New-York tribune., 1877-01-06
THE CONSTITUTION.
LETTER FROM f. w. sToUGHToN.

To the EdtfOr or The TrtONHc.
SIR: The people OF the several States have,
in pursuance OF the Constitution east thcr votes for cleo
tors who have discharged their duty By casting and GER
ufying their votes for President and ycePresdent Of
the United States Those two great officers are now ac-
tualy elected To ascertain who they are the electoral
OF the several States must he counted and the
suit decared aud for the first time in our history the
nation is agitated by the inquiry Upon whom does this
duty devolyel This is Il grave question thrust
upon us Mt this crisis, and Democratic leaders have
threatened told that the President OF te Sen
ate shall proceed the electoral votes the House
will withdraw from tho scene, elect Mr. Tilden President
and by armed bands now 1t is said being organized will
maintain his right 10 that great office by force. attach
but little consequence to these threats.
II said by Chancellor kent. great authority, that
although the Constitution does expressly declare by
whom the votes are 10 be counted presumed in the
absence of all legislative provisions the subject, the
President of the Senate counts the votes and determines
the result anJ that the two houses are present merely
spectators to witness the fairness and accuracy OF the
Transaction" There not when he thus wrote-tncre
is not nowhere never has been, believe, any le9is
atiye provision whatever .suojsct Of counting the
electoral vote. His opinion based upon the provision
Of the Constitution which declares that electors appointed
by the several states "shal make distinct lists OF all
persons voted for President aud NicePreSdcn and
of tle nnDbcr of votes for each which list they shall
sn and certify and transmit sealed TO the seat OF The
Government tine Dnltcu 10 ftcS-
dent of The President Of tie Senate sba ~
presence of hc Senate and House Of Representatives,
oDcn all the certificates and the votes shall then be
counted" " and in reaching this conclusion the Chancellor
guided only by rules OF construction by him pro-
foundy studied, applicable to tine Interpretation OF all
written Instruments, but by practice originating with
the trainers of the Constitution.
This theory may he summed up follows: II the two
houses cannot agree upon mode of counting the
electoral vote II cannot be counted II mode Is agreed
upon aud the count proceeds 1t in the power of the
House OF representatives. or OF the Sen3ie by ODectng
TO the vote OF any state, its reectiOa and H. in
the absence Of such agIcenc the Piosicn OF the sen
ate attempts count the vote, the objection suggested
may only be nteIp0scd but tne House OF Repre-
scntatiyes may by retiring, defeat the count alto
cethcr.
II is well state the estimate undoubtedly formed by
those who framed the Constitution OF the character
wisdom and atainmeuts OF the person who would prOba-
by thcrea selected I'LL the great Office Of Wee
President Of the United states and President of the
Senate. IL was by them regarded office Of much
dignity AMI the incumbent Of wnch might and
several times has become President of the United states
He TO De their esteem great and highly hOnorcd
magistrate beyond suspicion OF unfarncss whose every
official be performed n the presence OF free,
INTELLIGENT and dcprndeit people upon whose Judgment
hs tame would rest. COnsi now the nature or
ddty involved in receiving, opening, and counting
electoral votes; and whether tile trainers of the Cons l.
tuition could considered it one demanding capacity
ipirgrity or learning beyond tnat which tney mislt
fairly assume would be possessed by tie second hdEs
l. sl,nuld be- borne in mind that each State by the
Constitution 10 apoint clcc Ors in such manner thu
Legislature thereof might direct and hence the only duty
wnich could devOye upon tue NcePrcsident wo Ill DC
tint of det.,uiung-oOt whether STATE in such
la.ion the 1n 10 entItie IL to participate IN the
election President and l"e-lresident-fOf tnat was
ana is ticaI question detei mineI ny Congres
OF tnc Executive but whether the certificates 20 br
opened contained electoral votes Which shOuiI ne
counted. with the justice or propcty ot the laws me
appointing electors. neither the Ncc-Prcsiieht tOI
gr.Ss could interfere. hIs SUBJECT over which
each Stale mad su9reme and exclusive jurisdiction
Those who are lamac Wh the proof winch was belole
the Returning Board of Louisiana, and 0se acquainted
with that already taken there by the committees OF thc
Senate aud Hnuse aware that the evidence before
the board warrautcd s concIt'ioli, aud that "a" tes
ony taken ttnS only 10 confirm It's accuracy and
kist. BUt II this othcrwiS", rs the board heard
competent testimony on bJth sides, It's DECISION Wln
its Jurisdiction mast stand, although the House or its
committee might think re weight oi proof against it,
The Constitution declares he shall, in the of
the senate aud House OF Representatives. open AL the
certificates, ana the votes sIali then he c"tnteL Nhd
certificate is he 10 opeus ANA That votes are 10 be
counted! Clearly those, and only those, transmitted Dy
tlecora a"Iliy appointed VINO i 10 deielin!h. tH,
Tue President the senate cln II hound Ia erfO NJ tins
duty proof on tue subject necessary TO deter
mine which ccriihca'e II genuine, ana Is qute c9ilpc
tent O consider and pass npon The question: and III the
absence of legislation. seems 10 DC the only Oncer or t
buna capable III 40 doing.
Tnc two houses are be present but they do not act
eSe two bodies II they differ is 10 determine the genu
iu,ucss OF the certificates aud OF the N0'ea, te .rcs
is Inc superior oiBer either assume the
power rs against t.e other 0t counting the votes Eacn
imam tine theory Of Mr. 11dens followers, claims the
rgi,I not 10 count the votes. but praciy 10 prevent
tuclr being counted Einer house may, Is uisd, 9s
elm. To agree upon lie of counting tncm, and under
sIy aud Crcunsi cts, cach, u s sa!d hiS te EiSl
insist upou ut rejection "f lhe vote oI Jy Sdte ~
will Tie dog iii the mdngcr occupied precisely tis pos
On win little advantage OF argument ID iaV0r 0t
F Is stated the conclusion DE derived from this
reasoning that upon officer or tribunal Is c0pstitu
,paly devolve,, thu power duty to count tue cleo
Il
Sfatc Tnc Precedent of the Senate cannot do II; thr
s,uitr cannot do the House cannot. NhJ can! Tna
tolowrrs OF Tiiaen answer We will consent to Il scneH"
dong. bnt 0nly upon condition ihat we inay al
pleasure count m in. or so coniuse an coh"hnh th"
electoral vote enable the House OF Representatives
In tnc maine of the authors of the Constitution whose
intrlgcncc thus questioned and inSn'tr-ln the III
terest uf justice and of common sense aLd OF ali good
ciIzens denounce inns doctrine az ml9cet ouS ohcO-
slitUiioIai aud Revolutionary. Bhrgdins based n"n
pretens0hs, 10 accomplish such phrpoS' state
men, cenaoIs Representatives, WILL trust, decline to
Let us now briefly inquire upon what preeedents Judge
Ken. based s OF the eoiisitue-
tip may hr fairly given I" the Constitution itrli
On the ON oi April 1889, tue senate rIoececd 10
ballot tor tine choice "t fIGSnltht lor ts s1 pl,r
oi opeuug art counting the votes Tor President Ol tie
Uuiird SGites." aud John I@llgdon VAS elected .,
Now tins was 'e WORK oi iie l''.,o q" tl'
lion. Ihe convention which framed IL recommended
that Z President ~ tie ScDaie should pc apponod Tor
III. sole purpose receiving opening, Hnd couuIng tie
ell rtora Yoys and lac was ~ CHOSEN. That Was 10 be,
aud was, IN, only junction.
Mr. Inydon aftcr the two hOuses met. declared that
ia ia ter presence had Opcned and counted the votes
al
I'mtcd stutcs" and tna GeUrg; washington was uuRni-
uU;SY cpcird President ANA thIt Joan Adams wac duly
elected Wee President TnrrrUpun Coinmitrc of four
as appointed 10 prepare certificate oI tho election 10
, sirtd by Mr. iaingdOn. and tDat framed ana 10y hm
si.1, That he d0, III the presence ot th' said
Nuntr and House of Repres Natives open All The Cerln
Gates and count al the woes of thc electors Ne such
vas te practicai construction put by tae Ju rs OF the
Con~Jtu,i upon he clause under Considerations ana IL
wouI,i -crin Ia decisive as TO its true meaning.
buchanan elected, t'''lS
amounted a. before 10 make list Uf the votes az they
sli D dccared" aud for the first time, D.icNc, in
itir history they reported "thdt tIey have counted
tne yoi OF all the cast for Prcsdcnt AMI Wee
Prrsd,u Nc., and Buchanan declared elected.
n WIS an i'll that Gt first lime IN the History of