Ottumwa weekly courier. (Ottumwa, Wapello County, Iowa) 1872-1899, 1877-01-17
COUNTING THE VOTE.
Views Of the Hon. James F. Wilson
a Clear and comprehensive state.
ment Of the Legal P0lnts.
70 the Editor az Hawk-Eve.

4 Many Of the men who composed
the first congress of the United States
had participated in the .deliberationl
of the body which framed the consti
tuition, or had been members Of tho
conventions of the several states il
which the instrument had been con
sidered and adopted.
The first concurrent action of tht
| two houses of congress brought these
men to the precedent relative to the
4 opening and "counting of the votes
Of the electors of the several states in
the choice of president and vice.
president Of the United States" Or
page sixteen and seventeen of volume
one, of the annals of congress, it ap
pears that on the 9th of April, 1883
in the first session of the congress oi
the United States, the senate took ac.
ticn as follows, viz:
"Richard Henry Lee, from Virgin
10, then appearing took his seat, and
formed q quorum of the whole sena-
tors of the United States"
"The credentials of the members
present being read and ordered to be
filed, the senate proceeded, by ballot,
to the choice Of q president for the
sole purpose of opening and count
ing the votes for president of the
United States. John Langdon was
elected.
Ordered, That Mr.. Ellsworth in
form the house of representatives
that o quorum of the senate is form
ed /; that president is elec}ed for the
sole purpose of opening the ccrtiti-
Gates and counting the votes Of the
electors Of the several states in the
choice of president and vice-presi-
dent of the United States; and that
the senate is now ready in the senate
chamber, to proceed, in the presence
of the house, to discharge that duty ;
and that the senate have appointed
one of their members to sit at the
| clerks table to make list of the votes
as they shall be declared; submitting
it to the wisdom of the house to ap-
point one or more of their members
for the like purpose"
On being notified of this action by
the senate, the house of representa-
tivcs adopted resolution in response
as follows, viz:
"Resolved, That Mr.. Speaker, at
tended by the house, do now with
draw to the senate chamber, for the
purpose expressed in the message
from the senate; andthat..Mr. Parker
and Mr.. Huster be appointed, on the
part of this house, to sit at the clerks s
table with the member of the senate,
and make list of the votes as they
shall be declared.-Ibid, page 50.
"Mr. Ellsworth reported that he
had delivered the message; and Mr..
Boudinot, from the house of represen-
tatives, informed the senate that the
house is ready forthwith to meet
them, TO attend the opening and
counting Of the votes of the electors
of the president and vicc-president of
the United states.
"The speaker and the members of
the house of representatives attended
in the senate chamber; and the pres
ident elected for the purpose of count
ing the yotcs, declared that the senate
and house of representatives had met
and that he, in their presence, had
opened and counted the votes of the
electors for president and vice-prcsi-
dent of the United States," etc.-Idid,
page II.
These proceedings declare clearly
the construction which the first con-
gress put upon that clause of the con-
stitution of the United States here
quoted, viz:
The electors "Shall make distinct
lists Of all persons voted for as prcsi-
dent, and of all persons voted for as
vice-president and of the number of
votes for each, which lists they shall
sign and certify, and transmit, sealed,
to the seat of government of the Unit
ed States, directed to the president of
the senate; and tho 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"
The construction given to this pro-
vision of the constitution, by the men
who made it, and those who consider
ed it in the several state conventions
rs disclosed by the foregoing proceed
ings, beyond all reasonable doubt is
that it is not the duty of the presi-
dent of the senate to simply open the
certificates in the presence of the two
houses, but to count them. And this
forces every candid mind to the con-
clusion that the result of the action of
the president of the senate must be
based solely on the face of the re-
turns.
Both Kent and Story entertained
this view of the subject. The former,
in commenting on this provision of
the constitution, remarks: "The con-
stitution does not expressly declare
by whom the votes are to. be counted
and the result declared. In the case
of questionable votes, and closely
contested election, this power may be
all important; and presume, in the
absence of all legislative provision on
the subject, that the president of the
senate counts the votes and deter
mines the result, and that the two
houses of the senate 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."-I. Kent's CON-, 2T7.
Story says: "In the original plan,
as well as in the amendment, no pre-
vision is made for the discussion or
decision of any question which may
arise as to the regularity and authen-
ITCHY of the returns of the electoral
votes, or the right of the person who
gave the votes, or the manner or cir
cumstances in which they ought to be
counted. It seems to have been taken
for granted that no question could
ever arise on the subject, and that
nothing more was necessary than to
open the certificates which were pro-
duced, in the presence of both Houses,
and to count the number Of names as
returned.'-Story on the Con-, Vol.II.,
p. 3D3.
The precedent above presented as
that in which the first Congress con-
strued the provision of the Constitu-
tion under consideration, and the
opinions of the two learned comment
ators cited, are wholly non-partisan.
No men were more careful in giving
expression to opinions relative to the
true meaning Of the Constitution than
those who gave it form and partici-
pated in its adoption. They were
fresh from their labors when they es-
tablished that first precedent. No
commentators upon our Constitution
have been more scrupulously careful
than Kent and Story. When such au-
thoritics all concur no one will 20
widely wrong by accepting their
conclusions. Much safer guides are
they than the opinions which antago-
nize them, having their origin in the
Excitement of the present juncturc Of
our national affairs.
i In the matter of the appointment OF
electors for the choice of President
and Vice President, the Constitution
expressly provides that scach State
shall appoint, in such manner as the
Legislature thereof may direct,a num-
Der Of electors equal to the whole
number of Senator'S and representa-
tives to which the State may bc cnti.
tied ir Congress-"
The electors may, under the pro.
vision, be appointed by the legisla.
ture itself, or that body may provide
for their election by general ticketol
i a. "a s.th hty nI<