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


to assist the President of the Senate by
keeping tally of the votes as opened and
declared by him, and to make list show
ing the details, and the result to be handed
to the President of the Senate, who might
authenticate 1t by reading it and anncunc.
ing it TO the two Houses and debating the
| result. The President of the Senate could
not make copies for the journals. These
preliminary arrangements have been made
| on every occasion, including directions to
their own clerks to enter the proceedings on
their journals. None of these things have
intericred with the powers of the President
Of the Senate, who, in this matter at least,
is not in any sense the agent or officer OF
either House or of both Houses.
WHEN SHALL THE VOTES BE COUNTED?
They shall be counted on the second
Wednesday OF February, as soon as the
certificates shall be opened by the President
Of the Senate, and for this purpose Con-
gre>s is required by law to be in session on
that day, and on no other day, land the
certificates shall then be opened, the votes
| counted, and the persons to fill the Offices of
President and Vice-President asccrtaned
and declared"
| This l. to be done then, p" and at 20 other
time. If there be no choice of the people.
then the House of Representatives shall
choose ,'nnMediatciy," by ballot, the Prcsi-
dent By the Constitution this is not to be
| L work Tor delay or discussion.
| Ii this was lett uncertain by the COnsti-
| tuition, 1t is already made certain by the
Ges of Congress of 1872. which puts the
| opening the certificates. counting the votes,
| and ascertaining and declaring the result as
one simultaneous and continuous act,
leaving the conclusion irresistible that the
| person who was to open the rtIfcates was
also TO count the votes declare the
result, as it was plainly int ed to be.
Let US look at the Consr lion and act
| of Congress together, as in pdri ma
trid, that we may see whe, er, on fair
construction of the Constitution and the
act OF Congress. the President of the Senate
was 10 be IN underling, q mere tool or
servant of the teilers.
by the Constitution the Electors are to
iaeet in the States and vote by ballot
for President and Vice-President they
shall make list of all the persons voted
Tor and Of the number of votes for each,
| which list they shall sign and certify and
transmit, sealed, to the seat of Government.
d!recteG TO the President of the Senate. The
President Of the Senate shall, in the pres
ence of the Senate and House of Represen-
tatIves, open all the certificates, and the
|
clause of the Constitution alone, which at
that time was the only evidenceof the law,
no other person being named than the
President OF the Senate, WOO had charge of
the cert .ticateS, he with such assistance as
he might employ would be pronounced to
be the party to count the votes. Ii must
not be overlooked that in that clause of the
Constitution, when anything is to be done
by the Senate or the House, it and they are
distinctly named. There is nothing lett to
implication or construction.
Before another election the act OF Con-
gress Of 1872 was passed. and has since
been revised line by line. 1t is from that
revision that | now quote. 1tprovides that
the Electors shall make three certificates,
to be- disposed OF in the following manner !:
"FrSt-They shall by writing, under
their hands or under the har ds OF major
| ity of them, appoint person to take
charge of and deliver 10 the President of
the Senate, at the seat of Government said
certificates
SscoRd-Tbey shall forthwith forward
| by the pOstofico 10 The President of the
Senate, ut the seat OF Government. one other
| Of the certificates.
"Ihrd-They shall forthwith cause the
other Of the certificates to be delivered to
the judge of that district in which the
Electors shall assemble.
"ln case there shall be no President of the
| Senate at the seat Of Government on the ar
rival OF the parties intrusted with the GER
tifcates Of the votes of the Electors. then
such persons shall deliver such certificates
into the flee of the Secretary of State, to
be safely kept and delivered over, as soon as
may be, 10 the President Of the Senate
In none of these contingencies are any of
these certificates, by any possibility, to 90
into possession of either House of Congress,
raising the strongest presumption that
| Eeither House was to have the control OF
| these certificates or to act upon them.
But the act of Congress further says
that Congress shall be 10 session on the
second Wednesday in February succeeding
any meeting of the Electors. and the certiti-
Gates. or so many of them as have been
received, shall then be opened. the votes
counted, and the persons to fill the Offices of
President and Vice Presiden. sscertained
and declared. agreeable to the Constitution.
| -(Rev. Stat. U. 5, Sec. 1917
\ Is there any reasonable doubt that the
legal { feet of this lsngusge-the certificates
shall then be opened, the rotes counted, and
| the result GScerfGmcd and decidred-is to
make the opening the certificates, counting
the votes, and the declaring the result, one
continuous act of the same person at the
| same tine? Can any one believe that the
| Constitution or Congress intended that the
| duty OF the President of the Senate ended
with breaking the seals of the certificates?
| Were the votes after that to lie around
loose? We're they TO be passed to all
the members (i45) of both Houses for
their individual examination? Were they
TO be handed to the Speaker or the Clerk
Of either House. or to be referred to COM
mittec OF eithe: House. or joint committee
of both Houses. or to lie on the table and be
printed that they might be examined
Everything shows that they were delivered
to the President OF the Senate as the dur
fdcti 10 perform whatever responsible duty
was to bo performed in relation to them.
Done by the Pr ident OF the Senate. it
could not fail to be done them without
discussion or delay. Done by the two
Houses, it might be delayed till the count
should be defeated. and q man become Presi
dent for whom no citizen had voted. BY
delay there would DO opportunity to form
caba!s, rings, compromises. arbltratiOns,
log rolling, and games of chance-all such
things the Convention was expressly AK
ious to prevent, az abundantly appears
in the proceedings Of the Convention.
Ii is worthy OF remark that these tellers
on the port of the Senate are appointed by
tho President of the Senate. On some of
the occasions tho entries os the appoint
ment are mado in uncertain language, and
10 some Instances there are no entries, but
in the later and more careful years OF
1887, 1911, 1919, 1853, 1857, 1861, 1869, and
1873. in each case 1t Is expressly stated
that 1.-The President of the Senate" or
1.-THE Vice-President, appointed Mr.. -
teller on the part OF the Senate. and the
limited clerical duty of the tellers is always
expressed in the resolution of the two Houses |
providing Tor their appointment - 10 make |
a last Of rOteS as they shall be declared" 10 |
declare the votes Is to state openly what |
was before scaled up; to give the name of
the State. the number Of It's votes, and the |
persons for whom they are given. When |
the States are gono through by him and |
the votes have all been counted by him. |
the one having the majority is the Presi |
dent Of tho United States.
There have been acts of Congress passed |
in relation to this subject, regulating what |
under the Constitution may properly be
be regulated by law. Such are the acts of |
1872, 1904. 1915, and the revision of them
all IN 1873 -four acts of Congress scat
tered Through more than eighty years.
These acts, together with the resolution of |
the Congress Of the Confederation. present |
a most remarkable Legislative construction
q! the Constitution. by their silence a9-
proving the existing mode rs the cons.itu
tiOnal mode.
CONTEMPORARY AND PRACTICAL CONSTRUCTION.
Judge Story says: Contemporary con-
structiOn is properly resOrted to to illus
trate aud confirm the text. TO explain
doubtful phrase or to expOund an obscure
clause, and in proportion to the uniformity
and universally Of that construction. and
the known ability and talents of those by
whom 1t was gwen, is the credit to which
it is entitled (Stury Gu the Constitution,
section 1870. And after all the most I'M
czccptinnable law of collateral interpreta-
ton Is from the practical expUstions Of the
Government Itself Ind section 1855
The Supreme Court ct the United States
decided 10 stuart v Laird" list Cranch
Rep, 800 J that u contemporary EXPOSE
ton oil the Constitution practi-eI snd ac
quicscei in Tor - period ot years Hzcs the
construction, aud the court will not shake
ar rnnfraI n ~