legislators of the Union will be converted into par-
tisans of the respective candidates for the Presidency. Their mutual criminations will
unavoidably distract and embarrass the essential business of the country; and instead
of devoting themselves exclusively to the great objects of their legislat'ive trust, their
time will be engrossed in holding consultations and projecting devices for the purpose
of controlling public opinion on the presidential election, and ic would but too cer-
tainly result that pi inciples would be sacrificed to men. It may be fairly assumed
that until the Constitution is amended the President of the United States will, in gen-
eral, be elected virtually by Congress in one form or another. Without intending to
blend the consideration of temporary questions and passing events with the general
views here presented, the committee will be excused for adverting to the fact that the
eventual choice of the President by the House of Representatives in a mode which
makes a single member from one State equal to thirty-six from another, will always
furnish an argument or a pretext for those preliminary combinations which all admit;

APPENDIX. 711

to 1)0 evils iu themselves, and oulj- to be excused as the means of avoiding greater
evils.

In this manner we are not only exposed to the contingent evil growing out of the
Constitution itself, but the certain evil of combinations for the avowed purpose of
avoiding it. Congress will not only have the power of choosing a President from the
three persons who shall receive the largest number of electoral votes, but will liave a
plausible argument in fixvor of nomiuating a President before the electoral vote has
furnished them with any certain indication of popular opinion to direct their choice
and limit the extent of their discretion. It cannot be disguised, therefore, that the
tendency of the state of things now existing nnder the Constitution is to convert Con-
gress into a permanent electoral body.

Under these circumstances, the candidates for the Presidency, instead of devoting
themselves to the service of the country by measures calculated to promote the welfare
and secure the confidence of the people, will be tempted to devote themselves to those
arts of conciliation and managemeut by which the members of Congress may bo most
effectually secured in their interest. The ultimate consequence would be that our
Chief Magistrate would be elected by cabals of politicians having views and interests
alien from those of the people, and that the country would be governed by a succes-
sion of factious, each proscribing the members and destroying the work of the one
which preceded it, and communicating to the operations of our system all the unsteadi-
ness of a turbulent democracy, and all the tyranny of a temporary despotism. The
committee, therefore, believe that the only effectual mode of rendering the Government
efiicient and steady iu its operatious, and at the same time consistent with the security
of the general liberty, is to infuse more of the democrdtic principle into the election
of the President; making him lu fact, as he is iu theory, the choice of the people.
Having thus attempted to show, they trust not altogether without success, that the
rights and interests of the people imperiously demand that the proposed amendments
should be adopted, the committee will offer a few concluding remarks upon the man-
ner in which the States will be relatively affected by it.

It may be justly doubted whether, on such a question as the present, the States, as
separate communities, can have any interest different from that of the people of the
States considered merely as portions of the common mass of our general population.
But, as it is not to be expected that ono class of states will surrender, without an
equivalent, the relative power secured to them by the Constitution, the committee
have endeavored to introduce into their plan such principles of compromise as will be
most likely to secure a general acquiescence. The division of all the States into dis-
tricts will'prevent them from moving in consolidated masses, and will diminish the rela-
tive power of the large States more than that of the small States ; but for this there is
an ample and equitaible equivalent in the diminished probability that the election of the
President will come into Congress, and in the surrender by the small States of their
equal power even when that contingency shall happen. This compromise is forcibly
recommended by the consideration tnat the powers given up both by the large and the
small States are powers which they ought not in justice to j)OSsess, and which are not
transferred from one to another, but surrentlered by both to the people.

As it is obvious that neither the large nor the small States ever will consent or, per-
haps, ever ought to consent to correct the great and increasing evils of our present
system without mutual equivalents similar to those provided in the plan submitted by
the committee, the question for both to determine is whether they will submit to the
existing evils, great as they are, by the almission of all, or miguanimausly offer up, on
the altar of their common country, powers which are neither consistent with the riguts
of the people, the purity of tlie Government, or the harmony of the Union.

Resolved, if-c. That the following amendment to the Constitution of the United
States be proposed to the legislatures of the several States, which, when ratified by
three-fourths thereof, shall be valid to all intents and purposes as a part of the said
Constitution :

" For the purpose of choosing a President and Vice-President of the United States,
each State shall ba divided by the legislature thereof into so many districts as
the State shall be entitled to 'Eepresentatives in Congress, and each district shall
be composed of contiguous or coterminous territory, and contain as nearly as may be
conveniently the number of persons for whom the State is entitled to a Representa-
tive according to the apportionment ; which districts, when laid oft', may not be altered
until after another census shall have been taken.

" The inhabitants of each of the said districts, who shall have the qualifications
requisite for electors of the most numerous branch of the State legislature, shall
appoint one elector of President and Vice-President, having the same qualifications.
Tiie electors appointed shall meet in their respective States and apnoint the two other
electors to which the State is entitled, and also fill up vacancies, if such there shall be,
from death, sickness, inability, or non-attendance of electors appointed by the people.
The whole number of electors of each State shall then vote by ballot for the President
and Vice-President, one of whom a*^^ least shall not be an inhabitant of the same State

45 X

712 COUNTING THE ELECTORAL VOTE.

■with themselves. Tbey 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 n)ake lists
of all persons voted for as President, and of all persons voted for as Vice-President,
showing the nnniber of votes given for each, which lists they shall sign and ceitily, and
transmit, sealed np, to the seat of the Government of the United States, directed to
the President of the Senate, who, on receiving the same, shall call a joint meeting of
the Senate and House of Representatives, in which he shall preside. He shall, in tlie
presence of snch joint meeting, open all the certificates, and the votes shall be counted.
If any person shall have the votes of a majority of tho whole nnmber of electois
apiiointed, he shall be the President; and if no person shall have the votes of
such majority, the President of the Senate shall, by proclamation, and by notification
to the executive of each State, as also to each of the electors appointed, declare the
fact that no person is chosen President, and the names of the persons having the
two highest numbers of votes. The electors shall thereu])on meet again in their
respective States, fill np vacancies in their bod}-, if any shall have occurred from
death, sickness, inability, or failnic to attend, of any of the electors i)reviously
appointed, and shall then proceed to vote for one of the persons as President who
at the first meeting had one of the two highest numbers of votes of all the electors.
They shall make and transmit, as already presciibed, lists of the persons voted for
at the second meeting, which shall be counted in like manner as the votes given at
the first meeting; if, on counting the voles given l>y the electors of snch second meet-
ing, it shall ajipear that one of the persons who had one of the two highcht numbers
of the votes given at the first meeting has a majority of the votes of all the electors
given at the second meeting, he shall be the President ; and if no person has such
majority, the members of the Senate and House of Representatives, in joint meeting,
shall, without sei)arating, voting individually, and not by States, choose the Pjesident
in manner following : a majority cf the whole number of Senators and Representa-
tives jiresent and voting being necessary to a choice; if there be two or more jier-
sons, each of whom have tho highest nnmber of electoral votes given at the second
meeting, each one of them shall be chosen ; if there be only one person having the
highest number of electoral votes less than a majority, one of the persons who have
one of the two highest numbers of votes shall be chosen ; whenever more than two
persons shall be eligible by the joint meeting and no choice shall be made on
the first ballot, the nnmber shall be reduced by dropping those who shall recciive
the smallest nnmber of votes, until no more than two remain, one of whom shall be
chosen ; if two persons shall receive an equal nnmber of votes, being eat'h one moiety
of the whole nnmber given, he who had the highest number of electoral votes, given
at the second meeting, shall be the President ; and if they had an equal number of votes
at such second meeting, he who had the highest nnmber of electoral votes given at the
first meeting shall be tlie President ; and if they had an equal nnmber of electi.ral votes
given at the first meeting also, then the Senators and Representatives shall ballot until
one of them is chosen.

"The person having the highest nnmber of votes as Vice-President, given at the
first meeting of the electors, shall be the Vice-President, if such nnmber be a majority
of the whole nnmber of electors appointed ; and if no person have such majority, and a
President shall not have been chosen at such first meeting, the same proceedings shall
be had for the choice of a Vice-President as are prescribed for the choice of a
President; but if at the first meeting of the electors a President shall have
been chosen and a Vice-President shall not have been chosen, then, from the persons
having the two highest numbers on the list, the Senate shall choose the Vice-Pi esident ;
a (luornm for the purj)ose shall consist of two-thirds of the whole number of Sena-
tors, and a majority of the numher present and voting shall be necessary to a choice.

"The Congress may by law fix the day for appointing electors for President and
Vice-President, and the days for giving their votes the first and second time, which
days shall be the same throughout the United States; and the day fur giving their
votes the first time shall be not less than ten nor more than twenty days trom the day
fixed for the appointment of electors.

" The legislature of each State shall have power to appoint the places of holding-
election for the appointment of electors, to prescribe the manner of voting, ami
to provi<le for the appointment of j)roper peisons.to conduct such elections, with
authority to declare definitively the result thereof; but the Congress may by law make or
alter such legulations, and may also lay olf into districts, for appointing electors, any
State the legislature wheieof shall have failed to lay otf the same, asherein directed."

Mr.McDuFi'iK, from the same committee, also reported a joint resolution jjroposing an
amendment to the Constitution of the United States as respects the election of mem-
bers of the House of Representatives ; which resolution Avas read twice and committed
to the Committee of the Whole House on the state of the Union. The resolution is as
follows :

Hesolvcd, tf-c. That the following amendment to the Constitution of the United
States be proposed to the legislatures of the several States, which, when ratified by
three-fourths thereof, shall be part of said Constitution :

APPENDIX. 713

" For tlio purpose of electing Representatives in Congress, each State shall bo divided
by the legislature tliereofiuto as ujany districts as will equal the number ul' Kepresent-
atives to winch such State may be entitled in Congress, and each district shall be com-
posed of contiguous or conterminous territory, and contain, as nearly as may be con-
veniently, tbe number of persons which entitles tbe State to a kepreseutative in
Congress according to the apportionment ; which districts, when laid off, shall not be
altered until nfter anotber census shall bo taken. Each of the said districts shall elect
one Kepresentative to Congress, and the times, places, and manner of holding the
elections in the said districts shall be prescribed by the legislatures of the States,
respectively ; but the Congress may at any time by law make or alter such regulations."

Speech of Eon. George ]\IcDiiffie, of Soxih Carolina, ov the ^yroposed consiituiiona] amend-
ment, in the Moitae of lieprtsentativeis, Januari/ 16, ld24.

On motion of Mr. McDulhe, the House -went into Committee of the Whole on the
state of the Ujiion on the resolution by him reported from a select connnittee for
amending the Constitution of the United States respecting the choice of the electors
of President and Vice-President.

Mr. FoitsYTH, of Georgiii, was desirous that the consideration of this subject should
be postponed. He had not had opportunity to prepare himself to discuss it, and he
asked it trom the courtesy of the mover that the subject should not be pressed at this
time. He had a further re;ison. It was known to all that the Senate was now occu-
pied on the same subject, and he w'as desirous to wait and lirst see whether that
branch of Congress could not come to some decision in respect to it; and he moved
that the connnittee rise.

Mr. McDuiTiE said that he had given notice of the present discussion three weeks
ago, and the notice had been repeated, from time to time, ever since. It was probable
the subject would occupy tlie House more than the present day ; and as it had been
usual, thus far in the present session, to adjourn over from Friday to Monday, the
gentleman from Georgia could liavetiineto prepare himself ijefore any (piestiou should
be taken on the resolutions; he therefore could not ccmsent to defer the discussion.

The question being taken on the motion to rise, it was decided in the negative.

Mr. McDuFFiE, ot" South Carolina, commenced by remarking that, entertaining a
deep conviction that the harmony of the Union and the purity of the Government
Avere essentially involved in the proposed amendment, he could not but congratulate
the committee and the country upon the jiropitious combination of circumstances
under which it would now be investigated. While the current events of our history,
said he, furnished a practical and impressive exhibition of the evil tendencies of our
system in that department which it had been found most difficult to organize, we shall
be shielded from the impntaticni of acting with a view to personal objects, or under
tbe intluenceof temporary considerations, by the moral, I may almost say the physi-
cal, impossibility of consummating the amendment in lime for it to operate in the
approaching election for the Presidency.

In bringing forward a proposition so fundamental in its character, and calculated, in
my opinion, to exert a lasting intluence upon the happiness of future generations, it is
a source of sincere gratification to reflect that the measure does not rest upon the
recounnendation of an individual so humble and inexjierienced as myself, but that its
leading provisions (subject to some subordinate moditications which, I hope, will be
adopted) are approved and sanctioned by nuauy of the most profound and experienced
statesmen of the country. This proposition has been for more than eight years before
the nation; it was recoiununded by a majority of the States, and a change has been
anxiously desired by a large UKijority of the American people. When to the imposing
weight of these circunistauces we add the consideration that the great body of the
people are at this moment deeply and justly excited upon the subject, it must be ap-
parent to every member of tlu> committee "that this proi)osition comes before us with
a weight of anrhority which imperatively demands, aud will undoubtedly secure for it,
the nji st solenm ami dispassionate consideration.

I am not unaware of the difficulty which must be encountered at the very threshold
of an investigation having for its object a fundamental change in the Constitution of the
country. There is a general indisposition to touch that instrument, proceeding, I
believe, from a sort of vague and indetiuite apprehension that it may give rise to a
spirit of innovation more dangerous than even the acknowledged vices of the system
itself. As I know these to he the views of several honorable members, I feel that I
am called upon by tbe occasion to present some general views of what I deem to be the
true theory and philosophy of constitutional amendments.

The dread of innovation, bj' which some gentlemen are restrained from giving their
sanction to amendments which they believe to be judicious in themselves, may be
traced, said Mr. McD.,to the history of simple democracies, or of countries in a revolu-
tionary state. In the ancient republics, for example, where popular oratory exerted
an absolute ascendency over the passions of the multitude, it was necessary to secure

714

COUNTING THE ELECTORAL VOTE.

the existing institutions against the fluctnating movements of tlie popular ■will by all
tbe barriers of superstition and public opiulon.

The history of republican France, recorded in the blood of the various factions which
■were successively thrown np and destroyed by the universal commotion of the politi-
cal elements, is a striking illustration of the tendency to perpetual changes while a
country is in a state of revolution. But these examples, while they show the danger-
ous tendency to innovation in certain forms of government and certain conditions of
society, indicate at the same time a distinction which will warrant me in the assertion
that our tendency is of an opposite kind. Indeed, nothing can be more irue in rela-
tion to countries in a state of jiolitical tranquillity th;iu the proposition contained ia
the document which proclaimed us a free peo[de, " that mankind are more disjiosed to
sulior while evils are sufferable than to right themselves by throwing off the forms to
which they have been accustomed."

But it has often been urged in couvtrsation that, by making amendments of the Con-
stitution, we should impair the popular veneration for that instrument. This may bo
true, and doubtless is true, of governments founded upon injustice and usurpation,
and resting for their security upon the igiiorauce of the people.

It is unsafe to .subject to the scrutiny of reason institutions which cannot stand the
test of investigation. But nothing can be moi"e dangerous than the inculcation of this
sort of superstitious idolatry in this country. Its inevitable tendency is to confound
the vices of our system with the .system itself; and, in that way, to convert the best
feelings of the community into the means of preventing the correction of imperfec-
tions which time must disclose in all human institutions, and of ijerpetuating abuses
from which no government administered by men, has ever been exempted.

We should never forget (what is our proud distinction) that this Government is
founded upon the intelligence of the people ; and that, in proportion as their venera-
tion and attachment for the Constitution proceed from a discriminating attention to
its practical operation, in the same proportion will their liberties be secure and the
Goverunieut preserved in its i)urity.

It is indeed one of the most important rights of a free people to make those gradual
changes in their political institutions which nu^y be indicated by the changes in the
social system, the progress of intelligence, and, above all, by the lights of experience.

It is in this way, and in this way only, that the Constitution of a country can bo
adapted to the condition and circumstances of the people whose liberty it is intended
to secure. No constitutional provision can be wise which has no'^. this peculiar
iidaptation ; and no part of the Constitution evinces the wisdom of the convention
more clearly than the provision made for its amendment.

This, said Le, is au age distinguished for improvements in the science of govern-
ment. Within the last iifty years it has made more signal advances than at any former
period of the world. Within that time we have ourselves made a great political ex-
periment, which is destined, I trust, to have a lasting influence on the affairs of man-
kind. But it cannot be disguised that the e^yecutive department of this Government
was organized by the convention without any of those benelits of experience which
aided them in the establishment of the other departments. Representative assemblies
bad existed hero from the first settlement of the country, to say nothing of the expe-
rience of England.

A similar remark may be made of the judicial department. But the world has
never witnessed the sjiectacle of an elective chief magistrate, presiding over so ex-
tensive a country, containing millions of freemen, from whom his authority was at
least intended to be a direct emanation. And, accordingly, said Mr. McD., we find the
provisions for electing the Chief Magistrate of the Rei>ublic more imiierfect in their
actual operation than any contained in the Constitution, though at the time of its
adoption those provisions were believed to be the most unexceptionable of all. We
must, therefore, make up our minds to examine and expose the vices of the system ;
and nothing can more clearly show the safety with which this may be done than a
particular investigation of the i)rocess through which every amendment must pass be-
fore it can become a part of the Constitution. To efiect any change, the concurrence of
two-thirds of both branches of Congress and three-fourths of the State legislatures
is indispeus.ably necessary.

Is it ijossible, then, that any change can be precipitately made under the influence
of temporary delusion? I will venture to predict that no amendment will ever
be adopted that is not sanctioned by the deliberate sense of a decided majority of the
people, long and steadily maintained. This is conclusively demons trateil by the his-
tory of the very proposition we are now discussing. It has been more than eight years
before the people, and. has been constantly gaining ground during the whole of that
period. It was originated by the intelligent, patriotic, and unpretending State of
North Carolina; a State which is honorably identified with one great era in our polit-
ical history, and I hope it is her destiny to be associated with another, in my opinion,
not much less important. I believe history will accord to her the honor of having first
made a declaration in favor of the national independence; aud if this amendment

APPENDIX. 715

slinuld Iio adopted, (as it certainly will be at no distant period,) she will liave another
title to the lasting gratitude of the nation.

Her proposition was sanctioned by a majority of the State legislatures — I believe
by nearly three-fourths of them — and, in several instances, by a unanimous vote.
Ir has been repeatedly discussed in Congress, and as repeatedly passed by two-thirds
of the Senate; and, in one instance, it wanted but three or four votes of a constitu-
tional majority in the House of Representatives. Now, said Mr. McD., there is no po-
litical principle more undeniable than that the deliberate opinion and settled convic-
tion of a majority of the people, ia a government recognizing in them the right and
the capacity of self-government, ought to prevail over the wmU of the minority, even
in relation to the Constitution. Why, then, it may be asked, does that instrument
require, for an amendment, the concurrence of more than a majority '? I answer, for
the very wisest of purposes; but not, surely, to give the permanent ascendency to the
opinion of Ihe minority. This reciuirement was intended for no other purpose than to
prevent hasty and inconsiderate changes, and to give time for reflection and delibera-
tion.

15at when the sense of a decided majority of the community is permanently and un-
alterably settled down in favor of any amendment the end of this provision is
answered, and the minority ought to yield. I will not say that they have not the con-
stitutional right, as well as power, to oppose the will of tlie majority ; but I contend
that it is their moral duty, as Avell as their undoubted interest, to yield under such
circumstances. I have said that this Government rested upon the intelligence and
discriminating attacliment, and not upon the superstitious veneration of the peo]de.
I will now add, that nothing can more clfectually impair their confidence in our polit-
ical system than in ])ertinaeious adherence to parts of it which they believe to ho
vicious and calculated to deprive them of their just rights.

I w'ill now proceed, said Mr. McD., to show, and I flatter myself it can be done to
the satisfaction of the committee, that this amendment has none of the characteristics
of innovation, .and proposes only to reclaim the usurped rights of the people, and to
draw back the Government to its true original principles.

The Constitution ]»rovides that " each State shall appoint, in such manner as the
legislature thereof shall prescribe," the electors of the President. I am not, said he,
in the habit of construing a constitution, addressed to the common sense of tlie great
body of the people, with logical refinement or critical nicety. I cannot but remark,
however, that it is a very liberal mode of construing the powers of the State legisla-
tures to assume, under the general authority to i)rescril)e the mode of making an ap-
pointment, the right of making that ai>p')intm^nt themselves. The intention of the
convention on this subject is so conclusively shown as to supersede argument by a
contemporary exposition of the Constitution, written by three of the most distin-
guished members of that illustrious body. The Federalist contains the following
Avords :

"They [the convention] have not made the appointment of the President to
depend upon ]ire-existing bodies of men, who might be tampered with beforehand to
prostitute their votes ; but they have referred it, in the first instance, to the immediate
act of the people of America, to be exerted in the choice of persons for the temporary
and sole puri)ose of making the appointment."

Such was the exposition made to the American people by the framers of the Con-
stitution while the ex])edienc_y of its adoption was still a pending question ; and there
can be no doubt that this exjiosition operated as a strong inducement with the people
to adopt the Constitution. The great improvement which the convention made upon
all the federative systems of which history furnishes any record was in the introduc-
tion of the provision that the General Government should not operate ujjon the local
governments, or States collectively, but upon the jieople directly and individually.
To complete this great improvement, which constitutes an era in the history of con-
federated governments, it is indispensable that the people should act ui)ou the Govern-
ment as directly as the Government acts upon the people. In this manner responsi-
bility is made io be co-extensive with power, the only adequate security for freedom
wliich is to be found iu our system.

It would indeed bo a strange anomaly if the General Government should be con-
trolled by the State governments, and operate upon the people. It is, said he, an
extraordinary notion which some indulge, that the State governments are to be con-
sidered as sentinels to guard tlie peojile against the encroachments of the General
Government; and it is a notion still more extraordinary that they were to be secured
in their fidelity by making them instrumental in creating that government. Is there
no danger that thesi sentinels will prove faithless ? Is it not a reasonable apprehen-
sion that combinations may take place between the two classes of public agents, and
tluit the State govHrnments will, instead of checking, give a morbid imi>ulse to the
usurpations of the General Government? It seems to me to be an entire misconcep-
tion of the true theory of our system to suppose that our freedom is to be secured by
this irregular sort of checks and balances. The great and only efficient security is a

716 COUNTING THE ELECTORAL VOTE.

practical responsibility to the people themselves — a responsibility which is completely
broken by the interposition of the State legislatures.

Mr. McD. said he would next attempt to demonstrate the position assumed in the
report of the select committee, that there existed no constitutional provision for tbe
appointment of a President, and, consequently, tbat tbe question really to be decided
was, whether we sliould have a Constitution or no Constitution in this important par-
ticular. A constitutional provision, said he, is a rule established by the people in their
original act of sovereignty, paramount to any legislative act, whetiier emanating from
Congress or the State legislatures. In this sense, I challenge gentlemen to point out
any constitutional rule which lixes the mode of electing the President of the United
States. To say that each State legislature prescribes its own rule, is a distinct
admission that there is no established rule at all. characterized either by permanence
or uniformity. In fact, our experience has taught us that the modes of choosing
electors are as various as tiie views of dili'erent States, and as changeable as the i^ower
and ascendency of rival parties.

In one State'the appointment is made by the legislature; in a second, by a general
ticket ; and in a third, by districts. In the same State, these various modes are
adopted according to the exigency of circumstances, and accordingly as the one or the
other may be best calculated to accomplish the views of the ascendant party, or to
give the State the greatest possible power in tbe presidential election. I confidently
submit it to the justice of the committee, whether there ought not to be some uniform
rule on the subject. Is there a shadow of equity in giving one State the advantage
of a consolidated vote, while another is divided into districts, and probably neutralized
by tbe division? No State will submit or ought to submit to such tlagrant injustice.
Aconllict is thus produced in whicb correctness and expediency are arrayed against each
other. The district system is the true system ; that to whicb tbepeopleareattached, be-
cause it renders their elective franchise efticieut, and gives to every portion of the
State its legitimate intluence. lint, -as long as some of the States adhere to tbe gen-
eral-ticket system, all the rest will be compelled, in self-defense, to adopt it, and in
this tnanner the very worst plan will prevail, from a sort of State necessity, in oppo-
sition to the deliberate sentiments of tbe community. North Carolina has always
been attached to the district system, but has linally abandoned it, and justly abandoned
it, because otber States would not adopt it. Tlie State of Maryland, umgnanimousiy
sacrilicing her inlliience to her principles, has, up to this moment, adhered to tlie dis-
trict system, and thus neutralized her weight in the election of the President. Her
noble example, so worthy of imitation, has not been followed, and if I were a citizen
of that State I would no' longer submit to the disinterested sacrifice while other States
are so little disposed to appreciate it.

From this brief view of the operations of the existing system, said Mr. McD., I
think the plan of the select committee will be exempted, at least from the charge of
innovation. It juoposes to substitute uniformity in the place of variety, permanence
in tbe place of perpetual changes ; and tbe plan evidently intended by tbe convention
for the chaos of clashing expedients, which has sprung np under the influence of State
rivalry ; and yet we are told of the danger of innovation, and that all reverence for
the Constitution will be destroyed by changing it. What, I ask, is meant by the Con-
stitution ? Is it the parchment upon which it was written, and the words in wliich it
is expressed? Assuredly not. Properly understood, it means the system of govern-
ment and tbe fundamental rules by which it is organized. In this sense of the term,
the Constitution may now be changed every month in the year, and almost every day
in the mouth; audit is tbe tendency of the proposed amendment to prevent these
ceaseless changes, originating in the ambitious conflicts of contending parties, and pro-
ductive of the most violent and acrimonious excitement, that furnishes one of its
strongest recommendations.

I have already shown, from the highest authority, that the convention intended that
the electors of the President should be chosen by the " immediate act of tbe people of
America." I will now attempt to shov/ tbat it was equally intended that the people
should vote by districts. I believe I may safely assert that, at the time the Constitu-
tion was framed, the general-ticket system, by which the whole population of a State
gives an aggregate vote, either for representatives or other public agents, was unknown
in the political history of the world. I call upon gentlemen, if any such example
existed, to produce it. It is an invention of after times, the mere offspring of tempo-
rary expediency, and never entered into the conception of the convention. By advert-
ing to the proceedings of tbat body, it will be seen that all the propositions involving
a specification of the mode of choosing electors and members of Congress contained a
provision for dividing the States into districts. The mode of choosing was Anally left
to the State legislatures, that they might; regulate the details of the election, but in
the confldence that they would adopt the only plan of jiopular election which bad ever
existed. . .

The State legislatures have violated the confldence reposed in them, and it is cer-
tainly time that the people should reclaim their lost power, and secure themselves iu

APPENDIX. 717

its cxercisoby a pornianent rop;alation ruacio by tlioinselves, and not liable to be altered
by auy set of public agents.

Mr. Mc'D. next proceeded to examine the practical operation of the general-ticket
system. He said a system conld not bo devised more pregnant with danger to the very
existence ,^f the repnblican form of our government.

Keasou and experience concur, said he, in demonstrating that where the whole mass
of the people of a State votes in common for the whole number of electors, some cen-
tral power is necessary to nominate the electoral ticket, or to give it a more general
expression, to concentrate popular opinion.

Disguise it as wo may, the result must be that the elective power of the State will
be thrown into the hands of a few political managers. I do not mention this witli a
view to cast the slightest censure upon those into whoso hands this power may hap-
pen to fall, but to expose the vices of a system which makes such a d:ingerous deposi-
tory of power inevitable. I admit tliat, as long as the general-ticket system prevails,
such a depository, as dangerous as it is, m\ist exist, and ought to exist. New York be-
ing the largest Sfate in the Union, will furnish the strongest illustration of the sub-
ject. That State is entitled to thirty-six electors, and consists, probably, of forty or
fifty countie?. Admitting thar a vast majority of the people slionld be united in their
preference for a peculiar candidate for the Presidency, would it be practicable for them
to agree upon electors to carry their will into effect without some political combina-
tion, (I will not characterize it by the odious name of junto,) clothed with authority to
prescribe the electoral ticket to tlio ]>eople ? It is impossible. Thus the elective power
would be nominally restored to the people, while, in point of fact, it would be exercised
by a few prominent politicians, who might haj)pen to have the ascendency in the State.
Admitting these to be as virtuous asany one may choose to suppose them, is it consistent
with wisdom to make a system universal which offers such facilities and holds out such
temptal ions to intrigue and corruption '! What would be the case presented under such
system ? The whole electoral votes of the State, thirty-six in number, and in all prob-
al)ility absolutely decisive df the presidential election, depending upon the iutlueuce
of a few individuals — perhaps of ii single individual !

What, in such a case, is the temptation to use corruption? The Presidency itself.
What the means? The whole patronage of the Government. What the security I
The virtue of a single individual! Sir, said he, I will not say that such a state of
things will inevitably result in corruption; but I will say that, if it does not, the
virtue of public men is, under all circumstances, an ample security against their ambi-
tion, and that no political check, no tie of responsibility, no constitutional regulation,
is necessary to secure the liberties of the people and preserve the purity of the Gov-
ernment. Upon the whole, I am inclined to think that in the course of time the
general-ticket system will be found at least as bad in practice as the appointment of
electors by the State legislatures.

Another objection, said he, exists against the general-ticket system, which has been
explained in the report of the select committee. It deprives the minority of their
niiqnestionable rights in the respective States, and makes it to depend upon accidental
combinations, whether a majority or a minority of the whole of the people of the Union
should elect the President. In the result the majority, however inconsiderable, gives
its own vote, added to that of the minority, although, in point of fact, the vote of the
minority is opposed to that of the majority, and ought to be subtracted from it. I am
aw.are that it may be answered that, in voting by districts also, the voice of the minor-
ity in each district will be suppressed. This is true, but it only goes to show that
the rennnly proposed is not perfect.

It will be obvious, on the slightest reflection, that the probability of such combina-
tions as would throw the Government of the country into the hands of a minority,
nnder the general-ticket system, is, to the probability of such combinations under the
district system, as two hundred and sixty, the number of districts, is to twenty-four,
the number of States. In any given State, for example, the chances are that the mi-
nority in one district will counterbalance the minority in another; so that the elec-
toral vote of the State will nearly correspond with the aggregate popular vote, giving
the minority its due weight. But, even if it were otherwise, the district minorities,
being small masses, will submit to the will of the majority without any violent excite-
ment. On the contrary, the aggregate minority of a whole State, distinctly perceiving
their numerical strength, and feeling the injustice, not only of throwing their vote out;
of the general estimate, but of giving it to the candidate against whom they intended
it to operate, would have deep and permanent feelings of discontent. This would be
more certainly and more justly the case if the districts which constituted the minor-
ity should have, in reference to the great concerns of agriculture, manufactures, or
comnuirce, interests different from those of the majority.

There is another view of the general-ticket system, calculated, I think, to make a
deep impression upon every meml)er of the committee who will duly consider it. This
system places it in the power of States to form political leagues and secret combina-
tions with each other for the purpose of securing the elevation of a particular individ-
ual.

718 COUNTING THE ELECTORAL VOTE.

The few politicians iato whose hands the whole elective power of the States would
be thrown by the operation of this system would be enabled to form alliances, by
■which States mi<;ht be brought to co-operate in tlie presidential electiou, whose prin-
ciples and interests were wholly diiferent. Under the district system, such combina-
tions could not take place. It would be utterly impracticable for two hundred aud
sixty districts, each having its own separate will, and its own center of operation, to
be brought to co-operate by all the powers of intrigue and corruption.

Mr. McDuFFiE next invited the attention of the committee to the last branch of the
aniendnient; that which provided that, in the event of there being no election at the
lirst balloting, that the names of the two highest candidates should be sent back to the
electors. This, said he, will almost infallibly insure an election by the people.

But I have heard it urged as an argument against this part of the plau of the select
committee that the length of time which would elapse between the appointment of
the electors and the second balloting would give an opportunity for tampering with
them to prostitute their votes. As this is the only argument which, I believe, can be
urged against this branch of the amendment, I beg the particular attention of the
committee while I attempt its refutation. The only fair mode of reasoning upon this
subject is to examine the operation of the whole scheme proposed, in comparison with
the existing system. How, then, stands the comparison? As the Constitution now
stands, the general-ticket system will universally or, at least, generally prevail. Under
that system it is a notorious fact that the electors are nominated from ten to eleven
months before their election. I appeal to the honorable member's who represent States
where the electors are appointed by a general ticket to bear witness to the fact. The
general practice has been for the legislatures to nominate the electoral ticket in Decem-
ber or January, and from that time to the period of their election in the succeeding
November it is as well known who will be the presidential electors as if they had been
actually chosen.

In Virginia, I may almost say the electors are a permanent body, as I understand
they are scarcely ever changed ; and we had recently seen an electoral ticket formally
announced in North Carolina, for the ensuing election in November. Now, what, said
he, will be the operation of the proposed amendment? The district system will su-
persede the necessity of previous nomination, and the time for tampering with the
electors will be only from the period of their actual election to the period of their final
vote on the second balloting. This will not be more than two months at the utmost.
And is it possible that gentlemen can overloo'c the dangers to which I have just
adverted in the present system, and yet indulge a serious apprehension that two hun-
dred aud sixty electors, emanating directly Irom the people, and scattered over the
■whole Union, will be liable to corruption ? Will two months furnish ampler opportu-
nities for intrigues than eleven t It is most obvious that the danger is greater under
the present system at the tirst balloting than it will be under the proposed plau at the
second.

Of this part of the amendment, I may safely say, as I have said of the district sys-
tem, that it has none of the characteristics of an innovation. It introduces no new
principle into our system. Its only eifect will be to render efficient the primary mode
of electiou <stablished by the convention. Had the framers of the Constitution fore-
seen that from the multiplication of States, and the increase of local interests, the
number of candidates would be so great as to render an election by the House of Rep-
resentatives an ordinary occurrence, they nev^er would have left the Constitution
where it i?. They evidently contemplated the devolution of the election upon this
"body as an extreme contingency, which would scarcely ever occur, but when two can-
didates should have an equal number of votes. This is apparent from the exclusion of
members of Congress from the electoral college, and from the fact that in all the dis-
cussions upon the mode of electing the President, scarcely anything was said as to the
fitness of the House of Representatives to exercise the electoral function. Even if the
objection urged against the second balloting of the electors rested u[)on more sub-
stantial grounds, said Mr. McD., its efficacy in preventing the election from devolv-
ing on the House of Representatives would reconcile me to its adoption.

1 trust I shall not be considered as speakingdisrespectfully of the body of whicb I am
a member, in the general remarks I shall feel it to be my duty to olfer to the commit-
tee, on this part of the investigation. I can say, with the utmost sincerity, that I
have never been associated in the yiublic service with a body for whom I have a
higher respect than for this branch of the national legislature. For wisdom and vir-
tue I do not believe they are excelled by any deliberative assembly of the world. But,
fcir, this part of the discussion mrst have reference to general principles which are to
operate through the long conrseof future time, ami, in this view of the subject, the only
concession which I ask as the basis of my argument is, that the House of Representatives
will always be composed of vien. I will graut all the wisdom and virtue which any
gentleman may choose to ascribe to them, ami f still believe it can be shown that
nothing can endanger the purity of our republican system so much as the habitual
electiou of the President by the members of this body.

APPENDIX. 719

Sir, said Mr. McD., I believe it is in tbe power of human wisdom to keep ont of temp-
tation, but I do not believe it is always in the power of human virtue to resist it when
thrown into the sphere of its fascinations. And if there existed no other evidence of
the divinity of onr Saviour than the admonition he has left us, to pray for deliverance
from this besetting enemy of frail humanity, I should deem that sutticient.

The danger to be apprehended from the election of the President by Congress is
not from corruption, in the vulgar accci)tation of the term. In a country of so much
intelligence and virtue, it would be difficult to find a man so basely treacherous as to
sell himself by a palpable act of political prostitution. P>ut it is to be remarked that
in Congress will be generally found the ambitious and aspiring men of the country, and
that the President will have' the dispensation of those offices which are the natural ob-
jects of their aspiration. I need not explain the insidious disguise under which ambi-
tion may approach a member of Congress, with the whole patronage of the Govern-
ment in his hands, nor the manner in which self-interest can delude the judgment and
convert a man into a factionary without even his being conscious of the transmuta-
tion.

These things must be obvious to every one who understands the human heart and
the operation of the human passions. The politicians of the country, therefore, are
the very last men to -whom the election of the President should be couiided. They, and
they only, are exposed to that sort of temptation from which only airy danger is to be
apprehended. I solemnly declare, sir, that I would prefer that the college of electors
should be composed of the plainest farmers of the country, emanating directly from
the people, and having no political expectations, rather than that it should be com-
posed of tlie most wise and virtuous politicians, engaged in a course even of honor-
able ambition. Nothing is more to be depreciated in the present system than its tend-
ency to convert Congress into a theater for the presidential canvass. In the course of
time that question will infuse itself into the whole legislation of the country and be
productive of the most injurious distraction in the national deliberations. Members
will be drawn into the vortex, and converted into partisans of the different candidates,
equally by the best and the worst of tiie human passions.

This House is not without sonle experience on that subject already, nor can it be dis-
guised that discussions of the character to which I have alluded have tended to dis-
gust the jieople and alienate their confidence. Wo are sent here for the great purposes
of national legislation, and ought not to be distracted by considerations of a different
kind.

The duties of legislating for the Republic and electing the Chief Magistrate are incom-
patible in tlieir nature, and their combination is productive of the greatest embarrass-
ment with the people in the election of members of Congress. Those should be elected
in reference exclusively to their virtue, talents, and capacity to serve the people. But
it frequently happens that members of this description differ with their constituents
as tojhe person who should be elected President. At the approach of every presi-
denti'al election, therefore, the people will be exposed to the disagreeable alternative
of discarding many of their most faithful public servants, or of being misrepresented
on the subject of the Presidency.

The divison of functions is as important in the constitutional distribution of power
as the division of labor in political economy. The qr.aliiications of a rnember of Con-
gress have not the remotest connection with his opinion of the respective competitors
for the Presidency, and yet tbe people will regard, and ought to regard, the latter con-
sideration as long as Congress shall have so direct an agency in the election of the
President. The inevitable result, which will consummate the evils of the existing
state of things, if the election of the Chief Magistrate be not removed, both in theory
and in practice, from Congress, must be that the country will be governed by a succes-
sion of factions. By a faction, I mean a combin;ition of politicians, habitually and
systematically acting together, and aiming to wield the Executive Government, not
with a veiw to political principles or the interest of the people, but to the distribution
of its patronage. This., sir, is the true source of the morbid violence of party con-
flicts and the fluctuations of national policy, evils peculiarly to be deprecated in a
republic.

When politicians array themselves against each other not as the organs of their
constituents, but in jiursuit of their own aggrandizement, they often find it necessary to
invent sources of collision where none really exist. It becomes a mere contest between
those who are in and those who are out of power, and the fact that one party has
adopted a particular course of policy is a sufficient reason for the other to oppose it.
Hence it will be found that every canvass for the Presidency will involve in jeopardy
the great institutions of onr national policy. The obvious, and in my oi)inion the
only remedy, is to take the election of President out of the hands of politicians
and restore it to the people. Let neither the President be dependent upon Congress
nor the members of Congress the instruments of the President. Destroy the connec-
tion altogether. Xo people on earth are, more steady in their principles than the peo-
ple of the United States. They will communicate their own energy and steadiness to
the Executive if that department should be made directly responsible to them.

720 COUNTING THE ELECTORAL VOTE.

I am waiTfjitecT by onr experience in sayinj]; tliat the people have more spirit to
reseut injuries, and more fortitude to sustain tbo burdens and privations incident to
their defense and security, than any combination ot politicians. The people look only
to the good of the country ; politicians look to their popularity also — to the means of
preserving ot gaining power. I recollect with shame the degradation of our national
character previous to the late war, and with a just pride the spirit of a brave and
patriotic peo]ile, by which the country was reclaimed from its fallen condition. That
war was emi)hatically a war of the people; their representatives were literally driveu
into it, many of them with fear and treaibling.

I wiil now ]iroceed, said Mr. McD., to a very delicate part of this investigation — that
which relates to the compromise between the large and the small States, involved in
the proposition.

As this will probably have as much influence upon the fate of the amendment as its
own intrinsic merits, I beg the particular attention of the committee while I attempt to
show that the mutual concessions provided are so obviously just that it is the interest
both of the large and small States to make them. The division of the larger States
into districts will prevent them from tiirowMug their unbroken and consolidated vote
into the presidential contest, and from forming political combinations in reference to
that object, and this is the equivalent which they give the small States for the sur-
render of the equal suffrage to which they are now entitled in the House of Repre-
sentatives on the contingency of the election devcdving upon that body. The powers
thus mutually surrendered, both by the large and the small States, are powers, in my
opinion, utterly inconsistent with the fundamental principles of a republican govern-
ment. I have already shown that the general-ticket system would transfer the elect-
ive power from the people into the hands of a few, and that it opens the door for cor-
rupt combinations, by wiiich an active and organized minorit}^ might govern the Union.

I shall now endeavor to show that the contingent power of the small States pro-
posed to be surrendered is even more dangerous, and that, upon the principles of pop-
ular sovereignty, it is , absolutely indefensil>le. Upon wluit principle can a citizen of
Delaware claim to exercise thirty-six times as much of the sovereignty of the country
as a citizen of New York ? Is there a semblance of justice, or even a plausible ground
of expediency, by which such a claim can be sustained ? Have the people of the small
States any interest in the exercise of such a dangerous power ? Let it be remembered
that the people do not exercise the power themselves, but that their Representative, who-
ever he may happen to be, will wield one twenty-fourth part of the elective power of n
the country. Can it be conceived that the people of a small State are ever desirous o^ ^
placing such a fearful power iu the haiuls of a single man, when it can have no oiher '
effect than to defeat the will of the majority of the people f

There is no political principle more universally admitted iu this country than the
right of the majority of the people to govern. It is the very essence of a republic. The
only security we can have for the virtue and intelligence of public agents is that they
are the choice of the majority, and most assuredly tliis is the only mearis of securing to
the Government the coniideuce of the people. And have not the small States the same
interest with the large States that the Executive Government should be administered
by virtue and intelligence, and sustained by the contidence of the people? In such a
question, tl)e citizen of Delaware has the same interest with the citizen of Pennsylvania.
The interposition of an imaginary line can nuike none but an imaginary dilfereuce be-
tween them.

A combination of small States, containing only one-fifth part of the population of
the Union, might, under the present system, elect the President. Such an event is not
only possible but probable. Endeed, it is a rational i)resumptiou that the minority will
prevail when the election shall be made by the House of Representatives. Sir, no
event could occur uuhc to be deprecated. The man who is elected by such a combina-
tion of small States, if he had the purity of an angel, could not command the confi-
dence of the people. A single Representative is more easily secured by political expec-
tations or corrupt bargains than thirty-six. Ambition would be tempted, therefore, to
bring all the arts of intrigue to operate upon the Representatives of the smaller States.
And how would the people reason upon the subject? They would see the power of the
country thrown into the hands of a minority by the votes of a few individuals exposed
to the highest human temptation. To say nothing of the actual danger of corruption
iu such a state of things, it is sufflcient to say that the people would generally suspect
it. It would excite a deep and dangerous distrust, calculated to alienate their affec-
tions from the system itself. I cannot conceive a situation involving a more painful
and embarrassing responsibility than that of the Representative of a small State
under such circumstances. No degree of virtue could shield him from the imputations
against his political integrity. And what would be the predicament of an administra-
tion elevated to power by a minority under suspicions of corrupt influence, and, as a
natural consequence, opposed by the popular branch of the national legislature ? A
scene of distraction would be presented which would be little better than anarchy

Sir, the people of this country will never submit to be governed by a minority. If

APPENDIX. 721

we do not auieinl (he Constitution, so as to prevent that eahimity, they will change it,
and onght to chaufre it, in practice. It is my iirni belief that, if we do not ado])t an
araenduieut similar to the one proposed, a convention of deh'j^ates will l)e regnlarly
appointed by the people to nominate a President, and that their nomination will be
regarded as conclusive. What, then, will the small States gain by pertinaciously re-
. fusing to concur in the amendment? They will retain a contingent power, which the
large States will never permit them to exercise. This is not all. The large States, by
being driven into combinations against the small, will not only govern them, but gov-
ern them with the feelings of an adversary party. A notion seems to jjrevail with
some, that, if this amendment is adopted, the small States will be liable to be
oppressed by the large States.

There never was a more unfounded apprehension. The small States are the favor-
ites of the Constitution, and, even under the proposed amendments, would bo emi-
nently so. A very slight examination will make this apparent. There are seven States
in the Union, which, together, contain a population smaller than that of North Caro-
lina. What is their relative ]>ower ? Tiiey have fourteen votes in the Senate, a co-
ordinate branch of the legislature, while North Carolina has but two. This, too, is
a jiower of which they can never be deprived. And yet we are told that the small
States are in danger of op|)ression ! Their rights and interests can only be infringed
by law ; antl their ascendency in the Senate is an impassable barrier against any such
danger. In point of fact the small States are so distributed among the large, and
their interests so variously blended, that there can be no inducenu-nt to oppress them.
But (;ven if the seven States before mentioned lay adjacent to each otiier, and consti-
tuted a separate local division of the country, having interests different from the rest
of the Union, would these interests be less amply secured by their subdivision into
small States ? Would they consent to be consolidated into one ? Most undoubtedly
they wG'ild not. And even in the presidential election itself, they have a decided ad-
vantage over the large States. The seven States to which I have alluded are entitled
to twenty-six electoral votes, while North Carcdina, with a larger ])oitulation, is en-
titled to lifteen only. States having a single Eepresentative are entitled to three elec-
tors for a population of forty thousand, whereas the large States are entitled to but
little more than one elector for the same population.

There is one general remark, said Mr. McD., applicable to the powers which both the
large and the small States surrender by tin; provisions of this amendment. They are not
only powers peculiarly liable to be abused, and, therefore, inconsistent with the purity
of the Government ; but they are powers in which the people of those States have no
sort of interest, however profitable they may be to their politicians. What benefit
can the people of a large State derive from concentrating their whole elective power
in a few luvntls, or of a small State, from exercising, through a single Re])resentative, a
disproportionate share of the elective power? In either case, a few pttliticians may
derive an advantage from having it in their power to secure such a distribution of ex-
(!cutive patronage as they may desire; but the people will derive no solitary advantage,
unless exposing their public men to unusual temptations can be so considered.

This, sir, (said Mr. McD.,) is really a contest between the interests of the people and
the interests of politicians, and I am gratified to perceive so general a disposition, both
among the members from the large and small States, magnanimously to surrender up,
the powers in question as a sacrifice to the purity of the Government and the harmony
of the Union. I confess, sir, I feel an uucommou solicitude upon this subject, more
than I have ever felt on any other since I have directed mj' attention to public affairs.
I believe an expectation was very generally indulged previous to the meeting of
this Congress that our deliberations wonhl bo distracted by discussions having refer-
ence to olijects of a personal nature, and which would neither reflect credit upon us
nor CG'nfer any benefit upon the country. Let us disappoint these expectations. Let
us evince our devotion to the interests of the country by establishing upon an immut-
able foundation those great principles of constitutional freedom which will secure to
us the gratitude of future generations. For myself, sir, I can say, in a spirit as sincere
as it is unambitious, that I would rather go down to posterity even as an humble in-
strument in elfecting this great constitutional reform than to receive all the living
honors this Government can confer.

Amendment to the Constitution suhmitied hy Hon. Thomas H. Benton.

In Sexate, December 11, 1823.

Jlcsolvedhij tlie Senate and House of Eepresentativcs of the United Slates of America in
Congress assembled, {two-thirds of both houses concurring,) That the following amendment
of the Constitution of the United States be proposed to the legislatures of the several
States, which when ratitied by the legislatures of three-fourths of the whole number
of States shall be valid to all intents and purposes as part of the said Constitution:

That for the purpose of electing a President and Vice-President of the United

722

COUNTING THE ELECTORAL VOTE.

States each State sball be divided by the legislature thereof into a number of dis-
tricts equal to the whole number of Senators and Representatives to which such
State may be entitled in the Congress; each district shall be composed of contig-
nous territory, and shall contain, as nearly as may be, an equal number of persons
entitled by the Constitution to be represented, and on such days as Congress
shall determine, Avhich days shall be the same throughout the United States, the
citizens of each State who may be qualified to vote for a Representative in Con-
gress, shall meet at such places within their respective districts as the legisla-
ture of each State shall appoint, and each, in his proper person, shall vote for Presi-
dent and Vice-President, one of whom, at the least, shall not be an inhabitant of the
same S ate with himself; and separate triplicate lists shall be kept of ail the voters
and of all the votes given for each person as President and for each as Vice-President.
All the votes so given in each district shall be collected forthwith, in such manner as
the legislature of the State may direct, at some one convenient place withiu the dis-
trict ; and the votes given for each candidate shall be added together, and the person
having the greatest number of votes for President and the one having the greatest ,
number of votes for Vice-President shall be certified as duly preferred in said district,
and shall be entitled to one vote each for the respective offices for which they are can-
didates; but. if two or more persons shall have an equal number of votes in such dis-
trict election for the same office, then the returning-officers shall decide between
them, and certify accordingly. Triplicate certificates of the whole number of votes
given for each candidate shall be made out and transmitted, in such manner as Congress
may direct, to the seat of Government of the United States, addressed to the Senate. 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. The person having the
greatest number of votes for President shall be the President, if such number be equal to
a majority of the whole number of electoral votes witiiin the United States; and if no
person have such majority, then the President shall be chosen by the House of Repre-
sentatives from the t'hreehaving the greatest number of votes for Resident in the m.in-
uer now prescribed by the Constituiion.

The person having the greatest number of votes for Vice-President shall be the
Vice-President, if sucii number be equal to a majority of the whole number of electoral
districts ; and if no person have such majority, then the Vice-President shall be chosen
by the Senate from the two persons having the greatest number of votes for that
office in the manner now prescribed by the Constitution.

Sjjeech of Hon. Thomas H. Benton, of AlisKouri, on Ms proposed amendment to the Con-
stitution.

In Senate, Fchniary 3, 1824.

The order of the day being the proposition submitted by Mr. Benton, to amend the
Constitution of the United States in regard to the election of President and Vice-
President, was again taken up. Mr. Benton resumed, and concluded his remarks on
the subject, as given entire, as follows :

Mr. Benton said he would otter no apology for attempting to amend the Con-
stitution. It was his right, and, if sincere in his belief of its necessity, it was his duty
to do so. He apprehended no evil from the multitude of amendments proposed, but
thought it more probable that beneficial amendments would be rejected than that in-
jurious propositions would be adopted. It was no easy thing now to effect an altera-
tion in the Constitution. The difliculty of carrying an amendment through the proc-
ess of ratification presented a great obstacle, and the temper of the American people
presented another, not less formidable. Though full of law-making, even to superliuity,
upon subjects of ordinary policy, the people discover no disposition to make alterations
in their fundamental code. i- , t^ t

On this point they seemed disposed to answer like the old English 1 arli.aments
when preparations were made to change the common law, " KoJnmus ler/es Anc/liw mu-
tari." Applauding this sentiment, Mr. B. said it behooved him to justify himself to
the Senate for having submitted a proposition of amendment. The justification
could be readily made. It would be found in the fact that the case had occurred
which the framers of the Constitution had foreseen and for which they had pro-
vided a remedy bv providing the means of amendment. These great men knew
that it was one thing to lay down a plan of government upon i)aper, and another to
put that government into practical operation. They knew that the theory might be
perfect and the practice vicious; that experience was the only infallible test of
good or bad institutions; and, despising the arrogance of an overweening confi-
dence in the perfection of their own work, they not only provided the means ot
amending the Constitution, but they relied upon this capability of amendment as
one of the chief arguments in favor of the adoption of the instrument itselt.

Their language was, " experience must guide our labor; time must bring it to per-
fection ; and the feeling of inconvenience must correct the mistakes into which we in-

APPENDIX. 723

evitably fall in our first trials aiul experiments." (Federalist, No. 85.) In this spirit
they provided a mode for reforming the Constitution, and gave the power of origiuat-
iug'the reform lioth to the Federal and the State governments, that neither might be de-
pendent upon the other for the exercise of a power on -which its own preservation
might depend. In fixing upon tlie manner of making amendments, they flattered
themselves that they had hit upon a mode equally remote from that extreme facility
which would nu^ke the Constitution too mutable, and that extreme difficulty which
would give perpetuity to its detected defaults. And if they have erred in this judg-
ment, they have erred upon the safer side, upon the side of difticulty, and not of fa-
cilitv, in changing the x>rinciples of our fundamental code.

The amendment subnntted applies to that part of the Constitution which relates to
the election of President and Vice-President of tbe United States. Stripped of formal
phrases and minute provisions, and it presents four distinct propositions to the consid-
eration of the Senafe:

1. To divide the United States into electoral districts.
'2. To discontinue the use of intermediate electors.
:?. To commit the election to a direct vote of the people.

4. To continue the umpirage of the House of Representatives in all cases in which
no candidate has received a majority of the whole number of votes.

Tho first of tliese propositions has often been before the Senate; the second and third
are now considered new, because it is f<)rji;otten that they were offered and -discussed
in the convention which framed the Constitution ; and the /i>«r//i is strictly defensive,
intended to sustain a part of the Constitution now in force.

Mr. Benton proceeded to argue the propositions in the order laid down. First, to
divide tbe United States into electoral districts.

We are struck with the want of uniformity in the manner of choosing electors in dif-
ferent parts of the Union. Seven States, entitled to seventy electors, choose them by
districts; seven others, entitled to seventy-one electors, choose them by a legislative
haHot; and the remaining ten, entitled to one hundred and twenty, choose them by a
general ticket. In the ohl monarchies of Europe a want of uniformity in tho opera-
tion of the government is natural, because they are composed of conijuered provinces,
hadly amalganiated, and each retaining a part of its former laws and customs; but in
the United States, composed of sovereignties voluntarily united, and all acting under
the same clause of the same Constitution, made by themselves, such deviations are
most unnatural, and imply a great fault in the Constitution itself, or in its administra-
tion by the State legislatures.

The' evil of a want of uniformity in the choice of presidential electors is not limited
to its disfiguring etfect upon the face of our Government, but goes to endanger the
rights of tho people, by permitting sudden alterations on the eve of an election, and to
annihilate tlie rights of tho small States, by enabling the large ones to combine and
throw all their votes into the scale of a particular candidate. These obvious evils
make it certain that any uniform rule would be preferable to the present state of
things. But in lixing on one, it is the duty of statesmen to select that which is calcu-
lated to give every portion of the Union its due share in the choice of the Chief
Magistrate, and to every individual citizen a fair opportunity of voting according to
his will. This would beetfected by adopting the districtsystem. It would divide every_
State into districts equal to the whole number of votes to be given, and the people of
each district would be governed by its own majority, and not by a majority existing
in some remote part of the State.

This would be agreeable to the rights of individuals; for, in entering into society,
and submitting to be bound by the decision of the mnjority, each individual retained
the right of voting for himself wherever it was practicable, and of being governed by
a majority of the vicinage, and not by majorities brought from remote sections to
overwhelin him with their accumulated numbers. It would be agreeable to the inter-
ests of all parts of the States; for each State may have different interests in different
parts. One part may be agricultural, another manufacturing, another commercial ;
and it would be unjust that the strongest should govern, or that two should combine
and sacrifice the third. The district system would be agreeable to the intention of our
present Constitution, which, in giving to each elector a separate vote, instead of giv-
ing to each State a consolidated vote, composed of all its electoral suffrages, clearly
intended that each mass of persons entitled to one elector should have the right of
giving one vote, according to their own sense of their own interests.

The general-ticket system now existing in the States was the offspring of policy, and
not of any disposition to give fair play to the will of the people. It was adopted by
tho leading men of those States to enable them to consolidate the vote of the State.
It would be easy to prove this by referring to facts of historical notoriety. It contrib-
utes to give power and consequence to the leaders who manage the elections ; but it
is a departure from tbe intention of the Constitution, violates the rights of the minor-
ities, and is attended with many other evils. The intention of the Constitution is vio-
lated, because it was the intention of that instrument to give to each mass of persons

724 COUNTING THE ELECTORAL VOTE.

entitled to oue elector the power of giving that electoral vote to any candidate tbey
preferred.

The rights of minorities are violated becanse a majority of one will carry the vote of
the whole State. This ])rinciple is the same whether the elector is chosen by general
ticket or by legislative ballot ; a majority of one in either case carries the vote of the
whole State. In New York thirty-six electorsare chosen ; nineteen is a majority, and the
candidate receiviiigthis majority is fairlj^ entitled to conntninetecn votes ; but lieconnts
in reality thirty-six, becanse thi>- minority of seventeen are added to the majority. Tliese
seventeen votes belong to seventeen masses of people, of forty thonsand souls each,
in all six hundred and eighty thonsand people, whose votes are seized npon, taken
away, and presented to whom the majority pleases. Extend the calculation to the
seventeen States now choosing electors by general ticket or legislative ballot, and it
will show that three millions of souls, a i)opulation ecjnal to tliat wliich carried ns
through the Kevolntion, may have their votes taken from tliem in the same way. To
lose tijeir votes is the fate of all minorities, and it is their duty to submit; but this is
not a case of votes lost, but of votes taken away, added to those of the majority, and
given to a person to whom the minority is opposed.

ISIr. B. would be unwilling to use a harsh epithet, but he considered this case as
amounting to an impressment of civil rights more dangerous to our liberties than the
impressment of our bodies by British ships of war. Free elections are the corner-
stones of all our iiislitntions, and our citizens are sufficiently sensible to all attem])ts
to destroy that freedom by violence. The violation of the right of one single vote by
a military force would excite the indignation of the whole continent, and the disband-
meut of our six thousand men would not be enough to relieve ns from future appre-
hension. Yet legislative enactments may beequally fatal, and are, in reality, more
dangerous to the United States, because less dreaded.

A further mischief of the general-ticket system is in segregating the States, drawing
themnp against one another, like hostile ships in battle. Out of this system have sprung
the aiiti-social words of modern invention — "effective votes," "operative votes" — as if
the States were contending with Turks or Russians. This alienates the States from
each other and tills them with hostile feelings, and the President elected must become
the President of the States which choose him, and look with coldness and resentment
npon those which oppose; him. The choice of electors by legislative ballot is subject
to all the objections which apply to the general-ticket system, and to others of the
gravest kind. In the liist place, it seems to me to be a direct infraction of the Consti-
tution of the United States and an open usurpation of the rights of the people.

The words of the Constitution are: "Each State shall api)oint, in such manner as
the legislature thereof may direct, a number of electors equal to the whole number of
Senators and Reju'esentatives to which the State maybe entitled in the Congress," &c.

The analysis of this clause shows that two powers are required to act : first, the h\g-
islature, which is to direct the manner, and, secondly, the State, which is to appoint tho
electors.

Are the words "State" and "legislature" synonymous?

The word " state" is a coinpr(;hensive term. It takes in all sorts and sizes of gov-
ernment, but always requires three constituent principles, to wit, people, territory, and
sovereignty. In the Constitution of the United States it has a precise meaning too
obvious to be insisted ni)on here. It is never confounded with the word " convention "
or " legislature." When the " State " is to do a thing, the people of the State are to do
it, and a legislative body is not ompateat to act, becanse it is not the State but a
department of it. The constitutions of all the States declare the legislative body
to be a department only. Whenever the Constitution of the United States intended
the legislatures of the States to do an act independent of the people, it has expressed
its intention in terms wholly unequivocal, as in the appointment of Senators in Con-
gress. " The Senate of the United States shall be composed of two Senators from each
State, chosen by the legislature thereof for six yearc," &c. In the mode of ratify-
ing amendments to the Constitution, the distinctions are again explicit. " The Con-
gress, whenever two-thirds of both houses shall deem it necessary, shall propose
amendments to this Constitution, etc., which shall be valid, to all intents and purposes,
as part of this Constitution, when ratilied l)y the legislatures of three-fourths of tho
States, or by conventions m three-fourths thereof" it would be absurd to admit the
legislature to be the State, for in that case there would be no State when the legisla-
ture was not in session. Certainly it seems to be a loss of time to employ words upon
a difference so palpable ; but it is necessary to m.ark it, for the question now to bo
decided tnrns upon the distinction between the appointing power of the State and the
directorial power of the legislature over the forms of the election.

No argument in favor of this legislative pretension can b(; bottomed on the word
"appoint." Literally, it may refer to the act of any number. In common parlance,
it refers to the act of an individual, and that individual a superior, as "The King
appoints his ministers." lu the Constitution it is used synonymously with elect and
choose. It is so used in an after-clause of this same article, and in reference to this

APPENDIX. 725

identical appoiiitmont of electors — " Congress may determine the time of choosing the
electors, and tlie day on which they shall give tlieir votes," &c. In tine, tlie word
•'appoint'" was evidently used to avoid that tignre of speech which the rlietoriciaus
call taiitophony— that nn'gracefnl repetition of sound which would Ije produced by say-
ing " elect electors." The word "manner" can imply nothing but form— as the mode
of"coiidncting the election, taking the votes, certifying the returns, &c.

The word "direct" is less susceptible of misconstruction than any one in the clause,
and, above all others, has been farthest deviated from. It always implies an address
to a third i)arty, and never to one's self. It is incapable of being so used. A imni
may regulate his own conduct, but he directs that of others. A iiareut directs his
child, u tutor directs his pupil, a general directs the operations of his army ; a legis-
lative body may direct the people how to go through the forms of an election ; but
a nuiu cannot direct himself; a legislative body cannot direct itself.

There is not a book in the English language which uses the word in this sense, not
one, from the little primer that couu»s to us "in company with the birchen rod, up to
the ponderous fohos of Johnson. No man acipiainted with the power of language
would so use it, umch less the enunent men who trained the Constitution with so much
ability, botli as scholars and statesnu-n, and with such scrupulous regard to the pre-
cise meaning of every word admitted into that important instrument. But the legis-
latures of seven Stat'es have so used it, and the (juestion is, not whether they are right
or wrong, but \\ hetber they have the right to alter the tixed meaning of a plain Eng-
lish woid, for the purpose of investing themselves with a power which the Constitu-
tion liad given to the peoi)le of the States'?

Mr. B. asserted tlie obvious meaning of the clause to be the same as if it had been
conceived in the following words: "The people of each State shall elect, in such form
as the legislature tliereof may prescribe, a number of electors ecjnal," etc. Instead of
which the legislatures referred to had practiced under it as if written : " The legisla-
ture of each'state shall elect, iu such manner as they and each of them shall severally
please, a number of electors equal," &c. Thus, upon ihe words of the Constitution, it
is clear that the people of the States, and not the legislatures of the States, have the
right to choose electors of President and Vi(!e-l*resident.

The construction put upou the Constitution, at the time of its adoption, proves the
same thing.

Mr. Madion, in the Virginia convention, said, " The people choose the electors."

The Federalij^t says the same thing in twenty places. No. 6S repeats it four times.
It describes the electors as '-men chosen by the ])eoi>le, for the special purpose" of
choosing the President. It describes them as " a small uiiiuber of persons selected by
their feliowcitizeus from the general mass." It says the Constitution has " referred
the election of the President, iu the first instance, to an immediate act of the people
of America, to be exerted iu the choice of persons for the temporary and sole purpose
of making the appointment." And it speaks again of the electors as " a special body
of representatives, deputed by the society for the single purpose of making the im-
portant choice."

To this list of authorities may be added the legislatures of seventeen States, which
have prescribed the forms of choosing electors and left it to the people themselves to
make the choice.

Having quoted these constructions of the Constitution to prevent misapprehension,
Mr. ,J. would give his opinion upou the effect which they should have upon the decisiou
of the Senate. He did not admit that any Senator or any other officer whose duty it
became to expound the Constitution, was bound by a previous construction. He did
not admit that they were iu the condition of judges construing a statute, and tied
down by respect to their brothers, and the practice of a thousand years, to obey the
previous decisions in analogous cases. Their duty depended upon a peculiar obliga-
tion to be found iu the Constitution itself. All legislators have beep anxious to per-
petuate their work, and all have had recourse to the security of oaths. Lycuvgus
swore the Spartans to maintain his laws until his return ; then went abroad, died, and
bad his ashes scattered in the air. The framersof the American Constitution invoked
the aid of the same security, but without limitation of time or circumstauce. In ar-
ticle G they have required that —

" The Senators and Representatives in Congress, the members of the .several State
legislatures, and all executive and judicial oOicers, both of the United States and of
the several States, shall be bound by oath or atiirmation, to support this Constitution."

Upon this oath each person intrusted with the great duty of cxponudiug the Con-
stitution is bound to go back to the words of the instrument itself whenever a ques-
tion of construction arises. He may and ought to consult the opinions of others iu
order to enlighten his own. He may quote the opinions of others to give greater weight
to his o\Vii ; but he cannot surrender his own in favor of another, which he believes to
be wrong, without disregarding the obligation by which he has bound himself to sup-
port I his Constitution.

The reasons which induced the convention of 1787 to institute au intermediate

726 COUNTING THE ELECTORAL VOTE.

■body of electors, the attributes which they were to possess, and the daujrers from'
Avhich they were to be free, will equally show that legislative bodies were not intended
to choose the electors, ranch less to erect themselves into electoral colleges. These
reasons, attributes, and apprehended dangers will be found stated in the 'Federalist,
No. 6S, but, for the sake of brevity and perspicuity, will be presented to the Senate
under the heads to which they belong :

1. The electors are to be chosen withiu thirty-four days before the first Wednesday
in December.

2. They are to be chosen for the sole purpose of electing the President and Vice-
President.

3. They are to meet on the same day throughout the Union.

4. They are to sit but one day.

5. The electoral colleges arc not to be subject to caballing.

6. They are not to be pre-existing bodies.

In bringing the legislative bodies to the test of these reasons and attributes, they
will not only be considered in their apparent capacity of electors of electors, but in
their real character of the electors of the President of the United States.

First. The electors are to be chosen within thirty-four days before the day of elect-
ing the President. The reason for fixing an interval so short is sufficiently obvious.
In the iirst place, it delays the choice of electors until there is full time for all the
])residential candidates to be known. In the second place, it allows no time for com-
binations to be formed between the electors of different States, or for the electors
themselves to be bribed or intrigued with, yet the members of the legislatures in the
seven States refin-red to are elected one, two, three, and even four years before the
day of electing the President. None of them are chosen for a shorter term than one
year, most of them for two, and the senators of several are chosen for four years.

The whole of them are obnoxious to the objections against which the Constitution
intended to guard. There is ample time for intrigue, for corruption, and for combina-
tions. The voice of the people has but an indirect operation when the members of the
legislature are chosen one year before, and none when they are chosen two, three, or
four; for, at that time, that names of the candidates are unknown and the presidential
election unthought of by the body of the people.

Secondly. The electors are to be chosen for the sole purpose of electing a President
and Vice-President.

The reason of this qualification needs no illustration. It was clearly intended to
close the door against the possibility of bartering votes by giving to the electors but
one single subject to vote upon.

How will the legislative bodies stand the test of this reason ? When chosen within
some months or a year before the time of electing the President, they are chosen partly
for that purpose and partly for many other purposes. Some knowing ones, some furi-
ous partisans, and some equally furious enemies, may surrender all considerations for
the single object of getting in a man who will bo for or against a particular candi-
date for the Presidency; but with the body of the people the legislative duties will be
the first consideration, and the presidential election nothing but an ingredient, mixing
itself in different proportions in the main inquiry. This is the best aspect of the
question, and must be confined to elections which take place within some months or
Avithiu a year before the president is chosen. To those which come on two, three, or
four years before, the presidential election is entirely out of view.

So far from being chosen for the sole purpose, the members of the legislature are not
even thought of for the purpose of electing the President. Strong as this case is,
there is still a more flagraut point of view in which to exhibit it. It is the case of a
legislative body elected purely for legislative purposes, and afterward repealing the
laws which directed the people how to go through the forms of the election, and seiz-
ing into their own liands the whole power of appointing the electors. This is not an
imaginary case. It has repeatedly happened. It is sufficient to name one instance,
that of New .Jersey, in the year 1812, in which the legislature thus invested itself with
the power of appointing electors about three days before the people would have exer-
cised it. When met in the legislature innumerable are the opportunities and tempta-
tions to barter votes. Judges, generals, governors, and many other state officers are
to be elected. Towns are to be laid off', peradventure on some member's land. New
counties are to be erected for the benefit of a clerk, a sheriff", and a colonel ; peradven-
ture, also, members at the time. Many other local interests are to be accommo-
dated. The members interested in all tliese domestic questions are laid under violent
temptations to exchange votes with the friends of a presidential candidate. Thirdly.
The electors are to meet on the same day throughout the Union, and to vote for Pres-
ident and Vice-President. The legislatures meet on the days fixed by the State consti-
tutions, or on the days which they themselves fix by law. In neither case are they
governed by the Constitution of the United States. When met, the legislature a't
any time that it pleases enters upon the business of choosing a President"; and when
the choice is made a farce is got up to appease the manes of the Constitution. Nomi-

APPENDIX. 727

nal electors are chosen and sent to the place where the votes of the State are to be
counted.

Instead of going to vote for President, they carry the votes in their pockets, the
same which they have received from the legislative body. These votes are shown
and connted, and the form of an election is gone through, but no more of the sub-
stance than there is of a wedding in the annual marriage of the Doge of Venice with
the Adriatic Sea. The real election was held weeks or months before, when the legis-
lative body selected their candidate, and the nominal electors are nothing but mes-
sengers, trusted to bring the votes to the place of counting, and without any more
power over them than the messenger afterward employed by themselves to take up
these same h'sxislative votes and bring them on to the seat of government.

Fourthly. The electoral colleges are to sit but one day. The reason for limiting the
electors to this transient esisreiice was to prevent the possibility of intrigues and
corrupt practices by denying the time that would be necessavy to carry tbem into
effect. But the sittings of the legislative bodies are not under the control of this lim-
itation. They sit as long as they please — usually several months — and during all that
time it is beset, like a besieged fortress, by armies of intriguers, cannonaded with
books and with pamphlets; bombarded with newspapers; perforated with the rifle-
shot of private and confideutial letters; and undermined by the silent operations of
sai)pers and miners.

Fifthly. The electoral colleges were not to be subject to cahaUhif/. The framers of
the Constitution sought to protect the presidential election from the influence of tbat
occult management which is the bane of republican councils. They thought they had
succeeded when they instituted colleges of electors, composed of few persons selected
for their elevated character, brought together suddenlj"^, confined to the discharge of
one single dnty, and dispersed in the short space of twenty-four hours. But legisla-
tive bodies are the reverse of all this. They are the true field for caballing, the theater
adapted to the talents of such men as the five cabinet ministers of Charles the Second,
to the initials of whose names, coujbiued with their characters, the world is indebted
for the political signification of the Hebrew word cabal. The legislature of Pennsyl-
vania afforded a signal example in the year 1800. The two houses differed in the
choice of a President. They would lunther pass a law to direct the people how to hold
tlie election, nor would ihey vote togeiher. There was a majority of two in the senate,
and this lean nuijority in the leanest i)rancli of the legislature paralyzed the power of
the State and forced a compromise with the other branch, by which the elective power
of the people, like the spoil of a van([uished enemy, was divided between themselves,
each naming one-half of the electors.

Sixthly. The electoral colleges were not pre-existing bodies, for the obvious reason
that they might not be tampered with beforehand to prostitute their votes. Yet the
legislative bodies are pre-existent to the extent of one, two, three, and even four
years; and dnring all this time are subject to the danger from which it was the inten-
tion of the Constitution that the electors of the President should be free.

U()on each of these reasons the legislative pretension to choose electors is condemned.
But there is one more argument to be brought against them ; an argument not in-
vented, but found; not taken from the head, but drawn from the page of A.mericau
history, from the Journal of the Convention of 1787, from the act of the great men who
framed the Constitution ; an argument of that conclusive nature which only requires
to be stated to silence opi)osition.

[Hero Mr. B. read from tlie Journal of the Convention, pages 92, 190, 324, 333, to show
that it was proposed at one time to have electors chosen by the Congress ; at another,
to have them appointed by the governors of the States; at another, to vest the power
of choosing them in the legislatures of the different States ; that this latter proposition
was actually adopted at one time, on the 19th of July, and remained in the plan of
the Constitution until the 6th day of September following, when it was struck out by
a vote of nine States against two. New Hampshire, Massachusetts, Connecticut, New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, and Georgia, in favor of striking
out; North and South Carolina in favor of retaining the clause.]

Mr. B. believed that all attempts to amplify such an argument as this would only
weaken it. He had tried the legislative pretension by the words of the Constitution ;
by its contemporaneous construction ; by all the reasons which led to the institution
of electoral colleges, and by the vote of the convention passing upon the identical
point in question ; and upon every trial the pretension was condemned and stood be-
fore the Senate as a direct infraction of the Constitution and an open usurpation of
the rights of the people.

Nothing has been said to justify it. On the contrary, the excuses and apologies for
the general-ticket and legislative systems have turned upon the admission of their
impropriety. The Senator from New York, [Mr. Van Buren,] in that spirit of amity,
concession, and mutual deference which cannot be too much admired, has even pro-
posed to surrender both these systems, upon condition, uevertheless, that the small
•States should surrender their right to an eventual vote for President by States in the

46 X

728 COUNTING THE ELEr TORAL VOTE. -

House of Representatives. He has called this a compromise, and has certainly urged
it upon the Senate with unaffected and becoming seriousness. But the proposition
cannot be met. The terms are not equivalent. On the part of the great States it is
proposed to relinquish a power usurped from the people in violation of the Constitu-
tion; on the part of the small States it is proposed to suiTender a constitutional
right ; the one growing out of ambition and schemes of domination, the other granted
to the small States for the preservation and securitv of their rights. Others place the
apology upon different grounds. They run over' a list of the States which have
adopted these modes, and then say they must adopt the same by way of self-defense,
and they will discontinue it when the rest will do so. Thus these States take the at-
titude of Ctesar and Ponipey, each declining to disband his army first. They prefer
to violate the Constitution and to outrage the rights of the people, rather than be the
first to set an example of justice and moderation.

Two questions of great delicacy now present themselves :

1. If electors are not appointed according to the Constitution, can their votes be
counted V

2. If fibjected to, who shall judge them ?
It is the duty of the two hou-es of Congress to count the votes. Can they count

unconstitutional votes? If they cannot, shall they not judge every vote before it is
counted f

Mr. B. Avould not debate these questions. He hoped that the time might never arrive
when it should be necessary to debate, much less lo decide, them. The country had
seen the agitation of 1800, and the still greater agitation of 1820 ; yet these were
nothing but gentle breezes, dead calms, compared to what might be expected if Con-
gress should sit in judgment upon the votes ot seven Stales. Yet, if it shall become
their duty, shall Ihey hesitate ? Sliall they flinch from the defense of the Constitu-
tion, whicli they have sworn to defend, because seven States may stand ready to light
up the flames of civil war if not permitted to violate that sacred instrument accord-
ing to their own will and pleasure ? He spoke hypothetically, and with all the respect
for the States referred to which was compatible with the uiidissembled expression of
his own opinion. It was not his intention to start a new discussion or to excite feel
ii3g, but to have the advantage of a new and powerful consideration in favor of the
district system — in favor of some uniform nu)de of choosing the President ; and thus
bringing back these States to the path of the Constitution by the gentle means of an
amendment, pointing at no one in particular and bearing upon all alike.

Mr. B. proceeded to argue the fiecond proposition which he had submitted to the con
sideration of the Senate, to wit: to discontinue the use of an intermediate body of
electors in the choice of President and Vice President of the United States. He read
from the Federalist, No. 68, to show the views with which electors were instituted :

"It was equally dtsirable that the immediate election should be made by men most
capable of analyzing the qualities adapted to the station, and acting under circum-
stances most favorable to deliberation, and to a judicious combination of all the rea-
sons and inducements that were proper to govern their choice. A small number of
persons, selected by their fellow-citizens from the general mass, will be most likely to
possess the information and discernment requisite in so complicated an investigatiou."

By the Constitution it was intended that the electoral office should be one of the first
dignity in the Republic. The electors were to be selected ; men chosen by the people
on account of their superior virtue and intelligMice, and left to make choice of a Pres-
ident, according to their own enlightened understandings, without the slightest con-
trol from the less-informed multitnde. This was the intention, but the plan has wholly
failed in the execution. The electors are not independent ; they have no superior intel-
ligence ; they are not left to their own jiuigment in the choice of President ; they are
not above the control of the people; on the contrary, every elector is pledged before
he is chosen to give his vote according to the will of those who choose him. He is
nothing but an agent, tied down to the execution of a precise trust. Every reason
which induced the convention to institute electors has failed. They are no longer of
any use, and may be dangerous to the liberties of the people. They are not useful, be-
cause they have no power over their own vote, and because the people can vote for a
President as easily as they can vote for an elector. They are dangerous to the liber-
ties of the people, because, iu the first place, they introduce extraneous considerations
into the election of President ; and, in the second place, they may sell the vote which
is intrusted to their keeping. They introduce extraneous considerations, by bringing
their own character and their own exertions into the presidential canvass. Every one
sees this. Caudidates for electors are now selected, not for the reasons mentioned in
the Federalist, but for their devotion to a particular party, for their popular manners,
and their talent at electioneering.

The elector may betray the liberties of the people by selling his vote. The opera-
tion is easy, because he votes by ballot; detection is impossible, because he does not
sign his vote; the restraint is nothing but his owu conscieuce, for there is no legal
punishment for his breach of trust. If a swindler defrauds you out of a few dollars in

APPENDIX. 729

property or money be is whipped and pilloried, and rendered infamous in the eye of
the law ; but if an elector should defraud forty thousand people out of their vote, there
is no remedy but to abuse him in the news()apers, where the best men in the country
may be abused as much as Benedict Arnold or Judas Iscariot. Every reason for insti-
tuting electors has failed, and every consideration of prudenca rei[aires them to be dis-
continued. They are nothing but agents, in a case wliich requires no agent ; and no
prudent man would or ought to empl )y an agi^nt to take care of his mouey, his prop-
erty, or his liberty when he is equally capable to take care of them himself.

But if the plaii of the Constitution had not tailed — if we were now deriving from
electors all the advantages expected from their institution — I, for ou"-, said Mr. B.,
would still be in favor of getting rid of them. I shmild esteem the incorruptibility of
the jteople, their disinterested desire t ) get the best man for President, to be more than
a counterpoise to all the advantages which might be derived from tlie superior intelli-
gence of a more enlightened but smaller, and therefore more corruptible, body. I
should be opposed to the iuterveution of electors, because the double process of elect-
ing a uuin to elect a man would paralyze tlie spirit of the people and destroy the life
of the election itself

Doubtless this machinery was introduced into our Constitution for the purpose of
softening the action of the democratic element ; but it also softens the interest of the
people in the result of the election itself. It places them at too great a distance from
their tirst servant. If interposes a body of men between the people and the object of
their choice, and gives a false direction to the gratitude of the President elected. He
feels himself indebted to the electors who collected the votes of the people, and not
to the people] who gave their votes io the electors. It enables a few men to govern
many, and, in time, it will transfer the whole power of the election into the haiuls of
a few, leaving to tlio people the humble occupation of confirmiug what has been done
by superior authority.

Mr. B. referred to historical examples to prove the correctness of his opinions.
He mentioned the constitution of the French republic of the year III of French liberty.
The people to choose electors ; thesa to choose the councils of five hundred and of
ancients ; and these, by a further process of filtration, to choose the five directors. The
effect was that tiie people had no concern in the election of their chief magistrates,
and felt no interest in their fate. They saw them enter and expel each other from the
political theater with the same indifference with which they would see the entrance
and the exit of so many players on a stage. It was the same thing in all the subaltern
republics of wltich tlie Freuce armies were delivered while overturning the thrones of
Europe. The constitutions of the Ligurian, Cisalpine, and Parthenopeian republics
were all duplicates of the mother institution at Paris, and all shared the same fate.

The French consular constitution of the year VIII (the last year of French liberty)
preserved all tlie vices of the electoral system, and from this fact alone tbat profound
observer, Neckar, from the bosom of his retreat in the midst of the Alps, predicted and
proclaimed the death of liberty in France. He wrote a book to prove that '• Libert)/
would he rained bi/ providing an>i kind of substitute for popular elections," and the result
verified his prediction in four years. But the strangest of all arguments against the
use of electors, the fact which goes further than all others to prove them to bo dan-
gerous to the rights of the people, is that they are continued in France at this time
under the charter of Louis XVIII. The people choose electors as under the constitu-
tions of the years III and VIII, and these electors choose the deputies to the legislative
body. Heretofore the court party contented itself with a majority, but the signs of
liberty shown by the minority in opposing the Spanish war has determined it to have
the entire body devoted to the Crown, and the last advices inform us that the chamber
would be dissolved to make room for this change, which would be openly effected by
bribing the electors.

Mr. B. regretted that the young republic of Colombia had adopted the electoral sys-
tem, both in the choice of representatives in the Cortes and in th.' election of the su-
preme executive. Doubtless they proceeded upon the idea that the people were not
sufficiently enlightened for the practice of self-government ; but the body of the people
are always sincerely devoted to the interest of their country, and their honest mistakes
are less dangerous to liberty than may be the artful designs of a small and select
body.

He referred to the era of the adoption of the American Constituti )n to show that
many enlightened statesmen were then opposed to the use of electors. From the de-
bates in the Virginia convention, he read several passages from speeches delivered by
Mr. Monroe; among others, the following:

"He (the President) is to be elected in a manner perfectly dissatisfactory to my
mind. I believe that he will owe his election, in fact, to th-:) State governments, and
not to the people at large." " A combination among the electors might easily happen,
which would fix on a man every way improper. Contemplate this in all its conse-
quences. Foreign nations, by their intrigues, may have great influence in each State
in the election of President. Will not the influence of the President himself have

730 COUNTING THE ELECTORAL VOTE.

great weijilit on Lis re-election ? The variety of tLe offices at his disposal will acqnire
bini the favor and attachment of those who asjiire after them, and of their friends.
He will have some connection with the members of the different branches of the Gov-
ernment. Thej' will esteem him, because they will be acqnainted with him, live in
the same town, and often dine with him. This familiar and freqneut intercourse will
secure him great inliueucc. I presume, when once he is elected, he may be re-elected
forever."

Third proposition : To commit the election of President to a direct vote of the
American people.

This is not a new project. It was presented and discussed in the convention of
1787 ; was twice put to the vote, and supported by the States of Pennsylvania and Dela-
ware, then represented by some of the ablest men that any age or country has pro-
duced. These representatives were —

For Feiiusylraina. — Benjamin Franklin, Thomas Mifflin, Robert Morris, George Cly-
mer, Thomas Fitzsimmons, Jared Ingersoll, James \Yilson, and Gonverueur Morris.

For Di'Iduare.—Georgo Read, Gunning Bedford, John Dickinson, Richard Bassett,
and .Jacob Broom.

Mr. B. took a pride in reviving the proposition of these great men. He felt him-
self treading upon safe ground when he could say to the American people, "I am
endeavoring to carry into effect the plan of Benjamin Franklin, and of the eminent
statesmen whose names have been just read." And, instead of being called upon for,
an argument in support of a plan so congenial to the principles of onr Government, he
would suppose that the American people would call for the reasons which prevented
its ado|)tion when lirst proposed. These reasons will bo found in the Federalist, in No.
68, and reduce themselves to objections growing out of —

1. The extent of the country.

2. 'I'lie difference of population.

3. Danger of foreign interference.

4. Danger of corruption.

5. Want of intelligence in the people.

6. Danger of tumiiits and popuhir commotions.

Without inquiiing into the validity of these objections at the time that they were
nrged, it will be sufficient to consider them now; and to show that with the experi-
ence which has Vieen acquired since the adoption of the Constitution, and in the pres-
ent condition of America, there is not one of them which does not admit of a prompt
and satisfactory answer.

Fast. Tbe extent of the country. This objection would be fatal, if the American
citizens, like the Romans, were called from all parts of the republic to vote at the
seat of Government. But they will continue to vote where thoy now do, in their re-
spective counties, wards, and townships; the time only will be fixed bj^ Congress, to>
make the day of the election the same throughout the Union ; but all the forms will
be regulated by the State legislatures.

Second. Ditterence of population. This objection would be fatal if the votes were to
be consolidated in one general return. In that case the slaveholding States would lose
the three votes in five which they now give for their black |)opulation. Doubtless, it
would be well for them if they could lose them by getting rid of their black popula-
tion. The race of whites would take their place, and live would count live, instead of
counting three, as it now does. It is the peculiar misfortune of those States that, to all
the evils incident to the possession of slaves, is superadded a loss of political weight
by this method of counting live persons for three. But the objection would be equally
fatal if all the States were non-slaveholding. The qualifications of voters differ io
each. In some the right of suffrage is universal; in others it is limited to those who
have paid a tax; in others, to those who hold a house, or possess real estate ; and iu all
a residence of greater or less duration is required. In each of these the same mass of
population would give different numbers of votes. But this objection is avoided, and
the relative weight of the States is preserved, precisely as fixed by the Constitution.
Instead of a consolidated vote, the election will be decided by districts. Each district
will give one vote, as it now chooses one elector; and the candidate preferred in the
district will be entitled to that vote. To the result, it will be wholly immaterial whether
the district containing a given number of souls, say 40,000, shall contain one thousand
or seven thousand persons, entitled to vote for members in the most numerous branch
of the State legislature. It is to persons thus entitled that the privilege of voting for
President is proposed to be extended ; and it will depend ui)on the State constitutions, '
not upon Congress or the Federal C.)nstitution, to restrain or enlarge this privilege.

Third. Danger of foreign interference. That there is reason to apprehend such in-
terference is readily admitted. The histories of all elective governments are fall of
examj>les. Our own conta'us one instance of open aud avowed interference — th .t of
Genet's proclamation, in the year 1795. But it'is denied that the people are most sub-
ject to be influenced by this interference. By what means do foieign nations inter-
fere iu elections ? First, by troops ; secondly, by money. Our local position frees us

APPENDIX. 731

from apprehension ot tlie first ; and as for money, it must come tbroujojli the hands of
tlie diplomatic corps, and mast be distributed to the persons with whom they congre-
gate. Who are these? American farmers? No. Foreign ministers are not seen in
the interior of the States, at the houses of the farmers, offering gold for votes ; and if
they should ever attempt it they would find man,y to answer, with the incorruptible
George Eeed, " The King, your master, is not rich enough to buy me ; " and not a few
■whose answer would stop forever the advance of the minister. No, sir ; foreign agents
go to small bodies of men — to a Polish diet ; to a Germanic coll^^ge; to a conclave of
holy cardinals, and we know how they go. In the time of Francis and Charles they went
to the German electors, followed by long trains of mules, packed with bags of gold and
silver; but, sine the introduction of bills of exchange, the company of the long-
eared animals i.s ilispensed with. A scrip of paper is equiiUy efficacious, and avoids
the scandal of a public display. If foreign gold shall ever 1)6 brought to influence
our flecMons, it will g<» to the electors or to the legislative lodies, which have usurped
the power of choosing the President, and not to the people at large. We have seen
the time when tens of millions would have been given by either of the great belliger-
ents of Europe to have elevated a n*an to the Presidency who would have involved
the republic in the war, as one of their allies; .and these times may be seen again,
when the virtue of public men shall bo less stern than it has beeu. The authors of
the Federalist were unfortunate, thej^ were absolutely unlucky in the application of
this objection. It is an argument for instead of against the people, and recoils with
overwhelming force upon a small body of electors.

Fourth. Danger of corrupting the people. This objection is taken from the history
of small states, composed of one or two cities; or from the history of great ones,
where the political power resided in the inhabitants of the capital. But examples
thus derived have no application to the state and condition of the American people.
What would be the means of corruption in the United States f They have already
been exhibited in the speech of our present Chief Magistra'e, delivered in the Virginia
convention, in the year 1788, and ({uoted in the beginning of this argument. Offices,
loans, contracts, and entertainments constitute those means. Api)ly them to the peo-
ple. Of offices, there would not be one for a thousand ; of loans, not one in a hundred
thousand would have any money to lend on terms, either good or bad ; of contracts,
there would not be ten in the thousand who would want them, nor one in the thou-
sand who cor.ld get them. The great extent of the Republic and the dispersed situa-
tion of the inhabitants would render it iuipossible to entertain them en mufise, as Cresar
did the Roman citizens upon his return from Gaul. The tw(iuty-two thousand tables
spread by that conqueror for the dregs of a degenerate city could not be stretched from
Maine to Florida, from the Atlantic to the Mississippi. But change the direction of these
engines of corruption. Address the oftices, loans, contracts, and dinners to a college of
electors ! Do you see this book ? said Mr. B. (holding up an octavo volume, bound in blue
and gold.) Itisthe brother to this, (holding up another nnich less,)and two years younger,
but, contrary to the laws of nature, the younger is one-fourth the largest. These books are
•eompiled under a resolution of Congress, and directed to be laid upOn our tables on the
first day of January of each new Congress. The one which was due on the first day of
January last has not yet appeared. I was anxious to have had it, and to have compared
it to its elder brethren, for I am much mistaken if the new-born infant, from the mo-
ment of its birth, will not exceed all his family in size, and that the increase will be
the same in each succeeding member of the family, until, in form and dimensions, a
monster shall be produced. This book, the last that has appeared, came forth ou the
1st day of January, 182'2.

It c<uitaius two hundred and fifty-seven pages, every page contains forty names,
every name fills an office, and every office draws an annual salary out of the public
treasury, varying in all degrees from nine thousand dollars down to a unit. The whole
is in the gift of the Executive. It is the book of Executive patronage, the Blue Book
of the Republic, the Red and Gold Book of the monarchies of Europe. But this book
cannot corrupt the people. The ten thousand offices it con tains could efl:ect nothing a'"ong
ten millions of yieople. Nine millions nine hundred thousand would remain without;
offices and uncorrnpted. But apply it to an electoral college of two hundred and sixty-
one members, or to a small legislative bodj", and there would be yilaces by dozens for
themselves and their friends. The virtue and simplicity of this day must pass away.
The time will couie when political power will be bought, and when the money of the
people will be taken to pay the price.

The time will come vv hen the wifeless and childless bachelor will not look out for a
successor to his estate with more anxious solicitude than the incumbent President
shall look out for a successor to his presidential power. The time will come when the
American President, like the Roman emperors, will select his successor, take him by
the hand, exhibit him to the people, pface him upon the heights and eminences in the
Republic, dis|)lay him in every amiable, every attractive, point of view, make him the
cbainiel of all favor, and draw the whole tribe of parasites and office-liunters to the
feet of the favorite. We know it is written that more nations worship the rising than

732

COUNTING THE ELECTORAL VOTE.

the setting sun ; but let the two suns appear above the horizon at once; let their rays
be drawn to a focus upon an electoral college or legislative assembly; yes, let their
concentrated rays fall at once upon the double ranks of their united worshipers ; let
two Blue Books be displayed at once, the actual President paying down his ten thou-
sand ofiSces and the heir ap))areut giving his note for ten thousand more, due and
payable on the 4th day of March then next ensuing! What virtue could stand snch
trials? The effect nuist be overwhelming upon a small body of two or three hundred
electors ; but all these temptations would become insignificant when scattered and dis-
persed among the millions of people which fill the Republic. The candidate for Iheir
favor could derive no benefit from his long list of offices. He must come with a list,
not of offices to be given, but of services performed in the field or the cabinet. He
must come, like the elder Cato, to reform the manners of a degenerate age by an ex-
ample of simplicity and economy in his own person ; like Appius Claudius, to improve
and adorn the interior of his country ; like Cicero, to crush conspirators by the thun-
der of his eloquence; like Scipio, to expunge the rival nation from the face of the
earth; like Marius, scarred with innumerable wounds, received from the public enemy.
He must come, like our own great Washington, not to pillage his country, but to serve
her, and to retire from her service through the portals of everlasting fame.

Mr. B. took up the fifth objection — want of sufficient intelligence in the people to
enable them to make a judicious choice of President.

He said, this objection had a weight in the year 1787, to which it is not entitled in
the year 1824. Our Government was then young, schools and colleges were scarce,
political science was then confined to few, and the means of di&'using intelligence were
both inadequate nnd uncertain. The exiieriment of a popular government was just
beginning; the people had been just released from subjection to an hereditary king
and were not yet practiced in the art of choosing a temporary chief for themselves.
But thirty-six years have reversed ^tliis picture. Thirty-six years, which have pro-
duced so many wonderful changes m America, have accomplished the work of many
centuries upon the intelligence of its inhabitants. AVithin that period, schools, col-
leges, and universities have multiplied to an amazing extent. The means of diffusing
intelligence have been wonderfully augmented by the establishment of six hundred
newspapers and upward of fiv« thousand post-offices. The whole course of an Ameri-
can's life, civil, social, i.nd reliuions, has become one continued scene of intellectual
and of moral improvement. Oui c in every week more than eleven thousand men, enu-
nent for learning and piety, perform the double task of amending the hearts and
enlightening the understandings of more than eleven thousand congregations of people.

Under the benign intluence of a free government, both our public institutions and
private pursuits, our juries, elections, courts of justice, the liber il professions, and the
mechanic arts, have each become a school of political science and of mental improve-
ment. The Federal Legislature, in the annual message of the President, in reports
from heads of Departments and committees of Congress, and speeches of members,
pours forth a fiood of intelligence which carries its waves to the remotest confines of
the Eepublic. In the different States, twenty-four State executives and State legisla-
tures are annually repeating the same process within a more limited sphere. The
habit of universal traveling, and the practice of universal interchange of thought,
are continually circulating the intelligence of the country, and augmenting its
mass. The face of our country itself, its vast extent, its grand and varied features,
contribute to expand the human intellect and to magnify its power.

Less than half a century of the enjoyment of liberty has given practical evidence of
the great moral truth that, under a free government, the power of the intellect is the
only power which rules the affairs of men, and virtue and intelligence the only durable
passports to honor and preferment. The conviction of this great truth has created a
universal taste for learning and for reading, and has convinced every parent that the
endowments of the mind and the virtues of the heart are the only imperishable, the
only inestimable riches which he can leave to posterity. I believe the American people,
said Mr. B., to be the most enlightened upon earth, and I say this with the full recol-
lection of ihe ridicule attempted to be cast on the Federal Legislature some ten years
ago for an imputed design to decree itself the wisest assembly in the world, which, if
it had done, 1, for one, should have placed the resolve in the chapter of decrees, true in
themselves, but unseasonably proclainu'd. I repeat the expression of my belief, with
the full knowledge of the fact that, within three years past, it has been tauntingly de-
manded, "Who, in the four quarters of the globe, reads an American book?" And I
know that this supercilious interrogatory was put by the luminaries of the first city of
a kingdom, the populace of whose seciuid city, within that period, yes, within two years
past, in open day, in the presence of the magistrates, in defiance of the laws, in masses
of tens of thousands, rose upon a poor man, their countrymin and fellow-townsman, a
maker of paints by trade, and demolished his ht)use, destroyed his property, and were
proceeding to put himself to death, when the arrival of dragoons and the blows of
sabers released the victim ; and all this because this enlightened populace of the second
city in the kingdom had taken it into their illuminated heads to believe that the poor

■; APPENDIX. 733

paint-maker coniponn(lt?(l bis red paiuts of little children's blood, wbom be caught and
killed for that purpose !

And now I would ask a question in my turn. I would ask if there is a village in the most
obscure part of the Republic in which even a mob of ten-year old boys could bave been
raised upon such an absurd, vile fabrication ? But, I will answer the Edinburgh ques-
tion. I will tell these reviewers who it is, in the four quarters of the world, that reads
an American book; and I will say that wherever liberty exists, in whatsoever clime
she has a temple and a votary, on whatsoever portion of the earth the hands of free-
men are employed in laying the foundations of a new empire, or in repairing the ruins
of an old one, whether it is in Europe or in Asia, in North or in South America, there
American books are read, and not only read, but they bear away the palm from all tliat
was ever written by the Lockes and Moutesquieus of England and France, by the
Platos and Solous of Greece and of Kome.

But whether the objection to tLe intelligence of the people was well or ill founded
in the year 1787, it was at least consistent with the intention of the Constitution at
that time. It was the intention of that day that the people should not select the Pres-
ident; that they should limit themselves to the choice of electors, to whose superior
information and discernment the election of the Chief Magistrate should be entirely
committed. But tliis intention has failed in practice. The people nosv select the can-
didate lor the Presidency, and then choose an elector pledged to support their choice.
An objection to the intelligence of the people would at this time be both unfouaded in
fact and inconsistent with established practice. The advocate for the objection would
find himself in a dilemma, and I am curious to see upon which horn of it he would
choose to hang himself in the face of the American people.

Sixth. Danger of tumults and popular commotions. This objection is taken from
the history of the ancient republics; from the tumultuary elections of Rome and
Greece. But the justness of the example is denied. There is nothing in the laws of
physiology which admits a parallel between the vindictive Italian, the volatile Greek,
and the phlegmatic American. There is nothing in the state of the respective coun-
tries or in their manner of voting which makes one an example for the other. The
Romans voted in mass, at a single voting-place, even when the qualified voters
amounted to four millions of persons. They came to the polls armed, and divided
into classes and voted, not by heads, but by centuries. In the Grecian republics all
the voters were brought togetlier in one great city, and decided the contest in one
great struggle. In such assemblages both the inducenu'nt to violence and the means
of committing it were prepared by the government itself. In the United States all
this is diifereat. The voters are assembled in small boilies, at innumerable voting-
places, distributed over a vast extent of country. They come to the polls without
arms, without odious distinctions, without any temptation to violence, and with every
iuducement to harmony. If heated during the day of election, they cool oft' upon re-
turning to their homes and resuming their ordinary occupations. A month afterward,
when the result of a presidential election would be known, the body of the people
would be too much occupied with their own concerns, and too sensible to the voice of
reason, to think of taking up arms in favor of an unsuccessful candidate. The partj'
defeated at an election nuist tight upon the spot or never. Sleep and dispersion
rapidly cool their belligerent passions.

Instead of violence, it isapathy which we have to dread in our presidential elec-
tions. There is too much apathy at this time upon the subject of the impending
election. The intemperance of some newspapers, the heat of some cities, and the fury
of some iKirtisaus furnish no criterion for estimating the temper of the continent.
The tranquillity of the American people is not affected by these local agitations. Some
citizens contine themselves to the inquiry, "Who will you give us for President?"
The question implying the humiliating fact that an American citizen has no weight
in the choice of the first officer of the Republic. Others are quietly looking out for
the best man to administer their aff"airs, and all agree in- holding in the uttermost con-
tempt every eft'ort to impose upon their judgment, whether the fraud shall be exhibited
in the shape of poisonous detraction or of fulsome adulation.

But let us admit the truth of the objection. Let us admit that the American peo-
ple would be as tumultuary at their presidential elections as were the citizens of the
ancient republics at the election of their chief magistrates.

What then ? Are we thence to infer the inferiority of the officers thus elected, and
the consequent degradation of the countries over which they presided ? I answer, no.
So far fiom it, that I assett the superiority of these officers over all others ever obtaired
for the same cjuntries, either by hereditary succession or the most select mode of elec-
tion. I atifirm those periods of history to be the most glorious in arms, the most
renowned in arts, the most celebrated in letters, the most useful in practice, and the
most happy in the condition of the people, in which the whole body of the citizens
voted dir^'ct for the chief officer of their country. Take the history of that common-
wealth which yet shines as the leading star m the firmament of nations. Of the
twenty-five centuries that the Roman state has existed, to what period do we look for

734

COUNTING THE ELECTORAL VOTE.

the generals and statesmen, the poets and orators, the philosophers and historians, the
sculptors, painters, and architects, whose iaiinortal works havefixed upon their country
the admiring eyes of all succeeding ages? Is it to the reigns of the seven first kings ?
To the reigns of the emperors, proclaimed by the Prtetorian bauds ? To the reigus of
the sovereign pontiffs, choseu by a select body of electors in a conclave of most holy
cardinals ? No, we look to none of these, but to that short interval of four centuries
and a half which lies between the expulsion of the Tarquius and the re-establishment
of moiiavchy in the person of Octavius Ciesar. It is to this short period, during which
the consuls, tribunes, aud praetors were annually elected by a direct vote of the peo-
ple, to which we look ourselves, and to which we direct the infant minds of our children,
for all the works aud monuments of Eoman greatness; for roads, bridges, and aque
ducts constructed; for victories gained, nations vanquished, commerce extended,
treasure imported, libraries founded, learning encouraged, the arts nourishing, the
city embellished, and the kings of the earth humbly suing to be admitted into the
friendships and taken under the protection of the lioman people. It was of this mag-
nificent jjcriod that Cicero spid^e, when he proclaimed the ])eople of Rome to be the
masters of kings and the conquerors and commanders of all the nations of the earth.
And, what is wonderful, during the whole period, in a succession of four hundred aud
fifty annual elections, the people never once preferred a citizen to the consulship who
did not carry the prosperity and glory of the republic to a point beyond that at which
he had found it.

It is the same with the Grecian republics. Thirty centuries have elapsed since they
were founded ; yet it is to an ephemeral period of one hundred and fifty years only,
the period of po))ular elections, which intervened between the dispersion of a cloud of
petty tyrants aud the coming of a great one in the person of Phili]), King of Macedon,
that we are to Jook for that galaxy of names wliich shed so much luster njiou their
country, and in which we are to find the first cause of that intense sympathy' which
now burns in our bosoms at the name of Greece.

These short and brilliant periods exhibit the great triumph of popular elections ;
often tumultuary, ofteu stained with blood, but always ending gloriously for the
country. Then the right of sutfrage was enjoyed ; the sovereignty of the people was
no fiction. Then a sublime spectacle was seen when the Roman citizen advanced to
the polls and proclaimed, " I vote for Cato to be consul ;" the Athenian, " I vote for
Aristides to he archon;" the Thebau, " I vote for Pelopidas to be bn_M)tarch ;'* the
Lacedemonian, " I vote for Leonidas to be first of the Ephori." And why cannot an
Anurican citizen do the same? Why may not he go up to the poll and proclaim, " I
vote for Thomas Jefferson to be President of the United States ?" Why is he compelled
to put his vote in the hands of another, and to incur all the hazards of an irresponsi-
ble agency, when he himself could immediately give his vote for his own choseu can-
didate, without the slightest assistance from agents or managers ?

But, said Mr. B., I have other oVyections to these intermediate electors. They
are the peculiar and favorite institution of aristocratic re]>ublics and elective mouar-
chies. I refer the Senate to the late republics of Venice and Genoa ; of France, and her
litter; to the kingdom of Poland, the empire of Germany, and the pontificate of
Rome. Ou the contrary, a direct vote by the i)eople is the peculiar and favorite insti-
tutiou of democratic republics, as we have jnst seen in the governments of Rome,
Athens, Thebes, and Sparta ; to which may be added the principal cities of the Amphyc-
tiouic and Achteau leagues, and the renowned republic of Carthage wheu the rival of
Rome.

I have now answered the objections which were brought forward in the year '87.
I ask for no judgment upon their validity at that day, but I affirm them to be without
force or reason in the year 1824. Time and experience have so decided. Yes, time and
experience, the only infallible tests of good cr bad institutions, have now shown that
the continuance of the electoral system will be both useless aud dangerous to the liber-
ties of the people, and that "the only effectual mode of preserving our Government
from the corruptions which have undermined the liberty of so many nations is to con-
fide the election of our Chief Magistrate to those who are farthest removed from the
influence of his patronage;"* that is to say, to the whole body of American citizens ! .

One other objection yet remains to be named and answered, an objection of recent
origin, stated for the first time on this floor by the Senator from New York, (Mr. Vau
Biiren.) In substance it is this: that by giving the election to the people in dis-
tricts, the votes for President would be more apt to scatter among various candidates,
less apt to concentrate upon one or two, and thereby the chances of an eventual ref-
erence to the House of Representatives would be increased.

The analysis of this objection shows it to be an ol)jection purely aud simply to the
district system, as the votes would be liable to scatter precisely as much in choosing
electors by districts as in voting for President by districts. In either case the majority
would lose the power of impressing the minority ; and that they ought to lose it has,

* Report of the committeo of House ot Kepresentatives, by Mr. McDufiSe.

APPENDIX. 735

in my opinion, been snfficiently shown in the T)egiuning of this argument. But it is
not admitted that the result would be as apprehended by the Senator from New York.
In the first place, the candidates for the Presidency, be their number what it may in
the first stages of the canvass, will always reduce themselves, or be reduced by the
force of circumstances, to two or three individuals, before the day of election comes
round. In the second place, admitting that the votes of one State may scatter, yet the
votes of all the others may scatter likewise; and what is lost by a particular candi-
date in one State may be gained by him in another.

Fourth. To continue the umpirage in the House of Representatives, in all cases
in whirli no candidate receives a majority of the whole nunjlier of votes. This is the
last ])roposition, said Mr. B., which I have had the honor to submit to the considera-
tion of the Senate. In taking it up I have to regret that I shall find myself separat-
ing in opinion from those from whom I can never divide without a painful apprehen-
sion that I am going into error. My sensibility to this unpleasant sensation is increased
upon this occasion because, in dividing from so many whose judgments I reverence, I
seem to take the direct road which leads to the interest of my own State. But, notwith-
standing the embarrassing effect of this appearance, I will cheerfully throw myself
upon the candor of the Senate while I brieiiy show that the real interest of Mi.ssouri,
in this question, is directly op])osite to what it seems to be.

This infant State is now called small; bnt she contains all the elements of future
greatness. She has sixty thousand square miles of territory, and a soil and climate
adapted to the support of the heaviest population. Her mines and salines will give
rise to great miinufacturing establishments. Her geographical position, in the center
of the valley of the Mississippi, will give her great political weight, and in war her
force Avill be disposable, because she, herself, will be inattackable.

The wonderful phenomenon of thirty thousand miles of navigable water, uniting in
her center, and llowing, by one channel, to the Gulf of Mexico, will give her com-
mercial advantages nneqiialed by any other interior part of the globe. On the basis
of the ordinary pojnilation of old countries, one hundred and fifty to tlie square
mile, she will be able to contain nine millions of souls, equal to the entire white popu-
lation of the United States at this day. Looking to these facts, and it is clear that
the permanent interest of Missouri lies with the ijowerful, not with the weak States.
But, leaving out of view all considerations of this kind, placed on a theater which is
elevated iar above the atmosphere of local interests, charged with the sacred duty of
legislating for the whole American people, I claim for myself no more than I freely
grant to every member of the Senate, a sincere desire to perpetuate our republican
institutions, and to save that union of the States upon which Avill depend the happi-
ness and prosperity of our descendants, when we ourselves shall be beyond the reach
of any earthly government, either good or bad.

The amendment reported by the committee proposes to take away from the House
of Representatives the eventual right of voting by States for President and to vest it
in both Houses of Congress, voting by heads. The efl:ect of this amendment would be
to give the election of President unconditionally and absolutely to the powerful States.

I am opposed to the principle of this amendment, because it goes to the subversion
of the Government under which we live.

The Constitution of '87 reposes upon two principles, one federative, depending
upon the States; the other representative, depending upon popttlation. Botli are com-
bined throughout the whole frame of the General Government. The most inconsider-
able bill cannot become a law of Congress without submitting to the authority of
each of these principles; it must receive the double ratification, once by a majority of
people in the House of Representatives and once by a majority of States in this cham-
ber. The two principles are absolute in their application to every measure of the
Federal Legislature ; but in the election of President the federative principle is con-
tingent, and contingent, too, upon the will of those who have the inclination and the
power to prevent the contingency from ever happening.

Before the adoption of the Constitution the federative principle alone operated.
There was but one house of Congress, each State had but one vote, and the majority
of States decided every question. The Constitution itself was formed in the same
way in a convention voting by States, and the majority of States deciding every
question.

The great difficulty in the convention was to fix upon the mode in which votes should
be counted upon national subjects; the large States wishing that a majority of popu-
lation should prevail, and the small ones that a majority of States should govern.
The result was a compromise, by which both principles were brought into operation,
each as a check upon the other. The combination was new and happy. No example
in any previous confederacy, nnr any writer in theory had furnished'the hint. The
world is indebted for it to the great men who framed the American Constitution, and
beyond all doubt it will give a duration to our Government which could not be ex-
pected from a simple confederation voting by States, nor from a consolidated republic
deciding every question by the majority of numbers. But no human institution is per-

736

COUNTING THE ELECTORAL VOTE.

feet, nor are there any two principles upon eartli which can precisely balance each
other. One mnst be the weakest from the beginning; and in practice the weak must
become weaker and the strong more powerful, until the absolute mastery of one aud
the absolute subserviency of the other is completely established.

In the plan of our Government the federative is the weak, the representative the
strong one. The federative rests upon the States, which are fow ; the representative
npou the people, who are numerous. In time, the most powerful must master the
other; and the attack has now begun. The amendment reported by the committee is
an attack upon this principle, not in its whole extent, but in one ])oint. What is this
point? It is called "an election of President by the House of Representatives." In
researches after truth, it is important to use accurate expressions. This phrase is not ac-
curate. The House of Representatives have no power to "elect" a President. They
have no elective faculty, no ]iower of choice; they are limited to the huuible occupa-
tion of preferring one out of three, each of whom may be obnoxious to tliem. Tiiey are
nothing but arbitrators', referred to as mutual friends to settle a question of mutual
interest. A reference to the House of Representatives is clearly a case of a nomination
of three candidates by the people and the acceptance of one by the States. With the
important qualification that the people only nominate to the States when they cannot
agree among themselves, it is not a case of " election," but a sort of substitute for the
gold aud silver balls in the choice of a doge of Venice.

Before we examine the objections to the main question we will stop a moment to
examine the case of 1800 ; the example always referred to as the one to be dreaded, and
to avoid the repetition of which is one of the main arguments in favor of amending
the Constitution. Now, the fact is, the case of 1800 cannot possibly happen again ; it
was not for want of a majority that the decision then went to the House of Repre-
sentatives, for two candidates had each a nuijority, and that nnijority was the same —
73 for Mr. Jefferson aud 7:^ for Mr. Burr. It was not for want of a nnijority but for
want of designation that the question went to the House, f and this can never hap-
pen again, for the Constitution has been amended, and the votes given for Presi-
dent and Vice-President are now designated in the ballots. The fact of that case can
never happen again, nor the excitement which it produced. What was the cause of
that excitement, of that indignation and rage which inOamed the country? It was
the fact that a man who had not received one vote for President was about to be made
President over the man who had received a majority of the people's votes; it was be-
cause a candidate, preferred by one party to the second office in the Republic, was
taken up by the opposite party, turned upon his old friends, and made the instrument
of crushing their success in the moment of enjoyment ; it was because the people were
to be cheated out of their choice by what they believed to be a fraudulent and treasf^n-
able combination against them. If the thirty-six ballotings had been between Mr.
Adams .and Mr. Jefferson there would have been no talk of a civil war, no menace of
marching troops. Both these gentlemen had been voted for as President; the country
■was nearly divided between them. The defeated partj' would have taken their defeat
tranquilly, because it would have been fair. The case of 1800 can never happen again,
neither in point of fact nor in the excitetuent v/hich it produced, aud I protest against;
it as an argument in favor of altering the Constitution.

Mr. B. then proceeded to the objections brought against the continuance of this
power in the House of Representatives. These were of two kinds: one of principle,
because it leveled the power of the States; the other of detail, because the House of
Representatives is held to be an unfit depositary of this principle.

To show the possible operation of this principle, a table has been exhibited in all the
newspapers, demonstrating that thirty-one members of Congress, from thirteen of the
smallest States, may be able to decide the election. The table is not new ; it was ex-
hibited in the convention of '87, and in the Virginia convention which ratified the
Constitution, and produced at that time a result still more astounding ; for, accord-
ing to these tables, fifteen members from the seven smallest States were to eftect the
election. I refer to these old calculations for the jiurpose of showing that the evil now
so nnich dreaded is not a new discovery, but was perfectly understood before the
adoption of the Constitution ; aud, though urged in its most imposing form, was not
sufficient to jirevent its adoption in a single State. It was then considered, as it now
must be, as the mere calculation of a possible case which can never happen.

So many States, so widely dispersed, (for the table takes in Maine and Louisiana,
Delaware and Missouri, Rhode Island and Alabama, and many others equally remote
from each other) — so many States, without comnmnity of interest or feeling, can never
unite in a common object, still less to effect their purpose by the miraculous coinci-
dence of a majority of one in thirteen successive instances; and without this miraculous
concurrence of the same majority, the table loses all its imposing effect, and would
show thirteen States, having forty-five Representatives, aud entitled to seventy-one
electoral votes, uniting in one object, and deciding the election. Mr. B. said he would
exhibit another table to the Senate, which he believed to be new, aud not only possible,
but probable.

APPENDIX. 737

The whole nnmber of electoral votes at present is 261 ; of these, l?ii are given by six
States, which choose their electors either by general ticket or legislative ballot. The
same candidate may be taken np by the dominant party in each of these States and
may succeed in each by a bare majority, say a majority of one ; he will then have
72 volnntary votes, and 60 impresseil ones. AH the other States may be against him,
yet he is elected; elected by six States against the eighteen, by 72 votes against 189 ;
by 2,800,000 people against 7,200,000. Yet this is called an election by the people, an
election by the majority, vi'hen it is shown that it may be the work of one-fourth part
of the States, oue-fonrth part of the votes, and one-fonrth part of the people. Bnt it
may be said that this is a mere case of possibility, which can never happen. I answer,
to the letter it is not expected to happen, bnt, in effect, it not only can happen, but is
extremely probable.

The six States referred to aiiproximate to each other and can easily combine. They
may differ about the individual they would prefer for President, but they are all united
in one wish, one design, one interest, in keeping the decision from the States in the
House of Representatives. They all have the same horror at the idea of seeing them-
selves balanced on a final vote by the single Representative from Illinois, Delaware,
Mississippi, and Missouri ; and there is no knowing to what compromises this commu-
nity of feeling and this joint horror may lead. Certainly, while the electors continue
to be chosen by general ticket and legislative ballot, it is a farce to talk about the will
of the peoi)le ; and, with every disposition to treat the subject candidly, I think the
majority of the peojile have about as good a chance for succeeding in the House of
Representatives as they have in a vote by electors thus chosen. I have said that the
principle of the amendment reported by the committee goes to tlie subversion of the
Government under which we live. That ])rinciple is, that the mnjority of the people
ought to govern. Certainly this is correct in a consolidated republic; but apply it to
the equal representation of the States in the Senate Chamber. There are twenty-six
Senators from thirteen States, containing a ])opulation of two millions; that is, a ma-
jority of Senators representing one-fifth of the population. Apply it to the ratification
of treaties. Eighteen Senators from nine States, containing a population of one million
of inhal)itants, may prevent the ratification of a treaty supported by thirty Senators,
representing nine millions of people! Apply it to the mode of amending the Con-
stitution, which requires a concurrence of tluee-fourihs, and the result may show you
fourteen Senators from seven States, containing six hundred and fort}' thousand souls,
preventing the adoption of an amendment against the vote of thirty-four Senators rep-
resenting nine and a half millions of people ! But, it will be said, there is no danger
of any attack upon the Senate. I answer, that thirty years ago there was no visible
danger of any attack upon the rights of the States in the eventual vote for President,
and twenty years hence the class of small States, now so nnich the most numerous, will
become the smallest nnmber. At present we count eighteen small and six great
States ; but in .his count the estimate turns upon population, which is constantly vary-
ing, and not upon the size of the States, which is fixed and permanent.

All the Western States now in existence will be of the largest class. Those to be
created will also be of the largest size. They will wish it, to gratify their pride, and
it will be granted theui, to lessen their rekitive weight in the Sanate. Five new
States of the largest class must be admitted within some years. Florula, 48,000 square
miles ; Arkansas, 60,000, and three more in the Northwest Territory, between the
State of Illinois and Lake Superior, averaging 50,000 square miles each. The relative
pi'oportions of great and small States will then be reversed, and a proposition which
cannot be defemled bj' any one now will then be as popular as is the present attack
upon the eventual right of the States to decide a presidential election.

Gentlemen say there is no danger of any attack upon the equal representation of the
States in the Senate. But I ask if there are no "private griefs " even now upon this
subject ? The Holy Scriptures tell us, that out of the fullness of the heart the mouth
speaketh ; and hath not the mouth spoken and the heart betrayed its fullness upon
this very subject within a few short days past ?

[Here Mr. Benton read the following extract from Mr. Van Buren's speech in the
Senate December 29th :]

"The great departments of the Government were the legislative, executive, and
judicial. The latter is organized by the two former, and the influence of the respective
States in its oi'gauization is of course the same as it is in the other two. In the choice
of the Executive and in the popular branch of the legislature each State has a repre-
sentation proportioned to its representative numbers, with this exception, that in the
choice of the Executive an addition of two votes was given to each State, without
regard to its numbers or the amount of its contribution to the public Treasury. But
in this branch of the legislature the case is widely different. Here, in consequence of
the peculiarity of our condition at the time of the adoption of the Constitution, the
equitable principleof representation, founded on population and contribution, has been
entirely disregarded. Here each State, on the score of its sovereign character, has
equal weight. Aud what, he asked, was the relative importance of this branch in the

738

COUNTING THE ELECTORAL VOTE.

Government? He would not say it was that by which all the efficient power of the
Government was controlled, but he would say that but a slight consideration of the
Constitution was necessary to show that this branch did so more than any other.
With the single exception of originating revenue bills, its legislative powers were co-
extensive with the popular branch. No law could pass without the assent of the Sen-
ate. Almost all the important proceedings of the Executive are subject to its revis-
ion. All appointments require its approbation, unless its assent is first obtained to a
law providing a ditt'erent mode.

"The consent of two-thirds of this body is necessary to thevalidity of all treaties ;
and it has the sole power to try impeachments of all the high officers of the Govern-
ment, as well executive as judicial. In a branch of the Government possessing such
extensive powers, the small but patriotic State of Illinois, with a population of fifty-
live thousand, has a representation ecjual to that of Pennsylvania, with a population of
one million and fifty thousand. The five largest States in the Confederacy, viz, Ohio,
Pennsylvania, Virginia, North Carolina, and New York, with a populariouOf four mil-
lion eight hundred thousand, have a representation but equal to the five smallest
States, with a population of three hundred and fifty-three thousand. Nearly one-half
the nation, residing in the five largest States, has a representation but e([ual to the
one-tweuty-seventh part residing in the five smallest States. About one-half the whole
people, residing in five States, are represented here by ten voices, while the otlier half
are represented by thirty-four voices. The disproportion of the relative inlluence of
the several States, having reference to their population as a just basis of representa-
tion, cannot fail to strike every mind. The same inequality existed at the adoption of
the Constitution, but in a much less degree. Then, taking an average of the population
of the States, and considering those as small who do not come up to it, the large States
were in a majority ; now, by the admission of new States, with assent of the old, they
are in a minority. There were at that period eight large and five small States. Now,
by the same criterion, there would be fiund to be but ten large and fourteen small
States. Still this was all right; it was according to the compact into which all the
States had voluntarily entered; and he fervently hoped, for the peace and happiness
of the people of these States, that the day might be far distant when even a desire
should he entertained to alter it."

[Mr. B. also read the following extracts from Mr. McDuffie's speech in the House of
Representatives, January 16th :]

" Now," said Mr. McDuffie, " there is no political principle more undeniable, than that
the deliberate opinion and settled conviction of a majority of the people (in a gov-
ernment recognizing in them the right and the capacity of self-government) ought to
prevail over the will of the minority, even in relation to the Constitution. Why, then,
it may be asked, does that instrument require, for an amendment, the concurrence of
more than a majority ? I answer, for the very wisest of purposes; but not surely to
give the permanent ascendency to the opinion of the minority. This requirement was
intended for no other purpose than to prevent hasty and inconsiderate changes, and to
give time for reflection and deliberation. But when the sense of a decided majority
of the community is permanently and unalterably settled down in favor of any amend-
ment, the end of this provision is answered, and the minority oUiTht to yield. I will
not say that they have not the constitutional right, as well as power, to oppose the will
of the majority; but I contend that it is their moral duty, as well as their undoubted
interest, to yield, under such circumstances.

" The small States are the favorites of the Constitution, and even under the proposed
amendment would be eminently so. A very slight examination will make this appar-
ent. There are seven States in the Union which, together, contain a population smaller
than that of North Carolina. What is their relative power ? Tliey have fourteen
votes in the Senate, a co-ordinate branch of the legislature, while North Carolina has
but two! This, too, is a power of which they can never be deprived. And yet we are
tolfl that the small States are in danger of oppression !

" The seven States to which I have alluded are entitled to twenty-six electoral votes,
while North Carolina, with a larger population, is entitled to fifteen only. States
having but a single Representative are entitled to three electors for a population of
forty thousand, whereas the large States are entitled to but little more than one elector
for the same population."

Mr. B. did not read these extracts for the purpose of arguing against them. He
read them as a solemn warning to the small States, as proof that all their rights
were in danger, their equal representation upon this floor, and their existence in the
Constitution itself, which it is openly contended ought to be amended by a bare
majority of population, without any regard to the sovereignty of the States which
composed it. Let it not be said that the Constitution will protect the rights of the
small States. The Constitution itself nnxy be amended, not at this moment, while the
small States are the majority, but some twenty or thirty years hence, when there shall
be eighteen or twenty large States, and no more than eight or ten small ones. The
knowledge of this ultimate and approaching danger should warn the small States, at

APPENDIX. 739

tLis moment., to stand together, aud to resist this attack njion their riglits. Tliey
have already h)st one-half of the privilege seenred to them by the Coiistitntioii ot 1787.
By the Constitntion of that day the States iu the Honse of Representatives had the
privilege of choosing a President from the five highest on the list of candidates ; by the
amendment of \>-0^, they are reduced to a choice out of three. The range of selection
is narrowed one-half by this first amendment, and now, by a second amendment, it is
jiroposed to take away the right altogether. It is thus that the federative principle,
the weak principle of our Government, is sinking under the attacks of the repr. senta-
tive i)rinciple, by which it must eventually be overpowered and destroyed. The
amendment reported by the committee reposes upon a false principle. It is made to
depend u)ion tiie ])resent unequal population of the States; and the argument in sup-
port of it is, that it is unjust that Missouri, Illinois, Mississipiti, Alabama, Louisiana,
and Indiana, should have as much weight as New York, Pennsylvania, Virginia, Ohio,
North Carolina, and Massachusetts, iu the decision of the presidential election.

Now, the six States objected to as small contain 300,000 square miles, while the six
referred to as large contain but 24.5,000. The first six, upon every principle of relative
power, will be the most powerful in the lapse of some years. They have the greatest
number of square miles; they are capable of sustaining the heaviest population; they
are interior States, and their whole force will be disposable in time of war. Admit-
ting them to be correctly classed among small States at present on account of their
po])ulation, yet this classification is temporiiry and is altering itself every day, and it
is false policy to alter a permanent instrument, the Constitution of the Republic, for
a temporary evil which will correct itself in the course of a few years.

The amendment of the committee turns upon a false principle again in assuming as
probable what has not yet happened under the Constitution, and in all prol)ability
will not happen for aii age to come. It turns upon the probability of carrying the
presidential election to the House of Representatives for want of a majority of votes
in favor of any one candidate. This is a contingency which has not yet hapi)ened.
The case of Burr and Jefierson, so constantly qnoted, is not a case in point. It was
not for want of a majority that these gentlemen appeared before the House of Repie-
seutatives, but for waut of discriminati(ui, and that is now provided against by the
amendment to the Constitntion which requires the electors to vote separately for Pres-
ident and Vice-President. The Constitution has been in force thirtj'-six years ; nine
elections have taken place ; a majority of electoral votes has always been given to
some one candidate; and, in the case of Jefferson and Burr, a majority was given to
two candidates. No election has gone to the House of Repres(mtatives for want of a
majority, and it now depends upon the act of those States, half a dozen in nuudjcr,
which liave the will and the power to prevent it, whether the pending election or any
future one shall go there for that cause ; and, when we look to the increased sensibili-
ties of these States upon this point, the prospect of such an occurrence becomes a
most remote and improbable contingency.

Mr. B. was opposed to the committee's amendment, because it went to unsettle one
of the compromises upon which the Constitution reposes. He quoted a part of Mr.
Madison's speech in the Virginia convention, to prove the right in question to have
been a compromise between the great and small States:

"As to the eventual voting (for President) by States,'' said Mr. Madison, "it has my
approbatifui. The lesser States and some larger ones will be pleased by that mode.
The deputies from the small States argued, and there was some force in their reason-
ing, that when the people voted the large States evidently had the advantage, and,
without varying the mode, the interest of the small States might be neglected or
sacrificed. Here is a compromise." Everybody knows that without compromise the
Constitntion of 1787 could not have been framed ; and it is a fair inference that, unless
these compromises are preserved inviolate, the Constitution must perish. It was a
compromise l/Ctween the slaveholding and uon-slaveholding States to admit a qual-
ified representation of the black population; it was a compromise between the large
and small States which produced an equality of representation iu the Senate; and it
was a compromise between the same large and small States which gave the election of
President in the first trial to the people, and if they failed to nuike a choice, then
referred to the St.ates. Destroy either of these compromises, and one of the pillars is
taken away which now supports the edifice of the Constitntion,

I know that it is the fashion to cry down the House of Representatives, but there
are positive advantages in referring the election, u[)on the secoud trial, to that House.
In the first place, it is necessary to the safety and respectability of the small States that
they should stand for something in the presidential election. In a mere vote of num-
bers, they are lost. No President or candidate for the Presidency would court their
good-will, even by doing them justice. Their most meritorious citizens would apply in
vain for the humblest appointment. All the executive favors would flow into the
great States, iu reward of past services, or to induce new exertions. In the second
place, it imposes a salutary restraint upon the ambition and violence of the great
States. The House of Representatives stands before them in terrorem. They are

740 COUNTING THE ELECTORAL VOTE.

constantly admonished to act with moderation, good faith, and liarraony, by the dan-
ger of seeing the election slip out of their hands. It compels the electors, also, to vote
in good faith. They are to have but one trial. There is uo room for experimental vot-
ing ; no room for combinations ; no room for false runnings upon diiferent candidates.
It deranges any scheme of corruption by changing both the electors and the mode of
voting. It conforms to the will of the people; for the Representatives iu Congress are
now chosen with an eye to their contingent faculty of electors of President ; and care
is taken to elect those only who will obi',y the wishes of their constituents.

In addition to all these reasons, the House of Representatives is a safer depository of
the -elective privilege than any other body of equal numbers which either exists at
this time or can be created under the Constitution of the United States. Who com-
poses the House of Representatives? A^ed men, and men in the meridian of life who
have tilled the first otlices iu their owu States, or under the General Government,
whose integrity has been tested by a loui course of public service and of devotion to
the people's interest; young men, appearing above the political horizon, their bosoms
filled with noble aspiration, looking forward to the lirst honors of their country, and
looked to by their country as the future leaders of the republic. If it is said that
there may be some bad material in the House, I will ask for the body of equal num-
bers in which there is so little. Atid I will maintain that the House of Representa-
tives has ever been, now is, and while the republic lives it must continue to be, for
talent, for integrity, and for elevation of character, the first body of men of equal
numbers which either exists in our own or in any other country in the world. To my
mind, tlierefore, there is no ])Lice more safe for de[)osit ng the right of the Spates to
decide the presidential election than this Hi)uss is. Stdl this is a derail. The great
principle for which I contend is that after one trial by the people the nest shall be by
the States. The States may have the benefit of this principle in more ways than one.

Some gentlemen are in favor of remanding the election to the electoral colleges.
Much as I am opposed to that mode of proceeding, my objections would be half dim-
inished if, in this second trial, the electors were required to voie by States— the
electors of each State giving one vote. Still I would prefer the House of Representa-
tives, for the reasons already mentioned, and for another which had great weight with
the trainers of our Constitution. It is already seen, by looking to the powers of the
Senate, and to the powers of the House of Representatives, how much the former ex-
ceed the latter. The Senate have all powers which belong to the House, except the
faculty of originating money bills, and of preferring impeachments; but, even in
these exceptions, the power of the Senate is still predominant; for the money bill can-
not raise a dollar, nor the impeachment remove one delinquent from office, without
the consent of the Senate.

Besides a concurrent power in legislation, the Senate is clothed with the extraordi-
nary powers which, in monarchies, belong to the king, or to an hereditary body of no-
bles. In its power over the ratification of treaties, it controls the legislation of the
whole Union. It controls the President iu his strong arm, iu his power of appoint-
ment to office. It presides in some degree over the administration of justice, in its
])ower of appointment and removal of the Federal judges. It is the judge of the Pres-
ident himself^can try him for an imputed misdemeanor, and i)ronounce the forfeiture
of his office. To this a'lcumulation of powers is superadded a duration in office
longer than is enjoyed by any other officer of the State or national governments.

The I'ramers of the Constitution foresaw that, in the presence of a body thus consti-
tuted, the House of Representatives — the popular branch of the legislature and the
peculiar depository of the republican priuciide — would be in danger of dwindling into
comparative iusignificauce unless armed with some prerogative peculiar to itself.
Hence was conferred upon it the right to originate revenue bills, to institute im-
peachments, and to act as umpire in the last resort between the leading candidates for
the presitlential chair.

Mr. P. confirmed this view bj' reading a part of the sixty-seventh number of the
Federalist, in which it is stated expressly that, as a counterpoise to the extraordinary
p(jwers of the Senate and to secure the equilibrium of the House of Representatives,
the three prerogatives enumerated were conferred upon it, and the last particularly
relied upon :

'• The House of Representatives will be the umpire in all elections of the President
which do not unite the suffrages of a majority of the whole number of electors — a case
which it cannot be doubted will sometimes, if not fre<iuently, happen. The constant
possibility of the thing must be a fruitful source of infiuence to that body. The more
it is contemplated, the more important will appear this ultimate, this contingent
power, of deciding the competitions of the most illustrioirs citizens of the Union for
the first office in it. It would not, perhaps, be rash to predict that, as a mean of in-
fiuence, it will be found to outweigh all the peculiar attributes of the Senate."

U|ion this exposition, Mr. B. submitted it to the Senate to say whether it was not
highly objectionable to strip the House of Representatives of a power given to it as a

APPENDIX. 741

counterpoiso to the Senate, and particularly so for the Senate itself to commence this
woi'k of spoliation ?

It has been seen that every argument that can be urged in favor of taking from the
small States their eventual chance to act a part in the presidential election, may he car-
ried forward and urged with great force in favor of depriving them of their equal repre-
sentation in the Senate. Let it bo supposed, then, that the present attempt has suc-
ceeded ; what next? Why, an ojieii attack upon the constitution of the Senate.
Speakers of portentous ability, like the Senator from New York, [Mr. Van Buren,] and
the KeiU'esentative from South Carolina, [Mr. McDuffie,] whose sentiments have bi^en
already (fuoted, will disphiy the enormity of the principle which gives to the eighty
thousand inhabitants of Khode Island as many Senators as belong to the million and
a lialf of New York. Hundreds of presses and a thousand subaltern orators will re-
peat, that in a republic the majority ought to govern. All the powerful States will
adopt this princii)le, and eventually the representation of the Senate will be bottomed
upon population and not upon States. What, then, will be the condition of the re-
pnljlic ? Consolidation I

It is in vain to say that the States will still have their territorial limits, their governors
and local legislatures. Russia, and even Turkey, have their provinces, their governors,
and provincial governments. Onr Federal Gi)vernment wiU be changed from a feder-
ation of States into a republic "one and indivisible," in which the majority of num-
bers will decide every (juestion. Tbe two houses of Congress, like the council of five
hundred and the council of two hundred and fifty, will rest upon numbers, and the
Representatives from the most populous sections of the Union, being a majority in
both houses, will decide all questions to suit tbe interest of their own section. Could
the United States stand this ? All the books answer, no. The framers of the Consti-
tutn)n said, no. The experience of thirty-six years answers, no. The Missouri ques-
tion gives the same answer. And what would be the resulfif the tariff, now depend-
ing, could be regulated by either of the three great interests of agriculture, commerce,
or manufactures? We all profess an abhorrence of consolidation, but we disagree in
the definition. In my opinion the consolidation of our Federal Government would be
complete when a majority of mendjeis shall govern in both branches of the legislature.

The powerful States, the populous sections, the predominating interests, v\onld then
prevail ; the weak States, the less populous divisions, the inferior interests, would be
sacriticed. In opposing this state of things I am not pleading for myself, for my own
State, nor for the section i'rom which I come. I belong to the valley of the Mississippi;
great iu extent, indivisible in policy, capable of sustaining a hundred millions of peo-
j)le. Seclionally, I have nothing to fear from a consolidation of the Federal power;
as a lover of the Union, I fear everything. I fear for the; small States, and, in their
fate, for the Union itself. Not for the small States of the West, for they will be great,
but for the snmll States of the Atlantic board, part of the old thirteen, to whose heroic
etforts in the war of the Revolution— to whose confiding spirit in the convention of
1787, we are indebted for the privilege of sitting this day in consultation upon their
rijihts. Which are these small States ' They are Massachusetts, with 8,000 square
miles; New Hampshire, 10,000; Vermont, 10,000; Ruode Island, 1.3(30; Connecticut,
4,t;00; New Jersey, 7,000; Delaware, 2,000; Maryland, 11,000; Maine, 80,000; South
Carolina, 80,000. Let not these two last object to this classification.

They have but half the superficial content of the States of the first magnitude.
They are border States, and will have no disi)osable fur e in time of war. In spite of
their noble spirit, their ntellectual and moral worth, they are condemned by the inex-
orable voice of their boundary-lines to take their permanejit place in the class of the
small States. These are the States which are to sutler by yielding the election of Pres-
ident to tlie populous States, by giving to all the States a rejiresentation according to
population in the Senate ; in fine, by carrying intoefl'ect the principle that in the Fed-
eral (jovernment the majority of numbers shall decide every question. Under the op-
eration of that |)rinciple the confederation of the States would degenerate into an alli-
ance between the weak and the strouir, without any check in favorof the weak ; a sort
of alliance which, iu all ages and all countries, has been nothing but the realities of the
fabled alliance between the giant and the dwarf. Look to the Amphyctionic League,
composed of thirty membeis, yet only three known to history: Thebes, Sparia, and
Athens, each predominating by turns, and governing and chastising the weaker cities as
they pleased. The Germanic Confederation, consisting of three hundred members ; yet
the whole power usurped by nine electors, the small states summoned before the imperial
diet, placed under the ban of the empire, and their territories given up to pillage and mil-
itary occupation. The seven United Provinces, in which the province of Holland alone
decided upon peace and war, loans and taxes, and dragooned the inferior provinces
into ac(iuiescence. The Swiss Confederacy, the large cantons making war upon the
small ones on account of their religion, and calling in the dukes of Savoy to assist in
the chastisement. The framers of the Constitution had these examples before their
eyes, and we have had another, a real history of the giant and the dwarfs— the Cojifed-
erutiou of the Rhine, in which the petty princes of Germany, uniting with Napoleon

742 COUNTING THE ELECTOKAL VOTE.

the Great, to get their heads broliCo in every corner of Europe and to see their Lillipu-
tian territories ravaged by strange men from the confines of Asia. The principle that
the majority onght to govern, so correct when applied to the government of the re-
spective States, is false and ruinous when applied to the Federal Government of the
United States. The Union could not have been formed on that princijjle, nor could it
now exist under it if introduced. The federative principle yiehled all that can be
yielded in the convention of 17y7. To attack that principle now is, in my opinion, to
attack the existence of the small States and the continuance of the Union. Foi' one, I
should deem it my sacred duty to resist these att:ick-> iu any situation, but more
especially in this chamber, instituted for the express purpose of preserving to the small
States the remnants of sovereignty whicli were left to them by the convention of 1787.

The peculiar faculty of the American Senate is conservatism. It is formed upon the
principle of the Roman tribunate, to preserve, not plebiaus against patricians, but the
weak against the powerful States. Yes, Senators ; you are the tribunates of the States.
You are the barrier between the weak — the adamautine wall behind which the most
feeble States shall repose in safety, before which the most pi)werful shall beat in vain.
And will you act contrary to the principle of your institution ? Will you begin with
surrendering that which you are created to defend ? Will j-ou set the example of
destroying that which you were instituted to preserve? Will you subtract from the
streugtii of the weak and add to the power of the powerful; and this, too, in the face
of the fact that these powerful States refused to adopt the district system, because it
will lessen their capacity to dominate over their feeble neighbors? I trust that the
Senate will not act thus, and I think that the great States ought not to ask it. They
should remember that this Constitution was formed by States, each giving one vote ;
that a congress of States was then in existence, under the Articles of Confederation,
deciding every (luestion by States, each giving one vote. They should consider how
much was surrendered by the small States when they voluntarily relimiuished thi.'<
condition of equality and submitted to have all their rights and interests controlled by
the superior population of the great States in the House of Ile]ireseutatives, and to
have the National Executive subject to be elected by the same populatiou as often as
half a dozen powerful States could agree among themselves.

In addition to these sacrifices upon the altar of compromise, they should consider
how much more lias been taken by the natural tendency of the strong to encroach
upon the weak ; and they should ask themselves if it is riglit to unsettle the compro-
mises of the year 1787 ; to attack the privileges then left to the small States ; to assert
a princii>le which goes to the subversion of the Federal Government, and to promote
that system of consolidation which is wrapped up in tlie doctrine of giving the power ot
the Federal Government to those sections of the Union which have the majority of
populatiou? I can well conceive that it would be mortifying to Virginia, New York,
and Pennsylvania to see themselves balanced on a final vote for President by Missouri,
Illinois, and Mississippi; but they should rellect that the sting of their mortifica-
tion would be transitory, while the benefit of the Constitution is permanent. Mis-
souri, Illinois, and Mississippi — and I may add Indiana, Alabama, and Louisiana — are
rapidly advancing to a point where it will be no disparagement to the greatest States
to admit their equality.

In the mean time it would be impertinent in me, a Senator from the youngest State
in the Union, to offer advice to those which are <dd and powerful, but it may be use-
ful to remind them of the counsel given to them by the most eminent of their own citi-
zens, at a time when the good will of the small States was of more account than it seems
to be at present :

"A common government", with powers equal to its objects, is called for by the voice,
and still more loudly by the political situation of America. A government founded
on principles more consonant to the wishes of the larger States, is not likely to be
obtained from the smaller States. The only option, then, for the former lies between
the proposed government and a goveruuieut still more objectionable. Under this
alternative, the advice of prudence must be to embrace the lesser evil, aud, instead of in-
dulging a fruitless anticipation of the possible evils which may ensue, to contemplate
rather the advantageous consequences which may qualify the sacrifice." — Federalist,
No. G2.

Mr. B. concluded Avith an expression of his extreme gratitude for the indulgent
attention with which he had been heard by the Senate. He would not trespass loiiger
upon their patience by delivering anything in the form of recapitulation. He limited
himself to saying, that until the contrary shoulil be shown, he held the four proposi-
tions, with which he sat out, to be completely established.

APPENDIX. 743

DEBATE ON THE RULE TO SIT WITH CLOSED DOORS DURING THE BALLOT
FOR PRESIDENT BY THE HOUSE.

In the House of Representatives, January 26, 1825.

Mr. Wright, from the select committee appointed to prepare rules to be observed
in case the election of President? and Vice-President shall devolve on this House, made
the following 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 4th day of March next, if, on
counting the votes given in the several States, in the manner prescribed in the Consti-
tution of the United States, it sball appear that no person has received a majority of
the votes of all the electors of President and Vice-President, appointed 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 4th day of March,
1825, if the choice shall constitutionally devolve upon the House :

1. In the event of its appearing, on opening 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 appointed, 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 pro-
ceed, 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 without interruption by other busi-
ness until a President be chosen.

'S. The doors of the hall shall be closed during the balloting, except against members
of the Senate and the olBcers of the House ; and the galleries shall be cleared on re-
quest of the delegation of any one State.

4. From the commencement of the balloting until an election is made, no proposition
to adjouru shall be received, unless on the motion of one State, seconded by another
State ; and the (piestion 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 sball 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
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 them-
selves, 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 persons shall have a majority of
the whole number 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 pe-
titions ; and, as the name of each State 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 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 ;

Cue person from each State represented in the balloting shall be appointed by its
Representatives to tell oti" said ballots, but in case the Representatives fail to appoint
a teller, the Speaker shall appoiut ;

That said tellers shall divide into two sets as nearly equal in numlier 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 difierent sets of tellers the result shall be re-

47 X

744 COUNTING THE ELECTORAL VOTE.

ported to the House, and if the reports agree, the same shall be accepted as the true
Totes of States ; but if the reports disagree, the States shall proceed in the same man-
ner as before to a new ballot.

6. All questions arising after the balloting commences requiring the decisions ot
the House, which shall be decided by the House voting jjer capita, to be incidental
to the power 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 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 communicated to the Senate by message, and a
committee of three persons shall be appoiuted to inform the President of the United
States and inform the President-elect of said election.

The report was read and ordered to lie on the table.

Wednesday, February 2, 1825.

On motion of Mr. Wright, of Ohio, the House then resolved itself into a Committee of
the AVhole 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 separately. On the first rule some conversa-
tion took place between Mr. Bassett, of Virginia, and Mr. W^right, the chairman of
the select committee. No alteration, however, was made in the rule.

The second rule was then read, and no objections 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 mem-
bers of the Senate and the officers of the House ; and the galleries shall be cleared on
the request of the delegation of any one State.

Mr. Ingham, 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 (consist-
ing, in some instances, of a single individual) 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 measure involving our relations with foreign
nations, but a matter of a purely domestic character. Yet this rule enforces secrecy
in regard to the transaction, if required even by a single individual, and that in the
most obnoxious 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, thau to give au-
thority to the delegation of one State to have them cleared. He was at a loss to ac-
count for such a proposition. He supposed that there must be some special reason for
granting snch 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 moment ; 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 ex-
isted 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 clearing the galleries
altogether, without leaving it to the delegation of any State to require that it should
be doue. In giving his reasons in faA'or of this course, he wished it to be distinctly
understood that any remarks he might make had no reference whatever to the peculiar
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
resi^ousibility of his situation, and wished to assert the rights Avhich he conceived to
pertain to the members of this House at the present moment, while the nation 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 conducted in public ? In electing a President, the members of the House were

APPENDIX. 745

called to act, not as Eepreseutatives of the people, but as umpires ; to do that which
the people have tried to do and have not been able to accomplish. The people have
tried to electa President ; they have failed to do so. The House of Representatives
are then empowered to choose one for them. This power is not delegated to them by
their constitnents, but by the Constitution; and in exercising it thoy 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 in-
spect my decision between conflicting claims to the Presidency '? In ordinary cases he
granted that the people had a right to look to the acts of their Representatives and ex-
ercise a sort of inspection over them. Yet, even this was not always permitted to
them by the Constitution. It provides that, in certain cases, the public eye shall be
excluded, 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 apprehended as eudangering the free-
dom of debate. No such state of feeling existed now ; but it not only might exist,
and that in an alarming degree, but to such a degree as to become wholly irresistible.
If the principle shall once be established that the Representatives of this peoj)le,
standing on this floor to vote or to debate are improperly to be controlled, it is iu
those galleries that the object is to be effected. If ever popular tumult and a general
excitement of national feeling are to jeopardize the freedom and endanger the i>urity
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 mem-
bers 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 valuable hereafter.
He felt great deference, also, for the precedent that had been already established in
this respect. At the election of a President in 1801, this subject had been intrusted to
able hands, and, after full deliberation, they had thought it expedient to admit no
person as a spectator of the election but members of the Senate and ofhcera of this
House, and the election was so conducted.

Mr. Buchanan said he rose with ditlidence 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 situatiou of members of this
House in regard to the approachiug election. He considered the present to be a ques-
tion of great importance, and that its decision would establish a precedent which, in
future times, might have a powerful influence upon the interests of this 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, said Mr. Buchanan, have a right to be present and inspect all
the proceedings of their representatives, unless their own interest forbids it. In rela-
tion to our concerns with foreign governments, it may become necessary to close our
galleries. Our designs, in such cases, might be 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 iu
these cases, he at iiresent could recollect none which would justifj' the House in exclud-
ing the people.

Iu 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, emphatically, represent their majesty. We do not make a President for our-
selves 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. Tliat gentleman has alleged that we are called upon to elect a President,
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 f 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 iu which we are bound to obey their
will, this is peculiarly that one. To them we must bo answerable for the proper exer-
cise of this duty.

What are the consequences, said Mr. Buchanan, which will resvilt from closing the
doors of the gallery ? We shall impart to the election an air of mystery. We shall
give exercise to the imaginations of the multitude, in conjecturing what scenes are

746 COUNTING THE ELECTORAL VOTE.

acting within this halL Busy Rumor, with her hundred tongues, will circulate re-
ports 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 lis the precedent
which now exists on this subject. Mr. Buchanan said he revered the men of former
days, by whom this j)recedent was established. He had good reason, however, to be-
lieve that the intense excitement which existed at that time among the people, at the
seat of Government, was occasioned, 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 agitated.
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 probably 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
apprehension. Should we, however, be mistaken, where is the power of the Speaker?
Where that of the House ? We can then turn them out, and we shall then have a
sufdcient 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 tlae people of the United States and the members of this House. Mr. Bu-
chanan asked pardon for this expression, if it were considered too harsh.

Mr. Buchanan said he well knew his friend from Delaware was willing that all hia
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 importance, Mr. Buchanan said, is the pre-
cedent. 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
whetlier the galleries shall be opened or closed. But the days of darkness may, and,
unless we hIiuH (\sca])e the fate of all other republics, will come upon us. Corruption
may yet stalk al)n)ad 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 hereafter.

Mr. Buchanan concluded by observing that, whether we regard the precedent to be
set, the nature of our Government, our own character, 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 for clearing the galleries whenever the House thought proper. This was sulB-
cient. Why should a majority of all the members surrender this power to the delega-
tion of a single State ? He saw no reason. Why, asked Mr. Livermore, are gentlemen so
much alarmed ? He was persuaded that no more disorder was to be apprehended from
the gallery in conducting an election of President of the United States than in choos-
ing a ser"geant-at-arms for this House. For himself, he hated all mystery. He consid-
ered it a characteristic attendant of tyrannical governments, and he thought that the
proposal to conduct this election in secret was a proof that we were not yet quite di-
vested 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 whether the motion prevailed or
not ; and yet, perhaps, it might be well to consider the subject duly, as hereafter, pos-
sibly, the question might be of consequence. He did not see any particular benefit
arising from providing that the galleries should, at all events, be open. There could
be no debate when the House was ijroceeding 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 superintendence which the people might ex-
ercise 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, finding some difference of opinion in the committee upon the

APPENDIX. 747

former rule, bad snggestecl this modification. He was entirely willing the galleries
should be open ; and yet he was entirely willing to have them closed if any State de-
sired it. And particularly, as it would be very inconvenient to discuss and settle these
questions after the House bad 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 Delaware 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 individual.
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 indulge that request ; so much the rule provided, and no more. He repeated, how-
ever, 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 proceedings of the House upon this subject,
he should certainly favor it, because he was generally of opinion the atfairs of the Gov-
ernment 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 discharge 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 bad been solemnly decided the doors should be closed, except as to mem-
bers 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
viode of conductiug the hallotings 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
intelligence 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 excite-
ment 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 deter-
mination of which is now devolved on us by the Constitntion ; and perhaps, he said,
it would not be going too far to say that excitement might be feared now. Gentlemea
seemed to suppose that, by closing the doors, an injunction of secrecy was imposed 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 proposed 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 gal-
leries. It had been well observed by the gentleman from Massachusetts [Mr. Webster]
that all the proceedings relating to the election were to be without debate ; that, be-
sides the ballotings, all were conducted by motion, second, and decision. 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 oper-
ation of dropping the ballots 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 Pennsylvania, [Mr.
Ingham,] or any other gentleman on this floor; but I cannot admit that any such
l)roposition 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 occasions. No ; they are at home,
attending to their farms, their merchandise, their various other avocations ; they will
not assemble in the galleries, or be hereafter affected by the precedent you establish.
It will be the artful, intriguing, desiguing 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 accommodate.

I hope, sir, the amendment will not prevail, and that we shall not, against the wish
of any one State, keeii the galleries open for the exertion of undue influence, or to i>lace
members in a situation where any can sni)pose they are unduly operated on.

Mr. Ross, of Oliio, 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. The demand of a single State, not even seconded by
another State, was to be of itself enough to compel the House to clear the galleries.
Why was this rule to be adopted ? The only reasons he had heard advanced were,
that the House must go into this conclave from a fear of interruption — interruption,
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 gal-

748 COUNTING THE ELECTORAL VOTE.

lery would be such as were not eutitlecl to any consideration. This, according to his
understanding, was tbe sum and substance of the reasons adduced in favor of tlie rule.
But, for himself, he believed 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 disturbance now than then.

Whether gentlemen sat here as iimpires and arbitrators, or as the representatives
and organs of the people, was a question on wliicli 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 capacity, be 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 gentle-
men 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 f All seemed to agree that no dan-
gerous 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 independence 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 be given viva voce. He regretted that there was any hallot at
all on the question, and was utterly opposed to all closing of doors.

Mr. Hamilton, of South Carolina, observed that he felt desirous of detaining the
committee a few moments in ofiteriug 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 elec-
tion 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 misfortune 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 sanc-
tions 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 dis-
posed 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 gentle-
man from Ohio in wishing that, in spreading all our acts and doings before the public
eye during the approaching contest, we could likewise subject each delegate to the
direct responsibility of a viva-voce sulFrage. This being impossible, he was disposed to
consider the assembly of such citizens as thought i)roper to come into our galleries as
curing, in a slight degree, the defect of which he had spoken in the mode of election.
They would have a contemiiorary opportunity 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 suspicious which naturally belong to mystery
and concealment.

The gentleman from Delaware, however, meets this subject at its threshold by ask-
ing " what right any man has to go into the galleries 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 theory of this democracy, it is infinitely more expe-
dient that he should witness the one cei-emony than the other. Mr. Hamilton said that
he thought the popular eye would have a salutary iutiuence in repressing any indeco-
rum 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 galleries. They are
fortunately exempt from many of those strong biases of favor and antix>athy which
may lamentably exert an influence within this bar.

The gentleman from Delaware does uot affirm 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 profligate violence arrives, the atrocity of which cannot be put down
by the force of public opinion — when a corps of such desparadoes 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 cherish here will
be but a solemn mockery. When a few huudred persons, scarcely equal to our own
numbers convened in those seats, can successfully exercise acts of intimidation on the
representatives of ten or twenty million people to an absolute reversal of their sover-
eign will, it may be well imagined that the energy of the Government and public vir-
tue 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 legislate in the conclave of a
Turkish divan. The truth is, that many subjects of ordinary discussion and common
legislation are better calculated 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 addressd by the arts and electricity of popular

APPENDIX. 749

eloquence. In the latter, onr bnsiness is confined to one act, that is, in placing for
ourselyes, or having it placed for us, a small striji of iiaper on which the name of an
individual shall be vrritten. The ceremony precludes the possibility of debate, and
almost the only motion which can be x^ut 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 itself, fewer cir-
cumstances calculated to provoke popular violence and commotion.

Besides, said Mr. Hamilton, I think the very habits of our people forbid any ap-
prehensions, either present or future ; and, however little consoling 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 believed, were as exempt from the character of cor-
rupt 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 population. For myself, said Mr. Hamilton, satisfied that no prece-
dent we shall now establish will be binding, and that posterity w^ill have the same
right that we have to take cai-e of themselves, and being equally satisfied that the
ordinary power possessed by the Speaker to clear the galleries in the event of occa-
sional disorder, meets all the exigencies of the present crisis, I hope that every citizen
of this land, let him come from where he will, may be allowed to witness an event in
which he has precisel3^ as great an interest as we have ourselves, more particularly
when presence can in no degree impair a sound, efBcieut 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. McLaue.] This gentleman, in a
very manly declaration of the course which he intended to pursue in the approaching
election, has thought proper, as furuisliiug 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 degree 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 be pardoned for venturing to express my own.
The first obligation which a human being owes is to his own conscience. If this mon-
itor tells us that a candidate for offlce 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 par-
ticular people we represent here, we are bound to surrender our mere personal prefer-
ences and prejudices, and to endeavor to carry into eflect their honest, reasonable
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
be might almost say obedience) to their obvious wishes, by the mere circumstance of
our being organized into States for this exclusive purpose, is at once to sap those great
foundations of responsibility and control on which our entire 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 reasonable and honest jiur-
poses 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 ISOl, 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. Hamilton]
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 pro-
posed exclusion from the galleries were those who had most strenuously supported the
alien and sedition law. He did not make this allusion for the purpose of throwing a
firebrand into the House, but he appealed to it as an historical fact.

In conclusion, Mr. Hamilton said that he really hoped that no groundless apprehen-
sions 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 purpose of entering at large into the debate, but
merely to correct some misapprehensions which appeared to exist in relation to the

750 COUNTING THE ELECTORAL VOTE.

remarks which he had first submitted. It was certainly far from his intention either
to stir up old embers, or to brighten any existing flame. Far less was it his intention
to advocate any rnle which had for its object the concealment of his own course of
conduct in regard to the election 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 eifect it — he stood here with no colleagues. The vote he was
about to give must be jiublicly known, and, whenever it was given, it should be given
with a single eye to the interests of our common country. Could there, indeed, be any
concealment in the matter? Did not every member of this House know how his own
colleagues 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
voce 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 prescribed.
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 exeition 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 gentleman who knew anything of history
could need any arguments to convince him how tremendous such influence as that
which he deprecated 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 intimi-
dating 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 justice to himself and to his motives on this occasion. 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 con-
scientious 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 gentleman 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 clioose 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. McLaue said he had referred to the precedent of 1801 as bearing
upon the present case. In answer to the argument drawn from it, the gentleman from
South Carolina had denied any weight to the precedent, because it was derived from
the administration of the Government by the federal party. Mr. McLane expressed
his regret that anything should have fallen from that gentleman 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 with 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 ad sedition laws. True, it is ; and
it is the ijrecedent of a party which organized this Government — which put it in
motion after building it up, and established the policy which, wisely cherished ; had
made this nation, at this day, prosperous at home and respected abroad. It is a pre-
cedent 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 security at home and protection abroad. After copying from that party all these

APPENDIX. 751

measures of uational gloi-y and prosperity, why will not the honorable gentleman re-
ceive 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 calculated to subserve them, or it has been folly
to adopt them. In the case now brought into pi-ecedent 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 doue of other precedents set by them.

Mr. Floyd, of Virginia, said he had no disposition to say much on this subject, but,
holding the opinion which he did of the most deliberate character, that, not only on
this subject 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 i^recedeut now to be goverjied by hereafter
in a state of excitement. Is there any excitement now ? The opinion of every mem-
ber of the House in regard to the presidential election is made up decidedly and dis-
tinctly, and can be expressed in open sitting as well, and no doubt as honestly, 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 necessary.

In reply to the argument that but a few persons, 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 gallery? Let them indulge their curi-
osity in this particular ; he saw no objection to it. Nor could he agree with the gentle-
man from Ohio that intriguers would be always up in the galleries — for that was not the
place for them. The gentleman had also reference to a late occasion, not more than a
year ago, growing out of this very election, in which there were some symptoms of dis-
satisfaction 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
referred.] 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 excite-
ment of which, probably, in this House, and in the galleries, and out of the House,
never was, and never can be, exceeded. I allude to the Missouri question — during the
arduous and protracted discussions of which no disturbance proceeded from the galle-
ries. I am not, therefore, for setting a precedent now, in anticipation of what has never
yet happened. If, sir, the Rein'esentatives of the people, in their capacity of individu-
als, or acting by States, are capable of being operated upon by disorders in the galleries,
it is high time for us to go home. But I apprehend no disturbance. In all the trying
circumstances of the Missouri question, as respectful 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 without any trouble from the galleries, can we not also elect a Presi-
dent ? I would not suffer the belief to go abroad among the people, from overprecau-
tions, that we cannot. It has been sometimes said, in reference to the movements of
this Government, that the eye of Europe is upon ns.

Now, Mr. Floyd said, he would not, in the eye of this people, or of Europe, have this
House look like the Conclave of Cardinals, the Council of Teu at Venice, or even the
Star Chamber of England. He would have the election of a President as public as pos-
sible, and let all the people and all the world see all that is done. There would not,
perhaps, be much tdfcee ; the ballot-box would be placed on the Clerk's table, he pre-
sumed, 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 pos-
sible of it ; for the occurrence of the disturbance in the galleries of the legislative body
argued as little in favor of the body which did not suppress and punish ibhe authors of
it, as of those who disgraced themselves by making it. As he could not see any rea-
son for secrecy in conducting the affairs of Government generally, he was not willing
to sanction it in this instance. If the Government was, as the gentleman from Dela-
ware has suggested, strong enough for the purpose of security at home aud protection
abroad, it had nothing to apprehend 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

752 COUNTING THE ELECTORAL VOTE.

South Carolina should have alluded to the old federal party. He had no doubt that in
everything the federal party had dorfe, not involving its construction of the Constitu-
tion, things were as well done as they are now. The error of that party was in not
apportioning its legislation 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 con-
stitutional 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
undertook 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 administration carried the provision
into elfect, 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 seven ty-four-guu ship, built under an
act exjjressly providing for such vessels, which is pierced to carry a hundred and two
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 poiut, also, the
gentleman from Delaware was somewhat defective in his statement; the federal ad-
ministration did raise an army ; but they also disbanded it. If that administration was
to be reproached for anything beyond an erroneous construction of the Constitution, it
was merely for the extent of their expenditure, &c., and in that extent the latter days
of this halcyon administration 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 aifairs of Goverumout, 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
reply to the gentleman from Delaware, if it was merely for thejpurpose of assuring him
that, in the allusion which he had made to the alien and sedition law, that it was
neither his intention or desire to arouse from their moldering 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 frifends he had on earth) which on a variety of occasions
had rendered services of signal and inestimable value to the country. Bat he would
put it to the candor of the gentleman himself to say, when he urged a measure for our
adoption, on the mere ground of authority, whether it was not admissible for him to
show that authority, according to the popular understanding of the country, came in a
rather questionable shape.

Mr. Hamilton said that he could not deny (for it would be unjust for him to do so)
that the federal party (tlie very party which passed the alien aud sedition law) had
contributed to the formation of those great and valuable institutions to which the gen-
tleman had referred. But he believed that they were, most of them, the work of joint
counsels, and a confederate patriotism, when parties scarcely had a controlling influ-
ence on public measures ; and while he admitted that several distinguished members
of the federal party had left a large debt on our gratitude, he could not be unmindful
of what such men as Jefterson, Madison, and Gallatin had done, in giving efficiency and
popularity to the form of our Government, by fixing the principles of a wise, economi-
cal, and prudent administration. He thought it, however, not a little caustic and un-
kind in the gentleman from Delaware to appropriate all that had been done for the
country as the trophies of his party ; if, however, these were consolations furnished
after the loss of power, he surely would not deprive his friend of their enjoyment. But,
after all, he had risen merely and distinctly to disclaim any intention to wound the
feelings of a single gentleman on that floor, by an allusion whiclJibe 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 occa-
sion. He thought that the observations of the gentleman 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 closing 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 in-
junction of secrecy, aud whatever was done within would almost immediately be
known without. Tlaere was then 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. Mercer 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.

APPENDIX. 753

Mercer made some remarks, which, from his position in the House, the reporter had
but imperfectly heard.

Mr. Weisster said he was afraid that an observation by the honorable member from
Ohio, apparently made iu alkisiou to his remarks, might lead to misapprehension. He
had not intimated that the gallery might he filled by persons not entitled to consider-
ation ; no such thing. He only spoke of its size, and then only in consequence of the
argument that the jteople of the United States might from the galleries superintend
the votes of their Representatives. Superintend, he believed, was the word. His
honorable friend from Virginia [Mr, Floyd] seemed, iu like manner, to have misap-
prehended 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
conclave or as kept secret from the people. The Journal would be publiohed daily,
as usual. There would be no injunction of secrecy. It was a mere question about the
oi'derly and decorous proceedings — the police, as it were — of the House. As to the sap-
position 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 williug, every member
was williug, that his vote should be known to everybody. He had known questions
which he thought as important 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,
&c., 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 immediately elect a President. On
the former occasion the rule was that the House should proceed, without interruption
from other business 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, iu fact, quietly sleeping in their beds while the House, according to the
Journal and the rule, was all the time sitting. The vote to postpone the balloting
from time to time was on that occasion taken by States. The committee had thought
liroper 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 waj*. He saw no question of principle
in it. It was a question of expediency; and he remained of opinion that the rule
prescribed a lit course, upon the whole, to be followed. He certainly was not likely
to request the gallery to bo cleared ; but if any gentleman or gentlemen 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 inconveniences and
embarrassments if this question were to be decided, and should arise, after the House
had commenced the proceeding, when it must act by States and without debate. To
prevent such possible inconvenience and embarrassment was one object of the rule.

Mr. Wkight said that before the (juestion was taken he wished to correct the misap-
prehension of the gentleman from South Carolina [Mr. Hamilton] as to the remarks
he formerly 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 profiigate and worthless people of this Dis-
trict 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 people of this District or
city ; and if I did, I never could have uttered sentiments so entirely 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 lor the exertion of any influence, however improper and desperate, to efl'ect their
object. In this, sir, the people of this city or District were in no way implicated, 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 theater of their operations. No,
sir, not altogether. I concur with the gentleman iu part ; but when they have exerted
their influence out-of-doors, and accomplished all within their power there, they will
then take i)ossession of the galleries, to observe its effect and operation 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 charac-
ter, and proceed as the representatives of States, acting only as States; and I can see

754 COUNTING THE ELECTORAL VOTE,

no danger in giving to the representatives of one sovereignty the power to clear the
galleries. It is but a mark of respect to him, and, in my opinion, it is peculiarly lit
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 in-
tended to vote, he was desirous of giving the subject some discussion, which the late-
ness 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 7L So the
committee rose, and obtained leave to sit again.

In House of Eepresentatives,

February 3, 1825.
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 election of a President of the United States.
The question recurring from yesterday on the motion 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. DuFFiE rose and addressed the House as follows :

Mr. Speaker, if I could agree with the honorable member from Massachusetts [Mr.
Webster] that this is a proposition of inconsiderable 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 moment ; 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 correctly told by the gentleman from Delaware [Mr. McLane] 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 noic, not in reference to existing circumstances— not with a view to
obviate any anticipated disturbances in the gallery during 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 objec-
tion 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 imme-
diate 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 tiiem 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 tranquillity and
safety of their own deliberations? If in any future emergency there should be indi-
cations that our successors will not be permitted to exercise the most unbiased freedom
of deliberation in performing the important function of electing a President, will the
precedent we are called upon to establish benecessary to enable them to guard against
the danger ? Will 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 appreciated 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 manfully with a distinct
avowal of the principles upon which he rests the defense of the proposition to clear
the galleries. We 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. McLa^'e here rose, by leave, to explain. If, said he, I understand the gentle-
man as referring to any remark made by me, he has certainly misapprehended my ar-
gument. I disclaim 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 argument for which I contended was this : that the immediate
constituents of a member of Congress have no right to instruct him in relation to his
vote in the election of a President; that he is wholly independent of his constituents
in giving that vote, further than the responsibility which a high-minded and consci-
entious man feels in discharging a solemn duty devolved upon him, and his ultimate
responsibility. I freely admitted that the will of the majority of the people of the

APPENDIX. 755

United States was entitled to great resiJect, not to be easily put by, but not of impera-
tive authority, on this question.]

Mr. McDuFFiE resumed. I gave way, with great pleasure, to allow the gentleman
from Delaware an opportunity of explaining, but I do not see that his explauation has
materially varied the doctrines I have ascribed to him. It is certain, however, that I
have not misrepresented the argument used by that gentleman yesterday, for I have
before me his very words, taken down as he uttered them, to which I now call the
attention of the committee. '' We are called upon," said he, " to act here, on voting
for a President, not as the representatives of the people." " We are not responsible to
the people ;" and he asked, " Who has a right to come here and superintend or inspect
our proceedings V These are the precise words used by the gentleman from Dela-
ware ; 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 people, and under no obligation to regard their will, however solemnly expressed
and certainly ascertained. What would be the impression carried down to future
times by the adoption of this rule under the existing circumstances ? If the question
had been taken without argument, and the rule adopted, various 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 principles 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 principles which I am sure this body would
never intentionally sanction. Are we not bound, therefore, by the highest considera-
tions 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 in-
quire into the pernicious uses to which this rule maybe applied as a precedent ; the
only view in which its advocates regard it as of any importance. Whatever confi-
dence 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 motives, such as would certaiuly expose them
to the execrations of an indiguant people, how would they proceed ? Their first step
would be to close the galleries, and to exclude the public eye from an immediate view
of their proceedings. 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 au injunction of secrecy. Nor would the temptation 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 questions incidental to the election. There
are six or seven States represented here, upon an average, by a little more than a
member each, and thirty or forty members, representing a majority of States, could, by
co-operation, decide any question. And thus would you j)lace it in the power of a
small and corrupt minority to screen their conduct forever from the view of those to
whom they are responsible. If, as we have been told, we are to establish 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 consummate their
corrupt and nefarious purposes.

Let me now solicit the serious attention of the committee to the extraordinary doc-
trine 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 1
Do we cease to be their Representatives when we resolve ourselves 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 char-
acter of independent judges, acting for ourselves and not for the people? I will at-
tempt to establish the negative of these questions. There are many of our public
men who stand high in the estimation of the country, and who have made a distin-
guished 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 constitu-
ents, however ascertained. A signal instance of the practical recognition of this prin-
ciple was exhibited some six or eight years ago, in relation to the celebrated compen-
sation law. That measure, by which the members of Congress provided for the in-
crease of their own pay, produced a degree of popular excitement and dissatisfaction
which no question of the same apparent magnitude had ever produced before. Aud
what was the consequence ? The same Congress at the very next session, almost be-
fore the members were warm in their seats, took stops to repeal the obnoxious 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 between the relation we bear to our constitu-

756 COUNTING THE ELECTORAL VOTE.

ents in discbargiug the ordinary fanctions of legislation and that which w-e bear to
them in performing the extraordinary electoral function 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 suppress it) that, in matters of general legis-
lation, the representative is not absolutely bound by the will of his constituents, be-
cause he is bound by the still higher and paramount obligation of the Constitution
itself. By that instrument " all legislative power is vested in Congress." Now what
is the legislative power ? What does the term " legislation " necessarily involve ?
Inquiry, investigation, argument, deliberation, 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 investi-
gate, to argue, and to deliberate, the laws we pass should, of course, be tbe result of
these mental operations. But what is the nature of the trust we are about to iier-
form -with closed doors, nnder the idea that we are under no responsibility at all to
the people for the manner in which we discharge it? Is it a power which, like that
of legislation, the Constitution supposes the jieople 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 capa-
ble of making lawsj 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 pri-
mary effort to make a choice is made by the people.

This, then, is 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 indicated 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 excite-
ment. So that the will of the people on this subject comes to us consecrated and en-
forced by the Constitution itself. What, then, is the argument 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 incapable of performing; and yet, in the perform-
ance 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 sutyect to any responsibility for the manner in which we treat it.
Never was there a more paradoxical argument advanced in a grave deliberation.
What does it amount to s 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 Constitu-
tion. 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 legislation on the general concerns of the republic ? A single
glance at the subject will satisfy any one who comprehends the terms of the proposi-
tion that acts of legislation cannot, in the nature of things, be performed by a multi-
tude 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 ; be-
cause 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, delibei'ation, and
wisdom in the ballot-box of his own vicinity than he would if all the j)eople 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 experience 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 cor-
rect judgment of the peculiar qualifications demanded by any emergency or required
for any office. Look into the history of those republics that iiave gone before us.
Where do you find, illustrating either the civil or military departments of the liation,
statesmen or generals of more elevated characters and splendid endowments than
those that aie elected even by the mild democracy of Athens or the conflicting com-
pound of aristocracy and democracy that swayed the destinies of Rome ? All the dis-
tinguished patriots and statesmen who reflected so much glory upon those ages and
left such noble examples to re-animate 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

APPENDIX. 757

people are peculiarly qualified to perform, it is, by a sort of iustiuctive perception,
which seems almost to rise above reasou, the selection of men best calculated to repre-
sent them in important political stations. If public men are distiuf^uished by the as-
cendency of their talents, the elevation of their characters, or by disinterested devo-
tion 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 impression.
They have no selfish purposes, no ambitious aspirations, no secret and sinister designs
to prevent or pervert the free and impartial exercise of their judgments. It is in
the nature of things impossible thatthey 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 pros-
perity ; and what other possible object can they have in electing a President? After
all, the quality most essential in the election of that great officer, 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 distinguishes the election of President by this
House from an act of legislation, and shows that the obligation which the popular will
imposes upon the representative should be much stronger in the former case than in
the latter. Jn the ordinary case of legislation, we are, in most instances, called upon
to act in emergencies of sudden and unexpected occurrence. The current of events is
in a perpetual fluctuation, circumstances are continually presenting themselves in new
combinations, which no one could anticipate, and which must, nevertheless, constitute
the basis of legislation. For example, before we came here none of us knew that we
should be called upon to give a vote respecting the Cumberland Road, the Delaware
and Chesapeake Canal, or the suppression of piracy. Topics like these are continually
springing np, which we must decide, before they have even been a subject of delibera-
tion among the people. But what is the nature of that question which we shall be
called upon to decide on Wednesday next f 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, hy the Constitution ; and has been, for the last four years, fully
and freely discussed before the people, with an immediate view to the exercise of the
highest power and most sacred privilege they possess — 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 ua, 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 Constitution 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 illustrate 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 deduce
from it, if he can. Suppose that one of the candidates should receive one hundred
and thirty electoral votes ; the majority requisite to a choice being one hundred and
thirty-one— is that candidate chosen President? You say assuredly not. Why is he
not chosen ? Because he has not conclusive evidence that a majority of the peoiile of
the United States prefer him to any other candidate. Even the largest plurality, short
of a majority, does not complete the election. For what iiurpose, then, is it sent here ?
That we may elect a mau who unites only a small minority of the people of the Uuited
States in his favor ? This would be absurd. The reason why the election devolves
npon us demonstrates the object for which it is sent here. It devolves upon us, simply
because the Constitution will not place the scepter of power in the hands of any man
who is not preferred to another, by a majority of the people; and therefore, 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 preferred by a majority of the people.

The doctrine of tlie gentleman from Delaware, therefore, is in direct violation of the
very principle of the Constitution which imposes upon us the duty of electing a Presi-
dent. There is yet another reason which operates with great force on my mind, in
favor of considering the members of this House the mere organs of the popular will on
this ciuestion. It is this : If, in the discharge of our legislative duty, we pass a law
whicii 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 ofiending represent-
atives, 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
motives, 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 unfaithful repre-
se tatives from their service. Though the example might operate as a terror to future
transgressors, yet the work of corruption would still remain, and the administration,

758 COUNTING THE ELECTORAL VOTE.

though detested 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 rep-
resentative.

There is another view of the subject, involving 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 co-operate in the passage of a law in which my constituents and
myself are equally interested; if I discharge that duty according to my own best abil-
ity 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 suspects me of dishonor. But what must
be the feelings of every high-minded and honorable man, when called upon to jierform
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 disinterested as patriotism itself, yet should he act in opposition to the
will of his constituents, to what ungenerous imputations must he not unavoidably
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 scorn, 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 consciousness 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 circumstances, 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
constituents as our guide, we shall come to the discharge of the imiiortant 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 prefer-
ence, and we shall act iiuder the cheering and consolatory conviction that even malig-
nity cannot insinuate that any secret hope or latent expectation of reward has induced
us to disi'egard the will and sacrifice the interests of our constituents. Sir, I do sol-
emnly 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 princi-
ples or under circumstances that would expose me to such imputations, I would resign
my seat and abaudon public life forever, rather than put it in the power of malice to
assail my reputation 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 Constitu-
tion ; 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 of-
fice without respect to the opinions or wishes of the people. Sir, the first qualifica-
tion of the chief magistrate of a republic is the confidence of the people; and no man
■who has not that confidence can be either entitled or qualified 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 opposed by the de-
liberate will of four-fifths of the people. Would we have a right to elect him ? O,
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 1 Is it consistent with our duty, as representatives of the people ?
Gentlemen may talk as much as they iilease about our prerogative as "independent
judges," and utter specious and imposing dissertations upon the rights of conscience;
but if we elect a President in direct contradiction to the known will of the people,
what will be the inevitable consequence? You clothe him with the emblems of power,
without the substance ; you impose upon him the highest of all responsibilities, with-
out the power of fulfilling the obligations growing out of the responsibility. In a
word, sir, you put the scepter 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 connected with this subject.

If the people of the United States had never been called upon to examine this ques-
tion 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 acquiesce, although their will should be defeated. But when the

APPENDIX. 750

Constitution bns niaclo it their right and their duty to examine the question and ex-
))re.ss tlieir will upon it, and when they see tliat will defeated by hnruan agency, the,
ugeney too of their own representatives, is it in the nature of things tliat they should
not feel d('e[)ly indignant at the authors of so ghuing an outrage upon their most
pacred right.s? Is it to he expected that they would calmly and quietly submit when
their constitutional will has been contemned by their representatives? Are they,
indeed, the mere stocks and stones which such insensibility would imply ? Sir, I sin-
cerely hone, as I coutidently believe, they aro not. It would be a fearfid omen if they
were It would go far to prove what the arguments of the gentleman from Delaware
seeui to imply, thai they are incapable of exercising this high attribute of self-gov-
ernment. But the su{>position is a libel upon the people. If you were to elect a Pres-
ident upon the princii)les an(l under the circumstances I have supposed, you would
elevate him only to be a more conspicuous object of public reprobation ; a nuserable
eflTlgy of power; a common target, at which a high-minded peojde would level their
just iddignation. Sir, a lofty and generous ambition would disdaiu to accept power
under such circumstances.

I presume I shall not expose myself to the imputation of flattering the people of the
United States (and God knows I have never been a liatterer, either of the people or
their rulers) when I ascribe to them as much virtue and intelligence as has ever fallen
to the lot of any people on earth ; nor shall I be considered as advancing an extraor-
dinary proi)osition when I aftirm that our Oovernmeut is constructed, and ought to be
administered, with as much regard to the will of the people as that of Great Britain ;
or, to iiut a clear case, that of France iu the days of the Emperor Napoleon. Yet, in
neither of these governments were the princijdesof 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 nnin is changed, will they ever bo. As resjtects Great Britain, where time and expe-
rience have afljusted the operation of the j)olitical system, certain princii>li's recogniz-
ing the controlling inliuence of ])opuIar opinion have been so long settled by the prac-
tice of the executive government that they are now considered fundamental. No ad-
ministration ever thinks of retaining power with a majority of the people against them.
How often have we seen the King, in obedience to the voice of the nation, discard from
his ser\ice minislers iu whom he still rejjosed the most undiminished contidence, and
select others, not in conformity with the dictates of his own " independent judgment,"'
but in compliance with the will of the people! Their contidence, and not his, is the
point upon which the existence of an administration depends.

Sir, there has never been a minister in England, not excepting the late Lord Castle-
reagh, who would have nerve enough to take the seals of ottice upon the principles
maintained by the gentleman from Delaware. If, then, in a country where the an-
thoiity of the executive government, in addition to its mighty patronage, is invested
with the sanctity which naturally results from its hereditary character it is practically
demonstrated by the exjierience of a century that no administration can maintain
itself against the will of the nation, how despera e would be the experiment of elect-
ing the I'resident against the popular will in this country, where the people are more
generally intelligent, the Government more popular iu its organization, and the exec-
utive department destitute of the adventitious intluence which belongs to a heredi-
tary umnarcliy! Even Bonaparte himself, when supported by two hundred thousaud
bayonets and wielding the whole military power of France, was compelled at all
times to acknowledge the supremacy of the national will. Sncli was his own declara-
tion after he had fallen from power, when reviving the retrospect of his eventful life
with the eye rather of a philosopher than a mouarch. If this mighty sovereign 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 republican Ptesident! Sir, a President elected upon such principles would be an
object rather to be despised thau 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 au imposing, but, in my opinion, deceptive
argument urged by the gentleman from Delaware. He asks, if we are bound to obey
the will of our constituents, how can w^e ever make an election, since that obligatiou'
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 tha
mere existence of such ditficulties would absolve us from any duty, there would be au
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, whatever it is, that induces a member here
to vote for a particular candidate, imposes upon him a moral obligatiou to vote for
that candidate. I say we should vote in conformity with the will of our coiiftitvents.

The gentlemau says ho should vote iu couformity with the dictates of conscience.

48 X

760 COUNTING THE ELECTORAL VOTE.

There is my principle, nnd here is his. They are of etjual oblioatioii. Is it not evi-
dent, therefore, tliat hotli wouhl ecpially produce the difficulty under consideration?
If we adhere, without departure, to the candidate selected upon either principle,
there can he no election. But, sir, the ditHculty is imaginary. The phiin and practi-
cal rule is to endeavor, if possible, to carry into eflect Ihe will of our constirncnts.

We must make this ett'ort hcniestly, without any skulkinj;; behind pretexts or forms.
If it be found that their favorite cannot prevail; that the candidate who received
their electoral vote utiites but a small minority of the people of the United States in
bis 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 irs. If we cannot succeed in electing their hrst choice, we should
endeavor to elect the persDu next in their confidence. Ey this process the iinal con-
trol wnll be found where it ought to be, in the general voice of the peoi)le of the
United States.

I find myself called npoji to do— what ? Not to elect a President, but to complete an
election which the peojjle have left in an inchoate state, merely because they cannot
meet together 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 peojile. The
principles in which it originated are not changed l)y the accidental circumstances
which have cast npon us the duty of adding the fiiiishing 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 Constitution, 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 ])r()duced
this magical change in the principles which regulate this great national 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 priuniry object of the Constitution
to elevate to the executive chair the man wlio should be the choice of a majoiity of
the people, that does not cease to be the object of the Constitution when the election
devolves ujiou this House. The election of a President must bo regarded as a con-
tinued operation, carried on upon the same principles throughout. It would be a mis-
erable and incongruous piece of patchwork to commence with one set of principles
and end with another.

But, says the gentleman from Delaware, the power we exercise in electing a Presi-
dent is not conferred upon us l)y the people, but by the Constitution. Were I to take
this proposition simjdy 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 devolve
npon this House by any act of the people expressive of their wish that it should come
here, but by a mere contingency, for which, as it must unavoidably occur sometimes,
the Constitution has made provision. But how does this strengthen the gentleman's
argument? Are we to be told that, because it is the *' necessity and not the will" of
the people that "consents" to our having anvthing 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 any-
thing I could select to illustrate the sincerity of my attachment to the principles I
have avowed. The Constitution, providing for another contingency, declares that if
this House fails to elect a President, the duties and powers of that office shall devolve
upon the Vice-President. Now if individual preference, without regard to the public
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 peo-
ple for the office of Vice-President.

But, sir, if, under the influence of this feeling, I were to give my vote in this House
for the indirect purpose of defeating the election and tlirowing upon the Vice-Pres dent
elect jjowers which the people never intended to coiif.'r, though my vote and my mo-
tive should be concealed from every human eye, I should never be able to make peace
with my conscience. I should reg:*rd myself as guilty of the most infamous derelic-
tion of duty, and every honorable feeling of my nature would rise up to re])roach me.
Id passing this sentence of deep reprobation upon my own supi>osed conduct, I trust
I shall not be understood as speaking harshly of the possible conduct of others ; the
sentence I should pass upon myself would result from my own ])eculiar 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 con-
sciences or deserving the reproach of others. I now invite the attention of the com-
mittee for a few moments to a topic which has been drawn into this debate — whether
fortunately or unfortunately it is not for me to determine. We are t(dd 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 cur predecessors. For my own part,

APPENDIX. 761

Kir, I wish it to l>c distinctly midcrstood that I do not consider that precedent entitled
to the sli^littist possible coiisidi'i'atioii npon this question. With nie 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 nie; but because it was established by men who
had deliberately resolved to violate their duty to their constituents and to the Consti-
tution by attempting an act of usurimtion wliich, for boldness and desperation, would
not have discredited a Cromwell or a Bonaparte. Tliey knew perfecily well that what
they had in contemplation would ex(;ire the indignation of the ])rople, and this rule
was, cousefjuently, provided to veil their pn c ndiiigs from the public eye.
. But, sir, 1 absolve tiie federal i)arty from tlie sin of that transaction. God forbid
that tlie weight of tliat sin should rest ujioii any party now in existence. It was the
deed, to be sure, of federalists ; but the federal party — I mean the [leople 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?
l^ooking at the strict constitutional jiower of the House, that pretender was as fairly
entitled to be chosen by it as Mr. Jetierso'i. He had an equal number of electoral votes,
making no discrimination. Whence, then, the popular odium incurred by those who
voted lor Burr? Simj)ly, sir, from tlie attempt to carry into practical effect the prin-
ciple 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 oliending had this
(extent, no nn)re."

A combination of politicians, some fifty or sixty in number, who had been accns-
tomed to wield the political power of the country, seeing the scepter about to pass
fi'om their hands, screwed up their courage to the sticking-point and boldly s-t at de-
liMiice the will of the nation, 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
jiaity feelings, they attempted, as a party, winit none of them would have attempted,
and perhaps none of them approved, as individuals. They were acnuited by a [>rinci-
]ile similar to that which stimulates and sustains a mob in the commission of dejire-
dations which every individual comi)osing 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 sustiiin 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 tbe federal i)arty. I agree with the geiitleman from Dela-
ware that the policy pursued by the fecleral party, with the exception of two or three
measures which nobody now attempts to justify, was a wise i)olicy.

They organized the Executive Government and a system of national defense; they
ere(^ted manj' monuments of their wisdom. But, in this closing scene of their power,
what did they do ? An act which alienated the confidence of the country, struck down
the fabric of their power, and, by the reaction produced, swept away all the memorials
of their glory, of which the gentl»^man from Delaware has spoken. Measures were con-
foundeil with men, and both involved in one conimou prostration. And hence the
feeble and debilitating policy pursued by the republican party during the first years of
its ascendency. Without pretending to (luestiou, therefore, the general wisdom of the
Congress of 1801, I must protest against yielding to their j^recedent on the subject
before ns.

There are some oth(>r topics which I intended to touch, but which I will waive, as I
have too long tres[>assed upon the attention of th(> committee already. There is a
single remark, however, which. I must he permitted to make before I sit down. We
are called upon to close the galleries, and upon what grounds 1 Have we any evidence
that they will be disturbed? Have we any reason to believe that tr ey will be more
disorderlj' than they are now ? Our tongues will be silent on the approaching occa-
sion, and it would be a reflection upon the people of the United States to suppose they
could be spectatorsof such a scene and not be hushed into silent attention by thiiinoral
grandeur of so simple and sublime a spectacle. Sir, who are they that will fill the gal-
leries f 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 de-
ciding this great question with a view to the tranquillity of the Union (I say it without
intending to derogate fi'om the dignity of the House) as our honorable selves.

Mr. Mangiim, of North Carolina, then rose and said that he felt grea,t repugnance to
obtrude his remarks upon the notice of the House at any time — a repugn nice which,
upon this occasion, was certainly not diminished by the state of iudisi)osition 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 a view of publicly avowing those principles which he deemed sound,
and by which he determined that his conduct on the approaching occasion should be
regulated.

The question, said Mr. Mangum, immediately under consideration is intrinsically of
but slight and trivial imi)ort; but it derives much consequence from other and more
important questions that have been drawn into discussion. W hat, asked Mr. Mangum,

762 COUNTING THE ELECTORAL VOTE.

is the nature of tlie question before the House? It is one exclusively of police. But,
from the nianuer in which it had been treated, he sliould have inferred, but for ilie
f!;entlenian's disclaimer, that his ol)ject 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 sfroujT current and to dam those who resist it. It is a question not of open gal-
leries or closed galleries. Gentlemen liad, therefore, been engaged in combating shad-
ows ; and much of what bad been said had beeu addressed to a motion which no one
Lad made.

The question, as he understood it, was simply this: Whether the galleries should bo
thrown o]ien 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 anyone
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
nusustained 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
whatever. His reliance was placed npon the deep moral feeling that i)ervades this
nation. On this he relied to sustain gentlemen in the discharge of their duty, and on
this lie relied more than on all the bayonets and cannon that military despotism ever
wielded.

This is a mere question of order. The admission of strangers was an act of cour-
tesy, granted, as such acts are always understood to be, upon an implied obligation of
good l)ehavior. It was not to be presumed beforehand that those who were admitted
would violate the laws of decorum ; bu^ if they did, there could be doubt that the
Speaker was competent 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 exercise 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 operatiug 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 understanding, and with a heart bent
npon the best interests of the country, he should hrmly and fearlessly endeavor to jier-
form his duty.

He should not, however, have troubled the House at this time with a single remark
but 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 gentlenum from South Caro-
lina 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 resource 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 occasion ? We, I mean, who are in the minority? If I
understand the gentleman, we are bound 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 p/uZoso/^//^ of the Consti-
tution, to which the gentleman alluded. If by moral obligation, that obligation ad-
dresses 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 be-
tween three candidates when we are morally and of course jierfecth/ bound to elect the
candidate who has the largest number of votes in the electoral college?

Here Mr. Mangnm yielded the floor to Mr. McDuffie, who wished to explain. Ho 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 election.

Mr. Manoitm resumed :

He was then to understand the gentleman that we are not constitutionally, but only
morally, bound, or, in other words, that we have no right 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 conclusimi the same ? Was not that obligation as bind-
ing as an obligation emanating immediately from the Constitution ? Must not every
horest 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 himself for loaves
and tishes, feel its binding power ? If the obligation was a moral one, it was a perfect
one, and as such commanded perfect obedience. He must, therefore, mosr emphati-
cally repeat that it was extreme folly, if not worse, in the framers of the Constitution
to give to tliis 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

APPENDIX. 703

the strongest obligations. TLie Constitution, then, holds out to us bread and gives ns
a stone.

But this never wrs the design of the fraiuers of the Constitution ; and the very fact
that they have given us the power to choose is enough to i)rove that the [)iinciple, as
stated, do(!s not iuiuish tlie rule by which we are to be governed.

If, then, we are bound by the gentlenum's moral oblif/atioiis to elect that candidate
who hai)i)ens to have a jilurality 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, i< r tlie 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 hiqipen, 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 e(]^ual. How will
gentlemen f-stricate theinselves from this dilemma — the dilemma of a tie? Will they
resort to their priiiditJef It will fail theta. It is not principle; it i.s, in my humble
judgment, absurtlity. The gentleman fiom South Carolina has asked the gentleman
from Dehiware, with a sort of triumph, to answer the case which he puts, to wit, that
if one huiidrf<l and thiriy votes shall be given for one candidate, falling one vote short
of the number required for an election, whether that gentlenuin would dare to resist
such a majoiity ? I would answer that great respect is due to the opinions of the peo-
ple ; that it would be great imi)olicy iu ortliuary cases to resist so full an expression of
public will. l}ut reasons might exist which would render it the imperious duty of the
Representative, as ati honest man, to resist it. There is no principle concerned, as I trust
I liave 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 accordance 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. Supi»ose 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. Ry adheritig to the 7>/(»r//>/(- of whicli the gentleman sjjeaks, you post-
pone three candidates, upon whom th<^ peoph^ of the United States had fixed their
eyes as tit ))ersons for tlie Chief Magistracy, and each of whom had received the votes
of one-third of the people of the United States for that ottice. You set aside all tliese,
and let the Vice-President into that ofiice; 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 doc-
trine f And yet it is principle, sacred ])rinciple, according to the views of st)me gentle-
men. But, says tlie gentleman, we arc lirst to try to elect the peo])le's man, and, if we
cannot effect that object, 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 gen-
tleman, by which we are bound. A princii)le 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 th.at which yields to any necessity whatever was not moral prin-
ciple, for moial obligation admits of no compromise. It is said that if on tiial we
cannot succeed in electing a President, to prevent the Vice-President's coming into that
office, we must give way. Bat here are eight States in favor of each caiulidate. Who
is to give way lirst? It I give way first, may not my constituents reproach me with
an abandonment of principle? If the geurleman gives way tirst, does he not abandon
princii)le? Sir, such a principle as must be abandoned on one day's trial is not a prin-
ciple which I will ever recognize.

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 respec ive States, what, I again
ask, is to be tlie rule which must govern us ? Sir, it appears to me that the whole fal-
lacy which pervades the arguments of the gentlemen whose views I am opposing con-
sists in this — they are comparing the votes of the people taken 2)er capita with the
votes of twenty-four distinct and independent sovereigns. They are comparing things
which ba\'e no points of resemblance, nor have they any assignable relation to each
other. The States, as sovereigns, are all equal. The people, who make up those sov-
ereignties, uuniericaliy considered, are totally unequal, and, in that respect, bear to-
ward each other various and diversified proportions. Are we, then, to be liound by the
votes of our respective districts? (This is the doctrine of the pcople^s men, and all are
piopleh men nowadays, from the much-reprobated caucus-men down to the humblest
political pi'ofessors. )

Here, I trust, I maybe 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 ex-
pect to represent the plurality of my district.

But are we bound by the votes of our districts? I mean in point of principle. Did
the franiers of the Constitution design that we should be so bound? If they did,
wherefore^ does not the Constitution prescribe a uniform mode of electing ri)iresenta-
tives by <listricts? And yet the power of prescribing the mode is left with the legis-
latures of the respective States. Some States elect their represeutatives by general

764 COUNTING THE ELECTORAL VOTE,

ticket", as does Georgia, for exampl". How will ,<5entlenien ascertain the votes of their
di,stiicts under the j;eiieral-ticket system ? How will gentlemen extricate themselves
from tbis dUenima? Will they do it by resorting to the statement that the State, in
that case, is each member's district? If so, then each memljer is bound to represent
the vote of his State. This briugs 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 adverted. It is true that the gentleman from South Carolina cannot be mis-
taken as to the vote of the people, for in that State they elect members by districts.
Sbould he recognize the principle of perfect obedience to the voice of the district, then
should also every other member. If this is principle, what w<inld be the consequence
of adhering to it in the most of cases — indeed, iu the actual posture of affairs at ])resent ?
It is plain ; no President could be made, and the Vice-President would come in. If
it is ])iinciple, we are bound to adhere ; but, if we may give way and are not bound
to adhere, then it should no longer be dignilied vvith the name of prindple, 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 aiise — a member 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 constituents, the only
people upon earth to wliom he is ])olilically responsible, and for what ? To fall in with
the vote ot the State ; and by adhering to that vote no President is elected, and the
Vice-President comes iu, after all these fearless and patriotic sacritices.

Again, if our States ^^•o^e all of equal size, that is, equal iu point of po[)ulation,
and the i>coy)le fail to make an election in the electoral colleges, it is clear that no
election conhl ev(ir be ujade by the House of Representatives, should the members rec-
ognize as correct, and adluye to the principle, that they are bound to vote in accordance
with the votes of their respective States. Iu the present unequal size of the States,
under any ordiuaiy circumstances 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 Representatives by adlu^ing to the jirincip'e, except by en-
forcing the odious doctrine that the minority shall ]>revail over the majority — that is,
by making thirteen or more of the smaller States, that had voted for one candidate in
the electoral colleges ivithout effect, come into the House and do the same with complete
effect. What they were unable to do by reason of inequality of pojjulation, they are
nuide to etiVct by the equality of their sovereignty. Sir, if these are the jjeoj)/t's j>ri»-
ciples, I for one beg to be delivered from iheni.

It is said tliat in matters of hyislcitioii it is a vexed question whether the represent-
ative is not bound to obey the will of his constituents, and that many great and wist*
men have held theaflirmative. Sir, I would not give a button for the doctrine, either one
way or the other, so far as regards its practical utility. As to the mere theory, I con-
cede it to gentlemen ; they may delight themselves with whatever theories they please,
whether ingeniously or artificially constructed. But, though the question as to legis-
lation may be vexed, gentlemen tell us that in the business of electuig a President by
the House of Rejuesentatives there can be no doubt the case is a plain oue. Sir, I
argue directly the reverse. Iu the business of legislation the people, iu primary
assemblies, cannot act ; it is constitutionally, it is phj-sically impossible. There is,
therefore, a jiropriety in a rejiresentative government like ours, that the legislative
body should respond to the voice of the people ; that as a reflector it should give back
the jieople's wishes. But in the election of chief magistrate the people can act iu
primarj' assemblies. Those assemblies present the proper and the best mode in which
the election can be made. But the jjcople having attempted an election iu this mode,
and having Oiiled of success, tlie Constitution l)rings the election to this House. This
House is the umi)ire, the judge on whom devolves the settlement of that momentous
question, which the people have been unable to settle themselves for want of greater
unanimity.

Sir, I hope I have now succeeded in showing the fallacy of the gentleman's — pardon
me, the people's — (locirines of instruction. What, tlien, is our duty iu 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 couitortable doctrine, indeed, particularly to those
who happen to be in the minority; our uuderstandiiigs and couscieuce api)roving, 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, iu my judgment, neither more nor les-s than this : To do what is right, accord-
ing to the best dictates ot our own Huderstandings, 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 understood, after deep and anxious
retiecfi(m. to be his duty, may meet the eyes of his constituents, aye, the eyes of the
w oiUl, aud ucilUev bleucU nor quail, though nunc should smile ou him. It has also beeu

APPENDIX. 765

snid (and the remark, thonji;lj it can have none lipre, may be calculated to Lave an
eiit'cct abroad) tbat, -whenever a man has done deeds of renown, the people delijjht to
honor liini, and '.vill, witb great certainty, elevate him to tlie highest ofiices. Sir, this
is a mere truism ; everybody here knows thati 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 fx<iG</i/
wliat, in the present case, they have not done. Else, wliy does the election come to
this House ? Sir, a majurity of tlie people have distinctly told yon tbat not e\en the
most favored candidate is the man of tlieir wishes. Neither is e]ect<'d, thongh all may
liuve been honort-d. It is we who must elect. We have also been told that, upon
grounds of expediency, the scepter ougiit 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
tli(^ bands of such an one, we only place it thus to lop off his arm.

Sir, tbis but ill agrees with what is a fundamental principle in the system of the
pt'oplc^s men. What, sir, are an intelligent and enlightened people of these States, who
are so much tlattered in one breath, to be represented in the next as ferocious as tigers ?
Are they to rise in tbeir wiatb and burl the full weight of their indignant vengeance
at an individual who has done no harm — who has done no one act to excite their dis-
pleasure? Suppose three candidates should come belore us with an unequal number
of votes, I admit we should v(iry pro])erIy feel inclined to elect him ceteris paribus who
bad the largest number, (for I would not willingly de])rive gentlemen of the smallest
comfort.) But, suppose that the candidate who bad the smallt%st number should, in
the rt'Kult, be chosen President, is it maintained that the ])eo|)le of the United States
would lise in vengeance against th.'it man ? Surely, sir, whatever vials of wrath might
be exhausted on the heads of their guilty rej)resentatives, the people would pour out
1 one upon the innocent head of a man who had done no one offensive deed, and whose
only crime had been to be eonstitntioually presented for choice, and constitutionally
chosen.

We have heard, further, and much to my astonishment, that the doctrine of the gen-
tleman from Delaware wotihl not flourish in old Englanil — nay, tbat it is too strt)ng
even for the military despotism of Napoleon. I scorn to tlatter any man, aiul I am
sine that, on this occasion, I shall be exempt from the im])ntation of such design, when
I say I was an attentive listerujr to the gentleniau from Delaware, and did think, and
8till think, tbat souiuler doctrines, or doctrines delivered with morejjellucid clearness,
never fell from the lips of any man than from those of tbat distinguished member;
and I did consider the demonstration by which they were maintained ])recluded reply ;
and I am happy to find my own opinion bolsti-red and corroborated by an opinion that
<'ouies to me with so much weight and autiiority. I have not heard why bis doctrines
would not flourish in old England ; the; gentleimm from South Carolina did not conde-
scend 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 tbat he made, it
is indeed true tbat that despotic \\\\i'V prnfegsed to be governed by the will of the people.
(Boi>aparte, it seems, too, was a " people's num.") I5ut, sir, while he professed this, he
• was supported by 2r)0.()U0 bayonets ; and in such circumstances, what was the " peo-
ple's- will?" It was the will of tbeir tyrant.

Here Mr. Mangum, not having concluded his remarks, gave way for a motion for
the committee to rise.

Ferruarv 7, 1825.

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 considera-
tion of tha rules (rei>orted by a committee) to be observed by the House in conducting
the election of the President.

And the question being on striking out the last clause of the third rule, whicli
provides that the galleries may be cleared at the request of the delegation of any one
8tate,

Mr. Mangum said that when the committee rose the other day, as he presumed, for
his personal accommodation, he had well-nigh concluded the renmrks which it was his
intention to submit on this sul)ject. He felt deeply sensible of the polite attention of
the committee, and the best return in his i)ower to make for their kindness was to re-
Irain iVom trespassing again too far on tbeir patience. Tbis subject having already
<)ccu|)ied a dispro]iortionate space of the time of this House, he should not again take
lip the argument, but only submit a few general oliservatious which he had designed
to offer on the former occasion. He knew full well the immense advantages which
gentlemen have when they address themst^lves not to the understanding and the judg-
ment, but make ardent apjieals to the prejudices and passions of tlie people. The peo-
ple's rights, and the sovereignty of the peo])le! — the very linest and most pojiular
themes for declamation. He felt the great ditiliculty of being beard, coolly and dispas-
sioiuitely, at the bar of reason at the moment when the passions are stiiuulated into tu-
mult, and worked up to a pitch of frenzy.

lu this country, ajs we have seen froai the foundation of the Governmeat, whenever

766 COUNTING THE ELECTORAL VOTE.

a new party was about to organize itself, or a new faction to spring into exislence, its
very first breath was bre:ithed in a bily and fervent love for the people ; its ardor and
its devotion to the public weal transcended only by the purity and disinterestedness of
its motives. I confess sir, that I have lived long enough to distrust these ardors. Wlien
I see the frosts of age dissolving under the warm glowings incident to youth, and the pa-
iriot of sixty entering the lists with the very flower and chivalry of the land, endeavor-
ing to outstrip them in demonstrations of love and devotion to the people, I Ijegin to
look about me ; for I f( ar mischief, or suspect treachery. I need not refer you only to
our own history, but the history 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 sedulously 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 authority must act in obedience to that
will. The abstract proposition is evidently true : but the difficulty arises in the appli-
cation of it to the case in hand. How is the will of the people to be ascertained i Is
it to be derived fiom the county meetings, town meetings, publications, and rumors?
Are we to resort to these loose, unsatisfactory, and contradictory indications of tlie
public will ? or shall we resort to the constitutional indication — to that expression
which has been made through legitimate organs? If the latter, it is apparent that a
large majority have voted against either of the candidates. Wliat, then, is onr 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 Najjoleon. Mr. Mangnm said it was a
little curious to renuirk the striiiing coincidence between the early professions of Buna-
]iarte and those with which we are now daily saluted. He could hope that a CDJnci-
(lence should never be n)ade to exist in this country in any other respect; for what
was the se()uel in the case of Napoleon? Though his first love was the love of tho
people, and tliough he bowed with the profoundest respect to their will, yet he flattered,
he coaxed, and he courted them, until he placed his foot ui)on their necks, and crushed
their liberties with the most frightful military despotism that the world ever saw.

This is the natural order of tilings in a free government, to begin a -Jacobin and end
a tyrant. We are told we must bow to the will of the people. I grant it. Bnt I sliall
look for the indications of that will to a source which is unerring — to the constitu-
tional indication of it. It is curious to remark how defective this poor, tattered Con-
stitution of ours is, according to gentlemen's notions of responsibility. They say we
jnnst vote with the people, (what people?) and yet the Constitution guarante'cs to us
the mofle of voting by ballot, in the exercise of which the vote of each delegation may
be profound!}' locked u]^ in their own bosoms, and no hiiuian 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 gentle-
men, according 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 the gentlemen's notions? How defective is the Consti-
tution according to their views! Instead of requiring members to vote in a ntanuer
to i)revent the practice of fraud and deceit, that same Constitution becomes particeps
criniinis, by throwing the mantle over deeds of darkness and crime, by shielding
them from exposure to the vengeance of disappointed ambition or the soru and
hatred of a betrayed country. There have been some ])oliticians sillj^ emingli to
inuigine that the framers of the Constitution looked afar off, and either di'eained or
believed that occasions might arise w hen this provision would be found most salutary,
that the safety of the republic might depend upon the ignorance of the tyrant where
to direct his blows.

For my.-elf, however, I hope, said Mr. Mangnm, that I may be permitted to say, that
I hate mystery — I hate all concealments in the discharge of a public duty : and shall
be one of the Inst to shiink from the severest scrutiny into the manner in which I may
have discharged it. I would sc(irn 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 tlieory, accord-
ing to gentlemen's views, that would harmonize in its practical operations with cou-
stituticnial provisimis on the subject.

Sir, it seems to me that the true concepticm of the framers of the Constitution is
this : Thatthe Representatives in this House would conu^ immediately from the jieople —
they are pait of the people— presumed to be men of some character, connected with
the connnunity from which they emanate by a thousand ties: character, respect, fam-
ily, children, a common interest, a common destiny. In a woid, identified with that
commnnity in habits, feelings, sentiments, &c.; and that when the result, so much to
1 e deprecated, of the presidential election being cast upon this House, shall happen,
that all these ties and considerations form a sufticieut guarantee that a wise, houest,

APPENDIX. 767

and Jiidicions selection will be made. This view, I tbiuk, said Mr. Mangnm, is con-
foriiiahli' willi the theory of the Coustitntion.

What are the coiiteiuporaneuns expositioDS of the Coustitutiou on this sahject ? In
the work entitled " The Federalist," a work written by some of the ables^t meu who were
in the cuuveution, and which is resorted to by the ablest constitutional lawyers as hiirh
and firave authority, I tind the followiuo; opinion : " But, as a majority of votes niijrljt
not always happen to center in one man, and as it mi>ifht be unsafe to permit less than
a majority to he conclusive, it is provided that in such case the House of Representa-
tives shall select, out of the candidates who shall have the live (now changed to
'three') highest number of votes, the man irho, in their oi)inions, ma>/ be best qualified."
And yet it is said that these doctrines would be odious in revolutionary France — they
are too stroni;- for the reifjn of Napoleon.

Such are some of the difliculties 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 contests — theories that are cherished
with all the love that the mother bestows on her rickety bantling.

But, sir, if these theories nniy not be deduced from the letter of the Constitution,
may they not result from the philosophy of the Constitution of which we have heard
in 'ihis debate ? Yes, sir ; the philosophy of the Constitution ! That philosophy, which,
I fear, is to arm this great Government with that stupendous power which is to sink
our State sovereignties into mere corporations. That power which has prostrated some
of these barriers that wist; meu of both the old parties recognized. 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 dieamed of. Yes, sir; it is by courting these sovereign people sedulously and
arthiously that all Jaeoljins begin their career. The people are sovereigns, but they
are sovereigns in minority; they never have, nor will they ever come to the crown,
whatever some of their Hitterers may do. and yet they have in full enjoyment one of
the brightest and most undoubted attributes of sovereignty, the flattery of their cour-
tiers.

I trust, I may say, and truly, too, that I have as profound respect for the will of the
people, fairly ex])re.ssed. as any man ; and would ])reserve those interests committed
to my charge as I would the apple of my eye. I wcmld not look to the shouts of the
multitude for the o[tiuions of the people, but I look to their opinion as fairly and coa-
stitutionally expressed. To this I respond, to this 1 am obedient.

I regret that I have detained the committee so long on this subject. As regards the
question inunediately under discussion, I would not turn upon my heel for a decision
of it, either one way or the other.

Mr. .J. S. Bahbouk, 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
concurrenci! in opinion with the gentleman from North Carolina, [Mr. Mangnm,] that a
new zeal had infused itself into our deliberations, resulting from tjieexcitemenfr at this
moment pervading 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 incjuiry, so imperatively enjoined on it. The tirst question presented
to us I take to be this : Is it right to indulge the intense anxiety now fek by the pub-
lic, in p(>rmitting an inspection of the proceedings of this House when constitutionally
employed in selecting a Chief Magistrate ? The history of that country whose pre-
cedents have supplied most of the forms of our deliberations discloses to us the exist-
ence of controversies between the Parliament and the people on questions of giving
publicity to the transactions of tlie former. It was deemed, and accordingly punished,
as a breach of privilege to publish the speeches or votes of members, and that, too,
on the gr.'iind 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 England, had made an appropriate impres-
siou 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 pro-
vided that the people have a just claim to know what Congress is doing, and that a
jtuirnal of their proceedings shall, from time to time, be published, together with the
yeas and nays, upon demand of one-tifth of the members present.

The u.-^age of Congress supi)lies us with the best commentary upon this constitutional
text. Its deliberations have been open to public inspection, with the exception of pro-
ceedings where high national considerations forbaiie immediate disclosure, and the
precedent of 1801, which I think has l)een clearly demonstrated to merit; but little at-
tentii>u. Is there anything, then, in the duty now cast upon the House by the hajipen-
ing of the contingency provided for in the Constitution ti> distinguish it fnun ordinary
acts of legislation, and to demand an unusual measure of safety or precaution f Cuu

758 COUNTING THE ELECTORAL VOTE.

gentlpTiien imagine fi>r a moment that nnr deliberations will be overaweil, or that any
intimidation wliatever will influence members in dischariiing thi-i hi<rh fiim-iion ? It
is a 81 s; icion fraught with injustice to onisilves as well as to the people. T r )W ov<-r
your acts the veil of mystery and what is the result? All within is pure, and the
members are engaged in the fearless fultillment of the trusts reposed in theni. Will it
be so, sir, without ? I apprehend not. Distrust will till the public mind, and jealousy
will tire its passious ; and when these overtake us it will be in vain for us to rely
upon the conscious rectitude of our actions and the dignity of silent deliberation t^)
shif^hl us from disrespect, or the suspicion of ignoble conduct and unworthy motive^.

But I understand from the argument of the gentleman from Delaware [Mr. McLiu ■]
that, m making the selection, we act independently of the people, aud, 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. McDnffle.] With his opinions as to the rights of the people over
our ordinary legislation I must also express my dissent. He informs us that the Con-
stitution has vested the legislative powers of the United States in Congress, and ask-i.
"What are the ingredients of legislation? Argument, inquiry, and deliberation?"
Sir, when the gentleman presented so forcible an argument in another branch of this
question upon the influence of popular will, could he not suppose that this, too, wonld
necessarily 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 sentiment ? The will of the people is, in this country most especially, the
mainspring of all political institution. This, alone, can with iis give impulse to per-
manent legislation. I cannot agree with the gentleman from North Carolina, that the
wise men who gave form to the Coustitution are against me. The journals of that
day reveal a singular incident relating to this (piestion, which may seem to array
against me a most distinguished authority. When the Constitution was in progress,
amid the jealousies of its enemies and the anxieties of its friends, numerous amend-
ments were proposed by the several St^te conventions. Among these, Virginia sought
to ingraft upon it a provision that would secure, at all times, the right to infitrnvt Rep-
resentatives. In the flrst Congress that subsequently assembled, an illustrious man,
then representing that State, and who has since thrown a luster over our character in
the various acts of his public life, ]iroposed this amendment, with an omission of so
much as claimed flits r'Kjht of instruction. I am not jirepared to receive this as evidence
of his own eidightened view of the subject.

The Constitution, with all its amendments, is the offspring of a spirit of compro-
mise. This alteration (by his proposition) of the expressed wishes of a convention, iu
whose deliberations he was himself a clear aud 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 sup-
plies the answer: In those of the people. And what is the legislative power? It is
but a semiual principle, which fructities in those enactments denominated laie. Sir,
the writers upon jurisprudence inform us that law is a rule of action emanating from
a sovereign power, commanding what is right, and forbidding what is wrong. If, then,
the people, who ni:ike the constituent body, are admitted to be sovereign, aud each
Representative expresses the sense of his constituents upon every vote he may give in
the passage of any law, do you not ob'ain a rule of action emanating from the sover-
eign power of the United States, aud filling up the measure of the deflnition I have
just recited ?

The gentleman from South Carolina asserts for the people a controlling influence in
performing the duty required of this House when the contingency presents itself in
which a stiection is to be made here of the Chief Magistrate, because the Constitution
recognizes in the peo[de the power aud the capacity t > make the election. There is a
vice in this argument which I think is but apparent, or which may be easily resolved
into our difl'erence of the ap|dication of terms. The Constitution contemplated an
election by the people; but that if. 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 peoi>le are scattered over a vast extent of country; to as-
semble them together is impossible. The theory of the Constitution then requires, as
the most practicable mode, if a majority cannot be obtained, that a federative majority
shall determine, combining with it the popular influence, by recjuiring a selection from
the highest on the people's list. This is not tlie only security provided by the system
to give effect to public will. Had it designed to make your President a federative offi-
cer, the choice, in the second instance, might have been given the States iu their cor-
porate 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 iuteaided that he should be the President of the people, not of

APPENDIX. 769

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 iiiad((nuvte to the purpose, but that it was designed cannot admit of d.)ubt.
Tljis House, in its several State delegations, cannot be considered as the depoiitary of
the sovereignty of the States, but as tbe representatives of the people, not responsible
to the States, but to the districts whicli they severally represent. Would it not, then,
be a de))arture from all the checks and principles of the Constitution, designed to
secure tlie responsibility of public ageuts, to loolv upon members here as representing
the States in this contingency, to whom they owe no obligation, and as not represent-
ing the people to whom all accountability is secured by the forms of the Constitution ?
If this concinsion be a just derivative from the view talien, what is the pending obliga-
tion in malving the clioice ?

A sense of political tluty will give the immediate reply. The President is designed
to betlie Chiet Magistrate of the nation ; the appointing body is chosen by tbe people,
and the public will points to the path of safety wl)en it points to the path of duty. It
is your duty, because you are chosen by those who have the inceptive right of making
the election, and tbis course justifies and responds to the higli trusts confided. Safety
results from it, because the magistrate so appointed reflects the wishes of tbe whole
mass of the people, and will be tbe faithful guardian of their rights, their honor, and
their independence. Elect upon these iirinciples, and you constitute a President who
unites jjublic confidence and respect. He is clothed with a shield for yonr protection
at home, and armed with the sword of retributive justice to punish foreign aggression.
Choose him upon he other principle, he is the creature of the Legislature, and not tbe
servant of the people ; dependent upon you, and responsible to you, what security is
left for tluj preservatu)!! of our popular system ? Can he combine the afi'-'Ctions of
tlie people when his ay)pointment is in j)ursuance, not of their will, but in manifest
contravention of it ? You may, indeed, have given him shape and form, and encircled
bini with the trappings ot power and ofiice, but he is not touched with tbe vital ele-
ment which alone can give liim being. Is lu; surrounded with the aii'ections of a
grateful and confiding people, which makes liim tiie servant "of the people for the
people's stike?" No, sir; he is put sued by their fears and trammeled witli their jea-
lousy. The wishes of the nation are driven contemptuously before him, while all tho
calamities of misrule follow in the rear.

Nor does the evil stop here; whoever the individual may be, he can ho but man.
Filled with the fraillies that belong to his condition, will he not seek to convert his
pillow of thorns into a bed of roses, and meliorate his condition by seeking to insure
re-aj>iH)intment ? All the purposes of corruption will be essayed. The creature of
this House, deriving being from it, amenable by impeachment to tbe Senate, who, with
him, hold the appointing power of the Government throughout the extended sphere
of jjatrouage, what in some coining age may not occur, when corruption, which grows
with our years, shall have sapped the foundation on which our purity rests.'? The
jmrse of the nation in the hands of this House may be made to act upon tbe Senate,
and they, in return, to distribute among the Kepreseutatives, or their instrumeuts, 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 lan-
guage of an elcquent 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 Magistrate. 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 sidininistered the Govern-
ment? He would either have fallen a victim to the popular rage which such an act
would have lifted into tempest, or, had he weight enough to sustain himself, the liber-
ties of his country would have been crushed under his influence. And yet the geutle-
nsau from North Caroliua considers such prhnciples as these Jacobinical doctrines.

[Mr. JIaxc.l'M 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 attect the principle? These doctrines
were professed by Jacobins, and with them Bonaparte became the despot of France.
Are such principles the less just among our sober, reflecting people because Jacobins
and Napoleon ])rofessed them ? We are told that "hypocrisy is the homage which vice
pays to virtue," and it is as true in politics as in morals. If others have lost their free-
dom 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 f It would be
easy to retort by saying that, if Jacobins have professed these principles, the doctrines
of the gentleman are those upon which desjiotism has acted. If you view this body as
one in which is a lodgment, a trust of the powers of ten millioiiS of people, it is an
august representative assembly. If a body exercising such high prerogatives inde-
pendiiit on the peojjle, they are either so many members clothed with arbitrary power,
or they dwindle mto individuality.

770 COUNTING THE ELECTORAL VOTE.

By such rosiiUs it may happen that the public passions are kindled ; the forms of
the Constitntion unable to restrain the tnrbnlence of taction, Jacobins sprinjr np^ and
tyranny follows. It was not these doctrines that j^ave a Bonaparte to France, bnt an
abaudounient of all rational love of liberty. Her revolution burst out as a volcano;
its crater was the birthidace of Napoleon ; its lava the food of his ambition. He was
mistakenly hailed as the champion of freedom until his bloody banneis floated in
trium])h fiver the fairest portious 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 precursive Jacobin horde are alike swept
from the earth, and, I ask, is the condition of humanity meliorated by the change?

Whenever, Mr. Chairman, a strujitfle shall arise between this country and the House
for the choice of President, we may shudder for the continued existenceof our jjolitical
institutions. Either the representative body will sink in ])ublic 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 governinent were deeply
read in the history of past times, and they scanned with prophetic eye the coming events
of futurity. Tlie mournful lot of all the governments instituted for the prt)fessed pur-
})0se of insuring the liberty and happiness of man tilled them with apprehensions of
danger to our new experiment. The opinion was received 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 asaults they sought to ]>lant round the iiillars oi 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 intiigue,
always limited in their theater of action, would nut be able to expand their scope
over this vast confederacy; corruption, usually secret in its operations, coukl not show
itself in the face of day, and spread its intlnence over the same expanse.

In securing the power of electing a Chief Magistrate to tlie great body of the people,
scattered over so vast a territory, it was believed that such only wonld be chosen who
possessed those commanding talents, those suldime virtues, that are the subjects of
universal admiration. By adopting the principle of the gentleman from Dela ware, and
vesting in tiiis bodj an irresponsible power of selection, you banish this great safe-
guard of the Constitution. Yon force the election into that small space upon which
full scooe 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 wliich pnblic sentiment is disclosed upon this floor, this great conservative
]irinci|)le is maintained in all its i)urity. The honorable gentleman from North Caro-
lina says that, by this course, no election could possibly bo made. I think difiereutly.
If each Representative shall here speak the sense of his constituents, and that sliould
not disclose on the ballot a majority of the whole, I take it that his duty would require
ofhimbyall exertions to give etifect to their will. Should this be unattainable, 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 iiatimi the supreme law, he should make a I'resideiit of one who, upon
the best evidence before him, operating upon his honest jndgment, appeared to coiu-
bine the largest share of public aftection and national support. The predilection of a
part must, in the end, yield to the wishes of tbe whole.

The gentleman from North Carolina tells you that, according to the argument of the
gentleman from South Carolina, you wonld fail to make a Chief Magistrate : and yet,
in the course he si)eaks of ))nrsning himself, he would be conducted to the same re-
sult. He tells you that, for himself, he stands on an isthmus where the waves may
lash in vain ; unawed by fear, and unflattered by hope, he will not de])art from his
ground. What is to be the consequence, but the same catastrophe which he huml>ly
thought was ascribed to the principles of tlie gentleman from South Carolina? We
are further asked, how are we to ascertain the will of the peo[)le ? Tbe forms of the
Constitution, framed in the wisdom of departed patriots, must be taken as the surest
indicatious. If these are wrong, then is the Constitution resting on a vicious prin-
ciple. It is somewhat difiQcult, 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 propa-
gate 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 intelligence 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,
bis genius was his fortune, and his virtues his acts ; his past service a pledge for the
future; and by their sense required him to give tliat candidate his su[)iiorl. Tlieir
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. McL.vxK, of Delaware, rose, and said that he had been the uniutentioual cause of a

APPEKDIX, 771

rielmte, wliicli he rejrrefted now to be obli<:e(l fiirtlior to prdlnnj;. If lio foiild have
I'oi ('seen thtMani^e the debate would ha v»! taken, wlieii he Inietly stated the gi-oniids
whieh would inlliieiice his cnni'se, he W()n)d have co'tented hiniself with a ivihut vote;
huf. unprofitable aw the discussion was likely to be, he felt Ixnind to make some reply
to the o! servatious of the gentleman from South Carolina, [Mr. McDnHic] That j^en-
ileman had seized upon one or two (general jjosit ions, wliiehhe[Mr McLane] had orifj-
inalh' advanced, to deliver, with his usual talent and adroitness, a popular harangue
upon the presidential f|ue.vtion, which, thojioh certainly eloquent, was anything but
a:i answer to the aignnient which Mr. ]\kLane had submitted. Jlr. McLane said he
felt under no obligation to follow the gentleman through all the topics to whi?h he had
adverted, and he cmild but remark that the observations of the gentleman wonld have
been much more pertinent, if he had been making a new Constitution, than in inter-
])retiug*the present. Mr. McLane said it was no part of his business to inquire
whether better and more expedient ])roviaions might have been made, fir whether the
will of tin; ])eo])le conid be more readily attained. It was enough for him to consider
his own lights and duties under the Constitution as it exists at present.

The points between the gentleman from South Carolina and myself, said Mr. McLane,
are few, and contined to a small compass. I contend that the immediate constituents
of a meud)er of the House of Representatives have no right to instruct him in his
vote for a President, and that, though the opinion of the people of this Union, when
fairly ascertained, would be entitled to great weight, it would not be absolut<'ly im-
]ierative, but that the KepresiMitative should in all eases exercise a sound and hone-it
judgment, acknowhdging only his ulterior resiionsibility. This is denied by the gen-
tleman 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 liis argumenr,
leaving the mass of the gentleman's remarks to produce an efiect wheresoever they
might. I distinguish our duty, said Mr. McLane, in the election of a President from
that in cases of ordinary legislation, though not adnutting the right of inslruction in
either, because in the former our duties are not legislative, but rather judicial, or .a
part of the electoral fianchise, Avhich, in its very character, implies freedom of'thongla
and action.

The gentleman also distinguishes these duties, but reaches the opposite conclusion.
He denies the right of instruction in matters of oidinary legislation, yet contends for
it in our electoral duties ! His theory is, to iny mind, lallacious and unsatisfactory.
He says the piople have no right to make, are incajiab e of making, laws, and therefore
delegate that power to us, and cannot control us; but the pc^ople have a right to elect
a President, and therefore can instruct us in our choice ! If the premisi-s were sound,
a precisely opjiosite conclnsiou would clearly follow ; for, in the tirst ins ance, not
IxMiig able to make laws, the people might well be supposed to constitute us their
agents to act for them, and therefore, to a certain extent, retaining the right to exer-
cise a reasoual)le intluence over our conduct ; but, in the other case, haviug the ri'^ht
to make a President for themselves, and failing to do so, they could not claim to direct
us, who are not acting for thein, bnt for ourselves and the nation at large. The argu-
nient, however, is not well founded.

The theory of our Government, it is true, is that all power i.s in the people, and
derived from the people; but they never act themselves, excepting in their electoral
franchise. They act through the ditferent organs and functional ies of the Govern-
ment, 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 peoi)le give the power to both, but they cannot jiro] 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 all, 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 iuconvenient or impracticable, they- have dele-
gated that power, in a certain extent, to the House of Representatives." In both in-
stances the power is parted with for similar reasons, and therefore, so far as the origi-
nal 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 Repre-
sentatives. It is devolved here, to be sure, by the people nuder the provisions of the
Constitution, but differing, therefore, from any other delegated authority, only that,
being an electoral and not a legislative franchise, it is not liable to be couti oiled, 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 be-
fore us. He says the people have no right to instruct their representatives in a case of

772 COUNTING THE ELECTORAL VOTE.

ordinary legislation, because they are inrapaltle of passing laws. Well, sir, in the
case before us, they have proved to be iu(;apab]e of electing a President; not in
theory, but in fact; they have made the attempt and faih-d, and for that reason tlie
duty falls upon us; how. tiien, upi)n the gentlem;iu's principles c;in the riglit of in-
struction be claimed ? But, said Mr. McLaue, the gentleman from South Carolina
further argued that the will of the peoi)le is tlie paramount law according to what he
was pleased to term the pbilosophy of the Constitutiou — -to this the representative is
bound to yield his judgment and conscience ; and shame, and disgrace, and iufamy
are denounced as tlie portion of him who shall venture to obey his own sense of right
in opi)Ositiou to this will. Before he conld recoguiKe a power so absolute, Mr. McLane
said he was disposed to examine its source aiul character. He would nuike no lofty
professions of regard for the will of the people according to the phrase of the day.
Notiiing wns more easy, however, nothing more common — it was the ordinary tbeme
of all political declamation. It is the common price of ijower, and paid most liberally
by those who Tiiost covet it. We scarcely read of a tyrant the first page in whose his-
tory is not tilled with hallelnjahs to the people's will.

Sir, said he, ambition seeks not to be governed, but to govern ; to govern this peo-
j)le ; and it Hatters 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 dis-
tricts; of this false image (>f the people's will he was no worshiper, while for the
real will of the peo]>le he sincerely felt a profound reverence. I mean, said he, the
will of a majorilji of the people constHutioiiallti expressed in the mode prescribed by the
laws. It is this will which is the great moral and political power on which the Gov-
ernment reposes. It is this will whieh comes in the panoply of the Constitution
should be a law to all. He wonld recognize no other will ot the people than that so
made manifest ; everything else was but its connterfeit. For this constitutional will
we manifest our respect by cherishing and sustaining the institutions of its creation.
And of his respect, he said, he wonld give a practical i)roof 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 ex()ressed ; and we are obliged to act because it was impossible it could
be. No one of the tliree candidates before the Honse of Representatives has obtained
this constitutional mnjority, 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 ii 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 riglit^i
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 quar-
ters, and the zeal with which each class of politicians builds up plausible arguments
to prove tluit its own favorite candidate has either obtained or Wduld obtain a ma-
jority of the peoi)le in his favor. In the midst of all these conjectures, however, it is
certain that neither has, constitutionally, the nuijority.

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 ma-
jority of the peoi)le have the right, in a loose, unconstitutional manner, to control that
choice ? It the Constitution requires a nuijority, it would be unwise in us to l)e 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 dif-
ferent functionaries under this Government contiict with each other, the powers of
each will be in jeopardy. The people 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 Constitutiou has created a
new electoral i)ower, over whose independent delil)erations they have as little control.
The opposite doctrine would array the people against their own institutions, and in-
volve 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. 1 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 objecf. It requires a majority of
the people in iavor of some one candidate to make an election ; it supposes this major-
ity unattainable, and, in such an event, which has now happened, directs a new uuHle
of election, and by a difterent power. 1 ask gentlemen to look into the Constitution,
and .'fee what restrictions are imposed upon the exercise of this power. There is none
but the number ti> which the choice is limited. Within this uumber it is in vuiu to
shackle our discretiou.

APPENDIX. 773

The Constitution meant, and for wise purposes, that tbe direct agency of the people
in thi.s election should cease alter the result of the electoral votes, and that in tlie new
a'ul further election the federative ]trincii)le of the Governnieut should operate, re-
Jictiiig all intiiience from numbers and the \veii>ht of population. It became absolutely
necessary to resort to such iirinciple to piomote and insure au election by disre<;arding
the causes which had ])revented it in the eh)Ctoral colleges. It designed to remove us
from that A'cry inllui'uce winch had del'eated the will of the majority. By giving each
.srat(( a vote, witiiout regard to its i)opuhitiou. the electoral combinations or disagive-
nients are bioken U]», ami a new jjrinciple (istablished. But the doctrine contended for
by the gentleniaii from South Carolina brings the force of the population, in the worst
and nmst irregular form, to operate ou the election here and disappoint the grtiat
ol>ject 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 i>roper, it would not have devolved the election
U|)on IIS, where the larg(^st and snial'est State are U|)on au equality, 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
ele-cMoii to us to be made in ]>roportiou to the numbers of each State ou this tio )r.

If it were deemed inexpedient to send the choice back to the people lor a eunstifu-
iioiial expression of their jireference, it cannot be wise to control it here by a loose
maiiifi'station, or by vague and s[)eculative conjectures.

The gentleman from South Carolina, said Mr. McLane, has spoken of an " inchoate
election." H(! 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 foico
of these remarks If they were designed to argue that we should begin whtrie the
[leople had left off, pushing the highest by preference to the others, he could not as-
sent to the i)ro])osition. Such an idea was as impracti(!able as it would be to add
States to individual votes. But the act of the people, he contended, was complete, anri
their ])ower at an end. Their act was to ballot for a choice; if any one received a
majority, the election was complete. If such uiajority ditl not appear, the fiiiliire was
as complete. He contended that the people were done with the nn>tter; it was no
longer in their hands ; it had passed into ours, accompanied with a deep responsibility,
which we could not otherwise discharge than bj' an honest, conscientious performance
of our duty, according to our honest judgment.

What, then, said Mr. McLane, are our rights and duties iu this matter? The Con-
stitution, by which ihey are jirescribed, provides that if no person shall have a ma-
jority, then, from the persons having the highest numbers, 7iot exceeding three, the
House of Kepresentatives shall choouc, immcdialcli/, by ballot, the President. The time
of making this choice does, of itself, exclude the idea ot any interference of the people
by instruction. The House are to proceed immtdiateli/ to the ptrformance of their duty,
making it impossible to procure any concerted or I'cgular movement by the peo[>le to
t-xpress their wish. Any other than such would be worse than lolly , it would be delu-
sive and dangerous.

But the House of Representatives are to choose a President. This is both a right and
a duty.

The light of choosing implies the right of selecting — it implies, aAsa, discretiou, the
exercise of an unbiased judgment, the duty of considering the fitness and qualilicatious
of the respective candidates, their comparative merits, their capacity to sustain the
institutions of the country', to piomote the safety ami happiness of the peoi)le 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 preference to be ulti-
mately declared. It is our duty to examine and deliberate upon everything 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 popular
in a given district or State ? Such an inquiry would divert us entirely from the nujrits
of the candidates, and lead us into a held where everything is doubt and conjecture.
What, said he, are the powe s of the people when they are making the election, and by
what motives avi they to be sujtposed to be influenced in their choice f There are no
liuiitR to their power; they mixy evon indulge iu whim and cai)rice ; but a wise, and
virtuous, and intelligent, and patriotic people must bo presumed to be guided iu their
choice by the character and fitness of the candidate. They look fer a Chief Magistrate
capable of presiding with safety and honor over the destinies of the country, anil less
power than they possess over the subject would be inadequate to the object — would
impair the elective f/anchise. Have we not the same duties to perform, the same ob-
jects to attain, and are we clothed with less power and fewer means for their attain-
ment? Could it have been the design of this Constitution to commit this high trust
to our hands, and leave us dependent upon the will or caprice of others for its execu-
tion ? It is our duty and our right to "choose," but, if we are liable to be instructed,

774 COUNTING THE ELECTORAL VOTE.

n.ay, cnmnDamled, in onr choice, the choice is not ours, but theirs who instruct ns ; it is
uot n. tree imd independent selection, but obedience to tiie conuiiands of a sujierior.

I admit, said Mr. McLane, tliat tlie preference of tlie people is worthy of considera-
tion, accompanied by an inqniry into the grounds and motives of tlie preference, and
we should fairly endeavor ti> 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 cliaracter of the people than any wild and irregular ebullitions of the popular
will. The gentleman from South Carolina has argmd that a great man of distin-
guished virtues will always command the approbation of the people. In the progress
of things there is much truth in the observation, and, if we take care to select a man
of learmerit, who is in all respects fitted to promote the great objects of good govern-
ment, we may confidently expect such a selection to be ultimately acceptable to the
people.

It is made our duty to select from fhree 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
individual qnalitications. Why was this scope given to our selection, if their relative
strength be obligatory upon our jmlgment? Neither the Constitution nor the princi-
ples of our Government 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 confidence, as if the plurality in vote were to control our choice. If
this were so, the discretion secured by the C.)nstitution would be mere mockery. It
must be suppos d to authorize ns to choose from three, and yet to confine us to one.
Our duty would be simplj^ to elect the man highest in vote, without regard 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 plur-
ality principle is in opposition to both. The nuijoiity of the people are certaiidy
opposed to such n candidate — a majority 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 nnmbev of candidates, and without reference to a preference
between the three persons from whom a choice is here to be made. It is our high priv-
ilege 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, uot less than whom they do, prefer.

The gentleman from South Carolina has emphatically desired me to suppose that
one man shonld receive 130 electoral votes, and asks if I should dare put by bis claims.
Sir, the case is by no means puzzling. I should dare to do so, if in my conscience I be-
lieved such a candidate unfit to be the ruler of this nation. I shonld 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 l)e 1:51 electoral votes opposed to him,
being a majority of the people; and there would be quite as much propriety in sup-
posing that that majority would prefer another, more especially if, in reality, he should
be better (inalified 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
uf all advantage from the very qualities for which they have selected ns 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 sufi^'rages. Tliey judge
from the representations of others, or from some single glaring or striking act. The
preference is no doubt founded upon his supposed fitness and capacity. They believe
him to be a wise, enlightened, and virtuous statesman, sound and practical in his
views, and deserving their confidence. But is it not possible for all these calculations
to prove unfounded ? Let ino 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
preferred him ; that, in our consciences, we should be persuaded he was wholly inca-
pable of administering the Government — what would the gentleman from South Caro-
lina do in S'lch case? Wouhl he surrender his judgment and c mscience to the mis-
taken preference of his constituents, or fearlessly consult his higher duty to bis
country?

It was no stretch of the imagination, said Mr. McLane, for him to suppose further
that someone candidate returned to the House of Representatives should be discov-
ered in the use of improper means to promote his election. The patronage of his
office may have been held out in anticipation, and indications of a policy anil admin-
istration injurious to the great interests of the nation. In such a case who could
hesitate bet\v:'en 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 inde-
pendent tribunal, bound to elect the men best qualified, in their judgment, to admin-
ister the affairs of the nation.

APPENDIX. 775

If we are bound by instructions, who have the right to instruct us ? It has been
already shown that the election is federative, and not by numbers; the votes are by
States, and not by the people. We are called to iierform this duty for the whole nation,
not lor 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 constitueuts, and are
charged with the duty for the ivhole Union. We become the judges and umpires for
the whole ; we are to act for the interests of the whole.

It is iu this way only that the equality of the votes of States here can ba reconciled
with the general theory of the Government. If 1 act here under the instruction and
dominion of Delaware, the population of that Slate controls tenfold its numbers else-
where. Bur if I act here under no more particular responsibility to my immediate con-
stituents iu Delaware than to the rest of the Union, and consulting the interests of the
whole, this disparity, which has been so much complained of, disappears.

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 instructions command me to disregard and
disobey it?

I ask again, said Mr. McLane, where is the power whence these instructions can con-
stitutionally emanate ? From the people they cannot, for there is no mode by which
their will can be ascertained. For I desire to protest against all partial or local assem-
blages 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 ])erforniauce of our duty the pluraliry of the votes of the
whole people, expressed in their elections, can have no ol)ligatory force with us, how
can it be said that the opinions or instructions of our particular county or district, or
even a State, can be more imperative ?

Mr. McLane said, when he was up a few daj's ago, he had ventured to argue that if
we were bound to regard the will or instruction of our particular districts, we should
be constantly in danger of making no election at all. If each State have the right to
instruct its Representatives, there can be no change until the one or other give way.

The gentleman from South Carolina has taken occasion to express the utmost appre-
hension of the consequencesof no election, and would conceive himself an object of just
reprobation if he could be instrumental iu ])roducing 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 responsible; he yields to the power of others, and takes no blame to him-
self. Is there no danger to be apprehendt^l from this ([uarter ? Does excitement pre-
vail nowhere but in this hall? Are there no sectional jealousies and local prejudices
to be stirred up in such a contest? 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 ex-
citement that three candidates came to this House with the States equally divided,
how could we hope to make an election ? Each State instructs its Representatives to
hold out ; to nail their flag to the mast, and go down with their ship ; and all the evils
of contending passions and jealousies immediately ensue. My word for it, said Mr.
McLane, let the popular fervor be once fully aroused, and the tumults will rage as
wildly without as within these walls. We cauuot avoid these dithculties until we
learn to value our own freedom and independence; to be responsible only in the dis-
charge 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 couuteifeit image of the people's wi;l, could not fail to weaken it. It would do
more; it would subvert the iudepeudence of the Ropri'seutative, and seriously disturb
the public tranquillity. As long as we are hehl to an honest, conscientious discharge
of our duties here, we shall act with greater judgment an<l circumspection — 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 judg-
ments 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 oar duty to the whole, and seek refuge under the local or nar-
row and capricious views of a particular part. A high national responsibility, involv-
ing loftiness of character and virtuous fame, would give way to considerations of place
and power ; we should soon learu to value a seat on this floor more than the higher
concerns of a great nation ; and, instead of consulting the interests of the American
people, we should obey ouly the commands of a single congressional district.

According to the theory for which he contended, said Mr. McLane, the duty of a
member of this House is that of a great moral agent, looking, with a single eye, to
the welfare of a common country, and guided |by considerations of a similar kind.

49 X

776 COUNTING THE ELECTORAL VOTE,

He acts fearlessly ami 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 Government, and
will never prove inefScacious as long as each public functionary shall be kept within
its appropriate sphere There is force enougli in it to secure an honest discharge of
our duty — it is terrible only to evil-doers. If it be rashly or vindictively 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. M:: McLaue said he was not ambitious of figur-
ing in an opposition to the popular clamor, nor was he at all disposed to court respon-
sibility ; 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 purpose, bending to the storm, or yielding our judgments to the commands
of others. Our great duty, upon such an occasion as the present, was to compose
difficulties, not to heighten them with "others, or to be agitated by them ourselves.
The supposition is, when the election of a President devolves upon this House, that
the public voice has been distrusted and distracted by serious and unavoidable diffi-
culties ; 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 com-
motion, alarming both social and public tranquillity ; the Constitution erects this
House into a high and sacred tribunal, to compose and quiet these augry elements,
to allow time for their fury to subside, to bring order out of confusion ; we should be
false to ourselves and to the country, 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 surely
this would be done by bringing public excitement 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 Eepresentatives in this election, does it not follow that all
attempts to control or sway or intimidate the free exercise of our sober, independent
judgment are indecorous aud improper ? He would not now detain the House, after
the time he had already consumed in detailing the various means which might be em-
ployed and the ditterent kinds of influence which might be brought to control the
independence of membei'S. It was unnecessary for him, he said, to describe the effects
of all these popular engines which a state of high public excitement always i>uts iu
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 operating. We guard the election by the people, said he, from all tumult and
disorder, and carefully banish all illegitimate influence at a distance. Why are we fear-
ful of surrounding our own liberties with equal security? The character of all these
influences is progressive, and the most fearful a))prehen -ions entertained by able com-
mfeutators upon our Constitution of an election by the House of Representatives have
been from the effect of these extraneous influences, both civil and military, which may
easily be put in motion. Mr. McLane said he had no apprehension of such evils at the
present day : but he lepeated that now, when evei-ything was comparatively tranquil
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 cotiduct, they could claim no right to superintend our
deliberations. He had as little at stake as others, however, aud should submit with
as good a grace to the decision of the Htmse.

Mr. McLane said he could not conclude his remarks without notice of another topic
of the gentleman of South Carolina [Mr. McDufiie] 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. McLaue] had on a former occasion called to
the attention of the House. It had been summarily aud 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 iu or out of this House. It would have to rely for its defense upon the
wisdom and propriety of its works, to which the general state of our uational happi-
ness and the cool judgment of posterity were fast affixing their seal. To the survivors

APPENDIX. 777

of that party it must lie a source of proud satisfaction to witness the wisdom of its
policy daily triumphing over the bitterest prejudices, while those who had disappeared
from the stage bad passed to a higher reward. He could but lament, however, the
disposition occaf^ionally manifested to keep alive those old animosities. It was suffi-
cient to satisfy him that the monster 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 Lernfean of old, and he sin-
cerely 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 Carolina, [Mr. McDuffie,] however, had declined
considering this as a precedent of the federal party, but had pi'onounced it the act of
a party who had deliberately determined to violate the Constitution of their country ;
and the gentleman had further said their reward had been politicnl 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 chiv-
alrous to carry it out sei'iously to its consequences, aud yet his remarks were liable to
such an interpretation. However this may be, said Mr. McLane, it is but decla-
mation. 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 enter-
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 Repre-
sentative of the same State which the gentleman now represents upon this floor.
From that period his life was marked by the exhibition of gieat probity and talents,
commanding public and private admiration ; sharing in his life tiie confidence of his
fellow-citizens, aud in his death, but the other day, wrapping a neighboring city in
mourning.

Sir, said Mr. McLane, ray own State had the honor to claim as her Representative an
able aud consjiicuous statesman of that Congress. Deservedly distinguished as he was
for the noblest private and public virtues, the luster of an illustrious life shone with
new light upon the public eye after the sc<'nes of that day. He lived only to give
stronger proofs of his patriotism, and to fasten his hold upon public confidence and ad-
miration. He was even selected, at a most critical ptn'iod of public affairs, bj' are])ub-
lican administration, for a highly important trust, aud bore a conspicuous share in
that memorable negotiation which restored peace to a bleeding country. Sir, I have
a high respect for the gentleman from South Carolina, and would rather smooth than
obstruct the path of his fame ; but were my feelings for him much warmer than they
are, I could not wish him a more enviable lot than the sann^ jiortiou of private and po-
litical character which rewarded the virtues of the distinguislied individual to whom
I have alluded, who was the pride of his State and tiie ornament of his country.

Mr. Weh.stick then 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 iu con-
ducting the approaching election, which prescribes that the galleries of rhis 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 w henever any disorder on the part of those who atrend there shall, in his
opinion, render it expedient and proper, so that, in fact, the question before the com-
mittee, which has been, he would not say the subject, but which lias been the occasion
of such an extended discussion, is simply this, whether the power of clearing the gal-
leries in case of disorder shall rest with the Speaker of the House or with the delega-
tion from a State. Th;s 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 considera-
tions which ought to influence a member of this House in giving his vote. As consti-
tuting, 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 otlier. But
he must say that their relation to the question before the committee 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 consideration
ought to be given to one and how much to another of these considerations. And in
such a case each member must judge for himself 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
nuist decide for himself.

A course of remark had been gone into, historical allusions had been made, and not

778 COUNTING THE ELECTORAL VOTE.

very slight deuuuciations bad beeu uttered, in relation to a former precedent, to all
which it might be expected that be should make some reply ; and he certainly felt, as
was natural in bis circumstances, a strong desire to do so, but be was lestrained 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 be obtained 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 delay. 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 re-
spect to the particular rule now in discussion, he considered it as very unimportant in
itself. If important at all, it had only been made so by the discussion of which it had
been nuide the subject. Rather than spend ten minutes more of the time of the House,
he would, for himself, willingly consent that the power in question 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 committee then rose, reported progress, and were
refused leave to sit again ; and the committee was discharged from the further consid-
eration of the subject.

On motion of Mr. Cocke, the Committee of the Whole on the state of the Union were
discharged 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 opening 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 appointed, and the result
shall have been declared, the same shall be entered on the journals 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 im-
mediately proceed, by ballot, to choose a President from the persons having the high-
est 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, without interruption
by other business, until a 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 observed that he left it to the House to de-
termine 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 consume the time of the House by any remarks which had not a direct reference
to the subject before it, or which were not di'awn out bj- topics brought into the dis-
cussion by other gentlemen. As to the present discussion, he had considered the gen-
tleman 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 himseli 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 farther, and had made a theoretical dis-
cussion of the powers of the House to bear on the question immediately before it.
And now, at the close of one of the most eloquent and imposing arguments ever de-
livered in this House, a member rises in his place and suggests the impolicy of contin-
uing the argument. He felt very great respect for that member, but he considered
the matter to be discussed as of the greatest importance. The principle laid down had
a very wide and extensive bearing, aud he felt it his duty to submit to the dictates of
his own judgment, and give the principle that discussion which he considered it
entitled to receive. The responsibility rested upon him, and he well knew the im-
patience of the House, and was aware of the lateness of the hour. But he was com-
pelled, not withstanding these disadvantages, to go into the argument, and to reply
both to the gentleman from North Carolina 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 dedu-
cible from the principle I advocate, 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

APPENDIX. 779

urge it. What is tlie case supposed by the gentleman from North Carolina? That
there are three candidates, and that eight States vote for each of them. Well, take
that case. The gentlemen say, if the people have a right to instruct 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 misapprehension of the
ground-stake. I did not contend that the delegate must go on voting to the end as he
began, and so defeat the election. 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 candi-
dates, 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 will is 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 hav) a

legal light to instruct their delegates, but

Here Mr. Webstek observed that he rose with gi-eat pain. He hoped the gentleman
from South Carolina wonld do him the justice to believe that nothing but an imperious
conviction 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 argu-
ment in the House in reply to an argument urged in Committee of the Whole any
more than if it had been urged in a select committee.

The Speaker decided that the observations of Mr. McDufBe were not in order on the
ground stated, and that they Avere not in order for another reason, viz : that the whole
scope of the debate was irrelevant to the (luestion actually before the House.

Mr. McUuFFiE, on the latter ground, submitted to the decision of the Chair.

The question was then put on the amendment, and carried.

Mr. WiUGHT moved further to amend the rule by inserting after the word " Senators "
the word "stenographers; " which was carried.

And the rule, as amended, was ado])ted, and read, as follows:

"3. The doors of the hall shall be closed during the balloting, except against mem-
bers of the Senate, stenographers, and the officers of the House."

The fourth rule was then read and adopted, as follows :

" 4. From the commencement of the balloting until an election is made, no propo-
sition 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 :

" 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 duplicates ; 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 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 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 pres-
ent; and where there is more than one Representative from a State, the 'duplicates
shall not both be deposited by the same jyerson.

" 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
Representatives 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 Naid sets of tellers shall proceed 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 different sets of tellers the result shall be re-

780 COUNTING THE ELECTORAL VOTE.

ported 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 procted in the same
manner as before to a new ballot."

Mr. Hajiilton, of South Carolina, then moved to amend this rule, by striking out
what follows the words "a ballot-box shall be provided for each State," and inserting
the following :

" 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 delegation in the order in which petitions are then called, and the nievnber of
each delegation shall place his ballot in the box labeled with the name of the State.
After all the States have thus voted, then the members of each delegation shall nomi-
nate a member of their delegation to act as teller, who shall proceed with the rest of
the tellers appointed by the several delegations to count the votes of each State, com-
mencing in the order in which they are called, at the close of which count the sepa-
rate vote of each State shall be declared by the senior member of the committee of
tellers, as well as the result of the aggregate 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 successive ballot, until a choice is produced, in conformity with the provisions of
the Constitution of the United States."

Mr. Hamiltdn 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 members 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 enabled, in an authentic lorm, to know how their rep-
resentatives have given the vote of the States which they represent.

Now, by the mode reported by the committee, 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 re-
jected, and by this clashing it might, in effect, arise that an election should be pro-
dnced 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 declared. 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 re-
gret with which such gentlemen might view their situation. Besides, he did not sup-
pose that any gentleman on that floor would desire to have any result produced 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 authentic 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 the 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 responsible.

Mr. Webster requested leave to make a single remark, which might save further dis-
cussion. The rule, as proposed by the gentleman from South Carf^lina, would be in
direct violation of the Cot stitntiu'n. 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 pre-
vailed, each of these gentlemen is compelled to declare in what way he has voted.

Mr. Hamilton observed, in reply to the gentleman 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, substantially, 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. Hamilton then dwelt very briefly
upon several public considerations which rendered such knowledge important, and

APPENDIX. 781

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 gentlemen 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 was, and the
amendment was not, consistent with it. The Constitution requires the choice to be
made by ballot; the votes to be taken by States, each State having one vote. The
amendment goes upon the principle 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 amendment seeks to dei)rive the
States of a vote by ballot, and confer power on the tellers, who shall ascertain, by count-
ing 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 deter-
mined.

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 Ijallot of a State shall result from a bare pliiraUty, or depend on a
majority of the ballots of each delegation. This is a question, sir, of too much import-
ance 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 confident 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 ic 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. McDuKi'iE 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
impenetrable 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 [)resent stood, rendered it impossible 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 ever mean
to screen the votes of the delegates themselves from public scrutiny. In declaring
that the votes should be by States, it meant no 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 gentleman 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 wonld 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 fandamental 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 influ-
ence exerted over him by members of this body, it was proper, on the other baud, that
the members of this House should be protected from his reseutment, 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
portion of them. When the Constitution was revised in 1801, this great fundamental
principle was preserved untouched. The rule proposed by the geutleman 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. Wkight again spoke in o])positiou to the amendment. He had supposed, he said,
that no one could have doubted that the Constitution required only one vote for each.
State, instead of one for each member of the House — in the present case twenty-four

782 COUNTING THE ELECTORAL VOTE.

ballots instead of two linndred aud thirteen f and he had supposed it equally clear
that the I'raiuers of the Constitution never contemplated that the proceeding should
stop tlie moment you had ascertained whether the State intended to vote, before the
ballot or vote was prepared and deposited ; but in this he found himself mistaken.
He should despair of removing those doubts, aud would forbear further argument as
to it. It is urged that the plan proposed by the rule makes the proceedings among the
States secret, and that you Lave 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. Individually, I have no
desire to keep my vote secret ; I am willing to proclaim it to the world. The gentle-
man from Illinois [Mr. Cook] has presented to you, much better than I can do, some of
the principles which govern elections 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 indorse his name on the ballot, or to rise when
about to vote, and proclaim for whom he voted, would entirely defeat the object of
voting by ballot, and break down all the guards the Constitution has established to
protect the elec*^or in the free enjoyment of his right.

Mr. Stewart, of Pennsylvania, regretted that time was not allowed more maturely
to examine so important a projiosition as that now before the House, before it was
voted on. From the short consideration he had been able to give it, he could not per-
ceive that it was inconsistent with the ('onstitution, and he should vote for it because
he perceived that its object was to remove everything like secrecy from the transac-
tion 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 au allegation was made afftcting
the purity ot any individual, would it be removed by his skulking and shrinking
from observation ? Would not this rivet the suspicion ? If a man was charged with
theft, was it the way to remove the charge if he shut his door and refused all admit-
tance and observation ? But if he threw open the suspected place, invited observa-
tion aud displayed a candid, open deportment, the report would be disbelieved. Bo
long as shadows, clouds, and darkness were suffered to rest on any of the doings of tl^is
House, the suspicious of the jieople would only be fixed and confirmed. "With a view,
however, to the further examination of the amendment, he moved that the House ad-
journ.

This motion was negatived by a large majority.

Mr. Stkwart then demanded that, when the question was taken on the amendment,
it should be taken by yeas aud nays.

The House refused to order them.

The question was then put on Mr. Hamilton's amendment, and decided in the nega-
tive— yeas, 52; nays, 115.

And the rule, as above stated, was agreed to.

The remaining rules were then successively read and adopted, as follows :

" 6. All questions arising after the balloting 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 ; aud in
case of an equal division of the votes of States, the question shall be lost.

" When either of the persons from whom the choice is to be made shall have re-
ceived 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 communicated 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."

Aud then the House adjourned.

TWENTY-SECOND JOINT RULE.

In Senate, December 15, 1875
joint rules.

Mr. Edmunds. I offer the following resolution about re-adopting the joint rules,
and ask that it be referred to the Committee on Rules, to inquire into the matter:

" Resolved, That the joint rules of the Senate and House of Representatives in force
at the close of the last session of Congress be, and the same are hereby, adopted as the
joint rules of the two houses for the present session."

I move that the resolution be referred to the Committee on Rules. I think the
subject needs inquiry and investigation as to the present condition of the rules
between the two houses.

Mr. Bayard. I ask the honorable Senator, as his experience in the body is greater

APPENDIX. 783

tlian my owu, if this is the customary method of extending the rules from Congress
to Congress, or whether it be necessary to adopt such a resolution ?

Mr. Edmunds. That, as a celebrated Englishman said, is past finding out. The
object of this resolution is to ascertain from the proper Committee on Rules whether
the joint rules that were in force at the last session of Congress are in force now with-
out any vote ; and, if so, upon what principle of law or joint proceeding ; and, if
not, of course to take some steps to have some joint rules between the two houses.

Mr. Bayard. Is this resolution to be referred ?

Mr. Edmunds. That is my motion, that it be referred to the Committee on Rules
for inquiry.

The President pro tempore. The resolution will be referred, if there be no objec-
tion. The Chair hears none.

January 11, 1876.

Mr. Merrimon. The Committee on Rules, to whom was referred the resolution in-
troduced by the Senator from Indiana [Mr. Morton] to amend the twenty-fifth rule of
the Senate, so that bills may be introduced without previous notice, have instructed me
to report the same back adversely.

I heg to say that originally there were no standing committees in the Senate ; when
a bill v.'as introduced it was by leave, and a committee was raised to prepare a bill
which would embody the motion. The first rule on the subject was this, adopted
April 7, 1789 :

" Every bill shall be introduced by motion for leave or by an order of the House on
the report of a committee, and in either case a committee to prepare the same shall be
appointed. In cases of a general nature, one day's notice at least shall be given of the
motion to bring in a bill, and every such motion may be committed."

November 13, 1794, this rule was adopted :
• "Every bill shall be introduced by motion for leave or by an order of the House on
the report of a committee, and in either case a committee to prepare the same shall be
appointed. In cases of a general nature one day's notice at least shall be given of the
motion to bring in a bill, and every such motion may be committed."

In the Annals of Congress, first volume, page 21, the action of the Senate upon the
subject will be found. The rule was subsequently amended to read :

" Rule 12. One day's notice at least shall be given of an intended motion for leave
to bring in a bill."

Here is an extract from the Journal showing how the proceedings were had :

^^ December (i, 1799. — 'Mr. Dexter notified the Senate that he should, on Monday next,
ask leave to bring in a bill to revive the act entitled "An act for the relief of persons

imprisoned for debt.' "

# * * # * # «

"December 9, 1799. — 'Agreeably to notice given, Mr. Dexter had leave to bring in a
bill to revive the act entitled, &c., * * * which was read ; and by unanimous con-
sent the bill was read the second time.

'"Ordered, That it be referred to Messrs. Dexter, Lawrence, and Tracy, to consider
and report thereon to the Senate.'"

The object of the present rule was twofold: first, to give notice to the Senatethat
a bill of a particular nature was about to be introduced, so that any Senator who de-
sired to speak to it at the moment of introduction might be prepared to do so; and,
next, to prevent any Senator from introducing a bill and having whatever action he
might see fit to take in connection with his motion spread uj)on the Journal when such
a bill or such a motion might be distasteful to the Senate. The connuittee, upon con-
sideration, regard this feature of the rule as having a very conservative tendency. If
any one should desire to speak to the merits of a bill at the time of its introduction,
another Senator might suggest that the rule must be observed, that notice should be
given, and this would afford an opportunity to present any objections or to say what
he might see fit in that connection.

But there is another important feature. Although one can scarcely conceive that a
Senator would do so, it might be that in times of high excitement or for purposes of
malignity a Senator would introduce a paper that might be insulting to the Senate or
to a large body of it. In that case the Senate would have the notice of such a mo-
tion, and proper action might be taken in order to ])revent its presentment to the Sen-
ate or prevent it from going upon the Journal or appearing at all.

I repeat that the committee have instructed me to say (and I believe the committee
were unanimous in that) that this rule is regarded as having a very conservative influ-
ence, and they think it would be unwise to modify it in the respect proposed by the
Senator from Indiana.

Mr. Morton. I take it, from the remarks of the Senator from North Carolina, that
the committee has totally misapprehended the object of my resolution. I did not in-
troduce a resolution to take away the right to make an objection to the introduction
of a bill where one day's notice had not been given, but my resolution was simply to
dispense with the idle formality of saying, "I ask leave to introduce a bill without

784 COUNTING THE ELECTORAL VOTE.

having given previous notice," a thing that is never refused, and yet it is printed some-
times fifty times in the proceedings of one morning, requiring a large si^ace in the
minutes, costing hundreds of dollars to print it in the course of a session, and abso-
lutely without any sort of use. I propose to dispense with this idle formality and at
the same time to leave to Senators the right to object to the introduction of a bill
where previous notice has not been given, reserving the right to require the bill to lie
over one day in that case. I will read my resolution:

" Resolved, That the twenty-fifth rule of the Senate be so amended that bills may be
introduced without previous notice unless objection is made, and that it shall not be
necessary to state in the minutes that leave was given to introduce a bill without pre-
vious notice."

My object was simply to dispense with that idle formality. We hear the minutes
read here every morning. For twenty minutes the Secretary is kept saying, " the Sen-
ator from North Carolina," or "the Senator from Missouri," " asked leave to introduce
a bill without previous notice, and leave was given to introduce the bill." But it is not
only the time taken here; it is the cost of printing. This custom as it exists I think
is absolutely without any use; but if I offer to introduce a bill which the Senator from
North Carolina or any other Senator thinks is not of a proper character, he can then
make his objection.

At the same time I will say, Mr. President, that the reason for this rule in the first
place has entirely passed away. My friend from North Carolina has shown that the
rule was introduced at a time when there were no standing committees of this body and
when every bill that was considered had to be referred to a special committee Every
bill was therefore a far more troublesome matter than it is now. As each bill had to
go to a special committee, it was considered proper that no bill should be introduced
without giving previous notice, and objection was sometimes then made to a bill on its
first introduction — a thing that is never done now.

I submit to my friend from North Carolina that the committee has entirely mistaken
the object I had in view.

The President jjro tempore. The question is on the indefinite postponement of the
resolution, as recommended by the C(jramittee.

Mr. MORTOX. I suggest that this matter be recommitted to the coreimittee. I desire
the committee to act upon it in the sense in which the resolution was introduced. I do
not, and did nf>t, ask to take away the right to object to the introduction of a bill, but
to dispense with this idle formality here on the fioor of the Senate, which is afterward
reproduced in the minutes sometimes fifty times a day.

Mr. Edmunds. May I ask the Senator whether, by retaining the right to object, he
means the right of a single individual to postpone the question of introducing a single
bill until the next day on objection, or merely to raise the question then and have it
passed upon instantly?

Mr. Morton. Whatever the effect of the rule is now by requiring leave to introduce,
I am willing to reserve that right. I do not propose to dispense with that, but simply
to get clear of what hiis been a bore to us, I think, ever since I have been in the Sen-
ate, and, probably, for a great many years before.

Mr. Edmunds. I think, and I have observed it to be useful as well, that the sub-
stance of the present rule — I am not s])eaking as to how it should be entered in the
Journal or in the Record— but the substance of the pi-esent rule is very wholesome.
Tlie theory of it, as I understand, is that no member shall have a right to force the
Senate into the reception of a bill without a day's previous notice ; so that Senators
who may be interested on the other side, or if it is something that they think ought
not to be brought in at all, may have fair notice, and be here. Now, if you change
the rule so that a majority of the body can, without any ])revious knowledge of the
other Senators who may not be present on that jiarticular day. bring in a bill and pass
it to its first stage, then you lose the benefit of this security against surprise which the
present rule give us. But, if I noAv understand my friend from Indiana, he does not
propose to change the substance of the rule.

Mr. Morton. Will my friend allow me one moment to explain ? I would make the
rule what I think it is in regard to Senate resolutions. A resolution is introduced here,
and if no objection is made it may be considered on the same day ; but if any one wants
it to lie over until to-morrow, it goes over. I would have the same rule in regard to
hills, and not make it necessary to go over the " ask leave to introduce " in speech or
in print.

Mr. Edmunds. I cannot concur in that view as to bills. It often happens as to bills
that a bill is oroposed which a majority of this body does not think ought to be brought
in at all — which ought not to be considered. As to Senate resolutions, the scope of
which of course is very narrow, usually relating to some right or proceeding of the
Senate itself, the rule is otherwise, I take it, and anybody has a right to introduce a
resolution. It cannot be considered on that day, but it is in the possesion of the Sen-
ate, and goes over when objection is made. Now, as to a bill, the present rules do not
allow that, and I do not think they ought to. We have had a notable instance within my

APPENDIX. 785

recollection and that of my frieucl from Indiana, where a very large majority of this
body thonght it was nufit that a bill, or a joint resolution, which is of coarse substan-
tially the same thing, should be brought in at all. I think it was a joint resolution
offered by one of the Senators from Kentucky, looking to the disposal of Arlington,
where the Union soldiers are buried, and in strict accordance with the rules objection
was made when he asked unanimous consent to its being brought in at all. Notice
was accordingly given that on the uext day he would move for leave to bring it in.
He did move, and the (juestion came up whether he should have leave to bring in the
bill for ccmsideration at all ; and the Senate, by a large majority, and as I thought
rightly, declined to grant him that leave. I wish to i^reserve the substance of that
rule for just such cases.

Mr. MouTON. TLiere is no diff"erence between me and my friend from Vermont upon
this (jnestion. The rule in substance now is just as I would leave it. A member asks
leave to introduce a bill without previous notice. It is au idle formality, an<l has
never been refused but once since I have been in this body, and I remember that was
on an objection made by Mr. Davis, of Kentucky. I would dispense with this formal
asking of leave; I would dispense with the formal granting of leave in the minutes,
and if I introduce a bill leave it as the right of every Senator to have the bill go over
until to-morrow.

Mr. Merrimon. I do not think that the remarks of the Senator from Indiana cover
the whole case, and particularly the merits of one feature of it. If I rise to introduce
a bill I say, " I ask unanimous consent of the Senate to introduce a bill." At once it
is sent to the Clerk's desk ; the Clerk reads the bill by the title, and it goes upon the
Journal. It is obliged to go there under the rule. If I am bound to give notice of that
bill one day, I state that I give notice that I will introduce a bill to-morrow, or at some
future day, for a i)articular purpose. If some one, thinking that bill is not one ht to
be introduced, shall look into the matter, when I couie to offer it to-morrow he says,
" I object to the introduction of that bill, and I assign this reason, and the other reason,
and another reason why it ought not to be introduced at all ; it ought not to have place
upon the Journals of this body at all ; it is not a bill fit to go u])on the Journals." In
that case nothing would appear except the notice of the bill. Uiider the plan that the
Senator proposes, every Senator introduces a bill as a matter of course, unless some-
body who is not on the alert, not expecting such a thing, rises in his place and says,
" I object to that bill being introduced."

This rule has been in existence for a long ]>eriod of time, and, for one, I am not dis-
posed to unsettle that which is settled, and which has proved beneficial by a long
course of practice in the Senate. The Senator says there was a time Avhen it was more
difficult to introduce a bill and get it before the Senate than now. I beg to say to him
and to the Senate that I think it would be very wise and well if bills could not be
brought before the Senate so easily as they are now. We know bj^ experience— I know
by my little experience in this body — that scores of bills are introduced which had
much better never have been introduced.

I do not care to debate this matter. I have no personal interest in it. The report I
have made is the unanimous opinion of the committee. One of the committee, a gen-
tleman who has been in the Senate for a long time, who presided in this body as Vice-
President of the United States, and who has had large experience in administering the
rules, is decidedly of opinion that it is wholesome, that it exerts a wholesome influence.
As to the cost, that is a mere drop in the ocean ; it is as nothing compared with the
conservative influence that this rule exerts over our delibei'ations and proceedings.

Mr. Morton. Mr. President, I care nothing about this matter. I offered the resolu-
tion to avoid some expense, but the Senator says the expense is trifling. Perhaps it
may not be over a thousand dollars a session, and that, he says, is a mere drop in the
bucket. 1 agree to that ; but still these dn)ps in the buckiet sometimes make the bucket
full, and in these days of democratic retrenchment and reform I thiuk et^en the saving
of a thousand dollars a year is not a matter to be sueezed at. But my suggestion was
to recommit the resolution because the committee did not seem to understand its pur-
pose at all. They seem to have supposed that I was i)roposing to do away with the
right to object to the introduction of a bill. I had no such idea. I think the commit-
tee had better take it again.

Mr. Anthony. There seems to be such misapprehension as to the effect of the rule
and the amendment that certainly I think the matter should be recommitted to the
committee. I hope that will be done.

Mr. Hamlin. Mr. President, I have listened to the Senator from Indiana, and I fail
to see that I misapprehended the scope of his resolution. If I uiulerstaud him now, I
certainly did not fail to apprehend it in committee. The objection to changing the
rule is this : As the rule now stands, no Senator, as a matter of right, can put a bill
before this body, introduce it without notice. The Senator virtually proposes to do
away with that. That is the reason why, in my judgment, what he proposes should
not be done. You may presume extreme cases where bills offensive to the body are
off"ered. Although I may have a right to offer such a bill, as I offer a resolution or a

786 COUNTING THE ELECTORAL VOTE.

memorial, while parliamentary law says neither of those things shall be done in a
manner offensive to the body, yet such a thing may be ; and it is certainly within my
knowledge that the right to present many bills has been refused. It is a little trouble-
some to observe in all respects this rule, I grant, but it is conservative in its action ; it
serves to protect the body, if you please, against extreme cases, and I think we had
better keep the rule as it is.

Mr. MoRTOX. Mr. President, I have been very unfortunate, or else the Senator
from Maine does not comprehend the purpose of my motion. As the rule now stands,
if I introduce a bill I must " ask the leave of the Senate to introduce a bill without
having given previous notice." If no objection is^nade it is understood that that leave
is granted, and all this is printed in the minutes the next morning. Now, I would
dispense witli asking that leave ; I would dispense with printing the permission ; but
I would leave the right to any member to object to the introduction of a bill to-day
and require it to go over till to-morrow. It amounts to the same thing precisely. Un-
less somebody does object when I ask leave, the bill is introduced ; and if I offer to
introduce a bill without asking leave, but still give the right to object, I ask if it iS
not just the same thing precisely ? To save my life I cannot see the difference.

Mr. Merrimon. May I ask the Senator a question ?

Mr. Morton. Certainly.

Mr. Merrimon. The Senator rises to introduce a bill, and he does it as a right ; he
does not ask any permission ; he sends it to the table and the Clerk reads the title.
After the Clerk has read the title and it goes upon the Journal, another Senator then
sees that that is a bill which ought not to be introduced, and then he says, " I object."
It goes over then, as he would have us provide ; but it goes over after the title of the
bill at least has gone upon the Journal.

Mr. ^lOKTOx. It amounts to precisely the same thing. If I proposed to introduce a
bill now without previous notice, my friend from North Carolina would under no circum-
stances object unless he knew what the bill was and that it was offensive. He would
wait, therefore, until he heard the title read, and then he would say " I object," and
thereupon the bill would go over to the next day. But if I have the right to intro-
duce a bill without asking leave formally, after he hears the title read I still leave him
the right to object, and it goes over to the next day. The substance of the rule is ob-
served, but we get clear of this idle formality. That is all there is about it.

Mr. Merrimon. But if he gives notice, and the rule requires him to give notice, and
he says " To morrow I will introduce a bill " for a particular purpose, then I may, if I
wish, ascertain that ])urpose ; I may communicate with him ; I may learn the scope of
his bill ; I may learn its nature ; I may learn that it is offensive ; and then, when to-mor-
row comes, and he offers to introduce it, so that it shall take its place on the Journal,
I submit to the Senate such considerations as induce me to believe that it ought not to
be introduced, and thereupon he is not allowed to introduce it; it has no status on the
Journal at all.

The President pro tempore. The Senator from Indiana has moved to recommit the
resolution, but the motion to postpone indefinitely has precedence. The first question
is on the motion to postpone indefinitely.

The motion was not agreed to.

The President pro tempore. The question recurs on the motion to recommit the res-
olution to the Committee on Rules.

The motion was agreed to.

January 20, 1876.

The President JJ/-0 tempore. The Senator from Vermont moves that all prior orders
be postponed, for the purpose of taking up the resolution reported from the Committee
on Rules on the 10th instant.

The motion was agreed to ; and the Senate resumed the consideration of the follow-
ing resolution :

'■'■Eesolred hy the Senate, (the Rouse of Representatives concurring,) That the joint rules
of the Senate and House of Representatives in force at the close of the last session of
Congress be, and the same are hereby, adopted as the joint rules of the two houses for
the present session."

The pending question being upon the amendment of Mr. Morton, after the word
" Congress," in the fourth line, to insert '' excepting the twenty-second joint rule."

Mr. Bayard. I submitted, yesterday, Mr. President, a resolution, as a substitute for
the report of the committee, and if it be in order I should like to have it read now ;
and I ask whether, in the present stage of the consideration of the question, it can be
offered ?

The President pro tempore. The Senator's motion is in order.

Mr. Bayard. Then I submit, as an amendment to the resolution, the substitute I
offered yesterday, and ask that it be read.

The President jvo tempore. The amendment will be read.

The Chief Clerk. It is moved to strike out all after the word -'that" in the first
line of the resolution and insert :

APPENDIX. 787

" The Committee on Rules of the Senate and House of Representatives be, and they
are hereby, instructed to examine and, after conference, to report what amendments,
if any, should be made in the present joint rules of the two houses; and also whether
any, and what, legislation is expedient in regard to the matters considered in the pres-
ent twenty-second joint rule."

Mr. CoNKLiNG. Is that offered as an amendment ?

The President jjro tempore. As a substitute. The lirst question is on the amend-
ment of the Senator from Indiana [Mr. Morton] before the substitute is voted upon.

Mr. Bayard. As I understand the amendment of the Senator from Indiana, it is to
adopt the joint rules of the two houses, as they now stand, excepting the twenty-sec-
ond.

Mr. Edmunds. No, Mr. President ; the precise proposition is not to adopt the joint
rules of the two houses as they now stand, but to adopt the joint rules of the last ses-
sion. Then the Senator from Indiana moves to amend that resolution by an exception.
Now the Senator from Delaware offers a substitute for the whole thing; and as the
Chair states it is clear that in order we must perfect the original resolution before we
vote on the substitute, so that the question is on the amendment of the Senator from
Indiana.

Mr. Bayard. I had some doubt whether, pending the amendment to the original res-
olution, a substitute would be in order. I asked the Chair, and the information given
me was that it would be in order. If now the decision of the Chair is that the amend-
ment of the Senator from Indiana must bo voted upon first, before my proposition can
be considered, be it so.

The President pro tempore. The Chair replied to the Senator that his substitute was
in order ; but the rule requires that where a substitute is offered the text shall be per-
fected if the body sees fit to so perfect it. The Senator from Indiana having moved
to perfect, the first question will be on his amendment. The proposition of the Sena-
tor from Delaware will still be pending, and when the test has been perfected the
question will recur on the substitute of the Senator from Delaware. The question now
is on the amendment proposed by the Senator from Indiana to except the twenty-sec-
ond joint rule.

The amendment was agreed to.

The President pro tempore. If no further amendment be offered to the text of the
resolution, the question is on the amendment of the Senator from Delaware as a sub-
stitute for the resolution.

Mr. CoNKLiNG. I should like to inquire of the mover of this substitute whether to
his knowledge there is any serious difficulty about either of the joint rules of the Sen-
ate and House of Representatives save the twenty-second joint rule ?

Mr. Bayard. I do not know at all of difficulties as to other joint rules. I assume
that the joint rules of the two houses, which have been in existence almost from the
foundation of the Government and have received the approval and sanction of those
preceding us, will remain as they are. I take it for granted that this is the first time
than an amendment or cancellation of the joint rules has been proposed, and I consider
that the proper method of considering the subject is to submit it to a conference of the
proper committees of each House ; and then in regard to the twenty-second joint rule,
upon which we have had some discussion, I submit to the Senate that the matters em-
braced in that rule should be acted on by legislation, and not by the joint rules of the
two Houses.

Mr. CONKLING. No doubt the Senator from Delaware will anticipate the object of
the inquiry I rise to make; and it is this: It strikes me, as I think it will strike the
Senate, that if it be true, as the Senator and I agree, that there is no question about
any of the joint rules save one, if the Senate proceeds to adopt the joint rules of the
Senate and House all saving that one, then such motion as the Senator from Delaware
makes or any other motion applicable to that one, to wit, the twenty-second joint rule,
will not only be in order, but will be unembarrassed by a general reference to the whole
body of rules. In other words, I submit to the Senator that the way to advance the
object he has in view, namely a consideration of the twenty-second joint rule, is to
dispose of the rest and residue of the joint rules, and establish them, there being in
regard to them no question and no objection.

It may A^ery well be that after the vote shall be taken, it will be seen that the mode
l>roposed by the Senator from Delaware will be preferable to any other mode of ap-
proaching and considering the question of the twenty-second joint rule; but I cannot
see how it advances the purpose of the Senator from Delaware to embrace all these
rules in name, when in reality there is but one at which his motion is actually aimed.
So then, unless there be something that does not occur to me on this subject, I should
vote against substituting the resolution of the Senator from Delaware for this resolu-
tion, my understanding being, that, failing to substitute it, it will be, as an independ-
ent motion of its own, unimpaired by the vote, which in the mean time might be taken,
and in addition to that, separated and relieved from what really should not encumber
it, and what the Senator agrees with me in supposing is well enough as it is.

788 COUNTING THE ELECTORAL VOTE.

Mr. Morton. I have no objection to the twenty-second joint rule being referred to
the Committee on Rules ; perhaps that will be proper. I will say, however, that it is
now pending in the Committee on Privileges and Elections, and has been twice before
that committee heretofore. That committee reported last session a substitute for the
twenty-second joint rule in the form of a bill, which passed this body, and the same
bill has been introduced this session. It is before the committee, and has been, I be-
lieve, partially considered. But if it is the will of the Senate to make this disi^osition
of the suljject, I shall be content.

Mr. Bayard. As I stated in reply to the Senator from New York, I had nothing in con-
templation in the way of interference or amendment with any of the existing joint rules
of the two houses except the twenty-second joint rule. As a question has been raised,
it is of great importance that it should be properly settled. Gentlemen have differed
on this floor in regard to the power of each house over the joint rules. A very inge-
nious and able presentation of the subject was made by the Senator from Ohio who sits
near me. [Mr. Thnrman,] claiming that the House of Representatives was a continuing
body, and that there was needed no adoption at the incoming of each new Congress
of either the separate or the joint rules governing the preceding house. Having heard
him and considered his point, I entirely dissent from his view. I believe that the
House of Representatives is not a continuing body, and that, indeed, it is not only
separate, but that each house has its operative legal existence and would be without
any rules until it has adopted the parliamentary rules of the preceding house, as is
usually done. The proposition has been made here that, this being a joint rule, made
by two contracting parties, neither can at will retire from the rule. That is a very
grave subject. Gentlemen on this floor have admitted such a view, and declared that
it required a joint consent to the rescission of a I'ule as much as to its formation ; but
from that proposition I entirely dissent. I cannot believe that, either under the lan-
guage of the Constitution or the very theory of checks and balances which the two
houses were designed to enforce one upon the other, the independence of either house
can be taken from it, either by its own act or an act of the other house. Therefore I
hold, as these rules are made, they are made during the good pleasure of each house,
and that it is in the power of either the Senate or House of Representatives to retire
from a joint rule at any time, and simply give notice of that fact to the other branch
of Congress.

But still the question has been made, and I think it would be advisable to have it
settled by conference of the two houses through their respective Committees on Rules.
I cannot doubt that on examination they will come to the conclusion to adopt the whole
code, if I may so call it, except this twenty-second joint rule, which is highly excep-
tionable. Therefore I do not think there is any necessity to apprehend embarrass-
ment in treating this subject, because I have referred the matter to the two houses.
These points having been raised, I think they should be disposed of gravely and
properly. 1 know no reasonjwhy there should not be an entire assent between the two
branches on the subject ; but the questions having been raised, I think it is a good op-
portunity to have the subject considered.

I should vote now for the ado]ition of the joint rules of the two houses, excepting
the twenty-second joint rule, and I prefer to have the proposition made and considered
in this formal and deliberate manner for the purpose of having the matter reviewed.
It is a very grave subject. It has not been, so far as my researches enable me to dis-
cover, heretofore brought before the Senate in a manner that would admit of a clear
decision, as it has been at the present time. There is no act of Congress on the sub-
ject. There is really nothing in the practice of the two houses on the subject. I am
not aware that any joint rule of the two houses has ever been repealed. Such rules
have been amended by the joint action of the two houses, but I submit that as yet I
know of no case where either house has elected to retire from a joint rule ; and yet I
cannot doubt the power of either house to do so. Still I think it would be well, as
we are treating of these joint rules, if we should invite the co-operation of the other
house. If I am right in that, there will be no embarrassment, because the whole sub-
ject of the rules will lie referred to the committee.

But now we come to a more important part of the proposition, and that is that the
committee are to report whether any, and what, legislation is expedient in regard to
the matters considered in the twenty-second joint rule. There seems to have been a
lamentable want of discussion at the time of its adoptifm in l8V^n. The Senator from
Indiana exjiressed his view of it, and that was very little. I think he stated that its
author said that he had really forgotten that he had draugh'edit. aiidgaveno reasons why
he draughted it, and could give no reasonsforthe authority claimed andexercised by the
two houses of Congress on the subject of that rule. If that be so, and I cannot doubt
it after the statement of the Senator from Indiana, the people of this country have
in reality, for the last three presidential elections, had hanging over them a power in
either branch of Congress to defeat the popular choice by a motion made and decided
without debate by either house of Congress. So long as a certain political party held
the control of the House of Representatives, so long, under this joint rule, they could.

APPENDIX. 789

by raising any question, any pretext upon the count of a vote, upon a form of a cer-
tificate, liave thwarted the popular will and have become themselves the electoral
body of the President and Vice-President of the United States. It has not been a
matter conceived in haste and corrected at leisure. It has been conceived in deliber-
ation, continued deliberately from that day to this. Now that the political complex-
ion and character of the other House of Congress has changed, it is seen that this ter-
rible power of veto upon the popular will maybe exercised by others than those whom
it was intended to be exercised by.

Now, sir, upon this subject, immensely important as it is, I desire to say that, be-
lieving such an assumption of power to have been originally wrong, it cannot harden
into right by acquiescence or by jiractice, and as this rule should never have had an
existence, as such powers were exercised at the last count of the presidential vote never
could have been properly exercised, so I wish it to be destroyed and negatived by the
action of Congress. Although I know that that party with whom I am in political affili-
ation has tbe power under this present twenty-second joint rule to declare, according to
their will, who shall be the next President and Vice-President of the United Sta.es,
they have no right to exercise such a power except in the contingency appointed by
the Constitution ; that is, the failure of any candidate receiving a majority of the elect-
oral votes cast.

Sir, this question is one of the very gravest importance. True, the Constitution is
unfortunately too silent. It provides simply that the President of the Senate shall open
the certificates in the presence of the two houses, and that the %'ote8 shall then be
counted. Taking the words strictly, there is merely a ministerial duty on the part of
the President of the Senate with his thumb and finger to tear otf the seals of the envel-
opes and present the certificates of votes. He is not to count them. The Constitution
does not say that he shall count them, but simply that he shall open the certificates,
and that they shall be counted. By Avhom ? Can it be that this grant of constitutional
power shall be put in force by the machinery of a joint rule that has not the obligation
of a law, and over which either house holds at its pleasure complete control ? I cannot
imagine a more dangerous state of afi'airs.

Suiqiose it should be held by the House of Representatives that it is not competent
for the Senate at their will and without notice to retire from the twenty-second joint
rule and that they will hold us to the exercise of it, you can see what a dangerous con-
dition arises between the two houses. It is one that should be settled before heat and
excitement come, one that shtuild be settled not in the .spirit of party but by some-
thing far higher and more patriotic. Therefore it is that I believe that thispower,
scant though it be, obscure though tlie terms of its grant may Ite, is to be exercised by
the aid of the machinery of legislation duly passed, that there" should be the concurrent
action of each house and the approval of the President, just as the Constitution requires
his assent to any bill that may be presented. Therefore it is that I hope this substi-
tute of mine uuiy meet the approval of gentlemen of all p(ditical vimvs in this Senate.

It is not worth while to speculate now on the possible tribunal in whom this judicial
power, this power of discretion in regard to counting the votes, should be reposed.
There can scarcely be a more important question for decision than that ; but certain
it is that it ought net to be left where it is now ; it ought never to have been placed as
it is now. For the last eleven years we have been living under this rule, and we have
been living really under a Government not warranted by the Constitution. Powers
have been claimed, powers have been exercised over this vital snlyect of determining
the choice of the peoj)le, which ought never to have been claimed or exercised.

Sir, I hope that the proposition which I have moved in this shape will meet the ap-
proval of Senators on all sides of the chamber, and that if it is necessary — and I be-
lieve it is— that the scant language of the Constitution should receive the aid of legis-
lation in order to make it operative, it should be done in the forms of law and not
tinder the form of a mere rule of consent which has no other existence than the pleasure
of each house. For that reason I trust the amendment I have offered as a substitute
for the resolution will meet the assent of the Senate.

Mr. Edmunds. I beg leave to suggest to my friend from Delaware, whose views on
this subject in a very considerable degree agree with my own, that he withdraw this
substitute at present and let us adopt the joint rules of last session excepting the
twenty-second, which we have already voted out. He and I both agree that at this
moment we have no joint rules.

Mr. Bayard. Pardon me ; I did not say so, because the other house has not retired
from the joint rules. The House, I understand, has adopted these very joint rules at
the present session. The Senate is a continuing body, and therefore I "do not think it
is necessary for us to express their adoption.

Mr. Edmunds. Then I do not understand the answer. I understood the Senator to
say that he did not believe in the power of any parliamentary body to bind its suc-
ceeding body, whether it be a popular body in the constitutional sense or a parliament-
ary body whose term of office has expired. I supposed he thought it could not set up
a law for its successor which could bind that successor until there should be votes

790 COUNTING THE ELECTORAL VOTE.

enough to change it. Whether the House of Reiiresentatives has adopted these joiut
rules at this present session or not I do not know. I have no knowledge of it. 1 have
never seen any such statement.

Mr. Bayard. Not in the record of debates ?

Mr. Edmunds. I saw in the record of debates a motion to adopt the rules of the
last House of Representatives ; I did not see anything else. If there was a motion to
adopt the joint rules of the preceding session, we ought to have been notified of that
first. We have received no such notice. That I am sure of, and I am sure my friend
from Delaware will see when he looks at the Record that it was the adoption of the
House rules projjer alone. That being the state of the case, we have not, as my friend
and I both agree, any joiut rules. We all agree, as the practice has been, that joint
rules may be adopted by acquiescence, by acting under them without objectiou. Some
of them provide for intercourse between the two houses, and it may be that acting
under one would not imply an adoption of another. I do not really think it would ;
but in drifting along in this way we are liable to be met by and by in one house or the
other with the suggestion, "You have already got your joint rules for this session,
however clear the law may have been that you had not any when you began your ses-
sion, and it is now too late to make objectiou ; and therefore you cannot change the
twenty-second joint rule without the consent of both parties." I do not agree with my
friend from Delaware that in a particular session, when the joint rules have been
adopted by the concurrence of the two houses, either may retire at its own will by
simply giving notice to the other party. I do not think that is the law\ I cannot see
any foundation for such a proposition as that. We might as well say that any mem-
ber of this body can retire from the observance of rules as soon as it displeases him.
Of course two governments treating with each other may retire from a treaty ; but,
unless the treaty provides for retiring from it, they retire from it by breaking it. Of
course if either house, as a mere matter of power, without regard to right, (which must
be supposed to goveru both houses,) should say "We will disobey a joiut rule which
declares that messages from the House of Representatives shall be received through
their Clerk, and that messages for the Senate shall be received there by our Secretary,"
the remedy might be difficult to find.

Mr. Morton. If the Senator will allow me, I beg to s>iggest that the first thing to
do, to make sure, is to get rid of the twenty-second joint rule, and after we have done
that, this will come in necessarily as a ncAv resolution.

Mr. Edmunds. If my friend had waited a minute he would have found it unneces-
sary to make that suggestion. I was coming to that as fast as my slow way of doing
things would allow. I was endeavoring to illustrate the necessity of doing what the
Senator from Indiana has suggested by showing that at this present moment this ter-
rible joint rule, as it is called, is not bmding on either House. We have not anj^ such
rule ; we have not any other joint rule ; and yet we are every day doing things in ac-
cordance with some of the joint rules of the last session. My friend says that we may
retire from these joint rules of our own volition without the consent of the other party.
I do not think we can do that if they are adopted at this session, but if none of them
are in force, of course there is nothing to retire from. We may disobey the rules and
refuse to receive the Clerk of the House of Representatives. That is abolition, not
retiring. We have no right to do it, in my opinion ; but the point now is that we
have, by a unanimous vote of this body, expressed our disposition not to re-adopt the
twenty-second joint rule as a joiut rule of the two bodies, as it now stands. The Sen-
ator from Delaware agrees with us all that there is nothing else in the joint rules of
the last session which requires special investigation, or to which there is any special
objection. Let us, therefore, as the simplest thing in the world, adopt the joint rules
of the last session, omitting this one. Then we have a set of joiut rules covering all
subjects of our mutual intercourse. Then, as he says himself, the subject of counting
the electoral votes for President is one that must'be proceeded with on the basis of
legislation, and not on the basis of a rule ; and if we are to proceed with it on the
basis of legislation, then we must inciuire into it by a legislative committee, in the
ordinary course of things, and have a bill reported.

So, then, I submit to my friend, with great deference to his views, that the simplest
and clearest thing to it at this moment is not to press the substitute but to adopt the
joint rules of the last session, omitting this one, and then we shall have a clear field
with the legislative inquiry which he himself proposes and which is so desirable to
us all.

Mr. Bayard. Mr. President, I have no disposition to change any of the joint rules
except the twenty-second, and I do not know that any one in either house has. The
object for which I offered the amendment was to have the question of the powers of
the two houses over their joiut rules examined and reported upon, and reported after
a conference in regard to what legislation is expedient in regard to the matters em-
braced in the twenty-second joint rule. I have no objection to this resolution if it be
amended in that way. It is of interest, of course, but it may not be important at this
moment to decide as to the power of the Senate over the joint rules of the two houses.

APPENDIX. 791

The Constitution, on tlae subject of the rules, gives to each house the po^Yer to deter-
mine the rules of its proceeding. The very force of that word '' determine " certainly
is to put an end to any rule they may adopt. As to the joiut rules it says nothing ; but
as part of the business of the two houses is concurrent, the power would be implied in
each house to make rules for cases where its proceedings touch the proceedings of the
other body as well as where they were confined to the action in the body itself. The
power of each house to make rules having been expressly given by the Coustitution,
nothiug more is to bo implied : for I believe it is a safe rule that you are not to infer
an implied grant of power from an expressed grant.

My present disposition is, with deference of course to the Senator from Vermont, to
differ from him in regard to the power of the House at any time to retire from a joint
rule on giving notice. Otherwise they would be tied up for the session irrevocably to
a joint rule which, because it was a joint rule, had a binding effect which other rules
could not have. The Senate cannot deprive itself of its power over its own rules ; it
cannot delegate any portion of this power to another branch of Congress ; and it has
no right to deprive itself of its power given to it for its own exercise in its sound dis-
cretion.

Therefore it is that I believe it is within the power of the Senate — I mean within
the constitutional power of the Senate — to retire from any joint rule at will, under
the forms prescribed by themselves for amendment and alteration of the law, I be-
lieve this idea is in furtherance of the necessary independence of each house of Con-
gress from the other, in order to form a check on the action of the other, for this was
designed to be a Government in which various checks should constantly interpose upon
the power of each house. Each house was created with particular powers for the
purpose of preserving those checks and balances in the Government. But I am anxious
that the question shall be considered, and considered now by the respective Commit-
tees on Rules of the two houses. I have no idea that there will be fouud any neces-
sity for amending any of the rules but the twenty-second joint rule, and that, I be-
lieve, had better be tried, because it is leaving that subject under the machinery of a
rule which ought to be dealt with only under the machinery of a law regularly en-
acted.

If it be the object of the Senate to repeal the twenty-second joint rule and to leave
the naked language of the Constitution, insufficient and meager as it has been found
to be, to stand in doubt and obscurity until the next count of the presidential votes,
then I shall say they will fall very far short of their duty in my opinion.

Mr. Edmunds. I beg to assure the Senator that I have no such object. My object
is to have the joint rules which are not embarrassed with the twenty second adopted,
and then to provide by legislation, as we attempted to do at the last session, and I
think my friend's opinion and my own came very nearly together on the general toi)ic,
for that contingency, and leave the joint rules disembarrassed of this one for the time
being.

Mr. Bayard. What is the objection to allowing this question of the rules to be set-
tled by a report of the two committees, after conference ? The subject of ihe jjower
of each house over the joint rules is before us.

Mr. Edmunds. My objection is that the very substitute implies that the joint rules,
the twenty-second and all, are now in force — a proposition from which I totally dissent.

Mr. Bayard. As a question of fact, I do not propose to join issue with my friend on
that subject, because he is more apt to be right than I in reganl to the action of the
House. I was endeavoring to find by the Record the action of the House on the sub-
ject of rules. I tind that other gentlemen near me have the same impression I have,
that there was by the House an adoption of the joiut rules as well as the rules of the
House itself.

Mr. Edmunds. I have never seen it, if there is anything of the kind.

Mr. Withers. I ask the Senator from Vermont if an amendmcTit was not incorpo-
rated into the report of the House Committee on Rules, inserting the words " with the
consent of the Senate," when they notified us of the adoption of the rules ?

Mr. Edmunds. Does the Senator from Virginia ask me a question ?

Mr. Withers. I ask for the Senator's recollection. f

Mr. Edmunds. As far as I have seen any evidence of the action of the House of
Representatives at all which was in the Record, all I saw was that on the motion
of a gentleman from Pennsylvania the rules of the last House of Representatives, ex-
cepting certain ones which they did not wish to adopt, were adopted as the rules of
the present House, and no reference was made to the joiut rules. There was none
that I saw ; I am sure of that.

Mr. Withers. My impression is different, arising from the fact (which I have not
been able to verify by reference to the Record on the subject) that there was an
amendment moved " with the concurrence of the Senate," which I thought implied that
action had been had on the joint rules as well as the separate rules of the House.

Mr. Bayard. If there be no objection, I ask that the matter lie over informally. I
think it is important.

50 X

792 COUNTING THE ELECTORAL VOTE.

Mr. Edmunds. I suggest to my friend that this is merely a proposition to the
House of Representatives to adopt these rules, wliich we all agree ought to be adopted,
except the twenty-second joint rule. If they have already adopted the joint rules, it
is a proposition to them to adopt them again without that one. I am sure, as a matter
of fact, that my friend will not find in the Record any action of the present House of
Representatives upon the joint rules.

The President ^jco tempore. The question is on the amendment of the Senator from
Delaware, [Mr. Bayard.]

The amendment was rejected, there being on a division — ayes 22, noes 26.

Mr. Bayard. I move to amend the resolution by adding to it —

"And that the Committees on Rules of the Senate and House of Representatives be,
and they are hereby, instructed to examine and, after conference, to report whether
any, and what, legislation isexpedieut in regard to the matters considered in the present
twenty-second joint rule."

That relieves the resolution which I first offered from the embarrassment which the
Senator from Vermont seemed to apprehend, and merely requires the committees to
report their views to Congress.

Mr. Edmunds. I suggest to my friend from Delaware that, if he will offer that as
an independent proposition after this matter is disposed of, so as to get some joint rules
to act under now, his proposition, except so far as it relates to the legislative branch
of the affair, would meet my entire concurrence. I have not the least objection to it ;
but it seems to me to be embarrassing a perfectly simple question in adopting the oht
joint rules by adding an amendment which does not provide for their adoption and
leaves the whole thing open until we shall have, in the course of a month, an inquiry.

While I am up, if the Senator will pardon mo, because I am taking his time, I will
say that I have found, through the kindness of my friend from Massachusetts, [Mr.
Dawes,] on page 9 of the Congressional Record for the 7th of December, an entry of
the action of the House of Representatives upon the rules, and I hope in reading the
proceedings of the House of Representatives I shall be 2)ardoned on this occasion, al-
though, except on a question of joint rules, it might be out of order.

" Mr. Randall. I submit the following resolution :

" 'Besolved, That tbe rules of the House of Representatives of the Forty-third Con-
gress shall be the rules of the House of Representatives until otherwise ordered, ex-
cept Rule 166 and Rule 167.' "

Then he provides for a committee on rules it is not necessary to read. Therefore the
Chair will perceive, as well as my friend from Delaware, that there can be no question
at all that that action of the House of Representatives related to its own rules, and
not to the joint rules. It says so in its terms. And if it were possible to hold that
the rules of the House of Representatives included the joint rules, that possibility
is excluded by the fact that two of the rules referred to are named as the rules of the
house proper, Rules 166 and 167. This resolution, after discussion, was adopted on the
statement of the Chair, with the assent of all hands, that nothing in the shape of rules
of any preceding session, whatever they were, could have any force at all in that
house until they were agreed to by the fresh body of men who had come iu.

Mr. Bayard. Do I understand "the Senator from Vermont to consider that the action
of the Senate in adopting certain joint rules, excepting the twenty-second joint rule,
is interfered with by the amendment I have offered ?

Mr. Edmunds. I" understand it so. I understand that we are left with no other
question open on the whole joint rules, except that not adopted, until both parties
agree. The amendment is that on that we shall have an investigation. I may not have
understood the amendment, perhaps.

Mr. Bayard. I think the Senator has not understood the amendment. The amend-
ment does not interfere with the action proposed by the Senate. His resolution pro-
poses to do away with the present joint rules, except the twenty-second. I simply pro-
pose that the two committees shall report what legislation shall take the place of that
joint rule.

Mr. Edmunds. But the trouble is that the House of Representatives may not be
willing to have a joint committee consider the rules, whereas we need joint rules every
day ; and if we send over a proposition there, it must be taken in solido. They cannot
adopt the joint rules without debate, and the proposition to have a committee may
there lead to discussion. Some gentlemen there may have views that differ from those
we have here, and in the mean time we have no joint rules and the thing drags along.
If the Senator proposes this as an independent proposition, as far as I can now see it
will certainly get my vote.

Mr. Morton. I think it is too important to get clear of the twenty-second joint
rule to let this opportunity pass. The adoption of the resolution, as amended now,
strikes down the present twenty-second joint rule, and we are done with it. The adop-
tion of the amendment offered by the Senator from Delaware will be construed to have
the effect of an acquiescence in all the joint rules, including the twenty-second, and
refers all of them to the action of the Committee on Rules hereafter. These commit-

APPENDIX. 793

tees may never agree, and there may never be an opportnuity so favorable to strike
down the twenty-second joint rule. Let us nov>^ strike down that rule by adopting
the resolution, and then I am willing to vote for the proposition of the Senator from
Delaware, and refer all the rules to a committee for revision. I think that is the safe
thing to do.

The Presidext pro tempore. The question is on the amendment propose^ by the
Senator from Delaware.

The amendment was rejected.

The President jjro tempore. The question recurs on the resolution.

The resolution was agreed to.

Mr. CoNKLiNG. Unless some Senator has business, I move that the Senate do now
adjourn.

Mr. Bayard. I would ask unanimous consent to consider the resolution offered by
me, and which has been discussed at the iiresent time as an independent projiosition.

Mr. Edmunds. Let us hear it read.

The resolution was read, as follows :

" JU'Kolred hi/ the Senate, {the House of Representatives concurring,) That the Committees
on Kules of the Senate and House of Representatives be, and they are hereby, instructed
to examine and, after conference, to report what amendments, if any, should be made
in the present joint rules of the two houses, and also whether any, and what, legisla-
tion is expedient in regard to the matters considered in the present twenty-second joint
rule."

Mr. CONKLiNG. I have no objection, as I think I intimated before, to this action as
an independent proposition in the languag(3 of some other Senators. I suggest, how-
ever, that we are about to do an unwise thing if we adopt this; for this reason : We
have adopted rules, and to which, so far as we know, there is no objection in either
house. After the House of Representatives shall have adopted these rules, then I see
no more objection than other Senators do to this resolution ; but we send now to the
House, if this resolution should go there as well us the other, two resolutions-, one pro-
posing to adopt the joint rules, and at the same time a resolution ])roposing to refer
the whole subject to the comuuttees of the two houses on rules. What impression
does this convey ? In place of this coming afterward as an independent proposition
to take eh'ect, it may be now, that for the time being we have adopted these rules, it
goes as part of our action ; and the result may be to defeat what we have just been
doing, and that probably will be the result. Now, I suggest that we send to the House
the resolution we have just passed. If the House concurs in that, then we shall have
the state of case to which the resolution of the Senator from Delaware is applicable.
But if we arrest, as I think we probablj^ shall do, the action already taken, by passing
this resolution, it seems to me we defeat the very purpose we have in view.

As I have risen to make this suggestion, I venture to make also another. The whole
theory of this, it seems tome, is contrary to parliamentary practice. The Senator from
Delaware proposes virtually a conference committee ; for so it becomes. What is the
mission of a conference committee ? To reconcile diiferences between the two houses.
Now surely until we know that there is a difference between the two houses, we do not
need a conference committee ; and then we do not need it as to any matter upon which
the two houses are agreed. Therefore I suggest to the Senator from Delaware, being
entirely friendly to his purpose, that he allow this resolution to lie over for the time
being. If the House concurs in the resolution we have already adopted, his resolution
needs no cliange whatever. If on the contrary it turns out that the House has objec-
tion to other of these joint rules which we have now adopted, that we ought to know;
and in the presence of that fact we ought to adopt this resolution. So it seems to me,
and therefore I suggest that as the sense of the Senate has been taken on the rules as
they stand, no objection having been made to any of them save one, we send that reso-
lution to the House. When the House shall concur, then they will be joint rules, as
they are not now, and then I shall see no objection to the resolution of the Senator
from Delaware, and then I submit to him it will take the whole effect which he wants
to give it whereas now I think it premature and likely to anticipate what has always
been expressed as the judgment of the Senate.

Mr. Bayard. My object in proposing a conference in this resolution was simply to
secure consultation between the two houses in regard to measures for their joint pro-
ceedings. I used the words perhaps unnecessarily, and they certainly seem open to
the technical objection of the Senator from New York, for the objection is technical.
If the committees were by joint resolution to be instructed, that very fact would sig-
nify that they had the opportunity of mutual consultation before they made the re-
port, and the use of the word "conference " suggests to them that the rules to be reported
to the respective houses should be the same. The only object was to secure consulta-
tion. The words were put in, perhaps, unnecessarily.

But the Senate need not treat this as a matter of conference unless a committee of
conference shall be found to be necessary. Every resolution that is to be acted on by
the two houses on a matter like this would seem to make a consultation between the

794 COUNTING THE ELECTORAL VOTE.

committees necessary before they report. Otherwise there would be no use of the re
ports to each house. However, this resolution is to be considered by unanimous con-
sent to-day or not at all. If objection be made from any quarter, it must go over. I
was aware of that when I called it up ; but at the same time, after there had been ex-
amination by a committee upon a very important subject, I trusted there would be no
objection. The question ought to be considered of the power of each house over the
joint rules, especially in regard to matters embraced in the twenty-second joint rule
which has just been excepted by the Senate. I thought no more important question
could be brought to the attention of this body, and that the report of a committee of
each house ought to be had upon it in order that we might know what proper action
to take.

Mr. CoNKLiNG. I do not like to interpose an objection against the resolution of the
Senator from Dela"ware, but as he seems not to be strenuous about it at this time, I
prefer that it lie over. I should like to have a concurrence of the two houses on all
these rules of which they are really agreed, to the end that we may have a completed
record of these rules until we change them. We have adopted a mode of getting at
them. I fear that if at the same time we send a resolution proposing a conference
committee, or whatever it may be called, the force of our action may be mistaken by
the House, and therefore although I do not like to interpose an objection I prefer that
this resolution should lie over and be considered at what I think will be a more con-
venient and at all events a more wholesome time.

The President jjro tempore. An objection being made, the resolution goes over.

Mr. CoNKLiNG. I move that the Senate adjourn.

The motion was agreed to ; and (at three o'clock and twenty-two minutes p. m.) the
Senate adjourned.

IjSTDEX.

Page.

Acts of Congress-
nils, regulating election of the President and Vice-President 9

March 2G. 1804, supplementary to the act of 1792 34

iTanuary 23, 1845, for the appointment of electors on the same day ^ 78,151

Archer, Stephenson, of ISIaryland —

Kemarks on resolution to count vote of Missouri 53

Moves to postpone same ^3

Archer, William S., of Virginia-
Remarks on counting vote of Missouri 54

Alabama, State of—

Excluded from electoral college, 1865 I4a

Arkansas, State of —

Excluded from electoral college, 1865 149

Resolution to inquire into conduct of election, 1872 335

Ashley, James M.— . , , , x- ^ -r. ■ i ^ oin

Ainendments to resolution to amend Constitution in regard to election of President JlU

Anthony, Henry B. — , . ^ ^^ . j ^ jon

Remarks on resolution to amend Constitution inrelation to election of President 4J9

Brearly, Hon. Mr.—

Report of, in federal convention l

Brown, John —

Remarks on resolution to settle disputes in counting electoral vote 16

Baldwin, Abraham —

Remarks on resolution to settle disputes in counting electoral vote 16,691

Bayard, James A — . . j^ -n -j j.
Resolution to prepare rules for the government of the House for the election of President
in 1801 31

Bayard, Thomas F.—

Remarks on resolution to repeal 20d joint rule 444,787, 790

Remarks on bill of 1875, to regulate counting vote for President 472

Remarks S. B. No. 1 520,541,545,664,678

Burr, Aaron—

Elected Vice-President 33

President of Senate 36

Bacon, Mr.—

Re.solutions in regard to Massachusetts electors, 1809 38, 39

Remarks by, in regard to Massachusetts electors, 1809 38,39

Bassett, Burwell —

Remarks on resolution that electoral vote of Indiana, 1817, be connted 47

Barbour, James —

Resolution for meeting of the two houses 49

Kemarks on .same - 49

Barbour, Philip P. —

Remarks on resolution for meeting of two houses 51

Benton. Thomas H. —

Proposed amendment to Constitution 721

Remarks on proposed amendment to Constitution in regard to electors 57,722

Benton, Jacob —

Remarks on resolution that counting the vote of Georgia in 1869 was an invasion of the
rights of the House 309,311

Butler, Andrew P. —

Remarks at meeting of two houses, 1857. in regard to vote of Wisconsin 90

Remarks in Senate in regard to vote of Wisconsin 110

Resolution dtclariug election of President in 1857 120

, Butler, Beni. P.-

Resolution that counting vote of Georgia was an invasion of the rights of the House 266

Remarks by 267

Amendment proposed by, to above resolution, that the 22d joint rule be rescinded 272

Remarks 304

Bigler, William —

Remarks at meeting of two houses, 1857, in regard to vote of Wisconsin 90

Report as teller of election, 1857 109

Bingham, John A. —

Remarks on electoral vote of Wisconsin, 1857 104

Remarks on electoral vote of Georgia, 1869 289

Boyce, William W. —

Remarks on electoral vote of Wisconsin, 1857 104

Bell, John —

Remarks on electoral vote of Wisconsin, 1857 123

Benjamin, .T. P. —

Remarks on electoral vote of Wisconsin 131

Boutwell, George S. —

Remarks on counting electoral vote 321

Remarks on (S. B. No. 1) counting vote for President 530

Broomall. John M.—

Remarks on counting electoral vote 327

79G

INDEX.

Page.

Brom^vell, Henry P. H. —

Keraarks on resolution that ootinting vote of Georgia was an invasion of the rights of the

House 330

Burnside, Ambrose E. —

Eemarks on S. B. No. 1, to regulate counting vote for President 624, 657, 685

Bills-
February 14, 1800, to decide disputed elections of President and Vice-President 16

Amended, and passed in Senate 21

Keferred to Committee of Whole in the House 22

Eeferred to select committee 23

Amended, and passed by the House 28

Amended and passed in the Senate 28

Senate amendments non-concurred in by the House 28

Senate adheres 29

House adheres to its non-concurrence 29

By Mr. Van Buren, (Senate,) in addition to act of 1792, in regard to election of President .. 57

Amendments proposed 58

Passed in Senate 58

Action on in House 60

To regulate counting votes for President and Vice-President, (Mr. Morton's bill. No. 1251) . 459

Eemarks by Mr. Thurman - 4£9, 477, 484, 505

Conkling 465

Logan 467, 507

Stephenson ^ 468

Merrimon 469,489,497

Morton 470, 4S6, 503

Bayard - 472

Edmunds 480,498,504

Frelingbuysen 486

Hamilton of Maryland 493

Stockton 499,514

Eaton 500,513

Sprague 506

Stewart 506,511

Hager 510

Sherman 516

By Mr. Morton, S. B. No. 1, to provide for and regulate the counting of votes for Presi-
dent and Vice-President 519

Eemarks upon, Mr. Morton 519,525,544,565,579,613,647,667,678

Mr. Bayard 520,541,545,664,678

Mr. Sherman - - - 523

Mr. Cooper 538

Mr. Withers 524,529,609

Mr. Wright 524,629,6.55

Mr. Eaton 525, 6.')8

Mr. Wallace 528

Mr.Maxey 529,535,540,588,613,624,633

Mr.Boutwell 530

Mr. Thurman 532,549,551,603,617,676

Mr. Whyte 536,572,615,668

Mr. Kernan 543

Mr. Johnston 548,560,618

Mr. Frelinghuysen 549,559,631

Mr. Howe 550,562,632

Mr. Christiancy 556

Mr.Eandolph 569,653

Mr. Dawes 582,630

Mr. Jones, of Fla 592

Mr. Stevenson 599,605

Mr. Edmunds 624,628

Mr. Merrimon 624, 636

Mr. Eurnside : 624,657

Mr. Sargent 627

Mr. Cameron, of Pa 633

Mr. Saulsbury 672

Convention, Federal, 1787 '• . 1

Mode proposed in, for election of President 3

Eeport of Mr. Brearly submitted... ' 1

Considered and agreed to 3

Office of Vice-President not provided for in first draught of Constitution. [See note.] 1

Electors, mode for appointment 1

President of the Senate to open certificates of electors 1

Electoral vote to be opened in presence of Senate and House of Eepresentatives. [.See

note, p. 3.] 2,3

Committee of revision, report of to submit Constitution to vote of State conventions 3

Eesolution to provide for an organization of the Government under new Constitution 3, 4

Confederation, Congress of —

Proceedings in "*

Constitution-
Provisions of, for electing President and Vice-President 4

Amendment, Article XII 34

Amendment as to manner of choo.sing electors . 56

Amendments proposed in regard to election of President 310

Amendment proposed to refer disputed elections of electors to the Supreme Court of the

United States 345

Amendment proposed as to mode of electing President and Vice-President 409

INDEX 797

Page.

Count the electoral vote —

1789 the two houses meet in Senate chamber to 7

1793 the two houses meet in Senate chamber 10

1797 the two houses meet in hall of the Hovise 12

1801 the two houses meet in Senate chamber 30

1805 the two houses meet in Senate chamber 36

1809 the two houses meet in hall of House 40

1813 the two houses meet in hall of House 42

1817 the two houses meet in hall of House , 44

1821 the two houses meet in hall of House 49

1825 the two houses meet in hall of House 60

1829 the two houses meet in hall of House 66

1833 the two houses meet in hall of House 68

1837 the two houses meet in hall of House 71

1841 the two houses meet in hall of House 76

1845 the two houses meet in hall of Ifouse 79

18-19 the two houses meet in hall of House 81

1853 the two houses meet in hall of House 84

1857 the two houses meet in hall of House 86

1861 the two houses meet in hall of House 145

1865 the two houses meet in hall of House 224

1869 the two houses meet in hall of House by provision of 22(1 joint rule

1873 the two houses meet in hall of House by provision of 22d joint rule

Cutts, Mr.—

Remarks on Massachusetts electors, 1809 38

Cady, Daniel —

Remarks in regard to objection to electoral vote of Indiana, 1817 47

Calhoun, John C. —

Remarks on resolution to admit electoral vote of Indiana, 1817 47

Remarks on resolution to count vote of Michigan 72

Clay, Henry —

Resolution for meeting of two houses, 1821 51

Remarks on same 51, 52

Remarks on counting electoral vote of Missouri, 1821 55

Moves to lay whole of above subject on the table 56

Amendment to resolution in regard to electoral vote 70

Remarks on resolution to count vote of Michigan 72

Extract from speech of, in 1821, read by Mr. Boyce 105

Culbreth, Thomas-
Remarks on meeting of the two houses 52

Cambreling, Mr.—

Remarks on ineligible electors 73

Crary, Mr. —

Remarks on resolution to count electoral vote of Michigan, 1837 73

Cass, Lewis —

Suggestion as to reading vote, meeting of two houses, 1857 87

Remarks on vote of Wisconsin, 1857 91

Crittenden, Jno. J. —

Remarks at meeting of two houses, 1857 89, 90

Resolution on vote of Wisconsin, 1857 124

Remarks on same 125

Remarks on electoral vote of Wisconsin, 1857 130

ilodilies resolution 132

Cobb, Howell—

Remarks on electoral vote of Wisconsin, 1857 92, 103

Craige, Burton-
Remarks on electoral vote, 1857 99

Campbell, Lew. D.—

Resolution in regard to electoral vote of Wisconsin 107

Collamer, Jacob —

Remarks on electoral vote of Wisconsin 117

Amendment to resolution in regard to electoral vote of Wisconsin 121

Remarks in regard to electoral vote of Wisconsin 132

Remarks on resolution to exclude electoral vote of certain States 157

Amendment to resolution (H. Res. 126) to exclude electoral vote 158

Remarks on resolution (H. Res. 1 26) to exclude electoral vote 204, 210

Cowan, Edgar-
Remarks on resolution to exclude electoral vote of certain States 168, 173, 174, 179

Conkling, Roscoe—

Remarks on resolution to amend Constitution in relation to election of President 4.37

Remarks on bill (1875) to reffulate counting vote for President 465

Remarks on repeal of 22d joint rule 793

Colfax, Schuyler —

Remarks on resolution that the count of the vote of Georgia in 1869 was an invasion of the
rights of the House 272,297,299

Cooper, Henry —

Remarks on Senate bill No. 1, to regulate counting vote for President 538

Cameron, Simon —

Remarks on Senate bill No. 1, to regulate counting vote for President 633

Dexter, Samuel—

Remaiks on resolution to settle disputes in counting the electoral vote 16

Douglas, Stephen A. —

Remarks in meeting of two hou.ses, 1859 91

Remarks in Senate on electoral vote of Wisconsin , 115

Davis, Henry Winter-
Remarks on counting electoral vote 102

798

INDEX.

Page

Doolittle, James H. —

Kemarks ou resolution declaring certain States not entitled to representation in electoral

college 150,154, 182,220

Davis, Garrett —

Ren arks on resolution to exclude electoral vote of certain States 170, 215

Dawes, Henry L. —

Remarks on Senate bill No. 1, to regulate counting the vote for President 582,630

Debates —

January 23, 1800. On resolution to consider what legislation is necessary to decide disputed

pi-esidential elections 16

March 27, 1800. On bill prescribing mode of deciding disputed presidential elections 19

March 31, 1800. On bill prescribiug mode of deciding disputed presideutial elections 22

April 26, 1800. On bill prescribing mode of deciding disputed presidential elections 23

April 29, 1800. Oa bill prescribing mode of deciding disputed presidential elections 26

January 31, 1809. On Massachusetts electors 38

February 6, 1809. On Massachusetts electors 39

February 9, 1809. Relative to Mr. Walton, an elector from the State of Kentucky 42

February 11, 1817. On electoral vote of Indiana 46

December 12, 1820. On resolution to inquire what is necessary to remedy uncertainty in

counting electoral vote 48

February 13, 1821. On counting electoral vote of Mis.souri 49

February 14, 1821. Oa counting electoral vote of Missouri 51, 53

April 16^ 1824. On Mr. Van Buren's bill in relation to election of President 58

February 8, 1825. On resolution to provide for counting the electoral vote, 1824 61

May 10, 1828. On resolution to inquire into legality of votes of presidential election, 1824. 63

February 4, 1837. On counting the electoral vote of the State of Michigan 72

February 6, 1837. On counting the electoral vote of the State of Michigan 73

February 11, 18.57. On counting the electoral vote of Wisconsin 87,89,94

January 30, 18C5. Ou resolution excluding certain States from the electoral college 147

February 6, 186.'5. On 22d joint rule 223

February 8, 1865. On counting electoral vote 226

February 10, 18G5. On message of President relative to excluding electoral votes of cer-
tain States 230

Februarys, 1869. On electoral vote of Georgia 231

February 10, 1869. On counting electoral vote 236

February 10, 1869. On counting electoral vote of Louisiana 238

February 10, 1869. On counting electoral vote of Georgia 244

February 10, 1869. On resolution protesting against counting the vote of Georgia 266

January 6, 1873. On resolution to inquire into election ot electors in Louisiana and Ar-
kansas 335

January 17, 1873. On most practical mode of electing President and Vice-President 345

February 12, 1873. On counting electoral vote 363

February 12, 1873. On objection to electoral vote of Mississippi, Arkansas, Texas, and

Louisiana 366

January 20, 1875. On proposed amendment to the Constitution as to election of President. 422

February 4, 1875. On rejieal of 22d joint rule 444

February 2.i, 1875. On Senate bill No. 1251, relative to counting votes for Presiden t 458

March 13, 1876. On Senate bill No. 1, (Mr. Morton's,) relative to counting the vote for Pres-
ident 519

On rules to sit with closed doors during the ballot for President 743

On22d joint rule 782

Electors —

In Federal convention, mode and time of appointment of 1

Constitutional provision in regard to duty of 4

In Congress, report of Mr. Nicholas on proposed amendment to the Constitution changing

mode of the appointment of 29

Massachusetts election, 1809 37

Ineligibility of, in regard to 70, 71, 73

Act to appoint all on same day VS

Electoral Colle2;e —

States excluded from 1865, viz : Virginia, North Carolina. South Carolina, Georgia, Florida,

Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee 149

States excluded from in 1865 : Virginia, North Carolina, South Carolina, Georgia, Florida,

Alabama, Missi.sippi, Louisiana, Texas, Arkansas, and Tennessee 149

Remarks by Mr. Ten Eyck 149,164,221

Remarks bv Mr. Harris 150,162,194

Remarks by Mr. Doolittle 150,154,182,220

Remarks by Mr. Hale 152

Remarks by Mr. Trnmbull 155,167,168,180,200,201,202,215

Remarks by Mr. Collaraer 157,161,201,204,205,210

Remarks bV Mr. Johnson 159,203,206,216

Remarks by Mr. Cowan 161,168,173,174,179,206

Remarks by Mr. Howard 162,190

Remarks by Mr. Clark 162

Remarks by Mr. Poraeroy 167, 168

Remarks by Mr. Garrett Davis 170, 215

Remarks by Mr. Powell 171,183,194,205

Remarks by Mr. Sherman 174,180,191

Remarks by Mr. Wade 175

Remarks by Mr. Conness 181,189,209

Remarks of Mr. Lane (of Indiana) 181

Remarks by ;Mr. Sumner 191

Remarks bV Mr. Lane (of Kansas) 205,220

Remarks by Mr. Howe 221

Electoral vote-

Opened in presence of Senate and House of Representatives 2, 3

Tellers of, for tirst term appointed 7, 8

INDEX. 799

Page.

Electoral vote — Continued.

Tellers of, for second terra appointed 10, 11

Tellers of, for third term appointed ., 12, 14

Tellers of, for fourth term appointed 30, 32

Tellers of, for fifth term appointed 36, 37

Tellers of, for sixth term appointed 40, 41

Tellers of, for seventh term appointed 42, 44

Tellers of, for eighth term appointed 44, 46

Tellers of, for ninth term appointed 53

Tellers of, for tenth term appointed 61

Tellers of, for eleventh term appointed 66

Tellers of, for twelftii term appointed 68

Tellers of, for thirteentli term appointed 73

Tellers of, for fourteenth term appointed 76, 77

Tellers of, for fifteenth term appointed 79

Tellers of, for sixteenth term appointed 81

Tellers of, for seventeenth term appointed 84

Tellers of, for eighteenth term appointed 86, 87

Tellers of, for nineteenth terra appointed 145

Tellers of, for twentieth term appointed 225, 226

Tellers of, for twenty-first terra appointed 230, 231

Tellers of. for twenty-second term appointed 357, 363

Table of—

For first term, (1789) 7

For second terra, (1793) 10

For third term, (1797) 13

For fourth term..(»801) 30

For fifth term, (leO.i) 36

For sixth terra, (ISO-.f) 40

For seventh term, ( 1H13) 43

For eighth term, (1817) 45

For ninth terra, (1821) 50

For ninth terra, (1821,) House 53

For tenth term, (1825) 62

For eleventh term, (1829) 67

For twcllth term, (1833) 69

For thirtcenlh term, (1837) 74

For fourtecntli term, (1841) 77

For fi f teent h terra, (1845) 80

For sixtccnt li t rr7n, (1849) 82

For seven tecnth term, (18.'i3) 85

For eighteenth term, ( 1857) 88

For nineteenth term, (1861) 14S

For twentieth term, (18G5) 229

For twenty-first term, (18(i9) 265

For twenty-second term, ( 1873) 407

Resolution of Mr. Ross to settle disputes in counting 16

Bill proposed in 1800 to settle disputes in counting 16

Legislation proposed to remedy uncertainty of count 48

Resolution of inquiry as to legality of vote of 1825 63

Twenty-second joint rule 223

Eaton, John H. —

Resolution to amend act 1792 in regard to election of President 57

Amendiuent to bill relative to election for President 58

Amendment proposed to resolution to provide rules in case of objection to the vote of any

State 61

Edmunds, George F. —

Remarks on resolution to count electoral vote of Georgia 231, 234

Remarks on resolution to inquire into conduct of presidential election, 1872, in Louisiana

and Arkansas 343

Remarks on resolution to amend Constitution in relation to election of President 438

Remarks on resolution to repeal 22d joint rule 455, 790

Remarks on bill of 1875 to regulate counting vote for President 480, 498, 504

Offers amendment 498

Remarks on Senate bill No. 1 to regulate counting vote for President 624, 628

Eaton, W. W.—

Remarks on bill of 1875 regulating count in election for President 500, 513

Remarks on Senate bill No. 1 for regulating count in election for President 525, 658

Floyd, John-
Remarks on meeting of two houses 52

Resolution to count vote of Missouri, 1821 : 53

Remarks on same 53

Florida, State of—

Excluded from electoral college, 1865 149

rrelinghuy.sen, Frederick T. —

Remarks on resolution to inquire into conduct of presidential election, 1872, in Louisiana

and Arkansas 338

Resolution proposing amendment to the Constitution to refer disputes in the elections of

electors to the United States Supreme Court 345

Remarks on resolntion to repeal 22d joint rule 451

Remarks on bill of 1875, regulating the count of vote for President 486

Remarks on Senate bill No. 1 to regulate counting vote for President 549, 559, 631

Gallatin, Albert-
Motion to amend Mr. Marshall's report on bill to settle di.spnted presidential elections 26

Grundy, Felix —

Resolution for meeting of the two houses, 1837 71

Report on mode of counting electoral vote 71

Remarks on resolution to count votes of Michigan 72

800 INDEX.

Page.

■Georgia, State of—

Excluded from electoral college, 1865 149

llesolution to couut electoral vote of, 1869 231

Remarks by Mr. Edmuuds 231,234

Remarks by Mr. Hendricks 232, 233

Remarks by Mr. Whyte 234

Remarks by Mr. Wilson, James F. 23.5

, Passed Senate 235

Passed House 236

Garfield, James A —

Remarks on resolution that counting the vote of Georgia, 1869, was an invasion of the
rights of the House 300

House of Representatives —

Proceedings at election of President for first term, 1789 8

Proceedings at election of President for second term, 1793 11

Proceedings at election of President for third term, 1797 14

Proceedings at election of President for fourth term, 1801 31

Proceedings at election of President tor fifth term, 1805 37

Proceedings at election of President for sixth term, 1809 41

Proceedings at election of President for seventh term, 1813 43

Proceedings at election of President for eighth term, 1817 44

Proceedings at election of President for ninth term, 1821 51

Proceedings at election of President for tenth term, 1825 61

Proceedings at election of President for eleventh term, 1829 66

Proceedings at election of President for twelfth term, 1833 68

Proceedings at election of President for thirteenth term, 1837 71, 72, 73, 76

Proceedings at election of President for fourteenth term, 1841 76,77,78

Proceedings at election of President for fifteenth term, 1845 78, 79, 80

Proceedings at election of President for sixteenth term, 1849 81, 83

Proceedings at election of President for seventeenth term, 1853 83, 84, 86

Proceedings at election ot President for eighteenth term, 1857 86, 87, 94

I'roceedings at election of President for nineteenth term, 1861 144, 145, 147

Proceedings at election of President for twentieth term, 1865 147, 225, 226

Proceedings at election of President for twenty-first term, 1869 231,235,236,243,259,266

Proceedings at election of President for twenty-second term, 1873 363,367,369,372,382,395

Election of President by, in 1801 33

Election of President by, in 1825 62

Hayne, Mr. —

Remarks on resolution to provide rules in case of objection to the vote of any State 61

Haven, Solomon G. —

Remarks on electoral vote of "Wisconsin in 1857 91

Hunter, R. M. T.—

Remarks on electoral vote of "Wisconsin in 1857 91, 110, 115, 129

Hale, John P.—

Remarks on electoral vote of "Wisconsin 119

Remarks on resolution declaring certain States not entitled to vote in electoral college 152

Houston, Sam. —

Remarks on electoral vote of Wisconsin 122

Harper, Robert Goodloe—

Motion to postpone bill to settle disputed presidential elections 22

Hillhouse, Mr. —

Remarks on defective certificate of electors, 1809 41

Harris, Ira —

Remarks on resolution declaring certain States not entitled to representation in electoral

college 150,194

Amendment ofierod to resolution declaring certain States not entitled to representation in
electoral college 201

Howard, Jacob M. —

Remarks on resolution to reject electoral vote of certain States 162

Howe, Timothy O.—

Remarks on resolution to reject electoral vote of certain States 221

Remarks on Senate bill Xo. 1, to regulate counting vote for President 550, 562, 632

Hendricks, Thomas A. —

Remarks on resolution to count electoral vote of Georgia 232

Hamilton, "William T.—

Remarks on biU of 1875 to regulate the counting of vote for President 493

Hager, John F.^

Remarks on bill of 1875 for counting vote for President. 510

Indiana, State of —

Objection to electoral vote of 46

Intelligencer, National —

Communication to, and response from, in regard to proceedings in meeting of the houses,
1817 46

Jackson, J. G. —

Remarks on resolutions in regard to Massachusetts electors, 1809 39

Jones, G. W.—

Remarks at meeting of two houses, 1857 87

Report of, as teller of two houses, 1857 88

Remarks on electoral vote of Wisconsin 107

Johnson, Reverdy —

Remarks on resolution to exclude electoral vote of certain States 159, 203, 206, 216

Remarks on message of President concerning resolution to exclude certain States from
electoral college 230

Johnston, John "W. —

Remarks on Senate bill No. 1, to regulate counting vote for President 548, 560, 618

Jones, Charles W. —

Remarks on Senate bill No. 1, to regulate counting vote for President 592

INDEX. 801

Page.

KiuK, Rufus —

Remarks ou resolution for meetiDg of two bouses, 1821 49

Kent's Commentaries —

Extract from, read by Mr. Washburn of Maine, relative to count of electoral vote 103

Kernan, Francis —

Remarks ou Senate bill No. 1, to regulate counting vote for President 543

Langdon, John-
Elected Pre-sident of the Senate 7

Livermore, Sanjuel —

Remarks ou resolution to settle disputes in counting electoral vote 16

Objects to electoral vote of Missouri, 1821 50, 53

Lyon, Mr. —

Remarks on resolution to count votes of Michigan, 1837 72

Letcher, John —

Remarks on meeting of two houses; vote of Wisconsin 87, 89

Lane, James H. —

Remarks on resolution to exclude electoral vote of certain States 205, 220

Lane, Henry S. —

Remarks on resolution to exclude electoral vote of certain States 181

Lincoln, Abraham, President —

Returning, approved. Joint resolution to exclude from the electoral college certain States . . 229

Remarks by Mr. Johnson 230

Logan, John A. —

Remarks on resolution that the count of the electoral vote of Georgia, 1869, was an inva-
sion of the rights of the House 315

Remarks on bill 1875 to regulate counting vote for President 467, 507

Louisiana, State of —

Excluded from electoral college, 1865 149

Resolution to Inquire into conduct of presidential election, 1872 335

Report in regard to electoral vote of 1873 358

Addendum to report from Mr. Morton 362

Addendum to report from Mr. Trumbull 362

Missouri, State of —

Resolution for counting electoral votes of 1821 49, 51, 56

Remarks by Mr. James Barbour 49

Rufus King 49

Nathaniel Macon 49

Phil. P. Barbour 51

HenrvClay 51,52,55

John'Rand'olph 51,52,54,56

David Trimble 52

John Floyd 52

John Rhea ' 52

Stephenson Archer 53

William H. Archer 54

Marshall, John —

Remarks on bill to decide disputed elections of President and Vice-President 22

Report on bill to decide disputed elections of President and Vice-President 23

Massachusetts electors, the 37

Petitions presented relative to election of 37, 38, 39

Resolutions, by Mr. Bacon, relative to '. 38, 39

Remarks by Mr. Cutts 38

Mr. Randolph 38

Mr. Bacon 33

Macon, Nathaniel-
Motion in regard to Kentucky elector, 1809 42

Remarks on resohition for meeting of the two houses, 1821 49

Remarks upon bill relative to presidential election 58

Michigan, State of—

Resolution for counting electoral vote of, in 1837 72

Remarks by Messrs. Norvell, Grundy, Clay, Calhoun, and Lyon 72

Announcement concerning vote of 75

Mercer, Mr. —

Inquiry as to ineligible electors 73

Marshall, Humphrey —

Remarks at meeting of two houses, 1857, on the vote of Wisconsin 89

Remarks in the House, 1857, ou the vote of Wisconsin 95, 141

Millson, John S. —

Remarks ou subject of electoral vote, 1857 99

Mallory, Roberta —

Proposes joint rule for counting electoral vote, which was not adopted 148

Mississippi, State of—

Excluded from electoral college, 1865. . .., 149

McDuffie, George —

Report on proposed amendment to the Constitution 703

Remarks on same. .• 713

Morton, O. P.—

Resolution directory to Committee on Privileges and Elections to inquire as to best mode of

conducting jsresidential elections and settling disputes in same 335

Remarks on same 345

Report in regard to electoral vote of Louisiana 358

Report on best and most practicable mode of electing President and Vice-Pi-esident 408

Remarks on resolution to amend Constitution in relation to election of President 423

Resolution for repeal of twenty-second joint rule 444

Remarks on same 452, 444

Remarks on bill of 1875, to regulate counting vote for President 470, 486, 503

Senate bill No. 1, to regulate counting vote for President 519

Remarks on same 519, 525, 544, 565, 579, 613, 647, 667, 678, 680, 682, 685

Remarks ou joint rules 783

802 INDEX.

Page.

Mernmon, Augustus S. —

Kemarks ou bill of 1875, to regulate counting vote for President 46P, 489, 497

Remarks on Senate bill No. 1, to regulate counting vote for President 621,' 636,' 684

Remarks on joint rules ' ' 783

Maiey, Samuel B. —

Remarks ou Senate bill No. 1, to regulate counting vote for President . 529, 535, 540, 588, 613, 624, 633, 684

Nicholas, J ohn —

Remarks on bill to settle disputes in election of President and "Vice-President 22, 26

Report of, on proposed amendment to the Constitution to change the mode of appointing

electors 29

Norvell, Mr.—

Remarks of, on resolution to count votes of Michigan, 1837 72

Nonrse, Araos —

Remarks on electoral vote Wisconsin, 1857 110

North Carolina, State of —

Excluded from electoral college, 1865 149

Orr, James L. —

Remarks at meeting of the two houses in 1857 on vote of Wisconsin 90

Resolution to reject electoral vote of Wisconsin 94

Order proposed in regard to Wisconsin vote 99

Remarks on same 99

Remarks on electoral vote Wisconsin 139

President —

Term of office 1, 3

Mode of election of 4

Notification of election of, by Senate 8

CertitJcate of election of, 1789 8

Act regulating election of 9

Act proposed February 14, 1800, to settle disputes in election of 16

Certificate of election, 1805 37

1809 40

1813 43

1817 45

Committee appointed to notify of, re-election' 51

election, 1829 67

election, 1833 70

Message of President Lincoln returning approved joint resolution to exclude certain States

from the electoral college 229

President of the Senate—

To open certificate of electors 1

Election of, at organization of Senate, to receive, open, and count the vote for President 4, 7

Declares no motion in order pendiug a count of the electoral vote 82

Remarks at meeting of two houses, 1857 87, 89

Remarks on electoral vote Wisconsin 110, 121

Presidential Election—

Pirst term, 1789 7

Second term, 1793 10

Third term, 1797 12

Fourth term , 1 80 1 29

Fifth term, 1805 35

Sixth term, 1809 f 39

Seventh term, 1813 42

Eighth term, 1817 44

Ninth term, 1821 48

Tenth term, 1825 60

Eleventh term, 1829 Co

Twi-lfth term, 1833 68

Thirtt«enth t(<rm, 1837 70

Foui t leiith term, 1841 76

Fifteenth term, 1845 78

Sixteenth term, 1849 , 81

Seventeenth term, 1853 83

Eighteenth term, 1857 86

Nineteenth term, 1861 144

Twentieth term, 1865 147

Twenty-first term, 1869 230

Twenty-second term, 1874 , 357

Act 1792 relative to 9

In the House of Representatives, 1801 33

Amendment to the Constitution (Art. XII) regulating the 34

Act March 26, 1804, relative to 34

Bill for addition to act of 1792 57

Action on above in the Senate 58

Action on above in the House 60

In the House of Representatives, 1825 62

Act for uniform time of choosing electors 78

Pinckney, Charles —

Remarks on resolution to settle disputes in counting electoral vote 16

Remarks on bill prescribing mode for settling disputed election of President and Vice-
President 19,692

Pugh. George E, —

Remarks on electoral vote of Wisconsin 135

Pomeroy, Samuel C. —

Remarks on resolution to exclude electoral vote of certain States 167

Powell, Lazarus —

Remarks on resolution to exclude electoral vote of certain States 171,194

INDEX. 803

Page.
Reports —

In Federal Convention :

Mr. Brearly, from committee of eleven, on mode of electing President 1

In Consiresa :

By Mr. >Iarshall, on bill to decide disputed elections for President 23

By Mr. Nicholas, (House,) on proposed amendment to the Constitution to change mode of

appointing electors 29

By Mr. Smith, on resolution in regard to uncertainty in count of electoral vote 48

on resolution to amend act of 1792 in regard to presidential election 48

By Mr. Grnndy, on resolution to inquire into eligibility of certain electors, 18.37 71

By Mr. Bigler.'as teller of election, 1857 109

By Mr. Morton, in regard to electoral vote of Louisiana 3.58

"Addendum to report in regard to electoral vote of Louisiana, by Mr. Morton 362

by M r. Trumbull 362

Bv Mr. Morton: best and most practicable mode of electing President and Vice-Presi-
dent 408

Eesolutions—

To submit Constitution to the conventions of the several States 3

Providing for organization of the Government under the new Con.stitution 4

Of Mr. Koss, relative to settling disputes in counting the electoral vote 16

Eemarks upon, by Mr. John Brown, Mr. James Ross. Mr. Charles Pinckney, Mr. Samuel

Dexter, Mr. Samuel Livermore, Mr. Abraham Baldwin 16

By Mr. Bayard, to prepare rules for the government of the House in the election of Presi-
dent iii 1801 31

By Mr. James Barbour, (Senate,) for meeting of two house.s, 1821, and counting votes of

Missouri 49

Remarks on, by Mr. Barbour, Mr. Otis, Mr Smith, Mr. Johnson, Mr. Talbot, Mr. King,

Mr. Macon, Mr. Williams of Tennessee, and Mr. Lanman 49

By Mr. Clay, (House,) for meeting of two houses, lir'ai, and counting votes of Missouri.. 51

Remarks by Philip P. Barbour, Mr. Clay, and Mr. Randolph 51

by Mr. Trimble, Mr. Randolph, Mr. Floyd, Mr. Clay, Mr. Rhea, Mr. Calbreth.

and Mr. Tracy 52

By Mr. Floyd, to count electoral vote of Missouri, 1821 53

By Mr. Randolph, to include electoral vote of Missouri in the count in 1821 5C

By Mr. Eaton, to amend act of 1792 in regard to presidential election 57

By Mr. Tazewell, for meeting of two houses, 1825 60

"Remarks on same by Mr. Tazewell 61

Amend mem to provide rules in case of objection to vote of any State 61

By Mr. Wilde, to inquire into legality of election of 1825 63

"Remarks by Mr. AN'ilde 63

Laid on table 65

To appoint committee to ascertain mode of counting votes for President 70

Amended on motion by Mr. Clay that committee inquire if any electors were ineligible,

1837 70

Report by Mr. Grundy on same 71

Resolution for counting electoral vote of Michigan 72

Remarks on, by Messrs. Xorvell, Grundy, Clay, Calhoun, and Lyon 72

By Mr. Orr. to reject from the count the electoral vote of Wisconsin in 1857 94

By Mr. Washburne, to count the electoral vote of Wisconsin, 1857 101

Remarks by Mr. Davis on same 101

By Mr. Butler, declaring election of President in 1857 120

By Mr. Crittenden, in regard to vote of Wisconsin 125

By Mr. Wilson, (H. Res. 126,) declaring certain States not entitled to representation in

electoral college 147

Passed in House 149

Remarks by Mr. Ten Eyck 149

Harris 150,162,194

Doolittle 150,154,182,220

Hale 152

TrumbuU 155,167,168,180,200,201,202,215

CoUamer 157,161,201,204,205,210

Johnson 159, 203, 206, 216

Cowan 161,168,173,174,179,206

Howard 162,190

Clark 162

Pomeroy 167,168

Davis, Garrett 170,215

Powell 171,183,194,205

Sherman 174,180,191

Wade 175

Conness 181, 189, 209

Lane, of Indiana 181

Sumner 191

Lane, of Kansas 205, 220

Howe 221

To count electoral vote of Georgia 231

Remarks by Mr. Edmunds 231,234

Hendricks 232,233

Whyte 234

Wilson, James F 235

Passed in Senate 235

*■■- i« House 236

By Mr. Butler, that the count of the vote of Georgia was an invasion of the rights of the

House 266

Remarks by the Speaker of the Hoase 266

Mr. Butler 267,304

Colfax 272,297,299

804

INDEX.

Page.

Kesolutions— CoTitinned.

Mr. Butler proposed to modify the above resolution that the twenty-second joint rule be re-

.scinded 272

Kemarks by Mr. Shellabarger 274,322

Thomas 283,323

Woodward 285

Eldredge 288

' Bingham - 289

Schenck 292,298

Garfield 300

Benton 309,311

Ashley 310

Woodijridge 312

Logan 314,319

Boulwell 321

Broomall 327

Bromwell 330

By Mr. Sherman, to inquire into the conduct of presidential election in Louisiana and Ar-
kansas. 1872 335

Remarks by Mr. Sherman 330

Trumbull 339

Edmunds 343

Conkling 343"

By Mr, Morton, directory to the Committee on Privileges and Elections to report best

mode of conducting presidential elections and settling disputes in same 335

Remarks by Mr. Morton : 345

By Mr; Frelinghuysen, to amend the Constitution so as to refer disputed election of elect-
ors to Supreme Court United States 345

By Mr. Morton, proposing amendmeut to Constitution as to mode of electing President and

Vice-President '. 422

Kemarks by Mr. Morton 423

Thurman 434

Conkling 437

Edmunds 438

Anthony 439

By Mr. Sherman, resolution to rescind twenty-second joint rule 406

By Mr. Morton, to repeal twenty-second joint rule ' 444

Remarks by Mr. Morton 444, 4o2

Bayard 444

Thurman 448

Frelinghuysen 451

Edmunds 455

Ross, James —

Resolution proposed by, for settling disputes in counting electoral vote 16

Remarks on same Ifi

Amendment proposed to bill to settle disputed election of President 28

Randolph, John-
Remarks on bill to settle disputes in election of President and Vice-President 22

Remarks on resolutions in regard to Massachusetts electors 38

Remarks on meeting of two houses, 1821 51, 52

Remarks on counting vote of Missouri 54, .56

Resolution to include vote of Missouri in count 56

Rowan, Mr. —

Remarks upon resolution in regard to Massachusetts electors, 1809 39

Rhea, John-
Remarks on meeting of two houses 52

Reid, David S.—

Remarks on electoral vote of "Wisconsin 116

Randolph, Theodore —

Remarks on Senate bill Xo. 1, to regulate counting vote for President 569, 653

Rules—

Of the lIou.se of Representatives for the election of President in 1801 31

Of the House of Representatives for the election of President in 1824 CO

Proposed by Mr. Mallory for the election of President in 1865 148

Twenty-second joint, olfered hy Mr. Trumbull 223

Passed Senate 225

Passed House 225

Resolution by Mr. Butler to rescind twenty-second joint rule 272

Reference to' twenty-second joint rule in Mr. Morton's report 41fi

Twenty-second joint rule, resolution for repeal of 444

Twenty-second joint rule, re.solution to rescind 408

Twenty-second joint rule, action on, in Senate 786

Senate, organization of 7

Proceedings at election of President for first terra, 1789 8

Proceedings at election of President for second term, 1793 10

Proceedings at election of President for third term, 1797 12

Proceedings at election of President for fourth term, 1801 29

Proceedings at election of President for fifth term, 1805 35

Proceedings at election of President for sixth terra, 1809 39

Proceedings at election of President for seventh term, 1813 42

Proceedings at election of President for eighth term, 1817 44

Proceedings at election of President for ninth term, 1821 48

Proceedings at election of President for tenth term, 1825 60

Proceedings at election of President for eleventh term, 1829 65, 66

Proceedings at election of President for twelfth term, 1833 68

Proceedings at election of President for thirteenth term, 1837 70, 71, 73,74

Proceedings at election of President for fourteenth term, 1841 76, 7&

INDEX. 805

Page.
Senate, organization of — Continued.

Proceedings at election of President for fifteentli term, 1845 78, 79, 80

Proceedings at election of President for sixteenth term, 1849 81, 83

Proceedings at election of President for seventeenth term, 1853 63, 84, 86

Proceedings at election of President for eighteenth term, 1857 86, 109

Proceedings at election of President for nineteenth term, 1861 144, 145, 146

Proceedings at election of President for twentieth term, 1865. 149, 2-23, 2-25, 226

Proceedings at election of President for twenty-first term, 1869 230,231,236,238,247

Proceedings at election of President for twentj'-second term, 1873 363, 373, 384, 399

Speaker of the House-
Ruling in joint meeting, 1817 46

Remarks in the debate on electoral vote of Georgia 298

Sharp, Solomon P. —

Resolution of, that electoral vote of Indiana be counted 47

Smith, William-
Report of on resolution to remedy uncertainty of count of electoral vote 48

Report of, on resolution to amend act of 1792 in regard to presidential election 48

Stephens, Alexander II. —

Suggestion made in regard to reading retarns in meeting of two houses, 1849 82

Smith, Samuel—

Remarks at meeting of two houses in 1857 in regard to Wisconsin 83

Stanton, Benjamin —

Remarks at meeting of two houses, 18.57 91

Remarks in House in regard to electoral vote SS

Stuart, Charles E.—

Remarks in relation to electoral vote of Wisconsin, 1857 93, 111, 113, 128, 134

Seward, William fl.—

Remarks that the name " convention " cannot be properlj' applied to a meeting of the two

houses 109

Remarks on electoral vote of Wisconsin 117

South Carolina, State of —

Excluded from electoral college, 1865 149

Sherman, John-
Remarks on resolution to exclude electoral vote of certain States 174, 191

Resolution to inquire into conduct of presidential election in Louisiana and Arkansas, 1873. 335

Resolution to rescind twenty-second joint rule 408

Remarks on bill of 1875 for counting vote for President 516

Remarks on Senate bill No. 1, to regulate counting vote for President 523

Shellaharger, Samuel —

Remaiks on resolution that counting the vote of Georgia in 1869 was an invasion of the

rights of t lie Hou.se 274

Senate and House of Representatives, in presence of —

Proceedings in 1825, tenth term 61

1829, eleventh term 66

1833, twelfth term 69

1837, thirteenth term 73

1841, fourteenth term 77

1845, fifteenth term 79

1849, sixteenth term 81

1853, seventeenth term 84

1857, eighteenth term 87

1861, nineteenth term 145

1865, twen tieth term 226

1869, twenty-first term 236, 244, 263

1873, twenty-second term 363,380,389,406

Schenck, Robert C. —

Remarks on resohition that counting the vote of Georgia in 1869 was an invasion of the

rights of the House 292,298

Stevenson, J. W.—

Remarks on bill, 1875, to regnlate connting vote for President 468

Remarks on Senate bill No. 1, to regulate counting vote for President 599, 605

Sargent, Aaron A. —

Remarks on Senate bill No. 1, to regulate counting vote for President 627

Stockton, John P. —

Remarks on bill of 1875 to regulate mode of counting vote for President 499, 514

Sprague, William-
Remarks on bill of 1875 for counting vote for President 506

Stewart, William AI.—

Remarks on bill of 1875 for counting vote for President 506, 511

Sanlsbury, Eli —

Remarks on Senate bill No. 1, to regnlate counting vote for President 672,680

Tellers of electoral vote —

Provided in Senate for election of first term 7

in House for election of first term S

in Senate for election of second term 10

in House for election of second term 11

in Senate for election, of third term 12

in House for election of third term 14

in Senate for election of fourth term 30

in House for election of fourth term 32

in Senate for election of fifth term 35

in House for election of fifth term 37

in Senate for election of sixth terra 40

in House for election of sixth term 41

in Senate for election of seventh term 43

in House for election of seventh term 44

in Senate for election of eighth term 44

806 INDEX.

Page.
Tellers of electoral vote — Continued.

in House for election of eifchth term 46

in Senate for election of ninth term 53

in House for election of ninth term 53

in Senate for election of tenth term 61

in House for election of tenth term 61

in Senate for election of eleventh term 66

in House for election of eleventh term 66

in Senate for election of twelfth term 68

in House for election of twelfth term 68

in Senate for election of thirteenth term 73

in House for election of thirteenth term 73

in Senate for election of fourteenth term 76

in House for election of fourteenth term 77

in Senate for election of fifteenth term 79

in House for election of fifteenth term 79

in Senate for election of sixteenth terra 81

in House for election of sixteenth term 81

in Senate for election of seventeenth term 84

in House for election of seventeenth term 84

in Senate for election of eijrhteeuth term 86

in House for election of eighteenth term 87

in Senate for election of nineteenth term 145

in House for election of nineteenth term 145

in Senate for election of twentieth term 225

in House for election of twentieth term 226

iu Senate for election of twenty-first term 230

in House for election of twenty -first term 231

in Senate for election of twenty -second term 357

in House for election of twenty-second term 3G3

Taylor, John W.—

Objects to electoral vote of Indiana, 1813 46, 47

Amendment to resolution to count electoral vote of Indiana 47

Trimble, David —

Remarks of, on meeting of two houses 52

Tracy, Albert H.—

Kemarks on meeting of two houses 52

Tazewell, Mr. —

Resoluti(m for meeting of two houses, 1825 60

Thomas, Mr. —

Reniaiks on ineligibility of electors 73

Toombs, Robert —

Remarks at meeting of the two houses on vote of Wisconsin 89, 90

in Senate, on vote of Wisconsin 112, 120

Toucey, Isaac —

Remarks on electoral vote of Wisconsin 121,133

Thompson, John B. —

Remarks on electoral vote of Wisconsin 12.5, 136

Ten Eyck, John C. —

Moves to strike out Louisiana from list of States deprived of electoral vote 149

Remarks on resolution to exclude certaiu States from electoral vote 164

A mendment to strike out Louisiana rejected 200

Remarks 221

Tennessee, State of —

Excluded from electoral college, 1865 149

Texas, State of—

Excluded from electoral college, 1865 149

Trumbull, Lyman —

Remarks on excluding electoral vote of certain States 155, 200, 202, 215

Proposes twenty-second joint rule 223

Remarks on resolution to inquire into conduct of presidential election, 1872, in Louisiana

and Arkansas 339, 343

Thomas, Francis —

Remarks on the resolution that counting the vote of Georgia in 1869 -was an invasion of the

rights of the House 283,298

Thumian, Allen G. —

Remarks on resolution to inquire into conduct of presidential election, 1872, in Louisiana

and Arkansas 336

Remarks on re.solution to amend Constitution iu relation to election of President 435

Remarks on resolution to repeal twenty-second joint rule 448

Remarks on bill of 1875 to regulate counting vote for President 4.59, 477, 484, 505

Remarks on Senate bill No. 1, to regulate counting vote for President 532, 549, 551, 603, 617, 676, 681, 687
Vice-President —

Office not piovided for, (see note) 1

Certificate of election of 1789 8

Act regulating election of 9

Act proposed February 14, 1800, to settle disputes in election of IB

Certificate to Aaron Burr of election as, 1801 33

Certificate of election of 1805 37

Certificate of election of, 1809 40

Certificate of election of, 1813 43

Certificate of election of. 1817 45

Resoluiion that the President be requested to notify, 1821 51

Certificate of election of, 1825 63

Elected by the Senate, 1837 75

Declares no motion in order pending count of electoral vote 82

Van Horn, Mr. —

Motion, subject of ^lassachuaetts electors, 1809 39

INDEX. 807

Page.
•Varnnm, Joseph B. —

Moves in joint meeting that Senate withdraw 4&

Van Buren, Martin —

Bill relative to election of President 57

Proposes an amendment to above 58

Remarks on resolution to provide rule in case of objection to vote of a State 61

Wilson, James J. —

Offers resolution for legislation to settle uncertainty of count of electoral vote 48

Remarks on same 48

Offers resolution to amend act 1792 in regard to election of President 48

■Williams, John-
Motion Senate return to their chamber 50

Wilde, Mr.—

Resolution of inquiry into legality of the election, 1825 63

Remarks on same 63

Washburn, Israel, jr. —

Remarks on electoral vote of Wisconsin, 1857 93, 100

Washburn, Cadwalader —

Resolution to count vote of Wisconsin 101

Weller, John B.—

Remarks on electoral vote of Wisconsin 123

Wilson, James F.—

Resolution declaring certain States not entitled to representation in electoral college, (re-
ferred to Judiciary Committee) 147

Reported above 147

Remarks on resolution to count electoral vote of Georgia 235

Wade, Benjamin F. —

Remarks on resolution to exclude electoral vote of certain States 175

Whyte, AVilliam Pinkuey —

"Remarks on resol ution to'count electoral vote of Georgia 234

Remarks on Senate bill No. 1 to regulate counting vote for President 536, 572, 615, 668

Wisconsin, State of—

Electoral vote of, objected to by Mr. Letcher, 1857 87

Resolution to reject electoral vote of 94

Resolution to count electoral vote of 101, 107

Resolution in regard to electoral vote of 125

Remarks by Mr. Crittenden 89

President of the Senate 89,95

Mr. H. Marshall 89,141

Messrs. Butler, Bigler, Crittenden, and Orr 90

Cass, Toombs, Douglas, Stanton, and Haven 91

Hunter and Cobb 92

Mr. Quitman 98

Stanton 98

Millson 99

Washburn of Maine 100

Davis of Maryland 101

Cobb 103

Bingham 104

Bovce 106

Florence 106

Campbell of Ohio 107

Jones 107

Bigler 109,114

Hunter 110,115,129

Nourse 110

Butler 110,114

Stewart 111,113,128,134

Toombs , 112,120

Adams 114

Douglas 115

Seward 117,137

CoUamer 117,120,121,132

Hale 119

Toucey 121,133

Houston 122

Weller 123,124,125

Bell ».-. 123

Crittenden 124,125,130

Thompson 125,136

Benjamin 131,138

Pugh 135,136,138

Mallory 137

Orr 139

Woodward, George W. —

Remarlcs on resolution that counting the vote of Georgia in 1869 was an invasion of the

rights of the House 286

Woodbridge, Frederick E.

Remarks on resolution that counting the vote of Georgia in 1869 was an invasion of the

rights of the House 312

Withers, Robert E.—

Remarks on Senate bill No. 1, to regulate counting vote for President 524, 529, 609

Wright, George G.—

Remarks on Senate bill No. 1, to regulate counting vote for President 524,629, 655

Wallace, William A.—

Remarks on Senate bill No. 1, to regulate counting vote for President 528

51 X

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JhJ

NOV 2 1 1933

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Full text of "Counting electoral votes : proceedings and debates of Congress relating to counting the electoral votes for president and vice-president of the United States"

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