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.