This is the first question. What is meant by counting? In one sense,
it is only enumeration, an arithmetical operation, which in the
present instance consists of addition and subtraction. In another
sense it involves segregation, separation of the false from the true.
If a hundred coins are thrown upon a banker's counter, and his clerk
is told to count the good ones, he has both to select and to
enumerate. He takes such as he finds sufficient in metal and weight,
and rejects the light and counterfeit. So when the Constitution
ordains that "the votes shall then be counted," it means that the true
ones shall be counted, which involves the separation of the true from
the false, if there be present both false and true. In regard to the
agency by which this double process is to be performed, the words of
the Constitution are few: "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." What would one
take to be the meaning of these words, reading them for the first
time? It is, that somebody besides the President of the Senate is to
count, because, if he was to be the counting officer, the language
would naturally have been that _the President of the Senate shall open
all the certificates and count the votes_. There must have been a
reason for this change of phraseology. It should seem to follow, from
these words alone, that, whoever is to count, it is not the President
of the Senate. It should seem also to follow, that the counting is to
be done, not in the presence of Senators and Representatives as
individuals, but in the presence of the two Houses as organized
bodies. If their attendance as spectators merely was intended, the
expression would naturally have been, in the presence of the Senators
and Representatives or so many of them as may choose to attend. The
presence of the Senate and House means their presence as the two
Houses of Congress, with a quorum of each, in the plenitude of their
power, as the coordinate branches of the legislative department of the
Government. And inasmuch as no authorities are required to be present
other than the President of the Senate and the two Houses, if the
former is not to count the votes, the two Houses must.
The meaning which is thus supposed to be the natural one has been
sanctioned by the legislative and executive departments of the
Government, and established by a usage, virtually unbroken, from the
foundation of the Government to the present year.
The exhaustive publication on the Presidential Counts, just made by
the Messrs. Appleton, leaves little to be said on this head.
The sole exception suggested, in respect to the usage, is the
resolution of 1789, but that is not really an exception. We have not
the text of the resolution. We know, however, that there was nothing
to be done but adding a few figures. There was no dispute about a
single vote, as all the world knew. But taking the resolution to have
been what the references to it in the proceedings of the two Houses
would imply, it meant only that a President should be chosen for that
occasion only. The purpose was not to define the functions of any
officer or body, but to go through the _ceremony_ of announcing what
was already known, and to set the government going. No decisions
between existing parties were to be made; no selection of true votes
from false votes, but only an addition of numbers. Individual members
of Congress have undoubtedly in a few instances expressed different
views, but these members have been few, and they have always been in a
hopeless minority. If any one can read the debates, the bills passed
at different times through one House or the other, the joint
resolutions adopted, and the accounts of the votes from time to time
received or rejected, and doubt that the two Houses of Congress have
asserted and maintained, from 1793 until now, their right to accept or
reject the votes of States, and of individual electors of States, all
that I can say is, that he must have a marvelous capacity of doubting.
He must ignore uniform practice as an exponent of constitutions, and
set up his individual misreading of words, reasonably plain in
themselves, against the opinions of almost all who have gone before
him.
The joint resolution of 1865 is of itself decisive, if a solemn
determination of the two Houses of Congress, approved by the
President, can decide anything. That resolution was in these words:
"_Whereas_, The inhabitants and local authorities of the States
of Virginia, North Carolina, South Carolina, Georgia, Florida,
Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee,
rebelled against the Government of the United States, and were in
such condition on the 8th day of November, 1864, that no valid
election of electors for President and Vice-President of the
United States, according to the Constitution and laws thereof,
was held therein on said day: therefore--
"_Be it resolved_, by the Senate and House of Representatives of
the United States of America, in Congress assembled, That the
States mentioned in the preamble to this joint resolution are not
entitled to representation in the electoral college for the
choice of President and Vice-President of the United States for
the term commencing on the 4th day of March, 1864, and no
electoral votes shall be received or counted from said States,
concerning the choice of President and Vice-President for said
term of office."
In approving this resolution President Lincoln accompanied it with
the following message, parts of which I will italicize:
"_To the Honorable the Senate and House of Representatives:_
"The joint resolution entitled 'joint resolution declaring
certain States not entitled to representation in the electoral
college,' has been signed by the Executive, in deference to the
view of Congress implied in its passage and presentation to him.
In his own view, however, _the two Houses of Congress, convened
under the twelfth article of the Constitution, have complete
power to exclude from counting all electoral votes deemed by them
to be illegal_, and it is not competent for the Executive to
defeat or obstruct that power by a veto, as would be the case if
his action were at all essential in the matter. He disclaims all
right of the Executive to interfere in any way in the canvassing
or counting electoral votes, and also disclaims that by signing
said resolution he has expressed any opinion on the recitals of
the preamble, or any judgment of his own upon the subject of the
resolution."
If this resolution of the two Houses was authorized by the
Constitution, there is no ground for maintaining the power of the
President of the Senate to decide the question of receiving or
rejecting votes. For, if he has the power under the Constitution, he
cannot waive it, nor can any action of Congress take it away. The
resolution of 1865 had the sanction of each House, was signed by the
President of the Senate and the Speaker of the House, and was approved
by the President. It should set the question of the power of the two
Houses forever at rest.
The joint rule, first adopted in 1865, and continued in force for ten
years, asserted the same control. It should not have been adopted if
the pretensions now set up for the President of the Senate were of
force; and he might at any time have disregarded it as worthless. But
he did not disregard it; he did not question it; he obeyed it.
The action of the present Houses, moreover, is an affirmance of their
right to eliminate the false votes from the true. Else why these
committees of each House, investigating at Washington and in the North
and South? Are all the labor and expense of these examinations
undertaken solely in order that the results may be laid before the
President of the Senate for _his_ supreme judgment in the premises? It
is safe to say that there is not a single member of either House who
would not laugh you in the face for asking seriously the question.
Assuming, then, that the power to decide what votes shall be counted
belongs to the two Houses, how must they exercise it? Here, again, let
me take the illustration with which I began, of the coins upon a
banker's counter. Let us suppose that, instead of one clerk, two were
told to count them together. When they came to a particular coin upon
which they disagreed, one insisting that it was genuine and the other
that it was counterfeit, what would then happen, if they did their
duty? They would count the rest and lay that aside, reporting the
disagreement to their superior. The two Houses of Congress have,
however, no superior, except the States and the people. To these there
can be no reference on the instant; and the action of the two Houses
must be final for the occasion.
There can be no decision of the Houses if they disagree, and, as no
other authority can decide, there can be no decision at all. The
counting, including the selection, is an affirmative act; and as two
are to perform it, if performed at all, no count or selection can be
made when the two do not concur. Two judges on the bench cannot render
a judgment when there is a disagreement between them. No more can the
two Houses of Congress. There is here no pretense of alternative
power, playing back and forth between the President of the Senate and
the two Houses. If the former has not power complete and exclusive, he
has none. The result must be that, what the two Houses do not agree to
count, cannot be counted.