The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1876-11-23

lresentatfyes. open all the Certificates,
would 1ayeused The words ssand ccuntstfe
votes, or g the votes shall be counted by
him. The Language OF the Constitution
is g And the votes shall then bescounted.0
The change iii the form OF expression is
abrupt, it passes suddenly from verb in
the active voice to one In the passive voice.
In the passive voice the nominatiyeIs never
the actor, but some word preceded spy tne
proposition abY.,' This shows that the
president Of the Senate is not to COUNT nth tie
votes, because the Constitution does not
say SO !; and as the Constitution enume-
rates the duties he shall perform, anu does
not enumernte the duty OF counting tue
votes, that duty is not conferred Tor IL is
well-settled, rule OF construction tnat
where a statute enumerates certain duties
to be performed by public officer oil du-
Ties not specified lin the enumeration are
withheld because they are not enumerated.
The sole power conferred on the president
OF the Senate is to "open all the certifl-
cates.n He is functls oticio as soon as he
opens the certificates. The next step Is to
count the votes which these certificates
contain The language OF the Constltu-
ton is imperative: stThe votes shall then
be counted.o Who is to count them AS
the president of the Senate cannot do IT.
it follows That the Senate and House OF
Representatives must count them, Tor they
have been assembled by the Constitution
for the purpose, and are the only other
persons present charged with this duty. Y
I have dweIt at some length upon the
powers of the president Of the Senatetover
this subject because Senator Morton, IN his
letter to the San Francisco Chronicle, in
sists that il the two houses disagree the
president Of the Senate must count the
votes. Speaking OF the two houses acting
each In its separate capacity ne says:
the two houses cannot thus determine. the
result and count the votes, then IL must be
done by the president Of the Senate, and 1t
will be for him to determine and announce
the result"
This is an erroneous construction OF the
Constitution, and assigns duties to the pre-
snlent of the Senate not imposed on him by
that instrument. There is no clause in the
Constitution which coniers any powers on
him should such contingency arise, and
none from which it can be implied. have
shown that the beginning and the end OF
his bowers is to Eopen all the certificates
and then follows the imperative injunction,
:.the votes shall then be counted" The
two houses are clearly charged with this
power, for they are required to be
present, and the only other official
present is the president Of the Sem
ate, whose sole duty is to "open all
the certificates As the power is With
held from him, it must be conferred on
them, else how can the imperative duty to
count the votes THEN be performed? In
fact, the power to count the votes has been
exercised by the two houses from the foun-
dation Of the Government to the present
~ nd I,rr; w no
sident OF the Senate has never counted the
vote, and the only question is, In what capa-
city shall the two houses oficiate when they
count the votes ? Shall they act eachin its
several capacity. or shall they act as Joint
convention constituting one body? l am
aware that in great majority, if not all the
instances, in which they have perform
ed this duty they have acted in their
separate capacity; and acting in that way
they could take no action which would be
Of a binding character unless both houses,
concurred in it; and no proposition could
be carried, or objection to an electoral vote
sustained, without the concurrence OF the
two houses, each acting in its separate ca,
pacity. This enables each body to defeat
an objection to an electoral vote however
we'll founded the objection may be. 1t
could not have, been the intention OF the'
trainers OF the Constitution that one house
should possess a,veto power over the action
of the other in the performance OF this
duty OF counting the votes. Such power
ought not, to be derived by impIi-
cation. . 1t ought to be clearly granted il.
it is to, be exercised. Now, no such
power is expressly granted, nor can it be
egitimately implied from any granted
power, because it is, not necessary to the
exercise Of granted power, but really him
ders the exercise OF the granted power. The
two houses being convened for the purpose
Of having the certificates opened, and being
enioined to count the votes then, can count:
them as well acting as Joint convention as
acting in their separate capacity. The
power expressly granted is the counting OF
the votes, and this power can be us etfec-
lively exercised by their acting as joint
convention as in their separate capacity;
and as the action Of the two houses in their
separate capacity is not necessary to the
exercise Of the granted power, such mode
of counting cannot be derived by implica-
tion., ..... - =.
Again, whenever the Constitution intends
the two houses, or either house, to vote in Il
particular manner, it points out the manner
in clear terms, as in the case Of the choice
OF President by the House Of Representa-
tives. In that case it directs that the House
shall vote by States; so in this instance the
Constitution having assembled the two
bodies together as one body, charged with.
the performance of the same duty, it would
have declared that they should vote each in
its separate capacity if it had SO intended
And in the absence Of any such express
direction it is 4 legitimate inference that
they should vote as a Joint body, being as
sembled as such. ......
Besides, to allow the Senate to vote in
its separate capacity, and thereby veto the.
action Of the House, is against the whole
theory and spirit of our Government.
The connection OF the Senate with the
Executive Department makes it an unfit
body to exercise a controlling influence in
the choice of President, for the Senate
is, in many respects, part Of the Execu-
tive Department; and this was the view
taken in the convention. which framed the
Constitution, and all possible power, over
the choice OF a President withheld from
the Senate by that body. And it was for
this reason that II any one Of the candi-
dates for President fails to receive ma
jority OF the electors appointed the choice
of President is devolved on the House Of
Representatives. They are the immediate
representatives OF the people. But the
Senate is elected by tue Legislatures Of the
several States and are not strictly repre-
sentatiYes of the people. So it follows that
if the Senate can in the joint meeting act
in its separate capacity it may reject some
of the electoral votes, and thereby secure
the election OF candidate by majority of
the remaining electors, who may be mi