"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."

In pursuance of that provision of the Constitution, Congress have passed an act on the subject, in the following words

Mr. JOHNSON. What is the date of the act?

Mr. DOOLITTLE. January 23, 1845:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the electors of President and Vice-President shall be appointed in each State on the Tuesday next after the first Monday in the month of November of the year in which they are to be appointed: Provided, That each State may by law provide for the filling of any vacancy or vacancies which may occur in its college of electors when such college meets to give its electoral vote: And provided also, When any State shall have held an election for the purpose of choosing electors, and shall fail to make a choice on the day aforesaid, then the electors may be appointed on a subsequent day, in such manner as the State shall by law provide."

Here by this act of January 23, 1845, Congress did exercise the power with which it is clothed under the Constitution of determining the time of choosing the electors and the day on which they shall give their votes, which day, by the Constitution, must be the same throughout the whole United States.

What is the provision of the Constitution on this subject? The provision as it now stands is contained in the twelfth article of the amendments to the Constitution, and is in these words:

"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; 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 VicePresident, 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 the Senate."

The Constitution provides for all that, for the giving of the votes, for the counting of the votes, the sealing up of the votes, and the transmission of the votes into the hands of the President of the Senate. Then what is to be done with them? It does not say that Congress shall have anything to do with them, that Congress shall say what votes the President of the Senate shall count or shall not count, that Congress shall have any power to annul any one of these votes that are sealed up and sent to the President of the Senate. Congress is clothed with no authority whatever over the subject. They come to the President of the Senate. Certainly it will not be said that the House of Representatives have any control over the President of the Senate, but the House of Representatives are essential to constitute a Congress. Possibly you might argue that because they are sent to the President of the Senate, the President of the Senate presiding over the Senate, he might, in some measure, by appeal or otherwise, be subjected to the decision of the Senate; but certainly the House of Representatives has no control over it. But then the Constitution provides:

"The President of the Senate shall, in presence of the Senate and House of Representatives"

The Senate and House of Representatives meet together in joint convention, the President of the Senate presiding over the convention, and the Constitution then says what shall be done with the votes:

"The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates "

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Not open such as Congress tell him to open, but the President of the Senate shall 'open all the certificates" which are sent to him

"and the votes shall then be counted."

Here arises, Mr. President, under our Constitution, one of the most grave questions which, under certain circumstances, could possibly arise; and that is, whether the President of the Senate, presiding over this joint convention of the House of Representatives and the Senate, is, by the Constitution, made the sole judge as to what votes shall be counted or not; or whether, being the President of the joint convention, he is in some measure, by some kind of parliamentary law uot expressed in the Constitution itself, to be subject to the control of that joint convention. Practicall the question arose in 1856, on the vote of the State of Wisconsin. The law provided that the vote should be given on a certain day. In consequence of an extraordinary storm in that State, it was impossible to cast the vote on the day prescribed; the votes were not given on that day. The question arose whether the votes of the State of Wisconsin should be counted. Who was to decide that question? Who, in the first instance, was to decide whether the votes of Wisconsin were void or were good? Was it the Congress? Was the Committee on the Judiciary of the Senate to report upon it and Congress to pass a law about it, to decide that the vote of Wisconsin were valid or in

valid? Not at all. The Constitution says that the President of the Senate shall open the votes and count them; and upon the President, in the first instance, is the responsibility. He, and he alone, is to decide. But then arises the other question, whether, from his decision, there is an appeal to the body over which he presides? That question arose in 1857. It was a grave question, and as it was not necessary that it should then be decided in order to dispose of the result of that election, the question was neither decided by the President nor by the joint convention over which he presided. The question was waived, just as everybody and every judge and every tribunal who acts wisely will always waive a question when it is unnecessary to be decided. If, in the decision of the Dred Scott case, the court had only decided the questions which were necessary to be decided, we never should have heard of such an opinion as that which has convulsed the country from one end to the other by the dogmas that are contained in it and the unnecessary opinions that were given.

In 1857, whether the votes of Wisconsin were to be regarded as valid or invalid did not affect the result, and therefore the President of the convention declared that if the votes of Wisconsin were counted Mr. Buchanan was elected; if they were rejected Mr. Buchanan was still elected; and hence it was not necessary to decide the question whether they should be counted or not. So, too, in this very case, which is to come off in the next joint convention, we all know that whether the votes of certain States, Louisiana and Tennessee, are counted or not counted, does not affect the result; and it is not necessary for Congress now to assert a doctrine which in some future time may be the very destruction of the Government, namely, that a political_majority in Congress can decide that certain votes of certain States shall be canceled and others shall be received. It will never do to set that precedent. We had better follow the Constitution as it is written. Let the votes that are sent to the President of the Senate be opened by the President of the Senate, who presides over the joint convention of the two houses; and then, if it be not necessary to decide this question, it is better that it should not be decided any more now than it was in 1857. It will be time enough to raise the question in the joint convention; and whether that joint convention has, from the fact that the President of the Senate is to preside over it, a power of appeal from his decision, with a power to reverse his decision according to parliamentary law, or whether the members of both houses are called there simply as witnesses to the fact, without the power of appeal from his decision, is a very grave question under the Constitution itself, upon which I do not propose to express an opinion.

Mr. President, as I said in the beginning, even if Congress had some power under the Constitution to regulate the manner in which these votes should be given, they have no power under the Constitution in this mode to annul votes or declare void votes that have been given. But, sir, it is not my purpose to take up the time of the Senate; I have simply expressed in brief words my opinion.

Mr. HALE. Mr. President, it is refreshing at the present time to hear anybody urge any special measure in a contrary direction to the provisions of the Federal Constitution. It seems to me that upon this question, if upon no other-a question upon which depends the continuance of the Government-it is necessary to adhere to the Constitution, and to look for it and see if we have any guide or direction in that instrument. I foresaw this evil, and I introduced at the last session of Congress a joint resolution directing in advance what should be done; but, for some reason or other, (owing to the press of other business, probably, certainly not more important business,) that resolution was not acted upon. It struck me at that time-and I have not lost any of the strength of that conviction now-that it was one of the most important measures that could possibly be presented to the consideration of Congress, and it was not then without the range of possibility or probability that on that question might depend the very continuance of this Government. No one could have known to the contrary of that at the last session; for let me suppose that the result of the presidential election might have been determined by the votes of these States who have now proposed to offer them. I think there are three of them, Tennessee, Louisiana, and Arkansas; let me suppose that, in November, the votes of these three States had decided which way the majority was, would the party against whom they voted have submitted? I tell you nay, sir. If the counting of these votes had determined the result of the presidential election it would have deluged this land in blood, and another civil war would have followed, just as certain as that we have one now on hand. My friend from Michigan [Mr. Howard] shakes his head. Why, sir, what caused the present rebellion Nothing at all in comparison with this.

My friend from Wisconsin [Mr. Doolittle] says that Congress has no power over this subject. It would be one of the strangest things that ever occurred on earth if it had not the power. The provision of the Federal Constitution is that no member of Congress or any person holding an office of profit or trust under the Federal Government shall be an elector. Suppose when the two houses meet in convention to count the votes it is palpable to them that the electoral votes of some States were given by members of Congress, has Congress no power to say that they shall not be counted?

But, sir, the Constitution is not so silent on this subject as my friend from Wisconsin

seems to imagine; for the election of President and the mode of counting the votes is one of the means and measures by which the national life is to be preserved. If this is not followed, carried out, and executed, there is an end to the Government; there is no Presi dent elected, and the whole fabric falls to chaos. Now, is it within the range of possibility or probability that the framers of the Constitution were so derelict, so blind, as not to have provided that there should be some mode of conducting, and conducting legally, the machinery of this great measure which is essential to the very life of the nation? No, sir. The Constitution would have been one of the most imperfect things that was ever created without some provision of this sort, and accordingly I find that the framers of the Constitution made the most ample provision for exactly this case. I find in the Constitution a clause declaring that Congress shall have 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." Is not the power to choose a President one that is vested in the Government of the United States? It is the most essential power that there is; without it all the other powers are nothing: and the Constitution says that for carrying into execution this power thus granted Congress may make all laws which shall be necessary. It seems to me that it would be impossible to frame in broader or more comprehensive terms a provision which shall give Congress exclusive jurisdiction over this matter than that which I have just read, and it is found on the 10th page of Hickey's Constitution.

Well, sir, what would be the common sense, and what the reason of the thing? What does Congress meet for when the votes are counted? Is it to see as a matter of curiosity how the thing is done? Is it to go there to see the Constitution trampled upon and not have the power to remedy it? Is it when they see that there is danger of the Constitution being violated, that they shall not provide by law against it? It seems to me that to say that Congress has no power, is to say that the Constitution itself is a dead letter, inoperative, and of no force.

I remember very well, Mr. President, and you probably remember it, although at this moment I do not recollect whether you were present or not, the occurrence that took place in 1857 on the counting of the votes. I remember that I was then utterly astonished at the announcement made by some of the Senators who are not now members of the body. I may name Mr. Mason, of Virginia, and I think others concurred with him, who expressed themselves utterly indignant that there should be any attempt to settle anything in that joint meeting. "State rights" reared up its hydrahead, and was shocked at the idea of State sovereignty being trampled under foot by the doctrine of the supremacy of a majority, and so nothing was done; the thing passed over.

Now, I contend that it is the part of wisdom, before the emergency comes, to settle this question. There never was a more favorable time for its settlement than the election of 1856 presented, and there will be none more favorable than this election presents. It is the part of sagacity, of wisdom, and of patriotism, when we see that such a contingency as this may be fraught with the consequences of revolution, to provide beforehand against it. There never was a time when you could do it, when you would be less liable to the charge of any sinister influence, because it cannot change the result, it cannot determine anything except to settle the principle; and then when an occasion occurs that evil consequences may follow from settling it one way or the other, here will be a precedent showing that Congress, at a time when there was no inducement to anything but an honest and a straightforward decision of the case, maturely settled it, and settled it in such a manner that the influence of the decision will be morally binding upon our successors, and will be preserved.

Mr. President, suppose that some of our Territories had organized a State government, and were not yet recognized by the Congress of the United States; suppose that the young State of Nevada, which has lately done herself so much honor and the Senate so much benefit by sending to it the illustrious men that she has sent-suppose that Nevada, impatient of the colonial condition, had undertaken to cast her vote for presidential electors before she had gone through the forms of the Constitution requisite to constitute her one of the States of the Union, would it not be competent for Congress in that case to say that the vote of Nevada should not be counted? If not, there is no limit, no control, no jurisdiction anywhere to exclude the votes of any persons that may take it into their heads that they have a right to vote at the presidential election.

I was not much struck by the suggestions made by the honorable Senator from New York [Mr. Harris] that it would not be competent for Congress to exclude the vote of the State of New York. I have, I think, as high a regard and respect for New York as anybody in the world has, not excepting even the Senator himself; but that very thing has been done heretofore even in regard to that State. If the Senator will take the trouble to look at the table of electoral votes for President and Vice-President, cast since the adoption of the Federal Constitution, he will find that at the first election, when George Washington was elected President of the United States, the vote of the State of New York was not counted; she had no voice in that election. The

precise manner in which that was done does not appear; but I have before me the table of electoral votes for President and Vice-President of the United States for the term commencing March 4, 1789, and terminating March 3, 1793, and I find that the States which voted were, New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsyl vania, Delaware, Maryland, Virginia, South Carolina, and Georgia. North Carolina and Rhode Island did not vote, because they had not then adopted the Constitution; but eleven States had adopted it, and New York was among the number; and yet, for some reason which does not appear on the face of the table, the tremendous occurrence which the Senator from New York holds up to-day as such a bugbear actually occurred, and in counting the votes on that occasion there were no votes counted from the State of New York.

It is the dictate of the plainest common sense, independent of the constitutional provision, that there must of necessity be a power residing somewhere to preside over, rectify, and govern this whole transaction; and although it would have been wise in my humble judgment for Congress to have passed this resolution preceding the presidential election, it by no means follows that it may not do it now. This law is not subject to the reproach of being a retrospective or retroactive act. Congress does not propose to say that any State shall not express its opinion. All that Congress proposes to say now is that these States being in a condition where no valid, no constitutional election was held, their votes shall not be counted; and if we cannot do that, it seems to me that we are powerless to do anything.

Mr. Trumbull obtained the floor.

Mr. DOOLITTLE. I desire to say a word in reply to the Senator from New Hampshire. Mr. TRUMBULL. If the Senator prefers speaking now, I will yield the floor for anything personal.

Mr. DOOLITTLE. The Senator from New Hampshire stated me rather strongly as having expressed the opinion that Congress had no power over this subject. I did aver that Congress had power over it, for the Constitution gives them certain powers over the question of choosing electors, but it limits that power. The Constitution says that "each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector." Now I ask the Senator from New Hampshire if he believes Congress has power to appoint or to direct the manner of the appointment of the electors when the Constitution says that they shall be appointed as the legislature of the State may direct?

Mr. HALE. Certainly not.

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Mr. DOOLITTLE. 66 Certainly not." The Senator agrees with me, then; there are certain powers that Congress have not got over this subject; but the Constitution goes on to say what power Congress shall have. Congress may determine the time of choosing the electors, and the day on which they shall give their votes" after they are chosen," which day shall be the same throughout the United States." It does say in substance that Congress shall not do some things, because it provides that the States shall direct the manner of the appointment of electors, whether they shall be chosen by the people at large, or appointed by the legislature, or chosen in separate districts, or in whatever way the State may direct. There is merely the power in Congress to determine the day on which they shall be chosen, and the day on which they shall give their votes. When Congress has done that it has passed laws to carry into effect this power under the Constitution, and all the rest belongs to the States. My honorable friend seems to condemn this doctrine for which I contend as if it was a part and parcel of that State-rights doctrine which has involved the country in this civil war. I believe just as much in the rights of the States as they are secured under the Constitution as I do in the rights of the Federal Government as they are also secured by the Constitution. I believe in the rights both of the States and of the Union; and the party in this country that shall undertake to aver that the States have not rights secured to them under the Constitution will go against the whole history of this Government from the beginning. Such a party has had but a short history in the past, and will have a shorter history in the futur, for when this war is over and the necessity for the exercise of tremendous powers by the Government to defend its existence in this conflict is past, I tell you that the doctrine in favor of reserving to the States all the powers which are secured to them under the Constitution will be the popular doctrine and the necessary doctrine to save the liberties of this people and of this country.

Mr. President, I am for giving this Government all the power which is conferred upon it by the Constitution, and not for giving it more. This country is too large, it covers too many and too varied interests, to endure the establishment of the doctrine that this is one consolidated empire, and that this Congress and this Government can exercise unlimited power of legislation over all the interests of this great people. But, Mr. President, while I say this and assert it, I am just as much opposed to the State

Tights doctrine run mad to Calhounism, and all the consequences that have followed from it, as the Senator from New Hampshire is or can be. Under the Constitution as it is I am for maintaining the rights of the States as they are secured by it, with just as much tenacity as I am for maintaining the rights of this Government against States or individuals when they undertake to rebel against it.

Now, Mr. President, what I maintain under this provision of the Constitution is that, after the votes have been given, there is no power in Congress as a legislative body to declare certain votes valid or invalid. Congress is not the tribunal to which the question is referred; but the tribunal to which it is referred is the President of the Senate of the United States presiding over the joint convention of both houses. I admit that the President of the Senate has in his hands the power in the first instance to count or not to count the votes. He is to decide whether he is to receive the votes; in the first instance to decide whether they are votes coming up from States or from Territories. The Senator put the question, suppose one of the Territories should send up votes, what would you do? I will take the case that he supposes and presume that the Territory of Montana should send up, sealed under the seal of the Territory of Montana, three votes for President and Vice-President. The President of the Senate is to open the votes and count them in the presence of the convention; but the votes which he is to count are the votes which come from States; and as he opens the votes coming from Montana be says, "These are not votes of a State; this is a Territory claiming to be a State; I do not count these votes." And then arises another question. Suppose some other person should insist in the convention that Montana instead of being a Territory was a State, perhaps he could raise the question then on an appeal from the decision of the President to the joint body in convention assembled, the Senate and the House of Representatives. There is the tribunal. There the President of the Senate alone counts the votes, or it is the body over which he presides, having a power over his decision by appeal in the final resort to decide the question. That is what I have contended for.

Mr. TRUMBULL. I did not suppose when the Senator from Wisconsin insisted upon taking the floor, that he designed making a speech on the question generally, but I thought it was merely to reply to some remarks of the Senator from New Hampshire. Mr. DOOLITTLE. I will say to my honorable friend that I had spoken on this question and the Senator from New Hampshire went into a long speech in reply to me, and I replied to him, taking up some of the points that he discussed. I did not intend, of course, to trespass on my friend from Illinois.

Mr. TRUMBULL. I am sorry, Mr. President, to see any manifestation of feeling on the part of any member of the Senate in reference to this question; it is not one to excite any.

Mr. DOOLITTLE. My honorable friend does not understand that I manifest any personal feeling toward anybody on this question, certainly. That I feel an interest in the question, as a grave question, I do not deny. I take an interest in all these questions, and generally have feeling.

Mr. TRUMBULL. If the Senator from Wisconsin will allow me to go on, I shall say nothing unkind of him, I am sure, and I did not suppose that he had any personal feeling in regard to any one. I thought he manifested a great deal of zeal, and I admit I was a little afraid that his zeal might run away with his better judgment.

Now, sir, this is a question that no one, I apprehend, can have any other desire than to have settled properly and rightly. I am a little surprised at the course taken by my friend from New York, [Mr. Harris.] He is a member of the Committee on the Judiciary, and I certainly understand him to agree to this resolution as reported by that committee. However, he has a right to change his views, I suppose; but the matter was pretty thoroughly discussed in the committee, and I certainly did understand that he was in favor of the resolution, though I was aware he did not like the words of the preamble. That, however, we have amended.

Mr. TEN EYCK. In the absence of the Senator from New York, I beg leave to state that I did not understand him as agreeing to the preamble to the resolution.

Mr. TRUMBULL. The Senator from New Jersey misunderstands me. I said the Senator from New York agreed to the resolution distinctly in committee. He objected to the preamble. Does the Senator from New Jersey mean to controvert that?

Mr. TEN EYCK. I do not.

The VICE-PRESIDENT. It is not in order to refer in debate in the Senate to the proceedings of committees.

Mr. TRUMBULL. I intended to state the matter as it was. I was taken a little by surprise at the opposition manifested by the Senator from New York.

But, sir, both the Senator from New York and the Senator from Wisconsin doubt the power of Congress to pass this resolution, and they place themselves upon the Constitation. The Senator from Wisconsin insists, as also does the Senator from New York, that the Vice-President, or the Presiding Officer of the Senate, is to determine this question in the first instance. The Constitution does not say that the Presiding Officer of the Senate shall count the votes even, and in the practice of the Government since