_Resolved_, That a committee be appointed to consider
whether any, and what, provisions ought to be made by law
for deciding disputed elections of President and Vice
President of the United States, and for determining the
legality or illegality of the votes given for those
officers in the different States:
A motion was made to amend the motion by adding, "and that the committee
be authorized to report by bill or otherwise."
Mr. BROWN, of Kentucky, was of opinion that this was a subject on which
Congress had no right to legislate. When the constitution undertook to
make provisions on a subject, if they were found incomplete, or
defective, they must be remedied by recommending an amendment to the
constitution. He wished the gentleman who had made this motion would pay
further attention to the subject, and believed he would find that if
any thing was to be done it must be done by proposing an amendment to
the constitution.
Mr. Ross said, that the constitution had certainly made no provision on
this subject. It only directed that after the votes were received, &c.,
the President of the Senate should, in the presence of the Senate and
the House of Representatives, open the certificates, and the votes
should be counted. Suppose, said he, persons should claim to be
Electors, who had never been _properly_ appointed, should their vote be
received? Suppose they should vote for a person to be President who had
not the age required by the constitution, or who had not been long
enough a citizen of the United States, or for two persons who were both
citizens of the same State--such cases might happen and were very likely
to happen, and is there no remedy? What a situation would the country be
in if such a case was to happen! He thought it their duty to make
provision for it, and he believed a law was sufficient.
Mr. C. PINCKNEY, of South Carolina, thought it a very dangerous practice
to endeavor to amend the constitution by making laws for the purpose.
The constitution was a sacred deposit, put into their hands; they ought
to take great care not to violate or destroy the essential provisions
made by that instrument. He remembered very well that in the Federal
Convention great care was used to provide for the election of the
President of the United States, independently of Congress; to take the
business as far as possible out of their hands. The votes are to be
given by Electors appointed for that express purpose, the Electors are
to be _appointed_ by each State, and the whole direction as to the
manner Of their appointment is given to the State Legislatures. Nothing
was more clear to him than that Congress had no right to meddle with it
at all; as the whole was intrusted to the State Legislatures, they must
make provision for all questions arising on the occasion.
Mr. DEXTER, of Massachusetts, did not feel himself at all in doubt as to
the right of the Legislature to make such provisions on this subject as
appeared to be necessary. It was directed by the constitution that a
President should be appointed, that he should be of not less than
thirty-five years of age, that he should have been at least fourteen
years a citizen of the United States, &c. The proceedings in the
election of a President may be defective in all these particulars, and
can it be supposed that there is no way to correct them? The
constitution is not silent on this head; among the powers given to
Congress in the 5th section is this, "to pass all laws necessary and
proper for carrying into execution the foregoing powers, and all other
powers vested by this constitution in the Government of the United
States, or in any department or officer thereof." The law now proposed
appears to be necessary to carry into effect the power of appointing
the President; it is, therefore, clearly constitutional.
Mr. LIVERMORE, of New Hampshire never felt less doubt on any subject
than the one now under consideration: the constitution has given many
directions as to the appointment of the President, some of which he
read. It is possible (said Mr. L.) that gentlemen can suppose all these
may be violated and disregarded, and yet that it is nobody's business to
interpose and make provision to prevent it? He trusted the honorable
Senate would agree to the resolution to appoint a committee for that
purpose.
Mr. BALDWIN, of Georgia, expressed his regret that the mover of this
resolution had not thought proper to bring forward a subject so new and
important, in the form commonly used in parliamentary assemblies, by a
single proposition, viz: "that it is expedient that further provision be
made respecting disputed votes for President and Vice President of the
United States." It was manifest from the debate that several different
questions had been under consideration at the same time, and different
gentlemen were in fact directing their remarks to different questions.
The first question was, the one he had just mentioned, whether there was
so great a defect in the present provisions, which exist on this
subject, as to render further provisions necessary?
The second is, if further provisions are necessary, must they be made by
amendment to the constitution? or,
Thirdly, whether they can be made by law?
He must say for himself, that he did not agree that the present
provisions on this subject were so defective and absurd as had been
represented. His general respect for those who had gone before him in
this House, and especially for the venerable assembly of the most
experienced statesmen of the country by whom the constitution had been
formed, forbade him to entertain the belief that the subject, which is
the strong feature that characterizes this as an Elective Government,
could have been till now so entirely out of sight and neglected.
Gentlemen appeared to him, from their observations, to forget that the
constitution in directing _Electors_ to be appointed throughout the
United States equal to the whole number of the Senators and
Representatives in Congress, for the express purpose of intrusting this
constitutional branch of power to them, had provided for the existence
of as respectable a body as Congress, and in whom the constitution on
this business has more confidence than in Congress. Experience had
proved that a more venerable selection of characters could not be made
in this country than usually composed that electoral body. And what are
the questions which can arise on the subject intrusted to them to which
they are incompetent, or to which Congress is so much more competent?
The questions which present themselves seem to be:
1. Those which relate to the elections, returns, and qualifications, of
their own members. Shall these be taken away from that body, and
submitted to the superior decision and control of Congress, without a
particle of authority for it from the constitution?
2. The legality or constitutionality of the different steps of their own
proceedings, as, whether they vote for two persons both of the same
State; whether they receive votes for a person under thirty-five years
of age, or one who has not been fourteen years a citizen of the United
States, &c. It is true they, as well as any other constitutional branch
of this Government acting under that instrument, may be guilty of taking
unconstitutional or corrupt steps, but they do it at their peril.
Suppose either of the other branches of the Government, the Executive,
or the Judiciary, or even Congress, should be guilty of taking steps
which are unconstitutional, to whom is it submitted, or who has control
over it, except by impeachment? The constitution seems to have equal
confidence in all the branches on their own proper ground, and for
either to arrogate superiority, or a claim to greater confidence, shows
them in particular to be unworthy of it, as it is in itself directly
unconstitutional.
3. The authentication of their own acts. This would seem to be as
complete in them, as in either of the other branches of the Government.
Their own authentication of their act finishes the business intrusted to
them. It is true this must be judged of by the persons who are concerned
in carrying it into execution; as in all laws and official acts under
this Government, they to whom they are directed, and who are to be bound
by them, must judge, and judge at their peril, whether they are duly
authenticated or whether they are only a forgery.
If this be the just view of the subject, (and he could see no other
which did not involve inextricable difficulties,) it leaves no possible
question for the Senators and Representatives, when met together to
count the votes agreeably to the constitution, but to judge of the
authentication of the act of the Electors, and then to proceed and count
the votes as directed. If this body of the Electors of all the States
had been directed by the constitution to assemble in one place, instead
of being formed into different Electoral colleges, he took it for
granted none of the questions on which this resolution has been brought
forward, would have occurred; every one would have acknowledged that
they were to be settled in that assembly. It having been deemed more
safe by the constitution to form them into different Electoral colleges,
to be assembled in the several States, does not at all alter the nature
or distinctness of their powers, or subject them any more to the control
of the other departments of the Government.
He observed further on the other points to which gentlemen had spoken,
that if such radical and important changes were to be made on this
subject, as seemed to be in contemplation under this resolution, he
thought they must be made by proposing an amendment to the constitution
to that effect; and that they could not be made by law, without
violating the constitution. He did not agree with the gentleman from
Massachusetts, (Mr. DEXTER,) that the clause at the close of the 8th
section of the constitution, which gives to Congress power to pass all
laws necessary and proper to carry into effect the foregoing powers of
that section, and all other powers vested by the constitution in the
Government of the United States, or in any department or officer
thereof, could be extended to this case: that speaks of the use of the
powers vested by the constitution--this resolution relates to the
formation of a competent and essential part of the Government itself:
that speaks of the movements of the Government after it is
organized--this relates to the organization of the Executive branch, and
is therefore clearly a constitutional work, and to be done, if at all,
in the manner pointed out by the constitution, by proposing an article
of amendment to the constitution on that subject. His own opinion,
however, was, what he had before stated, that the provisions on this
subject were already sufficient; that all the questions which had been
suggested were as safely left to the decision of the assemblies of
Electors, as of any body of men that could be devised; and that the
members of the Senate and of the House of Representatives, when met
together in one room, should receive the act of the Electors as they
would the act of any other constitutional branch of the Government, to
judge only of its authentication, and then to proceed to count the
votes, as directed in the second article of the constitution.
The further consideration of the subject was postponed.
FRIDAY, January 24.
_Disputed Presidential Elections._
The Senate resumed the consideration of the motion made yesterday, that
a committee be appointed to consider whether any, and what, provisions
ought to be made by law for deciding disputed elections of President and
Vice President of the United States, and for determining the legality or
illegality of the votes given for those officers in the different
States, and that the committee be authorized to report by bill or
otherwise; and the motion as amended was adopted; and,
_Ordered_, That Messrs. ROSS, LAURANCE, DEXTER, PINCKNEY, and LIVERMORE,
be the committee.
THURSDAY, February 20.
_Disputed Presidential Elections._
The Senate resumed the consideration of the bill prescribing the mode of
deciding disputed elections of President and Vice President of the
United States.
On motion to strike out of the first section of the bill the following
words:
Together with the Chief Justice of the United States, or if
he be absent from the Seat of Government or unable to
attend, then with the next senior Judge of the Supreme
Court of the United States, who may be present and able to
attend.
It passed in the negative--yeas 11, nays 19, as follows:
YEAS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke,
Franklin, Langdon, Marshall, Mason, Nicholas, and Pinckney.
NAYS.--Messrs. Bingham, Chipman, Dayton, Dexter, Foster,
Greene, Gunn, Hillhouse, Howard, Latimer, Laurance,
Livermore, Paine, Read, Ross, Schureman, Tracy, Watson, and
Wells.
On motion to strike out these words from the 1st section: "to choose by
ballot in each House six members," and in lieu thereof to insert "to
draw by lot in each House ---- members:"
It was determined in the negative--yeas 9, nays 18, as follows:
YEAS.--Messrs. Anderson, Baldwin, Bloodworth, Brown, Cocke,
Langdon, Marshall, Mason, and Nicholas.
NAYS.--Messrs. Chipman, Dayton, Dexter, Foster, Franklin,
Goodhue, Greene, Gunn, Hillhouse, Latimer, Laurance,
Livermore, Paine, Read, Ross, Schureman, Tracy, and Wells.
_Ordered_, That the further consideration of the bill be postponed.
FRIDAY, February 21.
_Eulogium on General Washington._
_Resolved_, That the Senate will, to-morrow, at half past 12 o'clock,
meet at the Senate Chamber, and from thence walk in procession to the
German Calvinist Church in Race street, to hear the eulogium pronounced
on the character of General WASHINGTON.
MONDAY, February 24.
_Disputed Presidential Elections._
The Senate resumed the second reading of the bill prescribing the mode
of deciding disputed elections of President and Vice President of the
United States.
On motion, to amend the bill, section 5th, line 7th, so as to provide
that the proceedings of the committee be held in public, by striking out
the words "with closed doors," and inserting, "in the Chamber of the
House of Representatives, with open doors," in lieu thereof:
It passed in the negative--yeas 8, nays 16, as follows:
YEAS.--Messrs. Anderson, Baldwin, Bloodworth, Cocke,
Franklin, Langdon, Mason, and Nicholas.
NAYS.--Messrs. Bingham, Chipman, Foster, Goodhue, Greene,
Hillhouse, Howard, Latimer, Laurance, Livermore, Marshall,
Paine, Read, Ross, Tracy, and Wells.
And, after progress, the further consideration of the bill was
postponed.
WEDNESDAY, February 26.
_Breach of Privilege._