Year: 1877

hot Ill conformity with the Constitution


would be binding upon no one. Years oil


apparent consent to manifestly wrong con-


struetion cannot make that construction


right, or make the Constitution different


from what it is.


MIR. Willard shows that the Constitution
itself gives the President of the Senate no
power to count the votes, and the record
shows that Congress has nearly always so
regarded and treated this question. Mr.
Willard cites the record in the case Of the
ninth election. when objection was made to
the vote of Missouri, showing that the Pres
ident Of the Senate announced the vote as he
was instructed to do by Congress. Mr..
Willard further says that the POWER of the
two Houses, either in the joint convention or
as Congress, to determine what votes shall
be counted, has always been asserted and
never seriously questioned.


Against this uniform action of Congress,
there is nothing in the records except the
certificate for several successive elections
made by the President Of tie Senate, which
recited that he had counted the votes and
that the Senate ordered this certificate to be
made, which has been taken as an assertion
on the part of the Senate of some power over
the count, and 20 far in conflict with the
view that the President of the Senate has
sole power in the matter. But even the
Senate dropped this empty form in 1929,
and it has not been heard of since. "Can
the Republican party now" asks Mr.. VIII
lard, sin defiance of the plain language Of
the Constitution, in the face of the uniform
assertion of power in both Houses of Con-
gress, and in the light of its own record, af-
ford 10 insist that the President of the Sem
ate. happening to be Republican in politics,
shall decide what votes shall be counted
and who is President"


To this Mr.. Walton replies with obvious
force:


The convention, which formed the consti-
tuition, declared that the President of the
Senate was to receive, open, and count the
votes. Did that convention violate the very
Constitution which they had Just completed!
or rather did they not interpret it precisely
as they intended to have every body interpret
it in all future time? &C. W. W" admits
that 1.-THE first election of President was held
in pursuance of this resolution :" in other
words, that the first Congress interpreted
article two of the Constitution precisely as
did its trainers. lie argues against this as
an Interpretation because "tbe convention,
being composed of men who knew something
Of the use OF precise language in constitu-
tion, could have said what they meant as
well in the Cons as in the resolu-
ton" The answer is, that having said by
their resolution precisely what they did
mean by the words of the Constitution, their
Interpretation is of the highest authority
and conclusive against all other interpreta-
tons. Chancellor Kent, in commenting
upon the second article of the Constitution,
said in 1886, that he presumed the Presi-
dent Of the Senate was to open and count
the votes. That was his inference from the
words OF the Constitution, not from prece-
| dents or the authority of other interpreters.
As against the claim of right in Congress
TO interfere with the admission and count
ing Of the votes, Charles Pinckney, who was
member of the constitutional convention,
said in 1900: 10 give to Congress, even
when assembled in convention, right to
reject or admit the votes of States would
have been as gross and dangerous an ab-
surdity as the trainers of the Constitution
ever could have been guilty Of" The truth
of this is obvious from the fact that the
States only have the constitutional right
to elect; whereas, if Congress can admit
or reject States at its will. it is Con-
gress and not the States which control the
result. If Congress is excluded, then Mr..
pinckney must have believed that the Pres
| ident OF the Senate is to count the votes
and declare the result. Certainly there
is nobody else who can eonstitutionally do
it.


Nevertheless it Is true, Us &c. W. W"
has shown, that objections have occasionally
been made in the joint meeting Of both
Houses, to the counting of the votes of eel
tain States. At the eighth election, the vote
Of Indiana was objected TO, on the ground
| that she was not Sta;e-a case like that OF
| Colorado if the House shall refuse admission
| to her Representative but .he objection
was not sustained, and her vote was counted.
Again, in the ninth election, objection was
made to Missouri for the same reason. and
it was avoided by a compromise Of Henry
Clay that the result should he declared both
with and without the vote of that State, the
result in either case being the same. Still
again at the eighteenth election ,as TO the vote
of Wisconsin. of which &c. ". W" states
that the certificate was delivered by the
President of the Senate to the tellers and
Ill Al. IL. ii
though the votes were not given on the day
fixed by law which does not agree with the
newspaper report of the facts which have.
But in either case it was by the President,
and not by either House. that the question
was decided. In 1865, Congress assumed, by
the twenty-seeond rule, to provide that an
objection by either House should reject the
yute of a State. Assumed, without j0t Of
power from the Constitution, and in opposi-
tion to every precedent. On this point the
emphatic language of John Randolph in
1871 is pertinent:


He could not recognize in this House the other
House, singly or couointy the power 10 decide On
the votes OF any State. lie maintained that tho
Electoral College was as independent o: Congress
as Congress OF them and We have no right, said he,
TO judge of their proceedings. Mr. Randolph said
he would rather an interre guum, see votes
counted at ALL than to see princ pie adopted which
went to the very fuunds ton on which the Presden-
tial flee rested Suppose case IN which some
gentleman of one House the other, should cho,so
To turn up his nose al the vote Of some state and
say that If it he SO and such perscn is elected
and il so and So. what-yGu-callem is elected
did not every body the ahsurdity Of such pro
position ,-BsHtIN's IbridCmtnt tofHinc III, Pdyr
il3.


This was not only constitutional, but 4
common sense view of the question. The
truth is, that when the Constitution says
that " each State shall appoint, in such
manner as the Legislature thereof may di-
rect, number of Electors, etc, and that
such Electors shall sign, seal and certify
and transmit sealed to the President of tht
Senate, their votes, who shall open all tn
certificates, and rhc votes shall then he
counted" all power of Congress, or of any
other tribunal, is excluded. There may be
frauds in an election but it Is the duty OF
each State to prevent frauds, and TO deter
mine who shall cast their Presidential vote
There may be duplicate certificates from
State, and irregular certificates. but as the
Constitution stands, nobody but the freSi-
dent of the Senate can decide which certii-
ieate shall be admitted. 1t may he wise to
provide some other way; but it can be right
fully done by an amendment TO the ConstI-
tuition only.


FouR years ago, two factions contended tor
the control of the State of Louisiana. The