194 



CONGRESS, UNITED STATES. 



disposition of this measure. At the same time 

 I am not aware that any reasons have been 

 urged, any explanation given, by the Senator 

 from Indiana for the rescission of this joint 

 rule or for its amendment as he has proposed. 

 Without having given the examination or con- 

 sideration to this subject that its importance 

 demands, yet I have for a long time been of 

 opinion that the constitutionality of this rule 

 altogether may well be doubted. I do not 

 think that anywhere in the Constitution can 

 be found language in any degree constituting 

 the Senate of the United States a factor or an 

 actor in the election of the President of the 

 United States. The office was in the design 

 of the Constitution to be controlled by an 

 electoral college directly voted for by the peo- 

 ple. The practical workings of our Govern- 

 ment have made the office in effect subject to 

 direct popular election. The electoral college 

 has been a mere screen, which did not conceal 

 in any way from the people the individual for 

 whom their votes were cast, and in substance 

 therefore and practical effect the President 

 and Vice-President of the United States have 

 been elected directly by popular vote. Al- 

 though the form of the electoral college is still 

 maintained, it is nevertheless but a thin veil 

 between the popular wish and the result which 

 follows its expression. Also, I may say, fail- 

 ing to receive a majority of all the votes cast, 

 as required by the Constitution, the House of 

 Representatives, the popular branch of Con- 

 gress, is authorized and directed immediately 

 to proceed to ballot for a President and for a 

 Vice-President. But will any Senator show 

 me any clause of the Constitution, any impli- 

 cation which can be argued from any clause 

 of the Constitution, which gives this Senate 

 one particle of lawful power in controlling the 

 choice of a President or a Vice-President of 

 the United States? 



"This joint rule was passed in 1865. There 

 is much to be said in criticism of it indepen- 

 dently of the graver objection which I have 

 sought to state, and to which it seems to me 

 it is obviously open. The language of the Con- 

 stitution providing for the office of President 

 of the United States and vesting in him the 

 executive power is contained in the first sec- 

 tion of the second article. A portion of that 

 article, what may be termed the third clause 

 of the first section, lias been superseded and 

 annulled by the twelfth amendment, but a por- 

 tion of |}ie section still remains. It is in these 

 words : 



Each State shall appoint, in such manner as the 

 Legislature thereof may direct, a number of electors, 

 , equal to the whole number of Senators and Eepre- 

 sentatives to which the State may be entitled in the 

 Congress ; but no Senator or Eepresentative, or per- 

 son holding an office of trust or profit under the 

 United States, shall be appointed an elector. 



" The twelfth article, superseding the re- 

 maining clause of that section, provides : 



The electors shall meet in their respective States, 

 and vote by ballot for President and Vice-President, 



one of whom at least shall not be an inhabitant of 

 the same State with themselves ; they shall name in 

 their ballots the person voted for as President, and 

 in distinct ballots the person voted for as Vice-Presi- 

 dent : and they shall make distinct lists of all persons 

 voted for as President, and of all persons voted for 

 as Vice-President, and of the number of votes for 

 each; which lists they shall sign and certify, and 

 transmit sealed to the seat of the government of the 

 United States, directed to the President of the Sen- 

 ate. The President of the Senate shall, in the pres- 

 ence of the Senate and House of Kepresentatives, 

 open all the certificates, and the votes shall then be 

 counted. The person having the greatest number 

 of votes for President shall be the President, if such 

 number be a majority of the whole number of elec- 

 tors appointed ; and if no person have such majority, 

 then from the persons having the highest numbers, 

 not exceeding three, on the list of those voted for as 

 President, the House of Representatives shall choose 

 immediately, by ballot, the President. But in choos- 

 ing the President the votes shall be taken by States, 

 the representation from each State having one vote ; 

 a quorum for this purpose shall consist of a member 

 or members from two-thirds of the States, and a 

 majority of all the States shall be necessary to a 

 choice. And if the House of Kepresentatives shall 

 not choose a President whenever the right of choice 

 shall devolve upon them, before the 4th day of 

 March next following, then the Vice-President shall 

 act as President, as in the case of the death or other 

 constitutional disability of the President. The per- 

 son having the greatest number of votes as Vice- 

 President shall be the Vice-President, if such num- 

 ber be a majority of the whole number of electors 

 appointed ; and, if no person have a majority, then, 

 from the two highest numbers on the list, the Sen- 

 ate shall choose the Vice-President: a quorum for 

 the purpose shall consist of two-thirds ol the whole 

 number of Senators, and a majority of the whole 

 number shall he necessary to a choice. But no per- 

 son constitutionally ineligible to the office of Presi- 

 dent shall be eligible to that of Vice-President of 

 the United States. 



"Now, Mr. President, this joint rule is the 

 rule under which the electoral votes have been 

 counted since February, 1865, including the 

 election of Mr. Lincoln, the election of the 

 present President of the United States in 

 1868-'69, and again in 18T2-'V3. I confess 

 that I do not see where the power can possi- 

 bly be found which is assumed by the joint 

 rule, either as it now stands or as it is pro- 

 posed to be amended, giving the two Houses 

 of Congress right to say whether votes shall 

 be counted or not be counted. The Constitu- 

 tion declares that the electors of the States, 

 chosen in such manner as the people in those 

 States shall see fit to direct by law, shall have 

 their certificates of election signed and certified 

 &y themselves; and when they have been so 

 signed and certified shall then be sealed and 

 transmitted to certain officials of the Federal 

 Government. The duty of the President of 

 the Senate is simply ministerial. He is not 

 vested with discretionary or judicial functions. 

 There is no discretion whatever vested in him. 

 The language of the Constitution is simply 

 mandatory, that he 'shall,' in the presence 

 of the Senate and the House of Representa- 

 tives, open the certificates. He cannot even 

 count them. He cannot even inspect them, 

 except in the incidental and casual manner 



