CONGRESS, UNITED STATES. 



179 



that vote, if there is any fraud or irregularity, 

 there is no possibility of knowing it, there is 

 no possibility of correcting it, because the 

 sealed package is not to be opened until the 

 very moment the vote is to be counted in the 

 presence of the two Houses. It seemed never 

 to have occurred to the members of the Con- 

 vention that there could be two sets of elect- 

 ors ; it seems never to have occurred to them 

 that there would be fraud or corruption or any 

 reason why the votes of electors should be set 

 aside. It is clearly a casus omi&sus, a thing 

 overlooked by the framers of the Constitution, 

 and there is no place to contest the vote either 

 of the electors by the people, or by the Legis- 

 lature, or the vote of the electors for Presi- 

 dent, because all that they have done is to be 

 absolutely sealed until the very moment when 

 the vote is to be counted. 



" Then, Mr. President, how is the vote to be 

 counted ? I come to that as the next consider- 

 ation. The Constitution provides that the vote 

 shall be sealed up when it is cast by the elec- 

 tors, and sent to the President of the Senate, 

 and that he shall open the sealed paper in the 

 presence of the two Houses, 4 and the votes 

 shall then be counted.' The two Houses are 

 to come together, and they are to be as wit- 

 nesses merely. They cannot act together as a 

 joint convention; they cannot vote as one 

 body. There is no function that they can per- 

 form when they are together. They are there 

 simply as witnesses. The vote is to be sealed 

 up and sent to the President of the Senate, and 

 he is to open it in the presence of the two 

 Houses, but the two Houses thus assembled 

 can do nothing, whatever may be the irregu- 

 larity, whatever may be the wrong visible on 

 the face of the papers. They cannot act to- 

 gether as a joint convention ; they cannot act 

 as one body; they cannot act as separate 

 Houses in the presence of each other ; but the 

 Constitution says * the vote shall then be 

 counted.' That is all that is to be done. 



" Now we see the power which is given to 

 the President of the Senate, ordinarily the 

 Vice-President of the United States. The 

 sealed votes are to be sent to him and he is to 

 open them in the presence of the two Houses, 

 4 and the votes shall then be counted.' Sup- 

 pose there are two sets of electoral votes, as 

 from Louisiana at the last election, sent up to 

 the Vice-President ; he has two packages, and 

 he causes both to be opened in the presence of 

 the two Houses ; who shall determine which 

 set shall be counted ? The one handed over 

 by the Vice-President to be counted must be 

 counted. The choice is left with him. There 

 is no earthly power to correct it. If in the 

 case of Louisiana the Vice-President had 

 handed over to the tellers the electoral votes 

 that had been certified to by McEnery, they 

 must have been counted ; there was no power 

 to prevent it ; or, if on the other hand he had 

 handed over those that had been signed by 

 Kellogg, they must have been counted. The 



two Houses together could do nothing. The 

 two Houses separately could do nothing. This 

 is a case where this great power is vested in 

 the hands of the Vice-President because of an 

 omission in the Constitution. There is no 

 power provided anywhere to determine which 

 of these two sets of electoral votes should be 

 counted, and it depends upon him as to which 

 set he will hand over. 



"See what a vast power is placed in the 

 hands of the Vice-President. He may under- 

 stand, as likely he will, the contents of the 

 different papers that are placed in his hands, 

 and he may be a candidate himself for election. 

 That has so happened six times. It has hap- 

 pened six times that the Vice-President has 

 opened and counted the votes where he him- 

 self was a candidate. John Adams as Vice- 

 President opened and counted the votes and 

 declared himself elected in 179T. Mr. Jeffer- 

 son as Vice-President opened and counted the 

 votes in 1801, when he was a candidate for 

 President, and he declared the vote to be a tie. 

 Suppose in that case there had been two sets 

 of electoral votes from a State, certified to, and 

 in his hands, one of which would have made a 

 tie, and the other of which would have elect- 

 ed him President ; there was no constitutional 

 power anywhere to prevent him from handing 

 over that set which would have elected him- 

 self as President. Nor could his action have 

 been revised in any possible way. Again in 

 1821 Mr. Tompkins counted the votes when he 

 himself was a candidate for reelection as Vice- 

 President. In 1837 Mr. Van Bureu counted 

 the votes and declared himself elected President 

 of the United States. In 1841 Mr. Johnson 

 counted the vote when he was a candidate for 

 reelection as Vice-President. In 1861 Mr. 

 Breckenridge opened and counted the vote 

 when he. was a candidate for President. True, 

 it was done honestly in all these cases ; but 

 suppose a case where the election is close, 

 where by opening one set of papers the Vice- 

 President is to be elected President, and by 

 opening another set he is to be defeated, or 

 where by refusing to count at all the vote of a 

 particular State the result will be to elect him 

 or to elect the candidate of his party ! You 

 see what a monstrous and irresponsible power 

 has been placed in the hands of the Vice-Presi- 

 dent or the President of the Senate. 



"I have spoken of the theory of the elec- 

 toral college; and now let us consider how 

 completely it has failed, let us see how com- 

 pletely that theory has been reversed in prac- 

 tice. What was the theory ? That the Presi- 

 dent should not be elected by the people- the 

 people could not be trusted but the election 

 was to be vested in the hands of select men, 

 who were to come together and act as delib- 

 erative, independent bodies. They were all to 

 vote on the same day, so that there should be 

 no collusion between them. The votes could 

 not be cast on different days, where there 

 might be correspondence with different States 



