AS TO THE OPENING OF THE VOTES.

The Constitution (Art. 11, Sec. 1, Sub. 3, and Amendment 12, Sec. 1) provides that "the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates."

At the time the provision that the sealed packages of votes to be transmitted by the electors to the seat of Government and addressed to the President of the Senate came before the Convention of 1787, it was a part of the scheme that the President of the Senate should open all the certificates in the Senate, and that the votes should then and there be counted; and that, in the event of a failure of choice by the electoral colleges, the Senate should immediately elect both the President and Vice-President. (September 4, 1787. 5 Elliott, 507.)

The report of the committee was modified, by providing that the President of the Senate should open all the certificates "in the presence of the Senate and the House of Representatives;" and then the election of President, on the failure of a choice by the colleges, was taken away from the Senate and given to the House of Representatives. (5 Elliott, 518, 519, 520.) But the power, on a failure of a choice by the colleges, to elect the Vice-President, remained in the Senate. The requirement that the certificates transmitted to the seat of Government should be addressed to the President of the Senate under seal, and that the packages should be opened in the presence of the official bodies which were to take jurisdiction of the facts and remedy any failure in the choice by the electoral colleges, was allowed to stand. These provisions were intended to secure the votes given by the electors, at their meetings in the several States, from being tampered with, until they should come into the actual possession of the two Houses.

The House of Representatives and the Senate had not only a right, but a duty and an official necessity, to know in the most authentic manner the result of the votes given in the electoral colleges.

In the first place, the House of Representatives, on the failure of a choice of President by the electoral colleges, was charged with the duty of electing the President. The fact of the failure of the colleges as specified and defined in the Constitution was the sole basis of the jurisdiction of the House to act. Its own means of "examining the votes for President and Vice-President" (such is the language of all the concurrent resolutions of the two Houses from 1793 to 1865, and of the joint standing rule by which they were replaced in 1865) was the only evidence provided by the Constitution of the fact on which the House acquired jurisdiction.

No judgment, certification, or act of any other official body, was interposed as a condition. The House is a witness of the opening of the certificates. It is an actor in the counting of the votes by its own tellers, and in its presence. "And if no person have" a "majority" of "the electors appointed, then from the persons having the highest numbers, not exceeding three, in the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President." Such is the imperative command of the Constitution. And, when the House has acted in such a case, there is no review of its action nor any appeal from its decision.

The Senate has a similar jurisdiction, on the failure of a choice of Vice-President by the electoral colleges, to elect the Vice-President. It has the same right, duty, and official necessity, to know the result of the votes.

In the second place, the two Houses of Congress have all the powers of verification of the electoral votes and their results which the Constitution and the laws supply or allow. Nobody else in the Federal Government has any such powers. The two Houses have always themselves made the count, and regulated its process and procedure by concurrent resolution applicable to each particular election until 1865. Then they did so by a standing joint rule. Doubtless they may do so, within constitutional limits, by legislation.

They are the most appropriate and the safest depositary of such powers in this respect as are to be exercised by the Federal Government. The Convention of 1787, until nearly the close of its deliberations, adhered to the plan of intrusting the elec

tion of President to the two Houses of Congress. When it finally adopted the system of electors chosen by the people or Legislatures of the States, it still, in case of a failure of choice by the electors, vested the election of President in the House, and of the Vice-President in the Senate. Those bodies are the general representatives of the people, and the depositaries of the legislative powers of the Government. No better, wiser, or safer trustees of the power to count the clectoral votes can be found in the nature of human affairs.

The President of the Senate has no constitutional power, by virtue of his office as such president, to do anything in respect to the counting but "to open all the certificates" in the presence of the two Houses. He has never done anything further except by virtue of an express grant of authority conveyed in concurring resolves or orders from the two Houses.

PRESIDING AT THE JOINT MEETING.

The House of Representatives has never parted with its right to retain its own presiding officer or to insist that its consent is necessary to the temporary appointment of a presiding officer for the two Houses. There is no constitutional provision nor any law giving the President of the Senate the right to preside over the two Houses when sitting together at the counting of the electoral votes. The two Houses assemble, not in the individual capacity of the members, but in the official capacities of those bodies. They assemble as a Senate and House of Representatives. If no positive provision for one presiding officer is made, the Speaker would preside over the House of Representatives. At the first five elections nothing is said in the recorded proceedings about a presiding officer. At Jefferson's second election the Speaker is described as occupying a seat "on the floor on the right side of the President of the Senate "-one of the exceptional cases in which the two Houses met in the Senate Chamber.

At Madison's first election, in 1809, John Randolph, a member of the House, objected to the President of the Senate being permitted to occupy the Speaker's chair without the formal invitation or permission of the House. Thereupon a motion was made and passed that, when the members of the Senate were introduced, the Speaker should relinquish the chair to the President of the Senate. Mr. Randolph then made a motion which was adopted, that the Senate be notified of this vote by a message, to show that its president would occupy the Speaker's chair by courtesy and not of right: "If not," he said, "it might appear that the President of the Senate took the chair as a matter of right. He said he knew that to many persons matters of this sort appeared to be of minute importance, but, in everything touching the privileges of this House as it regarded the claims of the other coördinate branches of the Government, he would stickle for the ninth part of a hair. It was well known that in England the privileges of the Commons had been gained inch by inch from the kings and nobles by a steady perseverance; and that man must have very little knowledge of mankind, indeed, who was not persuaded that those privileges might be lost, as they were gained, by gradual and imperceptible encroachment on the one hand, and tacit yielding on the other." At the succeeding election of Madison, in 1813, no resolution was adopted on this subject, but the record shows that "a message from the House of Representatives informed the Senate that the House is now ready to attend the Senate in opening the certificates and counting the votes of the electors of the several States in the choice of a President and Vice-President of the United States, in pursuance of the resolution of the two Houses of Congress; and that the President of the Senate will be introduced to the Speaker's chair by the Speaker of the House of Representatives."

In the joint session of the two Houses in 1817, Mr. John W. Taylor, an experienced parliamentarian, at one time Speaker of the House, addressed himself to the Speaker of the House; and Mr. J. B. Varnum, of the Senate, also an experienced parliamentarian, at one time President pro tem. of the Senate, addressed himself to the President of the Senate; thus respecting the separate existence and action of the two Houses, even when assembled in joint session.

At Monroe's second election, in 1821, when the two Houses were involved in the Missouri controversy, a resolution of the Senate, adopted February 13th, prescribing the mode of counting, provided that at the joint session the President of the Senate should preside. But the resolution, reported to the House by Mr. Clay, the great pacificator on that perilous occasion, provided that "the President of the Senate, seated on the right of the Speaker of the House, shall be the presiding officer of the Senate, and the Speaker shall be the presiding officer of the House." This resolution also was adopted on the 13th of February. Mr. Clay afterward offered a resolution, which was adopted, appointing a committee of two "to receive the Senate, conduct the President of the Senate to the chair, and the members to the seats assigned to them." The President of the Senate was conducted to the Speaker's chair, and the Speaker took a chair at his left hand. When the other votes had been counted and the votes of Missouri were announced and handed to the tellers, a member objected to receiving the vote of Missouri, on the ground that Missouri was not a State of the Union. The motion was thereupon made by a Senator that the Senate do now withdraw to its Chamber; which was carried, and the Senate withdrew accordingly. At the close of a debate in the House, Mr. Storrs demanded the reading of the resolution of the House prescribing the mode of counting compared with that of the Senate. An explanation then came out that the retirement of the Senate from the joint session was caused by the discovery of the discrepancy between the two resolutions. Afterward the House sent a message to the Senate for the purpose of continuing the enumeration of the electoral votes according to the joint resolution which had been adopted; and the Senate returned to the joint session. The counting was completed, and the vote of Missouri counted under the concurrent resolution, providing for an alternative enumeration of the votes with Missouri excluded and with Missouri included. The session continued under the House resolution, the two Houses acting under their respective presiding officers. On this same occasion the President of the Senate occupied the Speaker's chair by virtue of an express provision in the joint resolution on procedure. In defense of this feature of the programme Mr. Clay, who was chairman of the committee which reported it, said: convenience rendered it necessary for the Senate to meet this House here in its own Hall, it was due to that body by courtesy and propriety that the president should be invited to preside, he being the officer designated by the Constitution to perform a certain duty appertaining to the occasion which called the two Houses together."

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At the election of John Q. Adams, in 1825, the President of the Senate was invited to a seat on the right hand of the Speaker of the House. In this case the tellers, after the votes had all been opened and counted, "left the Clerk's table, and, presenting themselves in front of the Speaker, Mr. Tazewell delivered their report of the votes given, which was then handed to the President of the Senate," it being the evident intent of the teller, Tazewell, to recognize the Speaker of the House as no less a presiding officer than the President of the Senate.

At Jackson's first election, in 1829, no resolution was passed in regard to the presiding officer, but the record shows that the Vice-President "seated himself at the right hand of the Speaker."

At Jackson's second election, also, there was no provision for a presiding officer in the concurrent resolution, but on that occasion the President of the Senate occupied the Speaker's chair.

The President of the Senate has occupied the Speaker's chair at every one of the ten presidential elections which have succeeded the election of 1833, but, in every instance save one, by virtue of the express authority of a joint resolution of the two Houses, and never as a matter of right.

On some occasions the concurrent resolutions have in terms conferred the duty of presiding on the President pro tempore; sometimes when the Vice-Presidency has been vacant, and sometimes when it has not been vacant. The result is, that the power of the two Houses to designate the presiding officer at the joint session has been always recognized, and frequently exercised; and it is only by express or tacit

ANNOUNCING TO THE TWO HOUSES THE STATE OF THE VOTE. xvii consent that the usual and regular mode of acting by the respective presiding officer is waived, and a single presiding officer designated.

The function of the two Houses, when sitting together, has been carefully and jealously restricted to the mere counting; and all debate and all voting have been uniformly excluded. Whenever it became necessary to entertain debate or to vote, the Houses have generally separated, and acted in their respective Chambers. When they have acted at all while assembled in the same hall, they have acted separately and under their respective presiding officers. The result is, that, though the semblance of a presiding officer has been generally given to the President of the Senate while the mechanical process of counting was going on, he has really exercised none of the functions usually attributed to the presiding officer of a deliberative body.

ANNOUNCING TO THE TWO HOUSES THE STATE OF THE VOTE.

The President of the Senate has no authority, by virtue of his office as such president, to announce the result of the count of electoral votes made by the two Houses of Congress assembled in joint convention. Even where he has been expressly designated as their presiding officer by concurrent resolves or orders of the two Houses, he has never exercised any authority to announce the result of the count by virtue of his function as the presiding officer. In every case, from 1793 to the present time, whatever power he has exercised in this respect has been expressly granted, defined, and limited, by provisions of the concurrent resolutions prescribing the mode of counting the electoral votes on each particular occasion. In one wellknown case (in 1821) this power of announcement was granted to him by the House when he did not, but the Speaker did, preside over the House. No doubt, in the orderly course of business in a legislative body, its vote would usually be announced to it by its presiding officer; but that is simply because such is a convenient practice. The Speaker is the customary organ of the House for such purposes; but it is quite certain that in performing such a function he acts by the order of the House, and is subject to its commands. It is no less certain that the House can appoint some other organ to exercise this function if it chooses. If it may do so in respect to its own vote, still more may it do so in respect to the result of a count of votes of the electoral colleges made by it through its tellers. Now, it has so happened. that in every case, from 1793 to the present time, the two Houses assembled in joint convention for the purpose of counting the electoral votes have expressly prescribed the rules which have governed the announcement of the result of such a count. They have from time to time revised some of the rules which they have applied, but they have always prescribed rules which have been obeyed and have uniformly governed their proceedings.

In every case the two Houses have provided that the count should be by tellers of the two Houses, who have frequently been specially instructed by the two Houses as to how they should count; what votes they should admit, and what votes they should not admit. In every case they have prescribed that it was only after the votes had been publicly examined and ascertained before the two Houses; after they had been entered on a list; read to the two Houses, and the results of the enumeration on the lists computed; after the results so found by the tellers had been "delivered" by the tellers to the presiding officer, that any duty on the part of the presiding officer

arose.

In every case, from 1795 to 1861, inclusive; in eighteen successive countings, these conditions were expressly prescribed in respect to the one particular counting to be regulated on each occasion. At the three countings of 1865, 1869, and 1873, the same conditions were applied under the standing joint rule; which codified the practice in the following words:

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One teller shall be appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, the certificates of the electoral votes; and the said tellers, having read the same in the presence and hearing of the two Houses thus assembled, shall make a list of the several votes as they shall appear from the said certificates;

and, the votes having been counted, the result of the same shall be delivered to the President of the Senate."

Such are the conditions which must have been fulfilled in virtue of formal orders prescribed by the two Houses, at every one of the twenty-one countings from 1793 to 1873, inclusive, before the presiding officer could act at all.

After all these conditions have been complied with, his authority in respect to announcements commences.

In 1793 it was expressed in these words; "who shall announce the state of the vote and the persons elected, to the two Houses assembled as aforesaid."

In 1801 and 1805 the announcement was of "the state of the vote" only, and not of the persons elected. In the joint rule of 1865 the words are; "the state of the vote and the names of the persons, if any, elected."

The concurrent orders in 1801 and 1805 had another peculiarity. They provided that "the state of the vote shall be entered on the Journals, and, if it shall appear that a choice hath been made agreeably to the Constitution, such entry on the Journals shall be deemed sufficient declaration thereof."

These instances illustrate how completely the two Houses by their concurrent resolves or orders have controlled both the manner and substance of the announcement to the two Houses assembled in joint convention. It has already been mentioned that in 1821 the resolve or order of the House of Representatives authorized the President of the Senate to make the announcement, though he did not, and the Speaker did, at the time preside over the House.

An inspection of the resolves or orders of the two Houses under which the countings have been had, an analysis of their exact terms and of the nature and effect of the acts done under them, demonstrate that the President of the Senate or other presiding officer never had any independent power over even the announcement of the result of the count, never had any power except to do as he was commanded by the affirmative concurrent orders of the two Houses. Still less would he have power to revise or alter the results delivered to him by the tellers, or to intermeddle in any manner with the tellers in "examining and declaring the votes," in making the lists or enumerating the results, or in obeying the instructions of the two Houses as to what should or should not be admitted as votes and counted.

Such an assumption of power would be as naked usurpation on the part of the President of the Senate or any other presiding officer as if the same power should be assumed by the Clerk, or by a messenger or page of one of the Houses.

The law is well stated by John Adams, Vice-President, and President of the Senate, in 1797, when he announced "the state of the vote and the persons elected to the two Houses assembled" in joint convention.

"In obedience," said he, " to the Constitution and law of the United States, and to the commands of both Houses of Congress expressed in their resolutions passed in the present session, I now declare that John Adams is elected President,” etc.

CHANCELLOR KENT'S "PRESUMPTION."

Kent, in his "Commentaries" (vol. i., p. 277), says:

"The Constitution does not expressly declare by whom the votes are to be counted. 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 the President of the Senate counts the votes and determines the result; and that the Houses are present only as spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors."

This remark was written more than fifty years ago, and is one of those hasty suggestions which it was a characteristic of the venerable chancellor, in his judicial career, candidly to correct. Indeed, he does not seem to have had confidence in it himself. He makes the power in the President of the Senate, if it exist at all, dependent on the absence of all legislative provision on the subject.

The power to count the votes is not a necessary incident to the power to receive the packages and open them in presence of the two Houses. If it were, it could not