This act in many respects embodies prior legislative practice, and is certainly founded upon the same constitutional theory as to the extent of the powers of Congress with reference to the subject. The act as it stands is, however, open not only to serious constitutional objections, but to the criticism that it leaves unsettled a number of points that in the future may easily lead to serious disputes.

The germ of the act of 1887 is to be found in the bill of 1800 which was discussed in Congress but never enacted, the two Houses failing to agree upon certain of its provisions. With reference to the powers of counting therein given to Congress, C. C. Pinckney, of South Carolina, raised the point of unconstitutionality.

"There is not," Pinckney said, "a single word in the Constitution, which can by the most tortured construction, be extended to give Congress, or any branch or part of our Federal Government, a right to make or alter the State Legislatures' directions.

"§ 5. That while the two Houses shall be in meeting as provided in this act the President of the Senate shall have power to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw.

"§ 6. That when the two Houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes from any State, or other question arising in the matter, each Senator and Representative may speak to such objection or question five minutes, and not more than once; but after such debate shall have lasted two hours it shall be the duty of the presiding officer of each House to put the main question without further debate."

I well remember," he continued, "it was the object (of the Constitutional Convention) to give to Congress no interference in or control over the election of the President. ... It never was intended, nor could it have been safe, in the Constitution, to have given to Congress thus assembled in convention the right to object to any votes, or even to question whether they were constitutionally or properly given." 12

When the act of 1887 was under discussion, Wilson of Iowa asked:

"Can we conclude that the framers of our Constitution when they conferred on the respective Houses of Congress these extraordinary powers (as in certain contingencies to elect President and Vice-President), intended to invest them with the still more extraordinary power of rejecting the votes of electors appointed by the several States, and thereby creating, by themselves and for themselves, the contingency which alone gives them the right and power to elect a President and Vice-President ? The mere statement of such a proposition is its own refutation. And if no such power rests with the two Houses for concurrent action, how much more preposterous does it seem to be to claim that it rests with either House alone, and especially with the House of Representatives, with which body the power to elect a President abides in the event of the failure of the electors to elect."

The theory that the power of counting belongs to the two Houses in joint meeting has been stated as follows:13

"The exclusive jurisdiction of the two Houses to count the electoral votes by their own servants and under such instructions as they may deem proper to give on occasions arising during the counting, or by previous concurrent orders, or by standing joint rules, or by the formal enactments of law, has been asserted from the beginning of the government; that exclusive jurisdiction has been exercised at every presidential election from 1793, when a regular procedure was first established, until and including the last count of electoral votes in 1873. It was exercised by concurrent orders of the two Houses from 1793 to 1865, and by a standing joint rule in 1865, 1869, and 1873. Every counting at these twenty-one successive presidential elections has been conducted under and governed by the regulations thus imposed. These regulations have prescribed every step in the procedure; have defined and regulated the powers of every person who has participated in any ministerial service in the transaction. They have controlled every act of the president of the Senate in respect to the counting, except the single act of opening the packages of the electoral votes transmitted to him by the colleges, which is a special duty imposed on him by the Constitution. During all this long period, the exclusive jurisdiction of the two Houses, exercised upon numerous successive occasions, has never, in a single instance, been the subject of denial, dispute, or question.

12 Quoted by Dougherty, The Electoral System of the United States, p. 66.

13 The Presidential Counts. D. Appleton & Co., XLI. Quoted by Dougherty, p. 61.

The president of the Senate, although he has regularly, in person or by some substitute appointed by the Senate, performed the constitutional duty of opening the electoral votes, has never, on any occasion, or in any single instance, attempted to go a step beyond that narrow and limited function. . . . The two Houses have also asserted the right to prescribe a permanent method of counting the electoral votes."

With reference to those cases in which there has been received by Congress but one return of the votes of electors whose appointment has been lawfully certified according to Section 3 of the act, Section 4 provides that no vote or votes so cast "shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified."

As to this Senator Sherman objected. "That," he declared, "is a dangerous power. It allows the two Houses of Congress, which are not armed with any constitutional power whatever over the electoral system, to reject the vote of every elector from every State, with or without cause, provided they are in harmony in that matter."