Somebody endeavored to say that the State of Arkansas had no seal, but he was hooted down, as I remember, or at least was not allowed to say anything in the way of debate. This bill allows a moderate and reasonable debate, and in that respect it is an improvement on the joint rule. The only material changes are, first, that it allows a short and reasonable debate, and next it changes the rule as to the effect of a disagreement of the two Houses. Therefore so far as the gist of the matter is | State. We had no opportunity to explain. concerned the first, third, and fourth sections of the bill are only a modification of the rule, and we have been spending this whole day in doing what might be done in that way. But as the bill has been presented and the Senator from Indiana with a good deal of force said Senators objected to any form of joint rule, and my colleague I am told concurred in that opinion that it was better to give this change of the rule the form of a law; if in order to satisfy some of our democratic friends it was deemed advisable to put this in the form of a law, it cannot hurt it by that form, it cannot make it any worse and does not make it any better. The signature of the President is not necessary at all to the modification of our rules, but his signature will not hurt. I believe we refused to send the fourteenth amendment to President Johnson because he had nothing to do with it, but we sent the thirteenth amendment to President Lincoln, and I believe we sent the fifteenth amendment to President Grant. I am not certain about that, and it is not material. The only new matter introduced in this bill is in the second section, which provides for the case of a contested election where there are two sets of electors claiming to be electors from a given State. This provides for a case that is not provided for by the joint rule, and it is a case that it is well enough to provide for and I see no objection on that point. It provides that where there are two returns found in their character from a State or from two bodies to be electors, if the two Houses cannot agree which is the proper legitimate return, for that reason the vote shall not be counted. That is all there is of it. I do not think there is any very great evil to occur from the passage of this bill, excepting that it provides by bill against a contingency, a trouble arising in the mere execution of a ministerial act if the two Houses concur. I regard it as vitally important, because it is utterly impossible in the nature of things to decide a contest which may arise in the count of electoral votes under the present rule. I shall vote for the bill, not that it is in the best form, because I would prefer some modification of the joint rule, but it is in substance an improvement of the joint rule and in two important particulars it is a vital improvement. That is, it prevents either House by its own arbitrary dictum from excluding the vote of a State from being counted, and next it allows a reasonable debate. We all remember the difficulty about Arkansas growing out of the fact that not one word could be said. The objection was made and presented to us, and there was not a single word of debate allowed, under the joint rule, and every Senator went up to the Clerk's desk to pass upon the question whether or not the seal of the secretary of state was attached to the return from Arkansas or the seal of the Mr. FRELINGHUYSEN. Do I understand the Senator from Ohio to say that this bill will have the force of a law without the signature of the President? Mr. SHERMAN. No, sir; I say it could have the force of a joint rule without the sig nature of the President, and as a joint rule it would be just as effective. Mr. FRELINGHUYSEN. But not in the shape it is now. Mr. SHERMAN. No. The President of the United States will probably not veto it, and the only danger my friend seeks to guard against is that possibly the President will veto it. Mr. FRELINGHUYSEN. I understood the Senator to say that it would have force without being submitted to the President for his signature. That certainly cannot be. Mr. SHERMAN. Not in the form of a bill. Mr. FRELINGHUYSEN. The true answer to the suggestion which was made by the Senstor from California, and repeated by the Senstor from New Jersey, my colleague, is that the Constitution provides that Congress may by proper legislation carry out and execute the various provisions of the Constitution. This is doing that. Mr. SHERMAN. This provision of the Constitution is to be executed by two bodies of men acting in a ministerial capacity witnessing the counting of the vote, and we can prescribe the rules and mode and manner of doing that business just as we can the mode of coming to an agreement about disagreeing votes on amendments. Mr. HAGER. I should like to ask one question, and that is whether when we get through with this bill it will be considered a rule or an enactment without the approbation of the President? Ordinarily legislative bodies control their own rules, but in this case we put it beyond our control. Mr. SHERMAN. Not at all. Mr. HAGER. Certainly; unless the President approves the bill we may pass to repeal this. Mr. SHERMAN. Not at all. I have no doubt the two Houses can in their own way, in their own manner, on the very day they meet in convention, pass a joint rule prescribing the mode and manner of doing that ministerial duty. Mr. CONKLING. And thus repeal a law? amounts to a modification of the joint rule, just as the two Houses of Congress by a vote of two-thirds can submit a constitutional amendment to the people of the United States whether the President be willing or unwilling. Mr. CONKLING. But does my honorable friend mean that if we pass a bill in the form of a statute, which becomes a statute by the executive signature and takes its place in the book, we can supersede or repeal that statute in any way except by passing another statute? Mr. SHERMAN. I do say that in regard to this ministerial duty to be performed by the two Houses that the two Houses at the next Congress can pass a modification of the rule which will abolish and repeal this statute. Mr. HAGER. Without the President's approval? Mr. SHERMAN. Yes, sir. Mr. CONKLING. Then I undertake to say as a lawyer that that is a cognovit and admission, clear and distinct, that there is no constitutional power to pass this bill. If there is constitutional power to pass this bill, it becomes a statute, and no joint rule, no concurrent resolution can strike it down. The Constitution says that, and such an attempt would be in the very teeth of it. Mr. SHERMAN. I do not think there is any ground for that declaration whatever. The Constitution of the United States declares that the two Houses may meet together in joint convention and count the votes. Mr. EDMUNDS. It does not say that. Mr. SHERMAN. It does practically, and we have a right to prescribe by our joint rules our own actions. We may put this joint rule in the form of an act, and yet the two Houses in the execution of that ministerial duty may adopt any other rule they may see proper. Sir, if we put our joint rule, the whole of it, in the form of law, the Constitution gives to each House the power to make rules for its own government and the power to make joint rules for the government of the two Houses. That is a constitutional power, and this Forty-third Congress cannot deprive the next Congress of the power of making rules for the government of the two Houses or for the government of either House. There the constitutional privilege overrides all your laws. Sir, the Senate of the United States can make any rule it pleases that affects its mode of proceeding, and no law can affect it, and the next Senate may change it. So with the House of Representatives. The right to make the rules of each legislative body is inherent in every parliamentary body, and is expressly guaranteed to it by the Constitution of the United States; and the right to make joint rules is equally operative. Mr. EDMUNDS. Where does the Senator find that power in the Constitution? Mr. SHERMAN. The Senator can look at the Constitution and find that each House may prescribe its own rules. Mr. EDMUNDS. That I see; but the Senator adds that they have the right to make joint rules. Mr. SHERMAN. Undoubtedly, the one includes the other. The joint rules of the two Houses are nothing but the concurrent rules of the Senate and House. Mr. EDMUNDS. What does the Senator say to this clause of the ConstitutionMr. SHERMAN. I hope my friend will not catechise me now. Mr. EDMUNDS. Certainly not. I was merely asking a question for information. Mr. SHERMAN. How is it that we pass a bill? Do we send a joint rule as to our mode of passing a bill to the President of the United States? Not at all. Where does our power exist to make a joint rule? I ask my honorable friend, and he may answer me after a while. Is that given by the Constitution? Mr. EDMUNDS. an answer now? I Does the Senator wish Mr. SHERMAN. No; after a while. Well, will ask the Senator to answer now. Mr. EDMUNDS. do not wish to interrupt the Senator now, but if the honorable Senator will state his question I will stand the catechism. Mr. SHERMAN. I ask where he finds the power of both Houses to make joint rules for their government? Mr. EDMUNDS. I was asking the Senator that very question. When he answers my question I will answer his. Mr. SHERMAN. That is as frank as I expected the honorable Senator to be. We do make these joint rules. If we make them without any authority in the Constitution, are they of any binding force upon us? Mr. EDMUNDS. Will the Senator pardon me if I ask him a question? Mr. SHERMAN. Certainly. Mr. EDMUNDS. I asked him in good faith to tell me whereabouts in the Constitution he found the power to enact a joint rule, and he turns around and asks me the same question, and when I ask him to answer me he says I am evading. I do not think that is fair. Mr. SHERMAN. Well, I will answer the question of the Senator. Mr. EDMUNDS. I merely wish light about it. Mr. SHERMAN. The Senator has the Constitution before him. If he will turn to the provision that authorizes each House to make rules for its own government, I will answer him. Mr. EDMUNDS. I will do that. It is in the second paragraph of the fifth section of the first article: Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. Mr. SHERMAN. It is under that clause that joint rules are made, because the joint rules are but concurring votes of the two Houses. We have joint rules that have been in existence from the very foundation of the Government. Where is the express provision of the Constitution which authorizes the two Houses to make joint rules? It necessarily flows out of the right of each House to make rules for its own government; and rules for the government of the two Houses may be made by joint vote. There the power rests. The two Houses acting together may go on a certain day named in the Constitution or law to count the vote, and they can make a joint rule to govern their proceeding. That has already been done. That is the constitutional right of the two Houses, and no law can impair it unless it can repeal the Constitution of the United States which gives to each House and the two Houses power to make these rules. This law cannot prevent this exercise of a constitutional power, and there is the answer to my honorable friend from New York. Mr. EDMUNDS. Are we, then, exercising a constitutional power in passing a law which repeals the constitutional privileges of each House under the clause that has been read? Mr. SHERMAN. I do not know that it makes any difference whether we put our joint rules in the form of a law or in the form of rules. It does not weaken their force in the least. They are the assent of the two Houses. As I said before, if I had been consulted or if I had undertaken to frame this matter myself, I would have made it simply an amendment to the joint rules, and so suggested to the honorable Senator from Indiana; but he said that there were other Senators Mr. MORTON. The Senator from Vermont among others suggested that it had better be in the form of a law. Mr. EDMUNDS. Certainly; and I stand by that now. Mr. MORTON. There being two opinions, I rather thought myself it had better be in the form of a law, and accordingly took that course. Mr. SHERMAN. My honorable colleague and the honorable Senator from Vermont concurred that this had better be in the form of a law. Why? Is it anything but a joint rule? Is it anything but an agreement between the two Honses as to how they shall perform this duty? Their advice was followed, and if the Senator from Indiana has got into trouble, it has been by following their advice. I say that the next Senate and the next House can, if they choose, modify and change this law, if you call it so, though it is nothing but a joint rule. It has not the binding force of a law except as it is the concurrent sense of the two Houses, and may be put in the form of a law. The President's signing it does not weaken it, though it may be a work of supererogation. Mr. EDMUNDS. May I ask a question? I do not wish to take the Senator's time or ask questions if it is disagreeable to him. Mr. SHERMAN. Not at all. Mr. EDMUNDS. I wish to ask the Senator in view of what he is saying what construction he puts on the third clause of the seventh section of the first article: Every order, resolution, or vote to which the concurrence of the Senate and House of Representstives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved, etc. Mr. SHERMAN. The answer to that has been made a hundred times, that where an act is to be performed by the two bodies, or is to regulate proceedings of the two bodies in the making of laws, or in any duty whatever, it does not require the assent of the President. It is only when you wish to give something more than a mere concurring vote of the two Houses the force of law to bind the people of the United States outside of Congress that the forms of law are required; but to govern the proceedings of the two Houses, acting together or separately, joint rules are amply sufficient. The PRESIDING OFFICER (Mr. CARPEN TER). The question is, Shall the bill pass? on which the yeas and nays are ordered. The Chief Clerk proceeded to call the roll. Mr. GORDON (when his name was called). On this question I am paired with the Senator from Missouri [Mr. SCHURZ]. If he were here he would vote"yea," and I should vote "nay." Mr. HAMILTON, of Maryland (when his name was called). I am paired with the Senator from Pennsylvania [Mr. CAMERON]. On this question I am paired with the Senator Mr. NORWOOD (when his name was called). from Maine [Mr. MORRILL]. I should vote " and he would vote "yea" if present. "nay, The roll-call having been concluded, resulted -yeas 28, nays 20; as follows: YEAS-Messrs. Allison, Boreman, Boutwell, Chandler, Clayton, Conover, Cragin, Dorsey, Ferry of Michigan, Flanagan, Frelinghuysen, Hamilton of Texas, Harvey, Hitchcock, Logan, Mitchell, Mor rill of Vermont, Morton, Oglesby, Patterson, Pease, West, and Wright-28. Ramsey, Sargent, Sherman, Spencer, Washburn, NAYS-Messrs. Bayard, Bogy, Carpenter, Conkling, Cooper, Davis, Dennis, Eaton, Edmunds, Goldthwaite, Hager, Jones, Kelly, Merrimon, Ransom, Saulsbury, Sprague, Stewart, Stockton, and Windom-20. ABSENT-Messrs. Alcorn, Anthony, Brownlow, Cameron, Fenton, Ferry of Connectient, Gilbert, Gordon, Hamilton of Maryland, Hamlin, Howe, Ingalls, Johnston, Lewis, McCreery, Morrill Maine, Norwood, Pratt, Robertson, Schurz, Scott, Stevenson, Thurman, Tipton, and Wadleigh-25. So the bill was passed. PROPOSED LEGISLATION AS TO THE MODE OF COUNTING THE ELECTORAL VOTES. 1876. IN SENATE. Monday, March 13, 1876. ("Congressional Record," pp. 1662-1675.) Mr. MORTON. If there be no further morning business, I move to proceed to the consideration of Senate bill No. 1. The motion was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the bill (S. No. 1) to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon. its decision; and no electoral vote or votes from any State, to the counting of which objections have been made, shall be rejected except by the affirmative vote of the two Houses. When the two Houses have voted, they shall immediately reassemble, and the presiding officer shall then announce the decision of the question submitted. And any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner. The second section provides that if more than one return shall be received by the President of the Senate from a State, purporting to be the certificates of electoral votes given at the last preceding election for President and Vice-President in such State, all such returns shall be opened by him in the presence of the two Houses when assembled to count the votes; and that return from such State shall be counted which the two Houses, acting separately, shall decide to be the true and valid return. By the third section it is provided that when the two Houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes from any State, or for the decision of any other question pertinent thereto, each Senator and Representative may speak to such objection or question ten minutes, and not oftener than once; but after such debate has lasted two hours, it shall be in the power of a majority of each House to direct that the main question shall be put without further debate. The first section provides that the two Houses of Congress shall assemble in the Hall of the House of Representatives, at the hour of one o'clock, on the last Wednesday in January next succeeding the meeting of the electors of President and Vice-President of the United States, and the President of the Senate shall be their presiding officer; one teller shall be appointed on the part of the Senate, and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, the certificates of the electoral votes; and the tellers, having read the same in the presence and hearing of the two Houses then assembled, shall make a list of the votes as they shall appear from the certificates; and the votes having been counted, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, and the names of the persons, if any, elected, which announcement shall be Section 4 declares that at such joint meeting deemed a sufficient declaration of the persons of the two Houses, seats shall be provided as elected President and Vice-President of the follows: For the President of the Senate, the United States, and, together with a list of the Speaker's chair; for the Speaker, immediately votes, be entered on the Journals of the two upon his left; the Senators in the body of the Houses. If, upon the reading of any certificate Hall upon the right of the presiding officer; by the tellers, any question shall arise in regard for the Representatives, in the body of the to counting the votes therein certified, the same Hall not provided for the Senators; for the having been stated by the presiding officer, the tellers, Secretary of the Senate, and Clerk of Senate shall thereupon withdraw, and the ques- the House of Representatives, at the Clerk's tion shall be submitted to the body for its de- desk; for the other officers of the two Houses, cision; and the Speaker of the House of Rep-in front of the Clerk's desk and upon each side resentatives shall, in like manner, submit the of the Speaker's platform. The joint meeting question to the House of Representatives for shall not be dissolved until the electoral votes are all counted and the result declared; and no | sentatives or persons holding an office of trust recess shall be taken unless a question shall have arisen in regard to counting any such votes, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess not beyond the next day, at the hour of ten o'clock in the forenoon. Mr. BAYARD. Mr. President, I wish to ask the Senator from Indiana, who has heretofore considered this subject with a good deal of care, whether this bill differs, and if so, in what respect, from the measure which passed the Senate at the last session? Mr. MORTON. There are some verbal alterations, but it is substantially the same bill. Mr. BAYARD. Nothing affecting the substance is changed? Mr. MORTON. Nothing affecting the substantial features of the bill which the Senate passed last year. Mr. BAYARD. Mr. President, I am very glad that, even at this stage of the session, this very important question has come up for the consideration of the Senate. The Senate may remember that many weeks ago I urged speedy action on the subject, and I suggested methods of action which I believed then, and still believe, were the best calculated to insure cooperative action between the two Houses of Congress upon this subject. The power of each House is the same over this subject, the same measure being committed by the Constitution to each; and therefore it was that I believed the present condition of party majority in each House was exceedingly favorable to the framing of such a permanent rule in the shape of law upon this subject as would be satisfactory to the American people. Although the Senate has not seen fit to adopt my suggestion, that this subject should be considered by the two Committees on Rules or the two Committees on Elections in the Houses respectively, and that in that way a measure could be made more probable of acceptance by each simply by being reported by each committee to its own House favorably, still I am most anxious to see something done in the proper direction upon this subject, and if this bill shall be a step in that way I am prepared to give it my support. I have felt long that which I apprehend the honorable Senator from Indiana has felt, some degree of embarrassment in regard to the measure of power committed to Congress over the counting, accepting, or rejecting of the electoral votes of the electors of the various States. The letter of the Constitution on this subject is very meagre. In the second article of the original Constitution it was provided that "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; and then proceeds to exclude Senators or Repre or profit, from the office of elector. Then follows in the original Constitution a provision for the meeting of the electors, which has been superseded and annulled by the twelfth amendment of the Constitution. Then follows & paragraph authorizing Congress in its discre tion to determine the time of choosing the electors and the day on which they shall give their votes, and declaring that that day shall be the same day throughout the United States. The twelfth article of amendments, superseding a portion of the third paragraph of the second article, provided that The electors shall meet in their respective States and vote by ballot for President and Vice-President, 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 of all persons voted for as Vice-President, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the pres ence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. This latter clause contains all the power that is delegated to the two Houses of Congress or to any other officer of the Government in respect to the counting of the electoral vote; and the present bill provides simply the legis lative machinery to accomplish this result. There has been argument heretofore before Congress, which I have concurred in, to the effect that the two Houses are mere witnesses to the counting of these votes. The only offcer named is the Presiding Officer of the Senate, into whose custody the certificates shall have been delivered in accordance with the mandate of the Constitution, by the electors or their agents, their messengers, and those certificates being in his hands, are to be opened by him and the votes are then to be counted; by whom, is simply a matter of inference, perhaps of necessary inference; but they are to be counted. The powers given to Congress are enumerated, and a just and wholesome construction will cause the expression of one power over a subject to exclude other powers not expressed. Power is given to each State to appoint through its Legislature, or in such manner as the Legislature may provide, a number of electors. Congress is given the power to determine the time of choosing them, and the day on which they shall cast their votes; and then the two Houses are made the witnesses of the opening of the certificates by the presiding officer; and this enumerates all the express powers; and the question for the Senate and for each member to determine, is how far this expression of powers excludes others not expressed. For the last three presidential elections, the vote for President and Vice-President has |