AN ATTEMPT TO REMEDY THE DIFFICULTIES LIKELY TO ARISE IN REGARD TO COUNTING ELECTORAL VOTES.

IN SENATE, January 23,

1800. Mr. James Ross, a Senator from Pennsylvania, offered the following: Resolved, That a committee be appointed to consider whether any, and what, provisions ought to be made by law for deciding disputed elections of President and VicePresident of the United States, and for determining the legality or illegality of the votes given for those officers in the different States.

A motion was made to amend the resolution by adding "and the committee be authorized to report by bill or otherwise."

In the debate upon this resolution,

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Mr. John Brown, of Kentucky, was of opinion that this was a subject on which Congress had no right to legislate. He wished the gentleman who had made this motion would pay further attention to the subject, and believed he would find that if anything was to be done, it must be done by proposing an amendment to the Constitution.

Mr. Ross said the Constitution had certainly made no provision on this subject. It only directed that after the votes were received, &c., the President of the Senate should, in the presence of the Senate and House of Representatives, open the certificates, and the votes should be counted. Suppose, said he, persons should claim to be electors who had never been properly appointed, should their vote be received? Suppose they should vote for a person to be President who had not the age required by the Constitution, or who had not been long enough a citizen of the United States, or for two persons who were both citizens of the same State; such cases might happen, and were very likely to happen, and is there no remedy? What a situation would the country be in if such a case was to happen? He thought it their duty to make provision for it, and he believed a law was sufficient.

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Mr. Charles Pinckney, of South Carolina, thought it a very dangerous practice to endeavor to amend the Constitution by making laws for the purpose. He remembered very well that in the Federal Convention great care was used to provide for the election of the President of the United States independently of Congress; to take the business as far as possible out of their hands. The votes are to be given by electors appointed for that express purpose, the electors are to be appointed by each State, and the whole direction as to the manner of their appointment is given to the State Legislatures. Nothing was more clear to him than that Congress had no right to meddle with it at all; as the whole was intrusted to the State Legislatures, they must make provision for all questions arising on the occasion.

Mr. Samuel Dexter, of Massachusetts, did not doubt the right of the Legislature to make such provisions on this subject as appeared to be necessary. The proceedings in the election of a President may be defective, and can it be supposed there is no way to correct them? The law now proposed appears to be necessary to carry into effect the power of appointing the President; it is therefore clearly constitutional.

Mr. Samuel Livermore, of New Hampshire, never felt less doubt on any subject than the one now under consideration; the Constitution has given many directions as to appointment of the President, some of which he read. Is it possible that gentlemen can suppose all these may be violated and disregarded, and yet that it is nobody's business to interpose and make provision to prevent it?

Mr. Abraham Baldwin, of Georgia, is reported at greater length than any other speaker. The gist of his remarks was in his last sentence. His own opinion was that the provisions on this subject were already sufficient; that all the difficulties which had been suggested were as safely left to the decision of the assemblies of electors as of any body of men that could be devised; and that the members of the Senate and House of Representatives, when met together in one room, should receive the act of the electors as they would the act of any other constitutional branch of the Government, to judge only of its authentication, and then to proceed to count the votes, as directed in the second article of the Constitution.

January 24, 1800.

A committee, consisting of Messrs. Ross, Laurance, Dexter, Pinckney, and Livermore, was appointed, and they reported a bill February 14. This bill is not printed in the Annals of Congress, but appears in the "Aurora" newspaper, printed at Philadelphia, Wednesday, February 19, 1800, as follows:

A bill prescribing the mode of deciding disputed elections of President and Vice-President of the United States.

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That on the day before the second Wednesday in February of any year when a President and Vice-President of the United States shall

have been voted for by electors in the preceding December, it shall be the duty of the Senate and House of Representatives of the United States, to choose, by ballot, in each house, six members thereof, and the twelve persons thus chosen, together with the Chief-Justice of the United States, or if he is absent from the seat of Government, or unable to attend, then with the next senior judge of the Supreme Court of the United States who is present and able to attend, shall form a grand committee, and shall have power to examine, and finally to decide, all disputes relating to the election of President and Vice-President of the United States: Prorided, always, That no person shall be deemed capable of serving on this committee who is one of the highest candidates, or of kin to any of the five highest candidates out of whom a President of the United States, to be chosen by the House of Representatives in case no person shall be found to have a majority of the whole number of electors by the different States.

SEC. 2. And be it further enacted, That it shall be the duty of all of the judges of the Supreme Court to attend at the seat of Government on the day before the second Wednesday of February, in every year, when a President and Vice-President of the United States shall have been voted for in the preceding December, and to remain there until the committee to be appointed under this act shall have made their final report.

SEC. 3. And be it further enacted, That after the members of the committee shall have been appointed in the Senate and House of Representatives as aforesaid, each house shall then proceed to choose by ballot two members thereof as tellers, whose duty it shall be to receive the certificates of the electors from the President of the Senate after they shall have been opened and read, and to note in writing the dates of the certificates, the names of the electors, the time and place of their meeting, the number of votes given, the names of the persons voted for, and also the substance of the certificates from the executive authority of each State accompanying the certifieates of the electors; and the minutes thus made by the tellers shall be read in the presence of both houses, and a copy thereof entered on the journals of each.

SEC. 4. And be it further enacted, That when the certificates transmitted by the electors of the different States shall have been opened by the President of the Senate, and read in the presence of both houses, and the minutes of the tellers read and compared, the President of the Senate shall administer the following oath to all the members of the grand committee appointed in pursuance of this act:

"I, A. B., do swear (or affirm, as the case may be) that I will impartially examine the votes given by the electors of President and Vice-President of the United States, together with the exceptions and petitions against them, and a true judgment give thereon, according to the evidence: so help me God."

The President of the Senate shall then deliver to the chairman of the grand committee all the certificates of the electors, and all the certificates or other documents transmitted by them, or by the executive authority of any State, and all the petitions, exceptions, and memorials against the votes of the electors, of the persons for whom they have voted, together with the testimony accompanying the same.

SEC. 5. And be it further enacted, That after the grand committee shall have been appointed and sworn in the manner herein directed, the Chief-Justice of the United States, or other judge of the Supreme Court of the United States, as the case may be, shall act as chairman of the committee. They shall meet on every (Sundays excepted,) from the time of their appointment until they make their final report. They shall sit with closed doors, and a majority of the members may proceed to act, provided the number from each house is equal; and if any member of the committee, appointed by either house, should die, or become unable to attend after his appointment, the committee, before they proceed further, shall notify both houses of such death or inability, and the house by which such member was appointed shall immediately proceed to choose another member, by ballot, to supply such vacancy; and the member thus chosen shall be sworn before the President of the Senate; and if the Chief-Justice or other judge of the Supreme Court of the United States, being a member of the said committee, should die, or become unable to attend after his appointment, the committee, before they proceed farther, shall notify both houses of such death or inability, and the judge of the Supreme Court of the United States who is next in seniority, and qualified according to the provisions of this act, shall be sworn before the President of the Senate; and the person or persons thus appointed and sworn shall from thenceforth have and exercise the powers necessary to supply such vacancy, SEC. 6. And be it further enacted, That the grand committee shall have power to send for persons, papers, and records to compel the attendance of witnesses, to administer oaths to all persons examined before them, and to punish contempts of witnesses refusing to answer, as fully and absolutely as the Supreme Court of the United States may or can do in causes depending therein; and if any person sworn and examined before this committee shall swear or affirm falsely, such person being thereof convicted shall incur the pains, penalties, and disabilities inflicted by the laws of the United States upon willful and corrupt perjury.

SEC. 7. And be it further enacted, That it shall be the duty of the marshals of the

several districts of the United States, and of their deputies, to serve all process directed to them and signed by the chairman of the grand committee, and for such services they shall receive the fees allowed for the services of similar process issued by the Supreme Court of the United States; and all witnesses attending the committee in consequence of summons or other process shall receive the same compensation as witnesses attending the Supreme Court of the United States.

SEC. 8. And be it further enacted, That the grand committee shall have power to inquire, examine, decide, and report upon the constitutional qualifications of the persons voted for as President and Vice-President of the United States, upon the constitutional qualifications of the electors appointed by the different States, and whether their appointment was authorized by the State legislature or not; upon all petitions and exceptions against corrupt, illegal conduct of the electors, or force, menaces, or improper means used to influence their votes; or against the truth of their returns, or the time, place, or manner of giving their votes: Provided, always, That no petition or exception shall be granted, allowed, or considered by the sitting grand committee which has for its object to dispute, draw into question the number of votes given for an elector in any of the States, or the fact whether an elector was chosen by a majority of votes in his State or district.

SEC. 9. And be it further enacted, That the grand committee shall appoint a clerk, who shall keep a journal of their proceedings under their direction; and after the grand committee shall have made their final report, he shall deposit with the Secretary of the Senate this journal, together with all the certificates, written testimony, and documents which were under the consideration of the grand committee, where the same shall remain open for the inspection of the members of both houses.

SEC. 10. And be it further enacted, That on the first day of March next after their appointment, the grand committee shall make their final report to the Senate and House of Representatives, stating the legal number of votes for each person, and the number of votes which have been rejected; the report of the majority of the said committee shall be a final and conclusive determination of the admissibility or inadmissibility of the votes given by the electors for President and Vice-President of the United States; and where votes are rejected by the grand committee, their reasons shall be stated in writing for such exclusion, and signed by the members of the committee who voted for rejecting them, and the report shall be entered on the journals of both houses, who shall, on the day after the report is made, meet and declare the persons duly elected, and if no election of President has happened, then the House of Representatives shall immediately proceed, as the Constitution directs, to elect a President. SEC. 11. And be it further enacted, That when the grand committee shall have been duly formed according to the directions of this act, it shall not be in the power of either house to dissolve the committee or to withdraw any of its members.

SEC. 12. And be it further enacted, That it shall be the duty of the executive authority of each State to cause three copies of the law, resolution, or act of the State legislatures, respectively, under which electors are chosen or appointed, to be made, certified, and delivered to the electors in such State before they give their votes, and the electors shall annex one of the said copies to each list of their votes.

SEC. 13. And be it further enacted, That all petitions respecting the election of President and Vice-President of the United States shall be presented and read in the Senate of the United States, and remain there until delivered to the grand committee, at which time each petition shall be read in the presence of both houses; but no petition shall be received after the certificates of the electors shall have been opened, read, and committed to the grand committee, nor unless it is signed by at least citizens of the State where the votes complained of were given.

SEC. 14. And be it further enacted, That persons petitioning against the votes given by any of the electors of President and Vice-President of the United States, and persons desirous of supporting such contested votes, may respectively obtain testimony in the same manner and under the same rules and regulations which are provided by the act entitled "An act to prescribe the mode of taking evidence in cases of contested elections for members of the House of Representatives of the United States, and to compel the attendance of witnesses;" and the rules, regulations, provisions, and penalties of the said act shall be, and they are hereby, extended to cases arising under this act, as fully and absolutely as if the same were herein recited and enacted: Provided, always, That the testimony thus taken shall be transmitted to the Secretary of the Senate of the United States, instead of being transmitted to the Clerk of the House of Representatives, as is directed by the said act: And provided also, That all testimony taken in pursuance of this act shall be transmitted and delivered to the Secretary of the Senate on or before the day upon which the certificates of the electors of the President and Vice-President of the United States are to be opened.

March 25, 1800.

A motion was made to strike out the ten first sections of the bill and insert the following:

Whereas, On an election of President and Vice-President of the United States, ques

tions may arise whether an elector has been appointed in a mode authorized by the Legislature of his State or not: whether the time at which he was chosen and the day he gave his vote were those determined by Congress: whether he were not at the time a Senator or Representative of the United States, or held an office of trust or profit under the United States: whether one at least of the persons he has voted for is an inhabitant of a State other than his own: whether the electors voted by ballot, and. have signed, certified, and transmitted to the President of the Senate a list of all the persons voted for, and the number of votes for each: whether the persons voted for are natural-born citizens, or were citizens of the United States at the time of the adoption of the Constitution, were thirty-five years old, and had been fourteen years resident within the United States: And the Constitution of the United States having directed that "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," from. which the reasonable inference and practice has been that they are to be counted by the members composing said Houses, and brought there for that office, no other being assigned them; and inferred the more reasonably as thereby the constitutional weight of each State in the election of those high officers is exactly preserved in the tribunal which is to judge of its validity; the number of Senators and Representatives from each State, composing the said tribunal, being exactly that of the electors of the same State:

SECTION 1. Be it enacted, &c., That whensoever the members of the Senate and House of Representatives shall be assembled for the purpose of having the certificates of the electors of the several States opened and counted, the names of the several States shall be written on different and similar tickets of paper, and put into a ballotbox, out of which one shall be drawn at a time; and so soon as one is drawn, the packet containing the certificate of that State shall be opened by the President of the Senate, and shall then be read, and then shall be read also the petitions, depositions, and other papers and documents concerning the same; and if no exception is taken thereto, the votes contained in such certificates shall be counted; but if the votes, or any of them, shall be objected to, the members present shall, on the question propounded by the President of the Senate, decide, without debate, by yea or nay, whether such vote or votes are constitutional or not; and the votes of one State being thus counted, another ticket shall be drawn from the ballot-box, and the certificate, and the votes of the electors of the State drawn, shall be proceeded on as before directed; and so on, one after another, until the whole of the votes shall be counted; and if the counting cannot be completed in one day, the members of the said two Houses may adjourn from day to day until it be completed.

A division of the question was called for, and that it first be taken on striking out. The motion to strike out (see proceedings March 27) was passed in the negativeyeas 10, nays 15; as follows:

YEAS-Messrs. Anderson, Baldwin, Bloodworth, Cocke, Franklin, Hillhouse, Langdon, Mason, Nicholas, and Pinckney.

NAYS-Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Latimer, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells.

On motion to strike out the seventh section, as follows: SEC. 7. And be it further enacted, That the grand committee shall have power to inquire, examine, decide, and report upon the constitutional qualifications of the persons voted for as President and Vice-President of the United States; upon the constitutional qualifications of the electors appointed by the different States, and whether their appointment was authorized by the State Legislature or not, or made according to the mode prescribed by the Legislature; upon all petitions and exceptions against corrupt, illegal conduct of the electors, or force, menaces, or improper means used to influence their votes; or against the truth of their returns, or the time, place or manner of giving their votes: Provided always, That no petition, or exception, shall be granted or allowed by the grand committee which shall have for its object to draw into question the number of votes on which any elector in any of the States shall have been declared appointed.

It passed in the affirmative-yeas 15, nays 12; as follows:

YEAS-Messrs. Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Hillhouse, Latimer, Lloyd, Paine, Read, Ross, Schureman, Tracy, and Wells.

NAYS-Messrs. Anderson, Bingham, Bloodworth, Cocke, Franklin, Langdon, Laurance, Livermore, Marshall, Mason, Nicholas, and Pinckney.

Mr. Pinckney discussed the bill at length. Upon the power of Congress over the electoral vote he said: "Knowing that it was the intention of the Constitution to make the President completely independent of the Federal Legislature, I well remember it was the object, as it is at present not only the spirit but the letter of that instrument, to give to Congress no interference in or control over the election of a President. It is made their duty to count over the votes in a convention of both Houses,

and for the President of the Senate to declare who has the majority of the votes of the electors transmitted. It never was intended, nor could it have been safe, in the Constitution, to have given to Congress thus assembled in convention the right to object to any vote, or even to question whether they were constitutionally or properly given. This right of determining on the manner in which the electors shall vote; the inquiry into the qualifications, and the guards that are necessary to prevent disqualified or improper men voting, and to insure the votes being legally given, rests and is exclusively vested in the State Legislatures. If it is necessary to have guards against improper elections of electors, and to institute tribunals to inquire into their qualifications, with the State Legislatures, and with them alone, rests the power to institute them, and they must exercise it. To give to Congress, even when assembled in convention, a right to reject or admit the votes of States, would have been so gross and dangerous an absurdity as the framers of the Constitution never could have been guilty of. How could they expect that in deciding on the election of a President, particularly where such election was strongly contested, that party spirit would not prevail, and govern every decision? Did they not know how easy it was to raise objections against the votes of particular elections, and that in determining upon these it was more than probable the members would recollect their sides, their favorite candidate, and sometimes their own interests? Or must they not have supposed that, in putting the ultimate and final decision of the electors in Congress, who were to decide irrevocably and without appeal, they would render the President their creature, and prevent his assuming and exercising that independence in the performance of his duties upon which the safety and honor of the Government must forever rest?

"But it is said, are Congress bound to receive every vote of an elector, whether it is constitutionally given or not? Suppose votes are sent for a person not a citizen, or fourteen years a resident of the United States, or under thirty-five years of age, or that the Legislature of a State has not authorized by their act the votes of the electors; or that double returns are made; who are then to decide? Or has not Congress, under these circumstances, a power to determine which of the votes shall be received or rejected?

"These being the avowed reasons for introducing this bill, I answer them by observing that the Constitution having directed that electors shall be appointed in the manner the Legislature of each State shall direct, it is to be taken as granted that the State Legislatures will perform their duties, and make such directions as only qualified men shall be returned as electors. The disqualifications against any citizen being an elector are very few indeed; they are two: The first, that no officer of the United States shall be an elector; and the other that no member of Congress shall. The latter is a provision which goes unanswerably to prove the solidity of my objections to this bill, and to show how extremely guarded the Constitution is in preventing the members of Congress from having any agency in the election except merely in counting the votes. They well knew that to give to members of Congress a right to give votes in this election, or to decide upon them when given, was to destroy the independence of the Executive and make him the creature of the Legislature."

Mr. Pinckney further said, in other parts of his speech, "that no power or authority is given to Congress, even when both Houses are assembled in convention, further than to open and to count the votes, and declare who are President and Vice-President, if an election has been made;” “that so far from appointing committees to receive memorials or petitions respecting the election, or decide upon it, or so far from having any right to delegate an authority on this subject, that Congress shall not themselves, even when in convention, have the smallest power to decide on a single vote." "I have intentionally gone into repetitions on this subject to show how utterly unconstitutional it would be for Congress, either acting in their separate chambers or in convention, to attempt to assume to themselves the power to reject a single vote."

Mr. Pinckney, on the necessity of guarding against violations of the Constitution, such as has been suggested by friends of the bill, said: "If the bill is not passed, we are to depend, as we have hitherto done, on the attachment of the States and the good sense and integrity of their executives. That the Constitution makes this dependence necessary, and as we have never yet been disappointed, we are to hope we never shall. But surely its friends never could have considered the extent and danger of giving to this committee, or even to Congress, the right to decide on double returns, or they must immediately have seen the extreme impropriety of attempting it. It is, in short, nothing less than holding out to the minority in all the States a temptation to dispute every election, and to always bring forward double returns. In every State where the election is strongly contested there will, of course, be a minority. It will be easily known by the measures of Congress to which candidate the majority of that body inclines, and whose friends will compose the committee that are to be thus packed and selected. If the minority in a particular State find that the candidate they have unsuccessfully supported is the favorite one with the majority of Congress, or their committees, they will easily discover the means of raising objections to the valdity of the return of the electors, insist that they themselves are elected, proceed to the length of meeting and voting,