Mr. DAW S. Mr. Speaker, I do not intend to discuss the merits of t llS measure, for I give it, with the exception of the 3rd section, m hearty support. I shall vote for the amendment if I cannot get the section excluded. But I prefer not to stake the infinite good of the remainder upon the uncertainty of ever incor pore ting the 3rd section in the Constitution. desire now to call the attention of the House again to the question which I raised yesterday, and to wthei my colleague [Mr. BANKS] has referred in the remarks which he made a short time a, namel, that of a possiblo contest in the lectoral olle e. I o feel that the question, notwithstaning the easy solution of it to which he has arrived, has more of a serious character in it than seems to have suggested itself to his mind; and with the indulgence of the House I will endeavor to show it.v There is no legislation in the land upon the subject. The only provision governing the counting of the votes of the Electoral College is in the Constitution itself; and it is in these words: “ The President of the Senateshall. in the presence of the Senate and HoRep open all the certifleates: and thovotess all thenbecounted." But who shall decide, if there be a dispute, whether a vote has come from a man legally chosen? There is no tribunal yet erected to determine that fact. Chancellor Kent says that it is casus omissus, a case that has not been provided for by the framers of the Constitution; that there is no provision in the laws or the Constitution of the U.S. by which that may be determined. Whether or not it be be ond our power under the Constitution 10make such provision, certain it is that we have made no such provision. Chancellor Kent said upon this point, as reported in the debate in connection with the very case which has been cited by my colleague, that of the Wisconsin vote in 1856, that it was a eatsus omissus, and neither law nor the Constitution itself had provided a solution of the difficulty. When the nation should be involved in such a contest he trembled for the result. He speaks of it in his Commentaries in the following words: "The Constitution does not expressby whom the votesare to be countedand the result declared. In the case of questionable votes and a closely con“tiled election. this power in be important; and I presume in the absenceof l legislntive provision onthesubject. that the president of the Senatecounts the votes and determines the result and that the House are present only as spectators, to witness the harnessan accuracyof the transaction." Upon the occasion alluded to by my colleague, Henry Winter Davis used this language. “ Now. sir. no strict constructionist or wide or loose construetiouist.canfind anylunetionconfidedto both Houses togetheror to one separately.which enables them to pass.preliminarily. upon the point whether one vote shall be counted or another rejected. judgmentis No called for at all. On the contrary. the constitution carefully avoids asking for any Jud: ment by anybody upon a merecount." The idea of referring this to the 2 Houses in their separate capacity for solution involves at once another diiliculty. The 2 Houses in their separate capacity act as legislators, and legislators alone, and their functions are all prescribed by the Constitution itself. This is not one of them. They cannot as separate bodies act upon the enuineness of the election of a member of the lectoral College, for they have not been constituted for any such purpose nor clothed with any such power. They are not clothed with the judicial power of passing upon the validity of an election of President and VEEP; and suppose the Senate comes to one conclusion on the House to another, what is the result? Suppose the Senate in the Wisconsin case had determined that