George Ticknor Curtis.

Constitutional history of the United States from their Declaration of Independence to the close of the Civil War online

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pose. It was organized for the purpose of binding the negroes to obey blindly,
the behests of those who claimed their allegiance to a political party ; and for this
purpose it was a very effective machine in the hands of the men who devised it.
All this while there was a general proscription going on against whites and blacks
who did join the Democratic party. Negroes who ventured to act with that party
were often expelled from the colored churches.

1 This term, which seems to have been adopted into our political nomencla-
ture, was first used in the South to describe men who had come from the North,
and bringing all their worldly goods in gripsacks or " carpet-bags."



DEPRESSION OF THE WHITE PEOPLE. 393

constitutional provisions of the utmost importance. An over-
whelming majority of the constituency which elected the dele-
gates was composed of colored men, so that the black man's
party was in full control. All the members of the convention,
including the whites, were at first in favor of the reconstruction
policy of Congress. But as the discussions progressed some of
the delegates began to waver; and after the adjournment thir-
teen of them issued an address protesting against the constitu-
tion which had been framed, because it tended to abuse and de-
grade the white population, because it authorized mixed schools,
and did not prohibit the intermarriage of the races. 1 The latter
provision, at least, was of the most transcendent consequence in a
state like Alabama, and the question of mixed schools, or public
schools composed of both white and colored children, was of
almost equal importance.

"When the constitution, with what it did and what it omitted
to do, was promulgated, the white people were much depressed.
They saw no prospect for them of a fair participation in the
government of the state. Some of them removed into Texas;
others went to the North and West, and there was a considerable
emigration to Brazil. 3 The departure from the state of so many
of the white inhabitants was checked, however, by the revival of
a hope that the congressional plan of reconstruction would ulti-
mately fail ; for in the fall elections of 1867 in the North, the
states of New Jersey,. Pennsylvania, Ohio, Connecticut, and Cali-
fornia became Democratic states, on anti-negro suffrage resolu-
tions, and Ohio gave a majority of 50,000 against the suffrage
amendment to the Federal Constitution.

But the reconstruction scheme, notwithstanding this Northern
opposition, was not destined to fail. One change took place in
Alabama, however, which was favorable to an honest administra-
tion of the scheme for the remaining stages. On the 28th of De-
cember, 1867, General Pope was relieved of command in the mil-



1 There was a "Judiciary Committee" in this convention, on which there
were some leading white Republicans, the majority being colored men. This
committee unanimously reported against amalgamation of the races ; yet the
convention tabled it, many members of the committee who had concurred in the
report receding from their position.

2 This emigration was encouraged by the government of Brazil for a time.



394 CONSTITUTIONAL HISTORY

itary district, and General Meade, a much more conservative and
a much wiser man, was appointed in his place. General Swayne
was also relieved from the command in Alabama early in the fol-
lowing January.

The election in Alabama for the ratification or rejection of the
constitution was ordered to be held on the 1st, 2d, and 3d of Feb-
ruary, 1868, and its friends and its foes prepared for the conflict.

The law of Congress provided that at this election officers to
carry on the new government should be chosen, to take office, how-
ever, only upon the event of the ratification of the constitution.

It so happened that when the first reconstruction bill was
about to be passed in the Senate of the United States, Senator
Sumner became the author of a phrase which truly described the
nature of the proceeding. He said that he would vote for the
bill, but that he did not like to see " new states born of the bay-
onet." Mr. Sumner had always been a consistent opponent of
military government, and he well knew how objectionable it is to
employ military power in the supervision and control of proceed-
ings for framing and adopting a constitution. But he did not
carry his opposition to the bill any further than to confess his re-
gret that Congress should employ the military for the purposes of
reconstruction. Every state that was reconstructed under the
acts of Congress was, in truth, " born of the bayonet," for nothing
less than military power could have carried the scheme into full
effect.

Another declaration made by Mr. Sumner's colleague from
Massachusetts — Senator Wilson, afterwards Vice-President of the
United States — is worthy of note. It has been seen that one clause
in the reconstruction act of March 2d required that a majority of
the registered votes should be cast, else the constitution would not
be ratified, although it might have received every vote that was
polled. Mr. Wilson said that this was " a proposition to enable
the rebel leaders to take advantage of all persons who are hostile
to these terms, and all persons who could not go to the polls to
vote." But a motion to strike it out was voted down. It became
a part of the law, and it was not to be expected that Congress
would afterwards disregard and violate its own enactment.

In order to a correct understanding of the result of the elec-
tion, and of the subsequent action of Congress, it is now necessary



COMMANDING GENERAL TO DECLARE RESULT. 395

to explain what took place. The conservative party of the state
made great efforts to defeat the ratification of the constitution,
and thereby to defeat the election of state officers under it. Their
plan was to register and then abstain from voting. This was an
entirely proper effort on the part of those who were opposed to
the constitution. It was, in fact, invited by the provision of the
statute, which, honestly interpreted, meant that the constitution
should not become operative unless it appeared affirmatively
that it met the approval of a majority of all the qualified elec-
tors in the state. After the registration had been completed,
the whole number of qualified electors in the state was ascer-
tained.

General Meade protracted the time for holding the election
from three to five days, so as to give all the registered voters a
full opportunity to vote. An analysis of both the reconstruction
acts will show to any one who is accustomed to construe statutes
that it was for the commanding general of the military district
to ascertain and declare the result of the election. The returns of
the election were to be made to him. It was to be conducted by
and under persons appointed by him. He had the registration
before him, and it was for him to determine and certify whether
the constitution had been voted on and ratified by a majority of
the registered electors. If, " according to said returns," the con-
stitution had been ratified by a majority of the votes of the reg-
istered electors, cast at the election, it was for the president of the
convention to transmit a copy of it to the President of the United
States. But whether it had or had not been so ratified, the pres-
ident of the convention was to be officially informed by the com-
manding general ; and neither the President of the United States
nor Congress could lawfully disregard the commanding general's
attestation of the fact of ratification or non-ratification.

Such is the proper interpretation of the statutes under which
the reconstruction was to be conducted. But in the last act (sec-
tion 5) there was a reservation to Congress, notwithstanding all the
provisions of both laws, of a power to accept or reject the entire
proceeding at pleasure, upon the theory that the whole matter of
the readmission of the Southern States into the Union was in the
uncontrolled and unlimited discretion of Congress. How this the-
ory was carried out is now to be stated.



396 CONSTITUTIONAL HISTORY.

The proposed constitution for the state of Alabama was beaten
at the election. It failed of ratification by 8114 votes. This pre-
vented, therefore, the official existence of the persons who had
been voted for at the same election as state officers. But if Con-
gress would declare that the constitution had been ratified, these
persons would obtain the offices. The election had been held un-
der military supervision, and all the elected officers were persons
who favored the ratification of the constitution. Charges of
frauds in the election were gotten up by some of the Kepublicans,
and while General Meade was investigating them a delegation
proceeded to Washington to present these charges to Congress.
The House Committee on Reconstruction did not wait to hear
from General Meade ; and, indeed, there was no ground on which
to base the charges of fraud. There was no mode in which it
could be declared that the constitution had been ratified, except-
ing to change the law under which the election had been held.
Before the election took place the House Committee ' . . .



1 See Appendix, Note to Chapter XII.— J. C. C.



OHAPTEE XIII.

The Peesidential Election of 1876. — The Electoral Commis-
sion. — Its Unconstitutional Chaeactee, and its Paetisan De-
cisions.

"Whether Samuel J. Tilden or Rutherford B. Hayes was elect-
ed President of the United States in 1876 is a question that does
not come within the scope of this constitutional history. It is a
question about which individuals have fixed beliefs, according to
their party affiliations ; and it is, moreover, a question of far less
importance than the one which will be considered in the present
chapter. The all-important question — the one that will concern
the people of the United States so long as their present form of
government shall endure— is whether the process by which Mr.
Hayes was declared to have been elected was conducted accord-
ing to the Constitution. In treating of this question I shall be
obliged to speak of the political parties whose contest for the
possession of the executive office brought about the unprecedented
legislation which was resorted to for the purpose of bringing it to
a close ; for although the legislation did not expressly name the
two parties, it was so framed as to make it easy for one of them
to gain a victory over the other. In consequence of the proced-
ure that was resorted to, although Mr. Hayes became president
de facto, it can never be said that he became president de jure.
The people of the United States will, therefore, always have rea-
son to regard this as the most unfortunate occurrence in the his-
tory of their government, unless the conduct of the Supreme
Court of the United States in regard to the question of legal-ten-
der money is entitled to that bad pre-eminence.

The following are the constitutional provisions relative to the
choice of a president and a vice-president which were in force in
the year 1876 :

ARTICLE II.
Section. 1. The executive Power shall be vested in a President of the United



398 CONSTITUTIONAL HISTORY.

States of America. He shall hold his Office during the Term of four Years, and,
together -with the Vice-President, chosen for the same Term, be elected, as follows :

Each Slate shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors, equal to the whole Number of Senators and Rep-
resentatives to which the State may be entitled in the Congress : but no Senator
or Representative, or Person holding an Office of Trust or Profit under the United
States, shall be appointed an Elector.

The Congress may determine the Time of choosing the Electors, and the Day
on which they shall give their Votes ; which Day shall be the same throughout
the United States.

ARTICLE XII.

The Electors shall meet in their respective states, and vote by ballot for Presi-
dent and Vice-President, one of whom, at least, shall not be an inhabitant of the
same state with themselves ; they shall name in their ballots the person voted for
as President, and in distinct ballots the person voted for as Vice-President, and
they shall make distinct lists of all persons voted for as President, and of all per-
sons voted for as Vice-President, and of the number of votes for each, which lists
they shall sign and certify, and transmit sealed to the seat of the government of
the United States, directed to the President of the Senate. The President of the
Senate shall, in presence of the Senate and House of Representatives, open all the
certificates, and the votes shall then be counted. The person having the greatest
number of votes for President, shall be the President, if such number be a majority
of the whole number of Electors appointed ; and if no person have such majority,
then from the persons having the highest numbers not exceeding three on the list
of those voted for as President, the House of Representatives shall choose immedi-
ately, by ballot, the President. But in choosing the President, the votes shall be
taken by states, the representation from each state having one vote ; a quorum fo>
this purpose shall consist of a member or members from two-thirds of the states,
and a majority of all the states shall be necessary to a choice. And if the House
of Representatives shall not choose a President whenever the right of choice shall
devolve upon them, before the fourth day of March next following, then the Vice-
President shall act as President, as in the case of the death or other constitutional
disability of the President. — The person having the greatest number of votes as
Vice-President shall be the Vice-President, if such number be a majority of the
whole number of Electors appointed, and if no person have a majority, then from
the two highest numbers on the list the Senate shall choose the Vice-President ; a
quorum for the purpose shall consist of two-thirds of the whole number of Sena-
tors, and a majority of the whole number shall be necessary to a choice. But no
person constitutionally ineligible to the office of President shall be eligible to that
of Vice-President of the United States.

From these constitutional provisions it is to be inferred —

First, That " counting " means more than a bare arithmetical

enumeration ; that it is a gwasi-judicial function, the discharge of

which requires the ascertainment of the lawful right to act as

electors that is claimed by or for the persons who appear upon



"COUNTING" A QUASI- JUDICIAL FUNCTION. 399

the " certificates " to have so acted, and whose votes are to be in-
cluded in the count or excluded therefrom, according to the cer-
tificate in each case, when judged by all the proofs proper to be
taken into consideration, it shows that the persons giving electoral
votes had or had not a lawful right to give them. This function,
judicial in its nature, is to be performed by the Senate and the
House of Eepresentatives, in the presence of each other, after the
president of the Senate has, in their presence, opened all- the cer-
tificates. The Constitution uses the terms "lists of all persons
voted for," and the term " certificates ;" but both of these terms
refer to the same official paper, which is to be examined in the
discharge of the function of counting the electoral votes that
purport to have been given for a president and a vice-president
respectively. This function is to be performed by a body consti-
tuted by the Senate and the House of Eepresentatives when as-
sembled together for the purpose. This assembly, which I denom-
inate "the Presidential Convention," has no other function to
perform excepting that of counting the electoral votes. It has
no legislative power, although it may adopt rules for the proper
and orderly conduct of its own proceedings.'

Second. The electors are required to meet in their respective
states, to vote by ballot for president and vice-president, naming
in their ballots the person voted for as president, and in distinct
ballots the person voted for as vice-2)resident. They are to make
distinct lists of all persons voted for as president and all persons
voted for as vice-president, and of the number of votes for each,
which lists they are to sign and certify, and transmit sealed to the
seat of the government of the United States, direct to the pres-
ident of the Senate. Thus it appears that the electors are both
officers clothed with the authority of casting the electoral votes
of the people of their respective states, and also that they are
to certify the votes so cast by them.



1 The body that is composed of the two houses of Congress, when they are
in the presence of each other for the purpose of counting the electoral votes,
might be called " the Electoral Convention." But as the phrase "Electoral Com-
mission," which designates a very different body, has passed into history, I prefer
the phrase "Presidential Convention" to designate the body to which I refer.
The word ' ' presidential " is not very good English, but it has been sanctioned by
usage. Noah Webster adopted it.



400 CONSTITUTIONAL HISTORY.

The first precedent of counting the electoral votes occurred
at a time when there were many members in the two houses of
Congress who had been members of the convention which framed
the Constitution, and they and the whole body of the members
must have known what the terms of the Constitution meant.
There were no conflicting certificates. The presiding officer of
the Senate gave notice to the House that the Senate was ready
to proceed to the duty of counting the electoral votes. There-
upon the members of the House, preceded by their speaker, en-
tered the Senate chamber, and both bodies being thus assembled
in joint meeting, the presiding officer of the Senate, acting as the
presiding officer of the joint assembly, announced that the two
houses " had met " for the purpose of counting the electoral votes,
and that he, in their presence, had opened all the certificates and had
counted the votes, which he read from a tabulated statement as fol-
lows : For George "Washington, 67 votes ; for John Adams, 34 votes;
the remaining votes being scattered between ten different persons.

This, therefore, was a case where all the counting necessary
was a simple enumeration of the votes given for the respective
persons as they appeared on the face of the certificates, which
were in no instance disputed or questioned. "When the next occa-
sion arose for counting the electoral votes the proceedings were
somewhat varied. This was when "Washington was again elected
president and John Adams was again elected vice-president for
the term commencing March 4, 1793, and terminating March 3,
1797. On this occasion the Senate proposed that a joint com-
mittee be appointed to ascertain a mode of examining the votes
for president and vice-president, and of notifying the persons who
shall be elected of their election, and for regulating the time,
place, and manner of administering the oath of office to the presi-
dent. The House concurred in this proposal, and on the 12th of
February, 1793, the joint committee reported that tellers be ap-
pointed on the part of each house ; ' and thereupon, on the 13th



'Bouvier, in bis Law Dictionary, gives one of the meanings of "Teller": a
person appointed to receive and count votes at an election— a scrutineer. This
definition is quoted from Bouvier by our American lexicographer, Mr. Worcester.
The sense in which the word "teller" was used in the proceedings of 1793 was
that of a person appointed to enumerate or count votes, and to scrutinize them, if
necessary, and to report accordingly.



SECOND PRESIDENTIAL COUNT. 401

of February, the two houses assembled, the certificates of the
electors of the fifteen states in the Union, which came by express,
were by the vice-president opened, read, and delivered to the tell-
ers appointed for the purpose, who, having examined and ascer-
tained the votes, presented a list of them to the vice-president,
which list was read to the two houses as follows: For George
"Washington, 132 ; for John Adams, 77 ; for George Clinton, 50 ;
for Thomas Jefferson, 4; for Aaron Burr, 1. Thereupon the
vice-president declared that George Washington had been unani-
mously elected President of the United States for the period of
four years to commence on the 4th day of March, 1793, and that
John Adams had been elected by a plurality of votes Vice-Presi-
dent of the United States for the same period. After this pro-
ceeding the vice-president delivered the duplicate certificates of
the electors of the several states, received by post, to the secre-
tary of the Senate, and the two houses then separated. From
this second precedent it appears that the two houses, even in a
case where there were no disputed certificates, did not regard it
as a duty of the vice-president to count the electoral votes ; that
they appointed tellers, who, on behalf of the two -houses, were to
perform the function, judicial in its nature, of ascertaining and
declaring to each house the result of the election ; and thus the
proceeding, at this early period, became impressed with a charac-
ter which it has had ever since, down to the year 1876.

On the 1st of March, 1792, Congress passed " An act relative
to the election of a President and Vice-President of the United
States, and declaring the officer who shall act as president in case
of vacancies in the office both of president and vice-president."
This law made it the duty of the executive authority of each
state to cause three lists of the names of the electors of the state
to be made and certified, and to be delivered to the electors be-
fore the first Wednesday in December; and the electors were
required to annex one of the lists to each of the lists of their
votes. It also prescribed how the list should be transmitted to
the seat of government; but the only provision that it made
respecting the opening and counting of the votes was that " on
the second Wednesday in February succeeding every meeting of
the electors the certificates shall then be opened, the votes count-
ed, and the persons who shall fill the offices of president and vice-
II.— 26



402 CONSTITUTIONAL HISTORY.

president ascertained and declared agreeably to the Constitution."
This law, therefore, left it to each joint assembly of the two
houses to ascertain and declare the persons who had been chosen
in such manner as they might see fit, and as would be in accord-
ance with the Constitution. The first precedent of counting the
electoral votes occurred in 1789. The act of March 1, 1792, was
passed before the second precedent occurred ; but it assumed that
the first precedent had fixed the mode of counting the votes in a
case where there were no conflicting certificates.

On the 12th of December, 1803, Congress proposed the Twelfth
Amendment of the Constitution, which would change the provi-
sions of the original Constitution so as to require the electors to
name in their ballots the person voted for as president, and in
distinct ballots the person voted for as vice-president. They were
to sign and certify the lists, and transmit them, sealed, to the
seat of government of the United States, directed to the presi-
dent of the Senate. The proposed amendment then repeated
the existing provision of the Constitution in the following words :
" The president of the Senate shall, in the presence of the Senate
and House of Eepresentatives, open all the certificates, and the
votes shall then be counted." The amendment was declared to
have been adopted in 1804.

At the election for the term commencing March 4, 1801, and
ending March 3, 1805, there was no choice of a president or a
vice-president by the electors, the electoral votes for Thomas
Jefferson and Aaron Burr being equal. The House of Represen-
tatives, agreeably to the Constitution, had to make the choice.
Mr. Jefferson received the votes of ten states as president, and
Mr. Burr the votes of four states, and became vice-president. The
votes of two of the states were in blank, and it was so declared.

Before the election for the term commencing March 4, 1805,
and ending March 3, 1809, Congress passed, on the 27th of March,
1804, an act supplementary to the act of 1792. This was ren-
dered necessary in consequence of the proposal of the Twelfth
Amendment of the Constitution. The supplementary act made
provision to meet the contingency of the adoption of the con-



Online LibraryGeorge Ticknor CurtisConstitutional history of the United States from their Declaration of Independence to the close of the Civil War → online text (page 41 of 88)