be taken away by legislation. As the principal power is derived from the Constitution, the incidental power would stand with it superior to the legislative authority of Congress.

If the power to count the votes be not incidental to the power to receive and open the certificates, the President of the Senate has no pretense of claim to it. The absence of legislation might leave a default of power, but could not confer it on a functionary who had no other title to it. The Constitution does not make the election of President dependent on the count of the votes by any particular authority, but only upon the fact of receiving a majority of the votes. If there were no tribunal authorized to ascertain this fact, it might impose on the public bodies of the State the necessity of finding it out for themselves, and acting on their own judgment; but it would not entitle the President of the Senate to seize upon the vacant authority.

The Government is not exposed to such a casus omissus. It is admitted by Chancellor Kent that the legislative bodies could supply the alleged defect. They are, therefore, the best judges whether such a defect exists, or whether a true construction of the Constitution vests the implied power of counting in a fit and adequate tribunal, such as the two Houses of Congress. They have so decided, and have acted on that conclusion for more than eighty years. An established practice, uninterrupted and undisputed, ought to be accepted as law.

THE NOTIFICATION CERTIFICATES.

In

In 1797, in notifying the Vice-President of his election, the President of the Senate transmitted to him a certificate, which incidentally stated that the President of the Senate had counted the votes. No such formality was extended to the President. In 1825 the Vice-President was again favored in the same manner. 1801 a more singular certificate of the election of President and Vice-President was made; for it assumed also to certify what had happened in the House of Representatives. In 1805, 1809, 1813, and 1817, similar certificates were made. These are all since 1789; none such have been known for the last fifty years.

The first criticism on these papers is, that they seem to have followed the form of that of 1789; in which case, the procedure of the regular count by the two Houses, which has been practised ever since, had not been established, and the special President of the Senate, in the anomalous conditions of the then government, probably did himself verify the enumeration of the votes.

The more important observation is, that we must distinguish between the ambiguous senses in which the word "count" is constantly used. In one sense, it is a mere clerical enumeration of the votes, without the slightest particle of discretion. In the other sense, it involves a decision of what shall be counted as a vote, and includes a large element of judicial power. Now, it might well be that, at the counting by the two Houses, through their tellers, the presiding officer or the Speaker of the House, and the Clerks and many of the members, had gone through the enumeration, or had verified it, so as to be able to say, in the narrowest sense, that they had counted the votes; or that the presiding officer could certify that he had counted constructively. Everybody who chose to give the necessary attention to the process, publicly performed, might be said, in some sense, to count.

But, taking the count of 1797 as an illustration, Vice-President John Adams presided, and gave the first of these certificates to Jefferson, who succeeded him as Vice-President, while Mr. Adams himself was elected President. That counting was conducted according to a mode which had been prescribed by concurrent resolutions of the two Houses, adopted on the report of a joint committee raised for that purpose. Those resolutions specified every step in the process. They directed that the tellers appointed by the two Houses to examine the votes should make a list of them as they should be declared by a reading of them to the two Houses, and, when it was completed, should deliver the result to the President of the Senate, who should then announce to the two Houses the state of the vote and the persons elected.

The Journals of the two Houses show that the sealed packages of certificates were opened by the Vice-President and by him delivered to the tellers appointed by the two Houses; that they examined and ascertained the number of votes and made a list of them, and presented that list to the Vice-President, which was read. He thereupon declared to the two Houses the persons elected as President and VicePresident, and said that he did so "in obedience to the commands of both Houses of Congress expressed in their resolutions." That the presiding officer did in fact interfere, or had any power to interfere, with the official machinery of the counting, or with the process of the counting, or with the results of the counting, or that in the restricted function of announcing that result to the Houses over which he presided, he did or had power to do anything but obey the commands of the two Houses, is contradicted and disproved by the official records of the two Houses, and by his own public declarations at the time.

In whatever barren sense he may be said to have counted the votes, it exercised no influence over the results. The only authentic, official, and obligatory counting was exclusively by the two Houses of Congress.

The same statement is equally true of every case in which such a certificate was ever made. In one of those cases the votes of Indiana were disputed. The question was considered and debated by the Houses; and, as it made no difference with the result, it was indefinitely postponed; but the presiding officer was not even consulted about it.

As precedents to sustain the President of the Senate in assuming the power to count the votes in the sense merely of enumerating the votes, and still more in the sense of adjudicating on the authenticity and validity of the votes, the certificates are utterly worthless.

THE PRECEDENT OF 1857.

The action of President pro tem. Mason, in 1857, seems to have been misstated, unintentionally, by Senator Morton. Mr. Mason did not arrogate to the presiding officer any power to decide whether the vote of Wisconsin was valid, or to decide whether it should be counted. He repeatedly disclaimed any such power. The electors of Wisconsin, having been prevented by a snow-storm from assembling on the day prescribed by the act of Congress, met on the next day and voted. Many Senators and Representatives were of the opinion that the vote was illegal and void. As in the case of Indiana in 1817, Missouri in 1821, and Michigan in 1837, the vote, whether counted or not, made no change in the result of the election, and, in another respect, the question was even less important. In all those three cases the questionable votes were for the candidates who were elected; and, although those candidates had a majority without the questionable votes, the statement of the aggregate number of votes received by those candidates had either to include or exclude the questionable votes. In the Wisconsin case, the votes were for Frémont and Dayton, who were, in any event, the minority candidates; and the statement of the votes received by Buchanan and Breckinridge was unaffected by these votes, and showed a majority irrespective of them.

The tellers entered the votes of Wisconsin on their list, included them in the footing, and reported the result to the presiding officer. When the votes of Wisconsin were reached, objection was made; but the objectors did not seem aware of the usage of moving for a separation of the Houses in order to discuss and decide whether the vote of Wisconsin should be counted; and the presiding officer ruled that debate was out of order in the joint meeting. The process, therefore, went onneither of the two Houses having by a parliamentary method suspended the operation of the ministerial functions which, without such interposition, were being properly performed. The tellers made their report verbally; and the presiding officer obeyed the concurrent resolution by announcing to the two Houses the state of the vote and the persons elected. The tellers were about to make their report in writing, when, to enable the debate to be had, the motion was made and carried that the Senate retire to its own Chamber.

During the joint session, Senator Crittenden inquired, "Do I understand the Chair to decide that Congress in no form has the power to decide upon the validity or invalidity of a vote?" The presiding officer answered that he had made no such decision; that, "under the law and the concurrent order of the two Houses, nothing can be done here but to count the votes and declare the votes thus counted to the Senate and House of Representatives sitting in this Chamber;" and that further action could only be taken in the two Houses in their separate capacities.

Afterward the presiding officer said he "was not aware that what effect, if any," the irregularity in the vote of Wisconsin "would have on the votes" of that State can be decided by him. Nor is it his duty to "decide upon whom devolves the duty of determining what the effect may be." Senator Crittenden alluded to the presiding officer as having assumed "to declare the number of votes, involving the privilege of determining a presidential election and saying who shall be President, and said, "I protest against any such power." Senator Toombs said, "I join with the Senator in that protest." The presiding officer answered that "the presiding officer is utterly unaware that he has assumed the exercise of any such power." Senator Toombs: "I consider that the presiding officer has done so." The presiding officer said: "The concurrent order of the two Houses makes it the duty of the President of the Senate to announce the state of the vote, and the persons elected, to the two Houses assembled. That duty he has discharged, and none other."

Immediately after the Senate had withdrawn to its own Chamber, a debate upon the subject ensued. The written report of the tellers, the delivery of which to the two Houses had been intercepted by their separation, was submitted to the Senate. That report stated the aggregate votes of Frémont and Dayton, omitting the votes of Wisconsin; and stated those votes separately, with the date when they had been given. Mr. Mason, President pro tem., who had been the presiding officer of the two Houses in their joint meeting, again disclaimed in the most positive terms the assumption of power ascribed to him. He said:

"The Chair will further state to the Senate, as the result of the action in the Hall of the House of Representatives in counting the votes, that the duty was devolved upon the presiding officer there, by the concurrent order of the two Houses, to declare the result of the vote as delivered to him by the tellers. That declaration did not involve, in the opinion of the Chair, the validity or the invalidity of the vote of the State of Wisconsin. The declaration made by the Chair in the presence of the two Houses as to the gentleman who had been elected President was written down, and is in these words: 'That James Buchanan, of the State of Pennsylvania, having the greatest number of votes for President, and that number being a majority of the whole number of electors, has been duly elected.' Whether the vote of the State of Wisconsin be included or not, the declaration made by the presiding officer, that Mr. Buchanan had a majority of the votes, and that that majority was a majority of the whole number of the electoral votes, was strictly conformable to the fact."

Again the President of the Senate said:

"The presiding officer, in his own judgment, believed then, as he believes now, that he declared correctly, as the state of the vote, that James Buchanan had received the greatest number, and that that number was a majority of the whole number of electors, not undertaking to decide, and not having decided, whether the vote of the State of Wisconsin had been given to John C. Frémont or not—a power that the Chair utterly disclaims and never asserted."

HOW THE COUNTING HAS ACTUALLY BEEN DONE.

The course of procedure taken in the presence of the two Houses at the various elections, shows the same uniform recognition of their supreme authority in deciding upon the authenticity and validity of the electoral certificates.

The informality of the first election in 1789, and the fact that the course then pursued was never repeated, deprives it of all authority as a precedent.

1793.

At the second election of President Washington, in 1793, "the certificates of the electors of the fifteen States in the Union, which came by express, were by the VicePresident opened, read, and delivered to the tellers appointed for the purpose, who, having examined and ascertained the votes, presented a list of them to the Vice-President, which list was read to the two Houses, and is as follows, etc., 'Whereupon the Vice-President declared George Washington unanimously elected President,'

etc.

On this occasion the President of the Senate only opened, read, and delivered the certificates to the tellers; they examined, ascertained the votes, and presented a list of them to the President of the Senate, which list he then read to the two Houses. The function of the Vice-President was then, as it has always been since, purely a passive one. Where there has been any variation, it has been to invigorate rather than weaken the prerogatives of the two Houses.

1797.

At the election of John Adams in 1797, "the certificates of the sixteen States were by the President opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the Vice-President (Mr. Adams himself), which was read as follows, etc., whereupon Mr. Adams proceeded to discharge what he regarded as the duty of the President of the Senate.

"He addressed the two Houses as follows:

"Gentlemen of the Senate and House of Representatives: By the report which has been made by the tellers appointed by the two Houses to examine the votes, there are 71 votes for John Adams, 68 for Thomas Jefferson,' etc., etc., ' so that the person who has 71 votes, which is the highest number, is elected President, and the person who has 68 votes, which is the next highest number, is elected Vice-President.' The President then sat down for a moment, and rising again, thus addressed the two Houses:

"In obedience to the Constitution and law of the United States, and the commands of both Houses of Congress, expressed in their resolution passed in the pres ent session, I declare that John Adams is elected President of the United States for four years, to commence with the 4th of March next, and that Thomas Jefferson is elected Vice-President of the United States for four years, to commence with the 4th of March next."

1801.

At the election of Thomas Jefferson, in 1801, "the President of the Senate in the presence of the two Houses proceeded to open the certificates of the electors of the States, beginning with the State of New Hampshire, and, as the votes were read, the tellers on the part of each House counted and took lists of the same, which being prepared, were delivered to the President of the Senate, and are as follows," etc.

1805.

At the second election of Thomas Jefferson, in 1805, the same course of procedure was taken by the two Houses as at his first. The only difference worth remarking is thus reported in the annals of Congress:

"The President (Mr. Burr) stated that, pursuant to law, there had been transmitted to him several packets, which from the indorsements upon them appeared to be the votes of the electors of a President and Vice-President; that the returns forwarded by mail, as well as the duplicates sent by special messengers, had been received by him in due time. You will now proceed, gentlemen,' said he, 'to count the votes as the Constitution and laws direct;' adding that, perceiving no cause for pref erence in the order of opening the returns, he would pursue a geographical arrangement, beginning with the the Northern States.

"The President then proceeded to break the seals of the respective returns, hand

ing each return and its accompanying duplicate as the seals of each were broken to the tellers through the Secretary; Mr. S. Smith reading aloud the returns and the attestations of the appointment of the electors, and Mr. Clay and Mr. Griswold com• paring them with the duplicate return lying before them. According to the enumeration, the following appeared to be the result."

"After the returns had been all examined without any objections having been made to receiving any of the votes, Mr. S. Smith, on behalf of the tellers, communi cated to the President the foregoing result, which was read from the Chair; when the Vice-President said, ' Upon this report, it becomes my duty to declare agreeably to the Constitution that Thomas Jefferson is elected President of the United States for the term of four years from the third day of March next, and that George Clinton is elected Vice-President of the United States for four years from the third day of March next.'"

1809.

At Madison's first election, in 1809, "the certificates of the electors for the several States were, by the President of the Senate, opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the President of the Senate, which was read, as follows:

1813.

At Madison's second election, in 1813, "the two Houses of Congress, agreeably to the joint resolution, assembled in the Representatives' Chamber, and the certifi cates of the electors of the several States were, by the President of the Senate, opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the President of the Senate, which was read as follows," etc.

It is mentioned in the House proceedings that the returns for each State were severally read aloud by one of the tellers, and noted down and announced by the secretaries of each House."

1817.

At Monroe's first election, in 1817, "the two Houses of Congress, agreeably to the joint resolution, assembled in the Representatives' Chamber, and the certificates of the electors of the several States were, by the President of the Senate, opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the President of the Senate, which was read as follows."

"The tellers handed a statement thereof to the President of the Senate, who announced to the joint meeting the following as the state of the votes," etc.

1821.

At Monroe's second election, in 1821, in the Senate, "the certificates were, by the President of the Senate, opened and delivered to tellers appointed for the purpose, by whom they were read, except the State of Missouri.”

The two Houses then separated to consider that case, after which the record proceeds:

"Whereupon the two Houses having again assembled in the Representatives' Chamber, the certificate of the electors of the State of Missouri was, by the President of the Senate, delivered to the tellers, who read the same, and who, having examined and ascertained the whole number of votes, presented a list thereof to the President of the Senate, by whom it was read, as follows," etc.

The House proceeding states:

"The Senate again appeared, and took seats in the House as before.

"The President of the Senate, in the presence of both Houses, proceeded to open the certificate of the electors of the State of Missouri, which he delivered to the tellers, by whom it was read, and who registered the same.

"And the votes of all the States having been thus counted, registered, and the

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