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Mr. SEWARD. Will the honorable Senator from South Carolina allow me to interrupt him for one moment?

Mr. BUTLER. Certainly.

Mr. SEWARD. I barely wish to inquire of him, and of Senators generally, whether it will not be thought advisable that the motion of the honorable Senator from Virginia, which is intended to bring this matter to a close, shall be passed-which I believe does not involve the point now in debate-and then we may have time to discuss the question.

Mr. BUTLER. I do not wish to debate it; but I am not going to let any question of this kind pass by because it is considered necessary to economize time.

Mr. 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 question of the motion to raise this committee that I ask the attention of the Senate for a few minutes. I think, and I shall submit the reason why I think so, the question should not be thus 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 single 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."

Now, sir, I submit that, in obedience to the Constitution and law of the United States, the two houses met together-not as a convention, for no such body is known to the Constitution or the law of the United States-for the purpose of having in their presence the votes which had been cast by the electors for President and Vice President 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 supposititions 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 further 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, when you leave the clear functions of Congress under the Constitution of the United States, and depart from their discharge in the manner prescribed 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 the two together, or that the body thus assembled can decide anything, you raise the question, if they can, how can they decide it? The Constitution is silent as to how those men, thus assembled, shall vote. The law of the United States is silent as to 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 form without substance. It is not necessary that they should make any formal statement at all. There is nothing in the law, nothing in the Constitution, that requires it. When the tellers, by their organ, reported to the Presiding Office: 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

officer to whom they are delivered, the President of the Senate, retains possession of them, and opens them in the presence of the two houses. The Constitution declares that he shall open them in the presence of the two houses. The law follows up the language of the Constitution, declaring that they shall be counted and the result declared.

I submit that whenever this matter is examined-and I submit it now only as a question 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 law, 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 now stand. In either event, it will be conceded, I think, by every Senator, that it is a dangerous power. It is dangerous to leave it to the certifying 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 beeu ended, so far as the duties devolved on Congress by the Constitution and laws of the United States are concerned, I express the hope that no further action will be taken which may stand in the way hereafter as a precedent, unless it be action in the shape of additional legislation to define precisely what shall be done in a case of this kind.

Mr. TOOMBS. Mr. President, I protested against the action of the Presiding Officer of this body in the other house; because, as I understood it, the Presiding Officer counted the vote of Wisconsin, announced it in his place, and assumed and exercised the right of declaring that A had received so many votes, and B so many, and of announcing who were elected President and Vice-President of the United States. These are the facts. I understood distinctly this Presiding Officer to say that James Buchanan had 174 votes, John C. Frémont 114, and Millard Fillmore 8 votes; and then he made the announcement read a few minutes ago by the Chair. The Chair supposed, under the clause of the Constitution which he read, that he and the tellers had the right to determine what 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 then, and I deny now, the authority of the Presiding Officer of this body, with two tellers of the other house and one of this, to settle that question. I 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 President, and try the question 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 on 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 only 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 pro 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 undertake to decide whether the vote of the State of Wisconsin was a good vote or a bad

vote. The Presiding Officer, upon that matter, did no more than recite the fact which was reported to him by the tellers, pursuant to the concurrent order of the two houses. The Presiding Officer did no more than announce that the vote of Wisconsin had been given to John C. Frémont. Whether it was a good vote or a bad vote, he did not undertake to decide. The Presiding Officer announced further 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 Wisconsin had been given on a day different from that prescribed by law, the Presiding Officer would have considered it his duty to have reported, as the state of the vote, that whether a majority of the whole electoral votes had been given to James Buchanan would depend on canvassing the votes-a duty that he did not assume. But inasmuch as it 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 unafected, 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 the electoral votes. He disclaims having assumed on himself any authority to determine whether that vote or any other vote was a good or a bad vote. 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 pro 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 fortyeight votes or fifty-five votes, and C D sixty votes; and these being a majority of so many, CD 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 responsible 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, however, 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 been 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 Presiding Officer of the Senate, to count the votes in the presence of the two houses.

Mr. BUTLER. I have great respect for the President of the Senate, and I would trust him, upon any question of controversy where we had to make a Chief Magistrate, to hoist the flag under which we were to march; but I will trust no man to determine for me who shall be President of the United States on his arbitrary decision. Mr. STUART. That is precisely what I said.

Mr. BUTLER. Let him add up the votes and announce the result to me. I am one of the judges, or why do you call me there? I would trust you, sir; but I tell the Senator from Michigan, and I tell all others who choose to delegate to any one man such power in a matter of this kind, where there is dispute I would trust it to no man. Suppose there were two certificates from one State, is he to be the judge? I assure you, sir, it is a power which, in time of temptation-and God knows when the time of temptation may not arrive for some one to desire to be a President to rule this country-I would not like to trust to many people.

Mr. STUART. That is precisely what I said, that it was a dangerous power to be intrusted 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; and 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

the duty of receiving these votes, of keeping them, of opening them in the presence of the two houses, of counting them, and declaring the result. What votes he shall count it is entirely competent for Congress by law to declare.

Mr. BUTLER. I go much further than that, sir. I do not say that it requires previous legislation. I say we have jurisdiction at the time, without a previous law to regulate a matter of this kind. Can a President be made against the whole tenor of the Constitution, and against what may be the wishes of the different States, by the Presiding Officer of the Senate counting what votes he may choose? What is the use of Mr. Dickins, our worthy Secretary, reading the thirteen votes of 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 one of the judges? As I understand this subject, I assure you it is one of those things upon which I would stand here a long time before yielding the ninth part of a hair. The Senate of the United States is called into the other house as a corporate body, an imposing corporate body, to be a witness to the election of the Chief Magistrate of this country, and to see that the votes are counted fairly; and, sir, if the votes are not counted fairly, I protest against it. Mr. BIGLER obtained the floor.

Mr. ADAMS. Allow me to make an 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 overlooked, 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. Frémont. That fact was reported by the committee; they could not have done otherwise. 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 remarks 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 performance of their duty. Those tellers regarded their duty as sheerly ministerial-not discretionary at all. What duty had the tellers to perform? To examine the returns and report the facts-nothing more nor less. To have done less than that would have been to disregard duty. They could not know in advance what the facts would be on the face of the papers. We reported the facts as they appeared on the face of the returns; and they are that, on the day prescribed by law, all the votes were cast, except as to the State of Wisconsin, and that vote was cast on the 4th instead of on the 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 Michigan will remember, (for I beli eve he took the position, that after the result was announced 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. President, to which I was about to refer when we first came into the chamber, one occurring in Michigan and another in Missouri, the difficulty had been anticipated, and the report of the tellers was accordingly. The joint resolution of the two houses adopted prior to counting the vote in those cases provided for the difficulty. Here it was not anticipated; no provision was made for it; and the tellers decided in their report simply to state the facts as they are. Now I ask my friend from Georgia if there is any usurpation in that? What else could we do? Wherein have the tellers attempted to usurp power, or to state anything else than simply the facts as they appear on the face of the papers?

Mr. WILSON. Will the Senator from 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 votes, and had made the announcement to the convention that Mr. Frémont received one hundred and fourteen votes, including the vote of Wisconsin, and the President of the convention read their precise report, using their exact language, these tellers, after having thus discharged their duty, and what seems to me their whole duty, make up and bring in another report here?

Mr. BIGLER. I made the whole 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

had added them all up; but is that a reason why the fact should not be stated on the report, that as to the State of Wisconsin the vote was not cast on the day prescribed by law? I have explained why this was done. If it had been anticipated, the joint resolution of the two houses would have provided for it, and the tellers would have had no occasion to refer to it in the manner they have done.

Mr. HUNTER. Mr. President, I submitted this motion, and I should like to say a word in regard to it. My object was to enable the two houses to do, after the difficulty had occurred, what had been done on two former occasions to avoid a difficulty of precisely the same 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 Missouri, the joint committees which had been appointed by the two houses to regulate the matter proposed a report, by which it should be declared that an election had been accomplished, whether they counted the votes of those States or not. Now the same state of facts exists here. We have no means of settling this dispute between the two houses as to whether the vote of Wisconsin ought to be counted or not, and happily for the country it is not material for us to settle it. I think difficulties of this kind are matters which should be remedied by legislation to be applied to future cases. Fortunately, we are enabled to settle this election without attempting to arrive at any conclusion on this point in a joint meeting of the two houses, or by an interchange of resolutions between them. I propose, therefore, that we shall settle this matter as similar matters have been settled 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 question.

But the Senator from Michigan thinks this is unnecessary, because, in his opinion, the action of the President of the Senate in the joint meeting of the two houses has settled and concluded the whole question. That may be his opinion, but I apprehend it will not be the opinion of the House of Representatives, nor do I think it will be the opinion of a 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 concurrence 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 think proper to do so, to resort to legislation for the purpose of remedying the difficulty.

Nor do I understand that the Chair claimed to have the right to preclude the two houses by any declaration of the facts. It cannot be so, because the President of the Senate and of every parliamentary body is only the organ of that body, subject to its control, subject to its direction; and he could not therefore assume to act, and did not, as I understand the Chair to have said, independently of the House which he represented. But all these are 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 Senate 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 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 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 formally 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

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