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I think, reported to the Senate a constitutional amendment covering this case; but that of course does not apply to the present year. I am not the manager of the bill and do not propose to make any motion, except merely to suggest that we should reconsider the third reading and adopt some amendment providing for that omission in the present bill.

The PRESIDENT pro tempore. The bill is now open to amendment.

Mr. FRELINGHUYSEN. I would suggest to the Senator from Ohio that the bill be passed over for the present, and taken up after I can prepare the amendment.

Mr. THURMAN. I have no objection to that.

Mr. ANTHONY. I hope it will be with the general understanding that when the amendment is prepared the bill shall be taken up. Mr. THURMAN. I hope so.

The PRESIDENT pro tempore. Is there objection? The Chair hears none. Mr. EDMUNDS. That general understandmust take its chances with everything

The PRESIDENT pro tempore. The Senator from Rhode Island asked unanimous consent that it be taken up as soon as the amendment was prepared. The Chair heard no objection to that suggestion, and so stated.

Mr. EDMUNDS. I object, not that I shall make the slightest opposition, but in the present stage of the session we cannot foresee what at any particular moment may be the pending urgency.

Mr. ANTHONY. Then let the bill be laid aside informally, subject to be called up at any time.

Mr. MORTON. Is that the understanding of the Senate?

Mr. THURMAN. I have not the least objection to that course; but I suggested that we take the vote on the bill in deference to the opinion of the Senator from Indiana [Mr. MORTON], the chairman of the committee, who reported the bill, and who thought it had better go to the House and let the House amend it, and then the Senate could agree or disagreeing to their amendment, and in case of disagree- else. ment have a committee of conference; but for Mr. HOWE. It is to be taken up at some my own part I am perfectly indifferent which time when nothing else is pending, I supcourse may be taken. I think something pose. ought to be done, and as time is so short, I am in favor of that course which is most likely to effect the passage of an act on this subject. I confess that I am a little apprehensive of the result if we merely pass this bill as it is, with the objection which prevails on all this side of the Chamber, and which is very weighty with me, which I had great difficulty in overcoming so far as to vote for the bill, that there is no provision made in case of two returns from a State, which was the fatal point in the bill, and which was the cause of nearly every vote on this side of the Chamber being cast against it. Should the bill go in that way to the House of Representatives, I am very apprehensive that nothing will be done, and I would be perfectly willing that the vote should be taken on any one of the propositions that have been made to amend the bill to supply the deficiency of the bill in that respect. I will go further and say that if I can get nothing else I will vote for the amendment, if I understand it correctly, proposed by the Senator from New Jersey. There may be some doubt as to whether that is strictly within the spirit of the Constitution; but I am inclined to think that if we have the power to legislate upon the subject at all we have the power to adopt that amendment, and that is the better impression, although I confess that I am not as clear on it as I should like to be. But rather than let matters stand as they are I would vote for that amendment in the hope that the House might propose even something better, or if they did not, that it might result in a conference committee that would agree upon something better. If the Senator from New Jersey sees fit to move to reconsider the third reading of the bill I shall make no objection. Mr. FRELINGHUYSEN. I will test the view of the Senate by making that motion. The PRESIDENT pro tempore. The Senator from New Jersey moves to reconsider the vote by which the bill was ordered to be engrossed for a third reading.

The motion was agreed to.

The PRESIDENT pro tempore. Is there objection to the suggestion now made by the Senator from Rhode Island? The Chair hears none.

Mr. MORTON. If that is the understanding, then I ask the Senate to take up the resolution I offered several days ago in regard to printing the President's message and accompanying documents and which I gave notice yesterday I should ask the Senate to consider this morning. I move now to proceed to the consideration of that resolution.

The PRESIDENT pro tempore. There is morning business. The Senator from Iowa is on the floor.

Mr. WRIGHT. I rise to call attention to a little bill before the Senator proceeds with his resolution.

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Mr. MORTON. If the resolution is taken I will give way. Mr. EDMUNDS. All of us have a little bill apiece, and it will take all the time. Mr. MORTON. My friend from Vermont suggests that we all have a little bill. I have one.

Mr. EDMUNDS. I have one about those poor sailors in that monitor that are going to have their bones blown in the midst of the sea that I want to have the Senate act upon speedily.

Mr. MORTON.

I hope my friend from

664 PROPOSED LEGISLATION AS TO THE MODE OF COUNTING THE ELECTORAL VOTES.

Iowa will allow me to have the resolution

taken up.

Mr. ŴRIGHT. I have no wish to yield, but if there is no objection to taking it up I will yield for that purpose.

Mr. THURMAN. I wish to say to the Senator from Indiana that I feel bound to oppose taking this matter up. It will be debated. Mr. MORTON. I propose to submit it to a vote of the Senate.

APPENDIX.

SPEECH OF HONORABLE T. F. BAYARD,

IN UNITED STATES SENATE,

February 25, 1875.

OF DELAWARE.

Mr. BAYARD said: Mr. PRESIDENT: From the foundation of the Government up to the year 1865 the American people had managed to conduct the count of the electoral votes for President and VicePresident of the United States without any other aid than the constitutional provision and a single statute that had been passed during the first presidential term of George Washington.* In 1792, on the 1st of March, an act was passed "relative to the election of a President and Vice-President of the United States, and declaring the officer who shall act as President in case of vacancies in the office both of President and Vice-President." One thing is observable in this act of Congress, as in all acts of that period of our country's history, that great care was taken to assume no power not distinctly granted or necessarily implied by the terms of the Federal Constitution. Therefore in this law (which is to be found on pages 305, 306, 307, and 308 of the last compilation of the Constitution, Rules, and Manual provided by the Senate) there will be found no attempt to transcend the grant of power of the Constitution as to the reception *The Congress of the Confederation, on the 28th of September, 1757, directed that the Constitution, with certain resolutions adopted by the Convention on the 17th of September, 1787, be transmitted to the Legislatures of the several States, to be submitted to conventions of the people thereof. One of those resolutions is in the following words:

Resolved, That it is the opinion of this Convention, that as soon as the conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a day on which electors should be appointed by the States which shall have ratified the same, and a day on which the electors should assemble to vote for the President, and the time and place for commencing proceedings under this Constitution. That, after such publication, the electors should be appointed, and the Senators and Representatives elected. That the electors should meet on the day fixed for the election of the President, and should transmit their votes, certified, the Secretary of the United States in Congress assembled; that the Senators and Representatives should convene at the time and place assigned; that the Senators should appoint a president of the Senate for the sole purpose of receiving, opening, and counting, the votes for President; and that after he shall be chosen, the Congress, together with the President, should, without delay, proceed to execute this Constitution.

signed, sealed, and directed, as the Constitution requires, to

and count of the electoral votes. It provided the method of certification of the results; and it will be observed that not only was the manner of the election of the electoral college confided to each State and to the discretion of the Legislature of each State, but that the certitication, the authentication of the electoral vote, was confided wholly and unreservedly by the Constitution to the States. And nowhere is power given to either House of Congress to pass upon the election, either the manner or the fact, of electors for President and VicePresident; and if the Congress of the United States, either one or both Houses, shall assume, under the guise or pretext of telling or counting a vote, to decide the fact of the election of electors who are to form the college by whom the President and Vice-President are to be chosen, then they will have taken upon themselves an authority for which I, for one, can find no warrant in this charter of limited powers. This was the belief, and the action of the country has been in accordance with this belief from its foundation until February 6, 1865; and then, for the first time, did the Congress of the United States assume the authority by the vote of either House to put a veto upon the count of a State's vote. That such a rule was without constitutional warrant, I cannot doubt; and I do not think I am going too far when I say that the unconstitutionality of that rule is generally admitted.

I find in the records of the debates of Congress in February, 1865, nothing to instruct me or any other student of this country's history as to the reasons upon which Congress undertook to frame the twenty-second joint rule. There were no debates that I can discover on the subject. I presume the matter was perhaps, as now, arranged by party caucus and silently passed, and reason was neither given nor sought in a Congress composed almost entirely of one political party. Nor do I mean to say that the rule in 1865 was founded solely upon party considerations. On the contrary, there was an opposition so feeble as scarcely to be called one at that time, and from that time to this the rule has been deemed.

government so thoroughly one of consent, and which relied for its real strength and true power upon the voluntary action of its citizens, and to which coercion in all forms was so necessarily fatal, its founders could not have imagined that in the high council of an electoral college and the counting of their votes for the Chief Magistracy of the country the common passions that attend contested elections for minor offices would have had weight or force. I do not know that they based their action in the articles of the Constitution which relate to this subject upon such an idea; but it is certain they made no provision for facts which we have seen arising unfortunately in our own day, and which this bill contemplates in the future and seeks to provide for. The clause of the Constitution under which the count of the electoral vote is to be made is in the twelfth article of the amendments. It prescribes that

good enough to be let alone. For ten years | upon the active cooperation of all its parts, a the rule has continued, and two presidential elections have proceeded under it, indeed three, for the votes of the election for Mr. Lincoln's second term and of the present President's two terms were counted under it. Now for some reason it is sought to be changed. The mind of the honorable Senator who has had this matter in charge has undergone some fluctuations on this subject. At first he introduced a resolution for the absolute repeal of the twentysecond joint rule. After the lapse of a week he came into the Senate, and, calling up the subject, moved to amend his own proposition by simply changing that part of the rule which gave to either House the right to reject the electoral votes of a State into a requirement that both Houses must join in the rejection or the vote should be counted. Then we were dealing with the rules of the two Houses. Upon still further reflection the Senator, by authority of his committee, has brought forward a new proposition in the form of a bill which is to accomplish its object by the act of the two Houses of Congress receiving the the President's assent, and can then only be repealed by their joint action.

Now, sir, it seems to me that the proper method of dealing with this subject should be by joint rule and not by a statute. If any action be necessary, as my friend from Connecticut [Mr. EATON] reminds me, certainly of the two modes a joint rule of both Houses is ferable. It has been the one heretofore pursued, and I know of no reason why the form of a statute should now be preferred to what heretofore has been relied upon.

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 their ballots the person voted for as President, and the same State with themselves; they shall name in in distinct ballots the person voted for as VicePresident, 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

This is the power of the electors in the repre-lists of the number of votes for eachspective States where they are to make their

And here, Mr. President, I cannot avoid saying that this subject ought to be entirely separate from the taint of party politics. The passion of party can but obscure and render it dangerous. No man, no party, can be safe in legislating upon the basis of party passion. I do not say that this measure is of that character, but I will say that I am surprised that it should be regarded as essential to be passed at the present session when, as we all know, an opportunity is about to be afforded within one week from the present time of having this important subject passed upon by two Houses of Congress differing in their political sentiments, and therefore more fit to agree upon a measure which shall be of party advantage to neither.

Sir, this subject should be raised high above and beyond party; and if it be not, then evil will come from it, and perhaps it may return to plague the inventors and not those for whose defeat it was designed. The subject is one of great difficulty. Contingencies have arisen, may again arise, nay their presence is contemplated by this very bill and provision is sought to be made for them, for which the Constitution of the United States has provided no apparent remedy. I can well imagine that in a government depending so entirely

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 presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

There is nothing in this language that authorizes either House of Congress, or both Houses of Congress, to interfere with the decision which has been made by the electors themselves and certified by them and sent to the President of the Senate. There is no pretext that for any cause whatever Congress has any power, or all the other departments of the Government have any power, to refuse to receive and count the result of the action of the voters in the States in that election as certified by the electors whom they have chosen. That questions may arise whether that choice was made, that questions may arise whether that election was properly held, or whether it was a free and fair election, is undoubtedly true; but there is no machinery provided for contest, and no contest seems to have been anticipated on this subject. It is casus omissus, intentionally or otherwise, upon the part of those who framed this Government, and we must take it as it is, and if there be necessity for its amendment, for its supplement, that must be the action of the American people in accordance with the Constitution itself; and I am free to say that some amendment on this subject should be had. But, because there is no

machinery provided, no tribunal appointed by which this most important issue and contest may be decided as to who was chosen an elector for President and Vice-President in any State, that certainly does not justify Congress in assuming either by direct formal claim of the power in the enactment of a law, or by adopting rules which shall give them such power as will be equivalent to the control of the subject that is to say, a power of veto, which, under the present twenty-second joint rule, is given to either House, or under the present bill is to be assumed by both Houses acting together. I have been able to find, and I believe there exists, no such power either for one House or for both.

But there was provided, in case of the failure from any cause to ascertain the persons elected from a canvass of the electoral votes as so certified and transmitted to the President of the Senate, a provision that "immediately "-to use the language of the Constitution-"the House of Representatives shall choose immediately, by ballot, the President." When, therefore, you come to construe a constitution which in the same connection, in the same connected phrases, provided for the subject of counting the votes and election of a President, you are bound to construe it so that a power that is not given shall not be assumed, and if for any cause there be default in the election in one mode pointed out, then you are compelled to resort to the other mode, which is plainly here expressed as supplementary in case of failure of the first.

I will illustrate that by a reference to the second section of this bill, and I am sorry the honorable Senator from Ohio [Mr. THURMAN] is not present, because he has intimated to us his approval of this section, which I cannot assent to, which 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 VicePresident 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 the said State shall be counted which the two Houses, acting separately, shall decide to be the true and valid return."

And this section you read in connection with section 1, which provides that unless the two Houses shall concur in an affirmative vote of rejection, all the electoral votes shall be counted. Now, sir, what is the result of this? Let us suppose that one hundred and fifty electoral votes come from certain States alleged to be regular, but more than one return is received from this same region of country, and one hundred and fifty more electoral votes come up in the same form, the same to the outward eye, certified in the same manner, covered by the same character of envelope and seal, and they are presented. Under this section and

the first section all of these votes must be received and counted unless the two Houses shall join in an affirmative vote to reject them. What is the result of that? Say, for illustration, that an electoral college consists of three hundred votes; one hundred and fifty votes additional are presented in the manner I have described. They must be accepted under this bill unless the united affirmative vote of the two Houses rejects them. Supposing that affirmative vote to be lacking in one House, they must be counted, and you have then an electoral college of four hundred and fifty votes instead of three hundred. What does the Constitution say? The man who has received a majority of the whole number of electors appointed, that is to say, the man who has received one hundred and fifty votes out of the three hundred recognized by our present count of electoral votes as the extent of the electoral college, would be entitled to the office; but you have increased that three hundred to four hundred and fifty by admitting one hundred and fifty other double returns from other districts of country, and then two hundred and twenty-six votes will be required instead of one hundred and fifty-one, so that the provision of the Constitution which entitled the man who has received but a bare majority of the whole number of electors appointed is defeated by this section, that swells the electoral college to a vote that compels him to receive two hundred and twenty-six instead of one hundred and fifty-one.

Mr. President, there may be a flaw in this reasoning; it may be upon examination not only open to criticism but it may be entirely destroyed; but from the examination which the pressing duties in this body have thrown upon me of late have permitted me to give this subject, it does seem to me that by this bill you have virtually required a superior number of votes to elect a man which the Constitution did not contemplate, but which allowed a certain majority to authorize him to take his seat. Perhaps, as I say, upon examination my proposition may not be found to hold water, and yet at the same time I submit this subject so important to the criticism of other gentlemen in this body. If the demonstration can be made differently from what I propose to make it, I presume we shall hear it, because I cannot suppose that any member of the body would vote for a measure that does so materially change the rights of a candidate under the Constitution of the United States to take his seat as Chief Magistrate of the country when the provisions of that instrument have been complied with. If the effect of this bill is to require a larger number of votes for his majority than than he would have if the electoral college was lawfully filled and only truly filled, then it seems to me this bill would be the most flagrant violation of the Constitution of the United States.

But, Mr. President, let us look again at the

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