Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1876-11-04
The Matter, In kis Deliberate Opinion,
Vow Stands as II No Such Rule had
Ever been In Existence.
The Count VIII Have to be Made, he
Thinks, Under the General DIrec-
tIon Of the Constitutional
Provision,

dent ana Nlce-RreSident, and the count
had been made under the general direc.
tion only Of the constitutional provision.
At the time the twenty-second joint
rule Was adopted, pending the form and
method for making the count and en-
| acting, among other things, that when
| the two houses assem- bled in the hsn o.
the house TO witness the coTut. II suy
objection was made b. any member o.
the house or seEAte to receiving sny
electoral voc or votes, the two houses
should Immediately separate, and each,
In It's own chamber, without any de-
/ bate, vote upon the objection; and II
the objection was not overruled by the
vote OF both houses, then the electoral
vote or votes objected to were not to be
received. 1t was thuB placed in the
power Of either house, by refusing to
overTule an objection to an electoral
vote, however trivial or immaterial the
objection might be, to have the vote
rejected; and thus any State, or all the
States, might be dlsfrsnchised by the
action of one house Of congress only. To
Ene this provision Of the rule appeared
to be grossly unconstitutional and dan.
gerous to the peace and safety Of the
country; and / called the attention OF
the senate to Its character as early as
the winter of 1S7I-'72. When the cleo
torsl votes were counted in February,
1872, the danger and folly of the rule
were strongly illustrated. Objection
was made to counting the vote Of Ar
kansas, because the certificate, signed
by the governor was not attested by the
seal Of the State. Upon the objection
the two house voted separately. The
house Of representatives overruled the
objection, but the senate sustained it,
and the vote OF Arkansas was lost. OBJ
lection was made, also, to counting GER
tain votes from the State OF Georgia,
which were cast for Horace Greeley,
upon the ground that Mr.. Greeley was
dead. This objection was over.
ruled by the senate and sustained
by the house, and SO these
votes were not counted. at the next
session of congress l introduced an
amendment to the joint rule providing
that no electoral vote should be rejected
uuless by the concurrent sction OF both
houses, and afterward reported a bill
from the committee on privileges and
elections embracing this amendment,
and providing for limited debate in
each house upon any objection that
might be offered to electoral votes. This
bill, after much debate, passed the sem
ate by large majority, and was not
resC he'd in the house for want of time.
At the last session Of congress brought
forward the bill, and it again passed the
senate. On its second passage it became
nearly party question, receiving only
two Democratic votes, those Of Senators
Thurman, Of Ohio, and Merrimon, of
NOrfh Narnlino ffar ha
before the bill was sent to the house, SEM
ator Thurman made motion to recon-
cider the vote, and upon this motion no
OF the Democratic members of the sem
ate making it certain that the house
would reject the bill, and 30 il failed the
ate and house expire with the end Of
each congress. They are simply agree
ments between the two houses
gard TO particular matters, and nec-
essarily expire with the congress. One
congress cannot make such rules bind
ing upon succeeding congress, but as
these joint rules, in most respects, per-
tain to matters about which there is no
dispute, they have been generally sc-
Dl y hC" CODkICo6 Tea
adoption, and acted upon by common
consent, with the perfect understanding,
however, that 1t is in the power of either
house to dissent from any one or all Of
them. At the last session the senate,
by resolution, expressly dissented from
the twenty. second joint rule, thus taking
away any argument Of assent or adop-
ton that might be drawn from mere
afI nha afo Io
no such rule had ever been in existence,
and unless further action is had by con.
gress before the day fixed for counting
the votes in February, the count will
have to be made under the general di-
reciion Of the constitutional provision.
Tnat provision reads as follows:
"Ihs electors shall meet in their re.
spective States and vote by ballot for
President and Vice President, one Of
whom, at least, shall not be an inhabit-
ant Of the same State with themselves;
they shall name in their ballots the per-
son voted for IS President, and In dis.
tinct ballots the person voted for as
Vice-President; and they shall make
distinct lists Of all persons voted for as
President, and all persons voted for IS
ce-President, and Of the number of
NOlSe Lu6H 5udkA
sign and certify, and transmit, sealed,
to the seat Of government Of the United
States, directed to the president of the
senate. The president OF the senate
shall, in the presence Of the senate and
house OF representatives, open all the
certificates, and the ballots shall then
be counted. The person having the
greatest number of votes for President
Ehall be the President, il such q
number be q majority Of the whole
number Of electors appointed; and IL no
person have such q majority, then from
The persons having the highest numbers,
not exceeding three, on the list of those
voted for as President, the house of rep
resentatives shall choose Immediately
by ballot the President"
1t will be observed that this provision
leaves several important things open to
construction. The votes Of the several
electoral colleges are to be sealed up and
sent to the president Of the senate, and
by him to be opened only and for the
fret time in the presence Of the two
houses when they are assembled to wit
ness the counting OF the vote. 1t has
generally been considered that the two
houses are assembled not as Joint con-
ventioD, or as constituting one body
made up Of the members of each house,
Tut that each is present in its own cs-
pscIty to witness the counting OF the
vote. The president OF the senate is to
open the packages containing the cleo
tOraI votes, in the presence of the two
houses, "an1 the votes shall then be
counted.n By whom shall the votes be
counted, and who shall determine and
pronounce the result2 II the two b ouses
thus assembled do not constitute joint
convention, with the power In that char
scter to count the votes and determine
the result, then the two houses cannot
act st all except each in its separate
capacity; and acting in that way they
could take no action which would be Of
8 binding character unless both houses
concurred in Ii. II the two houses can
not thus determine the result and count
the votes, then It must be done by the
president Of the senate, and 1t will be for
bim to determine and announce the re-
suit. When the electoral vote was
counted in 1857, objection was made
to receiving the vote of Wiscon-
sin, upon the ground that the elec-
tors had not cast their votes on the
day fixed by law, having been pre-.
vented 6y q snow-storm, although the
vote wss cast on the next day; but Mr..
Macon, president Of the senate, decided
that the objection was not In order, and
that nothing was In order but to count
the votes. His decision created much
and excitement 81 the time,