Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1876-12-29
The Disputed Presidency.

The Disputed Presidency.
Hon. {. W. Willard has given his views
on the vexed subject, in Communications "
the Montpelier Freeman and St. Aioans
Messenger lie holds that as the case NJ"
stands, and as it will stand unless the TWO
Houses OF Congress agree upon some law OF
Joint rule prescribing method OF counting
the Electoral vote, neither Hayes nor liiden
can be constitutionally declared to be Presi-
dent. His argument is that 1.-THE Consti'u-
ton designates no body or person TO count
the votes The President of the Senate may
open the certificates, but if he attempt 10
count the votes he transcends any authofi'y
ar mower reposed in him by the Constitution.
The Senate cannot alone DO it, for the same
reason that its President cannot-the Con-
stitution gives that body no such power
Neither can the House for like reason.
The Constitution makes the two Houses wit
nesses of the opening Of the certificates, but
in the absence of law or rules, their power
and duty end there. And if the votes can
not be counted, and no one can be declared
elected. after the fourth of March there will
of course be vacancy in the Office oil Presi-
dent. and the then President OF the Senate
become. bv law President of the United
States until a new election can be had next
| November"
Mr.. Willard Justly commends Senator
Elmunds tor hi effort to procure some leg
islation Nv Congress to supply the omission
of definite constitutional provision for
countiug The vote: and he declares that
there i, 10 question before the American
people oaual.ing this i'll Importance. Ihat
i. unouestionAbly so. 1t Is a great public
misfortune that the national election was 50
elise. and that Its result should turn upon
the Electoral votes Of distur bed and almost
disorgani.1d Southern States, and on tech
meal questions OF eligibility of Electors. 1t
Is a co4t misfortune that some law def
nitely Ire-cribing a mode of counting the
vote was not adopted before this contin-
gency arose. 1t Is great misfortune that
Conrres. should be required to settle so grave
matter by special legislation, which is
ain 1t always unwise, adopted in view OF a
particular emergency. 1t will be great
misfortune if the second Wednesday in
February arrives without some legislative
prov ison to meet the emergency.
But it does not seem as clear to US as it
does to Mr.. Willard that. in the event OF a
failure Of Congress 70 adopt new rule for
the counting OF the vote, We are so complete
" at sea a. he supposes. Such was not the
opinion Of Il greater constitutional lawyer
than Mr. Willard.
Chancellor Kent, in the first volume Of his
Commentaries, in his lecture " OF the Pre-
dent" after abiding to the election Of
Electors, says
The Constitution does not expressly de-
clare by whom :he votes are 10 be counted.
In the case Of questionable votes and a close
" contested election, this power may be all
important and, | presume, in the absence
Of all legislative provision On the subject,
that the President Of the Senate counts the
votes and determines the result, and that the
two Houses are present only a. spectators
10 witness the fairness and accuracy OF the
transaction. and TO act only il no choice be
made by tie Electors.
To this opinion the practice and precc-
dent established 10 the very first election of
a President Of course lends great force. In
that case the only legislative action was the
election Of President of the Senate for the
purpose Of opening and counting the votes -
there being then no Vice President or Presi-
dent Of the Sanate-ani the vote was ac-
tually counted and declared by the Presi-
dent Of the Senate.
There can hardly be question, to say
nothing about substantially similar prece-
dents following the first one. that the
trainers Of the Constitution and the mem
bers Of the First Congress understood the
instrument as vesting the counting power,
whatever it /. and whatever it incidentally
involves, in the President Of the Senate.
Mr.. Willard thinks the concession of this
power to the President of the Senate would
be giving to him 1.-THE right to make Il
Pre,iient''-an expression which suggests
the possibility that Mr.. Willard may have
been influenced in his views by too much
reading of those sharp, dishonest and
mischievous papers, the Springfield Repu5h-
can and New York Nation, with which that
is iayorite phrase. But if the l4th day
Of February arrives without any agreement
between the two branches of Congress, or
any new law or rule upon the subject, and
/ if the President of the Senate, in the exer-
else of the responsibility reposed upon him,
| shall deeide what certificates shall be opened,
and shall proceed with or without the aid
| of teller-) to count the vote and declare its
result,-it will not be he that makes the
President He will simply be declaring in
the discharge Of high official duty the
| legal and constitutional result of the cleo
tion. The votes of the Electors will make
the President" as they have made every
previous President And to charge the
| President Of the Senate, in advance, with
usurpation, if he shall undertake to accept
the responsibility reposed upon him, is to
help to bring about the anarchy which
some intelligent people fear in the near
prospect
Congress, it seems clear to US, may legis-
late to supply the Indebtedness of the Con-
stitution. II it fails to perfect any legisla-
ton on the sub ject-as is not unlikely to be
the case-then the President of the Senate,
who Is the only person authorized by the
| Constitution to act in the matter, must ac-
cept the important duty. Whatever Elec-
toral votes he decides to open and to have
counted must be counted, by himself, if
necessary, and whatever result he may de-
clare must be accepted as the legal and con-
stitntional result Of the popular election.
We can see no other conclusion to which
there are not giaver objections than to
this
Tue true and the sham independents d.
vide sharply on the present issue, as they
did, in fact. in the late Presidential canvass.
While the Springfield Republican gives its
best energies to getting Mr.. Tilden inaugu-
rated, as it did to get him elected, the Gin
cinnati Commercial, which is thoroughly in
1 l. l. L.. .irht-