But the final count of the electoral vote must be in the presence of the two Houses of Congress assembled in one place, and the Democrats were in majority in one of the Houses, and the twenty-second joint rule, as it was called, which had been applied since the count of the electoral vote of 1864 for the ascertainment of the result of the returns to Congress, ordained that the electoral vote of any "State" might be thrown out by either House. If this rule should be considered as still in force, and be applied in the impending count, the Democratic House of Representatives could reject the returns of the {284} Republican authorities in South Carolina, Florida and Louisiana, and thus secure the election of Mr. Tilden. This rule, however, was not necessarily binding upon this Congress, as it had not been re-enacted by the Houses composing it. That is, either House could lawfully refuse to acquiesce in its further application. The Republicans now repudiated it, although it was their predecessors who had created it. [Sidenote: Views in regard to the power to count the electoral vote.] Some of the Republicans now claimed that the Constitution vested the Vice-President, or rather the President of the Senate, with the power to count the electoral votes. The language of the Constitution was, and still is, "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." No President of the Senate had, however, ever ventured to determine whether a disputed return, in case any such had been received by him, was to be counted, and Mr. Ferry, the President of the Senate, gave his Republican friends to understand that he did not feel like assuming any such responsibility. [Sidenote: The Republicans in advantage in the count of the vote.] Nevertheless, the Republicans were in decided advantage. They had the President of the United States to execute by force whatever they might resolve upon, and they had the President of the Senate, whose scruples the Democrats had not discovered, and, of course, they had one House of the Congress, the Senate. [Sidenote: The Electoral Commission Bill.] The Democrats felt that they must make an effort to change the situation. They, therefore, quickly seized upon a suggestion made by a Republican member of the Judiciary Committee of the House of Representatives, Mr. G. W. McCrary, and voted a measure in the House for the appointment of {285} members to a joint committee of the two Houses, which committee should immediately report a proposition for counting the electoral votes. This was the 14th of December, 1876. The Senate agreed to this measure on the next day. Three Republicans and four Democrats were appointed by the House, and four Republicans and three Democrats by the Senate, and the committee so constituted reported, on the 18th of January, 1877, the famous Electoral Commission bill. [Sidenote: The passage of the Bill.]