mit they may come here; but why do we want them for witnesses, or why are we to be witnesses if we have no control over it at any stage?

Mr. THOMPSON, of Kentucky. Will the Senator allow me a moment?
Mr. PUGH. Certainly.

Mr. THOMPSON, of Kentucky. I suppose, according to all sort of logic and proper proceeding, the President of the Senate counts the votes officially. He does not count them as Mr. Mason, of Virginia, but he counts them as the President of the Senate, under the direction and control of the Senate, where each State is equally represented. The members of the House of Representatives are present, looking on as witnesses, to prevent any clandestine cabal or secret association, or any sort of-I will not say Catiline conspiration. The President of the Senate is to count, and do it under the regulation of the Senate. The members of that House of Representatives are to sit by, and whether we put them in the gallery, or the reporters' desks, or in niches-wherever they are placed they are to look on. When the President gets through with the counting, under the direction of the States as represented here, if it is ascertained that no person has obtained a majority of all the votes cast, the House of Representatives then retire to their chamber; or, I suppose, official courtesy would require that we should notify them that no one had been elected; and then the Speaker of the House should rise and call the roll of the States, beginning at the State of Maine, and ask the members of each State for whom they voted as President. That is to protect the States against any-well, I will not say, fraudulent combination-I will not say any thing about the big States, like whales swallowing up forty minnows at a bite, or anything of that kind. I am of opinion that the House of Representatives had no right to say anything in regard to it, but I had nothing to say about the Presiding Officer, when the two houses were assembled yesterday, recognizing one of the members of that House as entitled to the floor. I did not want to call any of them to order, but I got up and went out, as I stated some time ago. I thought they had no more right to talk about it than a witness has to interfere with the proceedings of a court of justice. In Kentucky phrase, they had no right to put in their "jaw" at all. [Laughter.] That is just the long and the short of the matter. That is exactly what I think about it. Mr. PUGH. I wish to put in a caveat, once for all, in speaking of the course which was taken yesterday, or the views expressed. I join the Senator from New York, [Mr. Seward.] I consider it fortunate that the vote of Wisconsin is immaterial to the result, and I consider it fortunate, too, that the Presiding Officer of the joint convention was not interested in the result of the vote at all; but I speak to-day as I understand the rights under the Constitution.

I think a grave error was committed yesterday in the joint convention, and that it behooves us to remedy it by whatever means we can. It was the duty of the President of the Senate to open the votes, and declare the contents; it was the duty of the tellers, as clerks, to record the declaration; and whenever a vote was presented to which any objection could be made, the time to make the objection was when the vote was read. That was attempted yesterday. A representative from the State of Virginia objected to the vote of the State of Wisconsin. He was told that that was not the proper time, and, submitting to the suggestion that the proper time would come directly, he took his seat, and we waited then until it was all through. Then a motion was made to reject the vote of Wisconsin, and it was said that was not the proper time. Then we were told to wait until the tellers reported. Well, the tellers reported; and they reported the fact that the vote of the State of Wisconsin was given on a day unauthorized by law. I agree with the Senator from Kentucky, that it was a nullity. We cannot make it a vote. It is not in our power to do so, unless we can make the Constitution over again. Then the objection was raised by the Senator from Georgia [Mr. Toombs] and others, that it was now apparent, on the report of the tellers, that here was an illegal vote which had crept in; but we were told that that was not the time. What further? Then the Presiding Officer of the two bodies read to us-here is his own statement: "That one hundred and fourteen votes had been cast for John C. Frémont, of California." If the vote of Wisconsin was a nullity, no such number of votes was given to Mr. Frémont; and in making that announcement, whether he designed to do so or not-and I accept his disclaimer-he did, in fact, decide the whole question. He could not have made this declaration without deciding it. There were not one hundred and fourteen votes for John C. Frémont, unless the vote of Wisconsin was counted. Then an objection was interposed, and we were told that the two houses had discharged all they came for, and were to separate and go to their chambers.

So, at every stage of this proceeding, beginning with the first presentation of the certificate, some one of the members of Congress objected to this vote, and he was told that the proper time had not come, and the whole proceeding was completed and ended, and we were called out of the chamber and back here. At every stage we were told the proper time had not come, and now when we get here we are told the proper time has not come yet, or that it has passed.

Mr. President, when is it to be settled? Suppose, as Senators have said, the vote of Wisconsin would have led to a different result, we should have had anarchy in both halls

of Congress. But now, when the question is here in the most favorable circumstances for its settlement for the future, for a deliberate expression of the views of both houses of Congress, we are told that we must lay it on the table until it shall come again in more terrible circumstances, and resolve ourselves out of it by appointing a committee of three gentlemen to go and tell Mr. Buchanan that he had a majority of the votes. It seems to me and I say it with due respect to Senators-a trifling with the magnitude of the question. Let us understand what is our power.

I believed at the time, and I believe now, that when the Representative from the State of Virginia objected to that vote, his objection was rightly made; it was made at the right time and at the right place. I believe that the proceeding should have stopped at that point-that all that passed beyond that was illegal. Here was a vote proposed; it was objected to by one of those whom the Constitution said should be present and assist in the counting; and it was then our duty to settle what should be done with this alleged vote from Wisconsin; and having settled it-either admitted or rejected it-then the result should have been ascertained and the declaration made. Instead of that it was passed over. I appeal to Senators, was there any step in the proceeding yesterday when any member of either house was allowed to put in an objec tion, or debate an objection, or state it in the joint convention?

I say it is fortunate that our Presiding Officer had no interest in the result. I know the Presiding Officer of this body will not suspect for a moment that I have any unkind feelings toward him; I have none. But suppose the case had been otherwise. Aaron Burr once sat in your chair, sir. Suppose he had undertaken, or another Aaron Burr, if he should come here, in the face of both houses of Congress should undertake to exercise this extraordinary and irresponsible power, it would be the end of this Government. It seems to me, then, that a great error was committed, and although the Presiding Officer disclaimed intending to exercise it, and although I believe he did not intend to exercise it, yet practically it came to that; for how could we ascertain what the votes were at all if the vote of Wisconsin was recorded by the tellers, and then, the tellers having reported to us, we could not pass upon the question?

This is not exactly the Missouri case. That was a case which is never likely to happen again. It was a question whether Missouri was a State or not. It could have been avoided on that occasion, and was avoided easily; but here is a question that may occur one hundred times again, if the Government shall stand that many years. It seems to me, then, that my own impression differs from that of every Senator who has spoken, except the Senator from Maine, [Mr. Nourse.] I believe the two houses together were the proper forum to settle the question. I do not consider that it is a legislative question. I do not believe that it is to be settled by a joint resolution or a bill. I believe the two houses assembled together were a board of canvassers organized by the Constitution for the express purpose of counting these votes. The whole number of Senators and Representatives taken together is equal to the whole number of electors in all the colleges. It is exactly the same body of men in number, equal to all of them. All the States, if they had voted there yesterday through their Senators and Representatives, would have exercised the precise power which they exercised in the election of President. Every State has a number of electors equal to her Senators and Representatives. Every State had in the joint body yesterday two Senators and her number of Representatives according to the apportionment; and I believe, as I said, that that was a board of canvassers organized for the purpose of counting the Totes for President and Vice-President.

Mr. SEWARD. Will the honorable Senator allow me to ask him a question for the purpose of testing his position?

Mr. PUGH. Certainly.

Mr. SEWARD. Suppose the two houses yesterday had decided to count the Wisconsin Tote under the circumstances, and suppose that should have determined the election, Would the decision of the two houses have been conclusive of the election?

Mr. PUGH. I think so. It would be like many a decision made by the courts. I have known courts of last resort to decide what I believed to be utterly unconstitutional; but I believed it to be settled, at least for that case, and it was my duty to acquiesce in it. In a proper case it may be reconsidered. But I believe that very tribunal was adopted; that that was the idea of adopting it; that the States were there represented by their proper representatives, exactly as they were represented in the electoral college; that it was the duty of the President of the Senate to open the votes; that when an objection was raised that was the place and the time to settle it; and the question should have been put, in my judgment, to the joint convention, "Shall the vote purporting to be the vote of Wisconsin be received and recorded?" If it had been recorded, although I should have deemed it unconstitutional, I should have felt bound, as a citizen, to acquiesce in it as a decision made by the competent authority.

Mr. MALLORY. Allow me to ask my friend a question. Do I understand him to take the position that this joint convention, as he terms it, but which term is found nowhere else than in the debates of yesterday, this union of the two houses for the purpose of counting the votes, may determine what votes shall and what votes shall not be

counted? Is that the idea-that the Senate and House of Representatives, assembled as they were yesterday, have the power to rule out or rule in the votes of any State? Mr. PUGH. Why not? Do not gentlemen propose to do it by joint resolution? Mr. MALLORY. Then how are they to cast their votes-per capita, or otherwise? Mr. PUGH. Per capita. How do they cast their votes in the electoral college? The Constitution says, for instance, that my State shall have twenty-three votes. Why? Because she has twenty-one Representatives and two Senators. How many had she there yesterday? Twenty-three votes-no more, no less. Why adopt this number for the electoral vote of the State, and make it exactly equivalent to the representation of the State in both houses?

My friend says that I call this meeting a joint convention. I adopt that term merely for convenience. I do not care what title you give it. The counting is to be done in the presence of both houses-I care not what you call it. It is a convening of them both. It seems to be considered a very dangerous power to be lodged there. I acknowledge it; but is it more dangerous to lodge it there than in the person of the President of the Senate alone?

Mr. MALLORY. Is not my friend, then, providing a third mode of electing President and Vice-President, unknown to the Constitution, which prescribes that, when not chosen by the electors, the House shall immediately proceed to vote by States? His method, as I understand him, provides a third method of electing President and VicePresident in this manner.

Mr. PUGH. I provide no method of electing. I provide a method of ascertaining the fact who is elected.

Mr. MALLORY. That is electing.

Mr. PUGH. I ask Senators again who else is to decide it? Are you prepared to adopt the proposition which I understand was made by the Senator from Michigan, [Mr. Stuart,] that the President of the Senate alone has to decide this question? Are you prepared to declare that by a joint resolution, and have it vetoed by the President at the other end of the avenue? It is no legislative act. If it is, it is subject to a

veto.

Suppose this case were to arise that the vote of Wisconsin decided the whole controversy, and the President of the Senate should decide to count that vote, and a majority of one in the other House should agree with him, and we, the representatives of the States of which we have heard so much, should unanimously disagree with him: the vote would be counted in spite of us, for the President would put it down, and that House would disagree to your joint resolution to strike it out. That is the result of the course you now propose. There are ten thousand difficulties in any other proposition to one in the proposition that I have suggested. The joint body is a general assembly of all the States, represented according to their congressional power; but I only gave that as the expression of my opinion, and I wish to concur in what was said by the gentleman from Maine [Mr. Nourse] yesterday.

The purpose of my amendment to this resolution now is that it shall be a resolution expressing the sentiment of the Senate that the vote of Wisconsin cannot be counted; and that we notify the other House of the fact, and notify them that, having arrived at that conclusion, if they, by a separate resolution, come to the same conclusion, the two houses can reconvene and count the votes upon that basis, and announce the result. At present, I confess, I think it is imperfect; and I think it is imperfect for this reason: Here was a grave objection urged to the vote. The objection was not considered at any stage; it was ruled out at every stage, and the venerable Senator from Michigan [Mr. Cass] told us to come back to the Senate Chamber and consider it; and we retired upon the suggestion that we could consider it. The Senator from Illinois [Mr. Trumbull] said that we are to retire for that purpose. We have retired and got here, and now we are told we should let the whole subject drop. It makes no difference to me. It is not denied in the resolution that Mr. Buchanan is elected President and Mr. Breckinridge Vice-President, and I am sure that is perfectly acceptable to me. But the question may arise in the future; and if we stand here upon an imperfect settlement of this question, it will come back to plague us or our successors with a thousand fold of its difficulties. This is the time for settling it when no person can be accused of acting from interested motives, for it will not alter the result. I am sure no man can be accused of any intentional discourtesy to the State of Wisconsin, when it is a purely naked case of construction under the Constitution. We can give our deliberate judgment; and our successors, if they choose, can avail themselves of that judgment on more difficult occasions.

I hope, therefore, that instead of attempting to get rid of the resolution proposed by the Senator from Kentucky, in any of these collateral modes, it will be kept before the Senate, and in some shape or other the Senate declare its opinion on this question, and then notify the House of Representatives that, having settled this disputed question, it is r to proceed.

Mr. B' AMIN. I move to lay the resolution, with the amendments, on the table. I give notice that I will not withdraw my motion at the solicitation of any gentleman.

The motion was agreed to.

Mr. WELLER. I hope the resolution I offered this morning will not be taken up. I understand the House of Representatives has laid the whole subject on the table, and appointed a committee on the part of that House to wait on the President elect. My object can be accomplished, perhaps, by concurring in the resolutions sent from the House of Representatives.

The Secretary then read the following resolutions of the House of Representatives:

"IN THE HOUSE OF REPRESENTATIVES, February 12, 1857. "Resolved, That two members of the House be appointed by that body, to join a committee of one member of the Senate, to be appointed by that body, to wait on James Buchanan, of Pennsylvania, and inform him that he has been duly elected President of the United States for four years, commencing on the 4th day of March, 1857; and also, to inform John C. Breckinridge, of Kentucky, that he has been duly elected VicePresident of the United States for four years from the 4th of March, 1857.

"Ordered, That Mr. George W. Jones, of Tennessee, and Mr. T. B. Florence, of Pennsylvania, be the committee on the part of the House."

Mr. WELLER. I move that the President of the Senate appoint a committee of one. The PRESIDENT pro tempore. It is moved that the Senate concur in the resolution. Mr. WELLER. No, sir. My motion is that the President appoint a committee of one. The PRESIDENT pro tempore. The Senate can have no committee until it concurs in the resolution.

The resolution was concurred in; and there being no objection, the President pro tempore was authorized to appoint the committee on the part of the Senate; and Mr. Weller was appointed.

VOTES FOR PRESIDENT AND VICE-PRESIDENT OF THE UNITED STATES.

IN THE HOUSE OF REPRESENTATIVES, February 12, 1857. The Speaker stated the question to be on the following resolution submitted by the gentleman from South Carolina, [Mr. Orr,] the pending question being the motion of Mr. Smith, of Tennessee, to lay it on the table:

Ordered, That when the Senate shall return to this house to complete, in joint convention, in pursuance of the order of the two houses, already adopted, the counting of the votes for President and Vice-President of the United States, the vote of any State cast on a day other than that provided by law, to wit, the 3d of December last, shall be rejected by the tellers of this House.

Ordered, That the Clerk acquaint the Senate with the foregoing order of this House. Mr. ORR. Since the adjournment yesterday, I have examined the Constitution and the law of Congress passed to regulate the counting of the votes for President. The count proceeded far enough to ascertain that Mr. Buchanan and Mr. Breckinridge had each received for President and Vice-President one hundred and seventy-four undisputed electoral votes, which, under the Constitution, was "a majority of the whole number of electors appointed," and they are declared by the Constitution "the President and Vice-President," no further action being necessary to complete the result. The Senate, therefore, need not return to the House for any purpose whatever. Ithink a mistake was made yesterday, which, failing to be corrected at the time, cannot now be remedied. The vote of Wisconsin was counted, according to the declaration of the President of the Senate, announcing the result, and, I think, improperly counted. The Constitution says:

"The Congress may determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States."

The vote of Wisconsin was given on a day different from that provided by law, and was consequently illegal and void, and should have been rejected. How was this to be done? The gentleman from Virginia, Mr. Letcher, objected very properly to the vote of Wisconsin when the certificate was opened and was being handed to the tellers. The objection was overruled or not entertained by the presiding officer, the President of the Senate. One other certificate was afterward opened, which completed the count. The objection might perhaps have been renewed then, but it was not. Nor was the point made when the tellers reported the result; nor was it made when the President of the Senate recapitulated the result, and declared Buchanan and Breckinridge constitutionally elected President and Vice-President. Was it not then too late to make the question whether the vote of Wisconsin should be counted, the result having been announced? I think it was. I am of opinion that the gentleman from Virginia, [Mr. Letcher,] as well as others of us who objected to the validity of that vote, erred in permitting the count to proceed until the question was decided. We erred in not requiring its decision before the tellers reported, and the error reached a

point where it was irremediable when we permitted the result to be officially declared by the President of the Senate. That officer, in my judgment, committed a mistake in refusing to entertain the objection of the member from Virginia. He should have submitted the question to the joint meeting or convention before proceeding further with the count. Who was to decide on the validity of the challenged vote? The two houses in joint convention by a per capita vote. The Constitution, in the twelfth amended article, says:

"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."

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Why were the houses to assemble, and the votes then to be counted? Was it to look on and allow any paper offered, though known to be fraudulent or illegal, to be received and registered? If the convention or meeting have no power to object, and, if necessary, reject that which purports to be a vote, why are the two houses required to assemble together? Can it be assumed that the meeting is an idle, unmeaning, powerless form? If the joint meeting has no such power, then it would be a most useless form. But "the votes shall then be counted." If that which is illegal, and only purports to be a vote, is presented, can it be counted when it is not a vote under the Constitution and law? If the State of Pennsylvania, being entitled to twenty-seven votes in the electoral college, should elect fifty electors, and they should send fifty votes for Mr. A, would the members of the joint meeting have to remain silent, like so many automatons, and permit fifty votes to be registered for Mr. A, when every member knew that the vote was illegal and void? The Constitution devolves on the two houses of Congress the duty of being present, and the votes shall be counted then. Does not the requisition to be present at the counting necessarily carry the right to determine what votes offered are legal, and what votes may be void, as an inseparable incident to the power of counting?

Is the question to be determined concurrently, or by the joint decision of the two houses? If it is to be done concurrently, there could be no decision on a contested vote when the two houses should disagree-the one voting to count, the other to reject; and if the admission or rejection of the challenged votes should determine the result of the election, by electing or defeating one of the candidates voted for, we should then present the anomalous condition of having two Presidents elected, and presenting themselves for inauguration—Mr. A being President by the decision of the Senate, and Mr. B by the decision of the House. The next step in such a contingency as this would be revolution-a resort to the sword to settle the question in fraternal blood, when it might properly be decided by the per capita votes of the joint convention, which would decide definitely for the one or the other.

Nor is the dignity of the Senate or the sovereignty of the States compromised or endangered by any such proceedings. The Senate and House are equals in the joint meeting. Their combined numbers are the same as the electors in the electoral college; it is a proceeding having reference to the President of the United States. Senatorial electors in the several States possess no power or dignity superior to those representing the congressional districts; they all assemble together, and each one casts a per capita vote. The Senate in joint meeting, in voting per capita on the question "Shall the vote excepted to be counted?" wields the same power, relatively and absolutely, as the senatorial electors in the electoral colleges. In pursuing this analogy, is any wrong done the Senate? Are its prerogatives infringed? Is the sovereignty of the States, as represented in the Senate, invaded?

The conclusion, then, to which I come is this: Any member of either house, when the two houses meet to count the votes for President, may object to the counting of any particular vote upon what he may conceive sufficient ground. When the objection is thus taken, it is the duty of the Presiding Officer of the joint meeting to propound the question, "Shall the vote be rejected?" which shall be decided by a per capita vote of all the members of each house, and the vote so contested received or rejected, as the majority of the joint meeting shall determine.

This is a legitimate construction of the Constitution; the only one which can enable the two houses to reach a decision, and to relieve them from the ridiculous assumption that they can look on, and, knowing a vote to be fraudulent, have no power to arrest its counting. The Constitution makes us the managers or canvassers to count the electoral votes, and in doing so gives us the power to say whether a vote presented is or is not legal.

The decision of the question is of no practical consequence now. There were one hundred and seventy-four unimpeached votes counted for Mr. Buchanan and Mr. Breckinridge, which was a majority of all the electors appointed, and they are declared by the Constitution elected President and Vice-President. No further action is necessary in the joint meeting, and I withdraw my proposition offered yesterday.

Mr. JONES, of Tennessee. I wish to introduce a resolution which has been agreed upon by the joint committee on the subject of counting the votes of President and Vice-President.

The resolution was read, as follows: