The daily Argus. (Rock Island, Ill.) 1873-1877, 1876-12-08

The Constitutional Authority of the
Joint Assembly Of Congress.
(Concluded.)


Another theory which has many adher-
ents, is, that although it be true that the |
vote is to be counted by the two houses of
congress, the counting is strictly minis |
terial act, The reasons already given why
the trainers Of the constitution could not
have made SO unreasonable and inexcusa-
BILE requirement as that the senate and
house should meet in joint assembly mere
" to witness the count are equally availa
bic and forcible against this theory. 1t
can hardly be conceived that the trainers
of the constitution would require so large
body of men to perform a merely minis
terial act, which could be much more
speedily, effectively aud economically done
by three persons. The use Of the word
count" is probably the basis Of this the
Org, but it will not support it; for the
word has many Specifications and among
these is to Judge or consider, and has al
ways been used in election laws of this
country, INTERCHANGEABLE with cdnUdSs.
May there not be many questions present
ed at the counting OF the electoral vote
absolutely demanding inquiry, consider
alton, and determination? Can it be that
because in the past hundred years no ques-
ton or objection has been raised on the de-
cision of which the result depended, that
no authority exists to pass upon and decide
any such question in case it should be pre-
sented, as is now likely TO be? Those who
deny this authority on the one hand and those
who maintain that it exists on the other,
seem to base their opinions on assumptions
as to what the senate and house in their
present political or partizan cast would
likely do, each assuming that all the mem
bers of both branches will SO act in their
official character in determining any ques
ton which may arise as to promote the
success of the candidate he favored at the
popular election. This is not only an unjust
reflection upon the members of congress.
but is confounding of jurisdiction or au-
thority with judgment, and, in spirit at least,
asserting to the jurisdiction on condition
that the tribunal will give favorable judg
ment; if not, then wholly denying it. We
do not go into courts in this way. There are
very few courts, happily, as yet to which
lawyers of all shades OF politics do not
freely submit all classes OF cases because
they have jurisdiction, and trust to the
business of their causes for just judgments.
/ merely contend for the authority or jur-
isdiction of the joint assembly of the
two houses, when assembled to count the
electoral vote, to decide the questions
which may arise, one way or the other
they might decide any one or all OF them
differently from my judgment without at
all affecting my opinion of their au-
thority to decide. In other words, juris-
diction is one thing and just or honest
judgment quite another, and the former is
not at all dependent upon the latter.
1t would be tedious to the reader to emu
merate all the questions which may arise
on the occasion of counting the cleo
toral vote, but few will be referred to,
some of which will probably be presented
in February next. The constitution pro-
vides that no senator or representative or
person holding any Office OF trust or profit
under the United States shall be appointed
an elector; that the electors shall be chos.
en- in such manner as the legislatures OF
the respective states shall direct; that
congress may determine the time OF
choosing the electors and the day on which
they shall vote, Undoubtedly certificate
purporting to have been issued by tbs
proper authority showing the persons
named in it to have been properly chosen
on the day fixed by law as electors, anC
their own certificates Of the list of votes
cast by them, would entitle such votes
pJiBld fdcte, to be counted. But inquiry
investigation or knowledge of these mat
ters is necessary to determine whether thu
certificate Of election has been issued
by the proper officer, and whether thu
electors have met and cast their votes il
pursuance of law; for the laws of all tn
states may prescribe different modes o
electng and of certifying the election O
electors, and what would be regular an
formal in one state might be nullity i
another. A certificate might be regula
in form, purporting to be issued by tn
proper authority, and yetin fact be forgery
A greater number of persons might APP
pear to have voted than had a right I
vote, or persons might have voted VIII
were ineligible to the Office of elector
objection should be made to the countin
of the vote or votes mentioned on any {
these grounds, with offer of proof, woul
the body assembled to count the vote b
justified ia ignoring the objection and tn
objectorf Suppose that two differeI
bodies in state should claim the rigt
under the state law to canvass and certif
the returns for electors and one bod
should certify one set and the other tn
other; or that the body authorized to car
ton and illegally counted out the electol
chosen by the people and counted in thos
rejected, and both sets should meet an
send their votes in, would all these vote
be counted ministerialIy, or would objet
tons and testimony be heard, and only or
set from each state be counted? Or, SUI
pose two persons claim to be governor
a state, and it is the duty of the governt
he los nr hhat IL
election OF the electors, and one claimal
certifes one set and IL
other the other, will bot
of these be counted mInisterialy, or wi
objection and evidence be heard and IL
vote OF one set counted and the other +
iected2 Some Of the cases suppose
might be successfully dealt with und
the ministerial theory, but it would Re il
possible to maintain this attitude towa
others. As to how far enquiries should |
prosecuted to ascertain whether electo
have been chosen in accordance with Il
laws of the state when the state cour
have not interposed, and what charact
of ilegality or informality may proper
or safely be held to authorize the reje
ton of votes certified by those claiming
be electors. are questions OF too grave IL
portance to be determined except up
mature reflection and on the fac
of each particular case. But that I'll
body. assembled to count the elector
vote, are not confined merely to tall
sheets, but are charged with high al
important duties, partly ministerial part
judicial and partly political, have
doubt
But the lmost important questi
involved in this controversy is: In VIII