CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



197 



I humbly submit that it is most manifest that 

 he has none but the merest of clerical powers, 

 nor any ability to do anything except to open 

 the packets at that time and at that place and 

 in that presence. He cannot even know what 

 is in the packets until he opens the packets. 

 But it is manifest that the packets which he 

 thus opens may raise a decision by some au- 

 thority of a preliminary question that is to 

 say, What are the votes in respect to which a 

 count may take place? no person or func- 

 tionary or body being specially pointed out as 

 having power to make that count. Now, a 

 great deal has. been said which I consider not 

 very applicable or very instructive in-reference 

 to this word 'count,' as if it were the opera- 

 tive and principal word here, and were used 

 to determine the faculty and point out the 

 power of those who have authority to count. 

 Now, I humbly insist that the count itself is so 

 purely a simple arithmetical process, that in 

 reference to it there never could be a possible 

 difference of opinion anywhere or among any 

 persons. 



"I apprehend that there is a word in this 

 constitutional provision that ought not to be 

 overlooked. The President of the Senate is to 

 receive these packets. They are not required 

 to have any note or ear-mark of any descrip- 

 tion to indicate to him what they are, and he 

 can only learn by external inquiry or report 

 that they are sent him by persons pretending 

 to be electors of President and Vice-President ; 

 4nd the Constitution, proceeding to declare his 

 duty, says that he shall ' open all the certifi- 

 cates.' The word ' all ' would perform no 

 function, and it would be entirely useless, if it 

 were to be confined to indicating the certifi- 

 cates before spoken of. The simple phrase 

 'shall open the certificates' would suffice; 

 but he is to ' open all the certificates ; ' and 

 this provision of the Constitution, not granting 

 powers of investigation but dealing with vis- 

 ible facts, declares that he shall 'open all the 

 certificates.' This, I apprehend, means all 

 packets that may have come to him under 

 color of being such packets as the Constitution 

 refers to: that is, packets containing electoral 

 votes, or appearing to be of that character. He 

 is bound to open all such packets in the pres- 

 ence of the Houses, and there ends his duty. 

 But when we come to the prescription that 

 there shall be a count, we are not told 

 that there shall be a count of all the certifi- 

 cates presented, or of the certificates, or of 

 anything in the certificates, but that there 

 shall be a count of ' the votes.' This, I hum- 

 bly submit, introduces a necessary implication 

 that somehow and by some authority there 

 shall be made, if necessary, a selection of the 

 actual votes from the mass of papers produced 

 and physically present before the Houses. Any 

 investigation that this nature of the case may 

 happen to require in order to determine what 

 are ' the votes ' must be made by some func- 

 tionaries having competency to make it. This 



is a preliminary inquiry ; and whether you de- 

 nominate it judicial or ministerial or executive, 

 it is to be an inquiry, and the power to insti- 

 tute or carry it on is neither granted in terms 

 nor are there any possible means of its exer- 

 cise, so far as the President of the Senate is 

 concerned. This is left to an implication that 

 it is to be exercised by those who may have 

 occasion to act officially on the result of the 

 electoral vote. 



" Who are they that are to act officially by 

 the terms of the Constitution in performance 

 of duty resulting from the count of the votes ? 

 The Constitution is plain. The votes mean- 

 ing, of course, thelegal votes are to be counted. 

 The count is the merest ceremony in itself; 

 but the ascertainment of what are legal votes 

 presented necessarily devolves upon that body 

 or those bodies that must act on that which 

 is produced as a result by the count. The au- 

 thorities compelled by duty to see that the 

 count is justly and truly made, and to act on 

 the result, are the two Houses. 



" Unquestionably the first and primary duty 

 of the Houses, if there is a count showing the 

 election of a person to the presidency and 

 another to the vice-presidency, is to recognize 

 them as constituting that coordinate depart- 

 ment of the Government called the Executive. 

 As to a mere count, all the world may make 

 it; no mortal man can doubt about the effect 

 of a count; but I presume the general world is 

 not called upon to act in reference to the count 

 until that count has been officially recognized 

 by some lawful authority. But what is more 

 certain is this : It is the duty of the House of 

 Representatives at that point in the process to 

 determine whether an exigency has arisen 

 which renders it their duty to recognize that a 

 person has been elected as President by a ma- 

 jority of votes of the legal votes or whether 

 there has been a failure to elect by reason of a 

 tie; and in that event, if it should occur, that 

 House is bound to act upon the result, and in 

 this exigency itself is to elect a President. 

 The same observations apply to the Senate 

 with reference to the Vice-President ; that 

 body is bound, in like manner, to recognize the 

 fact of an election, to allow it, admit it, and 

 accept it as a fact, or to deny it and say that it 

 is not- so, and themselves to proceed in the elec- 

 tion of a Vice-President. 



"I attach no importance to the word 

 ' count ; ' but I claim, from the very nature of 

 the thing, from the laws inwrought into the 

 constitution of human beings and governing 

 human transactions, that those who have thus 

 to act officially on the count are the persons 

 who must do whatever may be needful for the 

 purpose of enabling a count to be made. 

 Those who are bound to act in the one direc- 

 tion or in the other, as the case may require, 

 must possess the power of making any prelim- 

 inary investigation that may become neces- 



sary 



" The result of this construction is, that that 



