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Senate; and it is a duty I insist we should perform before the vote shall be counted. The House and Senate do not play the parts of automata; nor are they mere lookerson at a spectacle in which the President of the Senate is sole performer. As to the tellers, they are part of the dramatis personæ not known to the Constitution-mere facilities, sir, adopted by the houses for convenience-instrumentalities, whose acts are no acts at all until the houses adopt them. Their count of the votes is the count of the Senate and House when the Senate and House agree on the report they make, and then they are, as tellers, obliterated, and are not known at all in the transaction-the count is performed by the Senate and House; and I say, sir, until the Senate and House do count the votes certified, and the certificates of which are opened by the President of the Senate in their presence, there can be no constitutionally-declared election of a President and Vice-President of the United States. The functions of the tellers commence when the houses order them to record a vote as counted, and they have no right to register a vote as counted unless the Senate votes to count it and the House agrees it shall be counted. The acquiescence of each house may dispense with the formality of a separate vote on each certificate from the electors of a State; but the theory of the Constitution is as I have stated it, I think, and the responsibility of the count is on the houses, respectively. To take a report of tellers before the houses have counted, or before the houses have agreed, respectively, to the report, and while a vote from a body of electors is under challenge from a representative of the people, is premature and unauthorized, and is not a constitutional ascertainment of the election of the President and Vice-President.

The SPEAKER, (interrupting.) The Chair will relieve the gentleman from Kentucky of the question he is now debating. The question is simply a question of priority of business-whether the resolution of the member from South Carolina is in order, and supersedes the regular order of business of the House. The Chair is of opinion that it does not; but if the gentleman from Kentucky desires to make a proposition for a meeting of the two houses for a specific purpose, the Chair will receive it as a matter of privilege, and such conditions as the House propose can be stated.

Mr. H. MARSHALL. I understand the Chair has already, heretofore, decided that the resolution offered by the gentleman from South Carolina is not in order as a question of privilege, and that an appeal from that decision is pending.

The SPEAKER. It is.

Mr. H. MARSHALL. Well, I am already discussing the matter pertinent on the appeal. The Chair decides the resolution out of order, because, in the opinion of the Chair, the meeting of the Senate and House required by the Constitution has definitely closed; while I am of opinion that it has not, and that the House should now deliberate whether, when the two houses meet again, this House will vote to count the vote of Wisconsin or not. The Senate has, as I understand it, returned to its chamber to deliberate on that proposition.

The SPEAKER. If the gentleman from Kentucky will make a point of order on that proposition, the Chair will rule it so that the House can decide.

Mr. H. MARSHALL. I thought the point of order was made. I thought it was made when the resolution of the gentleman from South Carolina [Mr. Orr] was offered, as a matter of privilege, rejecting the vote of Wisconsin, and the Chair decided it could not supersede the ordinary pending business of the House, which has no relation to the special meeting of the two houses. The appeal of the gentleman from South Carolina from that decision of the Chair rests on the ground that the special meeting has not closed, but that this House should now proceed to determine, by its own separate vote, whether it will or will not count the vote of Wisconsin, when the Senate and House meet again in order to count out the votes which have been opened in their joint presence.

The SPEAKER. The point of order presented by the gentleman from South Carolina is, that the resolution proposed by him is in order, and the Chair thinks it is not, as not being the regular order of business under the rules. But the question whether the House is now in session has not yet been put.

Mr. ORR. Will the gentleman from Kentucky yield to me a moment? There seems to be a difference, more in form than in substance, between the opinion of the Chair and my own. The Chair intimates, that if a proposition be made in the shape of an order, that the House continue the joint convention at a particular hour, with such limitations and instructions as the House may direct, it will be in order, and in that order it may be proper for us to say, "It is ordered that the vote of Wisconsin be not

counted."

Mr. H. MARSHALL. Will the gentleman permit me to close what I desire to say? I will do so in the least possible time. I would be compelled to vote against the gentleman's resolution, because he has inserted in it "the Senate concurring," thereby making it a joint resolution of the two houses; whereas, I think this House determines by itself, and for itself, how its own vote on the proposition to receive or reject an electoral vote shall be cast when the houses are acting in presence of each other. We do not want the concurrence of the Senate to enable the House to determine how it

will vote; and the view of my friend is defective, therefore, in making the concurrence of the Senate a condition on which only his resolution will be effective. This view is apart from any considerations which may determine my vote as to whether the vote of Wisconsin should or should not be received. I do not enter on those now, because I want to see these other points settled. The idea, as I understand the Chair, is that the joint meeting of the houses has closed. How did it close? Has this House determined what votes cast at the presidential election, and certified, it is willing to count? Has the Speaker of this House interchanged, by authority of this House, any words on that subject with the President of the Senate, as the organ of that house? Has this House acted at all? Has it been called to say yea or nay on any point connected with the whole subject, and has it not merely gone so far as to see the certificate opened by the President of the Senate? Is this not, in law, all that has been done? It may be said the tellers have reported, and the President of the Senate has declared the majority of the President and Vice-President, and that they are elected. Mr. Speaker, one of the tellers on the stand said they had signed no report-would sign none except to state the whole facts. But I care not what the tellers said or signed, or what the President of the Senate said. He said the Senate was in session here. So was the House in session. He presided over the Senate and over the convention; but you presided then and there, over the House. The houses were in the presence of each other, and each under its own officer. The Constitution requires this House to act, and to count the vote; and my proposition is, that until the House agrees to the vote offered to be counted, it is not constitutionally counted, and the President of the Senate cannot, of his own mere will, give that vote any force or validity in that election, or declare a result to which the House has not agreed by a count of the votes. You say the joint meeting has closed. The Constitution provides that when the votes are" then counted," if it shall appear that a candidate has the majority, he shall be President. The law of 1792 says: On the second Wednesday in February the certificates shall be opened, the votes counted, and the persons who are to fill the offices of President and Vice-President shall be ascertained and declared agreeably to the Constitution. Ascertained by whom, sir? Declared by whom, sir? Is the President of the Senate to ascertain it? Is he to declare it, agreeably to the Constitution? Or are the houses, in the presence of each other, to ascertain the fact, and are they to declare, through their respective organs, and in the presence of each other, who are the persons to fill these offices? Until the fact has been ascertained and declared by the sanction of the House, I say it has not been done "agreeably to the Constitution." Suppose, sir, that the House should not agree to the result as declared by the President of the Senate-not in this case, for here there is no doubt who is elected, and we are only trying to determine what is proper, and to do that properly. Suppose that the result depended on this vote of Wisconsin, and that vote had been challenged, as it has been to-day, would you, or any other member of this House, say that vote could be counted and the result declared without the concurrence of this House? Or, would not the House of Representatives undertake, in such an event, to judge for itself whether the majority had been cast, whether the vote had been counted agreeably to the Constitution, and whether it would or would not in pursuance of a duty devolved on it by the Constitution, proceed to elect a President of the United States, agreeably to the constitutional requisition, in the event of a failure of any one to have a majority? The House holds in its own hands the means of protecting its own dignity, and of preserving the substantial requisitions of the Constitution by seeing that the votes are properly counted. Mr. CRAIGE. I understood the Chair to announce that it would receive a proposition touching the joint convention. I suggest, therefore, the propriety of a motion, to the effect that this House will appoint a committee of three or five to confer with a committee on the part of the Senate as to the mode of bringing this matter to a close. Mr. H. MARSHALL. There may be much in that proposition that is wise, but I cannot give way now for its introduction, as I want to conclude without turning away from the grave question on which the House is now deliberating. Has the constitutional requirement been fulfilled of counting the votes for President and Vice-President, and has the subject been disposed of by the decision of the President of the Senate, though a vote proposed to be counted was objected to by the member from Virginia, [ Mr. Letcher,] and before the House has acted upon that objection, or we have consulted as to whether it shall be counted? Has the joint meeting closed, and is the House now in session to proceed with the ordinary business? If the purpose of the Constitution has been accomplished and properly met, and we are to proceed to the usual routine of business, the Speaker's decision of the pending point is correct. If we are here to deliberate as to our consent to register and count the vote of Wisconsin, then the decision of the Chair must be erroneous. But, sir, if the houses have not, in the presence of each other, counted the votes, and the Speaker is right in saying the joint meeting has closed, a question might arise whether we have ascertained the election of the President and Vice-President agreeably to the Constitution.

For my own part, I am unwilling to believe that this House means to surrender its own powers, and to agree to the exclusion of the House from a fair participation in

the duty of ascertaining and disclosing the result. That is the real point at issue here to be decided on this appeal. Will the House say that the President of the Senate has a right to proclaim who is elected President or Vice-President of the United States when no certificate of the fact was signed even by the tellers or certified to him, when no count has been verified by the House as a House, but on the contrary a vote is disputed by a member of the House? Will the retirement of the President of the Senate "with his Senate at his heels," if intended to be final, overcome the House and make us yield our constitutional privilege? If the Speaker of the House announces that there is no longer any joint convention, and if the whole thing be broken up in confusion, the question may very well arise as to what then becomes the duty of the House of Representatives.

I know very well that the President of the Senate finally said that the tellers had made their report; but, as I understood him, the tellers had not completed it. I heard one of the tellers say that they did not intend to certify until some event occurred which had not then transpired, and in that state of facts the Senate retired from the House. The question is, for what purpose? To consult as to their vote, or upon the assumption that their office here had been performed fully? If the latter, what will this House say?

Mr. SMITH, of Tennessee. Will the gentleman allow me a moment?

Mr. H. MARSHALL. Will the gentleman say what he has to say when I have done! I want to guard the House, if possible, against wrong action, and to induce it to do what is proper for its own dignity and due to the propriety of the occasion.

Mr. SMITH, of Tennessee. I want to correct the impression which the gentleman is making.

Mr. H. MARSHALL. It seems almost impossible for a Representative to speak here except under continued interruption. Upon a subject like this, I did hope that what I had to say could have been said to attentive ears without this; but as it is otherwise, I prefer to yield the floor rather than to conclude under a continued stream of interrogations, and I yield the floor entirely.

Mr. QUITMAN. I think, sir, that if the House will reflect upon the consequences of any misstep in its proceedings now, it will deliberate calmly and maturely as to the proper mode which ought to be pursued. It was my fortune upon one occasion to sit as the presiding officer over two legislative bodies assembled in convention-not, I confess, as turbulent bodies as those I have seen here to-day. Questions of a similar character to these arose, and I have been obliged to give them some attention. But what I wish to impress upon this House now is, that unless some conciliation and some prudent measure takes place, this is but the commencement of a revolution. ["Hear, hear"] Do you suppose, gentlemen, that a majority of the people of the United States who, through their electoral colleges, have selected a President of the United States, will quietly submit, on account of some technical proceeding, to see that election made by this body? And, Mr. Speaker, unless we get out of this dilemma, I know not how we are to cure it.

The question, then, is this-and it was properly put by the gentleman from South Carolina who introduced this resolution: was the joint convention of the two Houses terminated by the withdrawal of the Senate? No, sir; it was terminated by no act of either branch of this convention. The convention still exists in contemplation of law. It was said by the honorable gentleman from Kentucky, Mr. H. Marshall, that we assembled here in convention as two distinct bodies, and that we must even vote upon every question, even questions of order, when appealed to, as separate bodies. In the case to which I referred, the president of the senate took a vote of the senate in the presence of the house, and the speaker of the house took a vote of the house on the same subject, to save time, in the presence of the senate. But here the Senate, over whose proceedings as a distinct body we have no control, have seen fit to return-not to break up the joint convention, not to dissolve it, but to return to their own chamber, as we are to believe, though not officially informed of it, to deliberate upon and decide questions which arose while the joint convention was in existence. But, sir, are we to suppose that the Senate have abandoned the business which was before that body? It is still before this body, and that is the business before us; and until it is disposed of, in my judgment nothing else is in order. Therefore, it is perfectly right and proper that this House should take up the subject, decide it, and respectfully communicate the result of our action to the Senate, and invite the Senate to retura, and continue and conclude the business for which we assembled together.

Mr. STANTON. I have no idea of permitting this question of the power of the Presiding Officer of the joint convention to be overslaughed. I think my friend from Kentucky [Mr. H. Marshall] makes a mistake when he assumes that because each House has a right to a separate vote, that therefore the two houses can separate without dissolving the joint convention. I think the decision of the Chair is correct upon this point of order; and I very much regret that this question as to the right to decide upon the validity and legality of the vote for President should be complicated with a question of order.

Now, sir, the question as to whether or not these two houses are in convention, is a physical fact, determinable by observation. The question as to whether the two houses must vote per capita upon all questions while in joint convention, is a question to be decided at the proper time, and in the proper place. But assuming that gentlemen are correct in saying that each house is entitled to a separate vote, it by no means follows that the joint convention should be suspended or dissolved, or that the two houses should separate. I apprehend that it is an every-day occurrence in the legislatures of the several States, when assembled in joint convention, that the clerk of each branch of the body calls his own branch and records its vote, and the presiding officer of each brauch announces the vote of each branch to the joint convention.

But, sir, I take it that whenever the Senate or the House, which goes into the chamber where the joint convention is to meet, and there proceeds to the consideration of the business that devolves upon it, and withdraws, that withdrawal, not professedly for any temporary purpose, not professedly for the purpose of consultation, not with the avowed purpose of returning to resume the joint convention, does dissolve the joint convention. I do not see how there is any escape from that conclusion.

I regret that this question as to the right of a joint convention to decide upon the electoral vote of a State should be complicated with a question as to the priority of business. I hope the vote will be taken. Why will not gentlemen permit the result to be announced upon the motion of the gentleman from Missouri to lay the report of the Committee of Elections upon the table?

Mr. CRAIGE. However it may be in theory, I apprehend there is no difficulty in point of fact as to whether we are in joint convention or not. Whether it has adjourned, or is merely suspended, is a matter of no moment. It is clear that we are not now in joint convention. I apprehend that it was the intention of the Senate to consult about this very matter; and therefore I propose, if it is in order, to move that a committee of three be appointed upon the part of the House, to confer with a like committee upon the part of the Senate upon the subject of the re-assembling of the joint convention. Mr. ORR. I desire to modify my proposition. I propose the following, in lieu of the resolution offered originally:

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. The SPEAKER. The proposition, in the opinion of the Chair, is in order as a matter of privilege.

Mr. ORR. I have very little to say. It seems to me that that is perhaps the best way of relieving ourselves of the present difficulty. If there be gentlemen here, as I have no doubt there are from the intimations which have fallen from some of them, who think that the vote of the State of Wisconsin ought to be counted, let them move an amendment to the order. My own opinion is that the vote ought not to be counted. It was not cast on the day prescribed by law. If the States be allowed to cast their electoral votes on different days, you will put it in the power of the electors of the State to make combinations so as to secure the election of a President and Vice-President against the voice and will of the people.

Mr. MILLSON. I rise to a question of order.

Mr. WASHBURNE, of Wisconsin. I move that the order be amended so that the vote of Wisconsin be counted; and on that motion I desire to make a single statement. The SPEAKER. The gentleman from Virginia rises to a question of order. Mr. MILLSON. I will state in advance that what I raise as a question of order may be considered rather as reasons why this resolution should be rejected. If, however, it be a question of order in the opinion of the Chair, I will only say that I will indicate the points of order, and seek an opportunity at some other time to enforce my objection to the resolution. My point of order is this: The resolution assumes that the Senate is to return in joint convention, when, I hold that they may never, and need never return, the work having been accomplished.

The second point is, that the Constitution is a body of rules for the government or this House, as well as those enacted by ourselves; and under the Constitution the. Senate and the House of Representatives have never been, and can never be, in joint convention.

The third point is, that the resolution assumes the right of the House to reject the vote of a State given for President and Vice-President, when no such authority has been given by the Constitution, either to the Senate or the House of Representatives, aud when I think the power has been wisely withheld from both to determine any such question.

The SPEAKER. The Chair overrules the question of order raised by the gentleman from Virginia.

Mr. WASHBURN, of Maine. I wish to say a word on this point of order.

The SPEAKER. Debate is not in order until the Chair has given its decision.

Mr. ORR. I will relieve the resolution from one of the difficulties suggested by the gentleman from Virginia. I propose to modify it by striking out "in joint convention."

The SPEAKER. The Chair is of the opinion that the resolution is properly before the House as a matter of privilege.

Mr. ALLISON. I rise to a question of order. My point of order is this: That this House cannot know, as a House, what has been done in joint convention until the tellers appointed by the House shall have made their report. The tellers have not made their report.

The SPEAKER. The Chair overrules the question of order raised by the gentleman from Pennsylvania. The laws of the United States require the two houses to meet in joint session on this day for a specific purpose, and the Chair holds that a proposition relating to that purpose is in order. Such a proposition is presented by the gentleman from South Carolina. It is not necessary that a report shall be made to the House by the tellers, nor indeed are they appointed for that purpose.

Mr. WASHBURN, of Maine. I do not know that I am disposed to appeal from the decision of the Chair, but, if necessary, I will take an appeal pro forma, at least in order that I may make a few remarks on this question. We have met the Senate here to-day in pursuance of the provisions of the Constitution, of a law of Congress, and a joint resolution adopted a few days since by the two houses. At such meeting nothing could be done except what had been authorized by the Constitution and the laws of Congress. Mr. RUFFIN. If debate is not in order, then I call the gentleman to order.

Mr. WASHBURN, of Maine. I will then take an appeal from the decision of the Chair. The SPEAKER. The gentleman has a right to state his point of order.

Mr. RUFFIN. He is discussing and not stating it, and he says that it is not a point of order.

Mr. WASHBURN, of Maine. I am stating my point of order, which is, that the motion of the gentleman from South Carolina [Mr. Orr] is not in order. Now, sir, if that motion is entertained and prevails, we shall be here not in pursuance of the Constitution

The SPEAKER. The gentleman from Maine does not present a question of order. He will please state his question of order.

Mr. WASHBURN, of Maine. I understand the Speaker to have decided that the resolution offered by the gentleman from South Carolina was in order. I make the point that the resolution cannot be received, because this House at this time, and in this manner, has no jurisdiction over that question under the Constitution, the laws, or the joint order of the houses.

The SPEAKER. The Chair overrules the point of order of the gentleman from Maine on the ground that it is a question for the House to decide.

Mr. WASHBURN, of Maine. Then I take an appeal, and I desire to state my reasons. The Constitution provides that the President of the Senate, in the presence of the two houses, shall open all the certificates, and that the votes shall be then counted, and the person having the greatest number of votes for President shall be President of the United States, if such number be a majority of the whole number of electors appointed; and so in regard to the Vice-President. The votes shall be opened in the presence of the Senate and House of Representatives, and then counted. By whom? There is no provision of the Constitution, or of law, that they shall be counted by the Senate, or the House, or by a joint convention. There has been no joint convention, nor could there have been any. The assemblage here could do nothing for which it had not the authority of law, and there is no law anthorizing the count of these votes by a joint 'convention, or prescribing the rules and regulations to be observed therein. It was the duty of the President of the Senate here, in the presence of the two Houses, to open the certificates, and to cause the votes to be counted. The Houses had directed how they were to be counted, by a teller appointed on the part of the Senate, and two tellers appointed on the part of the House. These tellers made the count, and here, in the presence of us all, made their report to the President of the Senate; and the President of the Senate, in the presence of the two houses, and in exact conformity with the provisions of the Constitution, did declare the whole number of votes, and did declare who had the majority. Nothing but that could have been done. There was no power on the part of the Senate, or on the part of the House, to interfere with the execution of this duty precisely as specified in the Constitution and in the resolution of the two houses.

I hold, therefore, that no motion whatever can be made; and that the meeting under the Constitution, the law of 1792, and the joint resolution, is functus officio. I have no doubt, sir, that there is here a casus omissus-that there is no law and no provision of the Constitution by which anything can possibly be done, except what has been done by the President of the Senate in presence of the two houses. I hold that he ruled aright when he refused to entertain the motions made to him, and when he announced

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