156 



CONGRESS, UNITED STATES. 



gate, and determine the electoral votes. One 

 Senator has said that he had no greater power 

 than the Sergeant-at-Arms. I shall not be led 

 into a lengthy argument on that subject. I 

 simply want to state my view. I read from 

 Article XII. of the amendments to the Constitu- 

 tion : 



The President of the Senate shall, in the presence 

 of the Senate and House of Representatives, open all 

 the certificates, and the votes shall then be counted. 



" I will read a little further : 

 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 electors ap- 

 pointed ; 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. 



" I want to comment on this for a moment ; 

 a mere statement of the case will save elabora- 

 tion. It is utterly impossible that the framers 

 of that instrument could have intended that 

 the President of the Senate should be the con- 

 science-keeper of the House of Representa- 

 tives. It is an absurdity. Under a certain 

 contingency the House of Eepresentatives are 

 then and there ' immediately ' to elect a Presi- 

 dent of the United States: Upon the count of 

 the President of the Senate ? Not so, sir ; but 

 upon their own scrutiny, their own investiga- 

 tion ; not anybody else's neither that of the 

 Senate nor that of the President of the Senate. 

 How will they exercise that great duty which 

 is devolved upon them under this contingency, 

 except by making the scrutiny themselves, then 

 and there ? And that, let me tell the honor- 

 able Senator from Ohio, and the honorable 

 Senator from Delaware, is the reason why this 

 contrivance of theirs ought to sink into the 

 earth. I shall allude to that in another con- 

 nection. 



" Great reliance has been placed here by my 

 honorable friend from Indiana upon a certain, 

 not opinion it is not to be called an opinion 

 but a certain remark made by Chancellor 

 Kent in one of his lectures. It is not an opin- 

 ion. It lacks everything that goes to make up 

 an opinion. I read from Kent, vol. i. : 



The President of the Senate, on the second 

 Wednesday of February succeeding every meeting of 

 the electors, in the presence of the members of both 

 Houses of Congress, opens all the certificates, and 

 the votes are then to be counted. The Constitution 

 does not expressly declare by whom the votes are to 

 be counted and the result declared. In the case of 

 questionable votes and a closely-contested election, 

 this power may be all-important; and I presume, 

 in the absence of all legislative provision on the 

 subject, that thfc President of the Senate counts the 

 votes and determines the result, and that the two 

 Houses are present only as spectators, to witness 

 the fairness and accuracy of the transaction, and to 

 act onjjrjf no choice be made by the electors. 



" No lawyer of the eminence of Chancellor 

 Kent could, with thought and reflection, give 

 an opinion of that character. If, by the Con- 

 stitution of the United States, the power is 



placed in the President of the Senate, then it 

 is to be exercised by him, no matter what is 

 the character of the certificates which he has 

 opened or of the votes which are there. There- 

 fore this presumption of Chancellor Kent is 

 not worthy of the opinion of a lawyer of his 

 character. Then, 1 think, as I had the honor 

 of saying here a year ago and I have not 

 found it necessary to change my opinion that 

 the scrutinizing, the counting, and the deter- 

 mining of votes is not a part of the duties of 

 the presiding officer of the Senate. 



" Now I come to the second point : Is it 

 lodged in the House of Representatives ? A 

 very strong argument can be made, and has 

 been made, that the very fact that, under a 

 certain contingency, the House of Represent- 

 atives is immediately called upon to elect a 

 President of the United States, is sufficient evi- 

 dence that they are to determine whether a 

 President has been elected. In my judgment, 

 that does not follow. They are to be satisfied 

 by the examination which they make, as one 

 of the Houses, that there has been no Presi- 

 dent elected ; and, then and there, immediate- 

 ly after they have satisfied themselves of that 

 fact, the duty is devolved upon them by the 

 Constitution of the United States to elect a 

 President of the United States. Perhaps I 

 ought to say here, not to take up much time, 

 that it seems to me absolutely necessary, by 

 the very terms of the instrument, that they 

 must have the power to determine for their 

 own satisfaction the existence of the fact. 



" Then, I say, I differ with very eminent 

 lawyers, now residents of this city, who have 

 placed that position before the public mind, 

 while I agree that the House, by its own ac- 

 tion, must be satisfied that no candidate for 

 President has a majority of appointed electors. 

 If such be the opinion of the House, obtained 

 by a scrutiny of the votes after you, sir, have 

 opened the certificates, it is their duty to pro- 

 ceed then and there to elect, and they, and 

 they only, can determine. "What does the 

 Constitution of the United States mean when 

 it says that, unless a President is elected, then 

 'immediately' the House of Representatives 

 shall proceed to elect? It means that the 

 House must take action that the House must 

 determine whether a President has been elect- 

 ed ; and, if not, then to perform the duty which 

 the Constitution devolves upon it. 



The President of the Senate shall, in the presence 

 of the Senate and House of Representatives, open all 

 the certificates, and the votes shall then be counted. 



" "When ? Let us see whether you can con- 

 trive a commission and put this business into 

 their hands. ' The votes shall then be counted.' 

 When ? ' Then.' Then it goes on further to 

 say that, if a President is not elected by the 

 electoral colleges, the House of Representa- 

 tives shall choose ' immediately ; ' and * imme- 

 diately ' does not mean next week ; ' imme- 

 diately ' does not mean until after it has had 

 this matter in hand. It means then, instantly 



