Year: 1876




We think il of interest to examine what is
likely to happen when the two houses meet
in joint convention to count the electoral
vote on the l4th of February.


l. II is, we believe. taken for granted
that the twenty-second joint rule is no
longer operative. This seems to US
matter Of small importance. The rule
merely provided convenient details of the
proceedings by which the constitutional
duty Of the two houses could be carried into
effect 1t could confer no extra-constitu-
tional powers upon either house; its authors
did not. and of course would not, pretend
that it provided methods in violation OF or
contrary TO the constitution. mere joint
rule could authorize nothing of itself. 1t
could only. like any act of Congress, enforce
or carry into effect what the constitution had
previously authorized and commanded. II,
as is supposed the twenty-second joint rule
has fallen, and if some other form OF proc
edure under the constitution is needed in
its place, no doubt the common sense of the
two houses will provide another. We are not
at all sure that any new rule is needed. We
remark, however before passing to another
and more important confederation, that at
the last count, in February, 1873, very
curious colloquy took place upon this very
question in the Senate. Senator Anthony
asked the Vice President :--'I ask the Chair
if the Senate by unanimous consent can dis
pense with joint ruler" The Vice Presi-
dent replied, promptly and apparently
without hesitation, in the negative 1.-THE
Senate by unanimous consent cannot dis
pense with joint rule" The matter seems
President then, Mr.. Colfax, is thought high
authority on parliamentary law; and no
Senator at the time disputed his dictum.


2. When the electoral votes come to be
counted no doubt substantially the same
method will be used as on previous occa-
sions. The Vice President will open the
returns and hand them to tellers appointed
by both houses these will read the formal
returns, and thereupon, as is customary,
questions will be asked by Senators and
Representatives, intended to establish the
authenticity Of the returns, and the formal
accuracy of their attestation. In 1878,
for instance, Maine being the first State
said :-sI would inquire if that certif-
cate bears the signature of the Governor
of Maine?" and the joint convention paused
in its labors to have that point established.
The scrutiny in such cases is always close,
the proceeding being Of the highest impor-
tance and therefore solemn and formal and
intended to leave no room for subsequent
doubt or dispute.


3. 1t may happen at the next count, in
February. as it has happened in previous
cases, and notably in 1878, that the vote Of
some States will be objected to. In such
contingency the twenty-second joint rule
was a convenience, because it laid down be-
forehand the order in and method by which
the two houses would consider such objec-
tions. But, rs we have shown before, it was
q mere convenience. The rule could not
confer authority or rights on either house
or on the joint convention which the
constitution had not before given. No
one pretends that the rule violated or
transcended the constitution; both parties
in both houses in 1873 accepted its provis-
ions without question. While, therefore, in
the absence OF this rule the order and meth
DDS by which objections to the reception of
States vote may be changed, no one can
doubt that the fundamental provisions
which the twen.y-second rule was framed
practically to apply, exist now as they must
have existed before the rule was framed. The
twenty second joint rule prohibits debate on
any proposition which may be made, and
this prohibition of course falls to the ground
with the rule But the right of making,
hearing and voting on objections to the re-
ccption Of States vote must be funda-
mental, because it could not be conferred by
u mere rule 1t must have been founded on
the constitution, else Congress would have
been acting in violation of the constitution,
which is not to be supposed when so many
able and careful constitutional lawyers are
in both houses.


A. In 1878 the votes of Georgia, Arkansas,
Texas and Louisiana were formally objected
to on various grounds, and an examination
of the proceedings shows that most of the
leading republican Senators unequivocally,
by their remarks and their votes, accepted
the following positions as unquestionably
constitutional First, that the electoral
vote OF a State is proper subject for the
scrutiny of the joint convention second,
that it is equally within the power of the
two houses, acting separately, to scrutinize
it third, that the electoral vote of a State
NAV be thrown out. and fourth, that the OBJ
lection to it being sustained in one house,
the exclusion follows as matter of right.
Of course all the action in 1873 was taken
under the twenty-second joint rule; but
we repeat again that no one has ever pre-
tended, and no one can pretend, that a mere