New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-11-15

There is law higher than all written con.
stitutions: It is the law Of eelfexistence,
and that would be the law incumbent uuon
the two houses Of COngress.-New York
Herald
BUTLER ON THE SITUATION.
Counting the Electoral vote-The Author.
tty to Count Involves tho Right to ecru-
tiniZe.
General Butler foresees the possibility of
grave complications in the counting of the
electoral vote. In an interview with your
correspondent this evening he expressed
himself quite freely. and herewith submit
his views in full:
"It is hardly fair" said the General, ITO
ask me question upon 8 disputed point of
constitutional law without any opportunity
for either reflection or veriticati0n of my
views; but as entertain NO opinion that l
ana not always willing to express, will
give you the frat view of the subject of
your inq uiry as it strikes me. The c0nsti-
tutional provision is that the President of
the Senate shall, in the presence of the
Senate and House of Representatives, open
all of the certificates OF the electors, and
the votes ehall then be counted. The
duties of those engaged in this work would
seem to be-frst, that the Senate and
houso musU couo tORo.ucI' tneH tAo AIen'
ident of the Senate is to open all the
certificates; then the votes are to
be counted. Now, the counting of the
votes implies q scrutiny Of them, an
examination of them to see whether they
are correct cr fraudulent. Whoever has
the counting in charge must be convinced
that they are not fraudulent, and the Ger
tlficate i. q correct and just one. One has
only to suppose forged certificate, which
would not be counted. Whoever may be
entitled to can examine the certificate to
see whether it is forged one. If they can
examine the certificate, in one particular it
would seem clear that they could examine
it in all. Therefore, ana of the opinion
that whoever has the counting Of the votes
must have q right to scrutinize them in
every particular, and if from any cause
any of them are deemed fraudulent they
are to be rejected. This, however. is
strengthe ned by the idea that this tribunal,
provided by the constitution to count and
scrutinize the votes, is the one of last re-
sort, and in the matter of scrutinizipg cleo.
tions the houses or body who are to make
the final determination have the right to
make the most exact and rigid scrutiny
possible. receiving such evidence as may be
determining to their own minds on the
questions involved there.
TIE question comes to us, Who is to
count the votesi Not the President of the
Senate, for he is to open all the certificates,
and the vote shall then be counted. The
constitution seems not to be explicit as
to who is to count. Bat why bring together
both houses if they are not to count or take
together, as in the provision in Massachu-
salts, that the votes shall be counted in
open town meeting, Simply as Witnesses to
the opening, because the practice has been
never to allow any interference with the
counting by the people, they simply re-
naming to see that it is fairly and openly
done. But surely both houses would not
be called together as simply witnesses.
Now we are without law on the subject, and
the joint rule of the two houses has beer
annulled. 1t would seem, therefore, that
both houses must agree upon some plan by
means of which the counting shall be done
or they are without any guide. 1t would
seem to follow that each house would be q
check upon the other, because either house
is only to withdraw from the convention
and then the counting can not be done II
the presence of both houses. It is difficult
therefore, to see how any vote of any Stat<
can be counted without both houses agree
1t will be observed in constitutional pro
visions that there is no time limited q
which the houses must meet, but by law i
of February the certificates of 80 many O
them ss have been received shall then b.
opened, the votes counted, and the person.
to fill the offices of President and Vic,
President as ascertained ard declared, an(
agreeable to the constitution. But it il
clear that they must meet before the fourth
of March, or else there will be . lapse o
the executive branch Of the government
for there is no constitutional provision no
no law which allows any holding over o
the President until his successor is ap
pointed or substitutes any officer to TAX
his place. The law which provides that il
some contingencies the President of tn,
Senate and Speaker of the House may &C
as President is only provision for certain
specified cases; and there are only tn
contingency of removal, death, resigna
tion or inability of both President an(
Vice President, neither of which woult
be the case which We are considering
Where no President is elected, then
it is provided by law that whenever tn!
Offices of President and Vice President boil
become vacant, the Secretary of State shall
cause notification thereof to be made to tn
executive of every State, and shall als'
cause the came to be published in at leas
one of the newspapers printed in each State
calling for new meeting to choose electOr
for President and Vice President, to b
chosen at the various times therein pre-
| vided. But suppose that there is no count
| ing of the electoral votes before the fourtl
of March, and, if upon the counting n
President or Vice President appears to b
elected, then the provision is that the Houe
shall proceed to elect President. v0tinI
! by States, each State having one vote
Would that provision go into operation in
case where it appeared that there was NJ
electiOnf Because there was no cOuntin
will the present House in such case procee'
to elect, Mr.. Tilden having q majority Q
the States2 What is the remedy Of the ms
| iority of the people if Mr.. Hayes is chosen
In that case will Mr.. Tilden be President
Or suppose the House do not 60 into o
election; Congress is dissolved on the fourt
| of March by the expiration of the term Q
service of the House. As we have seen
| there is no provision for the President
hold over, and no provision for his succel
sor in the interim between that and q neV
election. What, in such case, is to be done
| The genius of all government is that tn
Executive must never lapse. The an
nouucement is made, "the King is dead
long live the King" in the same breath
Officers under most of our State constitl
tions and most of the officers of FEEDERS
| appointment hold until their Successors al
| appointed. IL it not then in accordanC
| with the genius of our institutions, and b.
ing c0sus 0mill,ls in the constitution an
laws, that the incumbent should hold ovt
until his successor is appointed and quail
fed. The law, as we have seen. havin
made provision within limited time fl
the appointment of a successor, would
not be the duty of General Grant, und,
such circumstances, to hold on and see
it that the laws are faithfully executed N
til successor should be fuly chosen an
L
fed, and would not the good sense an
sound judgment by all patriotic and iu
men agree to such an Interpretation rath'
than to have anarchy, confusion and pc