Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1877-02-09

LAWYERS VIEW OF THE CASE.
loS BROADWAY. NEw YORK. }
January 2J. 1877. I,


To the Editor o. tho Free Press ana Times.
Can Vermont. the most thrroughy and
pronouncedly Republican Gi the States. be
rcconclled to the part which her Senators
have had in depriving her Of her constitu-
tional advantage in the Presidential count,
and in committing her to the Democratic
marty. II SO. Vermont has ceased to be
Vermont
The only provision in the Federal Consti-
tuition for tine count il the clause in Act. II
The President of The Senate shall, an the
presence of the Senate and House Of Repre-
sentdt,res open all the certificates, and The
rOtes shall then be cOunted." The counting
involves the elimination of fictitious Elec-
toral certificates from the entire mass OF
certificates. which the President has re-
ceiyed. Ii must be done, "hen," which
means, on tho occasion of opening the GER
titicates; the two things are continuous
parts of one occasion no other agencies are
prescribed for it there is no room for the
Intervention OF a third or outside function
arv hence the jurisdiction to count is con-
fined to the President, or to the two Ito uses,
or to the President in partici patton with
and subject to the Houses, or rice UersG.
Without refining upon the subject, there
are several prominent reasons for the con-
the President, each of which is controlling.
and is a fixed and familiar test in court of
law in Interpreting constitution or q
statute. First, The text of itself. unaided
by any cognato considerations. necessitates
| the conclusion. 1t carries no other idea.
| Its only mention of the Houses is of their
presence, IN which something is to be done;
| and of the President alone Us doing it In
that pr essence; and the thing to he done Is
| to open and count, Ii treats the Houses
| simply as the witnesses Of his act. This
view. and no other, has been taken from the
| first by tho standard commentators upon
the clause. Again The history Ct the
clause points directly the same way. The
Supreme Court of the United States have
habitually referred to the proceedings Of
the Convention for light upon the text of
the Constitution. The clause in question
passed through three several readings on
respectively the 4th, 9th and 9th days of
September, 1857. in the Constitutional Con-
vention. They as clearly indicate the mind
OF the COny yentiOn, as do the alterations of a
sentence IN the process OF authorship the
mind Of the author. The first reading was:
! The President Of the ScnGfe shall IN thar
House open The certificates. and the rOteS
shall be then and there counted :" the second
= President Of the Senate shall open all the
certificates, and the r0fes shall then be- count
ed an the p,eS,nCe Of the Sendie and House
Representatives,; the third and final read
ing was the present text. Through each
form OF expression Iuns the same
idea namely. that the two Houses
should constitute presence. in OF
before which given thing WAS To bo done,
and the President be the actor. The first
chauge-being the second reading - WAS
nd lu IN Ia IN fh,, # m
House with the Senate. 1t was then obvious
that under this amendment the President
might Open the certificates prior to the
meeting OF the Houses, and count only in
their presence. To Obviate II private or
secret opening. the second change-being
the third and present reading-was sub
stItuted. The conclusion seems unavoidable
that, had the intent been that the Houses
should have counted, different expression,
and one explicit To that effect, would have
been employed. Again Art. II, in the
next preceding clause, requires the Electoral
certi hcates 10 be transmitted to the Presi
dent OF tho Senate under seal. places the
custody in him. and contains NO provision
withdrawing 1t from him, or suhjcctIng 1t
to the control OF the Houses or OF either Of
them. The custody and the counting of tn,
certificates are inseparable. Again in tn.
A.
: construction given t. 1t by tho parties il
their action under IT will control, II con
! si-tGnt with itS terms. The same principlt
applies to the construction of a constitution
but with greater pressure, bccause Ot tn
paramount Importance ot the subject, io
upon it must depend the uniformity of con
!, stitutional operation. and may depend tn
stability of government. On the Eth o
! | September. 1857, the Convention. alter i
! had transmitted the Federal Constitution t.
! the Confederate Congress- in order To pu
U the meaning OF this clause beyond doubt
> passed resolution declaring that the count
ing duty devolved upon the President of til
: Senate. The first count was made in l1sg
: in accordance with thI- construction. and. IL
l. a matter Of course, Washington and Adam
t were counted IN and this construction ha
d been continuously adhered to since. Ii
: true that IN later years the House, have IN
II few instances interiered with, and shown
disposition to encroach upon. the Iurls dc
i ton OF the President-but have never inter
l. iered 80 far a. to control that jurisdiction