tive, or person holding an office of trust or profit under the United States, shall be appointed an elector,' ought to be carried in its whole spirit into rigid execution, in order to prevent officers of the General Government from bringing their official power to influence the elections of President and Vice-President of the United States. This provision of the Constitution, it is believed, excludes and disqualifies deputy postmasters from the appointment of electors; and the disqualification relates to the time of the appointments; and that a resignation of the office of deputy postmaster, after his appointment as elector, would not entitle him to vote as elector under the Constitution."

This was the only instance in which the question of the ineligibility of electors on this ground has been raised since the Constitution has been in force.

"TO MAKE A LIST OF THE VOTES."

At every presidential election since the first, down to 1865 the tellers were instructed by the two Houses not only to make a list of the votes, but to deliver "the result to the President of the Senate, which result he was required to announce to the two Houses. The language, which became a formula for more than seventy years, was first reported by Senator Rufus King, of New York, at the second election of Washington, in 1793, requires that the tellers "make a list of the votes as they shall be declared; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote and the persons elected to the two Houses assembled as aforesaid."

The 22d rule, adopted in 1865, required the appointment of tellers, "to whom shall be handed, as they are opened by the President of the Senate, all certificates of electoral votes, and said tellers, having read the same in the presence and hearing of the two Houses thus assembled, shall make a list of the votes as they shall appear from the said certificates, and the votes having been counted, a list of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, and the names of the persons elected," etc.

At the first election of General Washington, which was conducted very informally and without a preliminary committee of procedure, the Senate notified the House that they had "appointed one of their members to sit at the Clerk's table to make a list of the votes as they shall be declared; submitting it to the wisdom of the House to appoint one or more of their members for the like purpose."

The phrase "to make a list of the votes," employed by the committee to define the duty of the tellers, doubtless ought to be considered as the equivalent of "counting the votes." It is obviously borrowed from section 3 of the first section of the second article of the Constitution, which reads as follows:

"The electors shall meet in their respective States and may ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify and transmit sealed to the seat of government," etc.

Here the whole function of ascertaining the validity and counting the votes for the candidates is devolved upon the electors by the phrase which requires them "to make a list of the persons voted for." The employment of that form of speech in the resolution above cited, therefore, was not an accident, and has its weight in determining the function which the two Houses of Congress assigned to the tellers or to those who selected them on this occasion.

INDEPENDENT POWER OF THE TWO HOUSES IN COUNTING ELECTORAL VOTES.

Each of the two Houses has always maintained its separate and independent right to act affirmatively upon every vote to entitle it to be counted. Whenever both Houses failed to agree upon counting it, the vote has never been counted.

At the second election of Monroe, in 1821, the joint committee of the two Houses on the mode of counting the votes, in anticipation of an irreconcilable dif

ference of opinion about the admission of Missouri, and to avoid a collision from which no good seemed likely to come, adopted the following resolution:

Resolved, That if any objection be made to the votes of Missouri, and the counting or omitting to count which shall not essentially change the result of the election, in that case they shall be reported by the President of the Senate in the following manner:

Were the votes of Missouri to be counted, the result would be for A. B. for President of the United States, votes; if not counted for A. B. as President of the United States, votes; but in either event, A. B. is elected President of the United States, and in the same manner for Vice-President.

In reply to the objection that this was practically not counting the electoral vote, Mr. Clay, who, as chairman of the committee, had reported the resolution, said that "the difficulty is before us; that we must decide it when the two Houses meet, or avoid it by some previous arrangement. The committee being morally certain that the question would arise on the votes in joint meeting, thought it best, as he had before stated, to give it the go-by in this way. Suppose this resolution not adopted, the President of the Senate will proceed to open and count the votes; and would the House allow that officer, singly and alone, thus virtually to decide the question of the legality of the votes? If not, how then were they to proceed? Was it to be settled by the decision of the two Houses conjointly, or of the two Houses separately? One House would say the votes ought to be counted, the other that they ought not; and then the votes would be lost altogether. Would the gentleman from New York prefer that it be decided in joint meeting? In that case he would find himself in a much leaner majority than on the question yesterday. In fact, Mr. Clay said, there was no mode pointed out in the Constitution of settling litigated questions arising in the discharge of this subject; it was a casus omissus; and he thought it would be proper either by some act of derivative legislation, or by an amendment of the Constitution itself, to supply the defect."

In 1857 Mr. Seward corrected Senator Bigler for speaking of a meeting of the two Houses under the eighth article of the Constitution as 66 a convention." "Then

I will say that the two Houses assembled," replied Mr. Bigler. In the same way the vote of Michigan in 1837, like that of Missouri, was counted in the alternative.

The vote of Wisconsin was counted in substantially the same way in 1857.

In 1869 the vote of Georgia was counted in the alternative, and in 1873 three votes from Georgia and all the votes from Arkansas were not counted, in consequence of one of the Houses refusing to count it.

The two Houses have even carried the principle here illustrated so far as not to debate any question of difference in each other's presence. So soon as debate became necessary, the Senate uniformly withdrew to its own Chamber if sitting in the House, and the House has withdrawn if sitting in the Senate Chamber. In 1817, when Mr. Taylor from New York arose in the joint session, and addressing himself to the Speaker of the House, not to "the President of the Senate," was proceeding to state his reasons for objecting to the votes from Indiana being read and recorded, the Speaker interrupted him, and said that the two Houses had met for the purpose-the single specific purpose-of performing the constitutional duty which they were then discharging, and that while so acting, in joint meeting, they could consider no proposition nor perform any business not prescribed by the Constitution.

Mr. Varnum, of the Senate (addressing the President of the Senate), expressed his concurrence in the propriety of what had been stated by the Speaker, and, for the purpose of allowing the House of Representatives to deliberate on the question which had been suggested, he moved that the Senate withdraw to their Chamber.

The motion was seconded by Mr. Dana, of the Senate, and, the question being put by the President to the members of the Senate, it was unanimously agreed to, and the Senate withdrew accordingly."-P. 31.

After debate, the House sent a message to inform the Senate of its readiness to proceed with the counting.

"The Senate soon after again entered the Representatives' Hall; when

"The Speaker informed them that the House of Representatives had not seen it necessary to come to any resolution, or to take any order on the subject which had produced the separation of the two Houses.

"The reading of the votes was then concluded."-P. 33.

In discussing the order of procedure at the election in 1821, Mr. King said: "He was opposed to the settlement of any litigated question in joint meeting, where the Senate as a body would be lost, and argued that, whenever any such should arise, it would be always proper that the two Houses should separate.”—P. 34.

At a later stage of the debate, Mr. King, of New York, in accordance with the opinions he had submitted, wished some amendment introduced to prevent the mode of proceeding from being quoted as a precedent hereafter an amendment declaring that, if any question should arise relative to any votes, in joint meeting, the two Houses would separate to consider the case and not decide it jointly.

Mr. Barbour said that, on the present occasion, as the election could not be affected by the votes of any one State, no difficulty could arise; and that it was his intention hereafter to bring the subject up, to remedy what he considered a casus omissus in the Constitution, either by an act of Congress, if that should appear sufficient, or, if not, by proposing an amendment to the Constitution itself.-P. 35.

Again in 1821, when an objection was made by Mr. Livermore, of New Hampshire, to counting the votes of Missouri, the Journal of the Senate says:

"Whereupon, on motion of Mr. Williams, of Tennessee, the Senate returned to its own Chamber."

Afterward, the Senate received a message from the House, that it was now ready to receive the Senate for the purpose of continuing the examination of the votes, and on motion the Senate returned to the joint session.

At the election in 1857 there was a question about receiving the vote of Wisconsin. To a remark of Mr. Letcher, the Vice-President said, "No debate is proper in the opinion of the presiding officer."

Mr. Crittenden, of Kentucky: "Do I understand the Chair to decide that Congress in any form has power to decide upon the validity or invalidity of a vote?"

The Presiding Officer: "The presiding officer has made no such decision, he will inform the Senator from Kentucky. The Chair considers that under the law and the concurrent order of the two Houses, nothing can be done here but to count the votes by tellers, and to declare the vote thus counted to the Senate and House of Representatives sitting in this Chamber. What further action may be taken, if any further action should be taken, will devolve upon the properly constituted authorities of the country, the Senate, or the House of Representatives, as the case may be. The Chair was misunderstood by the Senator from Kentucky."

There was such a diversity of opinion among the members about the ruling of the President of the Senate, that he invited a motion to withdraw. Senator Trumbull said: "A difficulty has arisen here; let us retire and consider it in the only constitutional way we can, and that is, in separate bodies." In this case, the motion to withdraw was only put to and voted on by the members of the Senate. They retired immediately upon its passage, and did not return. Neither the Senate nor the House could have acted much more independently of one another, if each had been entirely alone. In the debate which ensued in the House, Humphrey Marshall insisted that "the Senate and House must act upon the question at issue as separate bodies, vote as distinct organizations, and when the vote is to be taken, the Senate very properly retires to consult separately how the vote of the Senate shall be given upon the question, and its vote will then be announced by its own appointed organ. If you adopt any other construction of the Constitution, on the one hand, you supersede the House, and place all power over the count in the hands of the President of the Senate; on the other hand, you destroy the just weight of the Senate, and may establish a precedent, by virtue of which at some future day a large body of Representatives may set aside an election made by the people through the electoral college, and assume the power of bringing the election before the House

of Representatives. I am, therefore, clear, that the Houses meet as Houses, and no vote per capita can be taken. Still, I am sure that the duty of determining whether a vote shall be counted, belongs to the Senate and House, and not to the President of the Senate, and it is a duty I insist we shall perform before the vote shall be counted."

At the second election of Lincoln, in 1865, the principle of the complete independence of each of the two Houses in canvassing the electoral votes, and the necessity of the affirmative vote of each to entitle a vote to be counted, was incorporated into a joint rule of the two Houses, where, by the approval of the Executive, it acquired all the moral authority of a law. This clause of the rule which covers the provision runs as follows:

"If upon the reading of any such certificate by the tellers any question shall arise in regard to counting the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw; and said question shall be submitted to that body for its decision, and the Speaker of the House of Representatives shall in like manner submit said question to the House of Representatives for its decision, and no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses, which being obtained, the two Houses shall immediately reassemble, and the presiding officers shall then announce the decision of the question submitted; and upon any such question there shall be no debate in either House, and any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner."

Under the operation of this rule at the last three presidential elections (in 1865, 1869, and 1873), the two Houses have separated repeatedly for the purpose of debate.

So settled and invariable has been the practice of the two Houses to act separately on the question of counting a vote, and so general has been their practice to withdraw to their respective Chambers for debate and decision, that the principle has been incorporated into every plan for regulating the mode of the counting by standing joint rules or by statute.

In the joint rule of 1865, which governed the counting in 1865, 1869, and 1873, the separate action of the two Houses is expressly provided.

The law proposed in 1800 contained a similar provision. So did the law which passed the Senate in 1875. So did the law which passed the Senate in 1876. The latter bill contained this clause :

“If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the Senate shall thereupon withdraw, and said question shall be submitted to the body for its decision; and the Speaker of the House of Representatives shall in like manner submit said question to the House of Representatives for its decision."

EFFECT OF DISAGREEMENT OF THE Two HOUSES.

The counting of a vote is an affirmative act. It involves the examination of the certificate, the reading it in the presence and hearing of the two Houses, the entering of the votes upon the list, and the enumeration of the vote in the footing which states the result. All these steps are affirmative acts.

In all cases where two persons or two bodies are required to concur in the doing of an act, and each has a discretion to do it or not, if they cannot agree, the act cannot be done. It is the familiar case of two judges who do not agree, and the result is that no judgment can be rendered.

The construction which has been uniformly adopted and acted on in respect to the counting of an electoral vote by the two Houses is that, if they do not concur affirmatively in favor of counting the vote, it cannot be counted.

Mr. Clay said, in 1821: "One House would say the votes ought to be counted, and the other that they ought not; and then the votes would be lost altogether." The joint rule adopted in 1865, which governed three presidential elections, in

codifying the existing practice of the two Houses, expressly declared that "no vote objected to shall be counted except by the concurrent vote of both Houses."

The law proposed in 1800 for regulating the counting of electoral votes recognized the same principle as in operation unless it was controlled and changed by statute. The bill introduced by Senator Morton, which passed the Senate in 1875 and in 1876, proposed to change this rule in cases where there should be but one return from a State, and to require the two Houses to concur in counting the vote, unless both should agree in rejecting it; but that effect was to be produced by statute.

JOINT BALLOT.

There is a respectable opinion manifested by individuals in many of the debates that the two Houses may be deemed to be one body for the purpose of counting the electoral votes, and may act together, the members voting per capita. But there has been no practice sanctioning such a conclusion; and no law has nor has any provision of the Constitution provided for the merger of the two bodies at any time or for any purpose. Doubtless the idea arises from the habit of the State Legislatures, when the two Houses do not agree in an election, to attain a result by their meeting in joint ballot. Congress has by law provided that such an arbitrament shall be resorted to in order to solve a disagreement of the two Houses of the State Legislatures in the election of United States Senators.

This expedient has its suggestion in the absolute necessity of some remedy, and in the fact that this accords with the theory and spirit of our institutions, has been in most cases adopted by the State governments, and practised to the satisfaction of everybody, and is the safest possible solution of a great practical difficulty.

In legislation the independent action of the two Houses and their veto on each other work little practical inconvenience. But in the choice of a public officer, without whom the Government cannot go on, there must be found some mode of effecting an election. In the discussion of the bill proposed in 1800 to regulate the counting of electoral votes, and to determine the results of the presidential election, an amendment was offered providing, in case of a disagreement between the two Houses in respect to the counting of a vote, that the question should be decided by a vote of the two Houses per capita.

On the 30th of April, 1800, the records state, "A motion of Mr. Gallatin was under consideration to insert, instead of the principle that, in case of doubt, the Houses should divide to their respective Chambers to consider the qualification or disqualification of a vote or votes, from their joint meeting, if such questions should arise at counting of the votes, the following words:

"And the question of the exception shall immediately, and without debate, be taken by yeas and nays, and decided by a majority of the members of both Houses then present."

The amendment was lost, 44 to 46.

On the 1st or May the same amendment was again offered, and lost 43 to 46. Among those who voted for it were Albert Gallatin, Nathaniel Macon, John Nicholas, John Randolph, John Smilie, Joseph B. Varnum, and other lights of the party which supported Mr. Jefferson.

CASES OF VOTES COUNTED AND VOTES REFUSED TO BE COUNTED BY THE Two HOUSES.

The tellers being ministerial agents of the power that appoints, they have no authority to decide finally upon the admission or rejection of the electoral vote, nor is there an instance of their claiming such a right; but they are the agents of the two Houses of Congress, of which they are also members. The two Houses have always claimed, and repeatedly exercised, the right to pass upon and reject electoral votes, and always without reference to the opinion or wishes of the President of the Senate.

At the first election of Monroe, in 1817, objection was made in the joint session