the same Hall, everybody knows that as a matter of fact two organizations cannot transact business in the same Hall at the same time in any manner that would not reflect utter contempt and disgrace upon the entire proceeding. Would one body be passing upon the objection raised by the gentleman from Massachusetts [Mr. BUTLER] while the other body was considering and determining a question of order arising out of that objection? Would one Presiding Officer be recognizing the Senators composing the body to which he belongs, and would the other Presiding Officer at the same time be recognizing the Representatives composing the other body to which he belongs? Why, sir, a confusion of Babel would be inaugurated by the overweening power of the Constitution. together for the transaction of public business should pertain to them when assembled for the purpose of counting the electoral votes, at least to an extent sufficient to enable those who are the counters on behalf of the people to know that they are counting. There can be no doubt that the Vice-President or Presiding Officer of the Senate presided over both bodies when assembled in joint convention by the consent and acknowledgment of every member of both Houses. They all recognize his duty to act as the Presiding Officer of the joint convention. The Speaker of the House himself commanded the members of the House in so many words to obey the orders of the President of the convention under penalty of arrest by the Sergeant-at-Arms of the House. Then, if the President of the Senate has such authority while sitting in the chair presiding House on this floor are to be arrested for not obeying his orders, it must be derived from some law. Not being provided for in the Constitution, it must come from some law of Congress. And, clearly, if the laws of Congress can place the President of the Senate over the joint convention with powers of that description, the laws of Congress can go further and clothe the joint convention itself with all the functions that are necessary, and without which all assemblies are but mockeries. That is, if it would be at all necessary to go further than to give a presidency with such powers to a convention in order to show that the body so presided over was a convention having all the inherent powers of such bodies in general. There can be no doubt that the Constitution intended that the two Houses of Congress sep-over the joint convention that members of the arately should regulate, by concurrent action, the law touching the mode and manner of counting the electoral votes; and that when assembled together they are so much of a joint convention that they can take notice whether they are there or not; that they can ascertain whether each House is there by roll-call or otherwise; that if the man presiding under the statute sees fit to grasp the whole power and take proprietorship of every rule of order, they can, by a right inherent in every assembly that ever sat, judge whether its own mouthpiece is speaking truly its own voice. How came the President of the Senate to be President of this joint convention? Does the Constitution say that he shall preside? Nay, the Constitution does not say that any man shall preside. Yet the manifest propriety of the officer who takes rank in other respects, taking the chair and presiding in the joint convention, has caused the law to prescribe that course. And the Senators are by courtesy provided with seats by themselves, when otherwise the members of the two bodies might be mingled together promiscuously. Did the Constitution contemplate that the members of the Senate should leave the Hall of the joint convention and formally proceed to their own place of business every time any member of the joint convention should choose to raise a question of order? Plainly, if that were the case, they might never be able to count a single electoral vote, for as soon as they might return from deciding one question any member could raise another, and out would go the Senate, or perhaps the House be compelled to go, to decide it. Did the framers of the Constitution ever contemplate the organization of a legal assembly so absurd and preposterous as this joint convention would be should that be the course they must pursue? Sir, such was not their intention. Their intention must have been that, under laws which Congress might frame in their separate bodies for the regulation of this matter, the inherent rights of a body assembled And now I wish to say a few words in regard to the concurrent resolution which was passed on Monday last in relation to the electoral vote of the State of Georgia, and which controlled, in effect, the counting of her vote. Generally a member feels that an apology is due for his conduct if he is not present when important legislation takes place in the body to which he belongs. But upon this occasion I do think that I may esteem it rather creditable than otherwise that I was not present when such a resolution as that passed this body. It is a kind of draw-bridge resolution—that if Georgia be going up-stream she may go through, but if she be going down-stream she shall not go through. It is a fast-and-loose alternative, unworthy of the Representatives of a free people, or of any people that can maintain their freedom. The resolution said in fact to the world that we were afraid to throw out the vote of Georgia, and afraid to count it, but that we would append it in this most preposterous manner to the tail-end of the count. This was not simply an act of oppression in case the resolution were wrong; but an act which, whether right or wrong, is, let Georgia be what it may, an act of insult and contumely to the people of that Commonwealth, and this whether she be entitled to vote or not. To throw out the vote of a State contrary to law | is an act of oppression; but to tie a State on in that manner to a count with an alternative that if she does not count she shall count, but if she counts she shall not count, is making sport not only of the people of such a State, but of the highest functions of Government. Hence I am very happy to state I was not present when this resolution was adopted by this House. separate action, and that, too, according to this very same rule under which the Senate went out to deliberate, there was then no need that the appeal made by the gentleman from Massachusetts should have caused an uproar in the House, or a conflict between the House and the Senate, or the arrest of members on this floor. According to the theory of gentlemen who take opposite ground from mine, the two Houses still retain the power to settle that question by their separate action. Looking at the state of the law and the rules, it is not to be wondered at that on the day the Houses recently met to count and declare the vote for President there should have been considerable excitement and disorder. The only In the confusion that prevailed in the joint convention-for I think it is generally admitted that whatever thing was done that particular thing was not in order provided you could get at anything else that was in order-the Senate under the joint rule adopted in 1865 retired from the House to deliberate, and upon delib-matter of wonder is that there was so little. erating found that the joint resolution did not affect the case, and came back, and under that very resolution decided, and the President of the convention announced the decision, that the gentleman from Massachusetts was out of order. The decision rendered upon the return of the Senate was a decision under the twentysecond joint rule, and not under the concurrent resolution recently passed in reference to Georgia, and which the Senate said governed the case of Georgia. So that the Senate retired under one rule and decided under another, and then came back, and the decision of the Chair was announced under the former. which the unsuccessful party would be sure to look upon as clear usurpation? But if there is under the present rules reason to apprehend disturbance in case of a counting, when the vote of a State put in question cannot in any way change the result, what must we expect in a case in which the vote of a single State would determine the result? And. this very case might have happened on this occasion. A few thousand votes in Pennsylvania and a few other States changed in favor of Seymour and Blair would have made the vote of Georgia decisive. In such a case as that what would have been the scene here; and what would have been the action of our Democratic friends here who now sustain the It is not to be wondered at that the gen- acts of the President of the Senate? Could tleman from Massachusetts [Mr. BUTLER], in the supporters of either candidate for the Pressuch a state of affairs, thought it would not idency have been controlled when they would be unreasonable to ask an appeal, for if all have seen the result of the great canvass which these things were in order I do not see why any cost so much time and money and roused every kind of an appeal or other motion would not energy and passion of both parties finally disbe in order also. Yet because, when the mem-posed of in a summary manner, and in a way bers of this House were told that the Senate had decided this matter for the joint convention, including the House, and for the country, It is idle to argue the danger of such an octhere was excitement at the announcement, casion. Everybody can see that a terrible conthe House has been designated as a "mob," vulsion must be the result, not because the and we have been told about the "fell spirit" beaten party would complain of oppression, in which this thing was conducted. I, among but because they would see in the mode by others, had the honor to call upon the Presi- which their defeat had been accomplished dent on that occasion to state by what author-nothing but absolute usurpation; and although ity the appeal was not entertained, and thus, I presume, I became one of the "mob" and one of the "fell spirits" that at that time were horrifying the imagination of the gentlemen from Ohio [Mr. BINGHAM and Mr. GARFIELD]. All that was meant by the demonstration made at that time, as far as I understand, was that gentlemen of this House did not want this new doctrine that had come to light in so much confusion thrust down their throats by the gavel of the President of the Senate without at least some explanation on the subject. They were willing to submit to the common judgment, and under the very arguments that have been used against them all around the board, if that very question puzzled the President of the joint convention so that the two Houses had to separate and decide it separately according to the theory of those who are in favor of it is possible to hold the American people in some order under great oppression within the forms of law, yet the least attempt at usurpation sets the whole community in a flame. In all cases in which powers are doubtful, as in this, any exercise of them against the interests of any portion of the community is held by them as clear usurpation. Clearly, then, no presidential election can be peacefully settled under such provisions of law as we now have in case such a contest as I have supposed should arise concerning the vote of a State that would change the result. Nothing can be gained in this matter by a quarrel between the two Houses. Should they censure each other in the most ample manner it could do nothing toward avoiding future danger. It could do nothing toward providing proper security for coming elections. In my opinion the constitutional provision is too uncertain; it is wholly defective, and the laws we have in aid of it make the matter worse, as was pointed out by the gentlemen from Massachusetts [Mr. BOUTWELL and Mr. BUTLER]; for where the Constitution left it uncertain what might be done, the joint rule comes in and provides that something shall be done wrong. This is manifestly the case in that provision which allows either House alone to forbid the counting of the vote of a State, instead of providing that it should require both Houses to prevent it. In view of this state of things I have offered in this House an amendment to the Constitution providing that Congress may make laws covering the whole subject, and furnish proper officers to count, and also a proper tribunal to determine in all questions of dispute touching the legality of any vote. And I think that it is proper here, as was said by the gentleman from Massachusetts [Mr. BUTLER] to call the attention of Congress and the country to this great defect in the framework of our Government. In fact, the Government is compelled every four years to pass through dangers, such as can only be compared to those of a ship passing through a narrow channel in which are sunken rocks, and no man knows, until she reaches them, how many there are or where they lie or how near to the surface of the waters. No man can tell what States may send up informal certificates, nor when, nor in what way they may be defective, nor what might be the effect of their rejection on the result of an election. For this reason many members voted against laying on the table the resolution of the gentleman from Massachusetts [Mr. BUTLER] and the substitute of the gentleman from New York [Mr. KELSEY], as the substitute provided for future legislation on this very subject. Even if no collision should ever arise under the existing law, yet the law itself is clearly wrong, and holds out temptation to any dominant party in either House to defeat willfully, for partisan purposes, the clear will of the people. In case at any time a decision under this rule should change the result of an election it could not fail to happen that the law would be challenged at once as wholly unconstitutional; and the best answer that could be made in its defense would be that it probably is and probably is not in either case it is wholly wrong and dangerous. I wish, sir, to defend the action of members of this House against the aspersions thrown upon them froin several quarters, and especially by those members of this House who saw proper to be very active in getting the whole subject out of the way. What could gentlemen expect to happen in such a case? The cause of disturbance came suddenly upon the House. In order that the whole House should submit quietly and with due subordination to whatever the Senate or its President or those who assume leadership in the House might think proper it would have been necessary to train the members of the House and instruct them until they could understand just what was to be required of them. They should have been informed precisely what would suit the proprietors of the public business, and thus put upon their good behavior, and after that if they proved refractory there would be great propriety in all those who might be offended administering a severe castigation. But I insist that no pains were taken to put the House in a proper frame of mind, and hence the natural impulses of human nature under such circumstances impelled several members to act in a manner considered very "fell" and hellish, to wit, in a dissatisfied and insubordinate manner. In saying these things I do not wish to censure the Senate. I would not vote for any resolution to that effect. First, because the House cannot censure the Senate. To censure is to punish, and presupposes some visitorial, inquisitorial, or supervisory power in the party censuring, and the House has not such power in the least. Secondly, the Senate did no wrong. What they saw proper to do in their own Hall is no business of ours, and in fact they only did just what we did; that is, to vote whether the vote of Georgia should be counted; and in this Hall they did nothing but take their seats in a quiet and decorous manner and remain in good order till they departed in good order. The truth is the House can do nothing but grumble first, at the President of the Senate for not allowing an appeal, and secondly at the Speaker for compelling obedience to his orders. But such a complaint would in fact only be a complaint against the uncertain and improper condition of the law, and the House can do far better by busying itself with plans to put the law in better condition. I have nothing further to add but to express the hope that the House will not let this occasion pass without setting on foot some measures for the safety of the country in the future. TWENTY-SECOND PRESIDENTIAL TERM. 1873-1877. ULYSSES S. GRANT, President; HENRY WILSON, Vice-President. IN SENATE. Tuesday, January 7, 1873. ("Congressional Globe," pp. 364–368.) The VICE-PRESIDENT. The first business during the remainder of the morning hour, if there be no further morning business, will be the consideration of the Calendar, under what is known as the Anthony rule. Mr. SHERMAN. I will move to take up the resolution I introduced yesterday. The VICE-PRESIDENT. That will be in order. The Calendar will come up under the rule unless some other business is taken up by a vote of the Senate. Mr. SHERMAN. The Senator from Louisiana [Mr. WEST] I understand has read the resolution and has withdrawn his objection to it. Mr. ANTHONY. I do not wish to interpose in favor of the Calendar against any business necessary to be transacted. Mr. SHERMAN. This resolution will take but a moment. Mr. ANTHONY. Let the Calendar then be laid aside informally. Mr. SHERMAN. I have no objection to that. Mr. ANTHONY. I think we should take two more days for the consideration of the Calendar. I hope at some time during this session we shall go through the unobjected cases on the Calendar. We shall thus reach the whole of them, and generally afford a great deal of relief to the people entitled to it; and even if the bills reported favorably are rejected, that will be much better than to have them resting on the Calendar and getting out of date and memory, except by those poor fellows who are claiming the relief. The VICE-PRESIDENT. The Calendar is before the Senate until one o'clock, when the Indian appropriation bill comes up, pending which the Senator from Ohio moves to take up the resolution offered by him yesterday, which was objected to by the Senator from Louisiana, but which objection is now withdrawn. The Secretary will report the resolution. The Chief Clerk read the resolution, as follows: Resolved, That the Committee on Privileges and Elections is directed to inquire and report to the Senate whether the recent election of electors for President and Vice-President has been conducted in the States of Louisiana and Arkansas in accordance with the Constitution and laws of the United States, and what contests, if any, have arisen as to who were elected as electors in either of said States, and what measures are necessary to provide for the determination of such contests, and to guard against and determine like contests in the future election of electors for President and Vice-President. That for the purpose of speedily executing this resolution the said committee shall have power to send for persons and papers, to take testimony, and at their discretion to send a sub-committee of their own number to either of said States with authority to take testimony; and, if the exigency of this service ploy suitable disinterested and unprejudiced persons demands, the said committee may appoint and emnot resident in either of such States, with authority to take such testimony as may be material in determining any pending contest growing out of the election of electors in either of said States. Mr. THURMAN. Mr. President, it is my purpose to vote for this resolution, but before doing so I wish to make some observations, very brief indeed, in regard to it, lest I might seem to be committed to implications that I do not intend to approve. This resolution provides: That the Committee on Privileges and Elections is directed to inquire and report to the Senate whether the recent election of electors for President and Vice-President has been conducted in the States of Louisiana and Arkansas in accordance with the Constitution and laws of the United States, and what contests, if any, have arisen as to who were elected as electors in either of said States, and what nation of such contests, and to guard against and measures are necessary to provide for the determidetermine like contests in the future election of electors for President and Vice-President. It then provides the machinery by which the committee may make this investigation. I say I shall vote for this resolution, because there is an urgent necessity for action, and for speedy action, and I do not know that any mode has been suggested that is preferable to that provided for by this resolution; that is, any mode that is likely to receive the sanction of Congress in time to be of any service. But this resolution seems to imply that there is a broader jurisdiction in Congress over the subject of the election of President than I have been accustomed to suppose is vested in Congress. It requires the committee to inquire whether these electors have been elected pursuant to the Constitution and laws of the United States. I know of no power in Congress to pass any law on this subject except a law fixing the time when the electors shall be chosen. The only power vested expressly by the Constitution in Congress is the power to fix that time. The provision is not as it is in regard to the election of Senators and Representatives, that the Congress may by law prescribe the time and manner of election, but it is simply that Congress may fix the time in respect to the election of electors themselves. The constitutional provision is: persons voted for as Vice-President, and of the num ber 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 "Each State shall appoint, in such manner as the of the Senate. The President of the Senate shall, in Legislature thereof may direct, a number of electors the presence of the Senate and the House of Repreequal to the whole number of Senators and Representatives, open all the certificates and the votes sentatives to which the State may be entitled in the shall be counted. The person having the greatest Congress." number of votes for President shall be the President, if such number be a majority of the whole number of majority, then from the persons having the highest electors appointed; and if no person have such numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately by ballot the President." Each State is to do that, and to do it in such manner as the Legislature thereof may direct, and the power of Congress in the premises seems to be limited to this. The third paragraph of the first section of the second article of the Constitution says: "The Congress may determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States." Now, if there is to be a contest of the right of persons to hold the office of elector, it seems to have been the contemplation of the framers of the Constitution that that was a matter to be provided for by the States themselves; that each State must determine for itself the election of electors, and determine in such mode as it shall provide any question that may arise between different persons claiming to be elected to that office. No jurisdiction over the subject seems to have been given to Congress; at least none such was in the mind, I should think, of the framers of the Constitution, looking at the provisions of that instrument. And when we come to the provision in regard to the question of votes we find it is in this language: "The electors shall meet in their respective States and vote by ballot for two persons"— There is certainly some ambiguity about this provision in the Constitution: "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." What function the Senate and House of Representatives, in whose presence these certificates are to be opened and the votes counted, are to perform, is not distinctly stated. Indeed it is not distinctly stated by whom the votes shall be counted, whether by the President of the Senate or in some mode provided for by law, or by the action of the two Houses who are there as witnesses to the counting, or whether indeed they are anything more than witnesses, and the whole duty is not devolved upon the President of the Senate. It does not seem that the difficulty that has arisen was foreseen, that of two returns being made from the same State, as I understand to be the case in the States of Louisiana and Arkansas. I understand at least in the State of Arkansas, if not in Louisiana, there have I am reading now from what was the origi- been two bodies who have cast their votes. nal Constitution "of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for and of the number of votes for each, which list they " That is, the electors"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 Senate will observe it is to be a sealed return. That means simply that the return is to be sealed up in an envelope, and does not refer to any official seal verifying or authenticating the return: "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." That is superseded to a certain extent by the twelfth article of the Constitution, which is as follows: "The electors shall meet in their respective States and vote by ballot for President and VicePresident, 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 all Mr. SHERMAN. In both. Mr. THURMAN. In both States, each claiming to be the electoral body, one casting its vote for one candidate, another for another candidate, and the returns or certificates of both have been sent here to the Presi They dent of the Senate. If the Constitution had Mr. MORTON. I call the Senator's attention to the act of Congress. Mr. THURMAN. I am aware of that. What act does the Senator refer to? |