Year: 1876

/. .


Resides I'm the Two Houses.


The Philadelphia Times publishes an in
terview with Senator Wallace on the subject
OF the electoral count in which he saws:
The words of the constitution are. The
president OF the senate shall, in the presence
OF the senate and house Of representative.
open all the certificates, and the votes shall
that the president OF the senate
acts ministerially and has sole and
exclusive ISwer in both opening the
certificates and counting the votes? Or, does
il mean that he shall have power alone to
open, and the counting of the vote is to
be under the control and direction of the
two houses OF congress? IL it means the
former there is no power to arrest an
actual fraud, and the senate and house
are present az witnesses to the wrong;
II II means the latter a remedy may be
found. If the president of the senate be


vested with full power 10 count the votes


the language Is STRANGELY inaDpropr ate to
confer It, 1t is not ''he shall open the certi-
hcates and count the votes" but it is "he
shall open the certificates, and the votes
shall then be counted" When we take this
language in connection with the fact that
the senate and house are to be present
and with the unbroken line of precedents
since 1871, it seems pretty clear that
exclusive power 10 count the votes is not
vested in the president of the senate, but
power to count is given to some person or


some body. This power is not in the ..-.--si


for it is vital to the existence of r. s.1Ia


government; it is not reserved - .ne PeoP,e, .


for in the creation of thei,so' I'M .;s


parted with every p9gII; .Hs ~';s .;taI o"d


essential "a ..de existence and perpet-
nitv or <ne general government; for


;f .ne >fotes can not be counted, IL
,s4n not be known who is chosen, and the


-aachinery of the government is stopped.
This counting and the result thereof is the
elimination of the popular will, and from
the very necessity OF the case it inheres in
ana belongs to some agency Of the govern
ment of the United States 1t is the right
of the people TO appoint their electors; it is
the right OF the state to return its choice
through its electoral college. and it is
equally the right of the general government
to count that vote. What. then, is count
ing the vote? Before we can reckon, num-
ber or count the votes, We must first learn
whether they are votes. Mr.. Clay put this
very foreibly in 1924, in the Missouri case,
when he said: "Tbe constitution required
of the two houses TO assemble and


perform the highest duty that could de-
y olive on public body-to ascertain who


had been ekected by the people TO
administer their national. concerns. In
a case of votes coming forward which could


not be countea the constitution was silent,
but fortunately the end carried with it the


means. The TWO bOusas were called on 10


enumerate the votes for~.- president, of


course they were called on 10 decide what


are votes-'' The authenticity and validity


of the certificates presented, containing the


tally of the votes, are as much involved in


the execution of this great power, as are the
mere reading of the names and figures found


therein; and, as n consequence necessarily
| following this the regularity OF all prior
proceedings which resulted in the certificate
can be inquired into by the body
seal of the state is prtsna facie
proof that all is right, but it is no more.


The state is the people, not its mere organ
ism. If its broad seal be used 10 certify
fraud and the popular will legally expressed
can be clearly ascertained, the will of its


people overrides the primd fdcia proof. An
| inquiry into the facts i'm such a case is


necessary incident to the right TO count, or,


as Mr.. Clay says, it is a means to the end.


1t would be doctrine fraught with terrible
| consequences to our Institutions to hold
| that in matter 80 VITAL the government
of the United States was bound by the
| faithless performance of his duty by the
governor of state, or that it could not de
| termine whether the duties his own laws
| enJoined had been honestly or fraudulently


performed, or performed by the right
or the wrong person. The power to
count the votes, as | thus define il, / be-
| lieve resides in the two houses of congress
acting concurrently rs independent bodies,
and they have this power under the consti-
tuition and without regard to any joint rule.
! Their presence at the counting Is expressly
enjoined by the constitution. 1t is not one,


but both houses that are present Ere they


there as powerless spectators? The senator's
and members of congress from each state are
| there to guard the rights of their people and
| their state Gan il be that fraud inay be
perpetrated by the electors of q state in their
| return, and the senators and members there
from enjoined by the constitution to be pres
ent can do nothing to avert it? If there is


no choice by the-electoral college, the house


Immediately elects president How is


the house officially to know that
| there Is or is not choice. Are they
to learn this from an official who by the
constitution has not even seat within their


hall, or are they to learn it from their own
count and supervision? In the case of no


choice for vice president, the senate elects
one, and ID is from their presence and par


ticipation they learn officially that there is


no choice. The precedents all establish the
fact that the count is made by the senate
and house acting through tellers in the


presence of both houses Jointly assembled