Year: 1876

After all this is a government of law. Day
by day, discussion shows more clearly what the
law requires, and, if we except few hot-headcd
partsans the people manifest a determination
to abide by the law and sustain its enforce
ment. Discussion has settled certain points
already:


l. The Constitution leaves to each State the
duty of ascertaining the will of its people in
the choice of q President, and guarding the
election and the counting of the votes by such
precautions and forms as the State may deem
best If a State il in such condition, through
rebellion or domestic violence, that it cannot
participate in choice of President, as was
true of some States during and after the war.
the Constitution makes no specific provision,
because it presumes that neither House OF
Congress nor the NicePresident viii recognize
as a State that which is not a State. But II a
State exists, so organized as to be entitled to
vote at ALL the Constitution leaves to that State
the mode of ascertaining the will of its
electors


III. The laws of Louisiana and Florida, which
grant certain powers TO the returning boards,
are conclusive, and no power exists under the
Constitution for revision or reversal of the de-
cisons of such boards. A fraudulent or forged
return, not based upon such decision, would
be void but if State is entitled to vote for
President at all, and its properly constituted
board, acting within State laws, has decided
that certain persons are elected, no power ex-
lists to reverse its decision.


iii. When the electors meet, on the day fixed
by law, their first duty is to verify their
powers-tO ascertain that they are the persons
lawfully elected. If by error, fraud, or dis
regard of law, a certificate has been given to
a person not duly elected, the other electors
will know the fact, and act upon it. To take
an extreme case, if certificate should be
given, in disregard of law to one Democratic
elector in Oregon, because one of the Re-
publican candidates was not eligible, the two
legally y-elected members would doubtless treat
his certificate as illegal and void and proceed
to fiji the vacancy as the law provides.
". When the certificates have been received
and are opened by the President of the Senate
the Constitution requires both Houses of Con-
gress to be present. But it does not clearly make
the presence of both necessary to the validity
of the election. II does not empower either
House to do anything except be present. The
language of Kent, on this point IA entitled to
weight scarcely less than decision of the
highest legal authority. He says: 81 presume,
"in the absence of all legislative provision on
"the subject, that the President of the Senate
"cOunts the votes and declares the result, and
that the tco Houses are present only as spec
"t1tOrs to witness the fairness and accuracy
"Of the transaction. and to act only if no
"chOice be made by the electors" This view
is sustained by the example of those who
framed the Constitution, for when President
Washington was reelected, and the Senate and
House met for the first time to witness the
counting of the votes of electors, the votes
were opened, read, and counted by the Presi-
dent of the Senate without any participation
by either House or by tellers of either The
words of Kent recognize that Legislative pro-
"vlsi0n might be made, by Joint resolution
or otherwise, prescribing other modes, but none
exist the 22d Joint Rule has been repealed I;
and the matter stands precisely as it did when
the opinion of Kent was expressed. Accord
ing to that opinion, can it be supposed that
either House can nullify an election by the
people by mere refusal to attend and witness
the counting3


If this view is correct, the House has no
power whatever to nullify an election by Sc
cedipg from the joint convention, or by refns-
ing TO attend. The Constitution imposes
duty upon the President of the Senate, the
Senate, and the House, and if either should
refuse to perform the duty thus imposed, it
would not defeat the will of the people. 1t
would still be the duty of the President of the
Senate to open the certificates. 1t would still
be the duty of the Senate to attend, "wit-
"nessing the fairness and accuracy of the
transaction" 40 formal declaration by the