the Constitution, be the same throughout the United States. You can by no law modify or nullify the election in this respect. On the same day on which electors are chosen in one State, they must be chosen in all the States. The same day on which they meet and cast their votes must be the day for meeting in every State. That is a constitutional provision.

As for the idea that it is in our power, or that we ought to admit a vote under any special circumstances not given on that day because of the weather, is to make the construction of the Constitution depend on the state of the weather-is to make it depend on any accident, or the pretext of any accident, or the pretext of any unavoidable detention of the electors from the place of voting. That cannot be. The Constitution says it shall be on the same day throughout the United States. You ought, therefore, in your law, to fix that same day for all the Union. Here is a vote tendered us from a State given on another day. We call it a vote in common parlance; but in the constitutional sense is it a vote at all? Is it not merely null? Unquestionably, it seems to me, it is null and void. The constitution of a State, for instance, provides that its legislature shall be elected on a prescribed day. Can any voter be allowed to vote afterward? Does his coming to the polls the day after the election is over, or an hour after, and declaring his voice in any way he pleases, give any effect to his voice? It is not a vote; it is only a declaration of how he would have voted if he had the privilege of voting at all. It is idle to talk about circumstances changing the Constitution in this respect, or giving by accident validity to a vote which the Constitution prohibits. It is no vote at all, and should be rejected as such.. That is my idea, and I wish to declare it.

Upon more and more reflection, I am rather disposed to settle it, because the other difficulties which have resulted from the joint meeting as to the mode of procedure may be remedied by legislation, and I hope will be. We have nothing, in my judgment, so important before us this day as the question that this presidential election has opened to our view. Let us avail ourselves of the warning which accident has given us a warning which comes at a time when the question is comparatively of no consequence, and we can calmly apply our minds to the proper constitutional consideration of the question. But whatever legislation may take place, electors must some day be appointed, and the point I now propose to settle is one that may arise under any state of legislation you can possibly adopt. I am willing to confine our action now to that unavoidable state of the case which may occur in every future presidential election, in spite of all we can do. We cannot give a single day longer than that allowed by the Constitution. The vote must be on a particular day. No time before, no time after, will do. That is the Constitution, and we cannot change it. We cannot say that for the purpose of avoiding difficulties of this sort, and affording more time for the electors to meet, the election may take place any time within three days after a given time. We cannot give more days than one, and that one day must be the same throughout the Union; so that this question may ocenr in any and every presidential election. Now, is a vote given on a day different from that prescribed, null? I think it is.

I will ask leave, wishing, as far as it is in my power, to avail myself of every means of obtaining a vote on this question, to disembarrass the object which gentlemen have in view by the additional resolution; and, therefore, as I understand that the gentleman from California, who offered the original resolution, is willing that a vote may first be taken on my resolution, I withdraw it in the form of an amendment, and offer a distinct resolution embracing that single point.

Mr. WELLER. For the purpose of effecting the Senator's object, I can withdraw the resolution I offered for the time being, and the Senator from Kentucky can offer his proposition.

Mr. CRITTENDEN. Very well. I am willing to have them disconnected.

Mr. COLLAMER. I understand that the resolution of the Senator from Kentucky is now offered. I wish it read.

The PRESIDENT pro tempore. The resolution of the Senator from California is understood to be withdrawn.

Mr. CRITTENDEN. I now offer this resolution :

Resolved, That the electoral vote of the State of Wisconsin, in the late presidential election, being given on a day different from that prescribed by law, was therefore null, and ought not to have been admitted or included in the count of electoral votes given in the late presidential election.

Mr. BENJAMIN. Permit me to make a question to the Senator from Kentucky. I am perfectly willing to vote for all the propositions contained in the resolution; I believe them to be founded in the Constitution and laws of the land; but in the shape of a resolution it will not avail so much as it would to pass a law now, directing that hereafter, when the vote of a State presented for count shall appear to have been given on a day different from that provided by law, it shall be the duty of the President of the Senate not to count that vote. If we pass a law declaring that, it will have effect for all future time. If not, this will be merely an expression of opinion that does not

bind any one; and the difficulty to which the Senator refers will again occur. With a law there can be no difficulty.

Mr. WELLER. The Senator from Kentucky, perhaps, can get at the question in this way: Let him offer his proposition in the shape of a resolution instructing the Judiciary Committee to report a bill providing that in such a case, where a State fails to give a vote at the time fixed by law, it shall not be counted. That will be a test vote, and we can get the sense of the Senate on that proposition.

Mr. CRITTENDEN. I prefer this mode. I hear the gentlemen's suggestions with great kindness and all proper respect; but I do not know that a law may be passed. We have been now seventy years and more without any such law, and I do not know but that, when this presidential election and the consequences which might have resulted from it have been lost sight of, we shall go on without legislation. I wish to change this resolution and make it a joint resolution of the Senate and House of Representatives; and in that form I offer it:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the electoral vote of the State of Wisconsin in the late presidential election, being given on a day different from that prescribed by law, was therefore null, and ought not to have been admitted or included in the count of electoral votes given in the late presidential election.

Mr. BIGGS. Is it in order to move to refer that resolution to the Judiciary Committee?

The PRESIDENT pro tempore. It is perfectly in order.

Mr. BIGGS. I move that reference.

Mr. CRITTENDEN. I hope that will not be done. I hope we are prepared now to act. I think we ought to take a vote on it without reference to the Judiciary Committee. Mr. COLLAMER. It is obvious, Mr. President, in the first place, that the form of this resolution is not the making of a law, at the expression of an opinion. In the second place, it is the expression of an opinion concerning a matter that is past, and has no operative effee. The matter is over to which it relates-it is all done. There is no practical effect in the resolution when passed, unless it makes a law for the future. It is badly drawn with a view to that purpose, for it only declares that the vote of WiSconsin ought not to have been counted. That is gone by, and it makes no regulation in relation to the future at all. My first objection to it is that it is entirely inopera

tive.

But, Mr. President, I should not have risen on that account merely. Strange as it may appear to gentlemen who may think proper to listen to me, I cannot but say that I entertain very serious doubts under the Constitution as to whether we possess any power to express any opinion at all about it. I very much doubt whether the framers of the Constitution ever intended to leave the subject of the presidential election to the House of Representatives, or the Senate, or either, or both of them. There was a great deal of debate in the convention that framed the Constitution as to the manner of choosing a President of the United States. Various projects were presented. Among others, it was very gravely debated whether he had not better be elected by Congress. For some considerable time that proposition was under consideration. Various plans were put forward, various suggestions made as to the manner of choosing a President, and much difficulty was found in relation to it before a plan was arrived at, and that so soon resulted in a practical failure as to lead to the change in the Constitution to what it now is in this respect. The Constitution vested in each house the power to decide upon the election of its members; it provided carefully that it would not trust to the two houses to elect a President.

It seems to me that if we consult history at all, and consider the probability of things eveu as they fall within our own observation and experience, we shall find that there is very little practical difference between leaving the presidential election to Congress and leaving Congress to decide that election. It will amount practically to about the same thing. Disguise it as we may, after all, the truth constrains us to acknowledge, more or less, that, in deciding on the election of members of the two houses of Congress, when the decision of the election of a proposed member or a contested seat determines the state of political pa ties one way or the other, the vote is a political one. When the question arises in such a contingency, in such a crisis, it requires very little acquaintance with mankind to know what will be the result. It will be simply a political decision; and individuals, instead of being held responsible for their opinions and votes on such occasions, will go with their party, and endeavor to get rid of persoual responsibility in that way. In deciding upon au election which has been had by electors, the legality of that election is always a turning-point in politics. There are always candidates of different parties; and deciding one way would be the triumph of one party, and deciding another way the triumph of another. It will always present that state of things.

Now, is it difficult to see that, if the question is to be submitted to Congress as to the propriety or legality of an election of President, it will always be a party decision? It will be so, as a matter of course. There is no difficulty, whenever you choose, in

creating questions of that kind; for it is a common charge of one party against another, that votes are procured by fraud and by corruption. In particular States, where there is a close vote, each party charges the other with producing the result by fraud, by violence, or trickery. Then, whenever the election of electors is close in a State, such as Delaware or Louisiana, or one where the possibility is more likely, and it is decided one way or the other by only a small plurality, the moment that election comes to be canvassed before the two houses, at once testimony will be offered to show that the election in that State was procured by fraud or violence, and therefore that the votes of its electors should be set aside. Such a question, I say, in any tolerably close election, may be raised at any time. Either party may at any time raise such a question; and if they know how the Senate or House of Representatives, or the two houses, who are to pass upon that question, stand, they know what will be the result always.

Under this view of the case it is, to say the least, exceedingly questionable whether, when the Constitution said, not that Congress should decide the election of President, but that it should decide upon the elections of its own members, it at the same time meant to trust to these houses, or either or both of them, the power of deciding the presidential election. I very much doubt whether, if we were now arranging the election of President, we should ever think of resorting to such a means as that; but I am not fully settled in my own mind that that is so. If, however, we adopt this resolution, it is not merely an expression of our private opinion on the subject of the Wisconsin votethat is not all, by any means. If that were all, it would be of rather slight consideration; but the truth is, that by the expression of our opinion in the form of this resolution in relation to the electoral vote of the State of Wisconsin, we in fact take upon us to say that we are judges of the election. We assume and exercise the right of judging on the legality of the vote of the different electors. We actually assu ne and take upon us the exercise of this exceedingly questionable power. Before we take this long leap, and undertake to express this opinion in this way, and thus assume this much contested power, it seems to me we ought to have some occasion to demand it; and there is nothing in the present occasion that in the least demands it. The whole matter is settled and ended.

I do not say that, in my opinion, the House of Representatives and the Senate, or the Senate alone, are not judges of the election. I do not say it is not so; I do not say it is so; but I think, by entertaining this resolution, we in fact decide that it is so; and that is my great objection to entertaining it. I am unwilling to have the question passed upon in this summary manner, and in relation to a case that does not demand anything to be done by us at all, for the whole matter is ended and completed. With these views, my motion is to lay the resolution on the table.

Mr. TOUCEY. Will the Senator from Vermont withdraw that motion?

Mr. COLLAMER. If the Senator will renew it, I have no objection to withdrawing it. Mr. TOUCEY. I will renew it. Mr. President, I should be very loth to express an opinion on this question in opposition to that which has been declared by the honorable Senator from Kentucky, that the vote given by the State of Wisconsin, or which appears to have been given on the 4th of December by the gentlemen who were elected by the people of Wisconsin as electors, was a valid vote. It strikes me that it is not in the power of Congress to pass any law by which a vote given after the day prescribed by law, and upon which the Constitution acts when it declares that the day shall be uniform throughout the United States, shall be held to be valid. Any law of Congress . undertaking to prescribe for any State, or any class of States, on the ground of accident or any existing state of things, a day different from that prescribed for all the States of the Union, would, I apprehend, be null and void to all intents and purposes; and it would be very difficult to show that Congress, by a joint resolution, could have the power to do what they could not by an express law.

But I do not intend to express any definite opinion on that subject, because there is no question arising in the present election. The only question that arose was, whether the President elect, James Buchanan, had a majority of all the electoral votes. That fact was ascertained without controversy. That he had one hundred and seventy-four votes, a majority of all the electoral colleges, is admitted on all sides, and the moment it appeared that he had one hundred and forty-nine votes, which was a majority, every other inquiry became perfectly irrelevant and immaterial; every inquiry in regard to the electoral vote of Wisconsin was entirely immaterial; and when the Presiding Officer of this body declared the result of the election, he did not declare that those votes were admitted or rejected. He had no authority to declare the one or the other. The fact was announced as the fact existed, but it was immaterial; and when he declared the result he declared that which it was his duty to declare, and the truth of which no one controverts.

However, a question might arise, to which I beg leave to call the attention of the Senate. Suppose the electoral colleges had so stood that the rejection of the vote of Wisconsin would have left no choice, no one then having a majority of the electoral votes; I ask Senators what would then have been the condition of the case? Suppose the rejection of the vote of Wisconsin had left no choice by the presidential electors;

if that vote was not an effective vote, the House of Representatives would have the power, without the assent or consent of this body, to elect a President of the United States by States. Who shall decide that question? If I were a member of the House of Representatives, and believed the state of the vote required me, as a member of that house, to go into the election, I should act without any reference to the opinion of the Senate. It would be a duty devolved by the Constitution on the House of Representatives, and no act and no vote of the Senate could take away the power of the House of Representatives to elect a President in that case.

Again, let me go a step further. Suppose the Senate should be of the contrary opinion, believing that the vote of Wisconsin was a valid vote; and the gentleman elected President by that vote should assume the office of President and undertake to discharge its duties, and should send to this body his nomination for any officers which the Constitution authorizes the President to nominate; and this body, acting upon its opinion, should confirm the nominations of the President thus elected by that vote which they declare to be legal, but which the House of Representatives declare to be illegal and void. We have then a contest between two Presidents, one recognized by the House of Representatives, and the other recognized by the Senate. Now, that this body would be called upon in that case to act and decide, I doubt not; and that the House of Representatives, in the case I have supposed, would be called upon to act and decide, I doubt not; because the Constitution has devolved on them the power of acting, and the right to act upon the hypothesis that there was no choice. Then how is the question to be decided? Can the Senate decide it? Can the House of Representatives decide it? If they differ in opinion, can either branch decide it? The courts of justice are open. There is a mode of legal proceeding by which this question could be brought before the judicial tribunals of the country in any individual case; and any question that may arise may be carried to the Supreme Court and adjudicated in that particular case by that court; and what can be done in one case can be done in another case.

I suppose this state of things for the purpose of presenting the idea which is very strongly impressed on my mind, that it is not in the power of Congress to make a President, or to unmake one. There is no power in Congress to declare a man effectively to be President or not to be President except in a single case, where by the Constitution the power is devolved on the House of Representatives. That question is decided by the people. It is the people who make the President through their electors and by their votes; and there is no power in Congress to change the result. The whole proceeding of counting is based on the idea merely of disclosing to the public in a safe, authentic way, the actual state of the vote; and when that is ascertained truly, the President who is chosen by that vote is President, let Congress do what it may.

I say, then, sir, that any resolution of Congress on this subject is nothing more than an expression of opinion, not obligatory on those who may come after us; and any law of Congress which undertakes by its operation to change the actual result, as found upon an inspection of the facts, would, so far as it changed or varied the result, be inoperative and of no effect: and hence I say to-day, as I said yesterday, that in my judgment the course of the Presiding Officer was entirely correct in the House of Representatives. When the two houses met, they had no power as a deliberative body. No motion could be submitted; no question could be debated; no vote could be taken. An objection might be interposed by a member; and if there was to be any deliberation, the two bodies must separate and act separately. But when they act separately, they have very little power. In the present case they have no power, because it is admitted on all hands, without controversy, that a President and Vice-President have been chosen; and the result having been ascertained and declared, neither house of Congress has any control over it. I hope, therefore, that no resolution will be adopted on this occasion, except only that which is proposed by the Senator from California, appointing a committee to wait on the President and Vice-President elect, and give

them the usual notice of their election.

Mr. STUART. I concur mainly in what has been said by the Senator from Connecticut, and I only rise to correct what I think was a misapprehension in a single particular. The Senator states that it was not the duty of the Presiding Officer under the circumstances to make any decision in respect to the vote of Wisconsin. I say it was the duty of the President of the Senate to decide upon the vote of every State. The Senator from Conuecticut is correct in saying that, after it was ascertained that Mr. Buchanan had a majority of all the votes cast, it was immaterial as to the vote of Wisconsin; it was equally immaterial as to the vote of every other State except those counted for Mr. Buchanan. It was a question that should have been decided. It was a question, in my judgment, that should have been decided by the President of the Senate, and which could be decided by nobody else. There was no appeal from the decision. As the Constitution and the law stand, it is the duty of the President of the Senate, being the proper officer under them, to decide what he conuts, and what he refuses to count, in every instance. This is all I designed to say, and I now renew the motion to lay the resolution on the table

Mr. PUGH. I rose when the Senator from Michigan did, and I hope he will withdraw the motion for a few minutes. I desire to offer an amendment.

Mr. WELLER. The Senator from Connecticut was under a pledge to renew the motion. Mr. PUGH. But he did not renew it.

Mr. STUART. I cannot consider this as my motion. I renewed it, because I felt under obligations to do so; but I have a disposition to hear every Senator. As far as I am concerned, I have no objection to withdrawing the motion.

Mr. PUGH. Mr. President, I cannot vote for this as a joint resolution; for if we pass it as a joint resolution, it must go to the President of the United States, and pass under his approval or disapproval. The provision of the Constitution is express, that every order, or resolution, or vote to which the concurrence of both houses is necessary, except on a question of adjournment, shall be submitted to the President. Now, confessedly, the President has nothing to do with counting the votes for his successor. It seems to me, therefore, that it is an error to make this a joint resolution; and the first amendment I wish to submit is to strike out the words, "by the Senate and House of Representatives of the United States of America in Congress assembled," so that it may be a separate resolution of the Senate. Then I shall move to add to it this further resolution:

“That a copy of the foregoing resolution be sent to the House of Representatives, together with a message that the Senate is now prepared to proceed with counting the votes for President and Vice-President of the United States."

It will be observed, by reference to the Missouri case, that after the Senate retired, some debate occurred in both houses; and having settled in their own minds the proper course, a message was sent from the House of Representatives notifying the Senate to return, and the Senate returned and completed the business.

The honorable Senator was interrupted by the delivery of the following message from the House of Representatives, by Mr. Cullom, their Clerk:

Mr. President, I am directed by the House of Representatives to inform the Senate that the House has passed a resolution appointing two of its members to act in concert with a committee of the Senate, to be appointed by the Senate, to notify the Hon. James Buchanan, of Pennsylvania, of his election to the office of President of the United States for four years from the 4th of March next; also to inform the Hon. John C. Breckinridge, of Kentucky, that he has been elected to the office of Vice-President for four years from the 4th of March next; and have appointed, on the part of the House, Mr. Jones, of Tennessee, and Mr. Florence, of Pennsylvania.

Mr. WELLER. Í hope my resolution will now be taken up by unanimous consent. Mr. PUGH. I object to it. I have partly the same objection to this as to the resolution of the Senator from Kentucky.

It is in vain for us to resolve out of a question of this magnitude. It is in vain for us to attempt to escape it. What are the facts as they occurred? The Senate and House of Representatives met yesterday, pursuant to the Constitution and laws, to count the votes for President and Vice-President. I certainly can never agree to any construction of the Constitution which fixes that that is the duty of the President of the Senate, in exclusion of the members of Congress. Two difficulties seem to me to stand in the way of that construction. First, the Presiding Officer of this body may be the Vice-President of the United States, and may claim to be the President-elect, and he is to stand there, in the presence of both houses of Congress, and reject votes, or admit votes, by his single will, and thus make or unmake himself President. It is a power higher than the veto. I am bound to say under my construction of the Constitution of the United States, no such power is lodged in any individual, whatever may be his station. The Constitution says that the President of the Senate shall open the votes. That is the end of his duties. He is to open them and to read them. The joint resolution never devolved on the tellers the right to read those votes. The joint resolution was that the tellers should record them. Who are the tellers! We heard a great deal about their report yesterday. I do not care if they never reported. They are nothing but clerks-clerks of the joint session of the Senate and House of Representatives. This is the very language of the joint resolution, which was copied from former precedents:

"That one person be appointed a teller on the part of the Senate, and two on the part of the House of Representatives, to make a list of the votes as they shall be declared, that the result shall be delivered to the President of the Senate pro tempore, who shall announce the state of the vote and the persons elected to the two houses assembled."

It was for the President of the Senate to open the sealed certificates which were sent to him, and to announce to the two houses of Congress their contents, and then our clerks, to wit, the Senate teller and the two House tellers, were to record it; and accordingly the Constitution says, "the votes shall then be counted." Who are to count them? Congress. What are we there for? My friend from Kentucky [Mr. Thompson] supposed that the House of Representatives could be brought to our bar. I ad