-m their joint meeting, if such ques-uld arise at counting the votes, the words: "and the question of the exball immediately, and without debate, by yeas and nays, and decided by a of the members of both Houses then

otion called forth a long debate, and vision was negatived, 46 to 44. mmittee having gone through the bill, reported.

HOUSE OF REPRESENTATIVES.
Thursday, May 1, 1800.

anals of Congress," 6th Cong., p. 694.) ouse proceeded to consider the amendported yesterday from the Committee hole House, to whom was committed rt of the committee to whom was rene bill sent from the Senate, entitled prescribing the mode of deciding disections of President and Vice-Presithe United States;" and, the same be

tion was made and seconded to amend amendment, by striking out, in the tion thereof, the words following: -n the next following the day when a and Vice-President shall have been voted ectors, it shall be the duty of the Senate and Representatives of the United States to y ballot, in each House, four members therethe persons thus chosen shall form a joint e, and shall have power to examine into all relative to the election of President and sident of the United States, other than such elate to the number of votes by which elechave been appointed.

the question being taken thereupon, it ided in the negative-yeas 41, nays 47;

ws:

-Willis Alston, Theodorus Bailey, Phanuel Robert Brown, Samuel J. Cabell, Gabriel Mathew Clay, William C. C. Claiborne, ondit, Thomas T. Davis, John Dawson, Eggleston, Lucas Elmendorf, John Fowler, Gallatin, Edwin Gray, Andrew Gregg, John a, David Holmes, George Jackson, James aron Kitchell, Michael Leib, Matthew Lyon, Linn, Nathaniel Macon, Peter Muhlenberg, New, John Nicholas, Joseph H. Nicholson, andolph, John Smilie, John Smith, Richard , David Stone, Thomas Sumter, John n, Abram Trigg, John Trigg, Joseph B. , and Robert Williams.

S-George Baer, Bailey Bartlett, James A. Jonathan Brace, John Brown, Christopher mplin, William Cooper, Samuel W. Dana, Davenport, John Dennis, George Dent, Dickson, William Edmond, Thomas Evans, Foster, Dwight Foster, Jonathan Freeman, Glen, Chauncey Goodrich, Elizur Goodrich, Griswold, Robert Goodloe Harper, William H. enjamin Huger, Henry Lee, Silas Lee, Samuel John Marshall, Lewis R. Morris, Abraham obert Page, Josiah Parker, Thomas Pincknas Platt, Leven Powell, John Reed, John e, Jr., Samuel Sewall, James Sheafe, William d, George Thatcher, John C. Thomas, Richomas, Peleg Wadsworth, Robert Waln. Lemliams, and Henry Woods.

A motion was then made and seconded to amend the said amendment, by striking out of the eighth section thereof the following:

"And sign his name thereto, and if it be founded on any circumstances appearing in the report of the joint committee, and the exception be seconded by one member from the Senate, and one from the the said exception, as having seconded the same, House of Representatives, each of whom shall sign then each House shall immediately retire, without question or debate, to its own apartment, and shall take the question on the exception, without debate, by ayes and noes. So soon as the question shall be taken in either House, a message shall be sent to the other, informing them that the House sending the message is prepared to resume the count; and when such message shall have been received by both Houses, they shall again assemble in the same apartment as before, and the count shall be resuined. And if the two Houses have concurred in rejecting the vote or votes objected to, such vote or votes shall not be counted; but, unless both Houses concur, such vote or votes shall be counted. If the objection the papers opened by the President of the Senate, in taken as aforementioned, shall arise on the face of the presence of both Houses, and shall not have been noticed in the report of the joint committee, such objection may be referred to the joint committee, to be examined and reported on by them, in the same manner, and on the same principles, as their first report was made; but, if both Houses do not concur in referring the same to the committee, then such objection shall be decided on in the like manner as if it had been founded on any circumstances appearing in the report of the committee."

And insert in lieu thereof the following:

"And the question on the exception shall immedi ately, and without debate, be taken by ayes and noes, and decided by a majority of the members of both Houses then present."

And the question being taken thereupon, it was decided in the negative-yeas 43, nays 46; as follows:

YEAS-Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, William C. C. Claiborne, John Condit, Thomas T. Davis, John Dawson, George Dent, Joseph Eggleston, Lucas Elmendorf, Gregg, John A. Hanna, Joseph Heister, David John Fowler, Albert Gallatin, Edwin Gray, Andrew Holmes, George Jackson, James Jones, Aaron Kitchell, Michael Leib, Matthew Lyon, James Linn, Nathaniel Macon, Peter Muhlenberg, Anthony New, dolph, John Smilie, John Smith, Richard Stanford, John Nicholas, Joseph H. Nicholson, John RanDavid Stone, Thomas Sumter, John Thompson, Abram Trigg, John Trigg, Joseph B. Varnum, and Robert Williams.

NAYS-George Baer, Bailey Bartlett, James A. Bayard, Jonathan Brace, John Brown, Christopher G. Champlin, William Cooper, Samuel W. Dana, Franklin Davenport, John Dennis, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glen, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, Robert Goodloe Harper, William H. Hill, Benjamin Huger, Henry Lee, Silas Lee, Samuel Lymun, John Marshall, Lewis R. Morris, Abraham Nott, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Reed, John Rutledge, Jr., Samuel Sewall, James Sheafe, William Shepard, George Thatcher, John Chew Thomas, Richard Thomas, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods.

Another motion was then made and seconded to amend the said amendment; and the ques

IN SENATE.

Monday, January 6, 1873.

("Congressional Globe," p. 340.) Mr. MORTON. I offer the following resolution:

Resolved, That the Committee on Privileges and Elections be instructed to examine and report, at the next session of Congress, upon the best and most practicable mode of electing the President and Vice-President, and providing a tribunal to adjust and decide all contested questions connected therewith, with leave to sit during vacation.

The resolution may lie on the table for the present, and I give notice that I shall ask the indulgence of the Senate on next Monday to take it up and submit some remarks upon it.

The VICE-PRESIDENT. Does the Senator desire the resolution to be printed? Mr. MORTON. Yes, sir. The VICE-PRESIDENT. The resolution will be ordered to be printed, and lie on the table.

"Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress."

The appointment of these electors is thus placed absolutely and wholly with the Legislatures of the several States. They may be chosen by the Legislature, or the Legislature may provide that they shall be elected by the people of the State at large, or in districts as are members of Congress, which was the case formerly in many States; and it is no doubt competent for the Legislature to authorize the Governor, or the Supreme Court of the State, or any other agent of its will, to appoint these electors.

This power is conferred upon the Legislatures of the States by the Constitution of the United States, and cannot be taken from them or modified by their State constitutions any more than can their power to elect Senators of the United States. Whatever provisions may be made by statute, or by the State constitution, to choose electors by the people, there is no doubt of the right of the Legislature to resume the power at any time, for it can neither be taken away nor abdicated. In the early presidential elections the electors were chosen in many States by the Legislatures, and as late as 1824, in Delaware, Georgia, South Carolina, Louisiana, New York, and Vermont, they were chosen by the Legislatures, and South Carolina continued this practice up to

the war of the rebellion.

ing the electors is placed entirely beyond the power and jurisdiction of the national Government, and whatever disorders, irregularities, or failures in the appointment of electors may occur in any of the States, they are entirely without remedy or redress upon the part of the Government of the United States. All of the States now by the enactments of their Legislatures provide that the electors shall be chosen at large by the qualified voters of the State; but in no State, I believe, is there any legal provision made for the settlement of any

It will thus be seen that the mode of choos

orate debate took place in the House, in which a variety of opinions was expressed, but the better one seemed to be that the two Houses had no jurisdiction over the matter of counting the electoral votes either jointly or separately, and that the decision of the President of the Senate was final. So the matter was dropped. The Senate, upon reassembling in its Chamber, began the consideration of the subject, and after a long debate, with about the same result, it was dropped.

It seemed to be a necessary conclusion from these discussions that it was a casus omissus in the Constitution, and that the power of the President of the Senate to count the vote resulted, ex necessitate rei, from the failure of the Constitution to give to the two Houses any jurisdiction over it; but they were to be present at the counting as solemn witnesses of its accuracy and result. In that case the vote of Wisconsin was not important, because Messrs. Buchanan and Breckinridge were elected whether it was received or not; but if it had so happened that the election depended upon the vote of Wisconsin; that by counting it Frémont and Dayton would have been elected, or by rejecting it Buchanan and Breckinridge would have been elected, the question being left to the decision of the President of the Senate, Mr. Mason, of Virginia, he would have had the result of the election in his own hands. His decision either way might have resulted in civil war or revolution. Had he rejected the vote and elected Mr. Buchanan he would undoubtedly have been supported by his party and sustained by the letter of the Constitution; while, on the other hand, it would have been insisted that that provision of the Constitution was merely directory; that the vote of Wisconsin was not forfeited because it was cast one day after the time fixed by law, as the failure to vote at the proper time was occasioned by a snow-storm which prevented the assembling of the electors, and that Mr. Buchanan was therefore fraudulently elected; and the danger of a revolution would have been im

minent.

But suppose that when the objection was made to counting the vote of Wisconsin it had been entertained, and the decision of it referred to the concurrent vote of the two Houses taken separately, as now provided by the twenty-second joint rule? The Senate was then strongly Democratic and the House Republican. The Senate would in all probability have decided that the vote of Wisconsin should be rejected, and the House that it should be received. Their failure to agree would have resulted in the contingency I have supposed, in throwing the election of the President into the House of Representatives, in which Maryland, carried by Mr. Fillmore and which had been carried by the Know-Nothings in the election of members of Congress in 1854, would under the twenty-second joint rule have held the balance of power, and Mr. Fillmore, with

but one vote in the House to begin with, would very probably have been elected President.

Upon the hypothesis that the President of the Senate has the power to open and count the electoral votes, and that the two Houses are to be present merely as witnesses, and have no jurisdiction over the subject, either jointly or separately, everybody must perceive that it is a vast and dangerous power to repose in the hands of one man, especially when he may be ardently devoted to the fortunes of a great party, or when he may be personally interested sitting as a judge in his own case; for it has happened six times in the history of our Government that the President of the Senate has opened and counted the votes for himself, either for President or Vice-President. In 1797 John Adams, as Vice-President, opened the votes for himself and declared himself elected President. In 1801 Jefferson, as President of the Senate, opened and counted the votes for himself when he and Burr were the candidates for President. In 1821 Vice-President Tompkins, as President of the Senate, opened and counted the votes for himself, he being a candidate for reelection; and in 1837 Mr. Van Buren, then Vice-President, counted the votes for himself as President, and declared himself elected. In 1841 Richard M. Johnson, then Vice-President, opened and counted the votes for his reëlection as against Mr. Tyler, the opposing candidate; and in 1861 Mr. Breckinridge, then President of the Senate, opened and counted the votes for himself as a candidate for the Presidency.

Clearly the framers of the Constitution did not contemplate that the President of the Senate, in opening and counting the vote for President and Vice-President, should exercise any discretionary or judicial powers in determining between the votes of two sets of electors, or upon the sufficiency or validity of the record of the votes of the electors in any State; but that he should perform a merely ministerial act, of which the two Houses were to be witnesses and to make record. But the exercise of these high powers may devolve upon him ex necessitate rei, and whatever decision he may make between the two sets of electors, or upon the sufficiency and validity of the record of the votes-whether on the evidence of the right of the electors to cast votes, or whether they have been cast in the manner prescribed by the Constitution-his decision is final.

There are said to be two sets of electoral votes at this time in the hands of the VicePresident from the State of Arkansas, and two from the State of Louisiana; and whichever of these sets he decides is the proper electoral vote and brings forward, opens, and causes to be counted, must be so received; and from his action there is no appeal. The action of the two Houses in 1821 in regard to counting the vote of Missouri is no exception to this view of the power of the President of the Senate, for the question in that case was not as to any irregularity in regard to the electoral