-

1881. · CONGRESSIONAL RECORD-SENATE. 1159 

IN SENATE. 

~HURSD.A.Y, February 3, 1881. 

Prayer by the Chaplain, Rev. J. J. BULWCK, D. D. 

The Journal of yesterday's proceedings was read and ~pproved. 

BALTIMORE AND OIDO RAILROAD COl\IP ANY. 

The VICE-PRESIDENT laid before the Senate a letter from the 

commissioners of the District of Columbia, transmitting, in reply to a resolution of January 9:7, 1881, a copy 9f the contract or terms of 

settlement and agreement entered into between the commissioners of 

the District of Columbia and the re_presentative of the Baltimore and 

Ohio Railroad Comp:;ny; which was order~d to lie on the table and 

be printed. PETITIONS AND MEMORIALS. 

Mr. LOGAN pr6sented the petition of John Schoemaker and others, 

citizens of Illinois, pensioners of the United States, praying for an amendment to the pension laws in regard to certain classes of wounds ; 

which waa referred to the Committee on Pensions. 

He also presented the memorial of George W. Deardoff and others, 

citizens of Havana, Illinois; the memorial of Oliver Finley and 34 

others, citizens of Georgetown, Illinois; and the memorial of Benjamin 

C. Goodhue and others, citizens of Lansing, Michigan, surviving seldiers of the war for the Union, remonstrating against the passage of 

the bill (S. No. 496) providing for the examination and adjudication of 

pension claims; which were referred to the Committee on Pensions. 

He also presented the memorial of William Ward and others, citi- zens of Virginia, colored soldiers in the late w,ar, remonstrating against 

the paasage of the bill (S. No. 496) providing for the e~amination and 

=¥1jndication of pension claims; which was referred to th_e Committee on Pensions. 

Mr. LOGAN. I also present a memorial of the Board of Trade of 

the city of Chicago, in the following words: 

To tke hon&rable tke Smate and House of .Representatives of the U11ited States in Oongress assembled: 

The undersigned, by order and on behalf of the Board of Trade of the city of 

Chicago, respectfully represents unto your honorable bodies that 

Whereas this board is convinced that the adulteration of hnman food and drugs is a serious and growing evil, an outrage upon an otherwise sufficiently suffering humanity, greatly detrimental to the public health, tending to increase the death· rate and to lower the standard of public and private morals, and that its eradication 

by well-considered legislation is both desirable and necessary; and 

Whereas a bill entitled "A bill to ~revent the adulteration of food and drugs," prepared aftet' long and careful conslderation by' a committee of able experts, on behalf of the National Board of Trade, has been presented to your honorable bodies 

by the representatives of that or~anization, with the request that favorable action 

thereon may be had at an early date: Therefore, 

Having earefnlly considered the provisions of said bill, your memorialists 

respectfUlly petition and urge your lionorable bodies that said bill may receive 

from you that consideration which the great importance of the subject seems to 

demand, and that it may be enacted into raw during the present session of Congress. 

Respectfully submitted, on behalf and by order of the Board of Trade of Chicago. H. W. ROGERS, JR.,Pr~mt. 

CmcAGO, January,l8Bl. 

CHAS. RANDOLPH, Secretary. 

I do not know to what committee such memorials are usually re- ferred; probably it should go to the Committee on Finance. 

The VICE-PRESIDE1ff. Such memorials have been heretofore 

referreci to the Committee on Agriculture, the Chair understands. 

Mr. LOGAN. Then I move th!\>t the memorial be referred to the 

Committee on Agriculture. 

The motion was agreed to. 

Mr. KIRKWOOD. I pre~ent the petition of 30 soldiers of the late 

war, some of whom were enlisted in Iowa regiments and others having served in regiments of 9ther States, bot who now reside in the 

State of Iowa, praying for the passage of a bill equalizing the bounties 

of soldiers at the rate of eight and one-third dollars per month for 

the time served. I move that the petition be referred to the Committee on Military Affairs. . 'J'he motion was agreed to. 

Mr. HAMLIN presented resolutions of the Bar Association of Comberland County! Maine, in favor of the erection of a monument in 

the city of Washington, in memory of Chief-Justice John Marshall; 

which were referred to the Joint Committee on the Library. 

Mr. DAVIS, of illinois, presented the petition of Mary Brown, widow 

of George W. Brown, CompanyB, Twelfth Ohio Cavalry Volunteers, 

praying that she be granted arrears of pension; which was referred 

to the Committee on Pensions. 

Mr. SAUNDERS presented a letter from the Secretary of the Interior, addressed to the chairman of the Committee on Indian Affairs, 

relating to the bill (S. No. 2057) for the relief of Arthur J. Carrier; 

which was referred to the Committee on Claims. 

Mr. INGALLS. I present the petition of sundry citizens residing 

in the State of Kansas, formerly soldiers, praying for t:Q.e passage of 

the bill (S. No. 496) providing for the examination and adjudication 

of pension claims, which I ask may be laid ·on the table, the bill having been reported from the Committee on Pensions. 

Mr. LOGAN. I will ask the Senator if in presenting that petition it would be out of the way for hjm to read a note that is at the head 

of it. I sh9nld like to have it ~ead for the information of the Senate. 

I Jlave seen quite a number of petitions of that kind, and should like ~o P;l?Y~ j;Q.~ .h§a..4.-P.9~ read. 

Mr. INGALLS. I should be glad to have it read. It was evidently 

left on through an inadvertence on the part of those who sent it. 

The Chief Clerk read aa follows : 

NOTE.-Sign three copies; forward one to your member of Congress, one to your United .States Senator, and one to Headquarters Grand Army of the Republic. Attach more paper if needed. 

Mr. LOGAN. I merely asked to havethenotewhich is at the head 

of the petition read, in as much as there were some remarks made by 

the Senator from Virginia [Mr. WITHERS) the other day abont the' 

memorials in opposition to this bill, in order to show the character of 

the petitions that come to us in favor of the passage of the bill. There 

is a note at the head of them saying, "Sign three copies ; forward one to your member of Congress, one to your United States Senator, and one to Headquarters of the Grand Army of the Republic." It is sent o~t from Wa{'!hington City. 

Mr. WITHERS. I will say if that is to be read, I shall ask for the 

reading of several petitions and memorials from organizations of soldiers. 

Mr. LOGAN. I have no objection in the world; I merely desired 

to have the head-note rea.d. 

Mr. BLAIR. I should like to know if it is designed to create the 

impression that the request to send one copy to the Grand Army of 

the Republic is an indication that Senate bill No. 496 is countenanced 

and supported by the Grand Army of the Republic or by its officers T 

I do not understand that the intimation this orginates in Washington would be found to ~e a fact; bot I do understand that the Grand 

Army through its officers designs to create the impression that it is 

favorable to the passage of this bill. . Mr. PLA').'T. If I may be allowed one moment. I hold in my hand an address issued by one of the pension agents in Washington asking 

soldiers to sign a memorial, the form of which is given, remonstrating against the passage of Senate bill No. 496, some extracts from 

which I will take occa{'!ion at the proper time during the discussion of 

the subject to read. 

The petition was ordered to lie on the table. 

REPORTS OF COMMITTEES. 

Mr. KERNAN, from the Committee on Finance, to whom was re- ferred the bill (S. No. 1867) to provide for the .refunding of certain 

taxes in conformity with a decision of the. Supreme Court, reported 

adversely thereon; and the bill was postponed indefinitely. ~r. BAYARD, from the Committee on the Judiciary, to whom Wli·S 

referred the bill (S. No. 2072) for the relief of the widow and daughters of the late Connolly F. Trigg, reported adversely thereon; and the 

bill was postponed indefinitely. 

Mr. BLAINE, from the Committee on Naval Affairs, to whom was referred the bill (S. No. 1964) for the relief of Greenleaf Cilley, re- ported it without amendment. 

Mr. GROOME, from the Committee on Claims, to whom was re- ferred the petition of F. E. Stewart, administratrix of the estate of 

Michael S. Stewart, deceased, of Tennessee, praying for compensation 

for wood cut under contract for the Government, submitted a report 

thereon accompanied by a bill (S. No. 2146) for the relief of Frances 

E. Stewart, administratrix of Michael S. Stewart, deceased. 

The bill was read twice by its title, and the report was ordered to 

be printed. 

Mr. BURNSIDE submitted a report to accompany the bill (S. No. 

1833) to remove charge of desertion from the military record of William Hull, heretofore reported by him; which was ordered to be 

printed. 

Mr. CALL, from the Committee on Patents, to whom was referred 

the bill (H. R. No. 2414) for the relief of Mrs. S. A. Wright, reported it 

without amendment, and submitted a report thereon; which was ordered to be printed. 

He also, from the same committee, to whom was referred the bill 

(S. No. 1782) for the relief of William G. Budlong, reported it without amendment, and submitted a report thereon; which wa-s ordered 

to be printed. 

Mr. JONES, of Florida, from the Committee on Public Buildin~ 

and Grounds, to whom was referred the bill (S. No.1792)for a public 

building at Rochester, New York, reported it with at;nendments. 

Mr. KIRKWOOD. I am instructed by the Committee on PostOffices and Post-Roads to report back the joint resolution (S. R. No. 

140) in regard to the extension of the franking privilege, and to say on behalf of the committee that they have considered the resolution 

and find themselves equally divided as to its merits, and therefore 

report it back without recommendation, and ask that it may be placed on the Calendar for consideration. 

The VICE-PRESIDENT. The joint resolution will be placed on the Calendar. 

:Mr. LOGAN. I will ask the Senator if the committee who reported 

the joint resolution would not as lief it should lie on the table so as to be called up without going on the Calendar f 

Mr. KIRKWOOD. I am perfectly content to have done whatever 

the introducer desires in regard to it. 

The VICE-PRESIDENT. It goes upon the Calendar in either 

event. 

:Mr. KffiKWOOD. That is what I supposed. It can be called up 

in one case as well as the other. 
• ,. 

. ' 

1160 CONGRESSIONAL RECORD-SENATE. FEBRUARY 3, 

BILLS L~TRODUCED. 

Mr. JOHNSTON asked and, by unanimous consent, obtained leave 

to introduce a. bill (S. No. 2147) to provide for the purchase from Mrs. 

Huba.rd of a bronze statue of General Washington; which was read 

twice by its title, and referred to the Committee on the Library. .~ Mr. CAMERON, of Wisconsion, (by request,) asked .and, by unani-

:; mous consent, obtained leave to introduce a. bill (S. No. 2148) for the 

relief of John H. Huyett; which was read twice by its title, and re- ferred, with the accompanying papers, to the Committee on Claims. 

1\Ir. SAUNDERS asked and, by unanimous consent, obtained leave 

to introduce a. bill (S. No. 2149) to establish an assay office in the city 

of Omaha., in the State of Nebraska.; which was read twice by its 

title, and referred to the Committee on Mines and Mining. 

Mr. PLUMB asked and, by unanimous .;onsent, obtained leave to 

introduce a. bill (S. No. 2150) to grant the right of wav through the 

Fort Bliss military reservation to the Rio Grande and El Paso Railroad Company; which was read twice by its title, and referred to 

the Committee on Military Affairs. 

Mr. BUTLER asked and, by unanimous consent, obtained leave to 

introduce a bill (S. No. 2151) to restore certain articles of silverware 

to Mrs. Isabella S. McRae; which was read twice by its title, and- referred to the Committee on Finance. 

SA.."\IUEL POLLOCK. · 

On motion of Mr. McPHERSON, it was 

Ordered, That the vote by which the bill (S. No. 1706) for the relief of Samuel 

Pollock was indefinitely postponed be reconsidered, and that the bill be recom- mitted to the Committee on Pensions. 

MESSAGE FRO~ THE HOUSE. 

A message from the House of Representatives, by Mr. GEORGE M. 

ADAMs, its Clerk, announced that the House had passed the following bills and joint resolution : A bill (S. No. 1805) relative to the revolutionary bat tle-field of 

Bennington; 

A bill (S. No. 15i3) to provide for the furnishing of certain public 

documents to soldiers' homes ; and 

A joint resolution (S. R. No. 146) to provide for printing and distributing the index of the CoxGRESSIOXAL REcoRD semi-monthly. 

The message also announced that the House had concurred in the 

resolution of the Senate to print 15,560 copies of the report of the 

Smithsonian Institution for the year 1880. 

The message further announced that the House had concurred in 

the resolution of the Senate for the printing of 1,000 copies of the 

report of the joint commission appointed under the eighth section 

of the act of Congress of June 21, 1860, to examine into the organization, system of discipline, and course of instruction of the United 

States Military Academy at West Point, submitted December 13, 1860. 

The message further announced that the House had concurred in 

some, and non-concurred in other amendments of the Senate to the 

bill (H. R. No. 6730) making appropriations for the current and con- tingent expenses of the Indian Department, and for fulfilling treaty 

stipulations with various Indian tribes for the year ending June 30, 

1882, and for other purposes. 

The message also announced that the Honse had concurred in some and non-concurred in other amendments of the Senate to the bill(H. 

R. No. 6969) making appropriations for the naval service for the fiscal year ending June 30, 1882, and for other purposes. 

The message further announced that the House had passed the following bills and joint resolutions, in which it requested the concur- rence of the Senate: 

A bill (H. R. No. 6729) to confirm a certain private land claim in 

the Territory of New Mexico; 

A bill (H. R. No. 7035) making appropriations to provide for the 

expenses of the government of the D.istrict of Columbia for the fiscal 

year. ending June 30, 1882, and for other purposes; 

A joint resolution (H. R. No. 372) authorizing the Public Printer to 

print reports of the United States Fish Commissioner upon new discoveries in regard to fish-culture; and 

A joint resolution (H. R. No. 388) to provide for publishincr an edition of Hayden's Atlas of Colora.O.o. 0 

E}.'"ROLLED BILL. SIGXED. 

The messa~e also announced that the Speaker had signed the en- rolledjoint resolution (S. R. No. 143) authorizing the inspection and 

issue of an American register to the Egyptian steamship Dessong; 

and it was thereupon signed by the Vice-President. 

COUNT OF ELECTORAL VOTES. 

The VICE-PRESIDENT. Concurrent and other resolutions are 11ext in order. · 

Mr. MORGAN. I ask the Senate to take up and proceed to the 

consideration of the resolution which I submitted on the 15th of June 

last, relating to the right of the President of the Senate to count the 

votes of electors for President and Vice-President of the United States. 

The VICE-PRESIDENT. The Senator from Alabama calls for the 

consideration of a resolution standing on the Calendar, formerly submitted by him. 

Mr. LOGAN. If the morning business is through--

The VICE-PRESIDENT. The Chair had recognized the Senator 

from Alabama. under the morr.ing-honr business. 

Mr. LOGAN. I understood that the call was for the introduction 

of resolutions. 

The VICE-PRESIDENT. The Chair announced the order of business, which is "concurrent and other resolutions." Does the Senator 

from Illinois desire to submit a resolution f 

Mr. LOGAN. No, sir; if the business of the morning hour is over in reference to the introduction of bills and resolutions, I desire in 

pursuance of the notice I gave a. few days ago, to move that the 

present and all prior orders be postponed temporarily in order to 

take up the bill (S. No. 1992) to place Ulysses S. Grant, late General 

and ex-President of the United States, upon the retired list of the 

Army. 

The VICE-PRESIDENT. The Chair had recognized the Senator 

from Alabama, [Mr. MORGAN,] and the Secretary will report the reso- lution called for by him. 

The Chief Clerk read the resolution submitted by Mr. MORGAN on the 15th of J nne, 1880. 

Mr. McDONALD. I ask the Senator from Alabama to allow me to 

give a notice. · 

Mr. MORGAN. Very well. 

Mr. McDONALD. I desire to give notice that on the conclusion of 

the special order I shall move to postpone the present and all prior 

orders for the purpose of taking up the bill (S. No. 19) to authorize 

the Secretary of the Interior to ascertain and certify the amount of 

land located with military warrants in the States described therein, 

and for other purposes. I shall ask for the consideration of that bill on the close of the sl)ecia.l order. 

Mr. INGALLS. To what does the Senator refer, the unfinished 

business or the Indian severalty bill f 

Mr. McDONALD. The Indian severalty bill. 

1\fr. INGALLS. That was informally laid aside for the purpose of 

considering the pension appropriation bill, which is now under con- sideration ; but the understanding was that at the conclusion of the 

consideration of the pension bill the Indian severalty bill should be 

resumed. 

Mr. M~DONALD. I do not propose to antagonize the Indian sev- eralty bill, but to make the motion I suggested as soon as that is disposed of; and I desire the friends of the measure with which I am charged to be advised of this notice, for if we arO'to do anything 

with the bill at this session we should take action upon it at an early 

day. 

MY: no?ce, then,~· President, is that as soon as the special orders now mdicated are disposed of I shall move to take up this bill and ~k ~he friends of the meas11:re to. aid me as far as they can in bringrng It before the Senate. It IS an Important measure, and if not acted on now cannot be disposed of at this session. 

Mr. SAUNDERS. The Senator will allow me to ask him whether 

he means by the bills "now indicated" the two bills that are before 

the Senate¥ 

Mr. McDONALD. Yes; the pension appropriation bill and the 

Indian severalty bill. 

Mr. MORGAN. I ask the Senate to proceed with the consideration 

of the resolution before the Senate. . Mr. SAUNDERS. If the Senator from Alabama. will allow me, I 

should, like to give notice that as soon as I can do so-- ~~. MORGAN. The ~enator c~n give his _notice at any time, and a notice amounts to nothing practically at th1s stage of the session. 

The Senate proceeded to consider the following concurrent resolution, submitted by Mr. MORGA.~ June 15, 1880: 

Resolved by the Senate, (the House of Representatives concurring,) That the President !>f the Senate is not invested by the Constitution of the United States with 

the r1~~:ht to count the votes of electors for President and Vice-President of the 

United States so as to determine what votes shall be received and counted or what votes shall be rejected. ~ 

Mr. MORGAN. The resolution I have offered is ~ne11that becomes 

immediately important, if it has any importance whatever, and I hope 

the Senate will proceed with its consideration. 

Mr. CONKLING. Although I wish to hear, I cannot hear a word 

the Senator says . Mr. MORGAN. It is not really my fault, but I am not in a condition of health to-day to exert myself much. I have brought forward 

this resolution for the purpose of getting au expression from the Senate of the United States; and as the resolution is at present framed, 

from the House of Representatives, a concurrent expression, upon a question in regard to which, in my judgment, it is 'Yfthin the power 

of the two Houses to declare the law. So far as I am ~ersonally con- cerned, I have heretofore debated this question in the Senate during 

the present session at such length as I desired, through the courtesy 

of the Senate ; and if I should make any extended remarks on this 

resolution now I should only be repeating what I have said heretofore. 

Mr. CONKLING. Will the Senator allow me t.o interrupt him again f 

Mr. MORGAN. Yes, sir. · Mr. CONKLING. I do not 1.""Dow, and I am not alone in my ignorance, the resolution to which the Senator is speaking. Will he be 

kind enough to indicate it or allow it to be reported 'f 

l\fr. MORGAN. Let the resolutiolil be reported. 

The Chief Clerk again read the resolution. r 

Mr. MORGAN. This subject has been so frequently before the Sen· 

ate that almost every Senator who has been here for more than one 
1881. CONGRESSIONAL RECORD-SENATE. 

term at least has had an opportunity of expressing his opinion, and 

I think that almost the entire body who have been here that length 

of time have given expression to their views upon the subject. I do 

not care myself to engage in the discmsion of a trite subject, and I am entirely willing at any moment of time that any Senator thinks 

the vote ought to be taken, or when it shall be indicated that there 

will be no further discussion on the resolution, that a vote shall be 

taken on it. 

I will say, moreover, that the langua.ge in which the resolution is 

couched was intended to express the idea that the President of the 

Senate, whether he might be President pm tempore or whether he 

might be the Vice-President of the United States, is not invested by 

the Constitution with the authority to determine what votes shall be 

received and counted, or what votes shall be rejected; that that 

matter belongs to some other jurisdiction, some other power, which 

this resolution does not undertake to define. The resolution goes 

simply to the extent of declaring that that officer has not that power. 

Whether we have the right to control the President of the Senate 

in a matter of this kind, I admit is a question that is open to debate. 

My own views about it are fixed and settled. !regard the President 

of the Senate as an officer of the Senate, whether he is here under 

the Constitution as an ex officio officer of the Senate, or whether he is 

here by the election of this body, and that like all other officers of 

the Senate he is charged by the law and the Constitution, and probably by the rules of the Senate, to execute its will and pleasure when- ever that may be properly and constitutionally expressed, and that 

the Senate cannot get into such a relation with its officer, as that he 

would have a right to disregard its order upon any subject that fell 

within the purview of its authority. 

I am not well enough this morning to engage in an extensive discussion of this measure, and with this brief explanation of the purpose of the resolution I shall not detain the Senate any further. 

:Mr. COCKRELL. Is the resolution before the Senate f 

The VICE-PRESIDENT. It is, and the question is, will the Senate 

agree to the same 1 Is the Senate ready for the question 7 

Mr. EDMUNDS. Not quite ready, Mr. President. It appears to me that after what bas transpired, if not before, it is quite unneces- sary to make any declaration at this present time upon the subject. 

.J have not heard, even in the newspapers, that the present Vice-President of the United States and President of the Senate has threatenetl or has even been suspected of any intention to be a usurper, if 

the counting, (with all that that implies, more or less,) of the votes 

for President and Vice-President of the United States by the President of the Senate be a usurpation. It does not appear tome, therefore, that a bald declaration of opinion upon a purely and practically 

abstract question, which does not contain any declaration of opinion 

touching certain other bodies on the same subject, is wise, if we are to make a declaration of our opinion upon this subject; though this 

(loes Got purport to be a declaration of opinion; it seems to stand in 

the nature of an edict. It does not say that in the opinion of the 

Senate the President of the Senate has not that power, but it purports to be the declaration of a fact which is to be enforced by the 

authority of the Senate in some way, perhaps at the point of the bayonet of the Sergeant-at-Arms, who, I believe, is the executive officer 

of the Senate, or at the point of his mace if he bas one,-something 

of that kind. 

Now, I am opposed to making any half declaration, if any declaration at all, at this time. There is a proverb, I believe, that a half 

truth is an untruth. I think that as this is stated, even if yon put 

it in the form of an opinion, leaving it just where it is, it is a half 

truth, assuming it to be a truth at all, as I think it is, if by the word 

" counting" you mf\an quite a different thing; Senators will excuse the Hibernian form of·putting it. Counting a vote is an arithmetical or numerical performance; and deciding what paper is a legal 

Tote is quite a different thing. If this resolution read that the President of the Senate is not invested, by the Constitution merely, with 

authority to decide whether the State of New York, or the State of 

Georgia, or the State of Vermont is entitled under given circumstances 

to participate in the election of a President and Vice-President of the 

United States, I should give it my most cordial adhesion, if the question arose at a time and under circumstances when it was necessary 

to say anything about it. If it still further declared that by the force 

of the Constitution merely this body possessed no such power, I should 

give that also my cordial adhesion. If it said thattheHonseof Representatives, by force of the Constitution merely, possessed no such 

power, I should also accede to that with equal cheerfulness. If it 

said that both the Houses together, (whatever that may mean,) ex- cept as a "presence" which the Constitution speaks of, did not pos- sess by force of the Constitution alone the power to decide whether 

the electoral vote of the State of Vermont orof Georgia should enter 

into the deci~ion of the question who are elected President and VicePresident of the United States, I should say amen to that with all my 

heart. If it went still further and said that all three together, the 

President of the Senate, the Senate, and the House of Representatives, by force of the Constitution alone, possessed no such power, I 

should agree to that most cordially, not only as a mere intellectual 

question, as a legal definition of the terms and purport· of the Constitution, but as a question of the highestpatriotisminrespectof preserving the liberties of the people of the United States against usur- pation and tyranny on one side and anarchy on the other that would 

flow from a contrary decision, as it seems to me. For I happen to bE} one of those truly democratic persons who believe that one of the 

fundamental securities and perhaps the chief security of the liberty 

of the people of this Republic as a nation depends upon the security 

of every right in these respects, as well as a great many others, that 

the Constitution has given to the States of this Union, and I believe 

that so strongly that I do not intend that any act or declaration of 

mine shall contribute in any degree toward assuming by force of con- stitutional construction alone any authority in any one, or all, or any 

combination of the three personages (if I may me that expression) t& 

whom I have referred. 

I should hope, therefore, that the Senator from Alabama would not 

press this resolution at this time. There is no occasion for it in point 

of fact. It does not state except by construction and inference-if 

you can pnt construction and inference upon it-what is the real 

question; and that is the decision respecting the rights of States to 

cast their votes at all. It does not state, if it were put in that form 

only, one-half or one-third of what I believe to be the whole question, which if we are to make any statement about it at all, ought to 

be embraced one way or the other. 

So I trUBt that my friend from Alabama will not insist on bringing 

the Senate to a vote upon this subject so very important at this present time. 

Mr. THURMAN. Mr. President, I think it may safely be assumed 

that this question has been discussed so much and for so long a period that every Senator on this floor has his mind made up upon it. 

Believing that, I hope that we may soon come to a vote upon it, and 

I hope that the resolution will be adopted without any amendment 

at all. I think it presents one very clear proposition; and if anybody wants to have other propositions considered, he can do it by 

introducing a resolution, or whatever may be the proper form to 

adopt to bring it before the Senate. I hope that this resolution will 

be adopted precisely as it is and with as little debate as Senators may 

feel that it is their duty to indulge in. 

Mr. CONKLING. Before the Senator from Ohio sits down, will he 

allow me to ask him a question 7 

Mr. THURMAN. Yes, sir. 

Mr. CONKLING. Having been absent for a day or two I was not 

here when this resolution was reported. I shall be obliged to the 

honorable Senator from Ohio to inform me as-:far as he can do so what 

is the practical purpose of the resolution. · Why should any expression of opinion on this point take place in the Senate now 7 I say 

to the Senator that I ask this question not by way of any strategy or contrivance in debate, but I ask him because I presume that some reason may have been assigned or can be assigned which I know 

nothing about. - Mr. THURMAN. I do not think it is necessary to go into that. I am not actuated, as some members of other bodies appear to have been, 

by fears-that the democrats are going to perpetrate some great wrong 

in the count of the electoral vote next week, and I am quite as certab 

that there is no intention on the part of our republican friends to do 

anything that they think would be wrong; but I think it is a very good 

time to express the opinion of the Senate on this question. That is. 

all I have to say. 

The VICE-PRESIDENT. Is the Senate ready for the question Y 

Mr. EDMUNDS. I am not ready for it, and in order to test the sense of the Senate whether it will now with all the other bminess on its Calendar go into a discussion of all that is involved in this and 

the cognate things at this time, I move to ·lay the resolution on thetable. 

The VICE-PRESIDENT. The Senator from Vermont moves to lay the resolution on the table. 

1\lr. THURMAN. On which I ask for the yeas and nays. 

Mr. EDMUNDS. So do I. 

The yeas and nays were ordered; and th~ Secretary proceeded to 

call the roll. 

Mr. HILL, of Georgia, (when Mr. BROWN'S name was called.) My 

colleague [Mr. BROWN] is paired with the Senator from Colorado· [Mr. TELLER] on this question. 

Mr. TELLER, (when his name was called.) On all political ques~ 

tions I am paired with the Senator from Georgia, [Mr. BROWN.] If" 

he were present, I should vote "yea." 

Mr. WALLACE, (when his name was called.) I am paired with· my colleague, [Mr. CA-1\IEROY, of Pennsylvania.] If he were here, I 

should vote "nay." 

The roll-call was concluded. 

Mr. BALDWIN. l\ly colleague [Mr. FERRY] is paired with the· Senator from Texa-s, [Mr. MAxEY.] If my colleague were present,. 

he would vote '' yea." 

Mr. JONES, of Nevada. I am paired with the Senator from Indiana, [Mr. VOORHEES.] If he were present, I should vote "yea." 

Mr. McDONALD. The Senator from Kentucky [Mr. WILLIAMSj'· is paired with the Senator from Nevada, [Mr. SHARON.] If the Senator from Kentucky were here, he would vote "nay." 

Mr. BAILEY. On political questions I am paired with the Senator· from Nebraska, [Mr. PADDOCK.] If he were present, I should vote· "nay." 1 

Mr. McMILLAN. I am paired with the Senator from North Carolina [Mr. RANSOY] on this question. If he were here, I should vot& 

"yea," and I presume he would vote "nay." 

I 

' 
\ 

. 

. 

1162 CONGRESSIQNAL REOORD-. SENATE. FEBRUARY 3, 

The result was announced-yeas 22, nays 32; as follows: 

Allison, 

Anthony, 

~dwin, 

Blair, 

Booth, 

Bnrnside, 

Baprd, 

'Beok, 

Butler, 

Call, 

Cockrell, 

.Coke, 

Davia of W. Va., Eaton, 

YEAS-22. 

Cameron of Wis., 

Conkling, 

Davia of llllaoi8, 

Dawes, 

Edmunds, 

Hamlin 

. . 

Hill of Colorado, 

Ingalls, 

K6Uo~:g, 

Kirkwood, 

Logan, MolTill, 

JiAYS-32. 

Farley, Jonas, Garland, Jones of Florida, 

Groome, Kernan, 

Hampton, Lamar, Hams, McDonald, 

Hereford, McPherson, 

Hill of Georgia, Morpn, Johnston, Pendleton, 

ABSENT-22. 

Bailey, Ferry, Paddock, 

Blaine, Grover, Ransom, Brown, Hoar, Saunders, 

Bruce, Jones of Nevada, Sharon, ·Cameron of Pa., Mo:Mill.an, Teller, ·Carpenter, Maxey, Voorhees, 

Platt, 

Plumb, 

Rollins, 

Windom. 

~~lph, Saulsbury, 

Slater, 

Thurman, 

Vance, 

Vest, 

Walker. 

~allace, 

w~~. Withers. 

So the motion was not agreed to. 

Mr. EDMUNDS. Mr. President, I am bound to infer that the Senate has refused to lay this resolution on the table for fear that it may 

be called up again to-morrow morning or at some such time. Therefore I think, in order to enable the Senate to express its opinion upon, 

the resolution in its present form--

The VICE-PRESIDENT. The Chair reminds the Senator that the 

morning hour has now expired. 

Mr. MORGAN. I move that the Senate-continue the consideration ·of the resolution. 

The VICE-PRESIDENT. That involves the-postponement of the 

pending order. 

Mr. MORGAN. I make that motion. 

The VICE-PRESIDENT. The Senator from Alabama moves to . postpone the pending order, being the consideration of the Calendar 

-()f General Orders under the Anthony rule, for the purpose indicated 

by him . Mr. EDMUNDS. On that I ask for the yeas and nays. 

The yeas and nays were ordered. 

Mr. McMILLAN. I should like to inquire what is the pending order 

-to be postponed. The VICE-PRESIDENT. The pending order is the consideration 

of the Calendar of General Orders under the standing order of the 

.(lay, the Anthony rule. The question is on postponing that order. 

The yeas and nays were taken. 

Mr. McDONALD. I desire to state that my colleague [Mr. VooRHEES] is paired with the Senator from Nevada, [Mr. JONES.] If my 

-colleague were here, he would vote "yea." 

The result was announced-yeas 33, nays 23; as follows: 

'Bayard, 

Beck. 

Butler, 

<Call, 

Coke, 

Davia of W. Va .. Eaton, 

Farley, 

~arland, 

Allison, 

Anthony, 

Baldwin, 

Blair, 

;Booth, 

Burnside, 

YEAS-33. 

Groome, 

Hampton, 

Hams, 

Herefo~d, 

Hill of Georgia, Johnston, 

Jonas, 

Jones of Florida, 

Kernan, 

Lamar, 

McDonald, 

McPherson, 

Morgan, 

Pendleton, Pngh, 

Randolph, Ransom, 

Saulsbury, 

NAYS-23. 

Cameron of Wis., 

Conkling, 

Davia of lllinois, 

Dawes, 

Edmunds, 

Hamlin ' 

Hill of Colorauo, 

Hoar, Kellogg, 

Kirkwood, 

Logan, MclW.llan, 

ABSENT-20. 

Bailey, Carpenter, Jones of Nevada., 

Blaine, Cockrell, Maxey, "Brown, Ferry, Paddock. 

Bruce, Grover, Saunders, 

'Cameron of Pa., Ingalls, Sharon, 

Slater, 

Thurman, Vance, Vest, Walker, Withers. 

Morrill, 

Platt, Plumb, Rollins, 

Windom. 

~r, 

Voot'hees, Wallace, Whyt-e, Wil.llanis. 

So the motion was agreed to. 

The PRESIDING OFFICER, (Mr. INGALLS in the chair.) The 

order is postponed. - Mr. MORGAN. I move that the Senate continue the consideration ·Of the resolution. 

The PRESIDING OFFICER. The question is on the adoption of 

the resolution. 

Mr. EDMUNDS. The motion was to postpone the pending order 

.and that was the only orderly motion according to the previous rulings of the Vice-President. We are now therefore-- . The PRESIDING OFFICER. The Chair was advised by the Chief 

.Clerk, not knowing the condition of business himself. · Mr. EDMUNDS. The question now is on whatever anybody may move. We have not yet voted to proceed to consider this reBolution. 

The PRESIDING OFFICER. The Chair was informed that the .l'~olution was pending, probably erroneously. · Mr. MORGAN. I move *at the Senate proceed to the consider-

.a.tion of· the resolution. 

1l!e PRESIDING OFFICER. The Senator .from Alabama moves that the Senate proceed to tbe-consicleration of the resolution previously read. 

Mr. EDMUNDS. I ask for the yeas and nays on that question. 

The yeas and nays were ordered and taken. 

Mr. TELLER. On all political questions 1 am paired with the 

Senator from Georgia, [Mr. BROWN.] If be were present I should 

vote "nay." Mr. JONES, of Nevada. On this question I am paired with the 

Senator from Indiana., [Mr. VooRHEEs.] Were he present I should 

vote "nay." 

The result was announced-yeas 31, nays 18; as follows: 

Bayard, 

Beck, 

Butler, Call, Cockrell, 

Coke, Davis ofW. Va., 

Eaton, 

Anthony, Baldwin, Blair, 

Booth1 Burnside, 

YEAS-31. 

Farley, Jonas, Garland, Jones of Florida, 

Groome, Kernan, Hampton, McDonald, 

Harris, McPherson, 

Hereford, Morgan, Hill of Georgia, Pugh, 

Johnston, Randolph, 

NAYS-18. 

Davia of lllinois, Hoar, 

Dawes, Ingalls, Edmunds, McMillan, Hamlin, Morrill, Hill of Colorado, Platt, 

ABSENT-27. 

Allison, Ca~w;er, Bailey, Co g, 

Lamar, 

Logan, Maxey, 

Paddock, Pendleton, Saunders, 

Sharon, 

Blaine, Ferry, Brown, Grover, 

Bruce, Jones of Nevada, 

Cameron of Pa., Kellogg, Cameron of Wis., KirkWood, 

So the motion was agreed to. 

Ransom, Sanlsbury, Slater, 

Thurman, 

Vance, Vest, Withers. 

Plumb, Rollins, 

Windom. 

Teller, Voorhees, Walker, 

Walla<Je, Whyt-e, 

Williams. 

The PRESIDING OFFICER. The resolution is before the Senate. 

Mr. EDMUNDS. Let it be reported. 

The PRESIDING OFFICER. The resolution will be read . The Chief Clerk read the resolution as submitted by Mr. MORGAN. 

Mr. BLAIR. Mr. President, I rise to make a motion to commit this 

rosolution to the CoiiUp.ittee on the J ndiciary. It seems to be assumed · bytbe older Senators in this body that the subject has been exhaustively discussed in previous years, that they have tJieir minds thoroughly settled upon the great questions that are involved in this res- olution in all their ramifications, and that they are ready to vote 

upon it, when it is admitted by everybody that there is no occasion 

in existing emergencies for the expression of legislative opinion on the subject at all. 1 am the youngest member on the floor of the 

Senate, I think, and I am not anxious to vote on this resolution. I 

admit that the tendencies of my own mind and of my own investigations on this subject, so far as I have been able to make them, are rather favorable than otherwise to the resolution ; and yet I am not 

prepared to vote for it at this time. I think the topics involvedinit are altogether too important for the majority of the Senate and the 

older members of the Senate to be justified in forcing an expression 

of opinion by a formal vote when there is nQ occasion for it, as they 

admit; and if I am obliged to vote upon this subject during this ses- sion or any time I shall be glad to be instructed by the Committee on the Judiciary when opportunity has been given them to form and 

to express it maturely. 

If there were necessity for immediate action, I should feel otherwise; but as it is I think it almost a matter of courtesy which older 

members should perfOI'm toward those who are less ready to vote 

until there shall be occasion for it, that this resolution be sent to the 

Judiciary Committee, a. committee organized by the Senate to treat 

of questions of this kind and to give to other and younger mem- bers who have less opportunity for the investigation of this particular class of subjects the benefit of their examination and counsel. I 

hope that the resolution will be sent to the Committee on the Judiciary. The PRESIDING OFFICER. The Senator from New Hampshire moves that the resolution be committed to the Committee on the 

Judiciary. 

Mr. BLAIR. I call for the yeas and nays. 

The yeaa and nays were ordered. l' 

Mr. THURMAN. I do not rise to debate this matter, but to call 

the attention of my friend from New Hamshire to the fact that a majority of the committee that reported this resolution are members • of the Judiciary Committee. 

1\Ir. EDMUNDS. Mr. President, if any committee has reported 

this resolution, it is a committee of some caucus and not a committee 

of the Senate of the United States. I have no doubt, therefore, that 

the Senator from Ohio refers to some committee of which the Constitution and the rules of the Senate have not any cognizance. That 

may be true. We have been told in the public newspapers and otherwise ·informed that since the advent of that happy day, when the 

parrty that is called or calls it~elf the democratic party came into 

power at the Capitol, the legislative branch of the Government bas 

been chiefly carried on nights and Sundays and at other 'COnvenient 

times by an organization embracing people of particular views or a want of particular views, as the case may be, considering out of leg-
... 

i881. CONGRESSIONAL RECORD-SENATE. 1163 

islative halls what would be I must suppose the most popular thing 

to do next <>r not to do next, and its rescripts and arrangements have 

been brought forth and attempted to be put in the form of laws and 

resolutions and so on. I did not certainly know whether that was true although I was strongly inclined to believe it, until the Senator 

from Ohio tells us that a majority of the committee who reported this 

resolution constitute a majority of the Committee on the Judiciary. 

Mr. THURMAN. Will the Senator from Vermont allow me to interrupt right there 7 

Mr. EDMUNDS. With the greatest pleasure. 

Mr. THURMAN. I did say so; but I said it under a misapprehension. The resolution had been here so long that I was under ·the impression that it had been reported from the committee of which the 

Senator from Alabama is ch~irm~n. I find I was mistaken in that, 

and therefore my statement to the Senator from New Hampshire was incorrect. 

Mr. EDMUNDS. Yes, l:lr. President, that was what I was going to 

try to show from the face of the official print now before me. This 

does not appear to be a caucus print precisely, which I hold in my 

banrl. This says : 

Forty.sixth Congress, second session.-Senate Mis. Doc. No. 103. 

In the Senate of the United States, June 15, 1880, ordered to be printed. :Mr. MORGAN submitted the following resolution: 

Here follows the resolution. My friend from Ohio, therefore, was mistaken in saying that a m~jority of the Committee on the Judiciary, 

to which the Senator from New Hampshire has proposed to refer this 

resolution, constituted a majority of the committee or a part of it, 

(he did not say a majority, I believe,) that reported this resolution, 

if by that he referred to a committee of the Senate, because no com- mittee of the Senate has ever considered this resolution, for it has 

not been referred to any committee of the Senate at all. It may still 

be true, and I am inclined to believe it is, that a majority of the Committee on the Judiciary composed a part of some committee or other 

aasemblage of individuals and persons who, outside of the hours of 

the Senate and the hours of the people in that" otherplace"-which 

I believe is the constitutional phrase-have considered what sort of a resolution it would be most advantageous to the interests of that a.aso- ciation of gentlemen to whom I have referred to permit. So the cor- rection that my friend from Ohio has made is really a comparatively 

unimportant one; but we now have the fact that this resolution that 

is supposed to be of so much importance, either in respect of pending ~vents or in respect of something else, as to induce a majority of this 

body to set aside all the pension cases on the Calendar and all the cases of private claims and all the cases of general public consideration, for the purpose of taking up this resolution at this time. 

Now, what the Senator from New Hampshire has said has very 

great force. It may not be in accorda~ce with the designs, (and I 

believe that is a perfectly polite word ; I do not mean to use any 

<>ther)-it may not be in accordance with the designs of that com- mittee, whatever it was, or that other body of people, if it were not a committee, who framed this resolution; but if the reference to a -committee is in accordance with the practice of the Senate that has 

endured and been followed in general for a longer period of time than 

that to which the Senator from Ohio referred yesterday when he said 

that for seventy years the Senate had marched over to the Honse of 

Represt'ntatives to be present at the opening of the certificates and 

the counting of the votes for President and Vice-President of the 

United States. Why, then, should not this resolution be referred to 

the Committee on the Judiciary, or to the committee of which the 

distinguished Senator from Alabama is the chairman to take into con- sideration the state of the law touching all these questions f Why 

should we not have the consideration, the study, the conclusion, with 

its reasons, of one or the other of these committees f The committees 

of this body are supposed to be at present in safe hands, unless indeed 

it should be referred to the Committee on Revolutionary Claims of 

which my distinguished friend from Rhode Island [Mr. ANTHONY] is 

the chairman, and perhaps the fear might be that if it were so referred 

it might not be in the hands of a majority of' people for the moment 

who would be entirely willing from that mere cause to carry into 

effect the edicts of any caucus, if there had been one, but might be 

disposed to consider the resolution on its constitutional or, borrowing 

the name of the committee, its revolutionary merits, whatever they 

might be. So I do not think that I would vote to send it to the Committee on Revolutionary Claims. It might imperil the <:anse of con- stitutional freedom this week and next, to do so, and I should be sorry 

to do anything imperiling the cause of constitutional freedom either 

this week or next or any other week that I know of. But to send it 

to the Committee on the Judiciary of which the distinguished Senator from Ohio is the facile p1·in.ceps would be to send it, I was going to 

say-but that would be getting outside of anything that is in the 

rule-I was going t-o say back to the bosom of its friends from which 

it sprang. I am not sufficiently informed to be justified in saying 

that exactly; and indeed, as I look at the phraseology of the resolution, I am strongly inclined to think that the distinguished chairman 

of the Committee on the Judiciary did not compose it or write it out. 

It does not bear the characteristics that I have so long observed with 

admiration that adorn the character and cultivation of the hon-

<>rable chairman of the Committee on the Judiciary. But still as the 

:S_enate. evidently considers it embrac~s a ~ubject of great constitu- 't10nal Importance, (wh~ther of practical 1D1portance or not at this 

time remains to be seen,) if the Senate does with it as it has done 

almost always with similar questions it will gladly send it to that 

committee for early and careful and constitutional consideration and 

report, and I hope it will be done. 

The whole subject deserves inquiry. It is one of the most interesting and important, perhaps I ought to say the most interesting 

and important of any of the subjects that can enter into the theory or the operations of the Government of the United States. Why 

not, then, allow that committee to consider it f Has anybody stated 

the reason f We have not heard any. Why not allow that committee to report upon the subject, and to define, if it can, what it believes to be the powers, and where they may be vested, mentioned 

in the article of the Constitution touching this subject, and what 

means, if any there may be, can be wisely and lawfully provided for 

clearing up all points of probable or even possible dispute and difference, all collisions and tumults of party bias and hate, and putting 

the state of the law, as the phrase is in the appointment of the com- mittee of the Senator from Alabama, into a clear condition, defining or limiting or lodging these duties in the hands of somebody or some board or some tribunal f Why not f 

It is only a short time since that the present occupant of the chair 

[1-:lr.INGALLS] offered a resolution upon this subject which had been 

taken, as I am informed-and I think I have seen it since-from 

the institutions of the fathers, from the days of Jefferson, and which 

simply provided that the Senate, in the peformance of its constitutional duty, would receive the House of Representat.ives on the 

day fixed by law, for the purpose of doing whatever the Constitution 

required to be done in respect of the opening and counting of the 

votes for President and Vice-President; and yet although that reso- lution provided for the simplest formality, although it had been sanc- tified by commendation, unanimously received, of the men who occu- pied the Halls of the two Houses of Congress in 1801, it was sent, on the motion I believe of the Senator from Alabama, certainly on the 

motiQn of some of the gentlemen who seem apparently disposed not 

to refer this resolution, to the committee of which that Senator is 

chairman. 

The PRESIDING OFFICER . . The hour of half past one having 

arrived, the Senate resumes the consideration of its lmfinished 

business, being the Indian severalty bill. 

Mr. MORGAN. I move to postpone-- A • t.':. 

The PRESIDING OFFICER. The Secretary will, report the title 

of the bill which is the unfinished business.· The CHIEF CLERK. A bill (S. No. 1773) to provide for the allotment of lands in severalty to Indians on the various reservations, and 

to extend the protection of the laws of the States and Territories over the Indians, and for other purposes. 

Mr. MORGAN. I move to postpone all prior orders, with a viewof 

continuing the consideration of the resolution which has been under 

discussion. 

The PRESIDING OFFICER. The Senator from Alabama moves that the pending order be postponed. 

Mr. WINDOM. What is the pendinO' order Y 

The PRESIDING OFFICER. The Cierk will again report the un- finished business of the Senate. 

The Chief Clerk read the title of Senate bill No. 1773. 

Mr. WINDOM. I had the impression that the pension appropriation bill was the pending order. · The PRESIDING OFFICER. .The Senator is misinformed. The 

bill just reported by the Clerk is the unfinished business which was yesterday by unanimous consent informally laid aside for the purpose of considering the pension appropriation bill, and the bill just 

reported by the Clerk was called up prior to adjournment last even- ing and became the unfinished business of the Senate. The Senator 

from Alabama now moves that the pen.ding order, which is the unfinished business just reported, be postponed. 'J 

1-:lr. EDMUNDS. Postponed till when f 

Mr. MORGAN. With a view of continuing the resolution. 

Mr. EDMUNDS. There are oJ:!Iy two motions to postpone that I 

know of under the rules, if the rules make any difference ; one is to 

postpone to a day certain and the 6ther ·is to postpone indefinitely ; 

and therefore I should be glad to have the question put in the way 

the rules require. 

The PRESIDING OFFICER. The Senator from Vermont is cor- rect. · 1 1\Ir. THURMAN. I suggest to my friend from Alabama to make his 

motion to postpone until to-morrow, and if we get through with the 

pension bill it will be easy enough to rescind that order and take np 

the allotment bill. The Senator from Vermont has made the point 

that the rules require a motion to postpone to a time certain or indefinitely. Therefore I suggest to my friend from Alabama that he move a postponement until to-morrow. 

Mr. MORGAN. The purpose is not to displace that order of busi- ness but to dispose of this resolution. It is not in hostility to that measure at all. I therefore modify my motion, and move to postpone 

the consideration of the present order until to-morrow with a view to 

take up the resolution whichhas been under discussion this morning. The PRESIDING OFFICER. The Senator from Alabama moves that the pending order he postponed until to-morrow. 

Mr. EDMUNDS called for the yeas and nays. 

The yeas and nays were ordered and taken. 
- \ 

I• -

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, 

• I 

1164 CONGRESSIONAL RECORD-SENATE. 

Mr. ALLISON. The Senator from North Carolina [Mr. RANsoM] 

stepped out of the Chamber a moment ago and asked me to pair with 

him. If he has not voted I shall refrain from voting; otherwise I 

should vote "nay." 

Mr. TELLER. As this assumes a political phase, I am paired 

with the Senator from Georgia, [Mr. BROWN.] I would vote "nay" 

if he were present. 

The result was announced-yeas 31, nay~ 19; as follows: 

YEAS-31. 

Bayard, Farley, Kernan, 

Beck, Garland, McDonald, 

Entler, Hampton, McPherson, 

Call, Hams, Mor£.an, Cockrell, Hereford, Pen eton, 

Coke, Hill of Georgia, Pugh, 

Da .. ds of W.Va., Johnston, Randolph, 

Eaton, Jonas, Saulsbury, 

NA.YS-19. 

Anthony, Conkling, Ingalls, 

.Blair, Dawes, Kellogg, 

.Booth, Edmunds, Kirkwood, 

.Burnside, Hill of Colorado, Lo~ Cameron of Wis., Hoar, Me · an, 

A.BSENT-26. 

Allison, Carpenter, Bailey, Davis of Illinois, Baldwin, Ferry, Blaine, Groome, 

Brown, Grover, 

Bruce, Hamlin, 

Cameron of Pa., Jones of Florida, 

Jones of Nevada, 

Lamar, 

Maxey, Paddock, 

Plumb, 

Ransom, 

Saunders, 

Slater, 

Thurman, 

Vance, 

Ve:iJr W er, 

Wh~e, Wit ers. 

::\Iorrill, 

Platt. 

Rollins, 

Windom. 

Sharon, 

Teller, 

Voorhees, 

Wallace, Williams. 

The PRESIDING OFFICER. 

business, is postponed. 

The regular order, the unfinished 

Mr. EDMUNDS. Mr. President, I think the Senate must not have 

considered exactly the idea throwing aside this Indian bill in this 

way; therefore I move to reconsider the vote by which it was postponed until to-morrow. · The PRESIDING OFFICER. The Senator from Vermont moves that the vote by which the pending order was postponed until to- morrow be reconsidered. 

Mr. EATON. Did the Senator vote with the majority~ 

1\:Ir. HARRIS. Did the Senator from Vermont vote for the motion 

to postpone Y t_, 

The PRESIDING OFFICER. The Chair is not advised. 

Mr. EDMUNDS. I did not. 

Mr. EATON. Then he cannot make the motion. 

Mr. EDMUNDS. That is true. 

The PRESIDING OFFICER. Does the Senator from Connecticut 

make a point of order on the motion made by the Senator from Vermontf 

Mr. EATON. Yes, sir. 

Mr. MORGAN. I move that the Senate proceed to the consideration of the resolution which has been under discussion this morning. 

The PRESIDING OFFICER. The Senator from Alabama moves that the Senate proceed to the consideration of the resolution which 

has heretofore been read by the Clerk. 

Mr. BOOTH. Before the vote is taken I desire to call the attention of the Senate to the fact that a general appropriation bill, the 

bill making appropriations for pensions, has been before the Senate now for two days, and it is very important that it should be passed. 

I therefore trust that the motion of the Senator from Alabama will 

not be concurred in, and that the Senate will proceed to the consideration of the pension bill. 

Mr. HOAR. I expect to vote for the resolution of the Senator 

from Alabama, and I agree with him that it is a proper resolution to 

be passed during the present session of Congress, possibly with some amendments which may suggest themselves to the Senate. I think 

it is proper, in consideration of the recent history of this country, 

that a declaration to the extent certainly to which this resolution 

goes, should be put on record. But I do not think, and I appeal to 

him whether I am not right, that this should be insisted upon at the 

present time, to the displacement of all the other important business 

before the Senate. Let the electoral count go on; let both Houses 

proceed under the resolution which has been sent down to the other 

House from the Senate already. No man then will suppose that 

there is any purpose anywhere-nobody in the country will be disturbed by the idea that there is any purpose anywhere except what 

appears disclosed on the face of the resolution itself. There will be no embarrassment in dealing with proposed amendments or modifications from the impression growing out of the fear that possibly some unseen meaning may lurk in this resolution which will. em- barrass a very important constitutional duty that is so soon to be 

performed. 

:Mr. President, what reason is there which can be given for displacing the proposition to facilitate the settlement of the pension cases now pending, for the postponement of that pension billY Whatever 

may be the policy which will be agreed upon, everybody, I suppose, 

agrees that there should be some provision, either by a simple in- crease of administrative force or by the pending amendment to that 

bill, to grant relief to the soldiers who are now waiting for their pensions. There is ·nothing in tragedy more moving than some of the appeals which come to Senators in their mail day after day from soldiers 

and widows who are dying broken-hearted at the delay .of justice 

under the existing administration of the Pension Office. In saying 

that, I mean not to intimate any reproach in the lea-st to any existing 

executive officer. I believe, on the contrary, that the failure is a fail- ure on the part of Congress to provide an adequate administrative 

force in the Pension Office and in the other various offices; but there are soldiers by the thousand whose honest claims were made two and 

three years ago, whose evidence as they believe is ample, and yet whO' 

get not even a response. They are obliged to send to their Senators or Members to avail themselves of their influence to learn why it is 

that not even a response is made a-cknowledging the filing of the evidence on which their title to relief depends. Every day, every hour 

that the Senate defers action upon this question increases the probability that this session of Congress will pass away without any adequate relief to this most meritorious class of claimants. And it seem~ 

to me that when the Senate has reached and undertaken the consideration of the pension bill, when, if I correctly recollect, a Senator is entitled to the floor for the expression of his opinion upon the bill 

who has commenced but not yet concluded his remarks, we ought 

not to lay it aside for a mere naked declaration of an opinion on any 

question, however important. 

I will aid by my vote the Senator from Alabama to take up aud to 

pass this resolution next week, or within a very short time, when tho 

existing pressure of the pension bill shall have passed away; but the 

insisting upon the right of way to this scheme here and elsewhere is an attack, and a most dangerous attack, possibly a fatal attack, upon 

the mea-sure.s calculated to relieve the pensioners who are waiting for 

justice. 

1\Ir. WINDOM. Mr. President, I would not venture to say a word on this question, which I think would be more properly said by the 

chairman of the Committee on Appropriations, did I not suspect 

from remarks made by the Senator from Vermont as to the origin of 

this resolution that the chairman of the Committee on Appropriations may be a little embarrassed, and therefore does not feel at liberty to urge his appropriation bills as he otherwise would do. Hence 

I feel it to be my duty to say a word in behalf of the Appropriations 

Committee. We have now pending the bill appropriating some fifty 

million dollars for pensions. We have also prepared, and now before 

the Senate, ready for action, another bill making appropriations for 

the Post-Office Department. There is also in the Committee on Appropriations, ready for action, and will be, I suppose, reported to the 

Senate very soon, the bill making appropriations for fortifica,tions. 

So it will be observed that the Senate is a good deal behind the 

House in its action on the appropriation bills. I know if the honorable chairman of that committee, with the zeal which he always 

displays in behalf of the appropriation bills, were not embarra-ssed 

by some cause which I cannot explain, he wonld .. stand up here in 

the presence of the Senate and urge immediate action upon these bills. 

There are but four weeks left of the session. If we expect to com- plete the appropriation bills and avoid an extra session, it·seerns t() me of the utmost importance that we should give to the appropriation 

bills the right of way, instead of laying them aside to take up a mere political measure, if it be such, that will occupy probably one or tw() or three days' time. 

There is a special reason that I wish to submit, in addition to what 

has been said by the Senator from Massachusetts, why the pension 

bill should be passed at once. It is not merely an appropriation to. 

pay pensions for the next year; but the Senate has added since the 

bill was reported from the committee nearly eighteen million dollars 

to pay deficiencies. Those deficiencies are absolutely necessary to be 

provided for; and I am informed by the Commissioner of Pensionsat least I heard him make the statement--that there are many pensions which cannot now be paid which have been passed upon, but 

the meney cannot be furnished because it has not been appropriated. 

I think I am not mistaken in that fact; if I am the other members o~ 

the Appropriations Committee will correct me. There, then, are over seventeen million dollars of deficiencies with pensions that have been 

allowed unpaid which ought to be paid at once, and the money onght 

to be furnished. 

Now, I submit that the Senate cannot, with any justice to this 

great class of deserving American citizens, lay aside this bill and· further postpone the payment of pensions found due and only awaiting the supply of money, in order to take up an unimportant measure forthesake of a political discussion. 

Mr. HILL, of Georgia. 1\fr. President, I hope in view of what thegentlemen on theothersidehave severally said and in which they seem to be very earnest, that they will pardon me for a suggestion. They are very anxious to save time. Evidently they are sincere in that. 

They a-dmit that this is a very unimportant matter anyway, and some of them say they are inclined to favor it anyhow, and a good many of 

them have favored it. Now, I suggest to the gentlemen that if theywill just quit talking we will pass this measure and get it out of th& 

way in fifteen minutes, and we might as well get rid of it in fifteen· minutes as in fifteen hours. If they are really sincere and want to· save time, let them quit talking. If they continue talking it will be 

the talk, and not the resolution, that consumes time. 

Mr. HOAR. If the Senator from Georgia will agree to reciprocat& 

that great favor, I will agree for one to quit talking no'Y' if he will• quit talking the next time I ask him to. 

Mr. HILL, of Georgia. I do not understand the Senator. Let us. vote now. 
1881. OONGRESSIONAL RECORD-SENATE. 1165 

Mr. CONKLING. Mr. President, having heard the distinguished 

and taciturn Senator from Georgia, I feel moved to ask a question. 

Before doing so, however, I would make to the honorable Senator 

from Ohio, the chairman of the Committee on the Judiciary, as I do 

now, my acknowledgments for the very luminous and satisfactory answer which he was ·good enough to give to a question of mine a few moments ago. I asked hinl'theobject of pressing the resolution 

now; and his answer most have satisfied every inquiring mind in the 

Senate. Now, in the hope that I may receive an equally satisfactory answer to another question, I venture to propound that to whom it 

may concern; and I shall be grateful to any Senator on either side 

who will favor me with the information, where does this resolution come from, the one the Senate is asked to take up Y 

Mr. WALLACE. The Senator from Alabama, I believe, offered it; 

it is on the Calendar upon his motion. 

Mr. CONKLING. My honorable friend from Pennsylvania ex- i>resses a belief which shows there is not such faith, no, not in Israel. 

I wonder if the Senator from Pennsylvania really believes that this 

Tesolution comes from so distinguished a source, and from that source alone, as the Senator from Alabama. If he does, then all these Senators have been making use of many idle words, for which I hope they 

will be brought into judgment, especially the Senator from Vermont 

who, in some talkative observations that !listened to from him some ,time ago, stated that it had been alleged here that this resolution was reported from a committee, and then he went on to say that that com- mittee most belong to that invisible empire known as the democratic caucus. Now comes the Senator from Pennsylvania, who in the 

chance medley of newspaper reports is called the charioteer of that 

caucus; the newspapers say he presides in it himself personally, with -headquarters in the saddle I presume when he takes the field in pereon; and he says that this resolution comes from the honorable Senator from Alabama. 

Well, Mr. President, it could not come from a more distinguished .or a more thoughtful Senator; and if it does come from a single Sen- .ator as a resolution not sanctioned by any committee, either by any 

.authorized committee or by any of those invisible, unauthorized, 

nondescript but potent ial committees, (which my honorable friend 

from Florida [Mr. JONES] smiles with satisfaction when he remem- bers control and govern tho business of this body,) then I submit 

to the Senate that it presents a question additional to those which 

I have heard discussed. Is it possible that at this stage of the ses- sion and upon an abstract question, a resolution offered by a single 

Senator, never referred to a committee, never reported by a com- mittee, not having the imprimatur and authenticity of a caucus of 

the democratic party, is to be taken up not only against the regular 

'Orders of the Senate, not only against the committees of the Senate 

.and their reports, but against the appropriation bills, which we have 

understood, as I thought by common consent, were to have what is 

-called in the Senate the right of way. If that is so, without going 

any farther I should concur most folly in the objections which have 

been made by other Senators to any such proceedings. I submit 

that it makes the action of the Senate as to its order, as to the ar- rangement of its business, a mere hap-hazard chance affair from 

<day to day. And yet, Mr. President, I expect at least to be prepared at the 

:proper time for the question covered by this resolution, and for the 

treatment that question receives in the resolution; and therefore I 

-say to the Senator from Alabama and to other Senators who favor 

this proposition that at an appropriate time, at any time when the 

.question comes conveniently and practically before the Senate, I shall 

be found with them in denying that the presiding officer of the Senate, 

be he who he may, whether the Vice-President or the President of 

the Senate elected by the Senate, has any power whatever to adjudi- -cate whether the certificate of the electoral votes from a State shall 

be counted or not, or if there be two such certificates which shall be 

counted. This resolution declares: 

That the President of the Senate is not invested by the Constitution of the United 

States with the right to count the votes of electors for President and Vice-Presi- ·dent of the United States. 

Did the resolution stop there, I should have great doubt about it; 

the Senator from Alabama no doubt would have great doubt about 

it. I say no don bt he would, because he has added other words to -exclude that doubt. Did the resolution stop where I have stopped in reading it, and the operative word should be deemed the word ' 'count," different if not conflicting opinions might well arise upon the exactness and legal truthfulness of the proposition it would assert. 

That I say because I conceive that counting may be of various kinds. 

He who counts the chairs in the Senate Chamber counts them, no doubt, within the clear definition of the word. The expert in money, 

the cashier or receiving or paying teller of a bank who counts coin or bank notes, with a view to separating the true from the false, to 

detect the counterfeit coin or the counterfeit bill, also counts. Bot 

between the function he performs and the function of him who counts 

the fingers of his hand, there is a difference so broad that it need not 

be pointed out. 

So, there being no dispute about electoral >otes, there being no doubt that evetry State which has voted had the right to vote; in 

other words, that every State claiming to be a State is and was on the day when the votes were cast a State of the Union; there being .no doubt abou~ the authenticity of the papers; there being bot one 

electoral certificate from the State ; there being in short nothing 

whatever to do in order to make it a fact accomplished, save only to 

open and exhibit the contents of one paper after another, and then 

to tabulate and add together the votes as shown, I should not be 

prepared to say that the President of the Senate bad not as much 

power as would suffice for that. In the presence of the tw0 Houses, 

and in the absence of objection, practically, virtually, in common parlance if not in strict exact legal phrase, he would have the power. 

You, Mr. President, have no power to appoint any committee, in a strict sense ; yet should a message come from the House of Representatives that the House had disagreed to an amendment and a conference were asked, whoever at that moment happened to be the 

occupant of the chair would appoint a committee of conference on the part of the Senate. It would be done sub silentio; it would be 

done with the assent of the Senate; it would be done as the exertion 

of a power,. some part of which would be drawn, of course, from the 

fact that the man who makes the appointment is the presiding officer 

of the body; the residue of the power to do the act would be drawn 

from the body itself because of the assent it would give. So, nobody 

dissenting, there being no question about the validity, identity, or authenticity of electoral votes, should the President of the Senate 

proceed to that purely ministerial, in one respect hardly even ministerial, function-! might almost say mere manual, formal, matter 

of course thing which would be the adding up of these votes, the 

displaying of the certificates before the two Houses, their submission to the tellers appointed by the two Houses, unquestionably some part of his power to do it would be beyond that conveyed in 

the mere assent of the witnessing bodies. How much of it, what 

proportion of it, if it could be measured in exact scales, is not important for the present purpose. Some of it would result from the 

function of the presiding officer and his function as recognized in the 

Constitution, and some portion of it would result from the assent, 

the acquiescence, and therefore the authority of the two Houses of 

Congress assembled before him. I say, then, that had the resolution 

asserted merely an absence of power in the presiding officer of the 

Senate to count, because of lack of definition of the word "count," 

I should at least hesitate to agree to such phraseology. It however 

concludes with these words: 

So as to determine what >otes shall be recei>ed and connted or what votes shall 

be rejected. 

I may feel at liberty hereafter to criticise that language, and if so, 

only with a view of making more unmistakable, if I can, the idea 

which I have no doubt it is designed to convey. I will not do it now. I allude to it merely to say that the resolution means to distinguish, 

it does distinguish between what in one sense would be a "count" 

within the meaning of the lexicon and within the meaning of the 

law and what in another instance, although a quite different function, might also fall within the word" count." Tlae concluding mem- ber of this resolution was, I assume, designed to deny to the presiding officer of the Senate that judicial or quasi-judicial power, that 

power of deciding or determining, which must be invoked when the 

question of the validity, authenticity, or identity of electoral votes 

arises. I observe the Senator from Alabama does me the honor to 

listen to that statement, and perhaps he will do me the favor to let me know whether I am right in the supposition. 

Mr. MORGAN. The Senator from New York is quite right in the 

view upon which the resolution was drawn, unless it may be as to the mere question of identity. I have not considered that proposition. I 

do not regard it as being included in the words I have used there, 

though it may be. I am not committed on that point, however. 

Mr. CONKLING. I will say frankly to the Senator that he has 

touched one matter to which I referred a moment ago when I said 

that I might possibly venture to criticize this language. He says now that the question of the identity of votes might not be brought within 

the scope of these words. Suppose from the State of New York there 

had been sent to the presiding officer of the Senate an electoral cer- tificate by a messenger and a duplicate by mail; suppose apparently, 

and ostensibly from the same authorities, afterward and within the 

allotted time should come two other duplicates, and on examining 

them it should be found that the result was not the same as evidenced 

by the two certificates; suppose one should declare that one of New 

York's thirty-five electors had voted as none of his associate electors 

voted, had voted separately for a President of the United States and 

for a Vice-President of the United States, one of them not being a resident of the State in which he lived; that would be a constitutional 

vote; and the question would arise whether the certificate which attested that New York's thirty-five electors had voted together, or whether the certificate which asserted that thirty-four of New York's 

electors had voted together and one had voted adversely, was to be 

received and counted. There would be a question of identity. The 

Senator perhaps may say that it could be described by other phrases, 

that it might be also a question of validity. I submit that practically 

it would be a question of identity. So would the question of identity 

arise in many other not impossible, hardly improbable cases, and I 

do not believe that the presiding officer of the Senate has power to 

determine that question. 

The inquiry in a given instance is how Connecticut has voted; 

how the electors appointed by the State of Connecticut have cast 

their ballots, and that question :may be made up of many elements. 

It may begin with the inquiry, first, whether the State of ConnectiI 

' 
1166 CONGRESSIONAL RECORD--- SENATE. FEBRUARY g, 

cut appointed any electors at all or not; second, who those electors 

were; third, whether they voted and voted at the time and p~e 

required ; fourth, whether they voted and certified their votes ac- cording to the Constitution and the act of Congress executing the 

Constitution, and so on. These questions precede the count at last or the refusal to count at last these votes ; and neither might be more nor less than a question of mere identity. Do they present occasion 

for the action of the President of the Senate ! Thes• words, I submit, 

if they do not cover all the cases to which the law they assert applies, 

should do so, and should be restricted so as to cover no other case. It is said that the State of Georgia (without impediment, error, or failure in any other respect, I will assume) sends here an electoral 

certificate which evidences the votes of electors cast not at the time 

and at the :place designated by law, but cast on a day which the law 

did not designate for thai purpose. Of course I will not express, if 

I have one, any opinion as to the ultimate resolution that should be 

made of that question. I refer to it to treat it for a moment only as a question whether that certificate is valid or not, whether it is com- petent or not, whether it complies with those provisions of the Constitution and of the law, without which it would be of no conse- quence any more than any fugitive paper on which men bad written 

their names and recitals. When that question is presented, in my 

belief the presiding officer of the Senate as such, unauthorized by any 

special warrant for that purpose either of the law-making power or of the two Houses of Congress, has no more power to decide and determine it, than the Sergeant-at-Arms of the Senate. He has power 

to do other things. He has power to be the recipient, and upon his 

conscience and his oath the custodian of the certificates; he is bound 

by his obligations to preserve them carefully and inviOlably; he is 

empowered and commanded to bring them into the presence of the 

two Houses, and there open them; and at that point the Constitution 

turns its back on him and speaks to him no longer. If by the 

authority of the two Houses he is authorized or commanded to 

affix his signattll'e to a certificate which recites or asserts or formulates the result, that he bas power to do, not alone because he 

is presiding officer of the Senate, not alone because the Constitution 

invests him with any function or power whatever, but because, in 

lawyer's phrase, pro hac vice he becomes the organ, the agent, the 

deputy of the Senate and of the Honse of Representatives to what- ever extent that may impart power, or of the whole law-making 

power including the Executive if the authority under which he act 

be a statute as distinguished from a concurrent resolution. 

Mr. EATON. May I ask my friend if that is not simply his a-ction as the presiding officer of the two Houses, not as the presiding officer 

of the Senate Y 

Mr. CONKLING. I understand my honorable friend to mean by 

that a suggestion of his own, not a question. 

Mr. EATON. I do. 

Mr. CONKLING. Then although I am prolonging my very casual 

and unpremeditated part in this debate as I did not mean to do, I will 

say a word to the honorable Senator from Connecticut with whom, 

by the bye, I agree upon all matters as often and as fully as it is possible for me to agree with any gentleman disabled and embarrassed 

by the politics held by my distinguished friend. I know of no man w bo succeeds, in spite of his democratic belief, in being right oftener 

than the honorable Senator from Connecticut. I cannot, however, 

agree now fully with that he says if I understand him. The idea he 

conveys to me is that you, Mr. President, [Mr. INGALLS in the chair,] were you, as it would be very proper yon should be, the presiding 

officer of the Senate next Wednesday, might, under the direction of 

the Senate and the Honse, do something more vigorously, more effectually, at least more appropriately than you a member of the Senate 

could do were yon not the officer presiding in the joint meeting of 

the two Houses. Without an opportunity to re:fl.ect upon it, I greatly 

doubt that. It does not occur to me that the act of presiding, the 

permission of the two Houses to preside, the honor and precedence 

conferred by being selected to preside, over the two Houses of Congress met together, would of itself impart any authority or confer any 

power upon that presiding officer beyond the power to preside with 

whatever that implies. 

The two Houses have met together; I will not say have convened, 

because I think that is a misleading word in this connection. The 

two Houses have met together. The electoral certificates have been 

brought in; they have been opened; none of them have been challenged ; they have all been tabulated by the tellers; they have been 

announced in the hearing of the two Houses and of all the people 

who witness the proceeding. The declaration has been read first by 

the tellers, or one of them, to the presiding officer. and second, by 

the presiding officer to my honorable friend from Connecticut, and 

to such other of my friends on the other side as are still in doubt of 

the result of the last presidential election, or whom the news of that 

election have not yet reached. All that has been done, and the Houses 

have separated; the Senate has come back into its Chamber; the 

House remains in its Hall. The two Houses have before resolved, as t.hey have heretofore in ancient times frequently resolved, that a par- ticular person named shall sign a certificate which shall perpetuate 

and recite the action that day of the two Houses thns met. How does 

the Senator from Connecticut conclude that the person who had presided in this joint meeting which is now dissolved, who comes after- waru to be denoted as the person to present to the President-elect 

his certificate, to sign that certificate, does that beeause he· presided' 

in the joint meeting, or that he could not do it as well had he not 

presided at all Lt the joint meeting t How does the honorable Senator from Connecticut arrive at that conclusion f 

Without finally answering him, in the frankness of a first impression I should say that the authority under which this certificate 

is to be signed is the direction of the Senate and of the House, and· I should say that the Senate and the Honse had just as much power 

to select and depute the honorable Senator from Florida before m& 

[Mr. JONES] to go, as I know it would give him infinite pleasure 

to go, to a republican President and Vice-President, however much 

it might wring his heart to do so had they been democrats, and apprise them that the two Houses had ascertained and made record of the 

election in the different States. When the honorable Senator from 

Florida went to perform that function, with all the pomp and circumstance not only but with all the eagerness which I know would· attend him upon such a mission, my belief is that it would be as imposing, as effectual, as complete in law, as if the honorable Senator 

from Florida had been also the person selected to act as moderato 

of the meeting composed of the members of the two Houses when the> 

electoral votes were counted; and I strongly suspect on re:fl.ection 

that my honorable friend from Connecticut, older and a better lawyer as he is, will say I am not quite wild in my suggestion. 

I do not believe that the office of President of the Senate, or that 

the Constitution, or that the act of presiding, confers any power upon 

the presiding officer of the Senate or of the two Houses except, after 

having beyond those presented and opeend the electoral votes, to discharge duties which by parliamentary law, usage, and intendment pertain to a presiding officer. When he comes on the next day or a futureday to set down and make record historically of what has been done 

before, and certify to the persons chosen as the incumbents of the 

offices, that they have been ascertained to be elected, that act in my 

belief is to be performed by him not in virtue of the circumstance 

that it so happened that he and not another was selected to preside over the two bodies when they met together. If the Speaker of the 

Honse of Representatives were ill, if in his absence the compliment 

of presiding in the Honse should fall for a day or for a week upon the 

youngest and the least notable member of the Honse, and if on the 

occasion of the two Houses meeting together some disposition of mere compliment or courtesy should lead the Senate or its presiding officer 

to waive his privilege of presiding, and the temporary Speaker, a member of the House, the junior member of the Honse, should preside, I think my honorable friend will scarcely argue that that circumstance would clothe him with power to do anything except to 

preside ; and if afterward the Houses separated and each directed 

him to be the mouthpiece and organ of the two Houses in informing 

the President and Vice-President-elect, my honorable friend I think 

would not insist that he derived the power to do that, the authority 

to do it, from the circumstance that he had presided, instead of from 

the fact that the two Houses by deliberate resolution bad committed 

to him, in the language of the old commissions, having special con- fidence and trust in him, the duty to go and do their mission and 

utter their voice in that behalf. 

But, Mr. President, the Senate owes the honorable Senator from 

Connecticut some reprimand or penalty for in:fl.icting upon it this. part of the remarks I have m"a.de. I rose not to discuss this question 

at length, but to disabuse the mind of the Senator from Alabama, S()o 

far as one Senator on this side is concerned, of the idea that there is a disposition either to misstate the law or to shrink from an assertion 

of the law, because it is not deemed wise and expedient upon a :mere moot question now like this, to thrust aside pension bills, appropriation bills, and all other bills, on the 3d of February, in a session 

which is necessarily to end on the 3d of March. 

The PRESIDING OFFICER. The question is on the motion of· the Senator from Alabama, [Mr. MORGAN,] to proceed with the con- sideration of the resolution submitted by him. 

Mr. EDMUNDS. On that I ask for the yeas and nays. 

The yeas and nays were ordered, and the Secretary proceeded tocall the roll. 

Mr. McDONALD, (when the name of Mr. VooRHEES was called.) 

My colleague [Mr. VooRHEES] is paired with the Senator from 

Nevada, [Mr. Jo~s.] If my colleague were present, he would vote 

''yea." 

~Mr. WINDOM, (when his name was called.) I am paired with the 

Senator from North Carolina, [Mr. VANCE.] If he were here, I should 

vote" nay." 

The roll-call wa-s concluded. 

Mr. DAWES, (after having voted in the negative.) I am paired 

with the Senator from Kentucky [Mr. WILLIAMS] and desire to withdraw my vote. 

Mr. JONES, of Nevada. I am paired with the Senator from Indiana, [Mr. VooRHEES.] Were he here, I should vote "nay." 

Mr. TELLER. I am paired with the Senator from Georgia, [Mr. 

BROWN.] If he were present, I should vote" nay." 

Mr. BAILEY. I am paired with the Senator from Nebraska, [Mr. PAD DOCK.] If he were here, I should vote "yea." Mr. BALDWIN. My colleague [Mr. FERRY] is paired with the 

Senator from Texas, [Mr. MAXEY.] If my colleague were here, he 

would vote "nay." 

Mr. DAVIS, of West Virginia. I am requested to announce t~ 

. I 
1881. CONGRESSIONAL RECORD-SENATE. 1167" 

the Senator from Maine [Mr. liAMLIN] is paired with the Senator 

H-om North Carolina, [Mr. RANsol\I.] 

The result was announced-yeas 30, nays 20; as follows: 

Bayard, 

Beck, 

Butler, 

CalL 

Cockrell, 

Coke, Dans of W. Va., 

Eaton, 

Allison, 

Baldwin, 

Blair, 

Booth, 

Burnside, 

YEAS-30. 

Farley, Jonas, 

Garland, Jones of Florida, 

Groome, Kernan, 

Hampton, Lamar, 

Hams, McDonald, 

Hereford, McPherson, 

Hill of Georgia, Morgan, Johnston, Pendleton, 

NAYS-20. 

Cameron of Wis., Ingalls., Conkling, Kellogg, Edmunds, KirkWood, 

Hill of Colorado, Logan, Hoar, McMillan, 

ABSENT-26. 

.Anthony, Davis of Illii:cis, Paddock. 

Bailey, Dawes, Randolph, Blaine, Ferry, Ransom, 

Brown, Gro>er, Sharon, 

Bruce, Hamlin, Teller, 

Cameron of Pa., Jones of Nevada, Vance, 

Carpenter, Maxey, Vest, 

So the metion was agreed to. 

Pugh, 

Saulsbury, 

Slater, 

Thurman, 

Walker, 

Withers. 

Morrill, 

Platt, 

Plumb, 

Rollins, 

Saunders. 

Voorhees, 

Wallace, 

Whyte, 

Williams, 

Windom. 

The PRESIDING OFFICER. The resolution is before the Senate, 

and will be reported by the Secretary. 

The Secretary read the resolution submitted by Mr. MoRGAN June 

15, 1880, as follows : 

Resolved by the Senate, (the House of Repr_eaentativea concurring,) That the President of the Senate is not invested by the Constitution of the United States with 

the right to count the votes of electors for President and Vice-President of the 

United States so as to determine what votes shall be received and counted or what votes shall be rejected. 

The PRESIDING OFFICER. The question is on the motion of the 

Senator from New Hampshire [Mr. BLAIR] to commit the resolution 

to the Committee on the Judiciary, on which the yeas and nays have 

been ordered. 

The Secretary proceeded to call the roll. 

Mr. BAYARD, (when Mr. RANsoM's name was called.) The Senator from North Carolina, [Mr. RANsoM,) as I believe has already been 

announced, is paired with the Senator from Maine, [Mr. HAMLL.~.] 

The Senator from North Carolina would vote "nay" if present. 

The roll-call was concluded. 

Mr. TELLER. On this subject I am paired with the Senator from 

Georgia, [Mr. BROWN.] If he were present, I should vote "yea." The result was announced-yeas 2'2, nays 32; as follows: 

Allison, 

Anthony, 

Baldwin, 

Blair, 

.Booth, 

Burnside, 

Bayard, 

Beck, 

Butler, 

Call, 

Cockrell, 

Coke, 

Davis of lllinois, 

Dans of W.Va., 

YEAS-22. 

Cameron of Wis., Kellogg, Conkling, Kirkwood, 

Edmunds, Logan, HID of Colorado, Mc1illlla.n, 

Hoar, Morrill, 

Ingalls, Platt, 

NAYS--32. 

Eaton, Johnston, 

Farley, Jonas, 

Garland, Jones of Florida, 

Groome, Kernan, 

Hampton, Lamar, 

Rams, McDonald, 

Hereford, McPherson, 

Hill of Georgia, Morgan, 

ABSE~T-22. 

Bailey, Dawes, Paddock, 

Blaine, 9 • Ferry, Ransom, 

Brown, Grover, Sharon, 

Bruce, Hamlin, Teller, 

Cameron of Pa., Jones of Nevada, Vance, 

Carpenter, Maxey, Vest, 

Plumb, 

Rollins, 

Saunders, 

Windom. 

Pendleton, 

Pugh, · Ba.ndolpb, 

Saulsbury, 

Slater, 

Thurman, 

Walker, 

Withers. 

Voorhees, 

Wallace, 

~£~s. 

So the motion was not agreed to. :Mr. EDMUNDS. I am very sorry that the Senate has apparently 

intimated that the committee of which my honorable friend from 

Ohio [Mr. THURMAN] is the honored and distinguished chairman, is 

not suitable to be trusted with an investigation of this subject; but 

I cannot help supposing that it will have more confidence in the com- mittee of which the honorable Senator from Alabama [Mr. MORGAN] 

is the chairman. So, without taking up any time, which I do not 

wish to do, I move that the resolution be referred to the Select Committee to take into consideration the state of the law respecting the aacertainin~ and declaration of the Result of the Elections of President and VICe-President of the United States. 

The PRESIDING OFFICER. The question is on the motion of the 

Senator from Vermont [Mr. EDMUNDS] to commit the resolution to 

the select committee named by him. 

Mr. EDMUNDS. I ask for the yeas and nays. 

The yeas and nays were ordered; and being taken, resulted-yeas 

19, nays 35; as follows : 

Allison, 

.Anthony, 

.Boeth, 

=~· 

u 

YEAS-19. 

Burnside, 

Cameron of Wis., Conkling, 

Edmunds, 

Hill ofAColorado, 

Ingalls, 

Kellogg, 

KirkWood, 

Logan, 

Morrill, 

Plat..t, 

Rollins, 

Saunders, 

Windom . 

:Bayard, 

Beck._ Butler, 

Call, 

Cockrell, 

Coke, 

Davis of Tilinois, 

Davis ofW. Va., 

Eaton, 

NAYS--35. 

Farley, 

GarlaD.d, 

Groome, 

Hampton, 

Harris, 

Hereford, 

Hill of Georgia, Johnston, 

Jonas, 

Jones of Florida, 

Kernan, 

Lamar, 

:McDonald, 

McPherson, 

Morgan, 

Pendleton, 

Pugh, 

Randolph, 

ABSENT-22. 

Bailey, Dawes, McMillan, 

Blaine, Ferry, Maxey, 

Brown, ~~~ Paddock, Bruce, , Plumb, 

Cameron of Pa., Hoar, Ransom, 

Carpenter, Jones of Nevada, Sharon, 

SanlsbUlllf', 

Slater, 

Thurman, 

Vance, 

Vest, 

Walker, 

Whyte, 

Wiihere. 

Teller, 

Voorhees, 

Wallace, 

Williams. 

So the motion was not agreed to. 

Mr. EDMUNDS. Inasmuch as it appears that the Senate is unwill-- ing to have this subject considered by a committee, I takeititis willing to consider it itself, though perhaps that is stating it rather too- strongly. So I move to amend the resolution by inserting after the- word "that" in the first line of the print the words "in the opinion 

of the Senate, neither the Senate, nor the House of Representatives, 

nor," and then after "is" to strike out the word "not/' so as tomake'- it read correctly, so that the resolution if thus amended will read: 

That, in the opinion of the Senate, neither the Senate, nor the Honse of Repre- sentatives, nor the President of the Senate is invested by the Oonstitntion of the~ 

United States with the right to count the votes of electors for Presidentand VicePresident of the United States so as to determine what votes shall be received an<Lconnted or what votes shall be rejected . 

It will be noticed that this resolution is measuring tlle power of 

the President of the Senate by the test of the provisions of the Con .. stitution alone, and not by sucn a test as might exist if under the- Constitution a law had been· passed regulating the subject; so that 

the resolution as it stands purports to be a declaration that the Constitution itself1 in the apsence of any law, has not vested the power- to determine what votes shall be received and counted, or what votes- shall be rejected, in the President of the Senate. 

I proposez as I said some time ago, not to state a half truth. While 

the Senate IS attempting to guard against what it might conceive to 

be a usurpation, if such a thing should be attempted by the President 

of the Senate, I think it equally ought to guard, ,so far as the declaration of its opinion ~a!J:• against what I cqnsider in the absence 

of a law would· be a · · r usurpation by either the Senate or the ' 

House of Representatives under the Constitution alone. I believe · that if the framers of the Constitution had been called upon to ex- press their opinion as to the possibility of vesting the power to decide, _ as a constitutional power, such a question in either House of Congress, it would not have received a single vote. It will be remem- - bered that wheu the Constitution was framed it was proposed at one time that the electors should be appointed by the National Legislatm'e, as some people at that time, thinking we were to have a nation, 

called it; and that was finally, after discussion, and after, I believe, havin~ been once agreed to, entirely reconsidered, and the notion of 

investmg any power over the choice of a President of the United 

States in the.National Legislature was absolutely rejected. When 

they came to provide for the possibility of a failure to elect by a · 

majority of all the electors appointed, they took care, after exhaustive discussion, to provide not that the two Houses of Congress in 

joint convention or separately should elect a President and Vice-Presi-· dent of the United States, or either of them, and that neither House 

voting by persons should be authorized to exert any power or will· over tne matter, but that the respective States, in their character as -

such, represented in the House of Representatives, should, voting by 

States and not .by numbers, ·in the case of a failure to elect by the · electors previously provided fort elect a President of the United States. 

That, to my mind, with the otn.er circumstances and debates which., I do not wish to take up time to refer to at this time, demonstrates 

that the language of this provision in the Constitution can by no legal construction, can by no historic illumination, can upon no prin-- ciple of safety or policy, be considered as conferring upon either the 

Senate or the House of Representatives, as a deposition of a constitutional power by force of the Constitution alone, which this resolution is speaking about, any such power, any more than I agree it can be,considered that the language of the Constitution warrants the 

inference that tl{e President of the Senate has any such power. 

Now, I want to make a complete declaration upon this subject, and 

not a half declaration, if we are to declare at all; and so I move this 

amendment. 

Mr. THURMAN. I only rise to make a single observation, which 

is that the resolution would read somewhat amusingly, as it seems to 

me, if the amendment were adopted. It would then read, That it is· the opinion of the Senat-e, the House of Representatives concurring. 

If the House of Representatives concurs, that is the opinion of the· Senate; if the House of Representatives does not concur, then it is 

not the opinion of the Senate. I hope the amendment will be voted 

down. 

1\Ir. EDMUNDS. That is perfectly true, and it is pefectly true as . the r'esolution stands now : 

Resolved by the SenateThen comes the parenthesis-

(the HOtise of &preaentatives concur-ring,) That the President of the Senate is nott. invested by the Constitution 
1168 CONGRESSIONAL RECORD-SENATE. FEBRUARY 3, 

with a certain power that is named. That is to say we are of that 

opinion if the Honse of Representatives is willing that we should have 

it; or we are of that opinion, to put it in the very best possible way 

for the safest intent of the resolution, if the House of Representatives is also of that opinion. So I hope my friend will not criticise 

my having followed the artistic and rational language of the resolution itself reported from that spiritual, and immaculate, and unseen, 

and indescribable committee, to which the honorable Senator re- ferred. 

Mr. TELLER. Let the amendment be reported. 

The Secretary read the amendment. 

Mr. EDMUNDS. Perhaps I ought to say in fairness and propriety 

that if this amendment should meet with the approval of a majority 

of the Senate, I shall move to so correct the resolving clause in the 

first line as to not leave it where the Senator from Ohio correctly 

states it is left, and where the resolution itself is left. 

The PRESIDING OFFICER. The question is on agreeing to the 

amendment of the Senator from Vermont, [l\Ir. EDMID\"DS.] 

Mr. EDMUNDS. Let us have the yeas and nays. 

The yeas and nays were ordered. 

Mr. CONKLING. I understand, as I was diverted when the Senator from Vermont offered the amendment, and if my understanding is 

wrong I beg him to correct me, that be intends to assert that neither 

the President of the Senate alone, nor the Senate alone, nor the House 

of Representatives alone, has this power. · l\Ir. EDMUNDS. That is exactly what my amendment says. 

The PRESIDING OFFICER. The roll-call will proceed. 

The Secretary proceeded to call the roll. 

Mr. TELLER, (when his name was called.) On this question I am paired with the Senator from Georgia, [Mr. BROWN.] If he were present, I should vote " yea." 

Mr. WALLACE, (when his name was called.) On this question I 

ampaired with my colleague, [Mr. CAMERON, of Pennsylvania.] If 

he were present, I should vote" nay." 

The roll-call wa-s concluded. 

Mr. RANSOM. I desire to state that I am paired to-day on all poUtical questions with the Senator from Maine, [Mr. HAMLC\.] If he were here, I should vote "nay." 

Mr. KIRKWOOD, (after having voted in the affirmative.) When 

I voted I forgot that I was paired with the Senator from Virginia, 

!Mr. JOHNSTON.] He has gone out of the Chamber unwell, andre-

-quested me to pair with him on all votes on this proposition, which 

I did. I withdraw my vote. 

Mr. DA. WES. I am paired upon this question and upon all political questions for the afternoon with the Senator from Kentucky, 

[Mr. WILLIAMS. J 

Mr. DAVIS, of Illinois, (after having voted in the negative.) I 

withdraw my vote upon the proposition. 

The result was announced-yeas 18, nays 28 ; as follows : 

Allison, 

Anthony, 

Baldwin, 

Blair, 

Booth, 

Bayard, 

Beck, 

Butler, 

Call, 

Coke, 

DavisofW. Va., 

Farley, 

YE.A.S-18. 

Burnside, Hoar, 

Cameron of Wis., Ingalls, Conkling, Kellogg, Edmunds, Logan, Hill of Colorado, :Morrill, 

N.A.YS-2. 

Garland, Kernan, 

Hampton, Lamar, 

HarrLS, :McDonald, Hereford, McPherson, 

Hill of Georgia, Mor!mn, Jonas, Pend:ieton, 

Jones of Florida, Pugh, 

.A.BSEl\TT-30 

Bailey, Dawes, Kirkwood, 

Blaine, Eaton, llcllillan, Brown, Ferry, :Maxey, Bruce, Groome, Paddock, Cameron of Pa., Grover, Platt, 

Carpenter, Hamlin Plumb, 

Cockrell, Johnston, Ransom, 

Davis of Illinois, .Jones of Nevada, Sharon, 

So the amendment was rejected. 

Rollins, 

Saunders, 

Windom. 

Randolph, 

Saulsbury, 

Slater, 

Thurman, Vest, 

Walker, Withers. 

Teller, Vance, Voorhees, 

Wallace, Whyte, Williams. 

Mr. COCKRELL. I aimed to get the ear of the Chair before the 

roll-call began, to announce why I should vote in a certain way; and 

not having had that opportunity, I did not vote, for the simple rea- son that I believe the naked proposition that the Senate by itself independently, or the House of Representatives by itself independently, or the President of the Senate by himself independently, has no au- thority, or right, or power, whatever to decide what electoral votes 

shall be counted, and that nothing else should be counted. I believe 

that proposition, and therefore I did not vote in this case. Mr. EDMUNDS. I am strongly inclined to believe it is true myself, and that is why I vobed for it, and it would be entirely incorrect 

to say that that might account for its not having got a majority of 

the votes of the Senate, and yet the majority of the Senate is per- fectly consistent, or approximately consistent, in refusing to accede 

to that simple proposition, for in the joint rule, as it was called, that 

the Senate did pass at its last session, I believe, a provision was con- tained that was exactly the opposite of the principle of the amendment I had the honor to offer, for that joint rule did provide that in 

..respect of certain q-aestions as to the reception and computation of 

the votes coming from States and purporting to be electoral votes, one Honse alone, of its own will, no matter what the other thought, 

should decide that question. That is good State-rights doctrine, I 

suppose, because it was agreed to! . Mr. THURMAN. I said this morning that I hoped the resolution 

would not be amended, and in accordance with the wish I then ex- pressed I voted against the amendment of the Senator from Vermont 

without any reference whatsoever to its merits or demerits. I do not 

wish to see a solution of all the conundrums that can be propounded 

in reference to presidential elections tacked to this resolution, which 

is a plain, simple, clear proposition and ought to stand on its own bottom and be decided as a distinct and separate proposition. Therefore 

I voted against the amendment, and I do not think I shall change 

my mind and vote for any amendment whatever. I want to see the 

resolution passed as it is. 

The PRESIDING OFFICER. The question is on the passage of 

the resolution. - Mr. THURMAN. I call for the yeas and nays. 

Mr. WHYTE. Mr. President, it is always embarrassing to differ 

from one's party friends upon a question which is political or quasi 

political in its chara.cter; and although upon a former occasion I had 

the honor to express my sentiments ~nd the opinions which I entertain upon this question, I feel that I might do myself injnstice in 

voting against this resolution without a very brief explanation of my 

vote. 

In the first place, the resolution itself is rather of a dubious character. It involves two distinct propositions, the one in reference to 

the ministerial duty of the President of the Senate in counting the 

votes as tabulated by the tellers, and the other as to the judicial determination of what are votes themselves. Blended as they are, it 

makes it more difficult for me to vote on the resolution, because I 

entertain the opinion that the President of the Senate has the right 

under the Constitution to count the votes of the electors as they are returned from the States, upon the theory that there will be no con- test; that under the provisions of the acts of Congress providing the 

machinery how these votes shall be authenticated, and there being 

single State governments in all the States, no question can arise as to which is the correct return, and therefore the counting of the 

votes in such a condition of things is a mere ministerial duty. I have 

long entertained that opinion; I have on more than one occasion 

enunciated it, and I have seen no reason in the long years that I have 

had occasion to look at it to change that early-formed opinion. 

The f-ramers of the Constitution when they sent it down to the 

States provided in their resolution for the first meeting of Congress, 

and used these words : 

That the electors should meet on the day fixed for the election of the President, and should transmit their votes, certified, signed, se..Ued, and directed as the Constitution requires, to tae 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 or the Senate for the sole 

purpose of receiving, opening, and counting the votes for President. 

Mr. Langdon was accordingly chosen President of the Senate for 

the sole purpose of receiving these votes, of opening these votes, 

and of counting these yotes; and for years after that they were so opened, they were so received, they were so counted; and the President of the Senate gave his own certificate over his own hand that 

he had, in the presence of the Senate and of the Honse of Representatives, opened the votes, counted the votes, and certified to whom- soever the Presidency had gone by the election, and the Vice-Presidency in the same way. Then it ran on and a new system in part 

grew up, but not changing its character except in so far that a com- mittee was subsequently appointed to advertise the gentlemen chosen 

to the offices of President and Vice-President of their election . So it came down until 1868, so far as my knowledge of the proceedings is concerned, when I had the honor of holding a seat upon 

the :floor of the Senate. The then dominant party, not recognizing 

the rights of certain of the Southern States, passed a joint resolution excluding from the electoral count those State3, and declaring 

that they should have no part or lot in that count unless they had 

complied with certain prerequisites. That joint resolution went to 

the President of the United States. The President (the office being then held by Andrew Johnson) vetoed the joint I'esolution, and the 

veto came before the Senate with the joint resolution for consideration. 

M:r. 1\IORGAN. Did not 1\Ir. Lincoln veto it 'I 

Mr. WHYTE. No, sir. .Mr. Johnson vetoed the joint resolution to 

which I refer. It was a previous joint resolution which Mr. Lincoln 

returned to Congress without his approval, upon the ground that he 

had nothing to do with it; and Mr. Johnson sent this joint resolution 

back to the Senate with his objections, to which I ask the attention 

of my brothers upon the :floor on this side of the Chamber, because we stood here then a small band of democratic Senators, but eight 

in number, and every one of us voted to support the objections of 

the then President of the United States. This is his message: 

The mode and manner of receiting and counting the electoral votes for President and Vice-President of the United States are in plain and simple terms pre- scribed by the Constitution. That instrument imperatively requires that the Pres· 

ident of the Senate "shall, in the presence of the Senate and Honse of Represent- atives, open a.ll the certificates, and the votes shall then be counted." Congress has therefore no power under the Constitution, to receive the electoral votes or rt'ject them. The whole power ia exhausted, when, in the presence of the two Houses, the 1'0t~ are counted and the result declared. In this respect the power 
1881. CONGRESSIONAL RECORD-SENATE. 1169 

and duty of the President of the Senate are, under he Constitution, purely ministeriaL "When, therefore, the joint resolution declares 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 government, under which a State government 

shall have organized," a power is assumed whiohisnowheredelegated to Congress, unless upon the assumptwn that the State governments organized prior to the 4th 

of March, 1867, were illegal and void. • The joint resolution, by implication, at least, concedes that these States were States by virtue of their organizatiop prior to the 4th of March, 1867, but denies to them the ri!!ht to vote in the election of President and Vice-President of the United States ·It 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 reasnnof the rebellion, andhavenever?eenlegitimately-restil:ed. Being fully satisfied that they were never out of the Umon, and that thm.rrelaoons thereto 

have been legally >md constitutionally restored, I am forced to the conclusion that 

the joint resolunon which deprives them of the right to have their votes for President and Vice-President received and counted, ism conflict with the Constitution, and that Congress has no more power to reject their votes than those of the States 

which have been uniformly loyal to the Federal Union. 

When that message was received the question was put to the Senate, Shall the joint resolution be passed again, notwithstanding the 

objections of the President 'I As I said before, every democrat on this floor voted to sustain the objections of the President, and I will 

read their names, that my statement may not be questioned. Those 

who voted in the negative were _·Messrs. Buckalew, Garret Davis of 

Kentucky, Doolittle, Hendricks, McCreery, Patterson of Tennessee, 

Vickers, and WHYTE. So that long ago I was committed by vote, 

by judgment, to the belief that so far as the counting of the votes of 

electors was concerned, it was purely a ministerial duty on the part 

of the President of the Senate; that he had no power judicially to 

determine what States had the right to cast votes. I will admit, 

following the views of the great Chancellor Kent, that it is a casus omissus in the Constitution, and that before we do anything else it 

is our dnty to pass a constitutional amendment to provide for that case which our fathers never dreamed could exist in this American 

Republic, of two returns from two State governments each claiming 

to be the lawful government of a State. 

Therefore, Mr. President, with my view, with my record, I cannot 

vote for the resolution of the Senator from Alabama. 

Mr. CONKLING. Mr. President, the :::lenator from Maryland finds 

himself unwilling to take his place on the record upon this resolution 

without an explanation, and I find myself unwilling to do the same thing without at least a word of reply to the observations which have 

fallen from the honorable Senator. It has been a part, if not of his 

purpose, of the effect of his remarks, to convict the democratic mem- bers of this body of inconsistency; and ardently as I feel for the interests of the democratic party, not being attorney of record for that 

historic organization--

Mr. WHYTE. Will the honorable Senator allow me to interrupt 

him right there Y 

Mr. CONKLING. In the midst of this sentence f 

Mr. WHYTE.. I am the only remaining democratic Senator of that 

day in this body. 

Mr. CONKLING. As the last leaf upon the tree; not as the last rose of summer, but as the rose of last summer, I wish to offer to the 

honorable Senator from Maryland, and I trust he will receive, my 

profound condolence. As was said of Napoleon, that honorable Senator is wrapped in the solitude of his own originality. He is the last 

of the Mohegans; the last of the Barons ; the last of that long and 

historic line of statesmen who once belonged to the late democratic 

party; and I uncover in the presence of the sole representative of the 

pale memory of a thing that was. Resuming, now, the remark in the midst of which the honorable Senator interrupted me, anxious as I am to preserve as an antiquity the 

past consistency of the democratic party, I do not feel myself authorized, standing in the presence of the distinguished Senator from Ohio 

and of so many others able and authorized to bear up the tattered 

democratic banner, or even to expostulate against the exposure made 

by the distinguished Senator from Maryland of the inconsistency of 

those who have followed that faded.flag. I do not rise, therefore, to 

reply to that portion of the Senator's speech, but to dissent, as I do 

sharply although respectfully, from the argument or the sophistryfor that the honorable Senator must let me think it is-that the precedent he was pleased to cite proves anything in favor of his position. He goes back, not to the beginning of the Government, that 

would be lawyer-like, that would be a resort to a precedent on all 

fours and authentic; but he goes behind the existence of the Government; he goes to the prehistoric epoch, and displays to us a transaction begun, continued, and ended before the Constitution ever ~oke ; and from that he deduces the argument that now, proceeding 

under the Constitution and exemplifying it, we are inconsistent who 

depart, if we do depart, (which I shall deny in a moment,) from the 

precedent, as he calls it, established at a time when the Constitution was silent. 

It has been my fortune to hear distinguished members of this body, 

those whose rank and service and consideration gave them privileges 

.and liberties which do not pertain to me, read to the Senate what 

they themselves had said on past occasions. For the first time in my 

common-place experience, I venture upon such a presumption, and 

beg to read to the honorable Senator from Maryland in order to show, 

if nothing else, that I am at ~east c?nsistent with myself, the view I 

took four years ago of the pomt which so cogently and with so much 

.animation the Senator has presented. I said then and I say now of 

XI-74 

the counting of the electoral vote which chose George Washington 

President, which counting took place before there was a Constitution 

of the United States: 

In the first place the whole proceeding antedated the Constitution; it was before it was ratified; it was before it was proposed. Geologists would say it was prehistoric. It was a prefatory, or provisional proceeding. In the language of the 

resolution, ''proceedings were to be commenced under the said Constitution." 

The ship was to be launched, and the launch might be by the sails or the machinery of the vessel, or by external and imparted force. It might be, as the French 

would say, by an impulsion; and those who made the launch chose so to make it. 

The resolution did not profess to define or construe any clause in the Constitution. 

It merely designated an occasion, and referred to the objects of that occasion. It 

did not even profess to conform to the modes which the Constitution would bring in. The Constitution directed that the electors should send their certificates to the 

President of the Senate. This resolution suggested that they should be sent to the 

Secretary of the United States. "Who wa-s he 1 He was the Clerk of the old Continental Congress. They had but one House, and had a clerk. and this was the man. The resolution did not even propose that the counting should take place in 

the presence of the two Houses. 

How did the Senate reaard the action thus suggested~ 

George Washington ha<i been unanimously chosen President. Every elector had 

voted tor him. The electors themselves had been appointed with unanimity. Everybody from the beginning knew it would be so; it was a matter of course. John Adams had been overwhelminl!:lY elected Vice-President. To ascertain the 

election was a substantial and solemn proceedin& only as it is substantial and 

solemn for the Secretary of State to announce the ..1murth of July, or a holiday. The time "to commence proceedings," according to the suggestion of the resolution, was March 4, 1789. Ten States had ratified the Constitution. A quorum of 

the Senate was 11. No quorum came to the seat of Government till April6. Then no Senator was sworn in. It was January 3,1790, before the oath of office was taken. 

Till then there was no Senate and no Senator, but only Senators· elect. Ten months 

before they were sworn in as Senators, and on the 6th of April, 1789, eleven of those 

~~o ~~~~~!c::~t~:~ proceeded to swt the Government, and impart life 

They passed an order. Here it is: 

I am going to read it as the most emphatic and the briefest way of 

italicizing what I conceive to be, for the purpose now before us, its 

operative and distinguishing words: 

Ordered, ThatMr. Ellsworth inform the House of Representatives that a quorum 

of the Senate is formed; that a President is elect-ed for the sole Pnr:Q<>Se of opening the certificates and counting the votes of the electors of the several States in the 

choice of a President and Vice. President of the United States. 

I suspend the reading to observe, that had the resolution stopped 

here it would certainly be open to the argument of the honorable 

Senator. Even then that argument in my opinion would be fallacious 

for several reasons but conspicuously for this : had the House of Representatives sent to the Senate articles of impeachment and had the 

Senate passed a resolution that the honorable Senator from Illinois 

should be elected President of the Senate for the sole purpose of trying that impeachment, that resolution in my judument would not 

purport to divest the Senate of its function in that behalf. It would 

merely designate the Senator from Illinois to perform so much duty, 

to exert so much power, to incarnate so much of constitutional 

authority as resides in him who presides when the Senate tries an impeachment. Should the Governor of Maryland issue a commission 

addressed to one of the judges of a nisi prius court informing him that, 

reposing special trust and confidence in him, he was designated and 

appointed for the sole purpose of trying A B for murder, such order 

would convey to my mind the impression, and no other, that this justice of first instance-! know not the appellation in Maryland-this 

particular nisi prius judge was designated and appointed to go to that 

court of oyer and terminer, if so it be called in Maryland, and there, 

being there for that sole dnty, proceed to try the culprit to be ar- raigned for the highest crime known to Maryland law; but it would 

not dismiss the jnry; it would not abolish the common law; it would 

not overthrow the constitution of l\Iaryland; it would perform no function except to designate, not somebody else, but the particular 

person, and him alone, to exercise all the faculties, to wield all the 

powers, to administer all the judicial faculty lodged in the presiding 

officer of such a trial and in snch a court. So, should the honorable 

Senator from Rhode Island be, by an order of the Senate to-morrow, 

elected its presiding officer, for the sole purpose on Wednesday next, 

of counting the electoral votes, or conducting the count of electoral 

votes, or discharging (described by any other phraseology) that function, such an order of the Senate as I should understand it, would not, 

in the estimation of a hair, either add to or diminish the powers of 

the presiding officer of the Senate as those powers are found in the 

instrument, which is the warrant and the master of us all. 

Bnt the resolution did not stop there. so as to depend upon such an argument as I now present; it proceeded to declare: 

And that the Senate is now ready, in the Senate Chamber, to proceed in the pres. ence of the House to discharge that duty. 

What duty, I inquire of the honorable Senator from Maryland f If 

it were true that the presiding officer of the Senate, and he alone, were not only to bring in and display the certificates, not only to open 

the certificates, but to identify and verify and establish the votes, to 

adjudge whether they came from communities calling themselves 

States, and whether each of them was in fact a State, whether thoee 

certificates were forgeries or were genuine, in fine whether they had 

all the attributes and all the solemnities pre-requisite to votes, and 

then to declare their force and effect, to certify it-if it were true that 

the President of the Senate was "the be-ali and the end-all" of the 

matter, the Aaron's rod swallowing all the prerogatives before the fact 

and after the fact and of the fact, I inquire what was that "dnty" which the Senate was to proceed, in the presence of the House, to discharge' No duty save that of a spectator who witnesses a pageant f 
1170 CONGRESSIONAL RECORD-SENATE. FEBRUARY 3, 

I correct myself; not so so bstantial a. duty as that, because they can- not even be witnesses. If the presiding officer of the Senate is to proceed to read, as I now read the pamphlet before me, in his seat, no matter who maybe in this Chamber, orin any part of it while be does 

it, in no legihl., effectual, I will add in no substantial sense, are those 

who sit here witnesses. Senators around me see me in the act of 

reading from this book. Whether I read from it truly or falsely, cor- rectly or incorrectly, they have no more knowledge than the doorkeeper in the corridor or the members now in the other wing of the 

Capitol. Instead of being a duty to act as such witnesses, it would 

not even be a ceremonial; it would be the merest vain motion, as an Attorney-General, now gone, used to be fond of saying, it would be a mere mockery, the very derison of lega.l or practical proceeding. 

But the resolution does not yet stop : And that the Senate have appointed one of their members to sit at the Clerk's 

table to make a list of the votes as they shall be declared; submitting it to the wis· 

dom of the House to appoint one or more of their members for the like purpose. 

And Mr. Ellsworth reported that be had delivered the message. 

Will the honorable Senator from Mary land tell me for w bat Y If there was reposed with the President of the Senate as a single individual 

the power and the whole power to begin, continue, and conclude this 

transaction, for what purpose, nay under what permission of cour- tesy, I may say of decency, was the House of Representatives to appoint one or two men to sit at his elbow to peer over the thing be did Y A 

judge on the bench sitting alone bas the power to determine the issues 

of law and of fact before him. What would you think of the appointment by the order of somebody, of a. tipstaff, a teller, a mentor, a. sen- tinel, a watchman, a spy, an intruder to perch himself upon the bench 

and look over the judicial shoulder to ascertain whether the judge· committed fraud, was guilty of a cheat by statute or at common law 

in the rendition of a decision or in his manipulation and declaration 

of a paperf All this, Mr. President, is not, however, quite all. The light streams on this proceeding not from the resolution alone, but from what in 

the case of a diplomatic convention would be called the protocol, 

from what my astute and learned friend sometimes calls in another 

forum the res gestce, the surrounding circumstances of the transaction 

itself as it was enacted in real life. The Houses came together; they 

cotmted these votes. George W asbington had been chosen President, 

everybody bad voted for the electors, and every elector bad voted for 

George Washington. It was a solemnity to make the declaration, 

but it was the most formal and unnecessary solemnity that perhaps ever engaged a body of men. There was such a total absence of need 

to observe technical rules that it was quite natural that those who 

did it should observe the advice given by Lady Mac beth to her guests, 

to stand not upon the order of their going, but go at once. Under 

circumstances so full of invitation to disregard formality, on an oc- casion so obviously suggestive of the needlessness of adhering to formal observances, look and see what the two Houses did. After the 

certiftcates were opened ; after the tellers had verified, tabulated, and 

reported; after the announcement had been made; after the Houses 

had separated, a committee was appointed to do what Y I beg the 

attention of the honorable Senator to thi<J, because I understood him 

to emphasize with somewhat of ponderous particularity the fact that 

John Langdon signed a certain certificate in which n.ppeared certain 

recitals: 

A committee was appointed to prepare the certificates of election. One of the 

committee was Mr. Ellsworth and he had satin the-constitutional convention. The 

committee drew the certificate, and every word of it, and the President of the Sen- ate was directed to sign it, and he did sign it. He signed it not of his own motion, or because authorized by the Constitution, but by the command of the Senate 

speaking for both Houses, and he signed it as the organ and mouth· piece of the two 

Honses. • 

This reminds me that there is a missing link in my narrative as thus given, and I will now supply that link. There is in this pamphlet a memorandum of it which I will not stop to find but I will 

venture upon recollection to assert that Mr. :Madison, then a member 

of the House, came to the Senate and stated to the Senate that by a resolution of the House he had been directed to come and inform the 

Senate that the House committed to the Senate the preparation of 

the certificate, the solemnization of the fact, and had directed him to 

say that the Senate might determine the persons-my recollection is 

that the message was in the plural-that the Senate might determine 

the persons by whom this certificate should be signed. 

Mr. WHYTE. Will the Senator from New York allow me to cor- rect him Y I know that he is generally very accurate. The persons 

who were desi~ated by the Senate under the consent of the House were the indiVIdual persons who were to carry Mr. Langdon's notification to those gentlemen. Mr. Langdon, if the Senator will read 

his certificate, certifies that he himself did open and count the votes. 

Mr. CONKLING. My honorable friend leaps, if he will pardon me, 

before he comes to the stile or at least before I come to the stile. I 

shall not forget Mr. Langdon's certificate; I shall come to it in a moment. I am dealing with another point; but my friend's interruption has enabled me to fortify my recollection. I have found the 

very words in which the House declared itself. I will read them : Mr. Madison came to the Senate to say that the House had directed him to in- form the Senate that the House had agreed that the election should be certified or =:.d by such persons and in such manner as the Senate shall be pleased to 

My friend from Maryland is a lawyer and he is a well-taught and 

accomplished lawyer, and I should darken counsel by words were I to spend one moment in satisfying his mind that that messaue demonstrates that the House of Representatives directed that Mr. 

Madison should bear the message implying that they had the right 

and the power to designate any person or persons within their province whom they pleased to make this certificate upon the force and 

effect of which the honorable Senator has commented. 

Mr. WHYTE. Now, will the Senator allow me to interrupt him f 

Mr. CONKLING. Certainly. Jl.~. WHY';I'E. The Senat-or is always ver_y strong in what he states; 

but if he w1lllook at the Senate's resolutiOn, that the Senate immediately acted upon the notification of Mr. MadisonMr. CONKLING. Undoubtedly. 

Mr. \VHYTE. And "appointed Charles Thomson, esq., to notify 

George Washington, esq~, of his election to the office of President of 

the United States of America; and Mr. Sylvanus Bourn to notify 

John Adams, esq., of his election to the office of Vice-President of the 

said United States." And these were the two messengers who were directed to carry l\Ir. Langdon's certificate to those gentlemen. 

Mr. CONKLING. Doesmyfriendmean that when theHousegravely 

resolved and sent perhaps its most illustrious member to the Senate 

to bear its resolution, that the Senate might designate the persons to 

certify the result, it meant only that the Senate might name ames- senger who should carry word to General Washington of what had 

been done? 

Mr. WHYTE. That is the Journal of the Senate. 

Mr. CONKLING. Oh, no. If my honorable friend will loan me that 

Journal, I will undertake to demonstrate the fa.ctMr. WHYTE. It is the report of 1\Ir. Gorham, Secretary of the Senate. 

Mr. CONKLING. We shall see. Mr. WHYTE. If you read the verbal message of Mr. Madison, you will see that right upon it the action of the Senate took place. 

Mr. CONKLING. 1\fy friend will be sure that I shall read what he 

hands me and I shall do it without any teller to look over my shoulder to see that I read it correctly. Under the Constitution now, I 

have the sole power to read this page. That power resides with me, 

and, therefore, it would not be either appropriate or competent for 

the honorable Senator from Maryland or the whole Senate to raise a committee of pages or tellers or anybody else to come here and look over me to see that I do not garble or pervert these historic passaaes. 

There is a good deal I notice on this page that would be quite 0instructive, passages which escaped not the attention of the honorable 

S.enator from Maryland, but which owing to the rule which denies 

time to Senators here to express themselves, my honorable friend from 

Maryland did not think it worth while to read. I do not find upon 

this Journal any certificate signed by Mr. Langdon. Does the Senator find it here? 

Mr. WHYTE. Not there. It is in the volume of the electoral 

count. 

Mr. CONKLING. Then I will not look in the book that does not 

contain it. 

1\Ir. WHYTE. The message of Mr. Madison is in that book. 

Mr. CONKLING. I will look at the other. Whom did the honorable Senator say was appointed to bear this message 7 

Mr. WHYTE. A man by the name of Thomson. ~Ir. CONKLING. On the Journal I find this written by John Lang- don: 

SIR : .The Sen a~ of the U~ted .States have appointed you to wait on John Adams,. U~ted~~~te~tificate of his bemg elected to the office of Vice-President of the 

Does the Senator from Maryland perceive anything in that reading which illuminates him f The Senate has appointed you to wait. on John Adams with a certificate! That is the paper I am talking· about; that is the paper Mr. Madison came to the Senate to talk 

about; that is the paper which he said the House had resolved that 

the Senate might direct who should sign; that is the paper which a committee raised by the Senate prepared; that is the paper which 

the Senate directed John Langdon to sign. And now comes my bon-· orable friend from Maryland and he thinks that the House sent a message over here to say that the Senate might, after that was done, 

select anybody they pleased, either the Sergeant-at Arms, or anybody else they thought was a competent person in that regard, to go 

and carry that certificate to George Washington and to John Adams. 

I say to him that this very Journal says that they were even formal 

enough to put in writing the fact that Mr. Bourn was deputed to do 

what 7 To carry a certificate to John Adams. Mr. Bourn did not 

sign the certificate. It had been prepared by a committee of the 

Senate, a. committee raised by the House and sent over here committing to the Senate the whole conclusion of the matter. That committee prepared the certificate, and the Senate directed John Langdon 

to sign it, and he did sign it, and then he gave the certificate to Mr. 

Bourn and gave him his credential saying to him that he was authorized to go and give that to Mr. Adams; and 1\Ir. Thomson to give the certificate to General Washington. . ~Ir. President, I want now to advance the honorable Senator from 

Maryland one step in time if I can, and bring him to the occasion in 

1805 when the electoral votes were counted. The men were there· who met each other in the constitutional convention ; the men were there who laid the keel of our Constitution and of our institutions;: 
1881. CONGRESSIONAL RECORD-SENATE. 1171 

the men were there who building not in the gray twilight of the morn- ing, but with the beams of many centuries streaming upon them, laid 

the foundations of the government under which we live. They were not only profoundly learned in the science and in the evils of government; they were not only sufferers and students of the imperfections 

of many systems of government, but they were masters of language, 

and so careful were they in the formation of the Government, that 

they gravely appointed a committee on style, on style alone. Such a. committee now would be deemed finical, nay, it would be absurd, 

because all that comes from the statesmen of this epoch is sufficiently 

terse, sufficiently polished, sufficiently perfect to require no revising 

hand. But in that day they were more careful. 'Ihe men who were thus careful and thus equipped for their work were on the stage in 

1805. Among these men was Aaron Burr, never distinguished for the 

symmetry of his character, but conspicuously eminent always for two 

masterful faculties, one the keenness of his intellect, the otner the intrepidity of his character. He was the presiding officer of the Senate. 

He was not coy or bashful. He was not a man to shrink from re- sponsibility, opportunity, or prerogative. He was not a man to bell ttle, even if he did not magnify his office. To him, on the occasion I now refer to, the Constitution spoke in the ordinance requiring the President of the Senate to receive, keep, bring in, and open the certificates ; and although not addressed by the Constitution, he was the 

person observing the Constitution in those other words which, turning their back upon the presiding officer, declare "and the votes shall 

then be counted." How did Aaron Burr understand, how did he interpret, and expound 'I How did all the members of both of the 

Houses receive and sanction the interpretation of this clause of the 

Constitution 'f Mr. Burr statedThat pursuant to law there had been transmitted to him several packets, which, 

from the indorsements upon them, appeared to be the votes of the electors of a. President and Vice-President; that the returns forwarded by mail, as well as the 

duplicates sent by special messengers, had been received by him in 'dne time. 

And then he said that to which I ask the attention of the Senator 

from Maryland. Addressing the assembled members of both the 

Houses, Mr. Burr said: 

Yon will now proceed, gentlemen, said he, to connt the votes as the Constitution and laws direct, adding that, perceiving no ca.nse for preference in the order 

of openin~ the returns, he would pnrsue a geographical a.rra.ngeme:nt, beginning 

with the Northern States. 

The certificate had been signed by John Langdon; the Journal of 

the Senate bore the order appointing John Langdon; all the lights 

and shadows which fall upon the page to-day were freshly visible 

then. Aaron Burr was an astute lawyer, he was very largely taught 

in the science and in the realities of the Government of which he was an officer. He was speaking, eye to eye, before the face of the 

>:ery men, many of them, who sat in the constitutional convention or in the State conventions explained and carried it and who everywhere in the forum of discussion had been accepted as the students, 

the expounders, the masters of the meaning of the Constitution ; and 

yet he, speaking to them and speaking that the nation might hear, 

conducting this occasion while yet it was a novelty; before it had 

become by frequent recurrence the familiar thing which now it is, 

said to the two Houses: 

tumult and diBorder in the House. On that occasion violence of con- troversy distinguished the declaration of the count. On that occa- sion the two Houses separated, and each for itself pronounced, and 

pronounced :finally, whether votes should or should not be counted. 

On that occasion no man dissented, not one; and on that occasion 

the jaded ingenuity of no late brother, anxious to distinguish the 

occasion by some novelty of his, ever suggested that the President of 

the Senate had anything more to do with deciding the questions that arose than the Sultan of Turkey or the man in the moon. And yet 

it was my duty, as I thought, as teller, in the midst of a raging din, 

to read to the presiding officer of the two Houses the result of the 

vote as I found it to be, and the presiding officer thought it was his 

duty to do exactly that which in the form of a question to me the 

Senator from Maryland asserts was done by the· presiding officer in 

1805. No doubt of it, but had the presiding officer asserted or implied 

all that the honorable Senator imputes to him now, it would have 

been the veriest travesty, the veriest mockery1 the most insolent and 

outlandish burlesque upon the whole proceeding. 

The idea that Mr. Wade, as President of the Senate, after coming 

at the head of the Senate repeatedly along the corridors into this 

Chamber and then walking back again at the head of the Senate and 

announcing what the Senate had decided, he having had nothing on earth to do with it except that which you, siriat this moment have 

to do with ·the very imperfect argument that am making, ;namely, 

to be doomed to sit there and hear it, I say had Mr. Wade, after all 

that and after himself announcing and ratifying the propriety and 

efficacy of these proceedings, made a declaration in the presence of 

the same men, who knew it to be ridiculously false, that he, of himself, upon his ipse diaiit had decided a question upon which as President of the Senate he never voted even,-I say had he done that, it 

would have been the very blasphemy of falsehood and absurdity. If 

Mr. Wade voted upon these questions, he voted qtta his Senatorship, 

and not because he was presiding officer. 

Mr. THURMAN. In 1873 Mr. Colfax, who was President of the Senate, on the occasion of the count did not vote at all on any question. 

:Mr. CONKLING. Precisely, just at the lord-chancellor of E•gland 

may vote if he is a member of the Lords, not because he. is lordchancellor but because he votes qua his peerage because a member of 

the House; and as my honorable friend from Ohio reminds me, when 

Mr. Colfax, not a member of the body but its presiding officer by the 

ordinance of the Constitution, presided at the count of the electoral 

votes, he did not even vote, he did not even exert the aliquot part of 

power pertaining to a single member of a body composed of seventysix members. 

Mr. THURMAN. Will the Senator allow me to t'emind him there, we decided on the votes of no less than three States on that occasien f 

Georgia voted for Greeley after he was dead and then there was an argument ou the question whether the returns of Arkansas were cer- tified under the proper seal. The two Houses decided all those questions. 

Mr. CONKLING. I well remember it, Mr. President. I remember 

that we not only did it, but we did it under a rule which in its infinite wisdom and goodness declared that we should not even debate, 

and, accordingly, when a filed objection,-.filed while the two HouseEt 

You will now proceed, gentlemen, to connt the votes as the Constitution and were together, which objection compelled them instantly to separat& 

laws direct. and each to proceed to consider it-stated that in the case of ArkanOne would suppose that a man so acute as Burr, a man having so sa.s the great seal of the State han. not been affixed to the commission, 

much of the pride of appearance, a man standing as he did in so con- so sedate and contemplative was the proceeding, so proper was it, so spicuou8 a tableau to be looked upon not only then but as we see it free from being summary or arbitrary, that, without debate, the Sen- now from a long thereafter, would have been circumspect when he ate proceeded to decide that the vote of Arkansas should not be came to write his name solemnly and officially upon a paper which counted at all, because the governor of the State had affixed the ex- was to survive among the archives of the Government. What cer- ecutive seal as distinguished from the great seal of the Commonwealtl:t 

tificate did he sign Y The same certificate which had been signed by to the paper which the Vice-President had received. And when this 

John Langdon. Can any man suppose that .Burr, in the teeth of his solemn proceeding had concluded, when the announcement had been own declaration, in utter repugnance of the public and conspicuous made, when the vote had been forever discarded, when the decision 

fact, in denial of the recorded truth that the two Houses and their had become forever final as it was unchallenged by any member, some tellers had done what he proffered them to do, signed a certificate bookworm of the Senate went into the library of the Senate and diswhich he understood to mean that he (Burr) not only absorbed and covered that there was no seal in Arkansas save only that seal which 

possessed in legal theory but that in point of fact he had arrogated had been appended to the certificate ; and thus Arkansas as she could 

and assumed to himself and had actually exerted and performed this not have been had my astute and ever sleepless friend [Mr. GARLAND] 

function and the whole of it f whom I see now with a sagacious expression of face, been here, was Mr. WHYTE. Now, will the Senator from New York allow me to deprived of all voice whatsoever in thegreatquestionpending, because 

ask him a question Y of ignorance on the part of the Senate in respect of her seal. Does 

l\Ir. CONKLING. Ob, yes. not my honorable friend from Maryland know that had this power 

Mr. WHYTE. I ask whether after the tellers had made a tabula- been reposed in the presiding officer he would undoubtedly have 

tion of the votes it waa not handed to Mr. Burr to be examined by understood all about these seals and would have decided otherwise f 

him, and whether he did not then declare that it was his duty to Mr. WHYTE. We were working then under the joint rule. 

state that Thomas J e:fferson had been elected President of the United Mr. CONKLING. Yes, we were, and that brings me to notice another 

States; whether he did not himself assume that it was his duty to argument made by the honorable Senator from Maryland. Before domake the declaration on that occasion and that it was his count by ing that, however, I wish to refer to the many contests we bad beginthat declaration 'I ning with that over the vote of Missouri. There was one over Indiana 

Mr. CONKLDiG. Mr. President, the law has a maxim which has because it was said Indiana had cast out her shoe over certain terribecome a principle that, the presumption is that all public officers tory not belonging to her, and her vote was challenged and litigated 

do their duty; and proceeding upon that presumption, without re- and decided, never by the presiding officer, but by the two Houses 

sorting either to memory or to history, I am prepared to say that acting separately and comparing their views together. After the 

Aaron Burr did what the honorable Senator now ascribes to him. It Missouri case, after the Indiana case, after the Michigan case, after was once an honor conferred upon me by a presiding officer of the repeated instances had occurred, the question to be decided going to 

Senate now no more to act as teller on the part of the Senate when the very root of the validity of an electoral certificate, no Vice-Presi- an illustrious citizen had been chosen to the presidential office. On 1 dent ever having proposed to take part in it, ever having hinted that 

that occasion there were disputed votes. On that occasion there was he had the power over the question,-after such instances time after 

I 

I 
1172 CONGRESSIONAL RECORD-SENATE. FEBRUARY 3, 

time had occurred, this very immemorial, venerable, formal certificate which, under the direction specifically given at the time by the 

two Houses John Langdon signed, continued to be the form which 

all presiding officers employed. Does my friend from Maryland think 

that it would be either convincing or lawyer-like to cite-the form or the formality of these after-coming certificates in order to overthrow 

the notorious, historical, incontestable fact that t.he Vice-President 

performed no function whatever in respect of these decisions, did not 

participate in them, but that they were made wholly by the majority 

of the one House and of the other Y 

I come now to speak of that which I should have forgotten but for 

the remark of the honorable Senator from Maryland that we were proceeding under a joint rule. The honorable Senator said that his 

view was like that of the illustrious Chancellor Kent. ~Ir. President, the honorable Senator and I contend at this moment for the 

robes and scepter of Chancellor Kent. I say Chancellor Kent never in tim a ted such an opinion as the bon ora ble Senator has stated. 

Chancellor Kent, speaking to the sons of men of wealth, speaking in 'Columbia College to young gentlemen to whom he said that a knowledge of the law would be not only useful but ornamental; speaking 

after be had left the bench, speaking in the colloquial, and I think 

I may say inexact language in which the greatest of jurists might 

have addressed students in the law, said," I presume in the absence 

of all legislative provision "-I atop there without concluding the 

sentence; I choose to stop, leaving it imperfect, in order to commend 

to the honorable Senator from Maryland those words without any 

others. "I presume." I will not dwell upon that. That is not the 

language in which he was wont when he was on the bench to deliver 

judgments. It is a. remark; it is a guess; it is an observation. It 

is not the calm, deliberate, final language of judicial judgment; far 

from it. I throw that away, and ask the honorable Senator what he 

does with these words uttered by this great publicist and patriot, "in 

the absence of all legislative provision Y" Does any man believe that 

he who wrote Kent's Commentaries did not know the futility, the 

absurdity, the usurpation, the violence done to reason, of talking 

about legislative provisions to transplant from one pla-ce to another or to impair in any manner functions created and deposited by the 

Constitution Y "In the absence of all legislative provision." If the 

honorable Senator from Maryland is right, if the Constitution nom- inates the President of the Senate and reposes in him exclusively the 

right, the duty, and the power to count, in the broad and many-sided sense of that word, electoral votes, in the name of the law, which the 

Senator from Maryland reverences, I ask him what legislative provision, or what the absence of legislative provision could have to do 

with the question 7 The Constitution says the President of the 

United States shall be commander-in-chief of the Army and Navy. 

What would you think of Chancellor Kent, what would you think of 

the Master of the Rolls, what would you think of a clerk in a law 

office who would gravely say in public, "in the absence of all legislative provision I presume the President of the United States is com- mander-in-chief of the Army and Navy," or, as my friend from Ohio 

suggests, " has the veto power Y " 

Does not the honorable Senator from Maryland see that when dealing with the language of Chancellor Kent he finds those words, he 

gives up his argument in so far as those words prevail Y Does he not see that their employment is irreconcilably hostile to the idea that 

Chancellor Kent believed that the Constitution bad ordained that the 

presiding officer of the Senate was to have the jzUJ disponendi of electoral votes 'f I say again to the honorable Senator that he and I con- tend in argument for the robes and scepter of Chancellor Kent. His 

language proves all that I maintain, namely that in some form-I 

will not now, admonished by the dial, venture upon the particularseither by an exertion of the law-making power, (of course, by means of a statute to be signed by the Executive as well as adopted by the 

two Houses,) or by the concurrent action of the two Houses, or in some way these two bodies have the control, the duty, the function in this 

behalf. This is manifest in so far as the opinion of Chancellor Kent can manifest it from those words found in one of his lectures delivered 

at Columbia College. Never in the freedom of a chat with young 

men, never in the unstudied expression of his views to a law class, never in any moment however unguarded or listless, could the great 

chancellor, the great commentator, the great master of style, and the 

great master of the science of the law, have talked about the intervention of legiBlative provisions to add to or take from, or in any way 

change, a deposition of a high power made by the Constitution in one single official. It is incredible. 

So, Mr. President, as I understand it, the whole history of the Government, the judgment of both Houses, the action in every instance 

of the Houses, the absence of all action by the presiding officer, the 

comments and exposition of a long line of lawyers and statesmen of 

all political parties, stand in flat contradiction to the idea that the 

President of the Senate can decide whether a State alleged to be, is or is not a State, can decide whether a State in voting upon a day 

not named in the law has or has not effectually voted, or can decide 

any other matter or thing on which may hinge the ascertainment or the declaration of a presidential result. 

I beg pardon of the Senate for traversing all this ground. It is a somewhat old story; it has few attractions for me; but after there- marks of a Senator of so much reputation as the Senator from Maryland, a Senator held, and justly held, in so high esteem as a member 

of the profession which he adorns and which so long he has success- fnlly practiced, I was unwilling that the precedent he cited, the language of Chancellor Kent, and the other incidents which he· drew to 

his argument, should be narrated and marshaled as if they disproved 

and refuted the position which now and sometimes heretofore I have 

endeavored to maintain, and for which I must vote whenever presented in a resolution to which it is my duty to respond. 

The PRESIDING OFFICER, (Mr. ANTHONY in the chair.) The 

question is on the passage of the resolution. · Mr. THURMAN. On that I ask for the yeas and nays. 

The yeas and nays were ordered. 

Mr. TELLER. Mr. President, I do not expect to vote on the reso- lution, inasmuch as I am paired with the Senator from Georgia, [Mr. 

BROWN.] I do not know bow he would vote, and I shall decline to 

vote on it. I will, however, say a word with reference to it inasmuch as I cannot put myself on the record by voting. 

If the resolution means that it is not in the power of the President 

of the Senate to tabulate and perform a simple ministerial duty in 

counting the electoral votes, so far as that means counting the electoral votes, then I am opposed to the resolution. If it means, on the 

other hand, that the President of the Senate cannot pass upon the 

validity of a vote, cannot act judicially, then I am in favor of the 

resolution. But ·in the very language of the resolution as it is now put I am not in favor of it at all, because it is uncertain to me what 

the mover of the resolution means. I think, as the Senator from 

Maryland said, thesimplematterof tabulating the vote is within the 

power of the Vice-President. 

The Senator from Maryland called the attention of the Senate to 

the fact that in 1789 a President of the Senate was elected for the 

sole purpose of counting the electoral votes. I find by an examination of the Journal that in.1793 the Senate informed the House that 

they had elected a President pro ternpcn·e for the sole purpose of opening and counting the votes; so that at least twice this body has 

elected an officer for that express purpose. I find that at least half a dozen times the Senate by the direct order of the body ha.s adopted a notification as follows: That the underwritten as Vice-President or as President pro temp01·e of the Senate, has opened the votes and 

counted them; and those have passed upon the yeas and nays being 

called upon them, by a majority on one or two occasions. So I do 

not think it can be successfully said in this body. or anywhere else 

that the President of the Senate ha.s not repeatedly tabulated the 

votes and counted them. In that view, if the resolution means that 

he cannot do that, I am against the resolution. If the resolution means that he cannot act judicially and cannot determine what is 

the vote, if a plural vote comes up from a State, then I am in favor 

of the principle. · But I am opposed to the resolution now because it has not been to 

any committee; it baa not been considered. It presents a question 

of the very gravest importance, and one upon which the very best men in the Senate may differ. It is a question that has been discussed heretofore a great deal, and it ought to be discussed a good 

deal more before the Senate puts itself on record as to what is the 

law or what is not. 

I am opposed to the resolution again for the reason that it will 

amount to nothing when we shall have passed it. When we have said 

that this is the judgment of the Senate if the Honse concurs, for that 

is the resolution, if the Honse does concur, it amounts to nothing at 

all. I believe that it is the dutyof the Senate to putitsjudgmentin a law, and put it in such a position that when it becomes the rule it 

will remain the rnle until it shall be withdrawn by the methods provided by the Constitution for the repeal of an enactment; and because 

I so feel, while I do not propose to vote upon this resolutiQn, if I could 

vote upon it I should vote in the negative. 

Mr. INGALLS. This resolution involves, to my mind, two propositions, one of which I am in favor of and the other of which I am opposed to. I believe that the Vice-President of the United States, or the President of the Senate, bas the right to count the votes in the sense of mere co.mpntation-bnt that he has the right to determine 

between conflicting returns what votes shall be counted or what votes 

shall be rejected, I deny. In order to separate these two propositions 

in the resolution, I move to amend by striking out the word "not" 

after the word "is" and before "invested" in the second line of the 

resolution, and by striking out the words "so as" before the words 

"to determine," in the last line but one, and inserting the words "but 

not;" so that the resolution, if amended, will read : 

Resolved by the Senate, (the Houae of Representatives concur-ring,) That the President of the Senate is invest~ by the Constitution of the United States with the 

right to count the votes of electors for President and Vice-President of the United 

States, but not to determine what votes shall be received and counted or what votes shall be rejected. 

If the resolution can be so amended as to separate these two propositions and make them distinct and unmistakable, I am willing to 

vote for it; but in its present shape I shall be compelled to vote 

against it. In order that these two propositions may be separated, I move the adoption of the amendment that I have suggested. The PRESIDING OFFICEh:. The question is on agreeing to the 

amendment of the Senator from Kansas, [Mr. INGALLS.] 

Mr. BLAINE. I have not enjoyed the privilege of hearing the 

discussion to-day, and I rise to ask a question. Does the resolution come from the Judiciary Committee of the Senate T 
I. 

1881. CONGRESSIONAL RECORD-SENATE. 1173 

Mr. EATON. No, sir. 

Mr. BLAINE. Does it come from the Committee on Privileges and 

Elections 'l 

Mr. EATON. It comes from an individual member of the Senate, 

Mr. MORGAN, of Alabama. 

Mr. BLAINE. The chairman of a caucus possibly. 

1\lr. EATON. Sir f 

Mr. BLAINE. Representing the democratic sentiment possibly in an independent committee. 

lli. EATON. I have not said any such thing, and the Senator not 

being a member of any such caucus ought not to say so. 1\Ir. BLAINE. I qJialified it by saying "possibly." 

I think, Mr. President, that the resolution would meet the wishes 

of men who want to look at both sides of this question if it would 

just declare who can count the votes, and if then those who support 

it would tell the particular object of making this negation on the 

Vice-President's power at this time, when nobody is asserting it and 

there is no particular necessity on anybody to deny it. I do not 

think for myself that the honorable Senator from Alabama merely 

wishes upon an individual motion of his own to divide the Senate 

and prolong it at this critical and late period of the session for an abstract declaration of this kind, which was argued down on both 

sides four years ago ; and I do not think he ought to do it without 

being willing to put into his resolution a declaration which shall 

have just as far a reach as that does, as to who shall count the votes 

and what shall be the authority competent to reject. The honorable 

Senator has given great attention to the subject; he is an able lawyer; is he prepared to state on the floor of the Senate who, in his 

judgment, should reject or count the votes f 

}lr. MORGAN. I will say to the honorable Senator from Maine 

that the Senate to-day declined by a vote to go into that question. 

Mr. BLAINE. Declined to go into it 7 Why, the Senate is in it now. It is perfectly within the power of the honorable Senator to 

do so when ~e are considering a mere declaratory resolution which 

is aimed at nothing in particular but a shot in the air, a mere declaratory resolution which might just as well be an attack upon the 

Copernican system. There is nobody here asserting the right; there 

is nobody here who attempts the exercise of it; and therefore a reso- lution of this kind cannot be quite fair, in perfect candor, without a decla.ration of both sides of it. It is in thatspirit thatlask the honorable Senator from Alabama, for he is a very frank man, to amend 

his resolution in order that we shall have a comprehensive declaration. If the democratic party of the Senate of the United States is 

laying down a rule which shall be applicable to years after 1881, let us know the whole of the rule. 

Mr. THURl\IAN. Does not the Senator know the whole of it, or enough of itf 

Mr. BLAINE. I do not. 

l\Ir. THURMAN. May I interrupt the Senator a moment 'l 

Mr. BLAINE. Certainly. 

Mr. THURMAN. I mean that the Senator from Maine should not 

be in doubt of the opinion of the Senator from Alabama or of a majority of the Senate, in view of the fact that we passed a concurrent reso- lution by a decided majority, I think nearly every de~ocrat voting 

for it, or every one, and sent it to the House; and if the Senator will 

only work on his friends there it will become the rule and will govern 

the count, and we shall know not only what the Senator from Alabama 

thinks, but what be himself thinks. 

Mr. BLAINE. Does the Senator refer to the resolution which 

passed the Senate yesterday Y 

Mr. THURMAN. No, sir; I refer to the rule that was passed at 

the last session, in May, and which certain things have prevented 

from pa sing in another pla-ce, to which I cannot allude. .Mr. BLAINE. Will the honorable Senator go further, as long as he 

is upon his feet, and tell me, for I ask for information, just what that 

rule wasY 

Mr. THURMAN. The Senator will find that it was taken mainlyt 

I might almost say bodily, from the bill of the Senator from Vermont. 

Mr. BLAINE. In a word, was it that both branches of Congress or either should decide a questiOIJ. 

lli. THURMAN. Both of them. 

Mr. BLAINE. That it took both Houses to reject a vote Y 

1\Ir. THURMAN. Yes, in the case of a single return. 

Mr. BLAINE. And in the case of a double return Y 

llr. THURMAN. Then that the vote should be counted if both 

Houses agreed to count it. 

Mr. BLAINE. Then why is not the Senator, when he is making a negation on one side, willing to put upon the record what the affirmation shall be 7 Why leave it loose for future contingencies that either 

rule may be adopted which may apply to a particular case that may ariseY 

Mr. THURMAN. That is alrea~y provided for; we have already passed it. 

Mr. BLAINE. If it had not been so often quoted on the honorable 

Senator I should say, "That won't do." 

The PRESIDING OFFICER. The question is on the amendment 

of the Senator from Kansas, [Mr. INGALLS.] 

Mr. JONES, of Florida. Let it be reported. 

The Secretary rea-d the amendment. 

Mr. THURMAN. I have only one word to say upon the amendment. 

There is not a single word in the Constitution of the United States 

that invests the President of the Senate w)th any such power. As 

the Senator from New York [Mr. CONKLING] has well said, after saying that the President of the Senate shall open the certificates in the 

presence of the two Houses, the Constitution, to use the vigorous 

phrase of the Senator from New York, turns its back on the President 

of the Senate and goes on to say," and the vote shall then be counted." 

That is all it is ; and he never did count the vote ; and he never will 

count it. 

The PRESIDING OFFICER. The question is on the amendment 

of the Senator from Kansas. 

The amendment was rejected. 

The PRESIDING OFFICER. The question now recurs on the passage of the resolution. On this question the yeas and nays have been 

ordered. 

The Secretary proceeded to call the roll. 

Mr. JOHNSTON, (when his name was called.) I am paired with 

the Senator from Iowa, [Mr. KIRKwooD.] If he were here, I should 

vote "yea." 

Mr. RANSOM, (when his name was called.) I am paired on all 

questions to-day with the Senator from Maine, [Mr. IlAMLIN.] If he were here, I should vote " yea." 

Mr. McDONALD, (when the name of 1\Ir. VooRHEES was called.) 

My colleague [Mr. VooRHEES] is paired with the Senator from 

Nevada, [1!Ir. Jo~s.] If my colleague were here, he would vote 

"yea.J' 

The roll-call was concluded. 

Mr. INGALLS. The Senator from Virginia [Mr. WITHERS] was called away from the Chamber and I agreed to pair with him. 

Mr .. HILL, of Georgia. My colleague [Mr. BROWN] is paired on political questions with the Senator from Colorado, [Mr. TELLER.] 

As I believe this is not a political question, as it now stands, I will 

consent to release my colleague from the pair that the Senator from 

Colorado may vote. ~Ir. WALLACE. I am paired with my colleague, [Mr. CAMERON, 

of Pennsylvania.] If he were here, I should vote" yea." 

Mr. INGALLS. I omitted to state when the name of my colleague 

[1\Ir. PLUMB] was called, that he is paired with the Senator from 

New Jersey, [Mr. RANDOLPH.] 

Mr. TELLER. If this were not a political question I might vote, 

but all day it has been treat-ed as a political question bythe umpire. 

Therefore I shall not vote. 

The result wa-s announced-yeas 33, nay 1; as follows: 

Bayard, 

Beck, 

Butler, 

Call, 

Cockrell, 

Coke, 

Conkling, 

Davis of lllinois, 

Davis of W. Va., 

Allison, 

Anthony, 

Bailey, 

Baldwin, 

Blaine, 

Blair 

Booth, 

Brown, 

Bruce, 

Burnside, 

Cameron of Pa., 

YEAS--33. 

Eaton, 

Farley, 

Garland, 

Groome, 

Hampton, 

Harris, 

Hereford, 

Hill of Georgia, 

Hoar, 

Jonas, 

Jones of Florida, 

Kernan, 

Lamar, 

McDonald, 

McPherson, 

MorJran, 

Pendleton, 

Pugh, 

N.A.Y-1. 

Whyte. 

.ABSENT-42. 

Cameron of Wis., 

Carpenter, 

Dawes, 

Edmunds, 

Ferry, 

Grover, 

Hamlin 

Hill of Colorado, 

Ingalls, 

Johnston, 

Jones of Nevada, 

Kellogg, 

Kirkwood, 

Logan. 

McMiJJ.an, 

Maxey, 

Morrill. 

Paddock, 

Platt, 

Plumb, 

Randolph, 

Ransom, 

Saulsbury, 

Slater, 

Thurman, 

Vance, 

Vest, 

Walker. 

Rollins, 

Saunders, 

Sharon, 

Teller, 

Voorhees, 

Wallace, 

Williams, 

Windom, 

Withers. 

The PRESIDING OFFICER. No quorum has voted. 

Mr. THURMAN. I ask that the names of those who have not 

voted be called. 

Mr. BLAINE. Under what rule is that request made f 

Mr. THURMAN. No quorum having voted, the next thing to be 

done is to call the absentees. 

Mr. BLAINE. That is a very clliferent question, indeed. It is a request I never heard made before in the Senate, that the names of 

those not voting should be called. The honorable Senator will please 

have the rule read under which he asks that to be done. 

Mr. THURMAN. They are presumably absent1 because it is to be 

presumed that every Senator will discharge h1s duty. The rule 

requires every Senator to vote or to ask to be excused and to give 

his reasons for asking to be excused. I say, therefore. that it is not 

only right under the rule, but it ha-s been the uniform practice; and 

then when it is found out, if it should be the case, that Senators are here who will not obey the rule of the Senate in respect to voting, it 

will be for the Senate to decide what shall be done. 

Mr. BLAINE. I desire to ask if it is not the case that when, in 

the orderly proceedings of the Senate, the lack of a quorum is disclosed, the only thing in order is to adjourn or to have a call ol' the 

Senatef 

The PRESIDING OFFICER. The Chair thinks that the precedents are that the roll is to be called again for the names of absentees. 
,. 

1174 CONGRESSIONAL RECORD-HOUSE. FEBRUARY 3, 

Mr. McDONALD. Undoubtedly. These gentlemen ought to have a chance to vote. 

Mr. EDMUNDS. I should like to have the Chair read the rule. 

Mr. BLAINE. I should be glad to be informed of the rule before 

the Chair enforces that order. I should like to have the rule read, if 

it be in order, under which that is to be done. 

Mr. HOAR. I desire to inquire of the Chair whether he did not 

himself just now raise the question of the presence of a quorum, by 

announcing that no quorum was present as he announced the number 

of the vote. If that be true, does not the second rule operate upon 

that condition of things f 

Mr. EDMUNDS. That is perfectly clear. 

Mr. JOHNSTON. Mr. President, is it too late to vote now! I was simply out of the Chamber for a moment during the call, and I ask 

that I may be allowed to vote. 

The PRESIDING OFFICER. The Senator cannot vote now. The 

result of the vote has been declared. 

Mr. BURNSIDE. I move that the·Senate adjourn. 

Mr. WHYTE. I ask that the roll be called in pursuance of Rule 2. 

Mr. BURNSIDE. I have moved to adjourn, which I think is in 

order. 

The PRESIDING OFFICER. The Senator from Rhode Island moves that the Senate adjourn. 

The motion was not agreed to. 

Mr. WHYTE. Now I a.sk for a call of the roll. 

The PRESIDING OFFICER. The second rule of the Senate is 

thatIf either at the commencement of any daily session of the Senate, or at any 

time during its daily sessions, a !luestion shall be raised by any Senator as to the 

presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll of Senators, and shall announce the result to the Senate ; and these 

proceedings shall be without debate. 

The Chair therefore directs the call of the roll of Senators. 

The Secretary called the roll, and the following Senators answered 

to their names: 

Anthony, Davis of illinois, Johnston, 

Baldwin, Davis of W.Va., Jonas, 

Bayard, Dawes, Jones of Florida., 

Beck, Eaton, Jones of Nevada., 

Blaine, Edmunda, Kernan, 

Blair Farley, Kirkwood, 

Booth, Garland, Lamar, 

Bruce, Groome, Logan, Burnside, Hampton, McDonald, 

Butler, Hams, :McMillan, 

Call Hereford, .McPherson, 

Cam'eron of Wis., Hill of Georgia, Morgan, Cockrell, Hill of Colorado, Pendleton, 

Coke, Hoar. Platt, 

Conkling, Ingalls, Pugh, 

Ransom, 

Rollins, 

Saulsbury, 

Saunders, 

Slater, 

Teller, 

Thurman, 

Vance, 

Vest, 

Walker, 

Wallace, 

Whyte, 

Windom. 

The PRESIDING OFFICER. Fifty-eight Senators are present, 

being a quorum. 

Mr. WHYTE. Now the vote is to be taken again. 

Mr. McDONALD. I ask that the following rule be enforced: 

When the yeas and nays shall be called for by one-fifth of the Senators present, each Senator when his name is called shall, unless for special reasons he be ex- cused by the Senate, declare openly, and witbont debate, his assent or dissent to the question. 

I ask that those Senators who were present, whom the call shows 

to have been present when the yeas and nays were taken, be now called. 

Mr. INGALLS. I hope before any action is taken the Senate will 

hear the seventeenth rule read, which provides that all these methods 

for enforcing a senatorial vote shall be taken before the announce- ment of the result. The vote has already been declared. 

Mr. THURMAN. I ask that the vote be taken again. The question now before the Se:aate is, Shall the resolution pass T 

Mr. McMILLAN. I move that the Senate adjourn, and I ask for 

the yeas and nays on that motion. 

The yeas and nays were ordered, and the Secretary proceeded to 

call the roll. 

Mr. DAWES, (when his name was called.) I am paired, as I have 

already stated, for the afternoon, on all questions of this character, 

with the Senator from Kentucky, [Mr. WILLLU:IS.] 

Mr. RANSOM, (when his name was called.) If I were not paired, 

I should vote" nay." 

Mr. WALLACE, (when his name was called.) I am paired with 

my colleague, [Mr. CAMERON, of Pennsylvania.) 

The roll-call having been concluded, the result was announcedyeas 19, nays 31 ; as follows: · 

Anthony, 

:Baldwin, 

:Blaine, 

Blair, 

Booth, 

Bayard, 

Butler, 

Call, 

Cockrell, 

Coke, 

Davis of W. Va., 

Eaton, 

Farley, 

YEAS-19. 

~rnce, Edmunds, 

Burnside, Hill of Colorado, 

Cameron of Wis., Hoar, 

Conkling, Jones of Nevada, Davis of Dlinois, Kellogg, 

NAYS-31. 

Garland, 

Groome, 

Hampton, 

Hams, 

Hereford, 

Hill of Georgia, Johnston, Jonas, 

Jones of Florida, 

Kernan, 

Lamar, 

McDonald, McPherson, 

Morgan, 

Pendleton, 

Pugh, 

McMillan, 

Rollins, 

Saunders, 

Windom. 

Sanlabnry, 

Slater, 

Thurman, 

Vance, 

Vest, 

Walker, 

Whyte. 

ABSENT-26. 

A.ll.ison, Ferry, Morrill, 

Bailey, Grover, Paddock, 

Beck, Hamlin Platt, 

Brown, Ingalls,' Plum.bJ 

Cameron of Pa., Kirkwood, Randolph, Carpenter, Logan, Ransom, 

Dawes, Maxey, Sharon, 

So the Senate refused to adjourn. 

Teller, 

Voorhees, Wallace, 

Williams, 

Withers. 

Mr. MORGAN. I am satisfied, from the condition that we are in 

this evening in the Chamber, tha.t it is probably impossible to dispose 

of the resolution to-day. I think it is due to the democrats, who are paired with republicans on the other side, that they should at least 

be relinquished from their pairs, in order to make a quorum and 

thereby save time in the transaction of the public business. That is 

all we desire to do; but inasmuch as there seems to be an indisposition of that kind, inasmuch as there seems to be no disposition here 

to allow democrats to vote, we having a quorum here and able to 

carry the measure if we were not under the obligation of pairs, I move that the Senate adjourn. 

The motion was agreed to; and (at five o'clock and fifteen minutes 

p.m.) the Senate adjourned. 

HOUSE OF REPRESENTATIVES. 

THURSDAY, Feb?•ttary 3, 1881. 

The Honse met at eleven o'clock a. m. Prayer by the Chaplain, 

Rev. W. P. HARRisoN, D. D. 

The Journal of yesterday was read and approved. 

BUSINESS BY tlliA..li.""IMOUS CONSENT. 

Mr. ANDERSON. I ask by unanimous consent to introduce a proposition touching tho order of business in the House, for reference to 

the Committee on Rules. 

The Clerk read as follows : 

Resolved, That during the remainder of the present session sixty minutes shall be set apart each day immediately following the "morning hour," or upon its sus- pension, during which Members and Delegates shall have an opportunity to ask for 

unanimous consent to consider and· pass bills. The roll of States shall be called 

and members recognized in the order thereof. Each Member or Delegate shall have 

bnt one opportnnityt() ask for such consent until after all other memllers have been 

called ; nor shall debate on any: one bill exceed five minutes. This order may be 

suspended upon the same conditions as the "morning hour." 

There was no objection, and the resolution was received and re- ferred to the Committee on Rules. 

ANNUAL REPORTS OF THE BUREAU OF ETHNOLOGY. 

Mr. BLA.CKBUR.....~, by unanimous consent, presented the following 

concurrent resolution; which was referred to the Committee on Printing: 

Resolved by the House of Representatives, (the Senate concurring,) That there be 

printed at the ~vernment Printing Office 15,000 copies ea()h of the second and 

third annual reports of the Director of the Bnrean of Ethnology of the Smithsonian Institution. with the necessary illustrations; 7,000 copies or which shall be for 

the use of the House of Representatives, 3,000 copies for the nse of the Senat~, and 

5,000 for distribution by the Bureau of Ethnology. 

CONTRIBUTIONS TO NORTH Al\IERICAN ETHXOLOGY. 

Mr. BLACKBURN also, by unanimous consent, snl;>mitted the following concurrent resolution; which was refe:cred to the Committee on Printing: 

Resolved by the House of Representatives, (the Senate concurring,) That there b" 

printed at the ~vernment Printing Office 6,000 copies each of volumes 6, 7, El, 9, 

and 10 of Contributions to North American Ethnology uniformly with the prooed- ing volumes of the series, with thl' necessary illustrations; 3,000 of which sl.J.all be 

for the nse of the Honse of Representatives, 1,000 for the nse of the Ser.ate, and 

2,000 for distribution by the Bureau of Ethnology. 

COXTESTED-ELECTION CASES. 

1\Ir. BRIGHA.M. I ask by unanimous consent to submit the followin[ resolution for reference to the Committee on Rules. 

The Clerk read as follows : 

Resolved, That the first section of Rule XI be amended so that the first clause 

and section shall read as follows : "All proposed legislation shall be referred to the c<>mmittees named in the pre· 

ceding rUle, as follows, namely: ''Subjects relating to the election of members; to the Committee on Elections, 

with whom all papers and records in contested cases must be filed within ten days after the announcement of said committee by- the Speaker: Provided, That ninety days shall have elapsed since the service of the answer of the contestee on the con- testant as required by law; otherwise such papers and records sball be filed with 

said committee immediately after the expiration of said ninety days if Congres 

be in session· if not, immediately after the opening of the next succeeding sea ion. 

"The com:ruttee shall proceed at once to the consideration of such contested cases in the order of their submission, holding daily sessions, and shall pre. ent their reports thereon in the order of consideration to the Honse within thirty days from the time of filing said papers and records. "Said reports shalf receive the consideration and final action of the House to 

the exclusion of all other business." 

1\Ir. O'NEILL. Just one word about that. I want to make this 

suggestion--

Mr. BRIGHA.M. I hope the House will give me a single moment 

to state a fact. 

The SPEAKER. Is there objection to the resolution f 

Mr. BLAND. I object unless it be referred. 

• 

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