The New York herald., 1876-11-23
all possible doubts as to the question.
THE ELECTORAL VOTE.
PREcEDENTs AND INTERESTING FACTS FROM
CONGRESSIONAL HISTORY.

To EDITOR REPUBLICAN,
In view OF the fact that the canvassing Board in
OF tho States which the result of the Presden
tial election is conceded to depend has been
garded with great distrust and suspicion by candid
OF both parties and its action the last election
in strictly local matter SO scandalously Illegal that Il
formally condemned and aside through the in
terventon OF republican Congress, the question of
the counting OF the electoral votes becomes OF very
great importance
The republican leaders and organs even before the
election, insisted that the twentysecond JOINT rule.
under which the last three counts have been made
and which provided for the exclusion OF any State
the objection OF either house, is longer in orco,
owing the failure Of the two houses such
rule in the present Congress and the expressed dis
OF the Senate and that the count this year must
be made aud the result by the President OF
the Senate Senator Ferry, of Michigan Since the
election the republican press and leaders further insist
that the action Of the state canvassing returning
boards matter what 1t is, must be accepted final
and conclusive in the count in February
Now that the House has a democratic majority Of
10 ana the republican majority Of II,
Of the manifest possibilities of the situation, 1t be-
romes a matter OF grave importance to determine
whether these positions are sustained by the prece
cents Of previous counts.
The made under tho following provision OF
amendment II to the cons,itution:--'' The
President Of the Senate SHALL IN the presence of the
Senate and the House OF Representatives, open all the
certificates and the votes shall then be counted; the
person the greatest number OF for presi
dent snail be the President II such member be
oriy OF the whole number OF electors appointed.
The construction OF the clause, though never before
essential 10 the determination OF Presidential election
has been discussed several occasions IN Congress.
fnc amendment was proposed IN lsu3, alter the des-
peralc contest m The House OF REPRESENTATIVES under
he pr nal ,rDy re-
s:ed election OF Thomas Jefferson 10 the Prcsl-
lency Chancellor kcnt inclined 10 the view that in
The absence Of legislation the President OF the Senate
counts
,rhe constitution does not expressly declare by
whom the to be counted and The result do
clared In the case Of questionable votes and closely
contested election this power may be all Important
and presume in the absence OF all legislative pro-
vision subject that the President OF the
counts ana determines the result, and that the two
houses present only Us spectators TO witness the
harness ana accuracy of the transaction, and TO
pniy II no choice IS made by the electors" Il kents
Commentaries, 2,s.)
on the other hand, Justice Story. in his Commen-
tarlcs ON tue constitution is OF opinion that no pro-
vision is made Tor such an emergcncy-that il is
omssns in the constitution; and Judge Cooley, OF
Michigan, distinguished authority on constitutional
law IN his in The last edition OF the Commen-
taries seemed TO take the same Wow
"ln the original pian as well as IN the amendments.
provision is made Tor the discussion or decision Of
question which may arse 10 tho regularity and
iulhcGcity oil The returns OF the electoral votes, or
the right of the persons who gave the votes or the
manner OF circumstances In which they ought 10 be
counted II 10 have been taken Tor granted
tnat no question could arse the subject.
and that nothing more was necessary than TO
open the certificates which were produced in the
presence OF both houses and TO count the names and
numbers as returned Yet IL easily conceived
that very del cate and interesting inquiries may
occur 1T to be debated and occdcd by some delber-
roun ting OF the votes tor Presidency 1921 upon
,hc re election OF Mr. Monroe whether all votes OF the
s,ae OF Missouri mir ht be counted but as The count
eould make difference the choice and the deca-
ration made OF his reelection, the Senate imme-
stately withdrew, and the jurisdiction as wen as course
atnut in N CukA n lf N
smost embarrassing situation" q Storys Commen-
tares. section l,473l
nnanimity OF sentiment ON all occasions where the
matter has been under discussion against the cx-
AS eminent have taken part in these discussions
Imes when there was no temptation 10 party lines
the opinions expressed are entitled To weight,
independently OF the fact Of uniform and settled
practice.
by General Butler. OF Massachusetts twhose legal
ability no one viii disputc), that the express power
en ns esass 9, The Inc idea senate 70
grant OF power by intendment to count To
quote MS y 1ugaas e 1s 81 'ns oSn sSo
occasion OF the debate the Georgia question =
Where the power is expressly given by law to an
officer 10 do certain thing only that power Is limited,
and further power to do another thng not expressly
conferred upon him be given by int ndment,
and the very comforting the power with limit ex-
cludes the intendment"
The Congressional records show that the actual
count oil the electoral votes the following
manner up to adoption of the twenty second rule
in 1865 The President OF the Senate opened the
ceru0cates and then handed them to the teicrs pro-
viously appointed by the two houses. The teIlers
counted the votes and reported the count TO the Prcs
dent, who thereupon declared tho successful candi
dates elected.
Tue only controversies in relation to the prior
to 1865 OF which find record, were the cases OF Mis-
souri, in 1921 Michigan 1897 and that Wisconsin in
1867 The presented the question.
Each had admitted TO the Union just prior
20 the election and seriously doubted whether
any provision had been made for the election OF clcc
tors The Missouri case Is mentioned BY Justice
story IN the paragraph above quoted on that prcce
dent the resolution In the Georgia passed in
1859, as will be hereafter seen
In the Michigan case the following resolutions were
adopted by both houses.-
Resolved That relation the Of Michigan, if the
counting on,.tnr 70 sonnt them shall not essentially
the Of the senate in the following "Were
s rGsei o9 70 os not M
votes but in either event is elected and in like manner
This was reported to the Senate by Senator Grundy,
the chairman Of the committee, VINO remarked that the
same taken IN the Missouri In 1871
the resolution oil Henry Clay. The adoption OF this
resolution while u avoided tho determination OF the
legality OF the vote, seems to IMPLY the assertion
OF right in the houses direct the President the
senate In the count Francis Thomas, Of Maryland,
member of this committee the part OF the House,
fhlrty-two years afterwnrd In 1862 again mem.
Der and In the debate In the Georgia case rected tho
above facts, and in the course o. his remarks sad
inquire into The validity, the sunceucy The ae,usty
Of the votes which might be presented to the Vice
Presidents to be counted. "-tCongressional Globe.
third session Fortieth Congress
THE 1857
deserves particular attention. as the action IN The ws
cons.n that Is being very extensively ced on
Authority OF Senator Norton as precedent for the
right the President OF the Senate TO make the count
aud determine the result The facts In that case ,aro
~ folows.--rhc electors OF Wisconsin, owing to =
severe snow storm, which prevented all travel, we're
unable 10 reach the state Capital on the first Wedncs
Gay Of December, The day prescribed ,,y, ey law,
day, and their votes due iorm
for Fremont and Dayton Their certificate containsd
tclcrs reported the President OF the Senate sena
tor Mason, OF yirgnlal that Buchanan and Breckin.
ridge received La votes Fremont aud Dayton ll4
votes tincudine the I'VE Of wisconsnl and Fillmore