CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



185 



the electors requires them to name in their 

 ballots the persons voted for as President and 

 Vice-President to make distinct lists to re- 

 turn the certificate of their vote to the Presi- 

 dent of the Senate and then it proceeds as 

 follows: 



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. 



44 The learned objectors upon the other side 

 stated yesterday that the word 'counted' was 

 the controlling word in the sentence, and that, 

 giving that word its proper and only signifi- 

 cation, the clause that I have read conferred 

 no other power upon the two Houses of Con- 

 gress than the power of enumeration. I re- 

 spectfully submit that the controlling word in 

 that sentence is 'votes' 1 'the votes shall then 

 be counted' and that the word 'votes' con- 

 trols the woru ' counted ; ' and when you refer 

 to the word ' counted,' you have to go back 

 and see what it is that you are required to 

 count. "What is it, may it please your honors, 

 that is to be counted ? It is ' the votes ; ' and 

 if those votes are cast by persons not duly ap- 

 pointed electors under the law of the State, 

 they are not votes ; and when you count them r 

 you count something the Constitution did not 

 authorize you to count. Therefore, in execut- 

 ing your duties under this clause, jou must, 

 before you count, ascertain what are votes. 

 Having ascertained what are votes, you count 

 those votes, throwing aside whatever ballots 

 you shall find that are not votes. Under this 

 article of the Constitution, and this particular 

 clause of the article, I respectfully submit that 

 there is in the two Houses of Congress a power 

 to determine what are votes. 



" Then the question arises as to how far you 

 shall go in taking testimony to determine what 

 are votes; but, as preliminary to that question, 

 I beg leave to add that, if the Constitution has 

 devolved upon the two Houses of Congress the 

 duty of counting the votes the true votes 

 and the necessary power of determining what 

 are the true votes, Congress possesses no power 

 to say what shall be conclusive and unimpeach- 

 able evidence of those votes ; but in the per- 

 formance of their high function the two 

 Houses must ascertain what are the true votes, 

 without any limitation placed upon them by 

 Congress, and without being so restrained that 

 they cannot go into the inquiry as to the truth. 

 Congress may prescribe modes of authenti- 

 cation, but merely modes of authentication as 

 aids, and not as conclusive evidence or re- 

 straints upon the Houses in their action. We 

 therefore submit that any legitimate evidence 

 going to determine what are the true votes is 

 proper and competent evidence before this tri- 

 bunal. 



"And, may it please your honors, upon the 

 question of whether you can go behind the 

 certificate of the Executive of the State, and 

 whether the certificate is conclusive or not 



upon Congress, I beg to refer you to a high 

 and most responsible authority an authority 

 that has the sanction of some of the most dis- 

 tinguished names that now adorn the passing 

 history of the Republic. In 1873 the question 

 came before Congress as to the counting of 

 the Louisiana vote. The electors met; they 

 voted ; they sent up to the President of the 

 Senate the certificate required by Article 

 XII. of amendments to the Constitution, 

 stating for whom they had voted, and inclosed 

 in that certificate so sent up the certificate of 

 the recognized Governor of Louisiana certify- 

 ing to their due appointment; and all their 

 proceedings were regular on their face from 

 beginning to end. There was no objection 

 made, and none intimated, to those proceed- 

 ings, because of their nonconformity to the 

 statutes of the United States. When that vote 

 was opened, objection was made to it; but, 

 prior to the time when the vote was opened, 

 it was understood that there was some difficul- 

 ty in reference to that vote, of some kind or 

 other. The Senate of the United States directed 

 its Committee on Privileges and Elections to 

 inquire into the circumstances attending the 

 election of the electors of that State. That 

 committee went into the inquiry ; it examined 

 witnesses, and they were also cross-examined. 

 All the facts that were needed and desired 

 lying behind that certificate were gone into 

 fully by that committee. Having gone into all 

 those facts, they made their report to the Sen- 

 ate. In that report, made February 10, 1&73 

 (which is to be found on page 1218 of the Con- 

 gretsional Globe, part 2, third session of the 

 Forty-second Congress), the chairman of the 

 committee, one of the honorable commissioners 

 whom I have now the privilege of addressing, 

 states as follows : 



If Congress chooses to go behind the Governor's 

 certificate and inquire who had been chosen as elec- 

 tors, it is not violating any principle of the right of 

 the States to prescribe what uhall be the evidence of 

 the election of electors, but it is simply going behind 

 the evidence as prescribed by an act of Congress; 

 and, thus going behind the certificate of the Gov- 

 ernor, we find that the official returns of the election 

 of electors from the various parishes of Louisiana 

 had never been counted by anybody having author- 

 ity to count them. 



"In the conclusion of the report Senator 

 Morton says : 



Whether it is competent for the two Houses, 

 tinder the twenty-second joint rule (in regard to the 

 constitutionality of which the committee here give 

 no opinion), to go behind the certificate of the Gov- 

 ernor of the State, to inquire whether the votes for 

 electors have ever been counted by the legal return- 

 ing board created by the law of the State, or whether, 

 in making such count, the board had before them 

 the official returns, the committee offer no sugges- 

 tions, but present only a statement of the facts as 

 they understand them. 



" Now, in reference to the power of the joint 

 rule of the two Houses, it is proper, before I 

 proceed further, that I should make a single 

 remark. That joint rule could give to the two 



