capacities, to decide which are the votes under the Constitution. It is expressly declared by the Constitution that "the votes" shall be counted, but not by the officers of this body, or of the other house, or by tellers, but it is by law provided that they shall be opened and counted before the two houses. The point is, what are the votes to be counted? I insist that nothing shall, by legal intendment or implication, assert the doctrine that anybody can determine what are votes except the Senate and House of Representatives, or that any one can prevent them from deciding that question. That is all I wish to be provided against.

The PRESIDENT pro tempore. The order that was made by the Senate of the United States prescribing the mode of counting the votes for President and Vice-President is not a joint resolution. It is a resolution of the Senate, in which the House of Representatives concurred. The entry in the House of Representatives is:

"IN THE HOUSE OF REPRESENTATIVES, February 5, 1857. "Resolved, That the House of Representatives concur in the foregoing resolution of the Senate."

That resolution prescribed to the Presiding Officer simply this duty. The resolution provided for the appointment of a teller 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 they should be declared; then "that the result shall be delivered to the President of the Senate pro tempore, who shall announce the state of the vote, and the persons elected, to the two houses assembled as aforesaid." The President of the Senate, having received the list from the tellers, announced as the state of the vote, the state of the vote as it appeared on that list. In the list the vote of Wisconsin was assigned to John C. Frémont, and the Chair so read it. The Presiding Officer did no more than give the result as stated by the tellers, and then, in the further discharge of the duty devolved upon the Presiding Officer by the concurrent resolution, he announced the person who was elected, the Constitution providing that "the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed." The Presiding Officer in his own judgment believed then, as he believes now, that be declared correctly, as the state of the vote, that James Buchanan had received the greatest number, and that that number was a majority of the whole number of electors, not undertaking to decide, and not having decided, whether the vote of the State of Wisconsin had been given to John C. Frémont or not-a power that the Chair utterly disclaims and never asserted.

Mr. COLLAMER. Let the resolution be read as I have amended it, which the Senator from South Carolina accepts.

The Secretary read as follows:

"Whereas, having met the House of Representatives in accordance with the fifth section of the act of March 1, 1792, relative to the election of President and VicePresident of the United States, and the electoral votes having been opened by the President of the Senate in the presence of the two houses of Congress, and counted by the tellers appointed on the part of the two houses, and it appearing that James Buchanan, of Pennsylvania, had received one hundred and seventy-four votes, such number being a majority of all the electoral votes of the several States, and that John C. Breckinridge, of Kentucky, had received one hundred and seventy-four votes, such number being a majority of all the electoral votes of the several States, as Vice-President of the United States, and the same having been duly declared by the President of the Senate in the presence of the two houses: Therefore,

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the two houses are of opinion that the Constitution and laws have been duly executed, and that no further declaration of these facts is necessary than the announcement that James Buchanan, of Pennsylvania, is elected President of the United States, and John C. Breckinridge, of Kentucky, is elected Vice-President of the United States."

Mr. TOUCEY. I do not rise for the purpose of entering into a debate on any question 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, in joint convention, there is no propriety in deliberating or debating, and I do not understand that there is any diversity of opinion in the Senate on that point. There is no question, I think, anywhere, that when the Senate and House of Representatives are together for the purpose of witnessing the counting of the votes given for President of the United States, there can be no action. If there is to be any action, or deliberation with a view to action, the two houses must separate, deliberate, and act 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 been presented here in the Senate, there would have been no question-there would have been no difficulty-be

cause that presents distinctly the number of votes given, and leaves ont of the connt the votes of Wisconsin as being doubtful whether they would be counted or not, and expresses no opinion on that point; but the result being the same, the declaration was made by the Chair. I have no objection to the resolution proposed, as amended by the Senator from Vermont, or leaving the whole subject in the condition in which it is understood on all sides to be. I hope, therefore, we shall act on it promptly, if at all. Mr. HOUSTON. Mr. President, I am very reluctant to occupy any portion of the Senate's time. It seems to me that there is really no ground for discussion. In the first place, I believe that the Presiding Officer discharged correctly the constitutional and lawful duty assigned to him while this body was in the hall of the House of Representatives. He was bound to open, in the presence of the two houses, the electoral votes which he had received. The law vested him with no discretionary power to decide as to the validity and legality of those votes.

In the next place, it was proper that he should make the announcement which he did make, in pursuance of the Constitution and law. He has carried out, in my opinion, in these two acts-opening the votes received by him, and announcing the resultall 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 which a decision could be had in the House of Representatives upon the validity or insufficiency of the votes, and therefore the President of this body was estopped from taking action thereon.

Mr. President, I call for the reading of the 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. I seldom speak in this body, and I do not ask for the reading of this rule with relation to myself; but I desire to hear what is going on. I suggest that 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 august and solemn appearance of this body some twenty years ago when the Fathers sat here. Then it was a majestic body indeed. There was something awful in its appearance. The solemn stillness, the gravity of Senators, the propriety of 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 immediately repaired to the individual in the gallery and touched him, and there was silence. If a member sat in an indecorous position, or laid his foot upon his desk, the Speaker sent his page with this message: "The compliments of the Speaker to Mr. he will please take down his foot ;" and he never put it up a second time.

and

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 Sergeantat-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 was not material whether the tellers certified the result or not. It was before the nation when the announcement was made to the constitutional 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 improper. There is no law determining in what manner a vote shall be rejected; and if Congress has failed to pass laws for regulating a contingency of this kind, or to say how it shall be determined, it cannot be determined, no matter what the consequence may be.

Every act done beyond the constitutional functions imposed on the President of this body in this instance, is a revolutionary act. This very resolution is not known to the Constitution, nor is it known to the laws of Congress, and it is therefore of itself revolutionary. If in this matter anything be done which is not known to the Constitution and laws, it is done in violation of them; and is not only a nullity, but is revolutionary in its character. You may say it is only a form; but, sir, it is a form not known to the Constitution, and I 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 the Constitution. I maintain that the election is good, constitutional, and lawful. That is the announcement made in conformity with the Constitution and the law,

and the election is valid without any plastering up by resolutions of this kind. I have no doubt of the opinion of every individual here as to the validity of the election. It is not necessary to decide the question of the Wisconsin vote. There is a constitutional majority without it, and no action of this body or of the House of Representatives is required. The President of the Senate has told the nation what is the result. He is the organ for communicating the votes of the electoral college to this nation, and his announcement gives it all the validity that a thousand resolutions could do, without law, without precedent, and, so far as I can see, without reason. I am against such resolutions.

Mr. WELLER. I desire to terminate this debate. I regard it as a very unprofitable one-the discussion of a mere abstraction. Nobody doubts the validity of this election. The very moment the announcement was made by the President of the Senate of the result of the vote, Mr. Buchanan became President elect of the United States. He has but to await for the arrival of the 4th of March to be inaugurated. All that remains for the Senate to do, is simply to appoint a committee to inform the President elect of his election. This resolution, however, is based on the assumption that our action has been illegal or irregular; that there is some informality which may affect the result of the election. Now, suppose, in the present organization of the House of Representatives, they do not choose to agree to that resolution; what is the consequence? Does it not stand on the assumption that there is something irregular which we endeavor to cure, and that it requires the action of the Senate and House of Representatives to cure that irregularity? They seem to have taken up the idea that the President of this body had usurped a power which properly did not belong to him. In that they do him injustice. But in the present organization of that house the discussion may last for days. Cui bono? Who is to be benefited by that?

I wish to move that this resolution lie on the table; giving notice that, if it be laid on the table, I shall move for the appointment of a committee to inform the President elect of this day's work; which is all, in my judgment, we are called upon to do. I move to lay the resolution on the table.

Mr. Rusk. Will the Senator withdraw that motion for a moment?

Mr. WELLER. My object was to prevent discussion.

Mr. RUSK. I do not desire to discuss the question, but simply to read the Constitution.

Mr. WELLER. If the Senator will renew my motion, I shall withdraw it for him. Mr. RUSK. I shall renew it. The Constitution declares:

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 approved by him, or, being disapproved by him, shall be repassed by twothirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill."

I think we acted hastily in appointing tellers, because that was done by a resolution concurred in by the House of Representatives. I agree that we should not pass this resolution; and I renew the motion that it be laid on the table.

Mr. BELL, of Tennessee. I hope, before that question is taken, I shall be allowed to say a word.

Mr. Rusk. I withdraw the motion for the accommodation of the honorable Senator. Mr. BELL, of Tennessee. If it is supposed that this resolution is necessary at all, I think it should be modified.

Mr. BUTLER. To terminate this debate, as I see there is no disposition-

The PRESIDENT pro tempore. Does the Senator from Tennessee yield the floor?

Mr. BELL, of Tennessee. No, sir.

Mr. BUTLER. I intended to withdraw the resolution.

Mr. BELL, of Tennessee. I was going to say that, if the resolution be necessary, it should be modified.

Mr. BUTLER. If I withdraw it, it will not be necessary to discuss it.

Mr. BELL, of Tennessee. The honorable Senator will excuse me, if he pleases, for not yielding him the floor, but going on myself, as I have it.

Mr. BUTLER. Certainly.

Mr. BELL, of Teunessee. I do not rise to make a speech on this subject, but to express my opinion. I think the President of this body acted in conformity strictly with his duty, according to my comprehension of it. It is due to him that I should express my opinion 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 proper for some member of the House of Representatives or of the Senate to raise the question whether it should be counted; but the Presiding Officer had no right to suggest or dictate such a course. His duty, under the Constitution, was to open the votes in the presence of the two houses. He discharged that duty. The tellers reported that the vote of Wisconsin was cast on a day not provided by law, and of course it was unconstitutional in that respect.

If this resolution is to be sustained. I suggest and I think it will recognize the announcement of the President of the Senate before the two houses and legalize it, and render it entirely in conformity with the Constitution-it should be amended so as to be in the language of the Constitution. The constitutional provision is:

"The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed." That is not the language of the resolution now before us. It should, in conformity with the Constitution, say that the Presiding Officer having announced that James Buchanan received 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 conformnity with the law or not, makes no difference. According to the language of the Constitution, 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 the vote of Wisconsin on this occasion ought not to be counted; but that is not a material question now. It makes no difference to the result in the present case. Electors were appointed by the vote of the people of Wisconsin, and James Buchanan was announced by the President of the Senate to have received a majority of the whole number of electors, including those appointed by 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 announcement, and there was no separation of the two houses to deliberate upon the question whether the votes were all legally counted or not, it seems to me to be unnecessary to pass this resolution; but if passed at all, it should be amended as I have proposed.

Mr. WELLER. I make the motion to lay the resolution on the table.

Mr. CRITTENDEN. I wish to suggest an amendment which I intend to offer to the resolution.

The PRESIDENT pro tempore. The motion is to lay the resolution on the table.
Several SENATORS. It has been withdrawn.

The PRESIDENT pro tempore. The Chair is not aware of it.

Mr. WELLER. The Senator from South Carolina withdrew it. He could not do it at that time, because there was another Senator on the floor.

The PRESIDENT pro tempore. The Chair will put the question on laying the resolution on the table.

The motion was agreed to.

Mr. WELLER. I now offer this resolution, which I think will complete the business so far as the Senate is concerned:

"Resolved, That a committee of one member of the Senate be appointed by that body, to join a committee of two members of the House of Representatives, to be appointed by the House, to wait on James Buchanan, of Pennsylvania, and notify him that he has been duly elected President of the United States for the constitutional term, to commence on the 4th day of March, 1857; and also to wait on John C. Breckinridge, of Kentucky, and inform him that he has been duly elected Vice-President of the United States for the constitutional term, to commence on the 4th day of March, 1857.”

Mr. CRITTENDEN. I may as well offer my amendment to this resolution as any other. I think it is of importance that we should avail ourselves of this occasion for settling a 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 Senate was in the chamber of the House of Representatives, 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? Suppose he should declare the vote admitted, and the party to whom it was given elected President of the United States, what could ever countervail that declaration? How could you ever question the election of a President thus announced according to the forms of the Constitution, but in disregard of the substance of it, as I think? We could easily see to-day what would be the result: confusion and revolution springing up instantaneously in their worst form on the floor of that House, and scattered like wildfire through the whole country. Such a question as that ought to be met and settled. I propose, therefore, as an amendment to this or any resolution offered on the subject: "But it is resolved furthermore, That the vote of Wisconsin, being given on a day different from that prescribed by law, ought not to have been included in the count of the electoral vote, and that any member of either the Senate or House of Representatives had the privilege and right to object to the counting of said vote, and that it was com

petent for the Senate and House of Representatives alone to decide upon that objection."

I think the Senate is not in a condition to decide this question now. I do not think there is a quorum, or anything like a quorum, present. We shall know that, however, by the vote, for I shall call for the yeas and nays on the adoption of the resolution. Mr. WELLER. I hope the Senator from Kentucky will offer that as an independent proposition.

Mr. CRITTENDEN. If I do I shall never be able to get it up.

Mr. WELLER. It has no sort of connection with the appointment of a committee to wait on the President elect. I shall be compelled, perhaps, to vote for the resolution of the Senator from Kentucky, but I do not see any connection between his proposed amendment and the resolution which I offered I certainly feel every disposition to give the resolution of the Senator from Kentucky a hearing, and I should like to have a vote on it, and, entertaining the opinions I do now, I shall be compelled to vote in its favor, although it would, in effect, disfranchise a State. It is one of the cases not provided for in the Constitution. Under the Constitution we have power to fix the day, and it must be uniform. I think it doubtful whether we can say that if they do not meet on that particular day-if they are prevented by the act of Providence, or otherwise, from assembling-they may assemble at some future time. I doubt that power, but I think we ought to withhold this until we pass on the other resolution.

Mr. CRITTENDEN. If my resolution be passed first I shall have no objection; but if it is not, I shall never be able to get it considered hereafter.

Mr. WELLER. I really cannot see any reason why it should not receive the consideration of the Senate at any time. I am sure the Senate will have every disposition to receive the resolution of the Senator from Kentucky, and pass upon it. I have no objection to acting on it first, but I do not wish it attached to the resolution I have offered, with which it has no connection.

Mr. STUART. If the Senator from Kentucky wishes to obtain a vote on his resolution, it ought to be taken when the Senate is full, and therefore I move that the Senate adjourn.

The motion was agreed to; and the Senate adjourned.

IN SENATE, February 12, 1857.

On motion of Mr. WELLER, the Senate resumed the consideration of the following resolution submitted by him yesterday:

"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 James Buchanan, of Pennsylvania, and notify him that he has been duly elected President of the United States for the constitutional term, to commence on the 4th day of March, 1857; and also to wait on John C. Breckinridge, of Kentucky, and inform him that he has been duly elected Vice-President of the United States for the constitutional term, to commence on the 4th day of March, 1857." The pending question being on the amendment offered by Mr. CRITTENDEN, to add to the resolution:

"But it is resolved furthermore, That the vote of Wisconsin, being given on a day different from that prescribed by law, ought not to have been included in the count of the electoral votes, and that any member of either the Senate or the House of Representatives 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 diffidence that I express a legal opinion in reference to this matter. I, however, feel constrained to do so, because I believe there has been a confusion of ideas, and a misuuderstanding 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 briefly why I do not believe it. I will read from the Constitution of the United States, and I will state very concisely what my view is. The Constitution provides:

"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.

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They shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of