Year: 1876

Donald, Chief Clerk OF thesscnate, has prepared an
exhaustive history Of the twenty second joint rule
and all that has transpired concerning 1t In Congress
Besides having experience OF than forty years
In the Senate Major Mcdonald regarded BY the oldest
Senators rs an authority ON parliamentary rules
and usages Whenever any question arises In the rou-
tine OF business in tho Senate the matter which he
has bsen compiling will be Submitted to the Senate
through one Of It's members, IS preliminary to any
agitation Of tho subject which is likely to como mp
as his views eLtited to high credit and may be
regarded as competent authority.


Your correspondent called Major Mcdonald In
order TO get statement Of what would be the sub
stance OF this important paper. The following inter-
view was had with him q


"Major, 1t is understood that you are preparing, In
your capacity OF Chief Clerk important paper 10
be submitted to the Senate pertaining to the twenty
second joint ruc and the counting OF the elcctorai
vote"


Major McDoxALD-Now with regard 10 this twenty
second joint rule will say Ars that the constitution
Of the United States states the in which the
vote for President and Vice President shall be
mitcd 10 the President OF tho Senate says that tho
President Of the Senate shall open the certificates
and the votes shall then DO counted. bus goes
no further II confers no power upon the Senate or
upon ING nouso oI representatives, III eIulss W ~
further than that they are to be present From
1859 down 10 1865 the two houses would
make arrangement BY which tho, votes
counted The usual mode was to appoint a joint
mission Of the two houses to report the manner In
which the electoral vote should be counted That
mission would generally consist Of three members OF
the Senate and Ave Of the House, and would report
. method OF counting the electoral votes,
which would bo that tcllers should be appointed
on the part Of tho Senate and on the part Of the
House, and the houses should meet together the
second Wednesday Of February when tho certificates
should be opened by the President OF the Senate and
the electoral votes be then counted. This was the
practice until the twenty second joint rule adopted
in 1855. When tho twenty second joint rule vas
adopted Il was known beforehand that there
would DO questions raised as to tho legality or
formalty Of certain electoral votes from somo Of the
Southern States and this rule provided that the Prcs
dent OF the Senate should bc the presiding officer OF
the two houses in this joint meeting. and the Prssi-
dent Of the Senate was made tho presiding
officer, and 1t provided that when objection was
made 70 the counting OF electoral voto
the presiding officer should state the objections to tho
two houses and that tho Senate should Immediately
RETRO to Its chamber and deliberate" The House, OF
course remained In It's chamber, and tho question
TO whether vote should be counted or not TO
bc determined in either house without debate. This
rule provided that to admit vote to be counted the
OF both houses should be requisite but to
exclude It nm objection Of ono House
was sdficient That made II "a negative pregnant
That is TO say, 70 exclude electoral vote onchaif
OF Congress- was competent admit It required both
houses. Now the constitution nowhere mentions the
Senate except that shall bc present at the counting
of the electoral votes II provides that in Of
failure 10 elect President and Vice President
by the people, the House Of Representatives shall
then choose President and IN that event the Senate
Is not required by the constitution to be present and
has no voice in the matter There is power in she
constitution granting TO the Senate House TO de.
termine the validity legality Of any electoral
turn. have nowhere seen in tho constitution any
such grant Of power. The constitution provides
for the succession to the Presidency in tho Of tho
death or inability OF the President and says that tho
Vice President shall succeed that Office and perform
tho duties and in the clause It empowers Con-
gross make provision in case Of the death or
ability Of both tho President and vico President


Acting upon that grant oil power Congress passed the
act OF March l. 1872, the ninth section OF which fixes
the to the Presidency, in Of the death
OF tho President and Vice President inability o
both OF those officers to act; but no similar
power is granted In reference TO the count
ing OF the electoral votes; that says th,
certificates shall be opened in the presence Of the Sen
and House, and the votes shall then be counted
Had the constitution said I'm such manner as tho two
Houses may direct" Congress would have possessed
ample power under that grant, but 1t Is silent In the
case OF Wisconsin. that to readily than
any other, there several other instances. The
Electors met on the day afier that fixed by law for
the meeting OF the Electors in the several States ard
In that respect IL . compliance, failure 10
comply with the requirements Of the law; then the
electoral votes counted the second Wednesda
In February 1851 Tho President OF the Senate
pro tenn, james N. Mason, OF virginia, opened
all the certificates and handed them to
the telcrs and they read counting those OF Wis
consin and in pursuance OF the torms Of resolution
which reported BY the Joint Committee appoin ted
70 prepare mode and manner OF counting ths cleo
toral votes, declared that James Buchanan duly
elected President, and John G. Breckenridge Vice
President OF the United States. After he mad made
that declaration member from the State Of Kentucky
by tho name Of Humphrey Marshall, and raised
. question of order, to w.t. Had the President pro
tenn Of tho Senate the right TO declare to decide
whether, or not the Of tho State OF Wisconsin
should be counted The President Of the Senate pro
tenn, Mr.. Mason, refused 70 entertain the question
oil OIucI. uuu tueIcupOu tuo CuuI pTOCOeueu
back tho Scn1te Chamber followed by tho members
OF Senate, without Whiting for any question bc
put to tho joint meeting There wero proceedings in
the Senate, but attended with definite action sr
William riglef, Of Pennsylvania, from tho Joint Com
mittcc mado report, but don't remember what il
was now. Mr. Butler, from South Carolina, introduced
JOINT resolution covering the that was then in
point but nothing done with either the report OF
Mr.. Bigler or Mr.. Buffers joint resolution. They
laid tho table, that tho only was that
the President OF tho Senate, in the presence
OF the House, opened those certificates, and
counted tho votes including those OF Wisconsin,
and when the question OF order was raised
tho admissIbity OF the vote OF Wisconsin tho
President Of the Senate refused entertain the ques
tIon and icn the chair. have prepared statement
in which give the prelimn ry proceedings and those