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."

Now, sir, I apprehend the whole of this difficulty began in what was an original error. The votes are sent here to the President of the Senate, who, as the officer presiding over the representatives of the States, is to open and count them. The Constitution says it shall be done in the presence of the Senate and House of Representatives. The House of Representatives might have been invited to this chamber, or we might have gone to theirs. You, sir, according to my opinion, ought to count those votes, as the Presiding Officer of the Senate. I suppose that notions of convenience heretofore dictated to us the propriety of our going to the chamber of the House of Representatives. This being a small chamber, we did not wish to bring the members of the House of Representatives here, and seat them around in the ladies' galleries because they were curions to see, or put them in privileged seats, or niche-hole or pigeon-hole them in one place or another. As the Presiding Officer of the Senate, the direction of the Constitution is that you, sir, shall open and count the votes-that is your duty-before the Senate, and the members of the House of Representatives are to be present as witnesses. In the contemplation of the framers of the Constitution, what could have been meant by this? The idea was that we were not to go into executive session, nor, by some secret cabal or clandestine arrangement, get together here and have a coup d'état, and make a President. But the contemplation of the Constitution was that the House of Representatives were to be present as witnesses, to see that the count was fair; that the Senate were to regulate the mode of counting, and that we should not have a secret session and exclude the other house. We might invite them here; and, as a matter of courtesy between the two houses, probably we ought to have invited them here.

You know, sir, how these matters are generally arranged. Some person who is superofficious and wishes to get placed at the head of a committee, and get his name in print-I will not say in this body or in the other house, but anywhere else you pleasegets up and moves that such a thing be done. You go there with the officers of your house, dressing up your Secretary of the Senate and the Sergeant-at-Arms in the ins gnia of office, one man taking the right and the other the left, just as they do at an English dinner.

The Constitution, in my judgment, is that 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'état. The idea is that the people's representatives, having a right to look ou, by their majesty, by their presence, representing the people 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. I suppose that the reason the House of Representatives have never met in this chamber for this purpose, and have not been invited here, was that we had no place in which to put them, and we were compelled to go to their chamber, because we had not tables enough at dinner to accommodate them. That is the whole matter. We had a right to pass, and ought to have passed, on these votes; and I will tell you why we ought to have the right to pass upon them.

The States return their 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 '98 and '99. I do not suppose what I have said is anything eliminated from the occult virtues of those resolutions; they were passed by my own State, and I do not want to quarrel with my grandfather. I say the votes were to be 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 committed by anything I did or did not do yesterday; for when members of the other honse got up and commenced speaking, while this body was in session in the other ball, I left. I did not desire to cali them to order, but I say they had no right to speak. They are like witnesses in the presence of a court. They have a right to look on, but not to participate. All that was done by them yesterday was out of order and improper. The votes must be counted, and counted as the votes of States. Why so counted? 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 convention, as the members of the other house proposed, 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 identical States, by their overpowering voice in such a convention, could carry out the fraud.

I do not blame you, sir, under the novelty of the case, arising as it did, for having 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 be 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

in a cancus or cabal. They looking on in that way, and you having the votes, and connting them, when you came to the returns from the State of Wisconsin you might have very properly said: “Gentlemen, under the law of 1792, and under the Constitution, a certain day is prescribed for the meeting of the electors; this vote was not cast on that day. Shall we count it?" Then any Senator might have moved that it should be counted; but what right had a witness-a member of the lower house-to put in at all? We were standing there to count the votes for President of the United States-the votes 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.

The

Talk about an amalgamation of the two houses! I do not know what the prece dents are, though allusions have been made to them. I do not consider myself committed by anything that transpired; I do not commit any future Congress, much less commit posterity, by what transpired yesterday, because by the Consitution, the Senate, the representatives of the States, are to supervise the counting of the votes. members of the House of Representatives may be present, under such forms and ceremonies as you choose. Then, whenever the vote is counted out, and you have not a constitutional majority to elect a President, the House of Representatives ought to retire to their own hall, and immediately proceed to elect, the Speaker Leginning 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 corps de reserve to vote after the proper day. The framers of the Constitution may have had no more notion of the telegraph which now puts the country in instantaneous communication throughout all its borders, than Scipio Africanus or Hannibal had of gunpowder or cannon. But when we have such an instrnment affording a means of entering into combinations, it is wrong that a State should stand as a reserved corps.

Under the Constitution, if you mean to carry it out and enforce it, whenever a State does not come up to time-time being a material matter in this proceeding-her vote ought to be excluded.

I have, perhaps, as much respect for, and confidence in, my colleague as one man ought to have in another; and, while I am willing to declare the fact that the vote of Wisconsin ought not to be counted, I am not willing that we should pass a resolution conceding the idea of a joint convention, and saying that any member of either house had a right to put in, or to call us to order, or to do anything else. It has been a ceremony sanctioned by time, for the two houses to meet in the Representatives' Hall. Suppose it is sanctioned by time; if it is a bad precedent-malus usu sabolendus est-the sooner you get back to the right course the better.

I have stated my view of the Constitution. The votes are to be sent to you, sir, and we are to count them. Resolutions are got up by superofficious men, who like to be figuring in such matters, and get their names in the newspapers, that this, that, or the other course takes place in arranging the proceedings; but when you come down to the real sense and understanding of the matter, it is that we, as representatives of the States, shall count the votes; because at last there is to be some final tribunal where justice, and honor, and reliance, and confidence reside. The presumption is that we will act right: but upon the predication that it was no harm to watch even us, the framers of the Constitution said that we should count these votes in the presence of the House of Representatives. We may place them in our lobby, or in the reporters' seats, or anywhere else, but they are to look over the proceedings. After the votes are counted, and a majority is declared to have been given for a particular person as President, he is declared 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 testimoniam rei, as you would enter a formal writ in an action of ejectment or a chancery suit. The votes are to be counted, and when 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 kuown, 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 notorions way, and it is a fixed fact. This proceeding is not material to the decision of the election just now, for everybody knows that Buchanan is elected President and Breckinridge is elected Vice-President. Hereafter-however, I am afraid I shall not live that long-in the new Capitol I think we ought to make a new precedent, and have a large Senate Chamber, and let us invite the other House and seat them around very cleverly and properly. Let us count the votes in their presence; they may be witnesses; they may look over it; let us do it as a Senate in session, and let us regulate our own business, and not allow an interloping member (I mean no disrespect to any member who spoke yesterday in the other House) put in-I will not say his jawand say the matter is not finished because he did not get a chance to talk.

We had the right to count the votes. When we found, in discharging that duty, that

the State of Wisconsin, under the requirements of the law passed to carry out the Constitution, came up out of time, like a horse ruled out of time and distanced in a race, she ought not to be counted. I will vote for the naked fact asserted in my colleague's resolution as to the vote of Wisconsin; but as to this idea of an amalgamation of the two houses and a joint convention, I cannot go it. I take my politics from Washington and Marshall and that school of politicians, and I reckon that I never was as near coming up to what are the hidden, occult virtues of the resolutions of '9s 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 myself," [laughter,] I have an almighty confidence, at least in this particular instance, that I am right. The votes are to be returned here to the Senate, counted by the Senate, regulated by the representatives of the States, and if there is a failure of election the House of Representatives is to retire and proceed immediately 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 he had brought over here, and proceed to elect a President simply because there had been a failure under the law to elect by the States.

I am willing to declare that the State of Wisconsin should not be counted. My politics-I will not say my Federal teachings, because that is an odious word-all lead me the other way; but my opinion, under the law and under the Constitution, is that which I have stated as to the power of the Senate. I verily believe that is the simple, honest, naked, straightforward view of the question. I say this without any reference to collateral considerations and hypothetical cases that will occur to every gentleman in the Senate without my suggesting them. We ought to stand by the Constitution, and by 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 the House of Representatives had any right in the world to do anything except to stand by and look on as witnesses while the count was going on, to see that the proceeding was done right. 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 not elect by proper electoral votes, it is remitted to the House of Representatives in their State capacity. Evidently the intention of the Constitution is that the votes are to be returned here, and counted off and decided on by the representatives of the States. Any other course would allow the State of New York to have as potential a voice as all the States from Kentucky to the Gulf of 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 fraudulent vote; and then, if the two houses are to be amalgamated in a joint convention, the question is to be decided by the same political influence. I will not say it would be a fraud, but the same feeling that would control in the one instance would in the other. I think my State can take care of herself in any contingency. I feel confident of that; but still she is concerned as to the fairness and propriety of this count. must say that this is the first time in my life that I had real State-rights sentiments come strongly over me, so as to induce me to object to anything that is not consistent with them.

I

I have made these remarks, sir, simply in justice to myself and what I think are the sentiments and feelings of my Commonwealth.

Mr. STUART. Mr. President, I do not design to detain the Senate in a lengthy discussion of this question. I occupied considerable time 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 and 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 Congress makes it more specific, that he shall open those votes in the presence of both houses of Congress, and they shall be counted. It seems to be supposed by some gentlemen that the counting is to be done by the two houses of Congre s, but that is impossible in itself; it is not, therefore, a fair construction of the Coustitution of the United States.

I concede there is not that precise accuracy in language in this respect in the Constitution of the United States which usually characterizes that instrument in all its provisions. It would have been more strictly accurate and definite to have said, “ The President of the Senate shall open and count the vote in the presence of the two houses

of Congress," but the Constitution does not say in express terms who shall count them. Having made the President of the Senate the custodian of the votes-having prohibited him from opening them until the arrival of a particular day, and then providing for its being in the presence of the two houses of Congress-the law having provided that Congress shall be in session on that day, it secures a certainty of action by the President of the Senate-he being an officer always in 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, and have a President of the Senate.

It may be said that Congress ought by law to define more particularly what shall be done on this subject. I yield to that opinion; I expressed it yesterday. I think the law may be made more specific; but I cannot admit that the law can provide for any other counting of the votes under the Constitution than that they shall be counted by the President of the Senate. Upon this subject allow me to turn your attention to the Commentary of 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 Congress, opens all the certificates, and the votes are then to be counted. The Constitution does not expressly declare by whom the votes are to be counted and the result declared. In the case of questionable votes and a closely-contested election, this power may be all-important; and I presume, in the absence of all legislative 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."

That is precisely the view which I sought to present to the Senate yesterday. I disagree, therefore, with the honorable Senator from Kentucky, (Mr. Thompson,) when he supposes this is a count by the Senate. It is a count by the President of the Senate. To secure fairness and accuracy, it is a public count before two responsible organized bodies under the Constitution. All that was done here in respect to the negotiation between the two houses was simply done in courtesy. It had no binding force as law. If it were a concurrent vote of the two houses, it could only be binding by the approbation 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, and therefore I hope no further action will be had on the subject.

Mr. HUNTER. Mr. President, the Constitution evidently contemplated a provision to be made by law to regulate the details and the mode of counting the votes for President and Vice-President of the United States. "The 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." 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 in which the votes are to be counted. As yet, no such law has been found necessary. The cases, happily, have been rare in which difficulties have occurred in the count of the electoral votes. All difficulties of this sort have been managed heretofore by the consent of the two houses-a consent either implied at the time or declared by joint resolutions adopted by the houses on the recommendation of the joint committee which is usually raised to prescribe the mode in which the count is to be made. In the absence of law, the will of the two houses thus declared has prescribed the rule under which the President of the Senate and 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 prescribed the mode in which the tellers were to make the count, and also required him to declare the result, which he did. It was under the anthority, therefore, and by the direction of the two houses, that he acted. The resolutions by which the authority was given were according to unbroken usage and established precedent.

Nor were the occurrences of yesterday without a parallel. Just such a difficulty arose in regard to the vote of Missouri when Mr. Monroe was elected; and the scene in the House, to judge from the report, must have been more tumultuous than that of yesterday. The difference between that case and this was, that the joint committee had provided, by a resolution adopted previously to the count, that the result was to be announced as not being affected by the vote of Missouri in one way or the other, so that the resolution itself prescribed the mode in which the result was to be declared.

This precaution was taken upon the motion of Henry Clay, of Kentucky, fortunately enough, as the sequel proved. When the votes were being counted, and the certificate from Missouri was reached, Mr. Livermore, of New Hampshire, objected to the reception of her vote. Upon that debate arose; and the Senate, upon motion of Mr. Williams, of Tennessee, returned to their own chamber. When they were gone, a debate arose, and Mr. Clay said that, with deference to the President of the Senate, he thought be ought to have declared the result, for "the moment the objection was made the rule (i. e. the joint resolution) adopted this morning took effect." He thought, therefore, that the President of the Senate ought to have done as I understand our President did yesterday, the resolution of the two houses giving him this authority.

Mr. THOMPSON, of Kentucky. Allow me one moment. From the tenor of the remarks of the gentleman from Virginia, an expression may be drawn which I wish to disclaim, in reference to the President of the Senate. In calling members of the House interloping speakers, do not understand me as in the least way saying that he acted improperly, or wrong. He acted probably as most men would have acted, and possibly as I might have done myself. I will not say that, in regard to that, there was anything improper. I think he acted very discreetly and prudently. But then, what is the right of the matter? When we are counting the votes, (for the President of the Senate only counts them in his official capacity, and in the session of the Senate, because he cannot count them as a private individual,) it is improper for the House members to be anything but listeners. When they commenced speaking I retired as an individual. I did not think that it was in order for them to speak.

Mr. HUNTER. The result in the Missouri case was, that the Senate was invited back by the House of Representatives to its hall, and the President of the Senate did announce the result, as ordered by the joint resolution, in the midst of interruptions and murmuring; and then, upon motion of a Senator, the Senate retired from the hall; which so much provoked Mr. Randolph, of Virginia, that he declared the election vitiated, and offered resolutions affirming the whole proceeding to have been illegal. In the midst of a debate upon these the House adjourned; and this seems to have closed the proceedings in relation to the count of the electoral votes. It would seem, theu, that whatever authority is vested in the President of the Senate as to the declaration of the result, has been supposed to have been given him by the joint resolution of the two houses of Congress. It probably would be still better to regulate the whole matter by law. If, then, his authority be denied in either of these modes, the power of the two houses to regulate the count is recognized.

I thought, therefore, yesterday, that 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 be to pass a resolution declaring that, as the vote of Wisconsin could not affect the result in either way, it had not been reckoned in the count. Whether even that be necessary now, it will be for the Senate to consider. More than that cannot now be necessary, and perhaps it will be sufficient to order the result of the election to be announced to those persons who have been elected as President and Vice-President of the United States.

Mr. CRITTENDEN. It is the furthest from my wish or purpose to embarrass the proceeding that gentlemen desire to take. Fortunately for us, this vote is of no consequence as it regards the result of the election. Mr. Buchanan is elected President of the United States, and it has been so declared; but it seems, according to the judgment which prevailed yesterday when we were in the other house, that, although objection was made to the counting of the vote of Wisconsin, there was, according to the opinion of the Presiding Officer, no way in which that objection could be decided. I think it is very important that we should decide it in some form or other. We see the danger that may arise out of the uncertainty existing on this subject. We saw enough yesterday to satisfy us that, if this presidential election had depended on the admission or exclusion of the vote of Wisconsin, the result would have been little less than revolutionary. Is it not wise to avail ourselves of this warning for the purpose of determining whether such votes ought or ought not to be admitted? I think it is. I think it is of great consequence, if we exercise any sort of providence or foresight on this subject, that the sense of the Senate and House of Representatives should be expressed on that question.

Other difficuties may be removed by such legislation as the gentleman proposes; but whatever may be your legislation on the subject, there must be electors, and you must appoint the day when the electors shall be chosen, and the day on which those electors shall meet and cast their votes; and then the day of the election of the electors; and the day when they shall meet and cast their votes must, by the express declaration of