The President Or The Senate

The following letter from ex-Lieutenant-Governor Chas. S. May, ably discusses the claims made in behalf of the President or Presdent pra tempore of the Senate and oxposea their baselessness : To tho Editor of the Dotroit F ree Frass. In the very t'ull and exhaustiva discussion of the inauy questions arising out of the Presidential sitaation thern are two or three points which seetu to nie of importance, which I do not reinember to have seen auywhcre made. I de8ire simply, with your perniissiou to throw tlu'iii out tor what thoy may be worth - not here to elabórate or go into a lengthy argument npon them. Tho points are these : Under the revised plan which has boon adopted by the Republicau conspirators for counting the olectoral voto since the Goveraor of Üregon has commissioned a Tilden Elector, it is claimed that the President of the Senate may look behind the certiticates t'ar onough to see whether they be in conipliauca with tho State law and authority. Now, in South Carolina tho pretended Hayes .Electora were given certincates by the Board in violation of a writ of prohibition by the Hupreme Court. The question arises - and this is the first point I make, and which I should like to see - can that be done by State law and authority which is expressly furbidden to be dono by the highest judicial power in a State i In otber words, can that action be lawful whioh the very power in the State whose province it is toj decide what is lawful pronounces unlawful, and commands not to be done ? Every lawyer knows that the operation a writ of prohibition is to render void anything done in violation of it, besides making the doer of the act amenable to the court lor the coutempt. In the limits of the State of South Carolina, for instance, nothing could be valid or lawful which should be done in violation of the injunction of the highest court of the State. Now this electoral vote is a matter undor the control of the State or it is not. Il' it is not a matter under the control of the State, then it must be subject to the jurisdiction and revisión of Congrega, as a thiug of Federal conccern. There is no escape from this result. The favorito view of Republicans is that it is a State" matter. If so, then they must be content to abide the consiquence of thir own logic. My second point is one of parliamentary law. It 13 claimed by the conspirators aforesaid that the President of the Senate must preside over the joint convention and, declining to listen to any motiou or appeal, ruling everything else out of order, he must count such electoral votes as he deerns legal, and declare the result. This is the length and breadth of the programma as announced by the New York Times and echood approviugly by the lesser organs. But the New York Times is more inendacio'is than astute. lts progratnme is fatally defectivo and provides the woapons for its own destruction. A mere glance at some of the plainost and most elementary principies of the pailiamentary law will show this boyond all dispute. The President of the Senate will " preside " over the joint convention. Have the couspirators duly considered what is implied by this? Under the parliamentary law nothiugis better uuderstood and settled thau this, that the preaiding ofiicer of any house or body is nothing more thau the instrument and inouthpiece of the body, whose solo business it is to carry out its wishes and behests. This is the beginning and the end of all bis power and authority. He can do no more than he finds warrant for in the common parliameutary law, or in the rules adopted for nis guidance hy the body over which he presides. He is not the master, but the servant of tho body. So on this plain principie, which nobody can dispute, if the President of the Seuate " presides " he must do so as the instrument and servant of the joint convention and subject to all the rules and restrictions of the common parliamentary law, except as those rules shall have been moditied by any special rules adopted for the occasion. No. The conepirators are making a mistake in their " programme." They don't want Mr. Ferry to "preside." Thty should imítate the example of their Returning Boards and have more simplicity of detail in their proposed rascality. They should have Mr. Ferry simply carry his box of returns into the presence of the joint conveution and open and count such votes as will elect Hayes, proclaim the result and retire. But if he takes the " chair " he must do so under the law which governs the ohair. If, then, on tho second Wednesday of February, Mr. Ferry or Mr. Sherman has any busiuess to transact in the joint convention which is outside the jurisdiction and control of that body, he had better keep out of the chair of its presiding officer, for as wall might the Chief Justice of the Supreme Court proceed to occupy the chair of thiit couvention and deliver therefrom an opinión or judgment of his tribunal. Again, it is said the President of the Senate will proceed to count the votes and announce the result." By what authority 'r1 The Constitution does not say so. The Constitution does not say he shall preside at all, nor that he shall count the votes, nor that he shall announce the result. All it says is, that he " shall open the certificates and the totes shall then be counted." Counttd ry whom '{ That is the vital question, and, fortunately, we have a clear and certain light shining upon it. In every instance sinco the foundation of the governuient the joint convention has appointed tellers - two from the House and one from the Senate. Uuder parliamentary law this settles the whole case and amounts to a legislativo constructiou of the question now in dispute - a construction which should have equal weight with one from the judicial department of the government. For be it known that tellers are always the direct agunts and servants of tho House, appointed imroediately under its direction and authority. Thoy are, so to speak, the eyes and fingers of the House, and do its work. The presiding officer bas no busiuess with them, except to appoint them when directed by the body - a power which it can always retaiu in its own hands. In all these previous counts tho President of the Senate has simply broken the seals and delivered the packages to the tellers, who have made the count, which they havo reported to the presiding officer, who has then announced the result to the convention. In doing this he has aoted simply as the inouthpiece of the ' body, speaking and acting in its name and by its authority. The counting is not his, nor has he any arbitrary control over the result. He must simply announce it according to the trulh. Can there be any doubt, therefore, that tho tact that tellers have always been appointed and have in every instance themselves counted and coiuputod the vote, is fatal to this ama.ing pretense which is now put forth that the President of the Senate has the sole power to count the votes from snch pckage as he may choose to break and announce the result without responsiljility to the joint convention, or to the two Houses, or to anybody? Let me add one further point which is applicablé to the whole question. It is a fundamental principie and maxim of the common law that fraud vitiates everything ; that it is always competent to go behind any written instrument or any prima furie case to show fraud. This principie is claily applied in our own courts, and the law is oonstantly looking behind deeds and contracts, and oven the soleuin judgments of the bighost tribunals, in order to relieve individuuls trom being overreached and défrauded of their private rights by deaigning nnd di.shonest men. And yet in this great matter of the Presidency, with all its vust and far-reaching consequencps, it is gravely claimed that the nation has no riglit to look behind the certifícate of a notoriously corrupt and dishonest Rfiturning Board, in order to protect itaelf froui the most gigantic fraud of the contury ! Surely tho logic of such a propositiou is worthy of its tnorals - the one is as monstrous as the other is infaruous. CHAS. S. MAY. Detroit, Doe. 15, 1876. In hia auxioty to snatali that one voto for Ti den, or wipe out one vote for Hayos so that Tilden may be elected by the Confedérate House, the Ann Arbor Augus will bark on any key. ün Dec. 14 it t'ully justitied the Governor of Oiegon tor givinj; a certifícate of electiou to a Tildenite named Cronin, who liad uot a plurality of the votes; but in the next column it declares that the peoplo of Michigan inust lose one elector because Mr. Hanchett was iueligible, therefore he was never legally chosen, and there was no legal vacancy to be fillud. - Lansmg Republican. "Accuracy," to say nothing of truthfulness, would bu more becoming, in our ootempoiary. Quoting a note from Judge Cooley's standard work on "Constilutional Limitation8," which our Lansing cotemporary should re-read, we said : Followlug this c!as3 of decisions, the Governor of Oregon refused to certify to the election of Watt and gave tho certifícate to Cronm. It is certain that ho was half right, - in " counting out " Watts. Discussion of the other point is not necessary to our present purpose. And in another article we asked if his high-mightiness, the President pro tempore of the Senate, cannot go back of the certifícate of the Governor of Louisiana how he is to get behind the certifícate of Governor Grover. That was all. As to there being " no legal vacancy to be filled " in this State, we cited Judge Cooley and the Supreme Court of Ehode Island. Have done with your quibbling and show us the statute that authorized the Electors to fill the vacancy. That is what we want.