194 



the House that the Senate, on a similar recon- 

 sideration, have, by a two-thirds vote, agreed 

 to the passage of the bill, I do. by the authority 

 of the Constitution of the United States, de- 

 clare that, notwithstanding the objections of the 

 President, the bill (S. No. 213) to amend an act 

 entitled ' An act to amend the Judiciary Act, 

 passed the 24th of September, 1789,' has be- 

 come a law." 



In the House, on July llth, Mr. Boutwell, . 

 from the Committee on Reconstruction, report- 

 ed back a joint resolution from the Senate, 

 which as amended was as follows : 



That none of the States whose inhabitants were 

 lately in rebellion shall be entitled to representation 

 in the Electoral College for the choice of President 

 or Vice-President of the United States, nor shall any 

 electoral vote be received or counted from any of 

 such States, unless, at the time prescribed by law for 

 the choice of electors, the people of such States, pur- 

 suant to the acts of Congress in that behalf, shall 

 have, since the 4th day of March, 1867, adopted a 

 constitution of State government, under ^which a 

 State government shall have been organized and 

 shall be in operation, nor unless such election of 

 electors shall have been held under the authority of 

 such constitution and government ; and such States 

 shall have also become entitled to representation in 

 Congress, pursuant to the acts of Congress in that 

 behalf: 



Provided, That nothing herein contained shall be 

 construed to apply to any State which was represent- 

 ed in Congress on the 4th of March, 1867. 



The resolution was adopted yeas 112, 

 nays 21. 



The Senate approved of the amendment, 

 and the resolution was sent to the President, 

 who, on July 20th, returned it with the follow- 

 ing message : 

 To tlie Senate of the United States : 



I have given to the joint resolution, entitled "A 

 resolution excluding from the Electoral College votes 

 of States lately in rebellion, which shall not have 

 been reorganized," as careful examination as I have 

 been able to bestow upon the subject during the few 

 days that have intervened since the measure was sub- 

 mitted for my approval. 



Feeling constrained to withhold my assent, I here- 

 with return the resolution to the Senate, in which 

 House it originated, with a brief statement of the rea- 

 sons which nave induced my action. 



This joint resolution is based upon the assumption 

 that some of the States whose inhabitants were lately 

 in rebellion are not now entitled to representation iu 

 Congress and to participate in the election of Presi- 

 dent and Vice-President of the United States. 



Having heretofore had occasion to give, in detail, 

 my reasons for dissenting from this view, it is not 

 necessary at this time to repeat them. It is sufficient 

 to state that I continue strong in my conviction that 

 the acts of secession, by which a number of the States 

 sought to dissolve their connection with the other 

 States and to subvert the Union, being unauthorized by 

 the Constitution, and in direct violation thereof, were, 

 from the beginning, absolutely null and void. It fol- 

 lows necessarily that, when the rebellion terminated, 

 the several States which had attempted to secede con- 

 tinued to be States in the Union, and all that was re- 

 quired to enable them to resume their relations to the 

 Union was, that they should adopt the measures 

 necessary to their practical restoration as States. 

 Such measures were adopted, and the legitimate re- 

 sult was, that those States, having conformed to all 

 the requirements of the Constitution, resumed their 



CONGRESS, UNITED STATES. 



, former relations, and became entitled to the exercise 

 of all the rights guaranteed to them by its provisions. 



The joint resolution under consideration, however, 

 seems to assume that, by the nsurrectionary acts or 

 their respective inhabitants, those States forfeited 

 their rights as such, and can never again exercise 

 them except upon readmission into the Union on the 

 terms prescribed by Congress. If this position be 

 correct, it follows that they were taken out of the 

 Union by virtue of their acts of secession, and hence 

 that the war waged upon them was illegal and uncon- 

 stitutional. We would thus be placed in this incon- 

 sistent attitude, that while the war was commenced 

 and carried on upon the distinct ground that the 

 Southern States, being component parts of the Union, 

 were in rebellion against the lawful authority of the 

 United States, upon its termination we resort to a 

 policy of reconstruction which assumes that it was 

 not in fact a rebellion, but that the war was waged 

 for the conquest of territories assumed to be outside 

 of the constitutional Union. 



The mode and manner of receiving and counting 

 the electoral votes for President and Vice-President 

 of the United States are in plain and simple terms 



Srescribed by the Constitution. That instrument 

 nperatively requires that the President of the Senate 

 " snail, in the presence of the Senate and House of 

 Eepresentatives, open all the certificates, and the 

 votes shall then be counted." Congress has, there- 

 fore, no power under the Constitution to receive the 

 electoral votes or reject them. The whole power is 

 exhausted when, in the presence of the two Houses, 

 the votes are counted and the result declared. In 

 this respect the power and duty of the President of 

 the Senate are, under the Constitution, purely min- 

 isterial. When, therefore, the joint resolution de- 

 clares that no electoral votes shall be received or 

 counted from States that since the 4th of March, 1867, 

 have not " adopted a constitution of State govern- 

 ment under which a State government shall have 

 been organized," a power is assumed which is no- 

 where delegated to Congress, unless upon the as- 

 sumption that the State governments organized prior 

 to the 4th of March, 1867, w^ere illegal and void. 



The joint resolution, by implication at least, con- 

 cedes that these States were Spates by virtue of their 

 organization prior to the 4th of March, 1867, but de- 

 nies to them the right to vote in the election of 

 President and Vice-President of the United States. 

 Jt follows either that this assumption of power is 

 wholly unauthorized by the Constitution, or that 

 the States so excluded from voting were out of the 

 Union by reason of the rebellion, and have never 

 been legitimately restored. Being folly satisfied that 

 they were never out of the Union, and that their 

 relations thereto have been legally and constitution- 

 ally restored, I am forced to the conclusion that the 

 joint resolution which deprives them of the right 

 to have their vote for President and Vice-President 

 received and counted is in conflict with the Consti- 

 tution, and that Congress has no more power to re- 

 ject their votes than those of the States which have 

 been uniformly loyal to the Federal Union. 



It is worthy of remark that if the States whose in- 

 habitants were recently in rebellion were legally and 

 constitutionally organized and restored to their rights 

 prior to the 4th of March, 1867, as I am satisfied they 

 were, the only legitimate authority under which the 

 election for President and Vice-President can be held 

 therein must be derived from the governments insti- 

 tuted before that period. 



It clearly follows that all the State governments 

 organized in those States under acts of Congress for 

 that purpose, and under military control, are illegiti- 

 mate and of no validity whatever ; and. in that view, 

 the votes cast in those States for President and Vice- 

 President, in pursuance of acts passed since the 4th 

 of March, 1867, and in obedience to the so-called re- 

 construction acts of Congress, cannot be legally re- 

 ceived and counted; while the only votes in those 



