The New York herald., 1877-02-06

brtouy de
mrable document the Electoral bun destined 60 tho
immortal honor OF those concerned In preparatory
Ia lines 7s and 70 Of the House bill H.
Tho same powers any, for that purooss
by the two houses. acting separately or together
You have this and this Is tho testa tho powers OF
those houses which could possibly exist under tho
law. as hxcd In the constitution ane In pre-cxisting
statutcsior the purpose OF your determination; and
this brings TO the question, What powers arc pos
sessei by the two houses separately together In
dealing with the whole OF this question touching tho
election as It arises on facts which may
and may be provenY This calls upon say what
those powers are aud gives question
counting the powers under existing laws at the time
this bill was passed-which needed tor u proper
decision OF tho qucston-residcd IN the President VI
the Senate or IN The two houses In tho respective
house acting separately.
POWER ov rmK PRESIDENT or rnE SENATE
Now that no power OF any description deserving the
name Of power 10 investigate aud decide resided In
the President OF the senate, II most papabic tho
very words OF the Constitution. He Is authorized to
receive certain packets; he has authority whatever
BY tho constitution save and except only present
himself TO tho houses and before them 10 open
these packets he word Is Certificates hut It ueaLs
these packetsl He has no right 10 open them any
previous time Ho has no power OF inyostigation
whatever He has no means or taking Testimony.
He mas no right to Judge OF anything. aud
but by the physical laws or nature, from knowins
what may be within any packet thus by him
until the moment when he opens that packet m pres
cncc OF the two houses. and the packets which he Is
mus authorized 10 open to the material OF
suosequenl action. Nothing further Is prescribed u
that he has none but the merest clerical
powers, nor any ability to do anything cx
cept to open the packets at thnt time, al
that place and In that presence. ne cannot eveu
know what In them until h. opens the packets and
opened, a preliminary effected which a count
must take place. no person or fupctouary being
count a good deal has been said which consider
not very applicable nor very Instructive IN regard "a
this word coani," as Il 1t was tho operative and
principal word here, and as u Il was used ID
determine the faculty and to point out
the powers Of those who must count I humUly pro.
sent to Your lionors consideration that the court itself
s purely ami simply an arhnetictl fact anu result
that IA regard to It there be possible difference
OF opinion anywhere or among any persons. hod
provision which ought not TO be overlooked. Tho
Vice President ~ 10 receive these packets or
ccrtlncates They arc TO have no note OF
ear mark OF any description to indicate what
they are and no can only learn by external ,naulry
that they offered by persons pretending 10 DO cec
tors oi President and Wee President Then the
st,a,ion proceedng 20 declare his duty says that Le
shall open all the certihcatcs The word all" would
perform no Junction, would be entirely useless II it
were TO bo confined TO indicating tho certificates
DO counted ln that case the simple phrase, ''ue
shall open the Certificates would suffice; but he
has 10 open nil the certificates, and thus provision Of
the constitution mot granting powers dealing with
facts declares that he shall open all the ccrlicates
that HIM under color OF beirg such certificates
as tho constitution refers TO, and there ends his duty.
But when come to tine prescription that
be count not told that there shall DO u
OF ali tho erticates Of the certificates any.
thing In tho certificates. but that there shall be
count OF the votes This, l humby submit. intro
duces i'm plication that somehow. or by somehow
from this mass produced aud physically laid before the
houses, there will be Investigation which
the nature Of the case may seem 10 require order
determine what the votes There is preliminary
inquiry, and whether you dcnominate It judicial or
ministerial executive II Is be INQUIRY the
power to institute to carry the inquiry Is neither
granted In tcrns nor provided with possible Ecans
ccrned, and is left to un Implication that II
IS to be exercised by those who may
have occasion TO act officially on the result
n " lu nre thqv m IN nrt nil MI iv ~ fha
terms OF tho constitution and in performance OF duty
tao count Of these votesy The constitution PLAN.
The votes-meanng OF course, the legal votes-are 10
be counted The count Is the mcrest OF ido minstc-
rial ceremonies In itself, but tho ascertanmcnt Of
what votes there prcsentcd claimants to the power
oi being recognized IN tho selection Of President
and vco President. necessarily devoves upon that
body or functiOnary which 10 obliged upon that
which ,s produced result by the count Now,
uuqucstionaby the rst and primary duty Of each oi
ton OF person to the Presidency and OF another per.
son TO the Vice Presidency, Is 10 recognze that
ordinate department OF the ovcrnmen tho executive.
All the world may count. No mortal doubt
about the count But the world " not called upon
act In relation TO that count until that count has bcen
recognized by somo body, aud officially resognizcd
and IL the duty oil tho House al
that point of timo 10 determine whether an exgcncy
has which renders its dlty to recognize that
person President by orcc oi majority oil The legal
votes or whether there has bcen failure elect
II il. occurs. tho House Of Representatives. i:
bound at TO act and elect President itsc. The
the Vice Presidency and that subject the
called upon IN like manner to the fact oil
election, To allow II, admit 1t ana accept fact
to dcny Il aud To say that II ~ not and then itself
to proceed 10 elect Vice President. attach I'M
portanco to the word 'count," but attach Importance
from the very nature Vi the thing, from laws
wrought into the constitution oi human beings and OF
human events, to the TACT that those acl
be needed Tor the purpose oi enabling them to count
ana TO act IN tho one direction or the oner, tho
case may requirS IN conformity with tina. count
founded upon their preliminary Investigation far
any investigation may 10 necessary.
Now the result Of this construction Is that this OH.
Ger, who mas no powers, rs set aside and confined
the ot any functions hs may have to tho
row llmits prescribed to him by the constitution, and
that tho duty ofexcrcising any higher function prci-
inary to this formal ndisputable OF act The
counting, Is devolved upon those who must take
OF tho count. But NO body is authorized TO
make to declare the count unless II DO these two
bodies respectively And thus power Is introduced
not Uy I'M pncalion of any forced nature. but IRON
tho absolute necessity OF tho case and consequently
claim that the power was vested IA those houses.
Now Is not to be disputed nor shall question
here, special point about II, that Congress
might, by united action have constituted some body
or place IN some Individual u Junction by means Of
which this investigation might have been made, and
how far Congress might have to make the action
VI this body obligatory need not inquire II Is
enough that II the two houses had the power
they did not exercise II prior TO this occasion and have
not otherwise cxcrcised II than subsequently 70 this
d'icu'ty Dy The constitution oil TINS tribunal ana 10
exercising II ana vcstihg that power here the two
houses have reserved TO themselves the privilege
coming by concurrent vote TO different determine
ton from what may be here arrived at. Now II
DO noticed that each OF these bodcs has complete
power Of investigation adequate power to take prooIs
through committees otherwise, on any matter on
which II may DO Obliged to pass either before alter
the opening 0i the electoral votes. They inves-
gate, though not with the iormalities OF jury, nor
under the precise iorms OF judicial proceeding; but
they investigate political legislative bodies
may, all the facts and circumstances that are ncccs
sary be known In ordor to enghten thoir judgme
and TO guido them 10 Just and righteous decision.
Our construction thus vcsts In these houses by u
impncation such contingency arising az
Is hero presented the power do whatever may be
ncediu for tho acc I'm mplisntncnt OF justice What 10
tho objection TO that c0nstructlong The whole argu
mcnt against resolves itself simply the common
everyday argument OF tho nconvcnent--the argu.
montum ad inconv nvcnicntum.
rHk INcoSvENIkNr ARGUMENT.
Those who would seek to grasp and hold oflce by
Illegal irregular, Unlawful fraudulent claim that
u would bc inconvenicpt TO take much trouble
might be necessary la order To Investigate and rightly
determine ON proofs the question o their dcin uency
ana Tho iasity vi their clam. This 10 tho e0mmon