S            4
WiO COUTNTS THtE ELECTORA:L VOTE?
THERE have been twenty-one presidential elections under our Federal Constitution, but until now the methods of canvassing the electoral votes at the seat of
Government have never presented questions of much practical importance, except so
far as they established precedents for the future.*
The main result of the Federal canvass, whenever there has been an election by
the people, has always been known in advance of the meeting of Congress; and,
though questions as to the authenticity or validity of votes have repeatedly arisen,
their solution has in no instance hitherto made any practical difference withl the
result.
Now, for the first time, the disputed votes may decide the result of the election.
There are 184: uncontested votes on one side, 165 on the other, and 20 in dispute.
It will be necessary for the constituted authorities, in some instances, to pass upon
the authenticitv or validity of duplicate electoral certificates from th'e same States.
Where tile authority lies that is to decide such an issue has thus become a question
of the gravest import, for upon it may depend not merely the control of this Government during the next presidential term, but the perpetuity of our political insitutions, and the confidence of our people and of all mankind in the elective system
and in the principle of popular sovereignty.
The provisions of the Constitutionfurnish a pretext for some diversity of opinion
upon this su'ject, especially when it is investigated under the glamour of fervid partisanship, and when the choice of candidates may depend upon the interpretation
those provisions receive.   The Constitution provides that the certificates of the
votes given by the electors, which are transmitted to the seat of government, shall
be delivered to the President of the Senate, and that the President of the Senate
shall, in the presence of the two Hiouses of Congress, open all the certificates, and
that "they shall then be counted."
By whom the votes shall be counted; how far the counting is a simple matter
ofenumeration, and how far it involves the additional duty of determining the
authenticity and validity of the certificates presented, are questions in the solution
of which the practice of the Government is our best guide.  Attempts have been
The Congress of the Confederation, on the 28th of SepTtemnber, 1787, directed that the Constitution,
with certain resolutions adopted by the Convention on the 17th of September, 1787, be transmitted to the
legislatures of the several States, to be submitted to conventions of the people thereof. One of those
resolutions is in the following words:
Resolved, That it is the opinion of this Convention, that as soon as the conventions of nine States shall
have ratified this Constitution, the United States in Congress assembled should fix a day on which electors
should be appointed. by the States which shall have ratified the same, and a day on which the electors            ~
should assemble to vote for the President, and the time and place for commencing proceedings under this
Constitution. That after such publication the electors should be appointed, and the Senators and Representatives elected. That the electors should meet on the day fixed for the election of the 1'resident,
anAd-$h1oak transmit their votes, certified, signed, sealed, and directed, as the Constitution requires, to the
Seer'-y'  f 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 of the Senate, for the
sole purpose of receiving, opening, and counting the votes for President; and that after he shall be
chosen, the Congress, together with the President, should, without delay, proceed  to execute the Constitution.
;~~~~~~~~~ ~~~~~ t~ 0t &:~~j;wnr00  Hi, 
I
I 
TEMIPORARY EXPEDIENT FOR THlE FIRST COUNTING IN 1789.
made at various times to secure supplementary legislation to meet the exigency
which is now presented to the country, but none of these efforts were fortunate
enough to unite a majority of the Federal Legislature in its favor. The difficulty
now has to be met under aggravated disadvantages.  The two Houses are divided
in their preferences for the respective candidates; questions will be raised as to
the authenticity or validity of some of the electoral certificates to be presented, upon
the reception or rejection of which the result of the election may finally depend. In
view of the difficulties which our legislators will exp)erience, with two great armies
of more or less heated partisans behind themi, in legislating upon this subject with
suitable impartiality, it is the disposition and it will be the manifest duty of every
patriotic member of our Federal Legislature to adhere as closely as possible to the
precedents which have been sanctioned by fim  and continuous usage.  A less auspicious moment for engaging in experiments, and for introducing new methods of
canvassing the electoral vote, could scarcely be imagined.  The wisest devices which
have not the sanction of precedent would now fall a prey to merited suspicion and
distrust.
It is in deference to this conviction that the following compilation is submitted
to the public.  It is intendced to embrace a perfect and complete record of the canvass in the two IHouses of Congress, with all the debates to which they have given
rise, taken from the official reports. Scattered as the originals are, through some forty
or fifty cumbrous and not readily accessible volumes, it would be a task which verv
few could or would undertake, to make themselves even tolerably familiar with the
way in which this quadrennial duty of the two Houses of Congress_ has been discharged hitherto.
By the aid of this compilation, however, no one interested in the subject will have
a good excuse for remaining in ignorance of the precedents which have been established, and in accordance with which it is to be presumed all proceedings at this final
canvass of the electoral vote, cast in 1876, will be conducted.
For the convenience of those who may have occasion to investigate this subject
the more important usages or precedents which the practice of nearly a century
have established in regard to the miethods8 of opening, counting, and announcing
the result of the electoral votes for President and Vice-President of the United
States, will be here recapitulated.
TErMPORARY EXPEDIENT FOR THE FIRST COUNTING IN 1789.
The Constitution provides that the electors of President and Vice-President shall
"transmit" the certificates of their votes to the seat of the Government, "directed
to the President of the Senate;" and that "the President of the Senate' shall, in the
presence of the Senate and HIouse of Representatives, open all the certificates, and
the votes shall then be counted."
At the first organization of the Government in 1789, there being no President of
the Senate, a provisional arrangement was necessary. The votes had been transmitted to the Secretary of the Congress of the old Confederation.   The Senators, cn
assembling in conformitv to the suggestion made by a resolution of the Conventicn
of 1787, chose a president "for the sole purpose of opening the certificates and
counting the votes" of the electors; appointed one teller, and sent a message informing the House of their action and their readiness to proceed to the count of the
votes. The House appointed two tellers, and assembled with the Senate. The
resolution of the Senate, while declaring that its special president had been appointed for the sole purpose of opening the certificates and counting the electoral
votes, did not designate the person or persons by whom the votes should'be counted.'
It might have been their intention that while the President of the Senate should
open the packages, the two Houses when convened should  count the votes' theinselves, or determine by whom they should be counted.   This would,reflect conmpletely the sense of the resolution which stated the purposes of the mreeting, but
not the agents who were to execute those purposes.  The President of the Senate,
however, reported to the two Houses that they had met and that he had opened and
I
x 
REGULAR MODE OF PROCEDURE ESTABLISHED IN 1793.
counted the votes.  The election of Washington as President was unanimous; and
everything was done rather as a formality, and without debate as without deliberation. The counting involved nothing beyond a mere computation, and even that
meagre power, so far as exercised by the special president, was not assumed as an
official right, but was derived from an express resolution of the Senate and the
assent of the House.  The counting was done under a special appointment for that
sole purpose before the Senate had elected its president pro tern.
In the nature of the case, what was done on that occasion can have no authoritv
as a precedent.
PEGULAR MODE OF PROCEDUIDE ESTABLISHED IN 1793.
At the second election-in 1793-the two Houses established a regular procedure for the counting of the electoral votes, a procedure which has been substantially
followed ever since. They assumed and exercised the power of prescribing by concurrent resolutions of the two Houses a mode of counting.
That mode was devised and reported by a joint committee of the two Houses.
Thie committee was raised under concurrent resolutions  charging them, among
other things, with this duty:
February, 1793, "to ascertain and report a mode of examining the votes for
President and Vice-President," page 2.
February, 1797, " to ascertain and report a mode of examining the votes for President and Vice-President," page 5.
January, 1801, " to ascertain and report a mode of examining the votes for President and Vice-President," spag,e 10.
Feb-ruary, 18S0o, "to ascertain and report a mode of examining the votes for
President and Vice-President," page 19.
February, 1809, "to ascertain and report a mode of examining the votes for
President and Vice-Presidenrt," page 22.
February, 1813, " to ascertain and report a mode of examnining the votes for
President and Vice-Presideint," page 26.                                       J
February, 1817, "to ascertain and report a mode of examining the votes for
President and Vice-President," page 29.
Feoruary, 1821, "to ascertain and report a mode of examining the votes for
President and Vice-President," page 34.
February, 1825, " to ascertain and report a mode of examining the votes for
President and Vice-President," page 86.
February, 1829, "to ascertain and report a mode of examining the votes for
President and Vice-President," page 89.
Feblruary, 1833, "to ascertain and report a mode of examining the votes for
President and Vice-President,"' page 90.
February, 1837, "to ascertain and report a mode of examining the votes for
President and Vice-President," page 98.
February, 1841, "to ascertain and report a mode of examining the votes for
President and Vice-President," page 98.
February,,1845, "to ascertain and report a mode of examining thy, votes for
President and Vice-President," page 100.
February, 1849, "to ascertain and report a mode of examining the votes for
President and Vice-President," page 104.
February, 1853, "to ascertain and report a mode of examining the votes for
President and Vice-Presideit," page 107.
February, 1857, "to ascertain and report a mode for examining the votes for
President and Vice-President," page 112.
February, 1861, "to ascertain and report a mode for examining the votes for
President and Vice-President," page 170.
January, 1865, "to ascertain and report a mode of examining the votes for
President and Vice-President," page 257.
On all occasions prior to 1865, the mode reported was for that election only.  In
xi 
APPOINTMENT OF TELLERS BY THE TWO HOUSES.
1865, the joint committee reported a permanent standing rule called the 22d joint
rule, which has governed the counts in 1865, 1869, and 1873.
The phrase "mode of examining the votes" imports a verification, to some extent, of the votes.  The resolutions included some other objects: always the notification of the persons elected, until 1865, when, on the adoption of the 22d joint rule,
the notification was by a separate resolution; often the "regulating the time, place,
and manner of administering the oath to the President;" sometimes, as in 1857,
the question of ineligible electors; or, as in 1821, 1837, 1857, and 1869, the dealing
with disputed votes.
Every one of these resolutions asserts the rightful power of the two Houses over
the counting; and that power was asserted in twenty-one successive elections without denial or question.  Every one of these resolutions is incompatible with the
existence of any power whatever over the subject on the part of the President of
the Senate. If he had a constitutional right to govern the count, no one of these
resolutions would have been valid.
After the mode of examining the votes was "ascertained and reported" by the
committees, the two Houses by concurrent resolution have adopted the mode finally
agreed upon. They have not only asserted their power over the counting in the
creation of those committees, but in all cases have again asserted it by a formal
and authoritative adoption of the work of the committees by concurrent resolution
of the two Houses.
The resolution prescribing the mode of counting has always begun by fixing the
time and place of the joint meeting of the two Houses for the purpose of counting
the electoral votes.
PLACES OF MEETING OF THE Two HOUSES.
The places of meeting to count the electoral votes have been determined invariably by a joint resolution of the two Houses.  At the first two elections of General
W\ashington they met in the Senate Chamber.
At the election of John Adams the Senate joined the Itouse in the Hall of tlhe
Representatives.
At the several elections of Thomas Jefferson, in 1801 and S1805, the two Houses
met in the Senate Chamber.
Since then they have invariably met in the Hall of Representatives, making four
times in the Senate Chamber anid seventeen times in the Hall of the Representatives.
APPOINTMEINT OF TELLERS BY TIlE Two HousEs.
The resolutions prescribing the mode of counting have always contained a provision that one teller on the part of the Senate, and two tellers on the part of the
House of Representatives, should be appointed, and, in every counting of the electoral votes since the formation of the Government, two tellers have acted for the
House of Representatives and one teller has acted for the Senate. Even in the
anomalous counting of 1789, that was so. At every counting from 1793 to 1873,
inclusively, the House by a resolution has appointed two tellers and the Senate has
appointedone teller
In the'language of Senator Boutwell (March 13, 1876, see "Proposed Changes,"
p. 11), "the tellers were the orgaris, the instruments, the hacnds of the respective
Houses; the votes were counted by the tellers, and, being counted by the tellers,
they were counted by the two JHouses. And, therefore, there never has been any
different practice, and no different practice could have arisen under the Constitution.
The two Houses in convention have from the first until now counted the votes."
The fact that the tellers have always been appointed by the two Houseshave held these trusts at the pleasure of the two Houses, subject to their orders and
instructions, and wholly free from the contrcol of the President of the Senate, is of
itself decisive in favor of the right of the Houses to count the votes, and is equally
decisive against any pretension on the part of the President of the Senate to govern
or in any manner to interfere with the counting.
xii 
FUNCTION OF THlE TELLERS.
FUNCTION OF TIlE TELLERS.
At every counting, from 1793 to 1861, inclusively, the resolutions adopted by
the two Houses have defined the duty of the tellers to be   1. "To make a list of the votes as they shall be declared."
2. " The result shall be delivered to the President of the Senate."
In practice, the tellers have read the votes, one by one, after they have been
opened or the seals sometimes broken, soimnetimes unbroken, by the presiding officer,
or in some instances the packages with unbroken seals handed over by the presiding
officer; have read each certificate in full to the two Houses, which, in the phraseolog,y of the resolutions, is the "declclrain" of the vote in each certificate; and is
sonmetimes so called in the Journals; have entered ea,ch vote so declared upon a list;
and tiien leave delivered the result to the presiding officer.
The joint rule governing the counting in 1865, 1869, and 1873, defnes the function of the'tellers as follows
"One teller shall be appointed on the part of the Senate and two on the part of the Itouse
of Representatives, to whom shall be handed( as they are opened by the President of the Senate
the certificates of the electoral votes; and said tellers having read the saizie in the presence
and hearing of the two Houses then assembled, shall make  a list of the votes as they shall
appear from the said certificates, and, the vote hraving been counted, the result of the sanme shall
be delivered to the President of the Senate."
It is to be observed that the phraseology of the joint rule deems the counting to
be completed, while the certificates are in the hands of the tellers; after they have
been opened and handed to the tellers, and before the result has been delivered to
the presiding officer.
It is to be observed also that all questions as to the authenticity or validity of
any vote must be raised and must be submitted to and determined by the two
Houses before the votes have left the hands of the tellers.
That has been the invariable practice from the beginningi of the Government in
every case of a disputed vote.  That practice was defined and stated and adopted in
the joint rule established in 1865.'I was expressed as follows:
"If, upon the reading of any such certificate by the tellers, any question shlall arise in regard
to counting the votes therein certified, the same having been stated by the presiding officer,
the Senate shall thereupon withdraw, and said question shall be suhmitted to that body for its
de-'ision; and the Speaker of the Hlouse of Representatives shall in like manner submit said
question to the House of Representatives for its decision; and no question shall be decided
affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the
two Ilouses, which being obtained, the two Houses shall immediately reassemble, and the presiding officer shall then announce the decision of the question submitted; and upon any such
question there shall be no debate in either House.  And any other question pertinent to the
object for which the two Houses are assembled may be submitted and determined in like
manner."
FU-NCTIONS OF TIE  PRESIDENT OF TEI-I  SENATE IN RESPECT TO COUNTING THE
ELECTORAL VOTES.
As to the implied custody of the votes before the counting.
The Constitution (Amendments, Art. 12, Sec.  1) provides  that the electors
"shall transmit" the certified lists of their votes for President and Vice-President
"sealed to the seat of Government of the United States, directed( to the President
of the Senate."
The statute of 1792 provides that, "in case there shall be no President of the
Senate at the seat of Government on the arrival of the persons intrusted with the
certificates of the votes of the electors, then such persons shall deliver suich certificates into the office of the Secretary of State, to be safely kept, and delivered over
as soon as may be to the President of the Senate."-(Rev. Statutes, Sec. 145, p. 22.)
xiii 
AS TO THE OPENING OF THE VOTES.
AS TO THIE OPENING OF THE VOTES.
The Constitution (Art. 11, Sec. 1, Sub. 3, and Amendment 12, Se-c. 1) provides
that "the President of the Senate shall, in the presence of the Senate and House
of Representatives, open all the certificates."
At the time the provision that the sealed packages of votes to be transmitted
by the electors to the seat of Government and addressed to the President of the
Senate came before the Convention of 1787, it was a part of the scheme that the
President of the Senate should open all the certificates in the Senate, and that the
votes should then and there be counted; anrid that, in the event of a failure of
choice by the electoral colleges, the'Senate should immediately elect both the President and Vice-President. (September 4, 1787. 5 Elliott, 507.)
The report of the committee was modified, by providing that the President of
the Senate should open all the certificates "in the presence of the Senate and the
House of Representatives;" and then the election of President, on the failure of a
choice by the colleges, was taken away from the Senate and given to the House of
Representatives.  (5 Elliott, 518, 519, 520.)  But the power, on a failure of a
choice by the colleges, to elect the Vice-President, remained in the Senate. The
requirement that the certificates transmitted to the seat of Government should be
addressed to the President of the Senate under seal, and that the packages should
be opened in the presence of the official bodies which were to take jurisdiction of
the facts and remedy any failure in the choice by the electoral colleges, was allowed
to stand. These provisions were intended to secure the votes given by the electors,
at their meetings in the several States, fr3m being tampered with, until they should
come into the actual possession of the two Houses.
The House of Representatives and the Senate had not only a right, but a duty
and anl official necessity, to know in the most authentic manner the result of the
votes given in the electoral colleges.
In the first place, the House of' Representatives, on the failure of a choice of
President by the electoral colleges, was charged with the duty of electing the Presidclent. The fact of the failure of the colleges as specified and defined in the Constitution was the sole basis of the jurisdiction of the House to act. Its own means of
"examining the votes for President and Vice-President" (such is the language of
all the concurrent resolutions of the two Houses from 1793 to 1865, and of the joint
standing rule by which they were replaced in 1865) was the only evidence provided
by the Constitution of the fact on which the House acquired jurisdiction.
No judgment, certification, or act of any other official body, was interposed as
a condition. The House is a witness of the opening of the certificates. It is an
actor in the counting of the votes by its own tellers, and in its presence.  "And if
no person have" a "majority" of "the electors appointed, then from the persons
having the highest numbers, not exceeding three, in the list of those voted for as
President, the House of Representatives shall choose immediately, by ballot, the
President." Such is the imperative command of the Constitution. And, when the
House has acted in such a case, there is no review of its action nor any appeal from
its decision.
The Senate has a similar jurisdiction, on the failure of a choice of Vice-President
by the electoral colleges, to elect the Vice-President. It has the same right, duty,
and official necessity, to know the result of the votes.
In the second place, the two Houses of Congress have all the powers of verification of the electoral votes and their results which the Constitution and the laws
supply or allow. Nobody else in the Federal Government has any such powers.
The two Houses have always themselves made the count, and regulated its process
and procedure by concurrent resolution applicable to each particular election until
1865.  Then they did so by a standing joint rule.  Doubtless they may do so,
within constitutional limits, by legislation.
They are the most appropriate and the safest depositary of such powers in this
respect as are to be exercised by the Federal Government. The Convention of 1787,
until nearly the close of its deliberations, adhered to the plan of intrusting the leo
xiv 
PRESIDING AT THiE JOINT MEETING.
tion of President to the two Houses of Congress.  When it finally adopted the
system of electors chosen by the people or Legislatures of the States, it still, in case
of a failure of choice by the electors, vested the election of President in the House,
and of the Vice-President in the Senate. Those bodies are the general representatives of the people, and the depositaries of the legislative powers of the Governmont.  No better, wiser, or safer trustees of the power to count the electoral votes
can be found in the nature of human affairs.
The President of the Senate has no constitutional power, by virtue of his office
as such president, to do anything in respect to the counting but "to open all the
certificates" in the presence of the two Houses.   Hle has never done anything
further except by virtue of an express grant of authority conveyed in concurring resolves or orders from the two Houses.
PtESIDIN(G AT TlE JOINT MEETING.
The House of Representatives has never parted with its right to retain its own
presiding officer or to insist that its consent is necessary to the temporary appointminent of a presiding officer for the two Houses. There is no constitutional provision
nor any law giving the President of the Senate the right to preside over the two
Houses when sitting to6gether at the counting of the electoral votes. The two
Houses assemble, not in the individual capacity of the members, but in the official
capacities of those bodies. They assemble as a Senate and House of Representatives. If no positive provision for one presiding officer is made, the Speaker would
preside over the House of Representatives.  At the first five elections nothing is said
in the recorded proceedings about a presiding officer. At Jefferson's second election
the Speaker is described as occupying a seat "on the floor on the right side of the
President of the Senate "-one of the exceptional cases in which the two Houses
met in the Senate Chamber.
At Madisonr's first election, in 1809, John Randolph, a member of the House, objected to the President of the Senate being permitted to occupy the Speaker's chair
without the formal invitation or permission of the House. Thereupon a motion was
made a-nd passed that, when the members of the Senate were introduced, the Speaker
should relinquish the chair to the President of the Senate. Mr. Randolph then made
a motion which was adopted, that the Senate be notified of this vote by a message,
to show that its president would occupy the Speaker's chair by courtesy and not of
right  "If not," he said, "it mi,ght appear that the President of the Senate took
the chair as a matter of right.  He said he knew that to many persons matters of
this sort appeared to be of minute importance, but, in everything touching the privileges of this IHouse as it regarded the claims of the other coordinate branches of
the Go,veri,ment, he would stickle for the ninth part of a hair.  It was well known
that in England the privileges of the Comrnmons had been gained inch by inch from
the kings and nobles by a steady perseverance; and that man must have very little
knowledge of mankind, indeed, who was not persuaded that those privileges might
be lost, as they were gained, by gradual and imperceptible encroachment o1i the one
hand, and tacit yielding on the other."  At the succeeding election of Madison, in
1813, no resolution was adopted onl this subject, but the record showvs that "a message from the House of Representatives informed the Senate that the House is now
ready to attend the Senate in 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, in pursuance of the resolution of the two Houses of Congress; and
that the President of the Senate will be introduced to the Spelaker's chair by the
Speaker of the House of Representatives."
In the joint session of the two Houses in 1817, Mr. John W. Taylor, an experienced parliamentarian, at one time Speaker of the House, addressed himself to the
Speaker of the House; and Mr. J. B. Varnum, of the Senate, also an experienced parliamentarian, at one time Presidentpro tem. of the Senate, addressed himself to the
President of the Senate; thus respecting the separate existence and action of the
two Houses, even when assembled in joint session.
xv 
PRESIDING AT THE JOINT MEETING.
At Monroe's second election, in 1821, when the two Houses were involved
in the Missouri controversy, a resolution of the Senate, adopted February 13th, prescribing the mode of counting, provided that at the joint session the President of
the Senate should preside. But the resolution, reported to the House by Mr. Clay,
the great pacificator on tlhat perilous occasion, provided that "the President of the
Senate, seated on the right of the Speaker of the House, shall be the presiding
officer of the Senate, and the Speaker  shall be the  presiding officer of the
House."  This resolution also was adopted on the 13th of February.  Mr. Clay
afterward offered a resolution, which was adopted, appointing a committee of
two " to receive the Senate, conduct the President of the Senate to the chair,
and the members to the seats assigned to them."  The President of the Senate was conducted to the Speaker's chair, and-the Speaker took a chair at his left
l)and. When the other votes had been counted and the votes of Missouri were
announced and handed to the tellers, a member objected to receiving the vote of
Missouri, on the ground that Missouri was not a State of the Union.  The motion
was thereupon made by a Senator that the Senate do now withdraw to its Chamber; which was carried, and the Senate withdrew accordingly. At the close of a
debate in the House, Mr. Storrs demanded the reading of the resolution of the
I-louse prescribing the mode of counting compared with that of the Senate. An
explanation then came out that the retirement of the Senate from the joint session
was caused by the discovery of the discrepancy between  the  two resolutions.
Afterward the House sent a message to the Senate for the purpose of continuing
the enumeration of the electoral votes according to the joint resolution which had
been adopted; and the Senate returned to the joint session. The counting was
completed, and the vote of Missouri counted under the concurrent resolution, providing for an alternative enumeration of the votes with Missouri excluded and with
Missouri included.   The session continued under the House resolution, the two
lHouses acting under their respective presidigf officers.  On  this same occasion the
President of the Senate occupied the Speaker's chair by virtue of an express provision in the joint resolution on procedure. In defense of this feature of the programme M.,. Clay, who was chairman of the committee which reported it, said: "As
convenience rendered it necessary for the Senate to meet this House here in its own
Hall, it was due to that body by courtesy and propriety that the president should
be invited to preside, he being the officer designated by the Constitution to perform
a certain duty appertaining to the occasion which called the two Houses together."
At the election of John Q. Adams, in 1825, the President of the Senate was invited to a scat on the right hand of the Speaker of the House. In this case the
tellers, after the votes had all been opened and counted, "left the Clerk's table, and,
presenting themselves in front of the Speaker, Mr. Tazewell delivered their report
of the votes given, which was then handed to the President of the Senate," it being
the evident intent of the teller, Tazewell, to recognize the Speaker of the House
as no less a presiding officer than the President of the Senate.
At Jackscn's first election, in 1829, no resolution was passed in regard to the
presiding officer, but the record shows that the Vice-President "seated himself at
the right hand of the Speaker."
At Jackson's second election, also, there was no provision for a presiding officer
in the concurrent resolution, but on that occasion the President of the Senate occupied the Speaker's chair.
The President of the Senate has occupied the Speaker's chair at every one of
the ten presidential elections which have succeeded the election of 1833, but, in
every instance save one, by virtue of the express authority of a joint resolution of
the two Houses, and never as a matter of right.
On some occasions the concurrent resolutions have in terms conferred the duty
of presiding on the President pro tempore; sometimes when the Vice-Presidency
has been vacant, and sometimes when it has not been vacant. The result is, that the
power of the two Houses to designate the presiding officer at the joint session has
been always recognized, and frequently exercised; and it is only by express or tacit
xvi 
ANNOUNCING TO THE TWO IIOUSES THE STATE OF THE VOTE.
consent that the usual and regular mode of acting by the respective presiding officer
is waived, and a single presiding officer designated.
The function of the two Houses, when sitting together, has been carefully and
jealously restricted to the mere counting; and all debate and all voting have been
uniformly excluded. Whenever it became necessary to entertain debate or to vote,
the Houses have generally separated, and acted in their respective Chambers.  When
they have acted at all while assembled in the same hall, they have acted separately
and under their respective presiding officers. The result is, that, th,ough the semblance
of a presiding officer has been generally given to the President of the Senate while
the mechanical process of counting was going on, he has really exercised none of the
functions usually attributed to the presiding officer of a deliberative body.
ANNxOUNCING TO THE Two IHOUSES THE STATE OF THlE VOTE.
Tile President of the Senate has no authority, by virtue of his office as such
president, to announce the result of the count of electoral votes made by the two
Houses of Congress assembled in joint convention.  Even where he has been expressly designated as their presiding officer by concurrent resolves or orders of the
two Houses, he has never exercised any authority to announce the result of the
count by virtue of his function as the presiding officer. In every case, from 1793 to
the present time, whatever power he has exercised in this respect has been expressly
granted, defined, and limited, by provisions of the concurrent resolutions prescribing
the mode of counting the electoral votes on each particular occasion.  In one wellknown case (in 1821) this power of announcement was granted to him by the House
when he did not, but the Speaker did, preside over the House. No doubt, in the orderly course of business in a legislative body, its vote would usually be announced
to it by its presiding officer; but that is simply because such is a convenient practice.  The Speaker is the customary organ of the House for suchi purposes; but it
is quite certain that in performing such a function he acts by tlhe order of the Houise,
and is subject to its commands. It is no less certain that the House can appoint
some other organ to exercise this function if it chooses.  If it may do so in respect
to its own vote, still more may it do so in respect to the result of a count of votes
of the electoral colleges made by it through its tellers.  Now, it has so happened
that in every case, from 1793 to the present time, the two Houses assembled in joint
convention for the purpose of counting the electoral votes have expressly prescribed
the rules which have governed the announcement of the result of such a count.
They have from time to time revised some of the rules which they have applied, but
they have always prescribed rules which have been obeyed and have uniformly governed their proceedings.
In every case the two Houses have provided that the count should be by tellers of
the two Houses, who have frequently been specially instructed by the two Houses as
to how they should count; what votes they should admit, and what votes they should
not admit.  In every case they have prescribed that it was only after the votes had
been publicly examined and ascertained before the two Houses; after they had been
entered on a list; read to th3 two Houses, and the results of the enumeration on the
lists computed; after the results so found by the telers had been "delivered" by the
tellers to the presiding officer, that any duty on the part of the presiding officer
arose.
In every case, from 1795 to 1861, inclusive; in eighteen successive countings, these
conditions were expressly prescribed in respect to the one particular counting to bil
regulated on each occasion.  At the three countings of 1865, 1869, and 1873, the
same conditions were applied under the standing joint rule; which codified the
practice in the following words:
"One teller shall be appointed on the part of the Senate and two on the part of
the House of Representatives, to whor  shall be hazde,c, as they are opened by the
President of the Senate, the certificates of the electoral votes;;and the said tellers,
haviing read the same in the presence and hearing of the two Houses thus assembled,
shall make a list of the several votes as they shall appear from the said certificates;
xvii 
CHANCELLOR KENT'S "PRESUMPTION."
and, the votes havioig been counted, the result of the same shall be delivered to the
President of the Senate."
Such are the conditions which must have been fulfilled in virtue of formal orders
prescribed by the two Houses, at every one of the twenty-one countings from 1793
to 1873, inclusive, before the presiding officer could act at all.
After all these conditions have been complied with, his authority in respect to
announcements commences.
In 1793 it wa's expressed in these words; "who shall announce the state of the
vote and the persons elected, to the two Houses assembled as aforesaid."
In 1801 and 1805 the announcement was of "the state of the vote" only, and
not of the persons elected.  In the joint rule of 1865 the words are; " the state of
the vote and the names of the persons, if any, elected."
The concurrent orders in 1801 and 1805 had another peculiarity. They provided
that "the state of the vote shall be entered on the Journals, and, if it shall appear
that a choice hath been made agreeably to the Constitution, sucA entry on the Journlals shall be deemed sufficient declaration thereof."
These instances illustrate how completely the two Houses by their concurrent
resolves or orders have controlled both the manner and substance of the announcement to the two Houses assembled in joint convention.  It has already been mentioned that in 1821 the resolve or order of the House of Representatives authorized
the President of the Senate to make the announcement, though he did not, and the
Speaker did, at the time preside over the House.
An inspection of the resolves or orders of the two Houses under which the
countings have been had, an analvsis of their exact terms and of the nature and
effect of the acts done under them, demonstrate that the President of the Senate or
other presiding officer never had any independent power over even the announcement of the result of the count, never had any power except to do as he was commanded by the affirmative concurrent orders of the two Houses., Still less would he
have power to revise or alter the results delivered to him by the tellers, or to intermeddle in any manner with the tellers in "examining and declaring the votes," in
making the lists or enumerating the results, or in obeying the instructions of the
two Houses as to what should or should not be admitted as votes and counted.
Such an assumption of power would be as naked usurpation on the part of the
President of the Senate or any other presiding officer as if the same power should be
assumed by the Clerk, or by a messenger or page of one of the Houses.
The law is well stated by John Adams, Vice-President, and President of the Senate, in 1797, when he announced "the state of the vote and the persons elected to
the two Houses assembled" in joint convention.
" In obedience," said he, "to the Constitution and law of the United States, and
to the comimands of both Hfouses of Congress expressed in their resolutions passed
in the present session, I now declare that John Adams is elected President," etc.
CIIAqCELLOr KENT'S " PREESUMPTION."
Kent, in his "Commentaries" (vol. i., p. 277), says:
" The Constitution does not expressly declare by womn the votes are to be counted.  In the
case of questionable votes, and a closely-contested election, this power may be all-important;
and, I presume, in the absence of all legislative provision on the subject, that the President of
the Senate counts the votes and determines the result; and that the Houses are present only
as spectators, to witness the fairness and accuracy of the transaction, and to act only if no
choice be made by the electors."
This remark was written more than fifty years ago, and is one of those hasty sliggestions which it was a characteristic of the venerable chancellor, in his judicial
career, candidly to correct. Indeed, he does not seem to have had confidence in it
hiLmself.  He makes the power in the President of the Senate, if it exist at all, dependent on the absence of all legislative provision on the subject.
The power to count the votes is not a necessary incident to the power to receive
the packages and open them in presence of the two Houses.  If it were, it could not
xviii 
THlE NOTIFICATION  CERTIFICATES.
be taken away by legislation. As the principal power is derived from the Constitution, the incidental power would stand with it superior to the legislative authority
of Congress.
If the power to count the votes be not incidental to the power to receive and
open the certificates, the President of the Senate has no pretense of clain to it. The
absence of legislation might leave a default of power, but could not confer it on a
functionary who had no other title to it.  The Constitution does not make the election of President dependent on the count of the votes by any particular authority,
but only upon the fact of receiving a majority of the votes. If there were no tribunal authorized to ascertain this fact, it might impose on the public bodies of the
State the necessity of finding it out for themselves, and acting on their own judgment; but it would not entitle the President of the Senate to seize upon the vacant
authority.
The Government is not exposed to such a castts omissts.  It is admitted by
Chancellor Kent that the legislative bodies could supply the alleged defect. They
are, therefore, the best judges whether such a defect exists, or whether a true construction of the Constitution vests the implied power of counting in a fit and adequate tribunal, such as the two Houses of Congress.  They have so decided, and
have acted on that conclusion for more than eighty years.  An established practice,
uninterrupted and undisputed, ought to be accepted as law.
THE NOTIFICATION- CEPTIFICATES.
In 1797, in notifying the Vice-President of his election, the President of the
Senate transmitted to him a certificate, which incidentally stated that the President
of the Senate hal counted the votes.  No such formality was extended  to the
Presidenlt.  In 182o the Vice-President was again favored in the same manner.  in
1801 a mnore singular certificate of the election of President and Vice-President was
made; for it assumed also to certify what had happened in the House of Representatives.  In 1805, 1809, 1813, and 1817, similar certificates were made.  These are all
since 1789; none such have been known for thie last fifty years.
The first criticismn on these papers is, that they seem to have followed the formn
of that of 1789; in which case, the- procedure of the regular count by the two
Houses, which has been practised ever since, had not been established, and the
special President of the Senate, in the anomalous conditions of the then government, probably did himself verify the enumieration of the votes.
The more important observation is, that we must distinguish between the ambiguous senses in which the word "count" is constantly used.  In one sense, it is a
mere clerical enumeration of the votes, without the slightest particle of discretion.
In the other sense, it involves a decision of what shall be counted as a vote, and
includes a large element of judicial power. Now, it might well be that, at the
counting by the two Houses, through their tellers, the presiding officer or the
Speaker of the House, and the Clerks and many of the members, had gone throu-gh
the enumeration, or had verified it, so as to be able to say, in the narrowest sense,
that they had counted the votes; or that the presiding officer could certify that he
had counted constructively. Everybody who chose to give the necessary attention
to the process, publicly performed, might be said, in some sense, to count.
But, taking the count of 1797 as an illustration, Vice-President John Adams
presided, and gave the first of these certificates to Jefferson, who succeeded him as
Vice-President, while Mr. Adams himself was elected President.  That counting
was conducted according to a mode which had been prescribed by concurrent resolutions of the two Houses, adopted on the report of a joint committee raised for that
purpose. Those resolutions specified every step in the process. They directed that
the tellers appointed by the two Houses to examine the votes should make a list of
them as they should be declared by a reading of them to the two Houses, an(d,
when it was completed, should deliver the result to the President of the Senate,
who should then announce to the two IIouses the state of the vote and the persons
elected.
xix 
THiE PRECEDENT OF 1857.
The Journals of the two Houses show that the sealed pack&ages of certificates
were opened bv the Vice-President and by him delivered to the tellers appointed by
the two Houses; that they examined and ascertained the number of votes and made
a list of them, and presented that list to the Vice-President, which was read.  lHe
thereupon declared to the two Houses- the persons elected as President and VicePresident, and said that he did so "in obedience to the commands of both Houses
of Congress expressed in their resolutions." That the presiding officer did in fact
interfere, or had any power to interfere, with the official machinery of the counting,
or with the process of the counting, or with the results of the counting, or that in
the restricted function of announcing that result to the Houses over which he presided, he did or had power to do anything but obey the commands of the two Houses,
is contradicted and disproved by the official re-trds of the two Houses, and by his
own public declarations at the time.
In whatever barren sense he may be said to have counted the votes, it exercised
Lo influence over the results. The only authentic, official, and obligatory counting
was exclusively by the two Houses of Congress.
The same statement is equally true of every case in which such a certificate was
ever made. In one of those cases the votes of Indiana were disputed. The question was considered and debated by the Houses; and, as it made no difference with
the result, it was indefinitely postponed; but the presiding officer was pot even consulted about it.
As precedents to sustain the President of the Senate in assuming the power to
count the votes in the sense merely of enumerating the votes, and still more in the
sense of adjudicating on the authenticity and validity of the votes, the certificates
are utterly worthless.
TiHE PRECEDENT OF 1857.
The action of President pro ten. Mason, in 1857, seems to have been misstated,
unintentiona'ly, by Senator Morton.  Mr. Mason did not arrogate to the presiding
officer any power to decide whether the vote of Wisconsin was valid, or to decide
whether it should be counted.  He repeatedly disclaimed any such power.  The
electors of Wisconsin, Having been prevented by a snow-storm from assembling on
the day prescribed by the act of Congress, met on the next day and voted.  Mianv
Senators and  tepreselntatives were of the opinion that the vote was illegal and
void. As in the case of Indiana in 1817, Aiissouri in 1821, and Michigan in 1837,
the vote, whether counted or not, made no change in the result of the election, and,
in another respect, the question was even less important. In all those three cases
the questionable votes were for thle candidates who were elected; and, although
those candidates had a majority without the questionable votes, the statement df
the aggregate number of votes received by those candidates had either to include
or exclude the questionable votes. In the Wisconsin case, the votes were for Fr6nmont and Dayton, who were, in any event, the minority candidates; and the statemnent of the votes received by Buchanan and Breckinridge was unaffected by these
votes, and showed a majority irrespective of them.
ThI-e tel'ers entered the votes of Wisconsin on their list, included them in the
footing, and reported the result to the presiding officer.  When the votes of Wisconsin were reached, objection was made; but the objectors did not seem aware of
the usage of moving for a separation of the Houses in order to discuss and decide
whether the vote of Wisconsin should be counted; and the presiding officer ruled
that debate was out of order in the joint meeting. The process, therefore, went onneither of the two Houses having by a parliamentary method suspended the operation of the ministerial functions which, without such interposition, were being properly performed. The tellers made their report verbally; and the presiding officer
obeyed the concurrent resolution by announcing to the two Houses the state of the
vote and the persons elected.  The tellers were about to make  their report  in
writing, when, to enable the debate to be had, the motion was made and carried that
the Senate retire to its own Chamber.
xx 
HOW THE COUNTING HAS ACTUALLY BEEN DONE.
During the joint session, Senator Crittenden inquired, "Do I understand the Chair
to decide that Congress in no form has the power to decide upon the validity or
invalidity of a vote?"  The presiding officer answered that he had made no such
decision; that, "under the law and the concurrent order of the two Houses, nothing
can be done here but to count the votes and declare the votes thus counted to the
Senate and House of Representatives sitting in this Chamber; " and that further
action could only be taken in the two Houses in their separate capacities.
Afterward the presiding officer said he " was not aware that what effect, if any,"
the irregularity in the vote of Wisconsin " would have on the votes" of that State
can be decided by him. Nor is it his duty to "decide upon whom devolves the duty
of determining what the effect may be."  Senator Crittenden alluded to the presiding oTicer as having assumed "to declare the number -of votes, involving the privilege of determining a presidential election and saying who shall be President, and
said, "I protest against any such power."  Senator Toombs said, "I  join with the
Senator in that protest."  The presiding officer answered that "the presiding officer is utterly unaware that lhe has assumned the exercise of any such power." Senator Toomn)s: "I consider that the presiding officer has done so."  The presiding
officer said: " The concurrent order of the two Houses makes it the duty of the
President of the Senate to announce the state of the vote, and the persons elected,
to the tw-o Houses assembled.  That duty he has discharged, and none other."
Immrnediately after the Senate had withdrawn to its own Chamber, a debate
upon the subject ensued.  The written report of the tellers, the delivery of which
to the two Houses had been intercepted by their separation, was submitted to the
Senate. That report stated the aggregate votes of Fre6mont and Dayton, omitting
the votes of Wisconsin; and stated those votes separately, with the date when
they had been given.  Mr. Mason, President pro tem., who had been the presiding
officer of the two Houses in their joint meeting, again disclaimed in the most positive terms the assumption of power ascribed to him. He said:
"' The Chair will further state to the Senate, as the result of the action in the
Hill of the House of Representatives in counting the votes, that the duty was devolved upon the presiding officer there, by the concurrent order of the two Houses,
to declare the result of the vote as delivered to him by the tellers. That declaration dicd not involve, in the opinion of'the Chair, the validity or the invalidity of
the vote of the State of TWisconsin.  The declaration made by the Chair in the
presence of the two Houses as to the gentleman who had been elected President
was written down, and is in these words:'That James Buchaanan, of the State of
Pennsylvania, having the greatest number of votes for President, and that number
beingr a majority of the whole number of electors, has been duly elected.' Whether
the vote of thie State of Wisconsin be included or not, the declaration made by the
presiding officer, that Mr. Buchanan had a majority of the votes, and that that majority was a majority of the whole number of the electoral votes, was strictly conformable to the fact."
Again the President of the Senate said:
"The presiding officer, in his own judgment, believed then, as he believes now,
that he declared correctly, as the state of the vote, that James Buchanan had received the greatest number, and that that number was  a majority of the whole
number of electors, not undertaking to decide, and not having decided, whether
the vote of the State of Wisconsin had been given to John C. Fr6mont or not-a
pozwer that the Chair utterly disclaimns and never asserted."
How TEE COUNTING IHAS ACTUALLY BEEN DONE.
The course of procedure taken in thle presence of the two Houses  at the various elections, shows the same uniform recognition of their supreme  authority in
deciding upon the authenticity and validity of the electoral certificates.
The informality of the first election in 1789, and the fact that the course then
pursued was never repeated, deprives it of all authority as a precedent.
xxi 
I  HOW THE COUNTING HAS ACTUALLY BEEN' DONE.
1793.
At the second election of President Washington, in 1793, "the certificates of the
electors of the fifteen States in the Union, which came by express, were by the VicePresident opened, read, and delivered to the tellers appointed for the purpose, who,
haviny exancined and ascertained the votes, prese2ted a list of the)m to the Vice-President, which list was read to the two Houses, and is as follows, etc.,'Whereupon
the Vice-President declared George Washington unanimously elected President,'"
etc.
On this occasion the President of the Senate only opened, read, and delivered
the certificates to the tellers; they examined, ascertained the votes, and presented
a list of them to the President of the Senate, which list he then read to the two
Houses. The function of the Vice-President was then, as it has always been since,
purely a passive one.  Where there has been any variation, it has been to invigorate rather than weaken the prerogatives of the two Houses.
1797.
At the election of John Adams in 1797, "the certificates of the sixteen States
were by the President opened and delivered to the tellers appointed for the purpose,
who, hlaving examined and ascertained the number of votes, presented a list thereof to the Vice-President (Mr. Adams  himself), which was read as follows, etc.,
whereupon Mr. Adams proceeded to discharge what hle regarded as the duty of the
President of the Senate.
"He addressed the two Houses as follows:
"'Gentlemen of the Senate and House of Representatives: By the report
which has been made by the tellers appointed by the two Houses to examine the
votes, there are 71 votes for John Adams, 68 for Thomas Jefferson,' etc., etc.,'so
that the person who has 71 votes, which is the highest number, is elected President, and the person who has 68 votes, which is the next highest number, is elected
Vice-President.' The President then sat down for a moment, and rising again, thus
addressed the two Houses:
"In obedience to the Constitution and law of the United States, and the corncnand7s of botlh Jbuses of Congress, expressed in th/eir resolution passed i the preseyzt session, I declare that John Adams is elected President of the United States
for four years, to commence witl the 4th of March next, and that Thomas Jefferson
is elected Vice-President of the United States for four years, to commence with the
4th of March next."
1801.
At the election of Thomas Jefferson, in 1801, " the President of the Senate in the
presence of the two Houses proceeded to open the certificates of the electors of the
States, beginning with the State of New Hampshire, and, as the votes were read, the
tellers on the part of each Iouse counted and took lists of the sacmne, w]hich beingypreparec(, were delivered to the President of the Senate, and are as fjollows," etc.
1805.
At the second election of Thomas Jefferson, in 1805, the same course of procedure
was taken by the two Houses as at his first.  The only difference worth remarking is
thus reported in the annals of Congress:
"The President (Mr. Burr) stated that, 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 due time.'You will now proceed, gentlemen,' said he,' to couGt
the votes as the Constitution and laws direct;' adding that, perceiving no cause for preference in the order of opening the returns, he would pursue a geographical arrangement, beginning with the the Northern States.
"',The President then proceeded to break the seals of the respective returns, hand
xxii 
HOW THE COUNTING HAS ACTUALLY BEEN DONE.
ins each ret?ur) and its acconmpanying dtpl)icctete as  th seals of each were broken to
the tellers through the Secretary; Mr. S. Smnith reading aloud the returns and the
attestations of the appointment of the electors, and Mr. Clay and Mr. Griswold comparing them with the duplicate return lying before them.  According to the enumeration, the following appeared to be the result."
"After the returns had been all exaninecd without any objections having been
made to receiving any of the votes, Mr. S. Smith, on behalf of the tellers, communticated to the President the foreyoi)ng result, which was readfi-om the Chair; when
the Vice-President said,' ULon, this report, it becomes my duty to declare agreeably
to the Constitution that Thomas Jefferson is elected President of the United States
for the term of four years from the third day of M'arch next, and that George Clinton
is elected Vice-President of the United States for four years from the third day of
March next.'
1809.
At Madison's first election, in 1809, "the certificates of the electors for the several States were, bv the President of the Senate, opened and delivered to the tellers
appointed for the purpose, wvho, having examiined and ascertainedz the cumber of'
votes, presented a list thereof to the President of the Senate, which was read, as
follows:"
1813.
At Madison's second election, in 1813, "the two Houses of Congress, agreeably
to the joint resolution, assembled in the Representatives' Chamber, and the certificates of the electors of the several States were, by the President of the Senate,
opened and delivered to the tellers appointed for the purpose, who, hcavi~( exami,e,q
acnd cscertaineda tAe number of votes, presented a list thereof to the President of the
Senate, vwhich was read as follows," etc.
It is mentioned in the House proceedings that the returns for each State "were
severally read aloud by one of the tellers, and noted down and announced by the
secretaries of each House."
1817.
At Monroe's first election, in 1817, "the two Houses of Congress, agreeably to
the joint resolution, assembled in the Representatives' Chamber, and the certificates
of the electors of the several States were, by the President of the Senate, opened
and delivered to the tellers appointed for the purpose, who, h(aving examined and
aseertainzed the numnber of votes, presented a list thereof to the President of the
Senate, which was read as follows."
" The tellers handed a statement thereof to the President of the Senate, who
a;.ztou)tced to the joint meeting the following as the state of the votes," etc.
1821.
At Monroe's second election, in 1821, in the Senate, "the certificates were, by the
President of the Senate, opened and delivered to tellers appointed for the purpose,
by whom they were read, except the State of Missouri."
The two Houses then separated to consider that case, after which the record proceeds:
"Whereupon the two Houses having again assembled in the Representatives'
Chamber, the certificate of the electors of the State of Missouri was, by the President
of the Senate, delivered to the tellers, who read the same, and who, having examni,iecl
and ascertained the whole number of votes, presented a list thereof to the President
of the Senate, by whom it was read, as follows," etc.
The House proceeding states
"The Senate again appeared, and took seats in the House as before.
"The President of the Senate, in the presence of both Houses, proceeded to open
the certificate of the electors of the State of Missouri, which he delivered to the
tellers, by whom it was read, and who registered the same.
"And the votes of all the States having been thus counted, registered, and the
xxiii 
HOW THiE COUNTING HAS ACTUALLY BEEN DONE.
lists thereof compared, they were delivered to the President of the Senate, by whom
they were read, as already printed.
"The President of the Senate then, it  pursuance of the resolutioni adopted by
the two tiouses, proceeded to angiotice the state of the votes to the two Houses of
Congress, in joint meeting assembled, as follows:
"Were the votes of Missouri to be counted, the result would be: For James
Monroe, of Virginia, for President of the United States, 231 votes; if not counted,
for Jamnes Monroe, of Virginia, 228 votes.  For Daniel D. Tompkins, of New York,
for Vice-President of the United States, 218 votes; if not counted, for Daniel D.
Tompkins, of New York, for Vice-President of the United States, 215 votes. But
in either event, James Monroe, of Virginia, has a majority of the votes of the whole
number of electors for President, and Daniel D. Tompkins, of New York, has a majority of the votes of the whole number of electors for Vice-President of the United
States."
1825.
At the election of John Quincy Adams, in 1825, on motion of M[r. Taylor, it
was
Ordered, That a message be sent to the Senate, that this IHouse is now ready to receive
them in pursuance of the resolution of the two Houses, of yesterday, to the end that the President of the Senate, in the presence of the Senate and the House of Representatives, may open
the certificates of the votes of the electors of the several States in the choice of a President and
Vice-President of the UJnited States, and that tIre samne may be counted; and that the Clerk do
go with said message.
The President of the Senate (Mr. Gallaird) then rose, and stated that the certificates, forwarded by the electors from each State, would be delivered to the tellers.
Mr. Tazewell, of the Senate, and Messrs. John W. Taylor and Philip P. Barbour,
on the part of the House, took their places as tellers at the Clerk's table.  The
President of the Senate then opened two packets, one received by messenger
and the other by mail, containing the certificates of the votes of the State of Newv
Hampshire.  One of these was then read by Mr. Tazewell, while the other was compared with it by Messrs. Taylors and Barbour.  The whole having been read, and
tIe votes of New Hampshire declared, they were set down by the Clerks of the Senate and of the House of Representatives, seated at different tables. Thus the certificates from all the States were gone through with.
The tellers then left the Clerk's table, and presen?ting themselves in front of the
Speaker, Mr. Tazewell delivered their report of the votes given, which was then
handed to the President of the Senate, who again read it to the two Houses.
It is here to be noted that the House carefully avoids saying that the President
was to be invited to do anything more than open the votes.  He was invited to open
them to the end "that they may be counted," not to open and count them.  It is also
a significant assertion of the House's prerogatives that the tellers first presented
themselves in front of the Speaker to deliver their report of the votes given. This
report was then handed, it does not appear by whom, to the President of the
Senate.
1829.
At the first election of Andrew Jackson, in 1829, "the Vice-President then having before him the packages received, one copy by express, and one through the
post-office, from the several States, took up those from the State of Maine, and,
announcing to the Senators and Representativc-s that those packets had been certified, by the delegation from Maine, to contain the votes of that State for President and Vice-President, proceeded to break the seals and then handed over the
packets to the tellers, who opened and read them at length.  The same process was
repeated, until all the packets had been opened and read, when Mr. Tazewell,
retiring to some distance from the chair, read the following report."  When  the
teller had finished reading, the result was &gain read by the Vice-President.
xxiv 
HOW THE COUNTING HAS ACTUALLY BEEN DONE.
1833.
At the second election of Andrew Jackson, in 1833, as in previous cases, the
votes of the electors were opened by the President of'the Senate, and delivered to
the tellers appointed for the purpose, who, having examined and ascertained the
number of votes, presented to the President of the Senate a list thlereof, as follows:
"M essrs. Grufdy, of the Senate, and Dayton and Hubbard, of the House of Representatives, acted as a committee to read and enumerate the votes, and, the whole
having, been gone through, the result was ascertained to be as follows."... The
President of the Senate "then announced the result, as reported by the tellers."
1837.
At the election of Martin Van Buren, in 1837, the President of the Senate rose
and said: "The two Houses being now convened for the purpose of counting the
electoral votes for the several States  for President and Vice - President of  the
United States, the President of the Senrate will, in pursuance of the provisions of
the ConstitutLion, proceed to open the votes and deliver them to the tellers iii order
that tahey mny bz coUnted.  I now present to the tellers the electoral vote of the
State of Maline."
The tellers then counte the votes and anno?zncec them severally in their order,
the same form hiving been observed in every case; the tellers also reading the
qualifications of the electors, and the certificates of their election.
1841.
At the election of WVilliam Henry Harrison in 1841: "A message was received
from the House of Representatives, announcing that the Hlouse was ready to receive
the Senate, and toprocee] to count the votes for President and Vice-President of
the United StLates, in conformity to the Constitution, and in pursuance of the joint
resolution on that subject.".... "After the votes had been counteT, the Senate
returned to the Senate Chamber.".... "The Vice-President of the United States,
in the presence of the two Houses of Congress, proceeded to open the certificates
of the electors of President and Vice-President, beginning with thioset of the State
of Maine, and ending with the State of Michigan; and the tellers, Mr. Preston on
the part of the Senate, and Mr. Cushing and Mr. John W. Jones on the part of the
House, having reac, counted, and registered the same, making duplicate lists thereof, and the lists being prepared, they were delivered to th? Vice-President of
the United States, and are as follows:"... "The President of the Senate then
announced the state of the vote to the two Houses of Congress in joint meeting
assembled, and declared, etc., that William Henry Harrison, of Ohio, having a majority of the whole number of electoral votes, is duly elected President of the United
States," etc.
1845.
At the election of James K. Polk, in 18415, "the President of the Senate rose
and stated the object of this assemblage to be to colint the votes cast by the electors
of the respective States of this election for President and Vice-President of the
United States, and handing to Mr. Walker (one of the tellers) a sealed package, he
said:
"I deliver to the joint tellers the votes of the electors of the State of Maine for
President and Vice-President of the United States, in order that they may be
counted."
"Mr. Walker received the packet, and having broken the seats, the tellers examined the votes, which were announced to be nine in number, all of which were
given for James K. Polk, of Tennessee, for President of the United States. The
same number of votes were given for Vice-President for George M. Dallas, of Pennsylvania."
When the votes had thus all been counted, "Mr. Walker presented the returns
of the tellers to the President of the Senate, who rose and announced the result,
2
xxV
I 
HOW THiE COUNTING HAS ACTUALLY BEEN DONE.
n proceeded to declare that James K. Polk and George M. Dallas were
elected.
1849.
At the election of Zachary Taylor, in 1849, the Vice-President rose and said:
"In obedience to law, the Senate and House of Representatives have assembled on
the present occasion, so that I may fulfill the duty enjoined upon me by the Constitution by openiny in their presence the sealed certificates of the lists of persons
voted for by the electors in the several States as President and Vice-President,
cause the votes to be counted, and have the persons to fill those ogfces aseertained
and declared agreeably to the Constitution."
The Vice-President then opened the certificates of the State of Maine and said:
"I now open and present to the tellers chosen by the twio Ihouses the certificate transmitted by thle electors of the State of Maine that the votes therein recorded may be
counted.5"  Mr. Jefferson Davis proceeded to read the certificate, and the vote reported
was registered by the tellers in duplicate lists.  This course was pursued in reference
to ten States.
The certificates of ten other States were read by Mr. Barrow, and the certificates
of ten other States were read by Mr. AIcClelland: "The tellers haviny reacl, counted,
and registered the votes of the electors of thirty States, and compared their duplicate lists and delivered the same to the Vice-President, the Vice-President then
received and read the report of the tellers," and announced the result of the vote by
reading the report of the tellers.
1853.
At the election of Franklin Pierce, in 1853, the President pro tempore of the
Senate rose and said: "The Senate and the House of Representatives have assembled for the )purpose of counting the votes for President and Vice-President of the
United States. I present to the tellers the certificates of the electoral college of the
State of Maine."
In the same manner he presented the certificates from the remaining States to
Mr, Hunter, Mr. Jones, and Mr. Chandler, by whom respectively they were  read and
duly recorded by tellers.
" The tellers having counted and registereed the votes of the electoral colleges of
the thirty-one States and compared their lists, delivered to the Presideent pro tern. the
result, which was read by him, and he thereupon declared," etc.
1857.
At the election of James Buchanan, in 1857, the President of the Senate said:
"Pursuant to the lawv, and in obedience to the concurrent order of the two Houses,
the President of the Senate will now proceed to open and count the votes which
have been given for the President and Vice-President of the United States," etc.
"The teller appointed on the part of the Senate, and the two tellers appointed on
the part of the House, will please take the seats assigned them in discharge of their
duty."'
The presiding officer proceeded to open and hand to the tellers the votes of the
several States for President and Vice-President.  Pending the count, Senator Cass
suggested that it would be better to read the results of the vote and not thle certificate in full. The President of the Senate then said:
" The presiding officer considers that the duty of counting tlhe vote has cdevolved
on the tellers uender the concurrent-order of the two'ouses; and he considers, further, that the tellers should determine for themselves it  what way the votes are verified to them, and read as much as they think proper to the two Houses assembled."
It appeared from the certificate of the electors from the State of Wisconsint that
the electoral vote of that State had not been cast on the day prescribed by law. Mr.
Jones, of Tennessee (one of the tellers), reported:
"Mr. President: The tellers appointed on the part of the two Houses to count
and report the votes given for President and Vice-President of the United States,
xxvi 
HOW THE COUNTING HAS ACTUALLY BEEN DONE.
report that they have examined all the returns, and find that they are all regular;
and that the votes were cast on the day required by law, except in the case of the
votes cast by the State of Wisconsin; their returns show that they cast their electoral vote on the 4th of December, instead of the first Wednesday of December,
whichl was the 3d, as required by law.  All the returns show that James Buchanan,
of the State of Pennsylvania, received 174 votes for President of the United States;
that John C. Fremont, of the State of California, received, including the votes of
Wisconsin, 114 votes for President of the United States; that Millard Fillmore, of
the State of New York, received 8 votes for President of the United States."
" Tie President of the Senate thereupon proceeded to recapitulate the vote as
announced to the joint convention by 3ir. Jones, of Tennessee; and, in./f>rther execution of the order of the two Houses, declared the result above stated."
Objections to the course adopted by the chairman in deciding to count the vote
of Wisconsin without consulting the two Houses were vehemently urged by Miessrs.
Butler, Crittenden, and Orr; and the Senate withdrew that the two branches of the
Congress mighlt consider the objections.
Before returning, the presiding officer said:
"h'lie Chlair would respectfully state that whatever difficulty may have arisen it
cannot be officially known to either House until it is reported by the tellers to whom
the duty of counting the vote was confided."
In separate session, after hearing the report from the tellers of what had occurred in joint session, the President of the Senate said:
" As a result of the action in the Hall of Representatives in counting the vote,
the duty was devolved upon tihe presiding officer there by the concurreut order of
the two J0u,ses to declare the result of the vote as delivered to him by the tellers.
That declaration did not involve, in the opinion of the Chair, the validity or invalidity of the vote of the State of Wisconsin."
The declaration made bv the Chair in the presence of the two Houses as to the
gentleman who had been elected President was written down, and is in these words:
"That James Buchanan, of the State of Pennsylvania, having the greatest number
of votes for President, and that number being' a majority of the whole number of
electors, has been duly elected."
Whether the vote of the State of'Visconsin be included or not, the declaration
made by the presiding officer that Mlr. Buchanan had a majority of the votes, and
that that majority was a majority of the whole number of electoral votes, was strictly
conformable to theefacts. He subsequently stated his position yet more distinctly
in reply to Senator Toombs, of Georgia:
"The presiding officer did not undertake to decide whether the vote of the State
of Wisconsin was a good vote or a bad vote.  The presiding officer, upon that matter, did no more than recite the fact which was reported to him by the tellers, pursuant to the concurrent order of the two Houses.  The presiding officer did no more
than announce that the vote of WTisconsin had been given to John C. Fre6mont.
TVhether it qwas a good vote or a bacd vote, he <I(l< not?inderta/ce to deci(le. The presiding officer announced further, that James Buchanan had a majority of all tile votes
given, and that such majority was a majority of the whole electoral vote; and he
declared, as his duty required him to do, that James Buchanan was thereby elected
President of the United States. If the result could have been affected by the collateral fact reported by the tellers, tlhat the vote of the State of Wisconsin hatd been
given on a dav different from tliat prescribed by law, the presiding officer would have
considered it his duty to have reported, as the state of the vote, that whether a majority of the whole electoral votes had been given to James Buchanan would depend
on canvassing the votes-a duty that he did not assume. But) inasmuch as it appeared clearly from the state of the vote, that whether the vote of the State of \Visconsin was counted or not, the result of the election remained unaffected, he announced, as he considered his duty required him to announce, that James Buchanan
had a majority of all the votes cast, and that such majority was a majority of the
whole number of the electoral votes. llb disclaimzs haviJzg assumed on himself any
authority to dletermine whether that vote or acny other vote was a good or a bad vote.
xxvii 
.HOW THE COUNTING HAS ACTUALLY BEEN DONE.
"The order that was made by the Senate of the United States prescribing the
mode of counting the votes for President and Vice-President is not a joint resolution. It is a resolution of the Senate, in which the House of Representatives concurred. The entry in the House of Representatives is:
"' I  THE iHOUSE or REPRESENTATIVES, February 5, 1857.
"'resolved, That the House of Representatives concur in the foregoing resolution of the
Senate.'
"Tihat resolution prescribed to the presiding officer simply this duty.  The resolution provided for the appointment of a teller (i the part of the Senate, and two
tellers on the part of the House of Representatives. It required of those tellers
to make a list of the votes as they should be declared; then'that the result shall
be delivered to the President of the Senate pro tempore, who shall announce the state
of the vote, and the persons elected, to the two Houses assembled as aforesaid.'
The Presidegt of the Segate, having received the list from the tellers, annouieced as
the state of the vote, the state of the vote as it appeard on that list.  In the list the
vote of Wisconsin was assigned to John C. Fr6mont, and the Chair so read it. The
presiding officer did no more than give the result as stated by the tellers, and then,
in the further discharge of the duty devolved upon the presiding officer by the concurrent resolution, he announced the person who was elected, thie Constitution providing that "the person having the greatest number of votes for President shall be
the President, if such number be a majority of the whole number of electors appointed.  The presiding officer in his own judgment believed then, as he believes
now, that he declared correctly, as the state of the vote, that James Buchanan had
received the greatest number, and that that number was a majority of the whole number of electors, not unzdertaking to decide, and not having decided, whether the vote
of the Stactte of Wisconsin had been given to John C. Fiv&tozt or not-a powter
that the Chair utterly disclaimrs and never asserted."
1861.
At the election of Abraham Lincoln, in 1861, the President of the Senate rose
and said: " The two Houses being assembled in pursnance of the Constitution, that
the votes may be counted and declared for President and Vice-President of the
United States for the term commencing on the 4th of March, 1861, it becomes my
duty under the Constitution to olen the cetgecates of election in the presence of
the two Houses of Congress.  I now proceed to discharge that duty.
"The Vice-President then proceeded to open and hand to the tellers the votes of
the several States for President and Vice-President of the United States. The votes
having been opened and counted, the tellers, through Mr. Trumbull, reported tilhe
following as the result of the count," etc.
The Vice-President then said: "Abraham Lincoln, of Illinois, having received
a maJority of the whole number of electoral votes, is elected President," etc.
1865.
At the second election of President Lincoln the two Houses of Congress prescribed a mode of procedure at the counting of the votes for President and VicePresident, under which the three subsequent countings have been conducted. This
rule, known as the twenty-second, prescribes that   "The two Houses shall assemble in the Hall of the House of Representatives at
the hour of one o'clock P. M. on the second Wednesday of February next, succeeding the meeting of electors of President and Vice-President of the United States,
and the President of the Senate shall be their presiding officer; one teller shall be
appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed as they are opened by the President of the Senate
the certificates of electoral votes, and said tellers having read the same in the pres
.xxviii 
HOW TIHE COUNTING HAS ACTUALLY BEEN DONE.
ence and hearing of the two Houses then assembled, shall make a list of votes as
they shall appear from the state of the certificates; and the votes having been
counted the result of the same shall be delivered to the President of the Sernate who
shall thereupon announce the state of the vote and the names of the persons, if any,
elected, which announcement shall be deemed a sufficient declaration of the persons
elected President and Vice-President of the United States, and together with a list
of votes be entered on the Journals of the two Houses. If upon the reading of any
such certificate by the tellers any question shall arise in regard to counting the votes
therein certified, the same having been stated by the presiding officer, the Senate
shall thereupon withdraw, and said question shall be submitted to that body for its
decision; and the Speaker of the House of Representatives shall in like manner
submit said question to the House of Representatives for its decision and no question shall be decided affirmatively and no vote objected to shall be counted except
by  the concurrent votes of the two Houses, which being obtained, the two Houses
shall immediately reassemble and the presiding officer shall then announce the decision of the question submitted, and upon any suchl question there shall be no
debate in either House and any other question pertinent to the object for which the
two Houses are assembled may be submitted and determined in like manner."
Only a week prior to the adoption of the 22d rule the two Houses had united in
a joint resolution which declared that certain States-eleven in number-were  not
entitled to representation in the electoral college because they had been and were,
up to the 8th of November, 1864, in a state of armed rebellion against the Government, and that their electoral vote, therefore, should not be counted.
Under the operation of this joint rule and joint resolution, the canvass of votes
was conducted.  The Vice-President oeenzed the certificates, handed them to the
tellers, who reported that the certificates were in due form, and the amount of the
vote of the several States as they were called.
When the tellers had ceased Senator Cowan said:
"Mr. President, I inquire whether there are any further returns to be counted?"
The Vice-President: There are not.
Senator Cowan: And if there arel to be I would inquire why they are not sub mitted to this body in joilnt convention which is alone capable of determining
whether they should be counted or not?
The Vice-President: The Chair has in his possession returns from the States of
Louisiana and Tennessee, but in obedience to the law of the land the Chair holds
it to be his duty not to present them to the convention.
Senator Cowan: I ask whether the joint resolution on that subject has become a
law by having received the approval of the President of the United States?
The Vice-President: The Chair believes that the official communication of its
approval by the President has not been received by either House; the Chair, how ever, has been apprised of the fact that the joint resolution has received the ap
proval of the President.
Senator Cowan: Then, as a motion is not in order in this body, I suggest that the
votes of Louisiana and Tennessee be counted, and that the convention determine the
fact.
Mr. Stevens: I do not think any question has arisen which requires the two
Houses to separate.  That, according to the wording of the joint resolution, can
only be upon the reading of the returns which have been opened by the President
of the convention.
Senator Cowan: I merely wish to say that, believing as I do that it rests with
this joint convention in its joint capacity to determine all questions which ought to
arise here, I have done what I thought to be my duty in bringing to the attention
of the convention the question which I have raised. Having done so, I now beg
leave to withdraw it.
By the President: The Chair did not understand the Senator from Pennsylvania
[,Ir. Cowan] as making any distinct motion, but merely a simple suggestion.
xxix 
HOW TiHE COUNTING HAS ACTUALLY BEEN DONE.
Senator Cowan: I understood that no motion could be entertained in this corn
vention.
The Vice-President decided that motions could be entertained upon any matters
pertinent to the purpose for which the convention had been assembled, but the
decision of those motions must be determined by the tw-o Houses separately after
the Senate shall have withdrawn from the convention.
Mr. Yeaman, of Kentucky, then moved th)at all the returns before the joint convention be opened and presented for its consideration.
The Vice-President decided that that would require the two Houses to separate
for deliberation, whereupon after short debate Mr. Yeaman withdrew his motion.
Senator Trumbull then, on the part of the tellers, "announced the following as the
result of the vote for the President and Vice-President of the United States," etc.
At this election the two Houses prescribed the course of procedure to be pursued: the two Houses decided that eleven electoral votes should not be counted.
In express obedience to these resolutions of the two Houses, the Vice-President
omitted to open and read the certificates of those votes which lie had been forbidden
to open; and Senator Cowan, who complained that the certificates of certain States
had not been read, put his complaint distinctly upon the ground tlhat the two
Houses in joint convention were " alone capable of determnninis. whether they should
be counted or znot," a proposition to which  the President of the ASen(tte not only assented, but which he relied tupon for the justification of his ruling; having, as he
correctly claimed, obeyed the express diectioit8 of the two Houses.
1869.
At President Grant's first election the President of the Senate, on taking the
Speaker's chair, said: "The  ken%ate and Jlouse of Representatives hlaving met, under
the provisions of the Constitution, for the purpose of olpeniny, dctermininq, and
declaring7, the votes for the office of President and Vice-President of the United(
States, for the term of four years, commencing on the 4thl of March next, and it
being my duty, in the presence of both I-Houses thus convened, to open the votes, I
now proceed to discharge that duty."
The President pro tempore then proceeded to open and hantd to the tellers the
votes of the several States for President and Vice-President, commencing with the
State of New Hampshire. One of the members called for a reading in full of the
certificate of the returns of tlhe vote of Louisiana, and objected to the counting of
the vote from that State.  Thereupon  the Senate retired from the Hall.  On  the
question of counting the vote of Louisiana in the House, there were 137 yeas to 63
nays. The messenger from the Senate having announced that that body had also
voted in favor of counting the vote of Louisiana, the Senate, in a body, reentered
the Hall.
The President of the Senate, having resumed the chair, said: "By a concurrent
resolution of the two Houses, the vote of Louisiana is ordered to be counted."'
The tellers went on with their counting till the State of Georgia was reached.
Mr. Butler objected to the vote of the State of Georgia being counted.
Senator Edmunds said that the objection of the gentleman from Massachusetts
was not in order, the two Houses having, by special rule for this case, made a substantial change in the standing joint rule, which joint rule reads as follows:
On the assembling of the two Houses, on the second Wednesday of February, 1869, for the
counting of electoral votes for President and Vice-President, as provided for by law, under
joint rules for counting or omitting to count the electoral votes, if any, which may be presented
as of the State of Georgia, shall not essentially change the result, in that case they shall be resorted  by the President of the Senate in the following manner:
Were the State presented as the State of Georgia to be counted, the result would be, for
, for President of the United States,  votes; if not counted, for, for President of
the United States,    votes, and in either case    is elected President of the United States;
and in the same manner for Vice-President.
Mr. Butler insisted that, under the Constitution, the votes must be counted or
rejected by the convention of the two Houses, and that the prior concurrent action
xxx
II
I
i
i 
HOW THE COUNTING HAS ACTUALLY BEEN DONE.
of the Senate and of the House cann6t bind the convention, and the convention may
act, after they get together, as they choose to do.
The Senate retired, and the House decided against counting the electoral vote of
the State of Georgia-yeas 41, nays 150.
At half-past four the Senate in a body reentered the Hall.
The President: The objections of the gentleman from Massachusetts are overruled by the Senate, and the result of the vote will be stated as it would stand
if the vote of the State of Georgia were counted, and as it would stand if the vote
of that State were not counted, under the concurrent resolution of the two Houses.
Senator Conkling, one of the tellers, then proceeded to declare the result, amid
great noise and disorder.
The President: The tellers report that the whole numb3r of votes cast for President and Vice-President of the United States, including the votes of the State
of Georgia, is 294, of which the majority is 148. Excluding the votes of the State
of Georgia it is 285, of which the majority is 143. The result of the vote as reported
by the tellers for President of the United States, including the State of Georgia, is,
for UJysses S. Gran+t, of Illinois, 214: votes; for Horatio Seymour, of New York, 80
votes. Excludcling, the State of Georgia the result of the vote is, for Ulysses S. Grant,
of Illinois, 214 votes; for Horatio Seymour, of New  York, 71 votes.   [Same for
Vice-President.]  W,herefore, in either case, whether  the votes of the  State of
Georgia be included or excluded, i do declare that Ulysses S. Grant, of the State of
Illinois, etc., etc....
1873.
At the second election of President Grant, in 1873, the Vice-President, on taking
the Speaker's chair, said: "The Sencte and Ihouse of  iepresentatives  having met
under the provisions of thie Constitution for the p?zrpose of openitn, determining, and
declaring y the votes cast for President and Vice-President of the United States for
the term of four years, commencing on the 4th of March next, and it being my duty,
in the presence of both Houses thus convened, to ope)e, the votes, I now proceed to
discharge that duty.
"The Vice-Presidant then proceeded to open  and /a)tc to the te,7ers the votes of
the several States for President and V)ice-President of the United States, commencing with the State of Maine."
When the State of Georgia was reached, objectioni was made bv Mir. Hoar, who
said: "I desire to make the point that the three votes reported by the tellers as
having been cast for Horace Greeley, of New York, cannot be counted, because the
person for whom they purport to have been cast was dead at the time of the assemblingf of the electors in that State."
The point was reserved until the other States had been called and the objections
reduced to writing, and then the Senate withdrew for deliberation.
At 3.35 r. x. the Senate returned to the Hall, and the Vice-President said:
"Upon the first point raised by the Representative  from Miassachusetts [Mr.
Hoatr], the Senate decide as follows:
RPesolved, That the electoral votes of Georgia cast for Horace Greeley be counted.
The House of Representatives decided as follows:
/eso,lveg, That the votes reported by the tellers as having eena cast by tle electors of the
State of Georgia for Horace Greeley, of New York, as President of the United States, ought
not to be counted, the said Horace Greeley having died before said votes were cast.
Upon this question there is a non-concurrence of the two Houses.
On the question submitted by the Senator fron Illinois [M-. Trunambull] in regard
to the votes of the State of Mississippi, the Senate adopted the following resolution:
Resolved, That the electoral vote of the State of Mississippi be counted.
And the House of Representatives adopted the following resolution:
-Resolver, That in the judgment of this House the eight votes reported by the tellers as cast
by the electors in and for the State of Mississippi ought to be counted as reported by them.
xxxi 
HOW THE COUNTING HAS ACTUALLY BEEN DONE.
On thlis question the votes of the two Houses are concurrent.
On thie third point raised by the Representative from New York [Mr. Potter], which
was in regard to the election of one elector from Mississippi, the Senate adopted the
following resolution, which is covered also by its action on the full vote of the State:
P.esoleeel, That the vote cast by James J. Spellman, one of the electors for the State of Mississippi, be counted.
The House of Representatives adopted the following resolution:
P.esolved, That the electors of the State of Mississippi having been appointed in the manner
directed by the Legislature of that State, and in accordance with the provisions of the Constitution of the United States, were legally elected, and that the vote of the State as cast by them
should be counted, and that the certificate of the Governor of that State of the electoral vote
cast, and the certificate of the Secretary of State of that State in regard to the choice of electors, is in compliance with the Constitution and laws of the United States.
Therefore, by the twenty-second joint rule, there being a non-concurrence between the two Houses upon the three votes cast ill the State of Georgia for Horace
Greeley for President of the United States, they cannot be counted. And in accordance with the same joint rule, the votes of the State of Mississippi will be counted."
The tellers resumed the counitirfng of the votes, and announced the same, until the
State of Missouri was reached, when Senator Morton made an objection to two of
the electoral votes from the State of Georgia. The Vice-President held that the
objection came tco late; treat it should have been made when the State of Georgia
was called. He finally, however, decided that it was in time, the credentials of no
other State having yet been read.
After several other objections had been made, the Senate again withdrew for deliberation, and returnedat five minutes past five.
"The  Vice - President,  having resumed  the  chair: Two  objections  having
been made to the counting of the votes of the electors of the State of Texas, the Senate upon the first objection, mrade by the Senator from Illinois [Mr. Trumbull], resolved as follows:
Resoveled, That the electoral vote of the State of Texas be counted, notwithstanding the objection raised by Mr. Trumbull.
And the House of Representatives resolved as follows:
Resolved, That in the judgment of this House the vote of Texas should be counted as reported by the tellers.
On the second objection, by Mr. Dickey, the Senate resolved as follows:
.Resolved, That the objection raised by Mr. Dickey to counting the electoral vote of the
State of Texas be and the same is overruled.
And the House of Representatives resolved as follows:
Pesolvecl, That a quorum is an arbitrary number which each State has the right to establish for itself, and as it does not appear that the choice of electors was in conflict with the law
of Texas as to a quorum for the transaction of business, the vote of the electors for President
and Vice-President be counted.
So (the two Houses having concurred) the electoral vote of Texas, under the
twenty-second joint rule, will be counted."
The Senate retired again for deliberation upon objections to the electoral votes
from Arkansas and Louisiana.
"The Vice-President, having resumed the chair, said: The  objection made by
the Senator from Arkansas to the conting of the electoral vote of that State as declared by the tellers, having been considered by the two  Houses, the Senate has
resolved as follows:
PResolved, That the electoral vote of Arkansas should not be counted.
And the House has resolved as follows:
Reso&ved, That the electoral vote of the State of Arkansas, as reported by the tellers, be
counted.
There being a non-concurrence of the two Houses on this question, the vote of
xxxii 
FEDERAL OFFICERS CHOSEN AS ELECTORS.
Arkansas, in accordance with the provisions of the twenty-second joint rule, will not
be counted. That rule provides that   No question shall be decided affirmatively, and no vote objected to shall be counted,
except by the concurrent votes of the two Houses.
The several objections made on various grounds to the counting of the electoral
votes from Louisiana having been considered by-the two Houses, the Senate has
resolved as follows:
~Piesolvel, That all objections presented having been considered, no electoral vote purporting to be that of the State of Louisiana be counted.
And the House has resolved as follows:
Pesolvel, That, in the judgment of this I-Iouse, none of the returns reported by  the
tellers as electoral votes of the State of Louisiana should be counted.
On this question there is a concurrence of the Houses; and the electoral votes
of Louisitna will not be counrted.  The tellers will now announce the result of the
vote."
"Senator Sherminan (one of the tellers) a,2otounced the result as follows," etc.
The Vice-President then said: "The whole number of electors to vote for President and Vice-President of the United States, as reported by the tellers, is 366, of
which the majority is 181.  Of these votes 349 have been counted for President and
352 for Vice-President of the United States.  The result of the vote for President of
the United States, as reported by the tellers, is: for Ulysses S. Grant, of Illinois,
286 votes, etc.; wherefo:e I do declare that Ulysses S. Grant, of the State of Illinois, havingr received a majority of the whole number of electoral votes, is duly
elected President," etc.
It is to be observed that, at every stage of this election, the final authority to
decide all the questions in debate is conceded to be in the two Houses, or in their
agents, the tellers:
FEDERAL OFFICEES CHOSEN AS ELECTORS.
The only case in which the validity of a certificate given to an elector chosen
while holding an office under the Federal Government, that has arisen or upon
which the two Houses of Congress may be said to have expressed any opinion, occurred at the election of Martin Van Buren in 1837.
It was ascertained that there were three individuals in North Carolina, one in
New Hampshire, and one in Connecticut, elected to the electoral college who bore
the same names with those individuals who were deputy postmasters under the
General Government, and they were presumed to be the same individuals.
MIr. Clay moved that the joint committee appointed to report the mode of examining the votes for President and Vice-President should ascertain whether any
votes were given at that election contrary to the prohibition contained in the Constitution against Federal officers acting as electors.
MIr. Grundy, from the committee, reported to the Senate that "there were four or
five electors chosen in the several States who were officers of the General Government, and that such votes were, in the opinion of the committee, not in conformity
with the provisions of the Constitution; but, at the same time, the few votes thus
given wilt not vary the result of the election, as it was not contemplated by any one
that the appointment of one ineligible elector would vitiate the vote of his State."
IMr. Thomas, from the committee on the part of the House, in reply to the suggestion that the electors had resigned their Federal appointments before they gave
their votes, said " that the committee came unanimously to the conclusion that these
electors were not eligible at the time they were elected, and therefore the whole proceeding was vitiated, ab initio."
In accordance with these views, he reported from the committee that the defect
of such a choice would not be cured by the resignation of the Federal office.
"The committee are of opinion," runs the report, that "the second section of the
second article of the Constitution, which declares that'no Senator, or Riepresenta
x x x 
"TO MAKE A LIST OF THE VOTES."
'I
tive, or person holding an office of trust or profit under the United States, shall be
appointed an elector,' ought to be carried in its whole spirit into rigid execution,
in order to prevent offices of the General Government from bringing their official
power to influence the elections of President and Vice-President of the United
States. This provision of the Constitution, it is believed, excludes and disqualifies
deputy postmasters from the appointment of electors; and the disqualification relates to the time of the appointments; and that a resignation of the office of deputy postmaster, after his appointment as elector, would not entitle him  to vott as
elector under the Constitution."
This was the only instance in which the question of the ineligibility of electors
on this ground has been raised since the Constitution has been in force.
"  TO MA:IE A LIST OF TIlE VOTES."
At every presidential election since the first, down to 18S5 the tellers were
instructed by the two Houses not only to make a list of the votes, but to deliver
"the result" to the President of the Senate, which result he was  required to announe to the two Houses.  The language, which became a formula for more than
seventy years, was first reported by Senator Rufus King, of New York, at the second
election of WasL-ington, in 1793, requires that the tellers "make a list of the votes
as they shall be declared; that the result shall be delivered to the President of the
Senate, who shall announce the state of the vote and the persons elected to the two
Houses assembled aIs aforesaid."
The 22d rule adopted in 186S5, required the appointment of tellers, "to whom
shall be handed, as they are opened by the President of the Senate, all certificates of
electoral votes, and said tellers, having read the same in the presence and hearing of
the two Houses thus assembled, shall 9a/ke a list of the votes as they sftall appear
from the said certificates, and the votes having been counted, a list of the same shall
be delivered to the President of the Senate, who shall thereupon announce the state
of the vote, and the namies of the persons electedl," etc.
At the first election of General Washington, which was conducted very informally
and without a prelimiinary committee of procedure, the Senate notified the House
that they had "appointed one of, their members to sit at the Clerk's table to make a
list of the votes as they shall be cleclared; submitting it to the wisdom of the House
to appoint one or more of their menmbers for the like purpose."
The phrase "to make a list of the votes," employed by the committee to define
the duty of the tellers, doubtiess ought to be considered as the equivalent of " counting the votes." It is obviously borrowed from section 3 of thb first section of the
second article of the Constitution, which reads as follows:
"The electors shall meet in their respective States and may ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves.  And they shall make a list of all the persons voted for, and of the number of
votes for each; which list they shall sign and certify and transmit sealed to the
seat of government," etc.
Here the whole function of ascertaining the validity and counting the votes for
the candidates is devolved upon the electors by the phrase which requires them "to
make a list of the persons voted for."  The employment of that form of speech in
the resolution above cited, therefore, was not an accident, and has its weight in determining the function which the two Houses of Congress assigned to the tellers or
to those who selected them on this occasion.
IN DEPENDENT POWER OF THIE Two HousEs IxN COUNTING ELECTORAL VOTES.
Each of the two Houses has always maintained its separate and independent
right to act affirmatively upon every vote to entitle it to be counted.  Whenever
both Houses failed to' agree upon counting it, the vote has never been counted.
At the second election of Mionroe, in 1821, the joint committee of the two
Houses on the mode of counting the votes, in anticipation of an irreconcilable dif
xxxiv 
INDEPENDENT POWER OF THE TWO HOUSES.
ferene,e of opinion about the admission of Missouri, anid to avoid a collision from
which no good -seemed likely to come, adopted the following resolution:
Resolve, Thlat if any objection be made to the votes of Missouri, and the
counting or omitting to count which shall not essentially change the result of the
election, in that case they shall be reported by the President of the Senate in the
following manner:
VWere the votes of Missouri to be counted, the result would be for A. B. for
President of the United States,  -  votes; if not counted for A. B. as President
of the United States,  -  votes; but in either event, A. B. is elected President of
the United States, and in the same manner for Vice-President.
In reply to the objection that this was practically not counting the electoral
vote, Mr. Clay, who, as chairman of the committee, had reported the resolution,
said that " the difficulty is before us; that we must decide it when the two Houses
meet, or avoid it by some previous arraligement.  The comimittee being morally certain that the question would arise on the votes in joint meeting, thought it best, as
hlie had before stated, to give it the go-by in this way.  Suppose this resolution not
adopted, the President of the Senate will proceed to open and count the votes; and
would the House allow that officer, singly and alone, thus virtually to decide the
question of the legality of the votes?  If not, how then were thiey to proceed?
WVas it to be settled by the decision of the two Houses conjointly, or of the two
Houses separately?  One House would say the votes ought to be counted, the
other that they ought not; and then the votes would be lost altogether.   Would
the gentleman from New York prefer that it be decided in joint meeting?  In that
case he would find himself in a much leaner majority than on the question yesterday.  In fact, Mr. Clty said, there was no  mode pointed out in the Constitution of
settling litigated questions arising in the discharge of this subject; it was a CCIsus
oil"ssus; and he thoughit it would be proper either by some act of derivative legislation, or by an amendment of the Constitution itself, to supply the defect."
In 1857 Mr. Seward corrected Senator Bigler for speaking, of a meeting of the
two Houses under the eighth article of the Constitution as " a convention."  " ThIen
I will say that the two Houses assembled," replied Mr. Bigler.
In the same way the vote of Michigian in 1837, like that of Missouri, was counted
in the alternative.
The vote of Wisconsin was counted in substantially the same wav in 1857.
In 1839 the vote of Georgia was counted in the alternative, and in 1873 three
votes from Georgia and all the votes fromn Arkansas were not counted, in consequence of one of the Houses refusing to count it.
The two Houses have even carried the principle here illustrated so far as not to
debate any question of difference in each other's presence.  So soon as debate
became necessary, the Senate uniformly withdrew to its own Chamber if sittiing in
the House, and the House has withdrawn if sitting in the Senate  Chamber.  In
1817, when Mr. Taylor from New  York arose in the joint session, and addressing
himself to the Speaker of the House, not to " the President of the Senate," was
proceeding to state his reasons for objecting to the votes from Indiana being read
and recorded, the Speaker interrupted him, and said that the two Houses had met
for the purpose-the single specific purpose-of performing the constitutional duty
which they were then discharging, and that while so acting, in joint meeting, they
could consider no proposition nor perform any business not prescribed by the Constitution.
Mr. Varnum, of the Senate (addressing the President of the Senate), expressed
his concurrence in the propriety of what had been stated by thie Speaker, and, for
the purpose of allowing the House of Representatives to deliberate on the question
which had been suggested, he moved that the Senate withdraw to their Chamber.
The motion was seconded by Mr. Dana, of the Senate, and, the question being
put by the President to the members of the Senate, it was unanimously agreed to,
and the Senate withdrew accordingly."-P. 31.
After debate, the House sent a message to inform the Senate of its readiness to
proceed with the counting.
xxxv 
INDEPENDENT POWER OF THE TWO HOUSES.
"The Senate soon after again entered the Representatives' Hall; when
"The Speaker informed them that the House of Representatives had not seen it
necessary to come to any resolution, or to take any order on the subject which had
produced the separation of the two Houses.
"The reading of the votes was then concluded."-P. 33.
In discussing the order of procedure at the election in 1821, Mr. King said: "He
was opposed to the settlement of any litigated question in joint meeting, where the
Senate as a body would be lost, and argued that, whenever any such should arise, it
would be always proper that the two Houses should separate."-P. 34.
At a later stage of the debate, Mr. King, of New York, in accordance with the
opinions he had submitted, wished some amendment introduced to prevent the mode
of proceeding from being quoted as a precedent hereafter-an amendment declaring
that, if any question should arise relative to any votes, in joint meeting, the two
Houses would separate to consider the case and not decide it jointly.
Mr. Barbour said that, on the present occasion, as the election could not be
affected by the votes of any onie State, no difficulty could arise; and that it was his
intention hereafter to bring the subject up, to remedy what he considered a caszts
omnziss8s in the Constitution, either by an act of Congress, if that should appear sufficient, or, if not, by proposing an amendment to the Constitution itself.-P. 35.
Again in 1821, when an objection was made by Mr. Livermore, of New Hampshire, to counting the votes of Missouri, the Journal of the Senate says:
"Whereupon, on motion of Mr. Will'iams, of Tennessee, the Senate returned to its own
Chamber."
Afterward, the Senate received a message from the House, that it was now
ready to receive the Senate for the purpose of continuing the examination of the
votes, and on motion the Senate returned to the joint session.
At the election in 1857 there was a question about receiving the vote of Wisconsin.   To a remark of Mr. Letcher, the Vice-President said, " No debate is
proper in the opinion of the presiding officer."
Mr. Crittenden, of Kentucky: "Do I understand the Chair to decide that Congress in any form has power to decide upon the validity cr invalidity of a vote?'"
The Presiding Officer: "The presiding officer has made no such decision, he
will inform the Senator from Kentucky. The Chair considers that under the law
and the concurrent order of the two Houses, nothing can be done here but to count
the votes by tellers, and to declare the vote thus counted to the Senate and House
of Representatives sitting in this Chamber. What further action may be taken, if
any further action should be taken, will devolve upon the properly constituted authorities of the country, the Sexeate, or the _ffoztse of Representatives, as the case may
be. The Chair was misunderstood by the Senator from Kentucky."
There was such a diversity of opinion among the members about the ruling of
the President of the Senate, that he invited a motion to withdraw. Senator Trumbull said: "A difficulty has arisen here; let us retire and consider it in the only constitutional way we can, and that is, in separate bodies." In this case, the motion to
withdraw was only put to and voted on by the members of the Senate.  They retired
immediately upon its passage, and did not return. Neither the Senate nor the
House could have acted much more independently of one another, if each had been
entirely alone.  In the debate which ensued in the House, Humphrey Marshall insisted that "the Senate and House must act upon the question at issue as separate bodies, vote as distinct organizations, and when the vote is to be taken, the
Senate very properly retires to consult separately how the vote of the Senate shall
be given upon the question, and its vote will then be announced by its own appointed organ. If you adopt any other construction of the Constitution, on the one hand,
you supersede the House, and place all power over the count in the hands of the
President of the Senate; on the other hand, you destroy the just weight of the Senate, and may establish a precedent, by virtue of which at some future day a large
body of Representatives may set aside an election made by the people through the
electoral college, and assume the power of bringing the election before the House
xxxvi 
EFFECT OF DISAGREEMENT OF THE TWO HOUSES.
of Representatives. I am, therefore, clear, that the Houses meet as Houses, and no
vote per capitac can be taken. Still, I am sure that the duty of determining whether
a vote shall be counted, belongs to the Senate and House, and not to the President
of the Senate, and it is a duty I insist we shall perform before the vote shall be
counted."
At the second election of Lincoln, in 1865, the principle of the complete independence of each of the two Houses in canvassing the electoral votes, and the necessity of the affirmative vote of each to entitle a vote to be counted, was incorporated into a joint rule of the two Houses, where, by the approval of the Executive,
it acquired all the moral authority of a law.  This clause of the'rule which covers
the provision runs as follows:
"If upon the reading of any such certificate by the tellers any question shall
arise in regard to countinr  the votes therein certified, the same having been stated
by the presiding officer, the S-enate shall thereupon withdraw; and said question
shall be submitted to that body for its decision, and the Speaker of the House of
Representatives shall in like manner submit said question to the House of Representatives for its decision, and no question shall be decided affirmatively, and no
vote objected to shall be counted, except by the concurrent votes of the two Houses,
which being obtained, the two Houses shall immediately reassemble, and the presiding officers shall then announce the decision of the question submitted; and upon
any such question there shall be no debate in either House, and any other question
pertinent to the object for which the two Houses are assembled may be submitted
and determined in like manner."
Under the operation of this rule at the last three presidential elections (in 1865,
1869, and 1873), the two Houses have separated repeatedly for the purpose of
debate.
So settled and invariable has been the practice of the two Houses to act separately on the question of counting a vote, and so general has been their practice to
withdraw to their respective Chambers for debate and decision, that the principle
has been incorporated into every plan for regulating the mode of the counting by
standings join-t rules or by statute.
In the joint rule of 1865, which governed the counting in 1865, 1869, and 1873,
the separate action of the two Houses is expressly provided.
The law proposed in 1800 contained a similar provision.  So did the law which
passed the Senate in 1875.  So did the law which passed the Senate in 1876.  The
latter bill contained this clause:
"If, upon the reading of any such certificate by the tellers, any question shall
arise in regard to counting the votes therein certified, the Senate shall thereupon
withdraw, and said question shall be submitted to the body for its decision; and the
Speaker of the House of Representatives shall in like manner submit said question
to the House of Representatives for its decision."
EFFECT OF DISAGREEMEINT OF TiHE Two HOUSES.
The counting of a vote is an affirmative act. It involves the examination of
the certificate, the reading it in the presence and hearing of the two Houses, the
entering of the votes upon the list, and the enumeration of the vote in the footing
which states the result. All these steps are affirmative acts.
In all cases where two persons or two bodies are required to concur in the doing
of an act, and each has a discretion to do it or not, if they cannot agree, the act
cannot be done. It is the familiar case of two judges who do not agree, and the
result is that no judgment can be rendered.
The construction which has been uniformly adopted and acted on in respect to
the counting of an electoral vote by the two Houses is that, if they do not concur
affirmatively in favor of counting the vote, it cannot be counted.
Mr. Clay said, in 1821: "One House would say the votes ought to be counted,
and the other that they ought not; and then the votes would be lost altogether."
The joint rule adopted in 1865, which governed three presidential elections, in
xxxvii 
JOINT BALLOT.
codifying the existing practice of the two Houses, expressly declared that "no vote
objected to shall be counted except by the concurrent vote of both Houses."
The law proposed in 1800 for regulating the counting of electoral votes recognized the same principle as in operation unless it was controlled and changed by
statute. The bill introduced by Senator Morton, which passed the Senate in 1875
and in 18 476, proposed to. change this rule in cases where there should be but one
return from a State, and to require the two Houses to concur in counting the vote,
unless both should agree in rejecting it; but that effect was to be produced by statute.
JOINT BALLOT.
There is a respectable opinion manifested by individuals in'many of the debates
that the two Houses may be deemed to be one body for the purpose of counting the
electoral votes, and may act together, the members voting per capita.  But there
has been no practice sanctioning such a conclusion; and no law has nor has any
provision of the Constitution provided for the merger of the two bodies at any time
or for any purpose. Doubtless the idea arises from the habit of the State Legislatures, awhen the two Houses do not agree in an election, to attain a result by their
meeting in joint ballot. Congress has by law provided that such an arbitrament
shall be resorted to in order to solve a disagreement of the two IHouses of the State
Legislatures in the election of United States Senators.
This expedient has its suggestion in the absolute necessity of some remedy, and
in the fact that this accords with the theory and spirit of our institutions, has been
in most cases adopted by the State governments, and practised to the satisfaction of everybody, andis the safest possible solution of a great practical difficulty.
In legislation the independent action of the two Houses and theii veto on each
other work little practical inconvenience. But in the choice of a public officer,
without whom the Government cannot go on, there must be found some mode of
effecting an election. In the discussion of the bill proposed in 1800 to regulate the
counting of electoral votes, and to determine the results of the presidential election,
an amendment was offered providing, in case of a disagreement between the two
Houses in respect to the counting of a vote, that the question should be decided by
a vote of the two Ilousesper capita.
On the 30th of April, 1800, the records state, "A motion of Mr. Gallatin was
under consideration to insert, instead of the principle that, in case of doubt, the
Houses should divide to their respective Chambers to consider the qualification or
disqualification of a vote or votes, from their joint meeting, if such questions should
arise at counting of the votes, the following words:
"And the question of the exception shall immediately, and without debate, be
taken by yeas and nays, and decided by a majority of the members of both Houses
then present."
The amendment was lost, 44 to 4().
On the 1st or May the same amendment was again offered, and lost 43 to 46.
Among those who voted for it were Albert Gallatin, Nathaniel Macon, John Nicholas,
John Randolph, John Smilie, Joseph B. Varnum, and other glhts of the party which
supported Mr. Jefferson.
CASES OF VOTES COUNTED AND VOTES REFUSED TO BE COU-NTED BY TIlE Two
HouSES.
The tellers being ministerial agents of the power that appoints, thley have no
authority to decide finally upon the admission or rejection of the electoral vote, nor
is there an instance of their claiming such a right; but they are the agents of the
two Houses of Congress, of which they are also members.   The two Houses have
always claimed, and repeatedly exercised, the right to pass upon and reject electoral
votes, and alwavs without reference to the opinion or wishes of the President of the
Senate.
At the first election of Monroe, in 1817, objection was made in the joint session
xxxviii 
CASES OF VOTES COUNTED AND VOTES REFUSED TO BE COUNTED. xxxix
of the two Houses, to counting the vote of Indiana, on the ground that it was not a
State in the Union at the time the electors were chosen. Her vote, however, was
counted, Representatives for that State having already been admitted to seats in the
Upper House.
At Monroe's second election,-in 1821, objection was made, in like manner, to
counting the votes of the State of Missouri, and, for the same reason, her votes were
finally ordered to be counted in the alternative, as thus-     231 votes for President
MIonroe, if the votes of Missouri are counted, and 228, if the votes of Missouri are
not counted, Mr. Monroe in either case having a majority.  Non  co)nstat, that had
her vote promised to affect the result, it would not have been rejected. In the
famous debate which tooqk place on that occasion, "Mr. Clay said the Constitution
required of the t,wo ffouses to assemble and perform tlke higrllest duty that could devolve on a public body-to ascertai), wJho had been elected by the people to adminis.
ter their national concerns. In a case of votes coming forward which could not be
counted, the Constitution was silent; but, fortunately, the end in that case carried
with it the means.  The two J~ouses were calle( on to eizumerate the votes for Presi(dent and V'ice-Preside)it.  Of course they were called on to decic(e whcat  are votes.
It being obvious that a difficulty would arise in the joint meeting, concerning the
votes of l Missouri, some gentlemen thinking they ought to be counted, and others
dissenting from that opinion, the committee thought it best to prevent all difficulty
by waiving the question in the manner proposed, knowing that it could not affect
the result of the election.  As to the condition of Missouri, he himself thought her
a State, with a perfect moral right to be admitted into the Union, but kept out for
the want of a ceremonious act which was deemed by others necessary to entitle her
to admission.  Thlough, in his opinion, a State in fact, yet not being so in form, her
votes could not be counted according to form.  He was aware that the question of
her admission might come up and be decided in this very shape; for if Cone/ress
allowed her to vote for President ased  Vice-President, and counted her votes, it
would be a full admission of the State into the Union; but the committee thought,
as there were other and more usual modes of admitting the State into the Union, it
was better not to bring up the question in the discharge of this solemn and indispensable duty, but to allow that ceremony to proceed, if possible, without difficulty
or embarrassment."
At the election of Van Buren, in 1837, a like objection was made to receiving the
electoral vote of Michigan.  It also was finally counted, like that of Missouri, in the
alternative, as it could have no practical effect upon the result.
At the election of Buchanan, in 1857, the vote of Wisconsin was objected to because, in consequence of a violent snow-storm, the election had been  held the day
after that prescribed by law.  Her vote, however, was declared by the Vice-President as it was reported to him by the letters, in obedience to the specific instruction
of the two Houses, and without any pretension himself to pass upon the validity or
invalidity of the electoral certificates.  The two Houses in this case separated without formulating their decision as to the validity of such election.
At the beginning of the second session of the 38th Congress, and immediately
prior to the second election of President Lincoln, in 1865, a joint resolution was
passed, declaring that the inhabitants of the States of Virginia, iNTorth Carolina,
South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas,
and Tennessee, had rebelled against the Government of the United States; had continued in a state of armed rebellion for more than three years, and were in a state
of armed rebellion in November, 1864; and provided that these States should not
be' allowed representation in the electoral college for choice of President and VicePresident of the United States for the term of office commencing' on the 4th of
~:1arch, 1865, and that no electoral votes from either of those States should be received. or counted.
In the debate to which this joint resolution gave rise, the power of the two
Houses to exclude the electoral vote of the State, upon sufficient cause shown, was
not questioned, the only doubt raised upon the subject being whether the House
alone had the power to exclude the vote of a Statue. 
xl     CASES OF VOTES COUNTED AND VOTES REFUSED TO BE COUNTED.
This joint resolution received the formal approval of President Lincoln, coinnmunicated in the following message to Congress, on the 10th day of February, 1865,
only three days before the election:
"To THIE HONORABLE SENATEI AND IIousE OF lRE, EEsENTATIVES:
"The joint resolution entitled' Joint resolution declaring certain States not entitled to representation in the electoral college' has been signed by the Executive, in deference to the
view of Congress implied in its passage and presentation to him.
"In his own view, however, the two Itouses of Congress, convened under the 12th article
of the Constitution, have cofllete power to excliedefronm counting all electoral votes deemed by
them to be illegal; and it is not competent for the Executive to defeat or obstruct that power
by a veto, as would be the case if his action were at all essential in the matter. lie disclaims
all right of the Executive to interfere, in any way, in the matter of canvassing or counting the
electoral votes; and he also disclaims that by signibg said resolution he has expressed any
opinion on the recitals of the preamble, or any judgment of his own upon the subject of the
resolution.
"ABRAHAAI LINCOLN.
'; EXECUTIVE MANSION, February 8, 1865."
This is the first instance, it deserves to be remarked, in which the doctrine that
the two Houses of Congress, "convened under the 12th article of the Constitution,"
"have complete power to exclude from counting all electoral votes deemed by them
to be illegal," received the full sanction of a law, by the concurring approval of both
Houses of Congress and the Executive. It is impossible that the traditional interpretation of the 12th article of the Constitution should receive more authoritative
confirmnation.
At the first election of General Grant, in 1869, the votes of the electors of Louisiana were objected to on the ground that no valid election had been held there;
her vote, however, was counted.
The electors from Georgia were objected to on four distinct grounds: first, because the electors were not chosen on the day required by law, nor any excuse
given for the neglect; second, because at the date of the election the State of
Georgia had not been admitted to representation as a State in Congress since the
rebellion; third, because she had not complied with the reconstruction act; fourth,
because "the election was not a free, just, equal, and fair election, but that the
people were deprived of their just right therein by force and fraud."  Her vote was
counted in the alternative.
At the second election of General Grant, in 1873, three voles cast in Georgia
for Horace Greeley were objected to, because Mr. Greeley was dead at the time
such votes were cast. The two Hlouses not agreeing about the validity of these
votes, they were not counted. It was also objected to all the electors from the
State of Georgia, that the certificate did not show that the electors voted by ballot. The certificate of the elector Spellman, from the State of Mississippi, was objected to, because it was not authenticated by the signature of the Governor.  This
objection was overruled by the joint vote of the two Houses. It was objected to
the electors from Texas that they had no certificate authenticated by the Executive, and that four electors, less than half a majority, had presumed to fill the places
of the four absentees who were elected. This objection also was overruled by the
two Houses.  The electors from Arkansas were objected to: first, because the official returns showed that the electors claiming to represent the State had not been
chosen; and, seconTc, because thle returns were not certified under the great seal of
the State according to law. The two Houses not concurring in the validity of these
certificates, the vote of Arkansas was not counted.
Here we have the electoral votes of twventy-one States, to which objections have
been raised at different times by the two Houses in joint session.  In four of these
cases the objections were overruled; in three the votes were counted in the alternative; in thirteen the votes were excluded; and in one, that of Wisconsin, the objections were not passed upon.  On the other hand, there is no instance of an objection being raised as to the validity of any electoral vote by the President of the
Senate, nor of his expressing an official opinion as to the force or propriety of any
objection raised in either House of Congress. 
SUMMARY.
SUvMMArY.
First. The exclusive jurisdiction of the two Houses to count the electoral votes
by their own servants and under such instruction as they may deem proper to give
on occasions arising during the counting, or by previous concurrent orders, or by
standing joint rules, or by the formal enactments of law, has been asserted from
the beginning of the Government; that exclusive jurisdiction has been exercised
at every presidential election from 1793, when a regular procedure was first established, until and including the last counIt of electoral votes in 1873. It was exercised by concurrent orders of the two Houses from 1793 to 1865, and by a standing
joint rule in 1865, 1869, and 1873. Every counting at these twenty-one successive
presidential elections has been conducted under and governed by the regulations
thus imposed. Those regulations have prescribed every step in the procedure; have
defined and regulated the powers of every person who has participated in any ministerial service in the transaction. They have controlled every act of the President
of the Senate in respect to the counting, except the single act of opening the packages of the electoral votes,transmitted to him by the colleges, which is a special
(lutv imposed on him by the Constitution.
During all this long period, the exclusive jurisdiction of the two Houses, exercised upon numerous successive occasions has never, in a single instance, been the
subject of denial, dispute, or question.
Seconcl. The President of the Senate, although he has regularly, in person or by
some substitute appointed by the Senate, performed the constitutional duty of opening the electoral votes, has never, on any occasion or in any single instance, attempted
to go a step beyond that narrow and limited function. In no instance has he ever
attempted to determine what votes he should open, but has opened all, and submitted
them to the action of the two Houses, unless required to omit particular votes by
the concurrent orders of the two Houses, or by enactments, in the form of laws, in
which the two Houses had concurred. Where duplicate or triplicate returns have
been received (when returns from two sets of persons claiming to be electors), he
has invariably opened and submitted all of them.  As a mnere temporary custodian,
in the absence of the rightful owner, he has never assumed to withhold anything, or
delay anything. He has obeyed the orders of the two Houses as to every act which
he has done during the counting, and as to the announcement of. the footing of the
tellers, when they had enumerated the votes. He has performed such duties as have
been imposed upon him by the concurrent orders of the two Houses, and none other;
and he has performed those duties in the manner, and under the instructions given
by the order of the two Houses.   In no single instance has he ever pretended to
have any right to decide any question as to the authenticity or validity of a, vote, or
to interfere with the tellers in the counting, or to determine what certificates or evidence of electoral votes should be submitted to the two Houses.   He has acknowledged, without reservation, the most absolute authority of the two Houses over the
whole subject, and recognized the fact, that any function beyond the opening of the
packages of certificates, which hlie might exercise, was derived from the two Houses,
and performed as their servant.  In the whole hisrory of the Government, there is
not a single exception to this established and continuous usage.
Tltir. The two Houses have not only always exercised the power to count the
electoral  vote in such manner and by such agents as they might choose to do it
exclusively without interference from anybody else, but they have exercised the
right        to fix a nd establish the methods of procedure by standing rules.  They have
also    asserted the right to prescribe a permanent method of counting the electoral
votes.              Whatever powers exist in the Federal Government for the purpose of ascertaining and determining the result of a presidential election by a canvass of the electoral votes, the two Houses of Congress have always claimed to possess, and to possess exclusively, subject-to such regulations by law as they might themselves concur
in enacting. And they have always asserted the right of the law-making power of
Government to legislate on this subject, under the general constitutional grant of
authority "to make all laws which shall be necessary or proper for carrying into exe                  3
xii 
SUMMAPRY.
cution" the" powers vested in the Government of the United States by any department or office there."
It has been several times proposed to regulate by act of Congress the mode of
counting the electoral votes, of verifying the authenticity and validity of the votes,
and determining the result of the presidential election, so far as those powers are to
be exercised by the two Houses.  A bill for this purpose was introduced and discussed in Congress early in the year 1800, when many of the persons who had participated in the forming of the Constitution in the Convention of 1787 or in its ratification by the State Conventions, were in Congress. Although differences of opinion
as to what would be wise and safe regulations for the counting, existed to such
extent as to defeat any agreement upon the details of the measure, the debate failed
to develop any question or doubt as to the exclusive authority of the two Houses
to count the votes, and to prescribe by concurrent action the mode of their counting.
From the beginning to the end of the debate that authority was taken for granted.
Among the prominent figures in that Congress were John Langdon, who, at the
organization of the Government, in 1789, had acted as the special President of the
Senate, on the anomalous first counting, before any regular procedure had been
devised; John Marshall, afterward Chief-Justice, Albert Gallatin, who became famous
as a publicist, as a statesman, and as a financier; and other men who had personal
knowledge and fresh traditions of the meaning of the framers of the Constitution,
and of the sense by which its provisions were interpreted, and had been adopted by
the States and the people. The assumption unanimously by Congress, eleven years
after the Constitution was set in motion, that the two Houses possess full and exclusive powers in respect to counting the electoral votes carries with it, therefore, the
weilght of the most distinguished contemporaneous exposition.  That debate nowhere
exhibits any question of the authority of the two Houses to count, and nowhere
recognizes any power whatever on the part of the President of the Senate to count.
In 1875 and again in 1876 a bill regulating the mode of counting was introduced
into the Senate and received a full and elaborate discussion in that body, and the affirmrative vote of a majority of the Senators. On many occasions when the electoral
votes were to be counted, or during the process, or in some debate to which it gavv
rise, the powers of the two Houss have been more or less discussed.  While individual eccentricities of opinion or idiosyncrasies have exhibited themselves in the
advocacy of the pretension on the part of the President of the Senate to go theoretically beyond the limits of his constitutional duty in opening the packages of
electoral certificates, such instances have never exceeded one in a hundred of the
members of the two Houses; never have made any practical progress or exerted
any practical influence on the opinion or conduct of the two Houses; have never
interrupted or modified the uniform current of the precedents, or in a single instance
inspired any incumbent of the chair of the Senate to the slightest spirit of enterprise toward the enlargement of his constitutional prerogative. On the other hand,
the exclusive authority of the two Houses of Congress over the counting has been
universally and uniformly assumed and taken for granted. And so often as the
members have been tempted into any incidental mention of their opinions, the exFressions asserting such exclusive power on the part of the two Houses have been
overwhelming in numbers and in weight of authority
Some specimens of such expressions will be hereafter cited.
In the mean time it is proper to observe that without finding it necessary or convenient on this occasion to discuss the exact limits of the powers of the two Houses
in judging of the authenticity and validity of electoral votes, or of the extent to
which their investigations may be carried for that purpose, it is proper to observe
thatthe powers of the two Houses in this respect are not arbitrary powers to be
exercised at their own mere will, but are trust-powers to be exercised under all the
solemn obligations that belong to judicial discretion in the most august of human
tribunals.
xlii 
OPINIONS OF MEMBERS OF CONGRESS.
arising in the course of counting the votes;  the
duty is imposed upon the two Houses of Congress.  They alone can perform it, and they
have not th e po w    er  to t ransfer  its p erformance to anybody else. Whether this power is
there for weal or for woe, there it is; and until the Constitution is altered there it miust remain.-Jfarch 13, 1876.
Senator John Sherman, of Ohio.  The Constitution of the United States declares that the
two Houses may meet together in joint convention and count the votes.
Gir. Edmunds. It does not say that.
Mr. Sherman.  It does practically. —Feb. 25,
1875.
Senator Morton, of  Iazdniaa.  We could,
without doing any great violence to the Consti tution, ad op t eithfer of these c onstructions.
Each is possible under  the language. The Constitution says:
The President of the Senate shall, in tile presence
of the Senate and House of Representatives, open all
the certificates, and the votes shall then be counted.
It does not say who shall count them; it
leaves it open to inference that they shall be
counted by the two Houses on the one hand
or by the President of the Senate on the other.
I will assume, for the sake of the argument,
that yotu can give to it either construction. I
will assume that it is open to both views.
Then the question comes, which is the more
reasonable, which is the better, which is the
safer of the two: to adopt that construction
which gives this great power to one man, the
President of the Senate, wiho may be counting
the votes for himself, as it has turned out six
times in our history; or would it be safer to
leave it to the determination of the two Houses
of Congress, representing the States and the
people? If we are open to adopt either one
of these constructions, I say the latter is the
safer, it is the more reasonable, it is in conformity with the spirit of our Govermnent and
of popular institutions. I th,es adopgt tbe latter
constructiom. —.arch 16, 1876.
Senzator -Dawes, of Massachusetts.-  I think
that the Constitution means that they shall be
counted by the two  Houses. —arch 20, 1876.
Senator Bouttwell, of Jl~.:ssac,,7t,setts. Alnost
always, I think, when the subject has been
discussed, the question has been  presented
whether Congress is to count the votes; and
by Congress I mean the two IHouses met in
convention, according to the terms of the Con stitution.  Our best answer to that is the fact
that, from the first convention that assembled
until the last, the two Itouses in convention alwqays did count the votes.  A  teller was appointed by the Senate, two tellers  b          y' the
House.  The votes, or certificates, or returns,
whatever they are called, were handed by the
Vice-President, after he had opened them, to
the tellers.  The tellers were the or,gan s,                      the
instruments, the hands of the respective Houses.
The votes were counted by the tellers, and, being counted by the tellers, they were counted
by the two Houses; and, therefore, there nerver
has been any difference of practice, and no different practice could have arisen under the
Constitution.  The two Ilouses in convention
have from the first until now counted the votes.
I agree entirely with the suggestion made by
the honorable chairman of the committee in
regard to the power to count the votes and thes
duty to count the votes.  The power was conferred upon Congress and the duty was enjoined upon Congress.   The power and the
duty are in Congress.   Congress must exercise
the power and perform the duty, and it is not
possible under the Constitution to transfer it.
If that be so, then the suggestion of the Senators from Virginia and Texas is answered,
whether some device may not be i]esorted to
by which there can be an arbitration and a
judgment when a case shall arise such as is
provided for in the second section of the bill.
There can be, under the Constitution, no tribunal to decide that or any other question
T]IB TWO HOUSES COUNT.
TIIE TWO HO'U.SES COUNT -UNDEP, THE CO,,-,TITU                    TION.
Se?zator Thztrn?,an, qf Ohio. Who is there
who can say that the Constitution declares in
express terms who shall count the votes? 
THiE TWO HOUSES COUNT UNDER THE CONSTITUTION.
When  it simply says, " and the votes shall
then be counted," and says nothing more, who
is there who can say that the Constitution in
express terms declares that the President of
the Senate shall count the votes, or that it declares by whom the votes shall be counted?
Manifestly there is no declaration on that subject.  Manifestly it is not declared by whom
the votes shall be counted.  What is the consequence?  These votes are to be counted, for
they concern the election of the Chief MAlagisti-ate and the Vice-President of the Republic.
The power to count them is a power conferred
upon the Government, or some department or
officer of the Republic.  If, then, there is no
declaration by whom they shall be counted, I
ask any lawyer in the Senate is there any alternative but to say that the law-making power
shall declare by whom they shall be counted?
I ask any lawyer to say if it does not come
within the express words of the last clause of
section 8 of article 1, defining the powers of
the Congress To make all laws which shall be necessary and
proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the Government of the United States, or in
any department or officer thereof.
And, without that clause in the Constitution, does not every one know that of necessity where a power is conferred upon a government or any department of a government bv
a written constitution and the mode of exercising that power is not prescribed, that mode
is to be prescribed by the law-making power?
Without that express provision in the Constitution, how could it be doubted that the lawmaking power is to supply the mode of ascertaining the popular will?-A arch 21, 1876.
thenator Lyb an Trunte bll, of Illinois. The
language of the Constitution, as the Senator
from Ohio remarked, is perhaps not very specific. It is that the votes are to be opened by
the Presiding Officer of  the Senate, and the y
shall then   be counted.  By  wh om?  The Constitution   does not say; but we have a constriutetion of the Constitution frnom  the foundation
of the  Governmep lt. The very first time  that
a President was elected, when  many of the
men who had framed the Constitution  o   f th e
Unit ed States held seats in Congress, they   appointed tellers; they 2itrtually took charge of
th is  coumnting; and  fro m that  day ti ll now the
vote has been counted under the dieection  of the
two Ilouses of Congress.
[r. Atorton. From what time?
]ir. Trumbull.  From  the  beginning of  the
Government   the two bran ches of Congress
have  pas sed resolutions in regard to this counting of the  vote.- Jan. 7, 1873.
Senator of  T. Fvoelinghsysen, of t STeq Jersey.
I would re c all the language of the Constitution to my friend:
The  President of the Senate  shll. in the presence of the Senate and Ieouse of Representati ves,
open all the certif  ica tes.
Mr. Conkling. " And the vot es    shall then be
counted."
.Ir. Frelinghuysen. "And the votes shall
then be counted." I understand that that counting is really done under the supervision and
in fact by the two ilouses. I think the bill is a
good deal better leaving it as the Constitution
leaves it, without saying II being counted by the
tellers."... But they are not to be counted
by the tellers under anvbody's supervision;
they are to be counted by the two Houses of
Congress, and this bill has gone as far as it can
go in defining the duties of these tellers when
it has provided that they shall make a list of
the votes. That is the ministerial duty they
perform, and the counting must be left to the
two  Houses.... I think the twelftlh article
of the amendment to the Constitution settles
who  has jurisdiction over this question.  It
does not do so in express terms, but it does so
by necessary  im21ication.  It says that  the
President of the Senate is to open the certificates and the votes, which are then to be
counted in the presence of the two Houses.
That by necessary implication to my mind
gives the jurisdiction over this sutbject to the two
Iloitses; and if the Constitution does give it, to
Senator Logan, of Illinois.  " The President
of the Senate shall, in the presence of the Senate and House of Representatives, open all
the certificates, and the votes shall then be
counted."
What is the obvioz(s nieaning of that particular part of the Constitution?  It is that the
two Houses of Congress are  to count the vo        tes
for President and Vice-President the same as
the two Houses of Congress pass laws. The
business of making laws is in the first instance
referred to committees for the purpose of taking it out of the hands of the members of Congress, that the bills may be prepared and put
in a condition to be presented for their action.
So in this case they may designate persons of
their own number or they may possibly designate persons not of their numler-to do what?
Perform no duty at all, except to take the burden off the Ieouse and Senate of making an
enumeration of the votes cast for President
and Vice-President.  tlence they may appoint
tellers. These tellers are mnerely to perform a
ministerial office, to make an enumeration of
the votes as they are handed to them by the
Vice-President and to return to the Vice-Presi
I
xliv
dent a statement of the count, that be may announce the fact. What fact? As to who has
received the greatest number of votes cast for
either or both of these offices.... 11 The
votes having been counted I  Alr. Merrimon. By whom?
Mr. Logan. By whom?  Bv the t?co
Hoitse.g of Congress as the Constit?ttio?-t conteiiiplates, through those whom they have desigiiated for that purpose. —Feb. 25, 1875. 
them, we cannot by law give it to the judiciary
of the country.... The votes having been
counted, of counsel by the two.Houses. —~eb.
25, 1875.
THE TWO HOUSES COUNT UNDER THE CONSTITUTION.
Congress may do whatever is committed to it
as a Congress.  Either House or both Houses
may do whatever is committed to it or to
them; but Congress cannot delegate to any body else legislative power or any other power
which is reposed in Congress, and located
there and nowhere else.  So  we may make a
rule which shall conmmit to the presiding offi cers of the two Houses  the duty of scribes
and chirographers, to set down and count up
and state these figures; but when you come to
the last act, to the act acconmplished of making
the count in all senses which the Constitution
imports, that is the act of the two Houses.
"The vote shall then  be counted," the two
Houses being th ere.-Feb. 25, 1875.
Senator A.  P.  Clbristianecy, of Michigan.
Now,  as this counti ng is re quired to  be i n th e
presence of the twno Houses, and no provision
is  made by  whom  the actual coun t  s h all be
made, it seems to me  that the countin g may be
considered as   e  e c,  in legal effect, the work   of the two
H ous es,   fo r     which each iS responsible.  Not
that e ach me mber  of  each House shall actually
count all the votes    and make  the necessary
lists, which would be practically very difficult,
but that   each House should appoint some member or members of its own  to count them; in
oth er words, to  a ct as tellers,  and t o perform
th eir work in  the pres ence of t he t wo In ouses.
This is the m ode provided in the trwenty-second 
joint rule,  now repeal ed,  and   in  the  first sec- 
tion of the  bill now before  us, and th is  mod e
is, I think, thea    reset of the es  o  t  interpre tation
of the Constitution above indicated; an  d th e
matte rs  of mere detail for     the pu rpo se of  accomplisling this mwode of counting a n d of   deciding, as provided in the   first, third, and fourth
sections of the bill, would, I am inclined to
think, com e  fairly within  the const i t utional
power of Congress. —Starch 16, 1876.
Senator W,n. W. ELtton, of Conneeticut. By
whom? I insist, and I assert without fear of
successful contradiction, that the votes are
counted by the Senate and the House of Representatives, and not by the Vice-President or the
Presiding Officer of the Senate.  In my  judgment, the Vice-President is-the organ of the two
Houses, and nothing else.... The duty of the
Vice-President isto open the certificates.  They
are sent to him; he is their custodian. On a
certain day he meets the two Houses together in
joint convention. He, their presiding officer,
opens the certificates; and the Senate and the
HIouse of Representatives, through their tellers,
count; not he. Sir, I have no doubt on this
subject. That is the entire duty of the presiding offcer of the Senate....
Senator S. B~.;]~axey, of Texas. Thle duty
of counting the votes devolves in the first instance, in my judgment, on the Senate and
House of Representatives. Why the necessity
of requiring the Senate to appear organizedl
Senator John A.  Logan, of llinois.  The
nere addition of          the numb  er        of vot es, done
merely  as a c lerical dut y by the  se persons,
cer     t    ain          ly is     s    ubject        to the supervision of  the
two Houses of Congress, the same as, for instance, in many States where the State constit uti        on refers the counting  of the votes for Governor to the House   of Repres entat ives  and              the
Senate of the   State.   They are to count the
vote;    that   is   the la nguag e   of s ever         al of  the
State constitutions; but the vote is never actually counted by the Le,islatture; it is counted
in     their  pre senc   he by the secretary      or clerks, as
onar   be.       -Btit the meacning  of it evidently is
hl, they co unt   the vote.  The           c lerks             merely
rre tho se            p  ersons designat ed by  the bo       dies to
count t         h        e v ote. SlouLld  they make  a miscount
of tohe vote there in the                        presence of   the two
IHouses, the two Ifouses twould have jurisdiction
over it certainly.  I-Ience it certainly means
th      e  c ounti ng of th e  vote by the two  orontses  of
CohDgrees, although the mere enumeration of
the number is done by persons who are selectecl for that purpose.... The idea is that
the twoi Houses count the vote. Of course  they
designate    some person to do the                           m    ere ministerial office of counting the vote and making the
addition, but it is, in fact, constructively done
by the two IHouses. Now, if you put in the
words  " by them," they  refer to the  men
selected as the persons to make the count,
and leaves them the persons to count the,>votes,
instead of the construction that the Constitution certainly bears, that the I-ou,ses count the
votes. —Feb. 25, 1875.
Senator  Roscoe  Conkling,  of  -Yew  York.
The Senator from Illinois has stated so exaetly
and so fully the vi ew I have                    of this matter
that I am       content to give my vote upon the
pres entation  he has made.   But yet I venture
to suggest to the Senat   or from N    orth Carolina
that his amendment would confound together
two things different in law and in substance.
The office to be done by these tellers, as has
been said, is purely ministerial. As my friend
said a moment ago, they do the work and the
twboo foutses in fact makee the co,?tt.  They are
mere machines.... So you need not nees.
sarily have members of the two Iouses to act
as tellers.  Two  of the pag,es of  the two
Houses cotild foot up these figures and present
them to the Houses.  But does anybody suppose that when you use the word " count " in
the constitutional sense you can delegate to
two p,ages the count of those votes? I take it
not; but the mechanical, ministerial function,
the mere manual act of presenting a total of
a coltmn of figures and handing that to the
presiding officer, youi may delegate'to anybody,
to the Sergeant-at-Armns for aught I know.
xlv 
THE TWO HOUSES COUNT UNDER THE CONSTITUTION.
and ready for business, unless it has business?
Why require the House of Representatives to
be present organized, unless for business? The
very fact that the two Htouses are required to
appear in their organized capacities strengthens the construction which  I place on the
clause in question.  That is precisely what I g
mean, sir.  The Constitution says:
The President of the Senate shall, in the presence
of the Senate and House of Representatives, open
all the certificates, and the votes shall then be
counted.                                                                 I
The word " Senate " means an organized
body; the words "House of Representatives" a
mean an organized body.  If it was designed
simply to open the votes in the presence of
Senators and Representatives, it would have
said so; but it says "Senate," which is an
organized body; it says " House  of Pepresentatives," which is an organized body; and
I hold that these two  bodies as organized
bodies are present, and I have argued that
they are present for business, and I think there
is force in that vieV.-Mtarch 21, 1876.
Constitution was that the two Houses thus
assembled should sit together as one joint
body for a much higher purpose than merely
looking upon the ceremony of breaking the
seals of the certificates, and that they are
really required to perform the office of counting the votes. This was the early construction
given to the Constitution by the Second  Congress of the United States, which passed the
act o f 1792.-F eb. 2, 1865.
Senator Garrett -Davis, of Kentucky. This
power to count the presidential votes is certainmy vested by the Constitution somewhere.
It is vested in the two Itouses. The manner
in which the count shall be made is not prescribed by the Constitution. Then comes in
the general power given to Congress to pass
all laws necessary and proper to execute any
of the powers vested by the Constitution in
the Government or in any department or
officer thereof. —lieb. 2, 1865.
Senator Williarn If. Stewart of 3recada. The
Constitution says:
The President of the Senate shlall, in the presence
of the Senate and House of Representatives, open
all the certificates, and the vote  shall tlhen be
counted.
I think it was  anticipated that  they should
just count them and he should declare the result. —Feb. 25, 1875.
Seawator Lyman Trumbull, of Illinois. The
Senator from Wisconsin insists, as also does
the Senator from New York, thlat the VicePresident, or the Presiding Officer of the
Senate, is to determine this question in the first
instance. The Constitution does not say that
the Presiding Officer of the Senate shall count
the votes even, and in the practice of the Governinent since the days of Washington till this
moment the Vice-President never has counted
the vote.  The Constitution says, " The President of the Senate shall, in presence of the Senate and House of Representatives," do what?
"Open all the certificates."  That is what he
shall do.   Then what follows?  "And  the
votes shall then  be counted."   By whom?
Another clause in the Constitution already referred to declares that Congress shall have
authority to pass all laws necessary and proper
to carry into effect every one of the granted
powers.  The power to count the votes is given
by the Constitution; the mode of doing it               is
not prescribed by the Constitution; but another clause of the Constitution says that Congress shall have power to provide by law for
carrying into effect every provision of this instrument; and here is a provision of this instrument that these votes shall be counted;
the manner of doing it is now determined by
the Constitution, and it is clearly constitutional and proper for Congress, in the exercise of
its authority to carry into effect the granted
powers of the Constitution, to pass the necessary laws to count the votes, and Congress has
done it from the beginning of the Government.
-eb.' 2, 1865.
THE TWO HOUSES REGULATE  MODE OF COUNT                 ING BY LAW.
Senator o.urTman, of Ohio.   Wh en a powe r
is vested in any department of this Government and the mode of its exercise is not prescribed by the Constitution, the prescribing of
that mode belongs to the  law-mnaking power,
the Congress  of the United States; and, therefore,  in this case,  where the Co nstitution simply says that these votes shall be counted,
without prescribing in detail the mode of their
count, it follows necessarily from the structii re
and genius of our Government, and from the
very nature of legislative power, that that mode
is to be prescribed by law. I never believed,
therefore, that a joint rule was the proper
mode.   I believe that a law is the proper
mode; and I believe that that law binds everybody, binds each House of Congress;is much
as any law binds us until it is repealed. I have
no difficulty therefore with this being a law.
I think it proper that it should be in the shape
of a bill to become a law. —March 13, 1876.
Senator Maxey, of Texas. If it had been
meant, as is contended, to devolve upon the
President of the Senate the duty of counting
the votes as well as the opening of the certificates, I ask why was not the clause so worded
as to read thus?  The President of the Senate shall, in the presence
of the Senate and Hiouse of Representatives, opens all
the certificates and count the votes.
S       ena tor Jacob Mm.   tH toward, of                  a     uichigan. I
know that.  I am coming to that clause.  It
seems to me, on the other band, that the irntention of the convention  which  framed the
xlvi 
TUE MODE OF COUNTING TO BE PRESCRIBED BY LAW.
the votes shall then be counted in the manner and
with effect hereinafter provided.
SEc. 3. That when the certificates of votes for
President of the United States shall be opened by the
President of the Senate, in the presence of the Senate and House of Representatives, as provided in the
Constitution and by this act, the same shall, with
the votes therein contained or stated, be then and
there delivered to the committee provided for in
section 1 of this act; which committee shall forthwith proceed to examine the same, and shall couat
the votes which shall appear to  have beer.  legally
given and dulv certified and returned. And said
committee shall report in writing as soon as may be
to said mee tin    g      their proceedings, the state of the
votes, and what persons, if any, have been pursuant
to law electe'd President and Vice-President respectively; and if, on such report, any question shall be
made by any Senator or member of the House of
Representatives touching the legal validity of any
vote or votes so delivered to said committee, or
touching any action of said committee, the Senate
shall withdraw,  and each House shall proceed  to
consider the question.
It does not so rea(l.
And the votes shall then be counted.
That is the way it reads, implying clearly,
in my judgment, that it was the duty of the
President of the Senate in determining who
was elected President and Vice-President of
the United States to open the votes in the
prcsence of the Senate and House of Representatives, and that they should be witnesses
to that great event;  but there was another
reason for that.  It was that the House of
Representatives, the direct representatives of
the people, and the Senators, the embassadors
of the sovereign States, should be there; that
when the expression was used, "and the votes
shall then be counted," it was intended that
the votes might be counted in the mode and
manner which the embassadors of the States,
constituting the Senate, and the Representatives of the people, constituting the Ilouse of
Representatives,  mnight  point  out.  It was
meant that they had the power to point out
the modle and manner in which  the votes
should be counted.  That at least is my construction  of th e Constitution. —Sfarch o13, 1876.
THE MODE OF COUNTING TO BE PRESCRIBED BY
LAW.
Senator  Thurman, of Ohio, Feb. 25, 1875.
I think that the spirit of the Constitution requires  that these votes shall be counted in
some mode by Congress or tihe convention of
the two Houses;  but what shall be the mnode?
It is a fundamental principle that, where any
power is conferred upon the Government, or
any Department, or officer thereof, and the
mode  of exercising that power  is not prescribed in the Constitution itself, it belongs to
the law-making power to prescribe the mode.
I said the other day that that was  a fundamental principle of the Government, but I
need not have gone to any general principles
of government, because it is expressly declared
in the Constitution, as we all know in the very
familiar paragraph, the last of section 8 of
article  1, in which, after  enumerating  the
powers of Congress, it is said:
The Congress shall have power to nmalke all laws
which shall be necessary and proper for carrying
into execution the foregoing powers, anl all other
powers vested by this Constitution in the Governmerit of the United States, or in any Department or
officer thereof.
Senato ur O. P.  porton, of Indiana.  If you
give the President pro tempore -a casting, vote
where the two Houses fail to agree in determining which is the true vote of a State, that
right thus conferred upon the President of the
Senate is given to him by virtue of a law, and
does not belong to him under the Constitution;
so that after all we are deputing to an umpire
or to a third party the exercise of a duty which,
according to the argument of the Sena,tor from
Texas, and I think very clearly, too, belon,gs
to the two -Houses as a part of the legislative
power of the country.-March 21, 1876.
Senator Rererdy Jo7hnson, of Maryland. What
we propose to do now is to pass a law, to which
the President's assent is necessary before it
becomes operative, declaring what electoral
votes shall be counted legally.  If we have the
authority to pass such a law-and I do not
propose to discuss that question now; I think
very clearly we have the authority —when it is
passed by both bodies and approved by the
President, it is binding on the members of the
convention when they meet together.-Feb.
2, 1865.
Sen,ator John   Sher mame, of 07to. These
difficulties must be met beforehand; and'to
say that we cannot  b    y  law prescribe the  Iode
and manner in- which these  questi ons shall
be     decided  before the meeting of   the joint convention, is to declare the framers of the Constitution fools. So it seems to me.
BUT COUNTING NOT TO BE DELEGATED.
Senator Thurman. In my judgment, we.
shall act most within  the spirit of the Constitution and nearest to its letter if this matter,
shall be decided by the Senators and the Rep —
resentatives of the people, and that we ought;
not for one moment to think of going outside
of the Congress if we  can find a proper and
safe mode for deciding this question within
the halls of Congress.,I —arch 13, 1876.
Senator Edmunds,  of  Vermont.   No;  all
the President of the Senate shall do is to open
the package, "and the votes shall then  be
counted." —Feb. 25, 1875.
Extract from a Bill presented to the Senate
by Senator Efdrounds, F'eb. 25, 1875:
The President of the Senate shall, in the presence
of the Senate and House of Representatives, open
all the certificates and papers purporting to be certificates of votes given at               the last preceding election
for President and the Vice-President, respectively,
ancl which shall have come to his possession; and
xlvii 
POWER OF THE HOUSES MET TOGETHER.
'puting to an umpire or to a third party the ex excise of a duty which, according to the  argu ment of the Senator from'exas, and I THINK
VERRY CLEARLY, TOO, belongs to the two iHouses
as a part of the legislative power of the country.
Mr. Maxey.  That umpire is a part of our
own body.  He is not an outside body, but is a
part of Congress.
lMr. Morton.  That may  be true.  He is a
member of this body either as Vice-President
or as a Senator; but the power conferred upon
hhim is not given by the Constitution; it is a new
power which we are conferring upon him.  I
deny tle power to create an umpire to decide between the two Houses I$ A MATTER WIHICH IS DEVOLVED UPON THE TWO HOUSES BY THE CONSTI TUTION.-Jfarch 21, 1876.
POWER OF THE HOUSES MET TOGETHER.
Benjamin F. Butler, Representative of  Xassach?etsetts.  Now, where does the Constitution
place us?  We  are placed here in joint convention to count the votes, or, what  is the
same thing, to see that they are justly and correctly counted. It is a power given by the
Constitution, operating ex proprio rigore, to do
an  act of government.   Therefore, all the
power necessary to execute the power is also
conferred.... Among  those powers in the
present case is a power in the two Houses sitting in convention to preserve order; to establish rules for its own government, and to
guide its deliberation; for, being an aggregate
body, or in any view composed of aggregate
bodies, to determine questions for itself by deliberation.  A part of that power is exercised
by the House and a part by the Senate, whether in an aggregate body or separated opinion
is divided.  One theory is, and that theory
seems to be generally entertained, that  the
Senate, being a smaller body than the House,
ought not to be compelled to come  into the
convention to be overslaughled by the larger
body in a per capita or aggregate vote.  But
that proposition is by no means a settled or ascertained one....
If we can neither preserve order nor deliberate, nor examine, nor determine any question,
how are we  t o fin d o ut what a re the votes we.
are to count or to see counted? Suppose that
upon the reading of a certificate I rise and object, saying, " Why, sir, that certificate is
forged, and I have the evidence here." "' But,"
says the President, "1 I cannot hear that. Don't
you know the concurrent resolution will not
permit us to examine this question, or I alone
can judge of that, and I am without power to
summon a witness? " I ask this tiouse what
are we to do in such a case? How are we to
hear evidence, if necessary, if we have no"
power? I say, "~I know that certificate is
forged." Another gentleman says, "I know
it is- genuine; " and there is a conflict. Are
we to count the votes certified by such a certificate without determining anything about
the genuineness of such a certificate?
THE TWO HOUSES COUNT, NOT THE PRESIDENT
OF THE SENATE.
Senator Edgar Oowan, of Pennsylvania. The
Constitution provides that the President of
the Senate shall, in the presence of the Senate and House of Representatives, open all the
certificates, and the votes shall then be counted,
pot by the Vice-President, for that does not
follow, but shall be counted by that body there
assembled in joint convention. —Feb. 2, 1865.
deohn A. Binghaec, of  Ohio.  Cong ress, composed of the Senate and Houset shall be in session on this day-for what? To look silently
on, while the President of the Senate and the
tellers jointly and severally ascertain and declare who are elected President and Vice-President of the United States? The two Houses
are here to count the votes, and to ascertain and
declare the result. The President of the Senate and the tellers are but the mere agents or
organs of the two Houses. The DUTY to ascertain and declare these results is, in my opinion, devolved upon the two Houses, not upon
the President of thie Senate or the tellers.Feb. 11, 1857.
]Humyphrey Marshall. of -lentuc7k:. The count
is performed by the Senate and House...
" The                 votes shall be counted "-not by you [the
President              of the  Senate] but       by us [the Senate
and House of Representatives].-Feb. 11, 1857.
Senator B. Jf. T. -Iunter, of VTir9'nia.  If,
then, his authority be denied in e ith     er of these
modes, the power  of the two   Houses)             to retulate the count is recognized.-Feb. 12, 1857.
Senator Jaorton, of Indiana.  If, when the
Senate comes to  decid e          the questi on w hich   is
the correct r eturn, there is a    tie vote    in the Senate, and the Vice-President is presiding-not a
President pro temporel-he can cast a vote in
that case, deciding the question in the Senate;
but there is no provision in our Constitution
autthorizing the Vice-P)resident or any other o -
cer of Government to come in and settle the
question where the two Houses disagree.  If
there is a tie vote in the Senate, the Vice-President can cast the deciding vote; but it is not
in conformity with the spirit of our Constituttion to provide for some offcer who shall settle
between the two Houses when they disagree.:&arch 13, 1876.
Jlr. MXrorton, of Indiana. The President of the
Senate pro tempore has no casting vote under
the Constitution, but he simply votes as a Senator.  If you give the President pro tempore
a casting vote where the two Houses fail to
agree in determining which is the true vote of
a State, that right thus conferred upon the
President of the Senate is given to him by virtue of a law, and does not belong to himn under
the Constitution; so that, after all, we are de
xlviii 
PRECEDENTS.
in thie matter of canvassing or counting electoral votes, and hlie also disclaims that, by signinmg  such resolution, as  has expressed any
opinion on the recitals of the preamble, or any
judgment of his own upon the subject of the
resolution.-Fe_b. 8, 1865.
Again, sir, a question may arise: by wtiom
is the certificate given? To be valid it must be
the certificate of the electors. How are we to
know that they were electors? To be legally
electors they must be elected under certain
constitutional forms and on a certain day.
Miust we not have all power necessary to ascertain such facts without the knowledge of
which no action ought or can be had?... The
two Houses may determine, each for itself,
separately, but they must come into joint convention, and make that determination of the
convention, just precisely as a jury may retire
from court and deliberate on their verdict and
make it up, but it has no validity until after it
has been declared in the court.  The rule says
t hat the delibera       tion mu st b e done   s eparately,
but the constitution  compels joint  action in
countin, the votes, so that the ofinal action must
be wthen the Houses are together, however they
ma      y  hav e     settled wha t    that action shall be.
The deliberation        is  to b         te don      e       separately, and
the d       ecision is  to be made jointly.  Now, let
me examine the concurrent resolution a little
further.  Suppose   the power is given to                            the
two Iteouses b        y  th e  Constitution to       count the
v           otes in convention -and I wish to call the attention of the  H    ous    e  t o it,      for it is vital-can
that        power b s regulated and  put in execut ion
through the means of a concurrent resolution?
I      now me an a concur rent resolution not approved b       y            the     President.
There is no law made by the C          ongr ess of the
United States except made by the Senate and
by the House    and appro ved by the President,
or passed       over his veto.   The Constitution
vested in Congress the power by law to carry
out all the p ow ers  vested  in any branch of  the
Government necess                            ary to carry out the provis    ions   of that Constitution, and not by               concurrent resolutions, not by j oint resolutions of the
two Houses only, but by an act in which both
Houses concu         r and which       receives the approval
of the President, o r which, not receiving his
approval, is p asse d over  h is   v        eto by two-thirds
of both branche s. -Feb. 11, 1869.
THE TWO                             HOIUSESS DETERMINE  THE LEGALITY  OF
'VOTES.
Presi dent Linc oln.  To  t  h         e conorable the Senate
and  the House of Represe          ntatives:
The joint resolution entitled, " Joint resolution declaring certain States not entitled to
representation in the E         lector al Co llege," has
been signed by the Executive, in deference to
the view of Congress implied in its passage,
and presentation to him. In his own view,
however, the two Houses of Congress, convened undler the twelfth article of the Constitution, have comnplete power to exclude from
counting all electoral votes deemed by thema
to be illegal, and it is not competent for the
Executive to defeat or obstruct that power by
a vote, as would be the case if his action were
at all essential in the matter. He disclaims all
right of the Executive to interfere in any way
Senator  John  T.  Crittenden, of  Kentucky,
Feb.  12, 1857.  I now offer this [joint] resolution:
Resolved, That the electoral vote of the State of
Wisconsin, in the late presidential election, being
given on a day different from that prescribed by law,
was therefore -ull, and ought not to have been admitted or included in the count of electoral votes
given in the late presidential election.
Senator John P. Hale, of -Yew Hampshire.
Suppose when the two Houses meet in convention to count the votes it is palpable  to them
that the electoral votes of some States were
given    by member s o f songtess, has Congress
no power to say that they shall not be counted?
-Feb. 2, 1865.
Precedent      of 1817. Th e two  aiouses refused to reject the vote of Indiana, whose
electors had been elected before -she was declared admitted into the Union.
Precedent of 1821. The two Houses directed the President of the Senate to announce
the state of the vote in the alternative, the
votes of Missouri counted, the votes of Missouri not counted, her electors having been
elected before she was declared admitted into
the Union.
Precedent of 1837.  The two Houses  directed the  President of the Senate  to  report th e
votes of Michigan in the alternative.
Precedent of 1857.  The votes of Wisconsin were announced in the alternative, the
President of the Senate disclaiming power to
decide whether they were good or bad votes.
Precedent of 1865.  The two Houises  by
joint resolution excluded from counting certain electoral:otes deemed by them to be
illegal.
xli,c
PP,ECEDENTS.
Precedent of 1869. The
cluded votes deen-ied illegal.
Precedent qf 1873. The
cluded votes deenied illegal.
two Houses ex
two Houses ex
TIIE TWO IIOUSES DE, CIDF, WHAT ARE VOTES.
Henry Clay, of -Yentucky. The two Houses
were called on to enumerate the votes for President and Vice-President. Of course they were
called on to decide what are votes.-Feb. 4,
1821. 
THE TWO'IOUSES DECIDE ON CONFLICTING CERTIFICATES.
THE TWVO HOUSES DECIDE ON CONFLICTING  CER                 TIFICATES.
Senator 0. P. Morton, of Indiana. I will
suppose, as in the case of Louisiana, here are
two packages sent to the Vice-President. lIe
opens thenm, and finds that each one purports
to be signed by the Governor of Louisiana;
that there are two sets of electors, each assuming to vote for President and Vice-President.
Who is to decide which is the correct return,
who is the Governor of Louisiana, and which
set of electors was entitled to cast thle vote of
that State'? Will you leave it to the VicePresldenit alone?
Senator Jacob,V. toieard, of 3lichigan. -I
consider that the power of counting the votes
and of rejecting votes which are void for fraud
or illegality, is, under the Constitution, in the
joint convention thus assembled.  I hlave not
any doubt about that, because I believe that
the two Houses thus assembled are assembled
for a great and protective purpose, that they
are exercising the tutelary authority of the
people in protecting the nation from the imposition of false and fraudulent ballots and
certificates. —~eb. 2, 1865.
Senator Jrohn Sherman, of Ohio.  The question is, what votes shall be counted at the
meeting of the joint convention next Wednesday?  What rule shall govern the convention
wvhen it meets? Shall the whole thing be posti)oned until the two Houses get together without any rules or organization, so that confusion
will probably occur the very moment the question arises?  Upon that question I have very
clear convictions, and my convictions upon that
p)oiIlt will control my vote.
I alluded incidentally, yesterday to the scene
thaltt occurred in the joint convention eight
years ago.  If we do not determine this question now, we know that any member of either
House may present it to us in the joint conventlon.-_Feb. 2, 1865.
You m        ust  believe s ome thing in the integrity
of men, and in that case it is safer to leave it
to both Houses than it is   to  leave    it to  one
House alone. It is sa fer  to leave it to both
Houses  t han  it is to leave it to  the Presiding
Office r of the Senate, because  there is  where
the power must rest if it is not placed in the
two Houses of Congress....
You cannot leave it to  one House  a   lone.
They do not a gre e; you cannot  read both  sets;
you can only read one set, and therefore read
that set which both Houses of Congress, supposing men to be patriotic and to be honest and
acting under the obligations of  the Constitution and their oaths, shall decide to be the true
and valid return. I think that is the fairest
way.
Mr. Eaton. Suppose they do not agree on
the same return, what tlen?
Ml. Morton. The vote goes out, the State
has no vote, because unless there is some tribunal to settle which vote shall be counted
you cannot count both, and therefore you cannot count either. You must have some tribunal to settle that difficulty; and what tribunal
is safer than the two Houses of Congress, I ask
my firiend from Connecticut? —March 13,1876.
(eviator Jacob Collamer, of Vermont.  The
gentleman has put this question very candidly,
and he is entitled to as much of an answer as
I am prepared to make.  The adoption of my
amendment would in no way, in my estimation,
embarrass the question which the-,gentlemnan
puts, or any action which Congress might take
upon it.  To be sure, it would do what it says
-shut out the electoral votes which have been
cast in any of these States heretofore in the
interim; that is all.-Feb. 2, 1865.
THE SAFER TRIBUXNAL.
Senator Morton, of Indiana.  Then the question comes, which is the more  reasonable,
which is the better, which is the safer of the
two-to adopt that construction which gives
this great power to one man, the President of
the Senate, who may be counting the votes for
himself, or would it be safer to leave it to the
determination of the two Houses of Congress
representing the State and the people?  If we
are open to adopt either one of these construtctions, I say the latter is the safer, it is the more
reasonable, it is in conformity with the spirit
of our Government and of popular institutions.  I THEN' ADOPT THE LATTER  CONSTRUCTION.-Mareh 16, 1876.
John Rand-olph, of TVirginia.   For  what
purpose d o  th      ey [the two Houses] assemble together, unless it be to determine on the legality of the votes? —-Pb. 4, 1821.
S       enat or Rob ert Toomobs, of Georgia. It is
our duty t        o  coun t the votes, and to decide
what are votes.-F eb.      11, 18 57.
Senator A. P. Butler, of South Carolina.
Let him add up the votes and announce the
result to me. I am one of the judges, or why
do you call me there?-Feb. 11, 1857.
Senator CUtas. E. Stuart, of MVichigan. Wtlat
votes he shall count it is entirely competent
for Congress by law to declare.-Feb. 11, 1857.
Senator James L. Orr, of South Carolina.
This, in my judgment, confers upon them [the
two Houses] the power to determine whether
a vote be valid or invalid.-Feb. 11, 1857.
TWO HOUSES DECIDE ALL QUESTIONS ARISIXNG.
Senator Thurman, of Ohio. The Senate and
the House stand on an equal footing in respect
to the count of the votes.... The Houses do
I
0 
THE TWO HOUSES INSPECT RETURNS EACH BY THEIR CHOSEN TELLERS.  li
G. Champlin, Samuel W. Dana, John Davenport,
Franklin Davenport, Thomas T. Davis  John Denn,is, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan  Freeman, Henry  Glen, Chauncey
Goodrich, El izur Goodrich, Rogei Griswold, William
Barry Grove, Robert Goodloe Harper, WVilliam H.
Hill, Benjamin Huger, James II. Imlay, Henry Lee,
Silas Lee, Samuel Lyman, John Marshall, Lewis R.
Morriss, Abraham Nott, Robert Page, Josiah Parliker,
Thomas Pinckney, Jonas Platt, Leven Powell, John
Reed, John Rutledge, Jr., Samuel  Sewall, James
Sheafe, William Shepard, Samuel Smith, George
Thatcher, John Chew Thomas, Richard Thomas,
Joseph B. Varnum, Peley Wadsworth, Robert Waln,
Lemuel Williams, and Henry Woods.
ot lose their individuality, but each House is
hqual to the other in the functions that are to
)e performed....  A s       the power of: idecision,
hed, in fact, everything but the mere ministerial
luty of reading the returns and footing them
,p, is reserved to the two Houses, there is no
ieocessity whatever for constituting a majority
).O the tellers of one political party or the other.
!',11 questions that arise for decision must be
lecided by the two Houses. The tellers have
-ertain ministerial functions to perform. They
end the certificates; and it there is no objec,ion then they put down on sheets, which are
Llready ruled and prepared for them, the votes.
rhat being done, when the work is completed,
hey add up the figures and hand the paper to
he presiding officer, who declares the result.
rheir duties being ministerial only....-F'eb.
),a, 1 875.
TIlE TWO  HOUSES INSPECT  RETURNS EACH BY
THEIR CHIOSEN TELLERS.
Senator Thuirman.  Now, what are the duties of these tellers?  The President of the
Senate takes up a return, opens the envelope,
does not read it himself, but hands it to the
tellers.  For what purpose is it handed to the
tellers?  First, that they may read it; and
having read it, then if no objection is made,
the vote of that State is put down in the blanks
which have been previously prepared.  But it
is the duty of the tellers, when they read such
returns, to announce to the joint assembly any
defects that they may find.  We had an example at the last count where the tellers reported
that the returns were all in due form except
that one of the seals did not appear to be the
great seal of the State.  That was  a thing
which could not appear by mere reading; it
could only appear by inspection, and every
member of the Senate and House so assembled
to the number of between three hundred and
four hundred could not make that personal inspection at the moment. The consequence was
that that was a duty which devolved upon the
tellers.  Now, if you have four, you are more
likely to have a careful inspection of the returns
than if you have a less number....
Then, in the second place, the return having
been accepted or not rejected, and the votes
being put down, it will be necessary to be
careful to see that they are put down in the
right column, and when  footed up that the
footing is correct, and it is more likely to be
correct where four perform  the duty than
where a less number do. Still I do not say
that three might not perform it or that two
might not perform it; and I would prefer one
from each  House rather than two from the
House of Representatives and one from the
Senate.  What I         insist upon is th e absolute
equality of the Senate in the functions that are
to be then performed. I therefore insist that
the motion I have made ought to be adopted.
-Feb. 25, 1875.
All Senators H who vote d in  1875 for MorntoM's
ifBill.
YEAS-Messrs.  Allison,  Boreman,  Boutwell,
lJhandler, Clayt on, Conove  Cragin, Dorsey, Ferry
)f Michigan, Flanagan, Flelinghuysen, Hamilton
)f Texas, Harvey, Hitchcock, Lo,,an, Mitchell, MNOr^ill of Vermont, Morton, Oglesby, Patterson, Pease,
Ramsey, Sargent, Sherman, Spencer, Washburn,
West, and Wright-28.
All Senators wqho voted in 1876 for Jlorton's
Bill.
YEAS-Mlessrs. Allison, Anthony, Booth, Burn~ide, Cameron of Pennsylvania, Cameron of Wis-onsin, Christiancy, Dawes, Dorsey, Ferry, Frelinghuysenl, Hamilton,  Hamlin,  Hitchcock, Ingalls.
Jones of Nevada, 1Key, Logan, ]McMillan, Merrimon,
Mitchell, Morrill of Maine, Morton, Oglesby, Paddock, Patterson, Sargent, Sherman, Spencer, Thurman, Windom, and -Wright-32.
All who voted for the proposed bill in 1800
empowvering a committee to-examine all electoral
votes.
Those in the Senate voted to give the committee decisive powers. 
YE AS —Messrs. Bingham, Chipman, Dayton, Dexter, Foster, Goodhue, Greene, Hillhouse, Latimer.
Lloyd, Paine, Read, Ross, Schureman, Tracy, a       nd
Wells.
Those in the House voted (on motion of
Marshall)  to  give  the  committee  qualified
powers.
EAS-Geore Ba er,  Baile   y r, J     Ba        rt       lett, James A
Bayard, Jonathan Brace, John Brown, Christopher
YPOWER  OF THE  TWO rOUSES TO  GO BEHIND
RETURNS AFFIRMED.
Senator Trumbtull, of Illinois. The practice at the first presidential election, which
I
Senator Henry E. -Dawes, of ilfassachusetts.
a,ree with the Senator that every disputed
luestion which can possibly arise -upon the
)apers themselves bad better be decided by
-be two Houses, as Houses, than to be decided
)y the President of the Senate. —Alarch 21,
L876.
WHO HAVE VOTED THAT THE TWO HOUSES
SHOULD COUNT. 
lii    POWER OF THE TWO HOUSES TO GO BEHIND RETURNS AFFIRMED.
has been followed from that day to this, was
for the two Houses of Congress to exercise
some control over this counting of votes.  The
Senator from Indiana says that the fact that
the Houses appointed tellers to count these
votes has no significance; they were mere
clerks.  But it has significance.  If this subject was entirely under the control of the
President of the Senate he would have appointed the tellers, if tellers as a matter of convenience were necessary. But at the start each
HIouse, before it assembled in joint convention
for the purpose of counting these votes or for
the purpose of seeing them counted, if you
please, took action without  consulting  the
President of the Senate  and appointed for
themselves these tellers with certain duties to
perform.  This is inconsistent with the idea
that the opening and counting of the vote was
to be left exclusively in the hands of the President of the Senate.-Feb. 25, 1875.
left to the single person who happens to C
President  of the S enate,  who  maI not be tl
Vice-President of the United States and ofte
is   n ot, for it is not the  Vice-President that'.
to open the certificates, but it is tlhe Presiden
of the Senate, whoever he may happen to be
and since I have had the honor of holding
seat here, the votes for President and View
President' have twice been opened by the Pres,
ident of the Senate who was not the Vice
President of the United States. So that th,
Senate may elect a person who would havy
this vast power, if it is to be reposed and i:
reposed by the Constitution of the Unite.
States in that officer.  The  Vice-Presiden
need but retire and allow the President of th,
Senate to be chosen by a partisan majority
if you please, in this body, and that office,
can reject or count the votes of States as h,
may  think proper.   That would  be  a moit.
dangerous power than any that is to be ant,"
cipated by allowing the two Houses of Con
gress to control the question. I think it;.
safer that the vote should be counted unde.
the direction of the two  Houses of Congres:
than to leave it to a single person who ma~
happen at the timie to be President of the Sen
ate; and I think that is the fair constructior
of the Constitution.-Jan. 14, 1873.
Senatoi, Logan,  of Illinois. Under the
Constitution both Houses are required to count
the vote.  Now, if it requires both Houses to
count the vote, it should require both Houses
to determine the votes, because the Constitution contemplates that both Houses form a convention for the purpose of determining these
questions.  That is the meaning of the Constitution. —i,eb. 25, 1875.
Senator Edmunds, of Vermoent. The Con
stitution requires that the vote of each Statr
shall be opened by the presiding officer, the
President of the Senate.   When opened  the
votes are  to be counted.   The question  or
which the whole thing turns, to which  oum
legislation is directed, except mere machinery;
is, what is a vote of a State? We all agree tha.:
every vote of every State ought to be counted
We all agree that whatever pretends to be s
vote, or looks like a vote, but is not a vote,
should not be counted. So the thing which we
are to provide for by this legislation is a meanc
of ascertaining fairly and truly, according tc
the Constitution and the law, what is the vote,
the will, of each particular State in the choice
of a President...
The Constitution says, " the votes shall then
be counted."  What is a vote.   The Constitution  do es not me an that e ve ry paper which a
selectman or a justice of the peace may send
here shall be counted; but it says the vote
shall be counted. What is a vote? The vote,
under the Constitution and the law, is the lawful and authoritative expression of the electors of that State, chosen as the Constitution
and the laws provide. Nothing else is a vote.
That is a question which must be decided.
Somebody must decide it. If you are to remit
a question of that kind to the decision of two
separate bodies, each acting independently of
the other, where are you to land? Of course
you are forced in that case to one of two alternatives. You are forced to say, as the present rule
does, that nothing shall be considered a vote
Senator Ttt'umbull, of Illinzois. HI was called
o.,t of the Chamber during a portion of the
argument of the Senator from Indiana, but I
understood him to say that the control of this
whole subject was in the President of the Senate.  I think there is a conclusive answer to
that in the history of the early legislation of
the country. I have already adverted to the fact
that each House took action on the subject.
But they went further. In 1800 a bill passed
the Senate of the United States, was considered and amended in the House, returned
to the Senate, and the Senate concurred in the
House amendments with an amendment which
was subsequently disagreed to, and the bill
failed. But that bill which passed both Houses
of Congress by decided majorities, after long
debate, participated in by the very men who
made the Constitution of the United States,
and who were then holding seats in Congress,
provided the machinery for disposing of a contested question in regard to a presidential election...
Somebody must decide this question, and
where could this decision better be left than
with the two Houses of Congress?  The Senator from Indiana says that is dangerous; that
under a joint rule which has been adopted one
House may reject the vote of a State.  That is
true  but under the other theory the power is 
POWER OF TIIE TWO HOUSES TO GO BEHIND RETURNS AFFIRMED.
have the power of ascertaining what the truth
is. Hence, in the very nature of the case, there
is power under the Constitution, vested in the
two Houses of Congress, if the occasion denmands it, to go behind the certificate and inquire into the facts; and that is a general
power lodged in all tribunals and assemblies
of men where  there is authQrity to ascertain
the truth in regard to an election.  Secondly,
it follows that neither of these certificates can
be acceptedl and a result deduced from it unless
the two Houses concur in accepting that certificate; and from that a third conclusion necessarily results, that if, unfortunately, through
accident or intrigue or the machinations of
persons hostile to the true interests of the
country, two returns  come in from  a given
State, and it is not in the power of anybody
to demonstrate to the two hiouses which is the
true return, that State must lose its vote.  That
is what happens in all cases where the truth
cannot be ascertained; some one suffers as a
consequence of that inability, and no scheme
that we can devise will rid us of that difficulty.
-l-ar ch 13, 1S76.
Senator Roscoe Conkling, of iVew York.  But
go further than to maintain the naked power
,f Congress to inquire. I insist that we can
htilize the result of the inquiuy, and employ the
ac'ts in our action upon countin2 or refusing to
,ount electoral votes for President or Vice'resident.-Feb. 7, 1873.
tSe,a5tor Chlristia2cy of  [ichig.j.  Still this
question of the authenticity of the certificate,
though not provided for or apparently thought
of by the framers of the Constitution, is actually
and necessarily involved in the counting of tlhe
votes, which they did provide  for, and therefore within every recognized principle of interpretition must be considered as having been
contemplated  by  them,  and yet  they  have
made no express provision for the decision ot
thie question  arising upon such a difference.
But is no mode for its decision to be fairly implied?
If the mode of deciding such a difference
between the  two liouses is implied or fairly
inferable from the provision actually made, that
implication is as much a part of the Constitution as if expressed, and no different mode of
deciding  thle question would be within  the
power of Congress.
Now, if it be true that under the Constitution the counting is to be considered, in legal
effect, the act of the two Ilouses; and if, as I
have suggested, the question of the due authentication of the certificates of election is necessarily involved and included in the counting
provided for, then, as there is an absence of any
express provis i on  for any other wnode of decision, it would seem almnost of necessity to
follow that the decision upon the authenticity
and validity of the certificates should be decided by the same bodies who make the count;
in other words, by the two HIous3~, whose act
in legal effect the counting is.  But if a decision by the two Houses, or as claimed by some,
the decision by the President of the Senate, is
bv fair implication from the Constitution the
mnode of decision intended, then very clearly
no othier mode can be provided by Congres,s
Sentator Boottwell, of 3ltass t,chuetts. I think
he cotntinc, of the votes, in        the language   of
he Constit u               tion, means somethin, more  than
l merte examination  of the certificates   returned
.rom the electors of the               respective States. There
Ire       sever al pre cede nts, I think,                    which go to
;how th at our pr   edecessor        s       have also             enter,datin  ed   ti ts,                            i that opinion.    ut it must, in the nature
)f the  case, mea      n  something               more.   Under
he first secti      on of  this bill           the votes  are to be
ounteCl unles        s the two Houses concur  in the
teje        tion  of  them.  The  reason for  this,  it
eaems to ma, is plain. The presentation of a
agle certificate in the usual form is mprimtefmacie evidence  of       the truth  of what the certificate  contains, tand there   being no testimony
,ontroverting that primcn-facie case, it certainy ought to stand until it is overruled by the
Concurrent judgment of the two branches of
Congress authorized to pass upon the question.
But when two certificates are returned from
"he same State, it cannot be said that there is
l prima-facie case for either of these certifi,ates, and with less reason can it be said that
there is a prim.-facie case for both of these
,on-icting certificates, and therefore there is
not a prim,-faceie case for any thing.
Two consequences follow from this state of
things: First, that the counting of the votes
under the Constitution  menans something more
than the mere examination of the paper certificate; otherwise there would be no possible
means by which Cong-ress, when there were two
certificates returned from a given State, would
iiii
hat the two Ilouses do not a,,ree is a vote, or
,ou are to sav that ever tliin, shall be. considtrod a vote that the two Hoiises cannot concur
n sayin, is not a vote; and there you are.
z,
ou are at loggerheads at once.-Feb. 2,5, 1875.
11
S,,aator E,ton, of Co?tnecticyt. A certain
,e,',urn Collins up; the seal of the.State is upon
h,,tt return, or a pretended seal of the State,
viiether s,olen or not; it is there. liow do
,ou reconcile these two provisions?, I take it
',.iat men are generally made of the same maori,-:tl. I apprehend that if a return came here
li,,tt I b3lieve,,l was a fraud, that I liad no
toubt the s —al of the Stat-,- was fraudulenty placed upon, I would vote a-ainst the re,eption of that return, and m friend from
n(.1i,,ina would in the same way vote a,,ainst
lie other return, and for some good reason.
)ar feelin,4s of party ii-ii,ht have something
,o do wi,I-i oiir udzment, b-,It we would both
,:i,le,avor to be lionest.-.,Ueb. 25, 1875. 
liv.FAILURE OF TWO HOUSES TO CONCUR MUST LOSE STATE ITS VOTE.
I  we cannot safely provide for, perhaps, as the
Constitution stands. —Marc/t 22, 1876.
Mr.  Whyte, of Maryland.   I want to  ask
the Senator from Indiana if he does not really,
under the second section of this bill, in a cer tain contingency, do the very thing which he
now  objects to doing; that is to say, upon a
certain contingency throw the election into the
House  of Representatives?  Take  this case,
and it is a mathematical calculation: It takes
185 votes to elect a President of the United
States in the present college, counting Colorado.
Suppose there are three candidates at the elec tion.  The Republican candidate gets 177 un disputed votes, and the independent candidate
24 undisputed  votes, which hlie could do by
getting Illinois and Nevada, and  N'ebraska.
Suppose the Democratic candidate gets 160 un disputed votes, leaving eight votes, the votes of
Louisiana, to determine whether  thle Republi can candidate was elected or not. Suppose
that in Louisiana there is a contested election
of great violence.   The independent candidate
is supposed by one party to be elected; the
Republican candidate is supposed by the other
party to be elected; the Republican electors
get a certificate fromn Governor Kellogg of
their election, cast their vote for the Republican candidate, and that return comes to the
President of the Senate.  Suppose the electors
on the independent ticket meet as a college,
cast their votes for the Independent candidate,
certify under the Constitution, if there is  no
provision for the executive authentication  of
their election, that they have voted for the independent candidate. Those returns are opened
by the President of the Senate.  The  House
honestly believe that the independent electors
were elected in Louisiana.  The Republicans
in the Senate believe that the Republican candidates were elected.   They separate.   The
House stands by the independent organization,
the Senate stands by the Republican election,
thus defeating the election of President, and
throwing it into the House of Representatives,
under the second section of the bill.
Mir. Morton. I thinkr the precise contingency
mentioned by the Senator fromn Maryland may
happen either by the vote of a State being lost,
the two  Houses not being able to decide, or by
being cast in factvor of an independent candidate;  beet that is theeprecise contingency which
the Constitution has provided f-or, v,hen it declares that tenless some one pezrson s,,all have
a majority of all the eletor's appointed the
]~ouse shall immnediately proceed  to elect by
States. —Jfarch 24, 1876.
any more than if the implication claimed ha(
been an express provision of the Constitution.March 16, 1876.
FAILURE OF TWO HOUSES TO CONCUR  UJST
T,OSE STATE ITS VOTE.
Senator Thurman, of Ohio.  Then something
must be done for a case where there are two
conflicting returns; and what can you do but
to require the two Houses to consider each of
those returns, and then determine which of
them shall be receive d? They can make no decision to receive  one unless both Houses concur.
One Iouse has no superiority over the other.
If the two Houses differ, one being in favor of
one return arid the other in favor of the other,
and are inflexible, of course there can be no
decision; but when there are two or more returns from a State, of necessity there must be
a concurrence of the two Houses in order to
receive one of themn.  Just as an equally-divided court can make no decision, in the same
way, where there are two returns, it has to
decide between them which is the true return,
who were the true electors of that State, as
appears by the certificates that have been made.
— i~D. 25, 1875.
Senator Thurman, of sothio. iThen there is
but one return from a State, sufficient respect
ought to be paid to that return that it should
not be rejected unless both Houses unite in
the opinion that it should be rejected.-Feb.
25, 1875.
Senator Boutwell, of alVassachusetts.  If two
returns come in from a given State, and it is
not in the power of anybody to demonstrate
to the two Houses which is the true return,
that State must lose its vote.  That is what
happens in all cases where the truth cannot be
ascertained; some one suffers as a consequence
of that inability, and no scheme that we can
devise will rid us of that difficulty. —Lartch
13, 1876.
Senator Wf"riq7gt, of -owca.  I think the two
H-ouses ought to count the vote, and if they
are unlable to agree where there ale two returns, then, if it occurs that the vote of the
State is lost, it results after the most faithful,
deliberate, and conscientious action, as I am
bound to suppose, on the part of the two
bodies.  If, then, they are unable to agree, we
have a case that is not provided for, and that 
THE PRESIDENT OF THE SENATE  DOES NOT COUNT.
i 
be counted by the two I-Iouses, or whether
they shall be counted by the presiding officer.
The twenty-second joint  rule remitted  this
question distinctly to the two Houses of CongI,ress, and they thereby expressed their opinion that the President of the Senate has  simply one duty to perform-to open the certificates. —eb. 12, 1873.
PRESIDENT MERE ORGAN OF THE SENATE.
Seizator William II. Seward, of New York.
misunderstanding exists in both Houses of
congress whether the President of the Senate,
sting, as I hold, as the organ of the Senate,
as not passed upon the question and counted
he votes from the State of Wisconsin, and
:hethler that may not be drawn into a preceent hereafter.  I am one of the number who
hiink the President of the Senate has not
ounted them, and who are entirely satisfied
/ith the manner in which he has performed
-rid discharged his duty.-Feb. 11, 1857.
Phevresentalive George S. Bou?wel,, of I~a-ssac7usetts.  If, then, this be the nature of the
duty imposed in the matter of counting the
votes, the next inquiry is, upon whom is this
duty imposed?  I say, first, by the language
of the Constitution it is not imposed upon the
President of the Senate; I say, in the next
place, that there is given to the President of
the Senate by the Constituti)n no power by
which he could institute the necessary inquiries
and the proper scrutiny by which he could ascertain whether everything was fair and proper
from the beginning to the end of this transaction.  Then, if it be not in the President of the
Senate, where by the necessity of the case must
it be?  It must be in the two Houses of Congress...
The counting of the votes unquestionably is
to be "in the presence of the two IHouses."
Have the two Houses power to do what by the
Constitution is unavoidably made the duty of
somebody to do-to see that the votes which
ar e counted are real votes? By that I meal
whether what is written upon the paper expresses the opinion which the people have
given.  Not only have the Senate and House
of Representatives the power, but there is no
other department of the Government that is
clothed with that power....
Next, what bas been the practice of the
Government from the beginning?  WAhat was
the course of proceeding on Wednesday last?
Why, that a Senator selected by the Senate and
two members of this House appointed, to 1)e
sure, by the Speaker-but the Speaker of the
House does nothing as Speaker which the
House might not without the agency of the
Speaker do for itself-actually counted those
votes.  So it has always been.  The tellers
represent the two IHouses. The President of
the Senate did nothing but hand down to the
tellers the certificates which he had received
PRESIDENT OF THE SENATE CANNOT COUNT.
Senwator P-everdy Johnson, of Maryland.  I
ever heard before-I speak it with entire
espect to mi) learned brothers-that it was
oubted that it was within the province of
,onigress to provide for cases of this descrip;on. The doubt was, ant perhaps that doubt
,~as well-founded, whether votes could be exl
luded by either branch of Congress or by the
wo when they met in convention.  Nobody
qpposed that the Vice-President could exclude
-aem.-TFeb. 2, 1865.
oRenresernthttive Bexjamin F. Butler,  of      cVasxchlisetts.  The law is that the President of
le Senate shall  open all the certificates, and
hen the votes shall be counted in the presnee of the two Houses. Now, I apprehend
,-ere is no better and no more just rule of
)us,truction of constitutional or other law
ban that where power is expressly given by
i-w to an officer to do a certain thing only,
hat power is limited, and a further power to
o another tlhin, not expressly conferred upon
im cannot be given by intendment, and the
ery conferring of tl-e power with a limit exludes such intendment. Now, the Constitu.on gives the power to the President of the
.enate to open the certificates of the votes, beause, bein, required to be transmitted to him,
e has them in his custody. There it stops, so
ar as the President of the Senate is concerned.
-Feb. 11, 1869.
I
"F,ice-President,S'chu?ller Col. The qiies'-on in dispute has been whether they shall 
NO POrWER FROM3 THE CONSTITUTION.
ment, if they had intended that the President
of the Senate should determine  as  to  the
validity of those  votes.  Tlte language  then
would be, not that the President of the Senate
shall open the votes, but that lie shall open and
count the votes in the presence of the two
Houses.   That is not it; but the language is
that he shall open the votes.   I have the very
words here, and it is important to have the
exact language:
"The President of the Senate shall,ln the presence
of the Senate and the House of Representatives
open all the certificates, and the votes shall then
be counted."
Showing  that it was  not intended,  as is
claimed, that he should count the votes, but
leaving it perhaps somewhat ambiguous [Is to
how the votes should be counted.-Jan. 14,
1873.
after having opened them in the presence of
the Senate and House, and the tellers, who
represen ted, no t the  Pre sident  of the Senate,
but who  r epresented th    e  Sen ate and the House
of Representatives,  ac        tually               counted the votes.
It                  has been the uniform   practice,           as I under stand, from the beginning of the G         o    vernment,
that th     e  S en ate and  the House of Representa tives have actually   counted                      the votes....
The Senate and Ho use o   f Representa tives
in exercising the power and performing the
duty derived from the Constitution, and sanctioned bv the uniform practice from the beginn ging                          of the Government till now,  of counting
the electoral                         votes through officers appointed
by the Senate and              the House, may institute an
inquiry in to  eve ry pro  ceeding that has taken
place from the deposit of the ballots by the
people through all intermediate proceedings to
the   opening       of the certificates by the President
of th   ee Senate in the presence  of the Senate and
House of  Representatives for the purpose of ascertaining whether the proceedings have been
right, o         r whether  they hav e  b ee n  vitiated by
error or fraud....
It may be said th          at this               is a great pow er. It
is a great power  to institute an      inquiry                    into
proce edings touching so vital a       m atter as the
exercise of the right of the people to be heard
in the electionh      of a P resident and Vice-President  of th      e         United St ates. But it is a power
which must b e lodg ed somewhere.      It would
be a       dangerous doctrine    to maintain  th at    any
paper coming he       re through the customary or
authorized channels                 between the State and the
national Government is to be received without
any inquiry. That would-be a most dangerous
doctrine. I cannot conceive of any place where
this power could be so safely deposited as in
the Senate and in the House of Representatives.  Hence I cannot agree with the gentleman from Ohio [Mr. SIELLABARGEZ] that there
is a casus omiqsus in the Constitution. It being
established, as I think it is established, that the
Senate and the House of Representatives are
authorized and required to count the electoral
votes, it follows, from the nature of the case,
that the Houses are clothed with power to
make such rules as are needed to enable them
to perform the duty in a proper mannler....
-Feb. 13, 1869.
Senator  )awces, of Massachitsetts.  Nowhere
in the Constitution of the United States is the
idea broached that upon any individual in the
United States shall be devolved the power of
selecting the President of the United States.
...That is not counting the votes by the two
Houses.  That  i s trifling with  the  question.
Somebody else counts those votes, and I do
not find that somebody else in the Constitution. —Hafarch 22, 1876.
Senator -Robert  Toombs, of Georgia.   The
President of the Senate can only announce
those to be votes which are thus decided by
competent autbority-[the two branches of
the Legislature]. —web. 11, 1857.
Senator -Eaton, of Connecticut.  " The President of the Senate shall open all t]he certificates." That is his duty; that devolves upon
him by the Constitution of the United States;
and there is the end. of his duty. So far as
the Constitution is concerned, he opens the
certificates, " and the votes slhall then be
counted." —Barch 24, 1870.
MUST OPEN RETURNS MERELY, NOT COUNT  TtIEM
Senator Thurman, of Ohio. Mlr. President,
this bill goes upon the theory, which I believe
to be the correct one, that the function of  the
President of the Senate is simply to open the
returns; that it is not his function to count
them; that they are  to be counted in such
inmanner as will be provided either by a joint
rule of the two Houses or by law, whichever
is the proper mode of providing for their count.
Hils function then being simply to open the returns and to deliver them to the tellers, it
ought not to be left in his discretion to select
the returns that he will first present.   They
should be presented in some prescribed mode,
and I conceive of no one less liable to objection than the alphabetical order of the names
of the States.  It would be impossible to select
any other method that I am aware of, unless
Ivi
NO POWER FROM TIIE CONSTITUTION.
Senator Trumbull, of Illinois. In the first
place I do not agree.witli the Senator from In'diana as to the power of the Presiding Officer
of the Senate over the- electoral vote. The
Constitution of the TTnited States directs that
the President of the Senate sl-iall open the
votes in the presence of the two Houses, and
then says, 11 and the votes shall then be
counted." That is not such language, it seems
to me, as the fraaiers of the Constitution
would have use(], who Nvere very precise and
particular in every pl)rase in,ill the instru 
MUST OPEN RETURNS MERELY,Ol. CO  NT 01 V. lCOUN
you were to call the States in the order of
their coming into the Union.
Mr. Bayard. Or in the order of their adopting the Federal Constitution.
-Ar. Thurman. In the order of their adopting the Federal Constitution, or of the original
thirteen and the subsequent admission of the
States; but that is not so convenient a mode
as the alphabetical mode.   The alphabetical
mode requires no research, can give rise to no
possible discussion, is perfectly simple, and is
perfectly fair.
.... There ought to be a prescribed mode
that should settle that question, if for no other
reason, to relieve him from any responsibility
on the subject or any suspicion as to improper
motives in his presentation of the returns.  But
for much higher reasons than that it is proper
that these returns should be presented, opened,
and acted upon in some prescribed mode, I
hope, therefore, there will be no opposition to
this amendment.
The presiding officer. The question is on
the amendment of the Senator from Ohio.
The amendment  was agreed  to.-Feb.  25,
1875.
conclusive and final arbiter of that question.
I think that view is very contrary to the spirit
of the Constitution, and certainly, as was well
said by one or two Senators, the language does
not require any such construction.   ie is simply the perso n to whom votes are to be sent
from the States.  The Constitution  d eclares
that he shall open all the votes received, substantially, and then they are to  be counted;
and I think it would be a very unnatural construction to say that if he opens two sets of
returns  from  the State    of  Pennsylvania  he
shall decide which of them is the true return.
I think then that we have to decide, or provide
for deciding, by some other tribunal than the
President of the Senate, in the event of two
returns-coming from a State or a return being
challenged from a State, whether it shall be
counted or not. March 13, 1876.
Senator D)awes, of Massachusetts.   I think
that the Constitution means that they shall be
counted by the two Houses. I cannot quite
agree with the Senator from Maryland, that
they are to be counted by the President of the
Senate, for the reason that the framers of the
Constitution kept in their mind, when they
prepared for the election of President, the
States.o-March 20, 1876.
Senator J. M. Edmurnds, of Ver mnont.  No;
all the President of the Senate shall do is to
open the package, "and the votes shall then
be counted."  That requires that the eye of
somebody shall run over the certificate to perceive that it is the certificate of the State, that
it bears its great seal, that it bears the signature of the Governor, that it contains the statement which the law requires that the electors
met on the day prescribed by law and  cast
their votes in  conformity to  law.-Feb.  25,
1875.
Senator Edmunds, of Vermont. I have always been taught to suppose that those people were least liable to errors of judgment who
had no interest in the question to be decided.
That is the very principle upon which, as I
understand it, we nowhere in our polity, and
nowhere in the polity of any civilized counatry,
allow a man to be a judge in his own cause.Larch 22, 1876.
Senator  Christiancy, of Michigan. It does.
not say by whom  the votes shall be counted;
and as it does expressly provide that the President of the Senate shall open all the certificates,
and then immediately declares that "the votes
shall then be counted,2' without saying  by
whom, there is, as it seems to me, a fair though:
nr ot conclusive inference that it is not made the
duty of the President of the Senate to count
them, because, if this had been intended, the
language in that connection would naturally
have been, as already suggested  by several
Senators, "the President of the Senate...
shall open all the certificates and count the
votes." — March 16, 1876.
Humphrey  Marshall, of  Kentucky.  The
President of the Senate hias to open all the certificates and then his function is performed.Pleb. 11, 1857.
Senator Frelinghuysen, of -Yew Jersey. I am
satisfied, on reviewing that subject, that my
first impressions were correct, and that the
Constitution does not contemplate  that the
President of the Senate should count the vote.
The fact that the Constitution does in terms
provide what duty the President of the Senate
is to perform, to wit, that he is to open all the
4
).vii
Senator -Boutwell, of Hassachu,3etts. I do
not accept the suggestion that the Vice-Presideiat of the UDited States has anything more
to do in the business of counting the votes for
.President atid Vice-Preside-nt than that specific
duty which is prescribed for and enjoined upon
him by the Constitution. That duty is, in the
presence of the Senate and House of Representatives to open the certificates. There being no other duty assigned to him, 1 infer
naturally that he is to do nothing more.Jfarc,& 13, 1876.
Senator Francis Ifernan, of -Yew Yor7c. I
cannot believe that the true construction of
this clause is that tb e President pro tempore of
the Senate, in the event of a question arising
as to what is a return of electoral votes, is the 
WHY  PRESIDENti  OF THlE SENATE CANNOT COUNT.
certificates, and omits to provide that he shall
count the vote, I think is conclusive that  it
was not intended that he should do more than
he is expressly authorized to do by the Constitution. —March 20, 1876.
must exercise the power and perform the
duty, and it is not possible under the Constitution to transfer it.-MSarch 13, 1876.
Senator Boutwell. There can be under the
Constitution no tribunal to decide that or any
other question arising in the course of counting the votes; the duty is imposed upon the
two Houses of Congress. They alone can perform it, and they have not the power to transfer its performance to anybody else.-7Xarch
13, 1876.
Senator Saulsbury, of Delaware. The constitutional provision is simply that the presiding officer of the Senate shall receive and open
the votes.  It does not say nor does it imply,
in my opinion, that he shall count the votes.
In fact, the argument of the Senator from
Virginia this morning showed that if any implication arises from the language of the Constitution and the practice at the first Congress,
it is adverse to the conclusions of the Senator
from Maryland,  and the implication is the
other way, that he shall not count.  Mr. Langdon, the first presiding officer of this body
under the Constitution, before its adoption,
was specially required and authorized to count
the votes by resolution of the Senate when no
such authority was conferred upon the presiding officer of this body under the language
of the Constitution.  The presiding officer at
that time, Mr. Langdon, was appointed to receive, to open, and to count the votes; but
under the constitutional provision, the President of the Senate was only to receive and to
open the votes.-Mareh 22, 1876.
Senator slaxey, of Texa      s. Now, as I have
said,h o pen a this duty of opening all the certificates
and count ing the vo tes is a trust reposed by
th     e C ons titution, the first in  the President of
the   Senate, the second       in th  e two Houses of
Congress, and in no other body or persons
whatever. It is in its nature like a personal
trust, a nd can  b e delegat ed t o no power on
earth, and necessarily demands sou n    d judgment and discretion.  Would any one say that,
when the Constitution  says in terms "the
President of the Senate shall open all the certificates," we, or any other power on this
earth, can say "the President of the Senate
shall not do this, but some other party we
name shall do it? " Now, if the argument is
sound, as I believe it is, that the two Houses
are intrusted with counting the votes, we have
no more right or power to take the authority
out of the body of Congress to count the votes
than we have to take away from the President
of the Senate the power of obtaining all the
certificates. It makes no difference that one
is by express grant and the other by fair implication; the implied grant once established
is just as binding, valid, effectual, and constitutional as the express grant. Therefore, as in
the case of the President of the Senate, it is
clearly and in express terms a personal trust,
so by fair implication the grant to the two
Houses to count the vote is a personal trust,
and cannot therefore be transferred to arbitrators, court, or commission not of the body,
however exalted be the personages. —March
21, 1876.
CONGRESS CANNOT DELEGATE COUNTING TO
PRESIDENT OF THE SENATE.
Senator Conkling, of 2vew York. It may well
be doubted whether we have power to do any
such thing.  Congress may do whatever is
committed to it as a Congress.  Either House
or both Houses may do whatever is committed
to it or to them; but Congress cannot delegate
to anybody else legislative power or any other
power which is reposed in Congress and located there and nowhere  else.-Feb. 25, 1875.
Senator Frelinghuysen, of New Jersey.  Before, it was that they be counted "by them."
Mr. President, we have had a bill before us
providing how these votes shall be counted,
providing that there shall be the interposition
of a court to settle questions, and it is argued
that that is constitutional because the Constitution provides that Congress shall have   a
right to pass all laws to carry into effect the
various provisions of the Constitution, and that
therefore, inasmuch as the Constitution says
that these votes are to be counted, Congress
may by law provide a tribunal for their counting, to all of which I am entirely opposed.  I
believe that the tribunal to count the votes is
the representatives of the people in Congress
assembled.- Feb. 25, 1875.
WHY PRESIDENT OF THE SENATE CANNOT COUNT.
Senator Merrimon, of /orth] Carolina.  With
all respect to everybody who contends otherwise, that it is absurd in reason and law, by
inference, by construction, to charge him with
the high power and right to receive and count
the vote for President and Vice-President.
There is another consideration pertinent to
be considered here. Why were the returns
required to be sent to the President of the
Senate? Why does the Constitution use the
words " directed to the President of the Senate?"  If it was contemplated that the VicePresident should count the vote, why did it
not say so?  It was not contemplated that the
7
iviii
Senator Boutwell, of Ma,3sachusettR. The
power and the duty are in Congress. Congress 
WIlY PRESIDENT OF TIHE SENATE CAONNOT COUNT.
-  Senate through  the presiding officer, what
,  does he do?  By reason of the fact that it is
addressed to him, or that it is delivered to him,
he holds it until he comes into the presence
;  of the Senate.  In the presence of the Senate
-  de does not deliver it sealed up.  We never
t  saw the presiding officer here deliver a mes sage or any document to the Senate sealed up.
He opens it, and having opened it to identify
;  it, to see that it is the paper sent to the Senate,
he then delivers it to the Senate.  He says:
b  "The Chair lays before the Senate the follow ing executive message," or "this memorial,"
E  or whatever paper he is requested as Presi dent of the Senate to present, and to the end
t   that the Senate may  get jurisdiction of the
matter he thus lays before it.  And all this
harmonizes with the provision of the Consti tution.   These electoral returns are sent to
the President of the Senate because he is the
t  chief presiding officer in Congress, and it is
provided that he shall open the returns and
open them only in the presence of the Senate
and House.  Why should he open them?  For
L a good reason: to identify them as returns;
to see that they are that which the law charges
him to lay before the Senate  and House  of
Representatives;  and  then  by such means
the Congress has complete jurisdiction, and
his  authority as  the  means, as  the officer
through which the Congress takes jurisdiction,
is over, except as he shall be directed in that
behalf by proper order, or resolution, or act
of the Senate and House of Representatives.
wa..     The Senate has decided that it
has power to remove the presiding officer at
will when there is no Vice-President.  How
easy it would be when the next electoral vote
is to be counted, if it should turn out that the
prevailing party in the Senate should appre hend that the presiding officer would not do
their will-I make no intimation of any such
purpose on the part of anybody, but only make
the suggestion to illustrate the force of my ar gument-how easy it would be for the major ity to remove the presiding officer and appoint
a supple tool to take the responsibility to do
the, lawless, wicked work of party I The fram ers of the Constitution were too intelligent and
rational to make any such provision, or to con template that any such thing should transpire
in this country.  To say that, by implication
and inference from the provisions of the Con stitution to which 1 have adverted, the Presi dent of the Senate is charged with power to
count the electoral vote, is to contravene all
rules of construction, the reason of the thing,
and sound policy, as I have endeavored to
make plain.
Having thus shown, as we must be directed
and governed by implication and inference,
that reason and sound policy force us to the
conclusion that Congress should be the power
to count the electoral vote, let us see where
the law fixes the power byits terms and ndcessary implication.  It is provided that the pre
Vice-President, in his character as Vice-Presi
dent, should                have charge  of the returnsat at all.
but it was          in his ch arac ter as President of th
Senate, and as President of the Senate alone.
Besides, there might be no Vice-President
there might only be a President pro tempore of the Senate, and then they are sent
to him.  But there was a motive for using the
words " directed to the President of the Sen are," a reasonable motive, a logical motive;
and what was it? The Senate is the higher
branch of Congress, and the President of the
Senate is the higher presiding officer in Congress, and by courtesy he has precedence in
place and privilege wherever the two presiding
o,'icers of Congress are brought in contact in
their official capacity. The convention had to
provide some one to whom should be sent the
returns of the electoral vote, so that they
might be properly counted and the result of
the election determined; and as I shall show
that Congress was the appropriate body to
count it, where else could the returns be so
well or appropriately sent to be laid before
Congress as to the chief presiding officer in
Congres,, to wit, the President of the Senate?
It was provided that the electoral returns
should be sent to the President of the Senate
as the most appropriate, the most direct, the
most reasonable, the most orderly channel
through which to bring the electoral colleges,
-and the States throughll the electoral colleges,
in connection and contact with Congress, the
counting authority of the electoral vote. That
was the purpose, and, in my view, none other.
It does seem to me that one, looking with
the pure light of reason at the surrounding
circumstances  of this whole matter, cannot
doubt that such was the purpose.  If such was
not the purpose, I ask this question, why was
it provided, after he is charged with the returns, that he should be further charged in
express terms to do a particular act, to wit, to
open the returns in the presence of the Senate
and House of Representatives, and the last and
most important duty of counting the vote devolved upon him by implication and inference?
Can any reason be assigned for such a strange
and illogical provision as that? It seem to me
not. It was not intended that he should have
any absolute control of the returns.  Though
they may have come to his possession the next
day after the vote had been cast, he has no
right to open them at his will and anywhere.
He is to keep control of thein he is to keep
custody of them, and to open them, not when
he will, not where he will, not to make any
decision about them whatsoever; but at a particular time prescribed and in ah particular
place he is to open them Just as he opens
any other communication sent to Congress
through the President of the Senate. When
mness~ages come to Congress addressed to the
President of the Senate, whether they comne
from one department of the. Government or
another, or when a memorial comes to the
iix 
SNOT TO BE A JUDGE IN HIS OWN CASE.
siding officer, in the presence of the Senate
and House of Representatives, shall open all
the certificates, and then it is further provided
that "the votes shall then be counted."  Counted by whom?  By the President of the Senate? Surely not. It is provided in express
terms that he shlall open the returns.  Why,
I repeat, this the rmost important duty left to
inference?  Tihe  Senator from  Ohio [MAr.
T'IUMAIxN], the other day, I thought put this
argument with tremendous power.  lie called
upon every lawyer to say, in the absence of
any other provision and  express words, to
what authority was assigned the counting of
the votes by that express provision.  He insisted that, s)er force of this provision, the
Congress, and Congress alone, was charged
with the power; that by no rule of law could
any other body or officer be charged with it;
that intuitively the legal mind so assigned the
power.  lie argued that it shocked the legal
mind to contend otherwise.   His argument
impressed  me forcibly.   I concurred  then
most heartily and without hesitation-and reflection has only strengthened my conviction
-that it is assigned to Congress.  Why? Because it did not charge the President of the
Senate to do it, but it did to do another thing.
It did not charge the Supreme Court to do it;
it did not charge any other functionary to do
it; and in the absence of any such provision
or charge, by the operation and the force and
effect of the Constitution and legal principle
ex vi termini, Congress is charged with that
power.  Congress is charged with every power
of government unless it be lodged somewhere
else by express terms or by necessary implication.  In the absence of such provision it fixes
it there inevitably.  So that it follows, by the
necessary fact of the express provision of the
Constitution as well as necessary implication
and by every argument founded upon sound
and rational policy, that Congress has the
power to count the vote and no other power
can do it, and because Congress is thus charged, |
therefore, Congress cannot delegate its power
to the Supreme Court, or to commissioners, or
to the President of the Senate, or any other
power on earth. It is a duty that the Congress
is as completely and thoroughly charged with
as it is to pass a revenue law or any other act
of legislation.  It is fixed there.  They cannot
delegate it, however they may regulate the
manner of counting the vote and deciding
questions arising in connection therewith.J[arch 23, 1876.
the votes for Pres i dent  and Vice-President.   I
certainly can never agree to any construction
of the Constitution which fixes that that is the
duty of the President of the Senate, in exclusion of the members of Congress. Two difficulties seem to mne to stand in the way of tlhat
construction. First, the Presiding Officer of
this body may be the Vice-President of the
United States, and -may claim to be the President-elect; and he is to stand there, in the
presence'of both Houses of Congress, and reject votes, or admit votes, by his single will,
and thus make or unmake himself President.
It is' power  higher than the veto.   I am
bound to say, under any construction of the
Constitution of the United States, no such
power is lodged in any individual, whatever
may  be  his station.   The Constitution says
that the President of the Senate shall open the
votes.  That is the end of his  duties.-Feb.
12, 1857.
NOT TO BE A JUaDGE IN MIS OWN CASE.
Sevators Ta     imt an, tVow Hrton, and   Eatob n.
We  all agr ee,  I think  I am  rightll  in       saying,
that the duty of the President of      the Senate
is  simply min is teri al;  that he  is not  corstituted the judge to de  cide whether  a return is
valid or not. The whole history of the country, I think, is against any such int er pretation
of the  Constitao tion as would  confer on hims
that powe r;  and   the fact that more than once
the  Vice-PresideIt who presidetd o  ver taie  joint
convention was himself    a candidate   either  for
the offi  o  r    en        Vice of  President or   ice-President would
seem to be quite sufficient to show that it never
was the intention of the framers of the Constitution, or of the people who adopted it, that
this great power of judging of elections should
be decided by one man and he a candidate.
Mr. Morton. Will the Senator allow  rme to
refer to that?
Air. Thurman.  I will thank the Senator.
}Mr.  Morton.  In  the  remarks I  made in
1873, and to which I have before referred, I
made this statement:
Upon the hypothesis-that the President of the
Senate has the power to open and count the electoral
votes, and that the two Houses are to be present
merely as witnesses, and have no jurisdiction over
the subject either jointly or separately, everybody
must perceive that it is a vast and dangerous power
to repose in the hands of one man, especially when
he may be ardently devoted to the fortunes of a great
party or when he may be personally interested sittilng as a judge in his own case * for it has happened
six times in the history of our Government that the
President of the Senate has opened and counted the
votes for himself; either for President or Vice-President. In 1797, John Adamiis, as Vice-Presidenlt.
opened the votes for himself, and declared himselF
elected President. In 1801, Jefferson, as President of
the Senate, opened and counted the votes for himself
when he and Burr were the candidates for President.
In 1821, Vice-t'resident Tompkins, as }>resident of
the Senate, opened and counted the votes for himself, he being a candidate for reflection; and in
1837, Mr. Van Buren, then Vice-Presidernt, counted
.I
Ix
.T&rael Was7tbztriz, Jr., of.3fain.e. It is very
certain, — Nfr. Speaker, that this vast power
should not be vested in the Presiding Officer
of the Senate or in any man.-Feb. 11, 1857.
Senator Pugh, of 07tio. The Senate and
House of Representatives met yesterday, pursuant to the Constitution and laws, to count 
OV E-l1AN  JOWER. P.
the votes for himself as President, and declared himself elected.  In 1841, Richard M. Johnson, then
Vice-President, opened and counted the votes for
his reelection as against MIr. Tyler, the opposing candidate; and in 1861, Mr. Breckinridge, then President of the Senate, ope ned and counted the votes for
himself as a candidate for the Presidency.
Mr. Thurman. I am obliged to the Senator for recalling to our memories these facts.
Mr. Eaton. May I be permitted to ask the
Senator from Indiana from what he read?
Mr. Morton.  I read an extract from the
speech that I made some three years ago.
Mr. Eaton.  I did not suppose myself that
the Vice-President counted the votes at all.
Mr. Thurman.  That was exactly the conclusion I would have come to, that the count-ng is not by the Vice-President, and these
facts show that it never could have been contemplated that he should be the judge of the
election.  What hi.s duty is, is prescribe in
the Constitution:
The President of the Senate shall, in the presence
of the Senate and House of RPepresentatives, open all
the certificates, and the votes shall then be counted.
WOULD CONDEMN THE CONSTITUTION.
Sernator Tlztg-'nman, of Ohio. For reasons
which I have already stated and which I shall
not bore the Senate with repeating, it seems
to me  quite inadmissible to adopt the theory
that the counting of these votes, and consequently the function of judging which is the
true return, is devolved upon the President of
the Senate.  The bare fact, which we are to
presume must have been foreseen by "he framers of the Constitution, that the  Vice-President might himself be a candidate for the
Presidency qr for reelection, shows that,  if
the counting of the votes were devolved upon
him, if the judicial function of deciding upon
the validity of the re t urns were devolved upon
him, it would be devolved  upon    a man who
was a judge  in  his own cause.   There is no
provision  in the      Constitution that'if he is a
candid ate    he shall not  act in the premises; on
the contrary, the h    provision  of the Constitution
is so mandatory that, as was shown by the
Senator f rom I    ndia na [Mr.  MOP.TON] theil other
day, in no less than six instances has the VicePresident opened the votes when he himself
w a      s  a       can didate either     for the  offi ce of President or for reelection to that of Vice-President; and to  say that our Constitution is  so
defective  that i      t mak es the dete rmination of
o ne who  has been electe d the Chief Magistrate
of the Republic to depend upon the will of the
very man who is a candidate  for'that office is
to condemn the Constitution beyond redemnption. No, sir; the Constitution is not so defective as that. Nothing but the strongest,
clearest, and most precise language could drive
us to,In interpretation of that sort. —Jfarch16, 1876.
ONE-MAN POWER
Senator Morton, of Ilzdiana.  Upon the hypothesis that the President of the Senate has
the power to open and count the electoral
votes, and that the two Houses are to be present merely as witnesses, and have no jurisdiction  over the subject, either jointly or
separately, everybody must perceive that it is
a vast and dangerous power to repose in the
hands of one man, especially when he may'be
ardently devoted to the fortunes of a great
party, or when he may be personally interested
sitting as a judge in his own case.-Jan. 17,
1873.
MIGIIT LE,T ON4 E MAN DISFRANCHISE A STATE.
Senator Morton, of Inzdiana. Will the, Senator allow me to call his attention to the fact
that if this matter is to be left entirely to the
President of the Senate, it includes the power
to disfranchise a State where there is only one
return because of an imperfection in the return? Itle may say that the return does not
show that the electors voted by ballot, and in
his judgment that should reject the return from
a State; but that return would not be rejected
under this bill unlessewe  both    Hou se s concurred
in saying that it should be rejected; or, where
there were two returns he might decide which
was the proper one.-JMarch 21, 1876.
Senator -orton, of lizdianci. In 1801, when
Mr. Jefferson, as President of the Senate,
counted the vote as between himself and.Aaron
Burr for President, it turned out to be a tievote, and had there then been a question or
contest in regard to a single vote such as exists
to-day in regard to several, he might have
decided himself elected and the nation would
have been without redress. Such a temptation,
springing lion-like upon a man of less patriotism and weaker virtue, backed by a great party
in a season of high excitement, might have
proved fatal to the peace of the nation.-Jan.
17, 1873.
Ixi
There is no duty devolved upon him but to
open this certi,'icates in the presence of the
Sen'ate and Ifouso of Pepreseritatives. That is
all the function that is devolved upon the
President of the S —nate, a-.,,i(I that is all the
.d,,ity, he has to perform. Vie do not
about that.-iVareA 13, 1876.
MAY PROVE FATAL TO THE PEACE OF TIIE
NATION.
OR ELECT 11][IMSELF.
SenatorEdmu,nd,,q,ofF,6rmont. Tbeobjection
that I have in substance to this amendment,
and which to my mind is absolutely fatal, is
that the President of the Senate may be, sometimes has been, and very likely often will be, a
candidate for President or Vice-President him 
lxii    MIGHT'ET ONE MAN DISFRIANCHISE A STATE, OR ELECT HiiMSELF.
self, and this amendment proposes that that
very person, selected by designation, shall, in
a case of great doubt and dispute, when the
two Houses acting with a patriotic disposition
to follow the law and the Constitution are unable to agree, decide himself whether he shall
be President or not.  It appears to me that
that would be a very unsafe and dangerous
l)roposition.   It is wrong in principle, as I
think; and that it would be dangerous in the
last degree in practice, I have no doubt at all.
.... If there is any man who ought  not to
be authorized to exercise any judgment to determine a disputed question it is that man who
is interested in it; and yet this amendment
selects the very person who in our past history has sometimes been, and in our fiture
history often will be, the person voted for as
either President or Vice-President of the UJnited States.-ffarch 22, 1876.
I
I 
THE
ELECTORAL VOTES
OF 1876:
WHO SHO ULD COUT THEMX, WHAT SHOULD
BE CO UNVTED, AND THE IREMED Y
FOR A WRONG 60 U2YT.
BY
DAVID DUDLEY FIELD.
0
NEW YORK:
D. APPLETON AND COMPANY,
549 & 551 BRPOADWAY.~
1877.
- 1     *    ^       -
1?,,i, 
COPYRIGHT BY D. APPLETON AND COMPANY, 1877.
I
0 
i
Q1
of -I
THE ELECTORAL VOTES OF 1876.
WHO SHOULD COUNT THEM,
WHAT SHOULD BE COUNTED, AND
THE REMEDY FOR A WRONG COUNT.
THE electoral votes of 1876 have been cast. The certificates are now in Washington, or on their way thither, to be
kept by the President of the Senate until their seals are broken
in February. The certificates and the votes of. thirty-four of
the States are undisputed. The remaining four are debatable,
and questions respecting them have arisen, upon the decision
of which depends the  election of the incoming President.
These questions are: Who are to count the votes; what votes
as e to be counted; and what is the remedy for a wrong count 
I hope not to be charged with presumption if, in fulfilling my
duty as a citizen, I do what I can toward the answering of
these questions aright; and, though I happen to contribute
nothing toward satisfactory answers, I shall be excused for
making the effort.
The questions themselves have no relation to the relative
merits of the two candidates. Like other voters, I expressed
my own preference on the morning of the election. That duty
is discharged; another duty supervenes, which is, to take care
that my vote is counted and allowed its due place in the summary of the votes.   Otherwise the voting performance becomres ridiculous, and the voter deserves to be laughled at for
his pains.  His duty-to cast his vote according to his con
I 
WHO SHOULD COUNT THE VOTES.
science-was clear; it is no less his duty to make the vote
felt, along with other like votes, according to the laws.
The whole duty of a citizen is not ended when his vote is
delivered; there remains the obligation to watch it until it is
duly weighed, in adjusting the preponderance of the general
choice.  Whatever may be the ultimate result of the count,
whether his candidate will have lost or won, is of no importance compared with the maintenance of justice and the supremacy of law over the preferences and passions of men.
It concerns the honor of the nation that firaud shall not
prevail or have a chance of prevailing.  If a fraudulent count
is possible, it is of little consequence how my vote or the votes
of others be cast; for the supreme will is not that of the honest voter, but of the dishonest counter; and, when fraud succeeds, or is commonly thought to have succeeded, the public
conscience, shocked at first, becomes weakened by acquiescence; and vice, found to be profitable, soon comes to be triumphant. It is of immeasurable importance, therefore, that
we should not only compose the differences tlhat, unfortunately, have arisen, but compose them upon a basis right in
itself and appearing to be right also.
WuIO SIOULD COUNT TIlE VOTES?
This is the first question. What is meant by counting I
In one sense, it is only enumeration, an arithmetical operation,
which in the present instance consists of addition and subtraction. In another sense it involves segregation, separation
of the false from the true. If a hundred coins are thrown
upon a banker's counter, and his clerk is told to count the
good ones, hlie has both to select and to enumerate. lie takes
such as he finds sufficient in metal and weight, and rejects the
light and counterfeit. So when the Constitution ordains that
"the votes shall then be counted," it means that the true ones
shall be counted, which involves the separation of the true
from the false, if there be present both false and true. In regard to the agency by which this double process is to be performed, the words of the Constitution are few:  The President of the Senate shall, in the presence of the Senate and
4
6 
WHO SHOULD COUNT THE VOTES.
House of Representatives, open all the certificates, and the
votes shall then be counted." What would one take to be
the meaning of these words, reading them for the first timne?
It is, that somebody besides the President of the Senate is to
count, because, if he was to be the counting officer, the language would naturally have been that the President of the
Senate s8hall open all thAe certifeates8 and count the votes.
Thiere must have been a reason for this change of phraseology.
It should seem to follow, from these words alone, that, whoever is to count, it is not the President of the Senate.  It
should seem also to follow, that the counting is to be done,
not in the presence of Senators and Representatives as individuals, but in the presence of the two Houses as organized
bodies. If their attendance as spectators merely was intended,
the expression would naturally have been, in the presence of
the Senators and Representatives or so many of them as may
choose to attend. The presence of the Senate and House
means their presence as the two Houses of Congress, with a
quorum of each, in the plenitude of their power, as the coordinate branches of the legislative department of the Government.  And inasmuch as no authorities are required to be
present other than the President of the Senate and the two
Houses, if the former is not to count the votes, the two Houses
must.
The meaning which is thus supposed to be the natural
one has been sanctioned by the legislative and executive departments of the Government, and established by a usage, virtually unbroken, from the foundation -of the Government to
the present year.
The exhaustive publication on the Presidential Counts, just
made by the Messrs. Appleton, leaves little to be said on
this head.
The sole exception suggested, in respect to the usage, is
the resolution of 1789 but that is not really an exception.
We have not the text of the resolution. We know, however,
that there was nothing to be done but adding a few figures.
There was no dispute about a single vote, as all the world
knew.   But taking the resolution to have beenr what the
references to it in the proceedings of the two Houses would
5 
WhIO SHOULD COUNT THE VOTES.
imply, it meant only that a President should be chosen for
that occasion only.  The purpose was rot to define the functions of any officer or body, but to go through the ceremony
of announcing what was already known, and to set the
government going.  No decisions between existing parnies
were to be made; no selection of true votes from false votes,
but only an addition of numbers   Individual memb)ers of
Congress have undoubtedly in a few instances expressed
different views, but these members have been few, and they
have always been in a hopeless minority.  If any one can
read the debates, the bills passed at different times through
one House or the other, the joint resolutions adopted, and the
accounts of the votes from time to time received or rejected,
and doublt that the two Houses of Congress liave asserted and
maintained, from 1793 until now, their right to accept or reject the votes of States, and of individual electors of States,
all that I can say is, that he must have a marvelous capacity
of doubting.  lie must ignore uniform practice as an exponent of colnstitutions, and set up his indivicldu,] misreading of
words, reasonably plain in themselves, against tile opinions of
almost all who have gone before him.,
The joint resolution of 1865 is of itself decisive, if a solemn determination of the two Houses of Congress, approved
by the President, can decide anything.  That resolution was
in these words:
"Whereas, The inhabitants and local authorities of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alhbama, Mississippi, Louisianta, Texas, Arkansas, and Tennessee, Xebelled against the Government of the United States, and were in such condition on the Sth day
of Novenmbl)er, 1864, that no valid election of electors for Presi(lent and
Vice-President of the United States, according to the Constitution and
laws thereof, was held therein on said day: theretore   " Be it resolved, by tlje Senate and Hlouse of Representatives of the
United States of America, in Congress asseinbed, That the St;tes mnentioned
in the I)reamtble to this joint resolution are not entitled to reliresentation
in the electoral college for the choice of Presi,,(lent and Vice-President of
the United States for the term commencing on tle 4t]j day of March, 1864,
and no electoral votes shall be received or counted fromn said States, concerning the choice of President and Vice-President for said term of office."
In approviilg this resolution President Lincoln accom
6 
WHO SHOULD COUNT THE VOTES.
panied it with the following message, parts of which I will
italicize:
"To the Honorable the Senate and House of Representatives:
" The joint resolution entitled'joint resolution declaring certain States
not entitled to representation in the electoral college,' has been signed by
the Executive, in deference to the view of Congress implied in its passage
and presentation to hiin.  In his own view, however, the two Houses of
Congress, convened under the twelfth article of the Constitution, have complete power to exclude from counting all electoral votes deemed by them to
be illegal, and it is not competent for the Executive to defeat or obstruct
that power by a veto, as would be the case if his action were at all essential in the matter. He disclaims all right of the Executive to interfere in
any way in the canvassing or counting electoral votes, and also disclaims
that by signing said resolution he has expressed any opinion on the recitals
of the preamble, or any judgment of his own upon  the subject of the
resolution."
If this resolution of the two Houses was authorized by
the Constitution, there is no ground for maintaining the power of the President of the Senate to decide the question of
receiving or rejecting votes. For, if he has the power under
the Constitution, he cannot waive it, nor can any action of
Congress take it away.   The resolution of 1865 had  the
sanction of each Hiouse, was signed by the President of the
Senate and the Speaker of the House, and was approved by
the President.  It should set the question of the power of
the two Houses forever at rest.'
The joint rule, first adopted in 1865, and continued in
force for ten years, asserted the same control. It should not
have been adopted if the pretensions now set up for the
President of the Senate were of force; and he might at any
time have disregarded it as worthless.  But he did not disregard it; hle did not question it; he obeyed it.
The action of the present Hiouses, moreover, is an affirmance of their right to eliminate the false votes from the true.
Else why these committees of each House, investigating at
Washington and in the North and South?  Are all the labor
and expense of thlese examinations undertaken solely in order
that the results may be laid before the President of the Senate for his supreme judgment in the premises?  It is safe to
say that there is not a single member of either House who
7 
WHAT VOTES SHOULD BE COUNTED.
would not laugh you in the face for asking seriously the
question.
Assuming, then, that the power to decide what votes shall
be counted belongs to the two Houses, how must they exercise it?  Here, again, let me take the illustration with which
I began, of the coins upon a banker's counter. Let us suppose that, instead of one clerk, two were told to count them
together. When they came to a particular coin upon which
they disagreed, one insisting that it was genuine and the other
that it was counterfeit, what would then happen, if they did
their duty?  They would count the rest and lay that aside,
reporting the disagreement to their superior.  The two Houses
of Congress have, however, no superior, except the States and
the people. To these there can be no reference on the instant;
and the action of the two Houses must be final for the occasion.
There can be no decision of the Houses if they disagree, and, as no other authority can decide, there can be no
decision at all. The counting, including the selection, is an
affirmative act; and as two are to perform it, if performed at
all, no count or selection can be made when the two do not
concur. Two judges on the bench cannot render a judgment
when there is a disagreement between them.  No  more can
the two Houses of Congress. There is here no pretense of
alternative power, playing back and forth between the President of the Senate and the two Houses. If the former has
not power complete and exclusive, he has none. The result
must be that, what the two Houses do not agree to count, cannot be counted.
WHAT VOTES SHOULD BE COUNTED.
This is the second question. The votes to be counted are
the votes of the electors.  But who are the electors?  The
persons appointed by the States, in the manner directed by
their Legislatures respectively. How is the fact of appointment to be proved? These are the subordinate questions, the
answers to which go to make up the answer to the main question.
......
8 
WHAT VOTES SHIIOULD BE COUNTED.
What are the means of separating the genuine from the
counterfeit?  Where are the tests by which to distinguish the
true votes from the false?
The words of the Constitution are not many: "Each State
shall appoint, in such manner as the Legislature thereof may
direct, a number of electors," who shall meet and vote, "make
distinct lists of all persons voted for as President"... "and
of the number of votes for each, which list, they shall sign and
certify and transmit sealed to the seat of the Government of
the United States, directed to the President of the Senate."
She State must appoint, and the appointment must be
made in such manner as the Iegslature thereof may direct.
Here are the two elements of a valid appointment, and they
must concur. An appointment not made by the State, or
not made in the manner directed by its Legislature, is no appointment at all.
There must be State action in the manner directed.  If,
for example, an appointment were made by a State authority,
such as the Governor, without the sanction of the Legislature,
it would be void.  If itwere made by the people in mass-convention, but not in a manner directed by the Legislature, it
would be void also. And if, on the other hand, it were made
in such manner as the Legislature had directed, but not made
by the State, it would be equally invalid. Indeed, the Legislature may itself have given a direction in contravention of
the State constitution, and thus the direction prove a nullity.
So, too, the Legislature may have acted in contravention of the
Federal Constitution, and for that reason its direction may
have been void. The appointing power is the State, the manner of its action is prescribed by the Legislature; the valid authority and the valid manner of its exercise must concur, to
make a valid appointment.
It therefore, the persons assuming the office are not appointed by the State, and in the manner directed by the Legislature, they are not electors; that is to say, they are not electors de jutre; electors de facto they can hardly become, since
their functions exist but for a moment, and with one act they
perish. What is an appointment by the State? Hiow can a
State appoillt? I answer, by the people, the corporators of
*                  *
9 
WHAT VOTES SHOULD BE COUNTED.
the body politic and corporate, or by one of the departments
of its government, as established by its constitution. The
power to appoint cannot be renounced or divested. It must
ever remain in the State, a living power, to be called into
action at each recurring election. It cannot he delegated, except as the different powers of the State are by its constitution
delegated to its great departments of government.  If it were
otherwise, it mighlt be delegated to a foreign prince, and delegated in perpetuity. It is no answer to say that such a delegation wo,uld not be made; the question is, whether it could
be made, without violating the Constitution of the country?
I insist that it could not; and that if the Legislature of New
Yorkl were to authorize ouir friend the Emperor Alexander,
or our excellent neighbor the Governor-General of Canada,
to appoint the thirty-five presidential electors to which New
York is entitled in the sum total of the electoral colleges, and
the electors thus appointed were to receive the certificate of
the Governor of New York, and to meet, vote, and transmit
their certificates to Washington, the votes might be lawfully
rejected. Such an occurrence is in the highest degree improbable; but stranger things than that have happened.  The
Empress Catharine intervened in the election of the kings of
Poland, and the intererence led to the downfall of the government and the blotting of thle country from the iilap of
ZEurope.  Indeed, I venture to express my   belief, that such an
intervention of foreign influence iii our elections wotuld have
been hardly more startl~hg to the imaginations of our fathers
than the spectacle which our own eyes have seen; federal soldiers removing representatives from. the Capitol of one State,
and stationed at the doors of another, to inspect the certificates
of members elected to its Legislature.
Not to go abroad, however, for illustrations, let us suppose
that the General Court convened in the State-House at. B.)ston
were to depute the State of New York or the State of Virginia to appoint electors for tlhe State of Massaclusetts, no man
would be wild enough to pronounce such a deputation valid
It should seem to be certain, for a reason hardly less satisfactory, that the Legislature of Massachusetts could not authorize the Mayor of Boston or the town council of' Worcester
10 
WHAT VOTES SHOULD BE COUNTED.
to appoint her electors; and, if that be so, and the rule is to prevail that, in law, what cannot be done directly cannot be done
indirectly, it should follow that the State could not delegate
to any other agency the power of appointment. If a body
called a returning board be so constituted as that, in certain
contingencies, it may depart from the inquiry what votes have
been cast, and cast the votes itself, or by  ny sort of contrivance do the same thing under a different name, or by a roundabout process, it is, to that extent, an unlawful body under
the Federal Constitution.  Assuming, then, that a returning
board has among its functions that of rejecting the votes in
particular districts, for the reason either that they were affected by undue influence, or that other voters were led by
like influence to refrain from voting, can such a function be
valid under the Constitution of the United States?  There
is no question here of throwing out particular votes for vices
inherent in themselves, such as that they were illegible, or
were cast by disqualified persons, and the like; but the question is of rejecting the votes of a certain number-say a thousand voters-either because they were unduly influenced, or
because another thousand, who might have voted, were, by
undue influences, prevented from voting at all.
Whatever may be the law of a State in respect to the
choice of its own officers, it seems most reasonable to hold
that, under that common Constitution which governs and provides for all the States alike, when the only legitimate inquiry
is whom has a particular State appointed, in the manner directed by its Legislature, and the Legislature has directed
the appointment to be made  by a general election, that
is, by the votes of all qualified persons, the only valid
office of a returning board must be to ascertain and declare how the State has actually voted, not how  it might
or would have voted under other circumstances, or, in other
words, what  it the number  of legal votes actually cast;
not how many have been unduly influenced, or how many
other votes would have been cast in a different state of affairs.
I use the expression undue influence, as more comprehensive
than riot, bribery, or intimidation, and including other forms
of improper influence, such as that of capital over labor. The
11
.,v 
WHAT VOTES SHOULD BE COUNTED.
question should be put in a general form to be correctly an swered, because there is nothing in intimidation by violence
which would make it a good cause for exclusion, more than
that other kind of intimidation, which is social or financial. If,
in ascertaining the state of the vote, it be lawful to inquire
whether certain voters were frightened by a rifle-club to stay
away from the polls, Dr to vote as'the club dictated, it must
also be lawful to inquire whether the same number of voters
were induced to vote or not to vote by fear that their discounts
might be lessened at the village bank, or their employment
discontinued at the neighboring ifactory. I state the proposition, therefore, as one covering all kinds of undue influence.
I refrain, however, from going into the question whether this
influence was or was not exerted, for I am inquiring into the
law as applicable to certain alleged facts, leaving the truth of
the allegations to be dealt with by others.
The sole object of all the machinery of elections, the ballots, the ballot-boxes, the canvassers and supervisors of elections, the returns and the returning boards, is, to ascertain
the will of the people. Nobody supposes that that will
is ascertained to a certainty. An approximation only is possible under our present system. To say nothing of the exclusion of women from an expression of their will, a portion only
-though  it may be a large portion-of the men express
theirs.  The sick, the infirm, the absent, say nothing.  The
registration is always in excess of the vote, and the number
of voters falls short of the registration. The reason is patent: many voters are absent at the time of registration, or
are otherwise unable or unminldful to register; and when the
time of voting arrives many of those who are registered are
absent or prevented from attendance. The registration may
generally be had on any one of several days, while the voting
is to be done on one day. The machinery is imperfect and
clumsy at best; but that is not a reason for making it worse,
or depriving ourselves of the advantages which it yields, notwithstanding its imperfections. The nearest approach to absolute justice that we can now hope to make is to take the
vqotes of all the voters who offer themselves, and count the
votes that are taken.   Every scheme of counting out legal
12 
WIIAT VOTES SHOULD BE COUNTED.
votes cast, or counting in votes not cast, must result in confusion, uncertainty, and fraud. No matter how specious the
argument may be, it will always mislead, for the reason that
it must in its nature substitute conjecture for fact. The vote
must, of course, be legal, it must be intelligible; but such a
vote when offered must be taken, and when taken counted.
The throwing out of all the votes of certain districts is
but another mode of accomplishiing the same result as would
be effected by the rejection and addition of votes in the cases
supposed: for, if there be 10,000 voters in the district, and
5,000 only vote, it can make no difference whether the 5,000
be rejected, or be allowed to remain and the same number
be added to the other side.
Itf the Legislature of a State were to resolve beforehand
that no votes should be taken in certain counties or parishes,
should we not say that the vote of the remaining counties
or parishes would not express the vote of the State?  If; in a
particular parish, with twenty polling-precincts, ten of the
precincts are so disturbed by violence that no votes can be
taken, and in the other ten there is no violence, should the
votes of the latter be taken as the net result, or should no
result be declared because half of the voters are prevented
from voting?  The practice of a State must be consistent with
itself. When the votes of three - fourths of a State are
proffered as the vote of the State, the votes of three-fourths
of a parish must be received as the vote of the parish. If
there was not a "fair and free election " in one-fourth of the
parishes, there was not a "fair and free election " in the State;
and the just result should be, that, instead of rejecting the
votes of those parishes because a portion of the voters were
intimidated, the votes of the State should be rejected altogether.
But why, let me ask, should lawful votes in any case be
rejected, because other lawful votes nmight have been given?
If they, whose votes were cast, had prevented other votes from
being also cast, that might be a reason for punishing the former.
But if the former were blameless, where is the justice of punishing them for the faults of others?  Suppose a parish with
10,000 persons entitled to vote, and divided into ten precincts.
""*i...ieI
1-3 
WHAT VOTES SHOULD BE COUNTED.
Ordinarily only 8,000 will register and 6,000 vote; the vote of
the 6,000 being assumed to be an expression of the will of the
10,000. At a particular election 3,000 persons vote in five of
the precincts. In the other five only 1,000 vote, there being
disturbances on or before the day of election. It is alleged
that the last 1,000 votes should not be counted.   Why not?
Because, say the objectors, 2,000 persons did not vote, and
it is to be presumed, first, that they were kept from the
polls by fear, and, next, that if they had voted at all, they
would have outvoted the 1,000. Are not these the merest
assumptions?  You cannot get the truth without knowing
the motives which  kept voters away, and how they would
have voted if they had come. You cannot know either with
certainty, without examining all the voters. And the theory
which would lead you to call them for examination should
also lead you to call all who in other cases have not voted, to
ask why they kept away, and how they would lhave voted if
they had been present. The argument which justifies the exclusion in case of intimidation would include all cases of absence and of inquiry into what would have been the result
if there had been no absence.   Intimidation is one kind of
undue influence; expectation of benefit is another; fear of
social ostracism is another: will you go into them? There
seems no middle course between excluding all inquiry into
the causes of absence and the probable votes of the absent,
and allowing it in every instance where persons entitled to
vote have not voted. To my thinking, a certificate given
after the elimination of votes, in the manner indicated, certifying that the electors have been chosen by the people of the
State, is a palpable falsehood.  It should have cert?ed that
they had been chosen by the people of so many parishes or
counties, out of the whole number.
It is impossible, without deranging our system of election,
either to reject votes actually cast, out of consideration for
the motives with which thev were cast, or to add to them the
supposed votes which might have been cast. The ballot itself is a standing protest against inquiry into motives. It enjoins and protects the secret of the hand; much more should
it enjoin and protect the secret of the heart. And as for add
....
14 
WHAT VOTES SHOULD BE COUNTED.
ing votes, on the supposition that they might or would have
been cast but for untoward circumstances, no plausible reas,)n
can be given for it which would not apply to any case of disappointment in the fullness of the vote. A rainy day of election costs one of the parties thousands of ballots. If it happen to rain on that day, vwhy not order a new election in
better weather; or, to save thlat formaTity, make an estimnate of the number who would have attended under a
cloudless sky, and add their ballots to one side or the other?
The rejection of the votes of a parish can be justified, if
justifiable at all, only on the ground that the votes cast do
not give the voice of the parish, either because they did not
express the real wishes of the voters, or because they would
have been overborne by other votes if they colld have been
cast.
Does not the foregoing reasoning lead to this conclusion,
that whether the charges of intimidation in certain counties
or parishes of a State be founded in fact or in error, they do
not warrant the rejection of the votes a(tually east i those
counties or parishes; and, furthermore, that they who insist
upon such rejection must accept, as a logical conclusion, the
rejection, for a like reason, of the votes of the whole State 
I submit tlat such are the inevitable conclusions.
It is insisted, however, that this is an inquiry which cannot
be gone into in the present state of the canvass. Certificates
have been sent to Washington, purporting to give the result of
the election. The question will probably arise, at the meeting of the two Houses, in this manner: Two certificates are
required, one signed by the electors, pursuant to the Constitution, certifying their own votes; and the other signed by or
under the direction of the Governor of the State, pursuant to
act of Congress, certifying the appointment of the electors.
Both certificates are sent to the Pres;ident of the Senate, in
one envelope.  It may indeed happen that two envelopes
come from the same State, each containing two certificates of
rival governors, and rival electors. If there is but one envelope, one of the certificates whlieh should be there may be
omitted, or may be imperfect.  In all these cases, it is manifestly incumbent upon the two Houses to receive or reject, in
-'*.......
15 
16        WHAT VOTES SHOULD BE COUNTED.
the exercise of their judgment. But if one envelope only is
presented, containing the two certificates, both in due form,
and objection is nevertheless made that the certificate of the
appointment of electors is false, can the objection be entertained? There are those who affirm that it cannot. They
reason in this wise: The States are to appoint the electors,
and may therefore certify such as they please. But is not that
a non seqtitur?  The States may appoint whom they please,
in sucn manner as their Legislatures have directed; but an appointmnent and a certificate are different things.  The latter
is, at the very best, only evidence of the former.   The fact to
be determined is the appointment; the certificate is produced
as evidence; it may be controvertible or incontrovertible,
as the law may have provided, but there is nothing in the nature of a certificate which forbids inquiry into its verity; it
is not a revelation from above; it is a paper made by men,
fallible always, and sometimes dishonest as well as fallible;
and, if honest, often deceived. It is made generally in secret
and ex parte, without hearing both sides, without oral testimony, without cross-examination.  Of such evidence it may
be safely affirmed, that it is never made final and conclusive
without positive law to that express effect.
Now, it may be competent for the Legislatureof a State,
under its own constitution, to determine how far one of its
own records shall be conclusive between its own citizens. It
may enact, that the certificate of a judge of a court of record, of a sheriff, a county commissioner, a board of tax assessors, or a board of State canvassers, shall or shall not be
open to investigation. There is, however, no act of Congress
on the subject of the present inquiry, and we are left to the
Constitution itself, with such guides to its true interpretation
as are furnished by just analogy and by history.  If it can be
shown that the certificate was corruptly made, by the perpetration of gross frauds in tampering with the returns, must it
nevertheless flaunt its falsehood in the faces of us all, without
the possibility of contradiction? A President is to be declared elected for thirty-eight States and forty-two millions
of people; the declaration depends upon the voice, we will
suppose, of a single State; that voice is uttered by her votes;
... 
WHAT VOTES SHOULD BE COUNTED.
to learn what those votes are, we are referred to a certificate,
and told that we cannot go behind it. In such case, to assert
that the remaining thirty-seven States are powerless to inquire into the getting up of this certificate, on the demand of
those who offer to prove the fraud of the whole process, is to
assert that we are the slaves of fraud, and cannot take our
necks from the yoke. I do not believe that such is the law
of this land, and I give these reasons for my belief.
In the absence of express enactments to the contrary, any
judge may inquire into any fact necessary to his judgment.
The point to be adjudged and declared in the present case is,
who has received a majority of the electoral votes, that is, of
valid electoral votes, not who has received a majority of certificates. A President is to be elected, not by a preponderance of certification, but by a preponderance of voting.
The certificate is not the fact to be proved, but evidence of
the fact, and one kind of evidence may be overcome by other
and stronger evidence, unless some positive law declares that
the weaker shall prevail over the stronger, the false over the
true. There may, as I have said, be cases where, for the
quieting of titles, or the ending of controversies, a record or a
certificate is made unanswerable; that is, though it might be
truthfully answered, the lawwill not allow it to be answered.
Such cases are exceptional, and the burden of establishing
them rests upon him who propounds them.  Let him, therefore, who asserts that the certificate of a returning board cannot be answered by any number of living witnesses to the
contrary, show that positive law which makes it thus unanswerable. There is certainly nothing in the Constitution of
the United States which makes it so, as there is no act of
Congress to that effect.
A certificate of a board of returning officers has nothing to
liken it to a judicial record of contentions between parties.
The proceeding is ex parte; or, if there be parties, the other
States of the Union are not represented, however much their
rights may be affected; the evidence is in part at least by
one-sided affidavits; the judges may be interested and partial.
What such a board has about it to inspire confidence or command respect, it is hard to perceive. If there be any presurlmp
2
*.               *..
*....
1   -..:..
ii7 
WHAT VOTES SHOULD BE OOUNTED.
tion in its favor, or in favor of the justice of its judgments,
the presumption is as far from indisputable as a disputable
presumption can ever be.
To recapitulate, we may formulate the question in this
manner:  Whom  has the State appointed to vote  n its behalf for President.   The manner of appointment is the
vote of the people, for the Legislature has so directed. Who,
then, are appointed by the people?  To state the question
is nearly equivalent to stating what evidence is admissible; for
the question is not, who received the certificate, but who received the votes; and any evidence showing what votes were
cast and for whom is pertinent and must therefore be admissible, unless excluded by positive law. The law by which this
question is to be decided is not State, but Federal. If it were
otherwise, the State officers might evade the Constitution altogether, for this ordains that the appointment shall be by the
State, and in such manner as its Legislature directs; but if the
State certificate is conclusive of the fact, the State authorities
may altogether refuse obedience to the constitution andlaws, and
save themselves from the consequences by certifying that they
have obeyed them. And they may in like manner defraud us
of our rights, making resistance impossible, by certifying that
they have not defrauded. Indeed, they might make shorter
work of it, and omit the election altogether, writing the certifcate in its stead.
If the Governor of Massachusetts were to certify the election of the Tilden electors, and their votes were to be sent to
Washington, instead of those which the Hayes electors have
just given in the face of the world, must the Tilden votes be
counted?  Must this nation bow down before a falsehood?
To ask the question is to answer it. There is no law to require it; there can be none until American citizens become
slaves. The nature of the question to be determined, the
absence of any positive law to shut out pertinent evidence,
the impolicy of such an exclusion, its injustice, and the impossibility of maintaining it, if by any fatality it were for a
time established-all these considerations go to make and fortify the position, that whatever body has authority to decide
how a State has voted has authority to draw information
..!,sf 
THE REMEDY FOR A WR ONG COUNT.
from all the sources of knowledge. The superstitious veneration of a certificate, which would implicitly believe it,
and shut the eye to other evidence, is as revolting as that of
the poor negro in the swamps of Congo, who bows down before his fetich. The idolaters, mentioned in Scripture, who
took a tree out of the wood, burned one part of it, hewed
the other, and then worshiped it, were only prototypes of the
men of our day, who bow down before a piece of paper,
signed in secret fourteen hundred miles away, asserting as
true what they know or believe to be false.
It were useless, therefore, to inquire how far the laws of a
State make the certificate of a board of canvassers or of returns
conclusive evidence of the result of an election held in the
State. It may be admitted that the Supreme Court of Louisiana, for example, has denied its own competency to go behind
the certificate of the board; but even that decision is entitled
to no respect, being made in contravention of an express provision of the State statute, as the dissenting opinion of one of
the judges clearly shows. Every other State of the Union,
save perhaps one, has decided that the certificate is impeachable, even in a case where the statute declares that tlhe canvassers shall "determine what persons have been elected."  The
opinion of the Supreme Court of Wisconsin, an extract from
which is given in the Appendix, states and decides the point
with clearness and unanswerable force.
If what has been said be founded in sound reason, the
two Houses of Congress, when inquiring what votes are to be
counted, have the right to go behind the certificate of any
officers of a State, to ascertain who have and who have not
been appointed electors. The evidence which these Houses
will receive upbn such inquiry it is for them and them only to
prescribe, in the performance of their highest functions and
the exercise of their sincerest judgment.
THE REMEDY FOR A WRONG COUNT
is the remaining question. Hitherto, I have endeavored to
state in a popular manner the existing law, as I understand
it. I will now ask a consideration of the needs of future
legislation.  If ther-be b  anything obscure in-the present law,
1.9'
4 
20      THE REMEDY FOR A WRONG COUNT.
Congress has the power to make it clear; if there be danger
in our present condition, Congress can remove the danger.
There are various ways of doing it.
One is to provide for a judicial committee of the two
Houses, to sit in judgment, as if they were judges, and pronouncee upon the result of the evidence. The English House
of Commons used to reject or admit members, from considerations of party. Englishmen have thought that they had at
last succeeded in establishing a tribunal which would decide
with impartiality and justice. We should be able to devise
means equally sure of arriving at a result just in itself; and
satisfactory to all. The considerations in'favor of a judicial
committee of the two Houses are cogent, though they may
not be conclusive.   They  are, the necessity of a speedy
decision, and the desirableness of keeping, if possible, the ordinary courts out of contact with questions of the greatest
political significance.
But if it be found impossible to agree upon the formation
of such a committee, then a resort to the courts should certainly be had. The public conscience must be satisfied that
the person sitting in our highest seat of magistracy is there
by a just title; and it can be satisfied of that, in doubtful
cases, only by a judicial inquiry.
An  act of Congress might provide either for the case of
a double declaration of the votes, one by each House of Congress, or of a single declaration by the two Houses acting in
concert. In either case the Supreme Court could be reached
only by appeal, and the court of first instance might be either
the Supreme Court of the District of Columbia or any of the
Circuit Courts. The Court of the District should seem to be
the most convenient, the most speedy, and the most appropriate, as being at the seat of Government.
For the case of a double declaration it might be provided,
that if, upon the counting of the votes the Senate should find
one person elected and the House another, an information
should be immediately filed in the Supreme Court of the
District, in the name of United States, against'both the persons thus designated, alleging the fact, and calling upon each
t' sustain,his title.  The difficulty of this process wQuld be
O 
THE REMEDY FOR A WRONG COUNT.
how to expedite the proceedings so that a decision should be had
before the 4th of March, in order to avoid an interregnum.
But I think this difficulty could be overcome. To this end,
the time of the courts engaged in the case should be set apart
for it. The rival claimants would naturally be in Washington, prepared for the investigation. The evidence previously
taken by the two Holouses-for they would assuredly have
taken itcould be used, with the proper guards against hear
say testimony, and any additional evidence necessary would
probably be ready, if the claimants or their friends knew
beforehand that a trial was likely to be had. It might indeed
happen that the questions to be decided would involve little
dispute about facts; as, for example, the present Oregon
case. It should be provided that the trial must be concluded and judgment pronounced within a certain number of days, either party being at liberty to appeal, within
twenty-four hours after the judgment, to the Supreme Court
of the United States, by which the appeal should be heard
and decided before the 4th day of March.
In case of a single declaration, and consequent induction into office, an information might be filed in the Supreme
Court of the District in the names of the United States and
the claimant, against the incumbent, and proceedings carried
on in the ordinary manner of proceedings in the nature of
qguo warranto.
Any lawyer could readily frame a bill to embrace these
several provisions. An amendment of the Constitution would
not  be  necessary.   The provisions would  operate  as  a
check upon  fraud.   They would furnish a more certain
means of establishing the right.   The objection that the
courts would thus be brought into connection with politics is the only objection.   But the questions which they
would be called upon to decide, would be questions of law
and fact, judicial in their character, and kindred to those
which the courts are every day called upon to adjudge.
The greatness of the station is only a greater reason for
judicial investigation.   The dignity of the presidential of
flee is not accepted as a reason why the incumbent should
not be impeached and tried.  It can be no morea reason why
21 
THE REMEDY FOR A WRONG COUNT.
a usurper should not be ousted and a rightful claimant admitted. The President is undoubtedly higher in dignity and
greater in power than the Governor of a State, but the reasons
why the title of a Governor should be subjected to judicial
scrutiny are of the same kind as those which go to show that
the title of a President of the United States should be subjected, upon occasion, to a like scrutiny. The process was
tried and found useful in the Capitol of Wisconsin, and, for
similar reasons, it may be tried and found useful in the Capitol
of the Union. So far from degrading the office, or offending
the people to whom the office belongs, it can but help to make
fraud less defiant and right more safe, and add a new crown
to the majesty of law. That triumph of peace and justice in
Wisconsin has, to the eye of reason, given an added glory to
her prairies and hills, and a brighter light to the waters of her
shining lakes.
.
0
0 
APPENDIX.
....                          ~~~~~~~~~~~~~~~~~. I
Obeervatieon e of ahef-Justice rhtion, of Wisconsin, rese'
ing theforce of a certcit  of canvassers:
"Before proceeding to state oar views in regard to the law regulating
the canvass of votes by the State canvassers, we propose to consider how
far the right of a person to an office is affected by the determination of the
canvassers of the votes cast at the election held to choose the officer.
Under our constitution, almost all our officers are elected by the people.
Thus the Governor is chosen, the constitution providing that the person
having the highest number of votes for that office shall be elected. But
the constitution is silent as to the mode in which the election shall be
conducted, and the votes cast for Governor shall be canvassed and the result of the election ascertained. The duty of prescribing the mode of conducting the election, and of canvassing the votes was, therefore, devolved
upon the Legislature.  They have accordingly made provision for both
and the question is, whether the canvass, or the election, establishes the
right of a person to an office. It seems clear that it cannot be the former,
because by our constitution and laws it is expressly provided that the
election by the qualified voters shall determine the question.  To hold
that the, canvass shall control, would subvert the foundations upon which
our government rests. But it has been repeatedly contended in the course
of this proceeding that, although the election by the electors determines
the right to the office, yet the decision of the persons appointed to canvass
the votes cast at the election, settles finally and completely the question
as to the persons elected, and that, therefore, no court can have jurisdiction to inquire into the matter. It will be seen that this view of the question, while it recognizes the principle that the-election is the foundation
of the right to the office, assumes that the canvassers have authority to
decide the matter finally and conclusively. We do not deem it necessary
to say anything on the present occasion upon the subject of the jurisdiction of this court, as that question has already been decided, and the reasons for the decision given.  Bearing it in mind, then, that under our
constitution and laws, it is the election to an office, and not the canvass
of the votes, which determines the right to the office, we will proceed "to
inquire into the proceedings of the State canvassers, by which they determined that the respondent was duly elected."-(4 Ws., 792.)
0 
THE
PRESIDENTIAL COUNTS:
A COMPLETE OFFICIAL RECORD
OF THE P.ROCEEDIXGS OF CONGRESS AT THE CO UXTIXO
OF THE ELECTORAL VOTES IX ALL THE ELECTIONS
OF PRESIDENT A.ND FICE-PRESIDE,YT OF THE
UWYITZED STATES; TOGETHER WITH JLL COX        GRESSIOJVAL LEGISLATIOY IXCIDEW
TIHERETO, OR TO PROPOSED LEG                ISLATIOX UPON THdT
SUBJECT.
WITH AN ANALYTICAL INTRODUCTION.
One large Octavo Volume, 750 Pages, Paper Covers, Price, $3.00;
Bound in Cloth, $3.50.
THE decision of the aggregate votes cast for a President is the
greatest and most important act relating to every such election.
How shall it be done? How shall the result be peacefully and
justly decided?  How shall the votes be counted?  Upon the satisfactory solution of this question hangs the existence of the Government. In these pages the reader will find all that has been proposed
or said in Congress on the subject, together with the entire official
action of Congress in counting the votes at every previous presidential election.                                            -
All the congressional debates on th's subject are printed verbdinm
from the reports in "The Annals of Congress," "Congressional
Globe,' and "Congressional Record," and' every case te pages
of the original work are given.
D. APPLETON & 00o., Publishers,
549 & 551 Broadway, ew York'
Ad~,;
I