vote of the State of Wisconsin, having been cast on a day different from that provided by law, be rejected, and that the tellers be instructed to make up their account accordingly.

Senator Cass. I wish to submit a single remark to the President and to the Senate, for I do not consider that this convention can be addressed. We can take no vote. How are we to vote? Per capita or by States? Are we to vote as representatives of the people or representatives of States? If we cannot vote here, we cannot discuss. The only thing which remains for us to do, if there are insuperable difficulties in the way, is to adjourn immediately to our respective halls. Then let the Senate or the House of Representatives bring up the matter for action. By the present proceeding we are overturning the Government-we are making this a national convention.

Senator BUTLER. I concur in that, and insist on that mode of procedure. Let us preserve our separate organized existence.

The PRESIDING OFFICER. The duty which brought the Senate into this Hall having been discharged, the Senate will return to its own chamber.

Senator SEWARD. I was about to propose that.

Senator TOOMBS. I protest against that order. We have the right to determine that question. I enter my protest as a Senator from the State of Georgia.

The PRESIDING OFFICER. The Presiding Officer is informed by the tellers that they have not yet made out their certificate. [Laughter.]

Senator DOUGLAS. I rise to state that, in my opinion, the tellers have no right to authenticate that certificate until the two houses have passed upon it as to its being a true count. I rise to protest against this joint convention being dissolved until the question which has been raised shall have been decided.

Senator TOOMBS. That is right.

Senator DOUGLAS. I am willing that the Senate shall retire to its own chamber to consider and determine the question in dispute; but I do protest solemnly against the deed being done before we have had an opportunity of deciding this question. Senator TooMBS. I want to vote on it.

Mr. STANTON. I rise to a question of order. Who shall determine when the business for which the joint convention assembled has been concluded? The Presiding Officer, or the body itself? I understand that a motion is pending to adjourn the joint convention, and that, pending that motion, the President of the joint convention announces that it is dissolved, and that the Senate will retire. Am I correct? If I am, then I insist that the joint convention is not dissolved; and that, if the Senate retire without any vote of the two houses, and pending a motion to adjourn, it does not amount to a dissolution of the joint convention.

The PRESIDING OFFICER. The Presiding Officer would again refer to that clause of the Constitution which, in his judgment, prescribes the only functions to be discharged iu this presence:

"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."

Senator ToOMBS. What votes?

The PRESIDING OFFICER. The votes for President and Vice-President of the United States.

Senator TOOMBS. That is the question. What are the votes ?

The PRESIDING OFFICER, (reading :)

"The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest number, not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately by ballot a President."

The Presiding Officer, therefore, again states it as his judgment that the Senate came here under the Constitution only for the purpose of counting the votes in the manner prescribed by the Constitution-that the mode of doing it was provided for, in addition, by the concurrent order of the two houses.

Mr. STANTON. I wish to inquire whether it is not essential to the completion of this question, that the motion of the gentleman from South Carolina [Mr. Orr] to reject the vote of the State of Wisconsin should be first determined? How can the object for which we assembled here be decided until we shall have settled the question as to whether the vote of a State is to be counted or not? For what purpose did we come here, if not to decide such questions as the motion of the gentleman from South Carolina I differ with that gentleman, and shall vote against the motion. But it is a question the right to determine which I will not surrender.

The PRESIDING OFFICER. It is the opinion of the Presiding Officer that no vote can be taken as a joint vote by the two houses thus assembled, and that no motion calling for a vote is in order. The Presiding Officer, therefore, rules the motion out of order. Mr. HAVEN. I desire to submit a remark here. The President of this joint meeting or convention has announced-and I think very properly-that the duty of the joint

convention is to count the votes given by the electors in the several States. The proposition which I submit is, that we have not yet counted them. That is the only question here-have we counted the votes from the State of Wisconsin? It is alleged on the part of some gentlemen here that there are votes from the State of Wisconsin to be counted. It is alleged by some others that there are no votes here from Wisconsin to be counted. Does the certificate from the electors of that State certify a vote, a legal vote, of which we ought to take cognizance. No final certificate of our action here has yet been made; and the two houses are at issue, not as separate bodies, but individuals of both bodies seem to differ in opinion as to whether there is or is not a vote from Wisconsin here, which, according to the Constitution and the laws, we are to count. It is but of slight importance in this particular case, but may become of vast importance as a precedent on some future occasion.

Now, in reference to what should be done with the alleged vote of Wisconsin, I differ from many gentlemen. My own opinion is, that we ought to count that vote for John C. Frémont and William L. Dayton. But it is right that gentlemen here who think that we ought not to count it should be heard on this subject, either here or in the separate houses by the members thereof, and that this convention should by some mode come to a conclusion. It is understood, I believe, as a matter of history-I do not know whether there is any proof on the subject-that it was an act of Providence, so to speak, which prevented the electors of the State of Wisconsin from meeting and giving their vote on the precise day appointed by law, the 3d of December. My own individual judgment on this subject is, that when the electors of a State are prevented from meeting on the day fixed by law, either by public enemies or by the act of God—and when nothing appears to impeach the good faith of the electors, and they cast their vote at the earliest practicable moment-such votes are the lawful electoral votes of the State, and should be counted by the two houses on an occasion like this; otherwise the people of such State will be utterly disfranchised, when they have performed every possible duty incumbent upon them under the Constitution. acts of God and of public enemies have always been held to excuse men from the performance of an incumbent duty. On the other hand, the Senator from South Carolina [Mr. Butler] declares that, in his opinion, such votes ought not to be counted, and in effect the State ought to be disfranchised. Now, I do not propose to settle that question; but I do say that we ought not finally to leave this hall as joint convention, and finally to separate, and abandon our duty under the Constitution in this regard, until we have put the public mind of the country at ease on the question as to whether the votes of Wisconsin are to be counted or not; and I, too, wish to enter my protest against the President of the Senate and the tellers settling the question for us, and in spite of us, as to whether the votes of a State shall be counted or not, and whether she shall be disfranchised or not, under such circumstances.

The

Senator HUNTER. I rise to a question of order. I wish to know how we can debate questions in joint convention? Each house must debate the question for itself.

The PRESIDING OFFICER. The Presiding Officer would inform the Senate and Honse of Representatives thus assembled that the tellers have not yet completed their certificate. The motion of the gentleman from South Carolina, [Mr. ORR,] in the opinion of the Chair, is not in order.

Senator HUNTER. Let me suggest this point of order: If a question arise during the process of counting which requires action of the two houses, I believe we can settle it in committee of conference, as we settled the Michigan and Missouri cases. It can be settled very soon if we separate, through our committees. I move that the President of the Senate conduct the Senators back to the Senate Chamber.

The PRESIDING OFFICER. The Presiding Officer would again state that the duty of the tellers has not yet been discharged. The tellers, it would appear, made their report before they had signed the certificate. The vote will be again read to the two houses, and they can determine what shall be done.

Mr. BILLINGHURST. I rise for the purpose of addressing an inquiry to the Chair, which is, whether or not an official certificate of the causes which prevented the electors of Wisconsin from voting on the 3d of December, accompanied their return? If I ask that it be read to the convention.

so,

The PRESIDING OFFICER. The paper will be read by the general consent of the two houses.

Mr. COBB, of Georgia. I desire to inquire of the Chair what disposition has been made of the motion submitted by the gentleman from South Carolina, [Mr. ORR ?] The reason why I make that inquiry is, that I wish to call the attention of the Chair, as well as of the two houses, to this point. I regard it as not material in this case whether you decide to count the vote of Wisconsin or not; but I do consider it important that it should be decided whether or not this convention is to adjourn by the decision of the Chair or by the judgment of the convention. And I desire to inquire of the Chair whether or not he proposes, when the tellers shall have completed their report, to adjourn the convention of his own accord and on his own motion, or whether he proposes to submit it to the judgment of the convention whether or not they have

discharged their duty? I desire, Mr. President, that this convention shall decide, before it adjourn, whether we have completed the business for which we have been called together by the Constitution, and that that shall not be decided simply by the Presiding Officer of the convention. In order, Mr. President, to bring this question directly before the convention, if the Chair rules out the resolution of the gentleman from South Carolina, I appeal from that decision.

Senator BUTLER. I call the gentleman to order. It is not a debatable question. The Senate should go out without any other order. The States shall not be overruled here, so long as I represent the State of South Carolina.

Mr. ORK. Is my motion pending?

The PRESIDING OFFICER. The Senator from South Carolina rises to a question of order, which he will be good enough to state.

Senator BUTLER. My point of order is that this is not a debatable question in this convention, so far as it requires a decision to be given one way or the other. Each house should deliberate upon it separately.

Mr. COBB, of Georgia. All questions are debatable in all bodies, unless prevented by special rules-even a motion to adjourn.

Mr. ORR. I desire to know what disposition has been made of my motion?

The PRESIDING OFFICER. The Chair decided that it could entertain no motion which would involve a vote of the two houses, or of either of them, and he rules the motion out of order.

Mr. COBB, of Georgia. I take an appeal from that decision.

The PRESIDING OFFICER. The Chair desires to be indulged a moment longer, in regard to an inquiry made by the gentleman from Georgia. It is the judgment of the Chair that the Senate is sitting here pursuant to the Constitution, and that when the Senate may determine that its duties here are ended, the Presiding Officer of both bodies will receive a motion from any Senator to return to its own chamber, where its sitting will be resumed. The Senate is in session now.

Mr. ORR. If the Chair will allow a suggestion, I think perhaps we may be relieved from this difficulty. This question arises now, whether a vote shall be counted? A Senator, I think, properly objects that the vote shall be taken per capita. Let a motion be made that the Senate retire to their chamber to determine the question, and allow this House to do the same. It can be done by an interchange of messages between the two houses, when the two houses can again come into joint convention. I wish to have my motion taken down, and then the convention can separate.

Mr. JONES, of Tennessee. I hope that this convention will not separate until they receive the report which the tellers have to make; and it will be for the convention then to determine what they will do with the report.

Mr. WASHBURNE, of Illinois. I demand the reading of all the official papers connected with the Wisconsin case. I think the convention have the right to know what those papers are.

The PRESIDING OFFICER. The Chair will direct them to be read.

Senator TRUMBULL. I rise to a question of order. It is simply this: the Senate is here in session, and we cannot vote here. I move that the Senate return to its own chamber. Let us there decide what we will do. A difficulty has arisen, and it cannot be settled in this body.

Mr. JONES, of Tennessee. I hope they will first receive the report of the tellers.
Senator TRUMBULL. No, we do not want the report.

Mr. JONES, of Tennessee. Then you will not know what you are acting on.

Senator TRUMBULL. A difficulty has arisen here. Let us retire and consider it in the only constitutional way in which we can, and that is in separate bodies; and I move that the Senate return to their own chamber to consider this question.

The PRESIDING OFFICER. The Chair would respectfully state, as his judgment, that whatever difficulty may have arisen, it cannot be officially known to either house until it is reported by the tellers, to whom the duty of counting the votes was confided. Mr. WASHBURN, of Maine. The tellers have declared the vote, and the Presiding Officer has announced who is elected President, and nothing more is in order. It is not in order to go over the ground and report again, they having once reported the result to the Presiding Officer, and that result having been announced by him.

Senator STUART. I wish to present a question of order for the consideration of the Senate. I wish to state for the consideration of the Presiding Officer of this body, that after the tellers made the report, and the Presiding Officer announced the result, the Constitution, and the law of the United States in pursuance of the Constitution, was fulfilled. Now, sir, I wish to suggest to the Presiding Officer of this body, at this time, that he place himself at the head of the Senate, and that we return to our chamber without any further discussion, or any further motion here. I hope the Presiding Officer will pursue that course.

The PRESIDING OFFICER submitted to the Senators the motion that the Senate return to the Senate Chamber; and said motion was agreed to.

The Senate, preceded by its President and other officers, thereupon retired from the hall of the House, and the Speaker resumed the chair.

IN THE HOUSE OF REPRESENTATIVES, February 11, 1857. Mr. CAMPBELL, of Ohio, [while the Senate was retiring.] Mr. Speaker, I call for the regular order of business.

The SPEAKER. The gentleman from Maine [Mr. WASHBURN] reported from the Committee on Elections a resolution in relation to the seat of the Delegate from the Territory of Kansas, and the pending motion is to lay the resolution on the table. Upon that motion the yeas and nays have been partly taken. The Clerk will proceed to read the votes.

Mr. ORR. I object to any such proceeding. The House determined, by resolution, that they would receive the Senate in joint convention. The object for which that joint convention assembled has not been accomplished, and no other business is now in order, unless it be business which has arisen during the progress of that joint convention, and which must be decided by this House before the Senate returns.

The SPEAKER. If the gentleman from South Carolina makes a point of order, the Chair overrules the point of order, and the Chair will state the ground of the decision. The House is in session for the transaction of its business, and under the rules the House can take up no other business except that which is pending. If the gentleman proposes to suspend the proceeding, and introduce a new motion, the Chair will hear

what it is.

Mr. HAVEN. I have a word to say upon this subject, and I would not intrude it upon the House but for the peculiar turn which the proceedings have taken. I believe the provision of the Constitution is that the House shall elect a President if there be a failure in the joint convention. I want to know whether that is not now the first thing in order? [Great laughter.]

Mr. ORR. I appeal from the decision of the Chair.

Mr. SMITH, of Tennessee. If the gentleman from South Carolina will yield to me for a moment, I will make a motion which I think will entirely obviate the present difficulty. I wish to move that the vote of the State of Wisconsin be excluded from the count.

The SPEAKER. No question relating to that subject can be received.

Mr. ORR. Is not the House in joint convention?

The SPEAKER. It is not. It is in session as the House of Representatives.

Mr. ORR. I appeal from the decision of the Chair, and on that appeal call for the yeas and nays.

The SPEAKER. The Chair will state the question. The House having resumed its regular session, the Chair directed the Clerk to proceed with the call of the roll, which was the business in which it was engaged when interrupted by the special order. Mr. ORR. But the joint convention has not adjourned?

The SPEAKER. It has dissolved; the House of Representatives is now in regular session.

Mr. ORR. The Senate has retired to consult and discuss a question which arose during the progress of the proceedings of the joint convention. It is now proper that we should consider the same question, so that we may be prepared to receive the Senate on its return.

The SPEAKER. If the gentleman will submit a proposition in order the Chair will receive it.

Mr. ORR. I propose to make this proposition: That the House reject the vote of the State of Wisconsin in the count which may be consummated upon the return of the Senate, because that vote was not cast on the day prescribed by law.

Mr. CAMPBELL, of Ohio. Is that motion in order?

The SPEAKER. The Clerk will read the proposition.

The Clerk read as follows:

"It appearing, from the face of the certificate of electors from the State of Wisconsin for the election of President and Vice-President, that the vote for President and Vice-President was not cast on the day prescribed by law: Therefore,

64

Resolved, That the vote of the State of Wisconsin be excluded from the count." Mr. ORR. I will modify that resolution so that it will read—

"Resolved, That the Senate be informed that the House of Representatives have decided that the vote of Wisconsin be excluded from the count when the joint convention shall re-assemble."

Mr. CAMPBELL, of Ohio. I understand that the Chair has decided that we are not in joint convention; that we are now in the transaction of the regular business of the House.

The SPEAKER. The House is in session, and the Speaker is in the chair.

Mr. CAMPBELL, of Ohio. I object, then, to anything but the regular order of busi

ness.

The SPEAKER. The resolution is not in regular order, but will be received unless there be objection.

Mr. CARLISLE. I object.

Mr. ORR. I think there can be no question of higher privilege than my resolution,

and I therefore appeal from the decision of the Chair ruling it out of order; and on that question I call for the yeas and nays.

Mr. WASHBURNE, of Illinois. I move that the appeal be laid on the table.

Mr. H. MARSHALL. I consider this an important question, and would like to say a word or two on it; but I shall be precluded from doing so, if the gentleman from Illinois insists on his motion to lay on the table.

Mr. WASHBURNE, of Illinois. I withdraw the motion to lay on the table.

The SPEAKER. The House adopted an order to meet this day with the Senate for a specific purpose. That order has been complied with. The Senate has met with the House, and it has withdrawn. The Speaker has resumed the chair, and the House is in session for the transaction of the regular order of business.

The gentleman from South Carolina [Mr. Orr] has proposed a resolution which has been read to the House. The Chair is of the opinion that it is not in the regular order of business, and can be received at this time only by unanimous consent. From that decision the gentleman from South Carolina takes an appeal. The question now is: "Shall the decision of the Chair stand as the judgment of the House?"

Mr. H. MARSHALL. This matter is worthy of the most serious consideration of the House, and should be treated of calmly and considerately, for the precedent we are now to establish will be cited as authority through the future of this Government. The House of Representatives-the popular branch of the legislative department-should come full up to the line of its duty; I ask no more.

The special rule under which the Senate came to-day into this House, was made in conformity with the Constitution and the law. The Constitution requires that the President of the Senate shall open all the certificates of the electoral votes in the presence of the Senate and House of Representatives, "and the votes shall then be counted," and the question of election or no election determined. The President of the Senate has to open all the certificates, and then his function is performed; and after all the certificates have been opened, the counting of the votes is then to commence and be concluded. A question has arisen here to-day, when the certificate of the vote of Wisconsin was opened by the President of the Senate, whether that vote should be counted; and when that vote was challenged by a member of this House the President of the Senate undertook to say that debate was not admissible upon the proposition, and proceeded to read that vote from a paper furnished to him by tellers who were appointed to keep the count, as if that vote was to be counted, when the very question before the bodies was, whether it is a vote or not? I entered my protest, as a Representative of the people, against such a proceeding, which in effect gives a construction to the Constitution so as to draw the whole power into the hands of the President of the Senate; and thereupon a question arose as to the true theory of the Constitution, and of the function of the two houses when in the presence of each other, for the discharge of this interesting duty.

What is the function of the houses when in the presence of each other? Are they mere spectators of a scene in which the President of the Senate and the tellers are the actors, or are the houses to act themselves? And if they are the actors, how do they meet and how can they act? When a vote is to be taken or a point determined, how do they vote-per capita, as individuals in an assembly, or as houses in a joint convention? It appears to me there is no real difficulty on the last point. Who are in the presence of each other? The Senate as a Senate, and the House of Representatives as & House. There could be no such thing as a vote per capita without destroying the theory on which the Constitution rests; for it must be plain that there might exist a state of case, now or hereafter, in which, in a vote per capita, the members of the House would overwhelm the voice of the Senate, and so draw undue power to the House, thereby enabling a dominant party of the House to execute its own purposes, without regard to the wishes or views of the representatives of the States. The bodies meet, sir, and vote as distinct organizations; and when a vote is to be taken the Senate very properly retires to consult separately how the vote of the Senate shall be given upon the question, and its vote will then be announced by its own appointed organ. According to my understanding, the Senate retired upon the motion of the Senator from Illinois, [Mr. Douglas,] and I presume the Senate will consult as to its vote. We have now, as a House, to determine for ourselves whether the vote of the electors of Wisconsin, as certified by them, shall be counted among the votes cast in the late presidential election.

If you adopt any other construction of the Constitution than that I have indicated, on the one hand you supersede the houses and place all power over the count in the hands of the President of the Senate; on the other hand, you destroy the just weight of the Senate, and may establish a precedent, by virtue of which, at some future day, a large body of Representatives may set aside an election made by the people through the electoral college, and assume the power of bringing the election before the House of Representatives. I am, therefore, clear that the houses meet as houses, and no vote per capita can be taken. Still, I am sure that the duty of determining whether a vote shall be counted belongs to the Senate and House, and not to the President of the