Vermont for what reason of course I cannot know-bringing to our attention the question not whether if we simply by silence allowed these rules to drift they would be for all purposes of convenience and for all purposes of technical regularity an authority, and, if you please, the rules of the Senate, but whether, if we saw fit to abstain from adopting them or to insist that they be changed as a condition to adopting them, that power resides in the Senate."

Mr. Bayard: "I submit as an amendment to the resolution a substitute, and ask that it be read."

The Chief Clerk: "It is moved to strike out all after the word 'that' in the first line of the resolution, and insert:

The Committee on Rules of the Senate and House of Representatives be, and they are hereby, instructed to examine and, after conference, to report what amendments, if any, should be made in the present joint rules of the two Houses; and also whether any, and what, legislation is expedient in regard to the matters considered in the present twenty-second joint rule."

Mr. Bayard: "As I understood the amendment of the Senator from Indiana, it is to adopt the joint rules of the two Houses, as they now stand, excepting the twenty-second."

Mr. Edmunds, of Vermont: "No, Mr. President; the precise proposition is not to adopt the joint rules of the two Houses as they now stand, but to adopt the joint rules of the last session. Then the Senator from Indiana moves to amend that resolution by an exception. Now the Senator from Delaware offers a substitute for the whole thing; and as the Chair states it is clear that in order we must perfect the original resolution before we vote on the substitute, so that the question is on the amendment of the Senator from Indiana."

The President pro tempore: "The question now is on the amendment proposed by the Senator from Indiana to except the twenty-second joint rule."

The amendment was agreed to.

The President pro tempore: "If no further amendment be offered to the text of the resolution, the question is on the amendment of the Senator from Delaware as a substitute for the resolution."

Mr. Bayard: "Gentlemen have differed on this floor in regard to the power of each House over the joint rules. A very ingenious and able presentation of the subject was made by the Senator from Ohio who sits near me (Mr. Thurman), claiming that the House of Representatives was a continuing body, and that there was needed no adoption at the incoming of each new Congress of either the separate or the joint rules governing the preceding House. Having heard him and considered his point, I entirely dissent from his view. I believe that the House of Representatives is not a continuing body, and that, indeed, it is not only separate but that each House has its op

erative legal existence and would be without any rules until it has adopted the parliamentary rules of the preceding House, as is usually done. The proposition has been made here that, this being a joint rule, made by two contracting parties, neither can at will retire from the rule. That is a very grave subject. Gentlemen on this floor have admitted such a view, and declared that it required a joint consent to the rescission of a rule as much as to its formation; but from that proposition I entirely dissent. I cannot believe that, either under the language of the Constitution or the very theory of checks and balances which the two Houses were designed to enforce one upon the other, the independence of either House can be taken from it, either by its own act or an act of the other House. Therefore I hold, as these rules are made, they are made during the good pleasure of each House, and that it is in the power of either the Senate or House of Representatives to retire from a joint rule at any time, and simply give notice of that fact to the other branch of Congress.

"But still the question has been made, and I think it would be advisable to have it settled by conference of the two Houses through their respective Committees on Rules. I cannot doubt that on examination they will come to the conclusion to adopt the whole code, if I may so call it, except this twenty-second joint rule, which is highly exceptionable. Therefore I do not think there is any necessity to apprehend embarrassment in treating this subject, because I have referred the matter to the two Houses. These points having been raised, I think they should be disposed of gravely and properly. I know no reason why there should not be an entire assent between the two branches on the subject; but, the question having been raised, I think it is a good opportunity to have the subject considered."

The President pro tempore: "The question is on the amendment of the Senator from Delaware (Mr. Bayard).'

The amendment was rejected, there being on a division-yeas, 22; nays, 26. The resolution was agreed to.

In the Senate, on December 8, 1875, Mr. Morton, of Indiana, offered a bill to provide for counting the electoral vote for President. The bill was substantially the same as the one offered at the previous session. (See ANNUAL CYCLOPÆDIA, 1875, p. 199.) The bill was referred to the Committee on Privileges and Elections, and reported back without amend. ment on March 3, 1876. (This subject was extensively discussed at previous sessions of Congress; see volume of AMERICAN CYCLOPÆDIA for 1875).

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 Jan

uary 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 deemed a sufficient declaration of the persons elected President and Vice-President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. If, upon the reading of any certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw, and the question shall be submitted to the body for its decision; and the Speaker of the House of Representatives shall, in like manner, submit the question to the House of Representatives for 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.

Section 4 declares that, at such joint meet

ing of the two Houses, seats shall be provided as follows: For the President of the Senate, the Speaker's chair; for the Speaker, immediately upon his left; the Senators in the body of the Hall upon the right of the presiding officer; for the Representatives, in the body of the Hall not provided for the Senators; for the tellers, Secretary of the Senate, and Clerk of the House of Representatives, at the Clerk's desk; for the other officers of the two Houses, in front of the Clerk's desk and upon each side of the Speaker's platform. The joint meeting shall not be dissolved until the electoral votes are all counted and the result declared; and no 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, of Delaware, said: "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 Congress;' and then proceeds to exclude Senators or Representatives or persons holding an office of trust 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 a paragraph authorizing Congress in its discretion 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 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; which lists they shall sign and cer tify, and transmit sealed to the seat of Government the Senate. The President of the Senate shall, in of the United States, directed to the President of the presence 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 legislative 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 officer 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."

Mr. Sherman, of Ohio, said: "The proviso of section 3, in my judgment, may possibly enable either House to defeat the object of the bill, the object of the bill as declared on the second page, in section 1, being to prevent either House from defeating the counting of the vote of any State, and to repeal the practice that had grown up under the twenty-second joint rule, by which either House might by its affirmative vote exclude any State for any cause whatever from having its electoral vote counted for President. That rule is sufficiently met by the language of the twentyninth, thirtieth, and thirty-first lines of the first section, as follows:

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.

But, under the proviso to section 3, I fear very much that either House might by indirection defeat the counting of a vote, because it provides for the separation of the two Houses and the consideration by each House of the question, and then provides:

That 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.

"This provision is not compulsory, and either House might prolong debate indefinitely, and thus prevent the question from being taken on the counting of the vote. It is true it is rather a violent supposition to suppose that either House of Congress would, by an abuse of its power, endanger the existence of the Government; but the object of this bill is to guard against all possibility of the abuse of power in that respect, and it is not an improbable supposition that in high party times, under great excitement, one House might thus neglect or refuse to direct the main question to be put. We know very well the influence of party excitement and party feeling, especially under strong provocation. Therefore it seems to me that this provision ought to be more peremptory in its character; it ought to require, after

two hours' debate, a peremptory putting of the main question. I suggest to the Senator from Indiana whether it would not be safer and more in harmony with the object of the bill to require after a reasonable time, say two hours, that the question should be put in each House and the convention again assembled. I therefore move an amendment to make the provision read: That after such debate has lasted two hours it shall be the duty of each House to put the main question without further debate.'"

Mr. Cooper, of Tennessee, said: "We do know that the difficulty which the second section seeks to provide against has arisen and may arise in the future; and the great question to be determined, it seems to me, is, where shall we lodge the power of deciding in such an emergency what has been the expressed will of the people of a State who may by scme abnormal condition in their political affairs send two returns to be counted purporting to be the vote of the electoral college of that State?

"The bill as reported by the committee proposes to vest this power in the two Houses of Congress, acting separately. It provides that they must concur before the President of the Senate or the proper officer shall be permitted to count either of the returns thus made. It seems to me that, if we would avoid a conflict where such a difficulty arises, it would be better to vest the choice of which is the proper return in somebody who will determine it and not leave it between the two Houses, which may be composed, as at present, of opposite politics, and which would be apt in that case to disagree, and thus exclude the vote of any State that might thus send two or more returns.

"The suggestion was first intimated by the Senator from Pennsylvania, and afterward by the Senator from Maryland, that, as the Constitution has vested the House of Representatives, who are directly from the people, with the power to choose a President in default of an election by the people, it gives us the proper idea of what would be the safest body with which to intrust this power of choice in the event of a difference of opinion, or of two returns coming from any one State. It strikes me to be more consistent with the theory of the Constitution of the United States that this power should be vested in that body, thus pointed out by the Constitution to choose a President where the people themselves shall fail to make a choice, than that it should be placed elsewhere. I therefore have prepared an amendment to the second section, which I offer for the consideration of the Senate, carrying out this view to vest in the House of Representatives, the representatives of the peo ple, the choice of the proper returns to be counted in the event that two or more returns are sent up. I move to strike out in the second section all after the word "which," in line seven, to the end of the section as follows:

The two Houses, acting separately, shall decide to be the true and valid return.

"And in lieu thereof insert

The House of Representatives, voting by States, in the manner provided by the Constitution when the election devolves upon the House, shall decide to be the true and valid return.

"So that, if amended, the section will read: 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 House of Representatives, voting by States, in the manner provided by the Constitution when the election devolves upon the House, shall decide to be the true and valid return."

Mr. Frelinghuysen, of New Jersey, said: "Mr. President, it had always appeared to me that the provision of the twelfth article of the amendments to the Constitution, which declares that the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and omits to say that he shall do anything more, was equivalent to the exclusion of the idea that any other duty was to be performed by him, and that the Constitution left it open as to who should count the votes otherwise than by stating that they should then be counted.' There is some force, however, in the resolution of the convention to which our attention has been called by the Senator from Maryland; and as we are making suggestions it has occurred to me that the second section might be amended by adding:

And if the two Houses do not agree as to which is the true and valid return, then the President of the Senate shall determine which is the valid return.

"I do not mean to say that, on deliberation, that is the best provision; but it is very clear from the amendments which have been offered that it is within the compass of our power to provide for that omission which exists in the

bill."

Mr. Cooper: I ask leave to modify my amendment, instead of striking out to leave the section as it now is, and add the words:

And if the Houses do not agree on which return shall be counted, the House of Representatives, voting by States in the manner provided by the Constitution when the election devolves upon the House, shall decide which shall be the true and valid return. "So that the question shall only be left to the House voting in that way in the event that the two Houses acting separately cannot agree." On March 14th, the Senate, as in Committee of the Whole, resumed the consideration of the bill to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon, the pending question being on the amendment of Mr. Sherman to strike out in lines seven, eight, and nine, of the third section the words: VOL. XVI.-11 A

In the power of a majority of each House to direct that the main question shall be put.

And insert in lieu thereof:

The duty of each House to put the main question. So that the proviso will read :

Provided, That, after such debate has lasted two hours, it shall be the duty of each House to put the main question without further debate.

The amendment was agreed to.

The President pro tempore: "The question will now be on the amendment proposed by the Senator from Tennessee (Mr. Cooper), which will be read."

Mr. Johnston, of Virginia, said: "Mr. President, I offer the following amendment to the amendment, as a substitute for it:

But if the Senate should vote for counting one certificate and the House of Representatives another, the joint meeting of the two Houses shall finally determine which shall be counted, by a vote by States, the representation from each State (including the Senators therefrom) having one vote; but if the its vote shall not be counted. representation of any State shall be equally divided

The President pro tempore: "The question is on the amendment of the Senator from Vir

ginia to the amendment of the Senator from Tennessee."

Mr. Johnston: "It is evident that the bill

is defective in one respect. The author of the bill himself admits that in a certain contingency this bill will not be operative; that where there are two returns from a State and the House of

Representatives votes for accepting one return and the Senate the other, in that event the vote of the State will be lost. It seems to me in a bill of so much importance as this there ought to be no omission of that sort, but that the bill ought to be complete and provide for every contingency that may arise. It is not only the electoral votes, but it is an imperative duty, the right of Congress to provide for counting and we ought to perform that duty. It seems determine this question. The Constitution proto me that Congress itself is the only body to vides that where there has been no election by decide who shall be President, but the same the people the House of Representatives shall Constitution provides that where there shall be no election of Vice-President the Senate shall decide who shall be Vice-President. The second article of the Constitution in the second section has this provision. After providing for the election of President by the House, it says:

The person having the greatest number of votes as Vice-President shall be the Vice-President, if

such number be a majority of the whole number of then from the two highest numbers on the list the electors appointed; and if no person have a majority, Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But President shall be eligible to that of Vice-President no person constitutionally ineligible to the office of

of the United States.

"It seems, then, according to that provision of the Constitution, that in a certain event the Vice-President shall be chosen by the Senate. There is provision for the failure of an election by the electoral college of President and VicePresident; in one event the House elects the President, and in another event the Senate elects the Vice-President. The returns of the election of both officers are embraced in the same certificates. It would seem to me, therefore proper, as the election is for both, that the two Houses should be the joint tribunal to determine the question. In that view I think the amendment I have offered is the proper solution of this question."

Mr. Frelinghuysen, of New Jersey, said: "I shall propose an amendment when the proper time comes, which I will now read:

If the two Houses shall not agree, the difference shall be immediately referred to the Chief-Justice of the Supreme Court, the presiding officer of the Senate, and the Speaker of the House, whose de

cision shall be final. If the Chief-Justice is absent or unable to attend, the senior Associate Justice of the Supreme Court present in the Capitol or other place of meeting shall act in his place.

"This is a judicial question; a question of law and of fact; but judicial, whether of fact or law; and it seems to me that there is a propriety in referring it to the presiding officer of the judicial department. It is true that it is judicial, and yet it is political in its nature. The Constitution has imposed certain duties upon the presiding officer of the Senate, and the presiding officers of the Senate and of the House are competently associated with the Chief-Justice. If it be said that nothing will result excepting the loss of the vote of one State unless we make this arrangement, the loss of one State is a great loss; it is an organic loss; it is a loss that may change the character of the whole election; it is a loss that the people of this country would not quietly submit to. It seems to me it is very important that before we pass this bill we should make such arrangement as will secure the vote of every State, for thereby we may avoid civil war."

Mr. Thurman, of Ohio, said: "I am not prepared just now to vote upon any of the propositions which have been suggested; that is, I am not as well prepared as I would like to be. This subject is full of difficulty. For reasons that I gave yesterday, I do not think a matter of disagreement can be referred to the Supreme Court. I do not believe you can confer upon that court as a court any such power. I have seen no reason to change the opinion I expressed yesterday.

"Then, to give the House of Representatives the right to decide it may be a matter of necessity, and yet there are very grave considerations there, for you put the House under the temptation to disagree with the Senate, so that the result of the disagreement may be that the House will have the decision alone. So, take

it any way you will, there is difficulty. I do not believe that we can or ought to confer this power, in the case of disagreement of the Houses, upon the presiding officer of either House. I do not think that can be done. What I desire is that we may, in the situation in which we find ourselves placed, one House having a majority of one party and the other House having a majority of the other party, endeavor to come to some understanding that, being agreed upon, will command the support of reasonable men of all parties."

Mr. Frelinghuysen: "I move the amendment which I read to the Senate as an amendment to the amendment suggested by the Senator from Tennessee (Mr. Cooper), to come in after the word ' agree.'

The President pro tempore: "The Senator from New Jersey moves to amend the amendment of the Senator from Tennessee by striking out all after the word agree' and inserting what he has read, which is to perfect the text while the substitute is pending offered by the Senator from Virginia (Mr. Johnston). The Senator from Virginia proposes a substitute for the whole amendment, striking out all after the word 'and.' The rule permits a perfection of the text. The question will be first on the amendment proposed by the Senator from New Jersey."

Mr. Morton, of Indiana, said: "Mr. President, there are three propositions here as amendments to the second section of this bill. That section provides for a case where there' are two returns of electoral votes from the same State, and further provides that only that return which both Houses agree is the true and valid return shall be counted.

"But, sir, I now present the question as to whether you can constitute an umpire be tween these two Houses. In the first place, to go back to the main proposition, the Constitution declares that

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.

"Two constructions are contended for here. One is that the President of the Senate himself shall open and count the votes and shall determine all questions arising upon the certificates, or, in case there are two certificates, shall decide which is the true and valid return. That is one construction claimed. There is another that the duty of the President of the Senate is simply to open the certificates in the presence of the two Houses; that the two Houses are assembled, not as a joint convention, but each in its separate capacity; that they are there not only as witnesses, but they are there as judges; and, if a question arises in regard to the vote of a State or a part of it, it is to be settled by the two Houses who are present there as the judges of the election.

"We could, without doing any great violence to the Constitution, adopt either of these