Chapter 27

But I propose to refer to the condition of the law and the Constitution as we now find it. The second article of the first section of the Constitution provides for the vesting of the executive power in the President and also for the election of a Vice-President. First it provides that "each State" shall, through its legislature, appoint the number of electors to which it is entitled, which shall be the number of its Representatives in Congress and its Senators combined. The power there is to the State to appoint. The grant is as complete and perfect that the State shall have that power as is another clause of the Constitution giving to "each State" the power to be represented by the Senators in this branch of Congress. There is given to the electors prescribed duties, which I will read:--

The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves: they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the President of the Senate. 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.

Then follows the duty and power of Congress in connection with this subject to determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States. The next clause provides for the qualifications of the candidates for the presidency and vice-presidency. The next clause gives power to the Congress of the United States to provide for filling the office of President and Vice-President in the event of the death, resignation, or inability of the incumbents to vest the powers and duties of the said office. The other clause empowers Congress thus to designate a temporary President. The other clauses simply relate to the compensation of the President and the oath he shall take to perform the duties of the office. Connected with that delegation of power is to be considered the eighth section of the first article which gives to the Congress of the United States power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

It will be observed, so far, that the Constitution has provided the power but has not provided the regulations for carrying that power into effect. The Supreme Court of the United States sixty-odd years ago defined so well the character of that power and the method of its use that I will quote it from the first volume of _Wheaton's Reports, page 326:_

Leaving it to the legislature from time to time to adopt its own means to effectuate, legitimate, and mold and model the exercise of its powers as its own wisdom and public interest should require.

In less than four years, in March 1792, after the first Congress had assembled there was legislation upon this subject, carrying into execution the power vested by this second article of the Constitution in a manner which will leave no doubt of what the men of that day believed was competent and proper. Here let me advert to that authority which must ever attach to the contemporaneous exposition of historical events. The men who sat in the Congress of 1792 had many of them been members of the convention that framed the Federal Constitution. All were its contemporaries and closely were they considering with master-minds the consequences of that work. Not only may we gather from the manner in which they treated this subject when they legislated upon it in 1792 what were their views of the powers of Congress on the subject of where the power was lodged and what was the proper measure of its exercise, but we can gather equally well from the inchoate and imperfect legislation of 1800 what those men also thought of their power over this subject, because, although differing as to details, there were certain conceded facts as to jurisdiction quite as emphatically expressed as if their propositions had been enacted into law. Likewise in 1824 the same instruction is afforded. If we find the Senate of the United States without division pass bills which, although not passed by the co-ordinate branch of Congress, are received by them and reported back from the proper committees after examination and without amendment to the committee of the whole House, we may learn with equal authority what was conceded by those houses as to the question of power over the subject. In a compilation made at the present session by order of the House Committee, co-ordinate with the Senate Committee, will be found at page 129 a debate containing expressions by the leading men of both parties in 1857 of the lawfulness of the exercise of the legislative power of Congress over this subject. I venture to read here from the remarks of Mr. Hunter, of Virginia, one of the most respected and conservative minds of his day in the Congress of the United States:--

The Constitution evidently contemplated a provision to be made by law to regulate the details and the mode of counting the votes for President and Vice-President of the United States. 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. By whom, and how to be counted, the Constitution does not say. But Congress has power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. Congress, therefore, has the power to regulate by law the details of the mode in which the votes are to be counted. As yet, no such law has been found necessary. The cases, happily, have been rare in which difficulties have occurred in the count of the electoral votes. All difficulties of this sort have been managed heretofore by the consent of the two houses--a consent either implied at the time or declared by joint resolutions adopted by the houses on the recommendation of the joint committee which is usually raised to prescribe the mode in which the count is to be made. In the absence of law, the will of the two houses thus declared has prescribed the rule under which the President of the Senate and the tellers have acted. It was by this authority, as I understand it, that the President of the Senate acted yesterday. The joint resolution of the two bouses prescribed the mode in which the tellers were to make the count and also required him to declare the result, which he did. It was under the authority, therefore, and by the direction of the two houses that he acted. The resolutions by which the authority was given were according to unbroken usage and established precedent.

Mr. President, the debate from which I have read took place in 1857 and was long and able, the question there arising upon the proposed rejection of the vote of the State of Wisconsin, because of the delay of a single day in the meeting of the electors. A violent snowstorm having prevented the election on the third of December, it was held on the fourth, which was clearly in violation of the law of Congress passed in pursuance of the Constitution requiring that the votes for the electors should be cast on the same day throughout the Union. That debate will disclose the fact that the danger then became more and more realized of leaving this question unsettled as to who should determine whether the electoral votes of a State should be received or rejected when the two houses of Congress should differ upon that subject. There was no arbiter between them. This new-fangled idea of the present hour, that the presiding officer of the Senate should decide that question between the two disagreeing houses, had not yet been discovered in the fertility of political invention, or born perhaps of party necessity. The question has challenged all along through our country's history the ablest minds of the country; but at last we have reached a point when under increased difficulties we are bound to settle it. It arose in 1817 in the case of the State of Indiana, the question being whether Indiana was a State in the Union at the time of the casting of her vote. The two houses disagreed upon that subject; but by a joint resolution, which clearly assumed the power of controlling the subject, as the vote of Indiana did not if cast either way control the election, the difficulty was tided over by an arrangement for that time and that occasion only. In 1820 the case of the State of Missouri arose and contained the same question. There again came the difficulty when the genius and patriotism of Henry Clay were brought into requisition and a joint resolution introduced by him and adopted by both houses was productive of a satisfactory solution for the time being. The remedy was merely palliative; the permanent character of the difficulty was confessed and the fact that it was only a postponement to men of a future generation of a question still unsettled.

It is not necessary, and would be fatiguing to the Senate and to myself, to give anything like a sketch of the debate which followed, of the able and eminent men on both sides who considered the question, arriving, however, at one admitted conclusion, that the remedy was needed and that it did lie in the law-making power of the government to furnish it.

Thus, Mr. President, the unbroken line of precedent, the history of the usage of this government from 1789 at the first election of President and Vice-President until 1873, when the last count of electoral votes was made for the same offices, exhibits this fact, that the control of the count of the electoral votes, the ascertainment and declaration of the persons who were elected President and Vice-President, has been under the co-ordinate power of the two houses of Congress, and under no other power at any time or in any instance. The claim is now gravely made for the first time, in 1877, that in the event of disagreement of the two houses the power to count the electoral votes and decide upon their validity under the Constitution and law is vested in a single individual, an appointee of one of the houses of Congress, the presiding officer of the Senate. In the event of a disagreement between the two houses, we are now told, he is to assume the power, in his sole discretion, to count the vote, to ascertain and declare what persons have been elected; and this, too, in the face of an act of Congress, passed in 1792, unrepealed, always recognized, followed in every election from the time it was passed until the present day. Section 5 of the act of 1792 declares:--

That Congress shall be in session on the second Wednesday in February 1793, and on the second Wednesday in February succeeding every meeting of the electors; and the said certificates, or so many of them as shall have been received, shall then be opened, the votes counted, and the persons who shall fill the offices of President and Vice-President ascertained and declared agreeably to the Constitution.

Let it be noted that the words "President of the Senate" nowhere occur in the section.

But we are now told that though "Congress shall be in session," that though these two great bodies duly organized, each with its presiding officer, accompanied by all its other officers, shall meet to perform the duty of ascertaining and declaring the true result of the action of the electoral colleges and what persons are entitled to these high executive offices, in case they shall not agree in their decisions there shall be interposed the power of the presiding officer of one of the houses to control the judgment of either and become the arbiter between them. Why, Mr. President, how such a claim can be supposed to rest upon authority is more than I can imagine. It is against all history. It is against the meaning of laws. It is not consistent with the language of the Constitution. It is in the clearest violation of the whole scheme of this popular government of ours, that one man should assume a power in regard to which the convention hung for months undecided, and carefully and grudgingly bestowing that power even when they finally disposed of it. Why, sir, a short review of history will clearly show how it was that the presiding officer of the Senate became even the custodian of the certificates of the electors.

On the fourth of September, 1787, when approaching the close of their labors, the convention discovered that they must remove this obstacle, and they must come to an agreement in regard to the deposit of this grave power. When they were scrupulously considering that no undue grant of power should be made to either branch of Congress, and when no one dreamed of putting it in the power of a single hand, the proposition was made by Hon. Mr. Brearly, from a committee of eleven, of alterations in the former schemes of the convention, which embraced this subject. It provided:--

5. Each State shall appoint, in such manner as its legislature may direct a number of electors equal to the whole number of Senators and Members of the House of Representatives to which the State may be entitled in the legislature.

6. The electors shall meet in their respective States and vote by ballot for two persons, one of whom 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 the general government, directed to the President of the Senate.

7. The President of the Senate shall, in that house, open all the certificates; and the votes shall be then and there counted. The person having the greatest number of votes shall be the President, if such number shall be a majority of the whole number of the electors appointed; and if there be more than one who have such majority and have an equal number of votes, then the Senate shall choose by ballot one of them for President; but if no person have a majority, then from the five highest on the list the Senate shall choose by ballot the President. And in every case after the choice of the President the person having the greatest number of votes shall be Vice-President. But if there should remain two or more who shall equal votes, the Senate shall choose from them the Vice-President. (See 'Madison Papers.' page 506. etc.)

Here we discover the reason why the President of the Senate was made the custodian of these certificates. It was because in that plan of the Constitution the Senate was to count the votes alone; the House was not to be present; and in case there was a tie or failure to find a majority the Senate was to elect the President and Vice-President. The presiding officer of the body that was to count the votes alone, of the body that alone was to elect the President in default of a majority--the presiding officer of that body was naturally the proper person to hold the certificates until the Senate should do its duty. It might as well be said that because certificates and papers of various kinds are directed to the President of this Senate to be laid before the Senate that he should have the control to enact those propositions into law, as to say that because the certificates of these votes were handed to him he should have the right to count them and ascertain and declare what persons had been chosen President and Vice-President of the United States.

But the scheme reported by Mr. Brearly met with no favor. In the first place, it was moved and seconded to insert the words "in the presence of the Senate and House of Representatives" after the word "counted." That was passed in the affirmative. Next it was moved to strike out the words "the Senate shall immediately choose by ballot" and insert the words "and House of Representatives shall immediately choose by ballot one of them for President, and the members of each State shall have one vote," and this was adopted by ten States in the affirmative to one State in the negative.

Then came another motion to agree to the following paragraph, giving to the Senate the right to choose the Vice-President in case of the failure to find a majority, which was agreed to by the convention; so that the amendment as agreed to read as follows:--

The President of the Senate, in the presence of the Senate and House of Representatives, shall open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be President, if such number be a majority of the whole number of electors appointed: and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President, the representation from each State having one vote; but if no person have a majority, then from the five highest on the list the House of Representatives shall in like manner choose by ballot the President.

And then follows that if there should remain two candidates voted for as Vice-President having an equal vote the Senate shall choose from them the Vice-President. Mr. President, is it not clear that the Constitution directed that the certificates should be deposited with the presiding officer of that body which was alone to count the votes and elect both the President and Vice-President in case there was a failure to find a majority of the whole number of electors appointed? There is a maxim of the law, that where the reason ceases the law itself ceases. It is not only a maxim of common law, but equally of common sense. The history of the manner in which and the reason for which the certificates were forwarded to the President of the Senate completely explains why he was chosen as the depositary and just what connection he had with and power over those certificates. After the power had been vested in the House of Representatives to ballot for the President, voting by States, after the presence of the House of Representatives was made equally necessary before the count could begin or proceed at all, the President of the Senate was still left as the officer designated to receive the votes. Why? Because the Senate is a continuing body, because the Senate always has a quorum. Divided into three classes, there never is a day or a time when a quorum of the Senate of the United States is not elected and cannot be summoned to perform its functions under the Constitution. Therefore you had the officer of a continuing body, and as the body over which he presided and by whom he is chosen was one of the two co-ordinate bodies to perform the great function of counting the votes and of ascertaining and declaring the result of the electoral vote, he was left in charge of the certificates.

You also find in the sixth section of the act of 1792 that Congress exercised its regulating power and declared "that in case there shall be no President of the Senate at the seat of government on the arrival of the persons intrusted with the lists of votes of the electors, then such persons shall deliver the lists of votes in their custody into the office of the Secretary of State to be safely kept and delivered over as soon as may be to the President of the Senate."

What does this signify? That it was a simple question of custody, of safe and convenient custody, and there is just as much reason to say that the Secretary of State being the recipient of those votes had a right to count them as to say that the other officer designated as the recipient of the votes, the President of the Senate, had a right to count them.

Now, here is another fact a denial of which cannot be safely challenged. Take the history of these debates upon the formation of the Federal Constitution from beginning to end, search them, and no line or word can be discovered that even suggests any power whatever in any one man over the subject, much less in the President of the Senate, in the control of the election of the President or the Vice-President. Why, sir, there is the invariable rule of construction in regard to which there can be no dispute, that the express grant of one thing excludes any other. Here you have the direction to the President of the Senate that be shall receive these certificates, or if absent that another custodian shall receive them, hold them during his absence and pass them over to him as soon as may be, and that then he shall in the presence of the two houses of Congress "open all the certificates." There is his full measure of duty; it is clearly expressed; and then after that follows the totally distinct duty, not confided to him, that "the votes shall then be counted."

I doubt very much whether any instrument not written by an inspired hand was more clear, terse, frugal of all words except those necessary to express its precise meaning, than the Constitution of the United States. It would require the greatest ingenuity to discover where fewer words could be used to accomplish a plain end. How shall it be that in this closely considered charter, where every word, every punctuation was carefully weighed and canvassed, they should employ seven words out of place when two words in place would have fulfilled their end? If it had been intended to give this officer the power to count, how easy to read, "The President of the Senate shall, in the presence of the Senate and House of Representatives, open and count the votes." Why resort to this other, strained, awkward, ungrammatical, unreasonable transposition of additional words to grant one power distinctly and leave the other to be grafted upon it by an unjust implication? No, Mr. President, if it were a deed of bargain and sale, or any question of private grant, if it did not touch the rights of a great people, there would be but one construction given to this language, that the expression of one grant excluded the other. It was a single command to the President of the Senate that, as the custodian, he should honestly open those certificates and lay them before the two houses of Congress who were to act, and then his duty was done, and that was the belief of the men who sat in that convention, many of whom joined in framing the law of 1792 which directed Congress to be in session on a certain day and that the votes should be counted and the persons who should fill the office of President and Vice-president ascertained and declared agreeably to the Constitution.

The certificates are to be opened by their custodian, the President of the Senate, in the presence of the Senate and the House of Representatives. Let it be noted this is not in the presence of the Senators and Representatives, but it is in the presence of two organized bodies who cannot be present except as a Senate and as a House of Representatives, each with its own organization, its own presiding officer and all adjuncts, each organized for the performance of a great duty.