The joint resolution provided that these States were not entitled to representation in the Electoral College for the choice of President and Vice-President for the term of office beginning March 4, 1865, and that no electoral votes from them, relative to the choice of said officers for that term, should be received or counted.[[366]]
In a modified form the measure subsequently passed the Senate, which proposed that there be stricken from the preamble the words “and were in such condition of armed rebellion for more than three years,” and that there be inserted in lieu thereof, “and were in such condition on the 8th day of November, 1864, that no valid election for electors of President and Vice-President, according to the Constitution and laws thereof, was held therein on said day.” In this amendment the House promptly concurred, February 6, 1865.
In the Senate, February 1, Mr. Trumbull asked consideration of the measure inasmuch as the electoral votes were to be counted a week later. When the amendment was under discussion, Senator Ten Eyck, of New Jersey, moved to strike out the word “Louisiana” in the preamble, and added that it was a matter of history that the State had reorganized, or at least attempted to do so, and in the opinion of many, and perhaps most, of her loyal citizens had reorganized as a State. It was matter of history that they had elected State officers and a State Legislature; that they had elected members to a constitutional convention and framed a new constitution for that State; that the Legislature passed a law authorizing the choice of electors for President and Vice-President of the United States in the last Presidential election, and that such electors had met and cast their votes. “Under these circumstances,” said Mr. Ten Eyck, “I think there is a striking distinction between the State of Virginia and the State of Louisiana.” The object of his amendment, he stated, was to afford opportunity to a loyal people who had suffered all the horrors of the rebellion, who had got the better of it, and put it under foot, of coming back and resuming their place in the councils of the nation. He did not then desire to make any further remarks.[[367]]
Senator Trumbull then took up the discussion of Ten Eyck’s amendment to the amendment. The electoral votes, he said, were to be opened and canvassed a week later, and it was known to all that no rules for action had ever been adopted in that joint convention. He recalled the fact that in 1856 there arose a question over the counting of the electoral vote of Wisconsin. A severe snow storm had prevented the electors from meeting at their State capital on the day fixed by law, and it was not until the day following that they were able to cast their votes for President and Vice-President. The question was not then decided, for Buchanan and Breckenridge were the successful candidates in either event, and were so declared.
He believed a similar question was likely to arise when the electoral votes would be counted on February 8. It was a matter of public notoriety, he continued, that several of the States included in the President’s proclamation of 1861, Arkansas, Tennessee and Louisiana, had cast electoral votes. There was a question as to their authority to do so in consequence of the insurrection which prevailed there on the 8th of November, when the election took place, and the House of Representatives had passed the joint resolution declaring that the votes of certain named States should not be counted. The motion of the Senator from New Jersey would have the effect of counting the vote of Louisiana. “If we decide to receive the vote from Louisiana,” declared Mr. Trumbull, “it will be a decision by the Congress of the United States that the State of Louisiana was in such a condition as to vote for President and Vice-President on the 8th of November last.”
The alteration proposed by the Committee on the Judiciary, said he, was for the purpose of avoiding any such committal on the subject as the motion of the Senator from New Jersey brought up. If the preamble “is adopted and the resolution passed, Congress will not have decided whether Louisiana is in the Union or out of the Union, whether she is a State or not a State.” It would be time enough, he believed, to decide that question when it was presented to the Senate. No statement of facts, he asserted in reply to Senator Howe, accompanied the joint resolution from the Committee on the Judiciary; it was a House resolution, and no report accompanied it from the House Committee.
A large part of Louisiana, he added, was on the 8th of November preceding in the possession of a hostile force. In a very considerable portion of the State there was no opportunity to vote for President or Vice-President, and it might be a very serious question whether, when half a State or the third of a State was overrun by an enemy, an election held under such circumstances and under the auspices of Federal guns would be an election which would authorize the Congress of the United States, when in joint convention it came to canvass the votes for President and Vice-President, to count ballots cast under such circumstances.
In acting upon the resolution he did not mean to commit the Senate one way or another relative to the organization which had been formed in Louisiana. A decision to strike out Louisiana would be to decide that her electoral vote would be received and that on November 8th there was a State government there. That he did not believe. No evidence, he asserted, had been submitted to show how many votes were cast.
Pursuant to an act of Congress the President had declared the inhabitants of Louisiana in insurrection against the United States. That proclamation had not been recalled. “Sir,” concluded Mr. Trumbull, “until there shall be some action by Congress recognizing the organization which has been set up in Louisiana, we ought not in my judgment to count electoral votes from the State.” Whether Congress would recognize it, he could not say; that had not yet been done, and, until it had been, the electoral vote ought not to be counted. He hoped, therefore, that Ten Eyck’s amendment would not prevail.[[368]]
Mr. Ten Eyck said it was with great diffidence that he undertook to propose an amendment to the resolution; but he held the doctrine that these commonwealths having taken up their lot and part with their sister States when admitted into the Union were not legally out of it; their governments had been in abeyance; they had been overrun by the feet of hostile armies, and many of their citizens, by usurpation and in violation of their duty to their fellow-men and to their God, had attempted to carry these States out of the Union.