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from the chair, in 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 decision that has been made, and to set ourselves to work immediately for the passage of a law which will prevent any trouble or difficulty of this kind in future. I received a letter but a few days ago from a gentleman, eminent for his wisdom and ability, who stated therein that the late Chancellor Kent, of New York, had told him that here was clearly a casus omissus; that there was no power either in the House or Senate, or in a joint convention, to interfere and participate authoritatively in counting and declaring the votes and deciding upon their validity; and he said that the chancellor added, that he feared the time might come when the country would be shaken to its center on this point.

It is very certain, Mr. Speaker, that this vast power should not be vested in the Presiding Officer of the Senate, or in any man; nor should it remain uncertain and unfixed by whom, and how, it is to be exercised. The Presiding Officer may decide all questions justly and fairly; or, influenced by passion and warped by party heat, he may abuse the great power. He may contrive to exclude votes legally given, and thereby to defeat the will of the people. The depositaries of this power, and the manner of its exercise, should be fixed by law of Congress, so that hereafter, when any question shall arise, as arise it will, in reference to the legality or regularity of votes for President and Vice-President, the tribunal will be established by law for its decision, and the mode, manner, and forms prescribed, so that the trial may be had and the result ascertained under the provisions 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, acting arbitrarily, without law, without rules and orders of proceeding, and with a view to making the President, rather than ascertaining who has been duly elected by the people. Suppose the will of the people defeated by a partisan President of the Senate, or a partisan majority of 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 unscrupulous 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 inconvenient, absurd, and unconstitutional. If the late meeting in this hall were a joint convention, how should it vote per capita? Whence did the House derive power to insist upon voting in this manner? By the houses separately? Then one house might lock the other by passing such orders or resolutions as that offered by the gentleman from South Carolina, [Mr. Orr,] with conditions annexed? Then, if you may agree to a result upon condition that the vote of one State shall be rejected, you may require that the votes of two or ten be rejected; and the Senate may impose similar conditions. Does any one suppose that the counting and declaring of the votes in the presface of the two houses, as required by the Constitution, can ever be had in this way? But, sir, I took an appeal from your decision to enable me to make these few remarks, and now withdraw it.

Mr. WASHBURN, of Wisconsin. I offer the following as a substitute for the resolution of the gentleman from South Carolina.

"Whereas the electoral vote of the State of 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 attending at the seat of government on that day to cast the vote of said State by physical impossibility caused by the act of God: Therefore,

"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 constitutionally 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 Carolina relates to that, and is necessary to its completion.

Mr DAVIS, of Maryland. I take an appeal from that decision. It is with great reluctance, Mr. Speaker, that I detain the House for a few moments upon this question; but I entirely concur with the gentleman from Kentucky, [Mr. H. Marshall,] as to the very great 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

decide this question. In my judgment, the phrase "joint convention" has led everybody here estray. In my judgment, the duty which was assigned to the Senate and House of Representatives has already 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? Who is to count the votes, and to decide whether a vote is to be counted or not?

Mr. DAVIS, of Maryland. That is the precise point I rose to explain my views upon. The votes are to be "counted," and there the Constitution stops. What do gentlemen mean by the word "counted?" Do gentlemen mean that counting a vote here has the effect of a judgment upon the vote that is counted and admitted, or upon a vote which is not counted and is rejected? Do they mean to say that if a vote were rejected here upon the count by the tellers, or were admitted, it would bind any authority known to the laws of the United States? It is that fertile source of all difficulty, this ambiguity in the phrase we are using. I apprehend that the only purpose of assembling here is to identify the things which are sent here as votes. The act is a ministerial, and not a judicial one. Counting or refusing to count has no effect. Whether a vote shall or shall not have the effect of electing a President is, after the mere 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 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 gentlemen who are appointed to count, are legal or illegal, that question the House, and the House alone, have the power to decide; and until we are called upon to decide upon the question whether we shall or shall not elect a President, there is no practical 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 vote before them, I apprehend they would be extra-judicial opinions upon facts which they have no right to pass upon separately, and they can only pass upon them upon the motion, or upon the presumption, that there is no election; and the only decision this House can come to is, whether they will proceed or not now to elect a President. I presume that, with reference to the Vice-President, exactly the same question devolves upon the Senate, untrammeled by any count or 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 pass preliminarily upon the point whether one vote shall be counted, or another rejected. 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 President, for the law declares him; and the only way we can get on record any judgment of ours properly under the Constitution is for some gentleman to move the practical question that this House do now proceed to elect a 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. We 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 perform that duty.

I submit, therefore, that the formal counting out of the certificates by the persons appointed has discharged all the functions which the Constitution requires to be performed in the presence of the two houses, and they having been witnesses of that one

fact, there is no reason why they should assemble again. Our tellers are called upon to give no certificate by any law. We are not called upon to identify the fact in any other manner than simply by counting out the votes; and when the 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. WASHBURN, 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. WASHBURN, (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 next 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 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 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 best possible condition to decide those questions properly, as I see no practical result to flow from any decision pronounced upon any point. The whole difficulty which arose while the two bodies were together was upon the simple point whether the Presiding Officer over the two bodies should decide when we had completed the duties for which we had assembled, or whether the question should be decided by the two bodies themselves. That is the point, and the only point; and when we are relieved from that difficulty all others cease to exist.

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 differ, there is, I confess, no provision for that condition of things; and a casus omissus exists.

Now, in reference to the view suggested by the gentleman from Maryland, [Mr. Davis,] I am not prepared to condemn it, but I will suggest to him the difficulty as it occurs to my mind. The student of the Constitution of this country finds no unmeaning provisions in it. Would the framers of that instrument have provided that the duty of examining and counting the votes cast for President and Vice-President should be discharged in the presence of both houses, and then leave the decision to be made by one house alone, and that, too, the house which was to elect a President, 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 papers 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 duty, the great responsibility, 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

President of the United 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 transaction, 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 two 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 opportunity of deciding this question, free from difficulty. What occurred during the time the two houses were together? The votes were counted, the tellers reported, and the Presiding Officer announced the result. The question arose as to the vote of the State of Wisconsin. That State did not vote for the persons elected; but, whether counted or not, it would not change the result. 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 subject. If in the view presented by my friend from Virginia [Mr. Millson] we have completed our work-done all that is necessary to be done, then I am inclined to the opinion that we have gone far enough for all practical purposes; but if a majority of this House think we have not-if any member of this House is of the opinion that the duty devolving on the House under the Constitution and the law of the land has not been discharged, that member and that majority of this House cannot, without perjury resting on their consciences, adjourn this body until that work is completed. The House must see that the work has been done, that the declaration has been made and the duty 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 fortunately; for the decision of such an important issue there is nothing to inflame the passions of members, nothing to swerve their judgments from a proper decision in this case the 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 of the Senate and the House of Representatives, the adoption of the resolution of the gentleman from North Carolina. Let this House by its committee meet a committee of the Senate. Let us consider the questions which have arisen in joint convention, and pronounce such a judgment as will afford a precedent for the future-one that the country can safely act upon and will acquiesce in.

Mr. BINGHAM. Mr. Speaker, I desire to submit some remarks for the consideration of the House on the resolution submitted by the gentleman from South Carolina. The 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 the reception of that vote, that neither the two houses, nor any member thereof, could be heard upon the question; that it depended for its determination exclusively upon himself and the tellers. I cannot assent to that, nor to the opinion expressed by gentlemen here that the two houses are, in convention assembled, only in the capacity of spectators. It seems to me that the Constitution imposes upon Сongress-the Senate and House-the duty of counting and announcing the whole of the votes duly certified as having been cast for President and Vice-President on the day prescribed by law, and the further duty of ascertaining and 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 Constitution provides (article two, section one) that "the Congress may determine the time of choosing the electors, and the day on which they shall give their votes, which DAY shall be the same throughout the United States." The act of March 1, 1792, section

two, provides that "the electors shall meet and give their votes on the first Wednesday in December;" and section four of the same act provides that "Congress shall be in session on the second Wednesday in February succeeding every meeting of the electors, and the said certificates shall then be opened, and the votes counted, and the persons who shall fill the offices of President and Vice-President ascertained and declared 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 two houses. The DUTY to ascertain and declare these results is, in my opinion, devolved upon the two houses, not upon the President of the Senate or the tellers.

The two houses are thus convened, not to elect a President and Vice-President, but to ascertain and declare the election which has been made (if any) by the electors appointed by the people in the several States. In the discharge of this duty, the Congress may not go behind the certificates, and inquire into the qualifications of the electors, or into any other fact not appearing upon the certificates. But, sir, the two houses, in my judgment, may and should reject all votes which are certified to have been given on a day other than that 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 VicePresident on a day different from that prescribed. The electors of the several States cannot meet on different 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 journal will show the action of the convention.

The SPEAKER. The House has no journal of the convention.

Mr. BOYCE. Difficulties of a somewhat similar kind, Mr. Speaker, to those which now exist, have occurred before. In 1821, objection was made to counting the votes of the State of Missouri. I shall read what Mr. Clay said on that occasion, and how the difficulty was obviated. It seems to me that by pursuing the same course all the difficulties in this case will be obviated.

The following extract was read by the Clerk:

"Mr. CLAY said he really saw no difficulty in this business; and, before he sat down, should make a motion, with a view to put an end to this discussion. The House and Senate have, by a joint act, this day agreed that, in the event of an objection being made to the vote of Missouri, her vote should be counted hypothetically; that the whole number should be announced, including the vote of Missouri, and that the number should also be stated as it would be, the vote of Missouri being excluded; and the result not varying, that it should be declared that, in either case, the person having the largest number of votes was duly elected. The motive which operated on the joint committee in recommending this course, and on the two houses in adopting it, was to avoid the very difficulty into which the House was about to precipitate itself. It was an 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 effect. Mr. C. said it therefore appeared to him, with very great deference to the course of the Presiding Officer of the Senate, that he ought to have gone on, and, after the votes had been summed up, to have made the annunciation as proposed in the joint resolution adopted this morning.

"The two houses ought not, in the opinion of Mr. C., to have separated 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

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