162 



CONGKESS, 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 Vice- 

 President ; 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, there- 

 fore proper, as the election is for both, that the 

 two Houses should be the joint tribunal to de- 

 termine 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 pro- 

 priety 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 sub- 

 mit to. It seems to me it is very import-art 

 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 pre- 

 . pared just now to vote upon any of the prop- 

 ositions 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 Eepresentatives 

 the right to decide it may be a matter of ne- 

 cessity, and yet there are very grave considera- 

 tions 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 amend- 

 ment which I read to the Senate as an amend- 

 ment to the amendment suggested by the 

 Senator from Tennessee (Mr. Cooper), to come 

 in after the word l agree.' " 



The President pro tempore : " The Senator 

 from New Jersey moves to amend the amend- 

 ment of the Senator from Tennessee by strik- 

 ing out all after the word ' agree ' and insert- 

 ing 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 substi- 

 tute for the whole amendment, striking out all 

 after the word ' and.' The rule permits a per- 

 fection of the text. The question will be first 

 on the amendment proposed by the Senator 

 from New Jersey." 



Mr. Morton, of Indiana, said : " Mr. Presi- 

 dent, 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 Con- 

 stitution declares that 



The President of the Senate shall, in the presence 

 of the Senate and House of Eepresentatives, 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 him- 

 self shall open and count the votes and shall 

 determine all questions arising upon the cer- 

 tificates, or, in case there are two certificates, 

 shall decide which is the true and valid re- 

 turn. 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 conven- 

 tion, but each in its separate capacity; that 

 they are there not only as witnesses, hut 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 vio- 

 lence to the Constitution, adopt either of these 



