The sun. [volume] (New York [N.Y.]) 1833-1916, 1907-06-16

| UNIV " avn
that the unconstitutionality OF any inter-
ference by Congress with the assumed
preroRative Of the President OF the Senate
has even In recent years been maintained
as earnestly as il was by the spokesman OF
the Federallst party, Charles c. Pinckney'
in the Senate in 1900.
The discovery, however. OF the grave
significance of the ambiguity that lies IN
the passive EXPRESSION "the votes shall
then he counted was gradual. The Phila-
delphia Convention seems 70 have aken
for granted that none but legal votes Wouln
be presented by electors. all constitution
| ally qualified 10 vote. and that counting
or enImerating the votes would be a simple
ministerial task. The only limitation upon
electors was that they should not he IN
the service Of The United States. and IT was
presupposed that no State would impair
or nulIifv it's votes by appointing az us
agents persons ineligible TO execute the
exalted trust. For a Ike reason 1t was
assumed that the electors appointed by d
State would never select for the Presidency
an alien. a foreign potentate or a person
ineligible for lack OF years or OF residence
lest such a choice should invalidate the
vote OF n State. The jealousy with when
ri PHILADELPHIA the smallest States guarded
their preroRativee and insisted upon their
rights Was. il is well known, one oil the
cardinal difficulties that beset the conVen-
ton when il undertook TO devise n plan
of ~electing q Chief Magistrate that would
be received hy them with favor. The I'M
agination, therefore. OF the trainers "'
the Constitution could not readily CONCEIVE
that the counting Of the electoral votes
would ever he other than A simple MINIS
terial function. 10 he performed. as Ihey
probably intended, bv the President OF
the Senate in the presence OF both houses
attending an witnesses OF the solemn cere-
monv. Our author recalls the interesting
fact that John Adams. as the President OF
the Senate, in announcing his own electloh
to the Presidency in 1877 declared that,
in pursuance Of the Constitution ana
the resolution Of the two houses. he had
counted the votes AMI no exception was
taken to the declaration. or, as MIR. Dough
erty savs, could we'll have been taken
under the peculiar language OF the resolu-
zion adopted by the houses lhst before
the In time, however. count
ing" was found 10 involve more than emu
maratinq the electoral votes. and il gradu-
ally took on the meaning NJ -canvasslng.
Even the word STATE" was ultimately
seen to need definition. For example;
4 Was India nr Il State in 1915? Vas Missouri
a State in lS"u' Each Of these Common
wealths %appointei electors, and a certlticate
from the so-calIed electors of the sell
STYLED State Of Indiana lay in the pile OF
electoral certificates before the President
nf the SENATE in 1917, and a similar cerutl-
cafe was transmitted from Missouri IN
1921. although il had not actually Deen
admitted as a State when its electors voted
in December. ls20. When the question
was raised. az il was. there appeared TO he
no constituted authority to solve IT. ana
n solution was evaded.
Another fact generally forgotten also de-
serves to ie allied to mind, as II ID IN the
book before us. An act Of Congress OF l1s2'
following the Constitution. prescribed the
time when the Presidential electors should
assemble in The different States TO vote Tor
President and Vice -President; but when the
electoral certificate Of Wisconsin was opened
in the Senate in 1867 il disclosed the fact that
the electors had ATTEMPTED In good faith 10
ohey the Ia W and tn meet on the appointed
day blt were deferred from doing so by a
violent snowstorm. They consequently met
and voted the following day. When the
woe was challenged in the joint session Of
the Two hOuStS u 'oilRltHo '"C i'''y ""S
mn whether the act OF God should disfran-
chisa a State. but the actual question to be
determined was, Who was TO decide upon
the legality Of the vote? Did the Constltu-
ton intend that the vast power Of deter
mining whether II Commonwealth claiming
J 10 he a State was in fact a State or whether
n State might lawfully vote upon a different
dav from that designated by Congress IL it's
vote upon the appointed day was prevented
by an act Of God should he contided to one
man. he President Of the Senate. who him
self might he vita lily concerned in the de-
cision, as being a candidate for the Presi-
dency! Faulty and irregular certificates
or certificates alleged for various reasons
10 he invalid we're from time 10 time de-
posted on the Vice-President' desk; nnaiiy
came dual. treble and even quadruple re-
turns from a State. each ~purporting to he
sufficiently authenticated. each claiming to
exhibit the electoral will of the State. Was
one man, the President OF the Senate, to de-
eide between these conflicting returns? II
so. was he not then the arbiter OF the nations
destinies? Or WAS the power, on the other
hand. in Congress: and il in Congress, was
il TO I've exercised 10y the houses sitting as
one body. voting yer capita; and if not, how
was a definite conclusion ever TO be reached
if the two houses should fail To agree?
TbnS tho ,natter stood when inst before