Year: 1876

that the judgment of the two house


upon this subject may differ toto ccslt


They act, deliberate and decide in
dependently of each other, thougl
they sit in the same hall while th


votes are counting. They are no


fused into one body upon any question


within the jurisdiction Of both. Th


judgment of one is as potent as tn


other, and it is equally clear that eacl


must decide for itself how, when ant


in what manner the separate dutie


assigned to it shall be performed.


Now the Senate may think that thi


vote is not fraudulent, or it may be


lieve that fraud is and ought to be al
good and valid as truth, while the


House adheres to the opposite notion
and, acting upon its convictions, re
fuses to sanctify the fraud by adopting
it. What then? Does that bring the
organic machinery of the Government
to deadlock, so that it cannot move
without breaking to pieces? Certain.
ly difference between the two houses
must be followed by that disastrous
consequence, if it be true that each
has the same power over the whole
subject and over every part of it.


Let us see if this be the state of the
law as the trainers of the Constitution
made it. The power to count the
votes and decide upon their validity is
notgiveD in express words, but it comes
by clear implication from the duty of
electing a President and Vice Presi-
dent In case no candidate has a major
ity of the Electors. The subsequent
and immediate duty eff the House de-
pends upon the state of the electoral
vote for President. as the Senate ac-
ton must be governed by the vote for
Vice President The duty to do an
act upon certain contingency certain
lY implies the power to ascertain
whether that contingency has risen or
not. If the Senate thinks it right to
admit fraudulent votes and can find
enough of them to elect their candidate
they may install him in the chair of
their body, since there is no legal
authority in the House of Representa-
tives or elsewhere to stop them if they,
upon examination, believe that true
count of the legal votes gives no one
majority, and thereupon proceed to
make an election of their own between
the two highest. The House certain
ly cannot interfere. The House is
equally independent when engaged in
the performace of the duty separately
and specially assigned to it. If no can
didate has a majority of all the Elec-
toral votes, the Representatives of the
people In the lower house shall make
a choice from the three highest.


How is this duty to be rightfully
performed without ascertaining wheth
er any candidate has majority, and if
not, who are eligible as the three high
est, and by whom shall the fact be as
certained if not by themselves :? If
the House, upon what it belives to be
a true count of the votes, shall deter
mine that no one has majority, can
the Senate interfere and command the
House not to elect, or can it dictate to
the House the names of the three per-
sons from whom the choice is to be
made? To ask these questions is to
answer them, the Senate having moth
ing to do with the Presidential cleo
ton. has no duty to perform about it,
can pronounce no judgment upon it
that binds anybody.


For the same reason, the House
cannot interfere with the business of
electing Vice President, which the
Constitution has conided to the Senate.
Each is as far from the control of the
other as both are from the control OF
the Executive.


tThoro ;u n ioint rule of the two
houses by which they have mutually
bound themselves that neither house
shall count vote for President or
Vice President if the other decides to
throw it out. Whether this rule. is
in force or not makes no practical
difference in the present case on the
question between Tilden and Hayes.
The refusal of the House to count the
fraudulent votes, if it does not prevail
under the rule, must be made equally
as efectual under the naked Constitu-
tion."