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power, so far as exercised by th^ special President, was not
assumed as an official ri^ht, but was derived from an ex-

t_^ *

press resolution of the Senate and the assent of the House.
The counting was done under a special appointment for
that sole purpose before the Senate had elected its President



890 THE WORKS OF SAMUEL J. TILDEX. [1877.

pro tempore. In the nature of the case, what was done on that
occasion can have no authority as a precedent.

At the second election, in 1793, the two Houses estab-
iar mode of lislied a regular procedure for the counting of



fished lii\793* the electoral votes, a procedure which has been
substantially followed ever since. They assumed and exercised
the power of prescribing by concurrent resolutions of the two
Houses a mode of counting.

That mode was devised and reported by a joint committee
of the two Houses. The committee was raised under concur-
rent resolutions charging them, among other things, with this
dutv :

H

February, 1793, " to ascertain and report a mode of examining
the votes for President and Vice-President," p. 2.

February, 1797, " to ascertain and report a mode of examining
the votes for President and Vice-President," p. 5.

January, 1801, "to ascertain and report a mode of examining
the votes for President and Vice-President," p. 10.

February, 1805, " to ascertain and report a mode of examining
the votes for President and Vice-President," p. 19.

February, 1809, "to ascertain and report a mode of examining
the votes for President and Vice-President," p. 22.

February, 1813, " to ascertain and report a mode of examining
the votes for President and Vice-President," p. 26.

February, 1817, " to ascertain and report a mode of examining
the votes for President and Vice-President," p. 29.

February, 1821, " to ascertain and report a mode of examining
the votes for President and Vice-President," p. 34.

February, 1825, " to ascertain and report a mode of examining
the votes for President and Vice-President," p. 86.

February, 1829, "to ascertain and report a mode of examining
the votes for President and Vice-President," p. 89.

February, 1833, "to ascertain and report a mode of examining
the votes for President and Vice-President," p. 90.

February, 1837, "to ascertain and report a mode of examining
the votes for President and Vice-President," p. 98.

February, 1841, "to ascertain and report a mode of examining
the votes for President and Vice-President," p. 98.

February, 1845, "to ascertain and report a mode of examining
the votes for President and Vice-President," p. 100.



i8;7-] T7//0 COUNTS TUB ELECTORAL VOTE? 391

February, 1849, "to ascertain and report a mode of examining
the votes for President and Vice-President," p. 104.

February, 1853, "to ascertain and report a mode of examining
the votes for President and Vice-President," p. 107.

February, 1857, " to ascertain and report a mode for examining
the votes for President and Vice-President," p. 112.

February, 1861, " to ascertain and report a mode for examining
the votes for President and Vice-President," p. 170.

January, 1865, "to ascertain and report a mode of examining
the votes for President and Vice-President," p. 257.

On all occasions prior to 1865 the mode reported was for
that election only. In 1865 the joint committee reported a
permanent standing rule, called " the twenty-second joint rule,"
which governed the counts in 1865, 1869, and 1873.

The phrase " mode of examining the votes ''' imports a verifi-
cation, to some extent, of the votes. The resolutions included
some -other objects, always the notification of the persons
elected, until 1865, when, on the adoption of the twenty-second
joint rule, the notification was by a separate resolution ; often
the " regulating the time, place, and manner of administering
the oath to the President ; " sometimes, as in 1857, the question
of ineligible electors ; or, as in 1821, 1837, 1857, and 1869, the
dealing with disputed votes.

Every one of these resolutions asserts the rightful power of
the two Houses over the counting; and that power was as-
serted in twenty-one successive elections without denial or
question. Every one of these resolutions is incompatible with
the existence of any power whatever over the subject on the
part of the President of the Senate. If he had a constitutional
right to govern the count, no one of these resolutions would
have been valid.

After the mode of examining the votes was " ascertained
and reported " by the committees, the two Houses, by concur-
rent resolution, have adopted the mode finally agreed upon.
They have not only asserted their power over the counting in
the creation of those committees, but in all cases have again
asserted it by a formal and authoritative adoption of the



392 THE WORKS OF SAMUEL J. TILDEN. [1877.

work of the committees by concurrent resolution of the two
Houses.

The resolution prescribing the mode of counting has always
begun by fixing the time and place of the joint meeting of
the two Houses for the purpose of counting the electoral
votes.

The places of meeting to count the electoral votes have been
Places of meeting determined invariably by a joint resolution of the
of the two Houses. two Houses. At the two elections of General
Washington they met in the Senate Chamber. At the election
of John Adams the Senate joined the House in the Hall of the
Representatives. At the several elections of Thomas Jeffer-
son, in 1801 and 1805, the two Houses met in the Senate
Chamber. Since then they have invariably met in the Hall
of the Representatives, making four times in the Senate
Chamber, and seventeen times in the Hall of the Repre-
sentatives.

The resolutions prescribing the mode of counting have al-
Appointment of ways contained a provision that one teller on the

tellers by the tvro

Houses." part of the Senate, and two tellers on the part

of the House of Representatives, should be appointed ; and in
every counting of the electoral votes since the formation of
the Government, two tellers have acted for the House of Rep-
resentatives and one teller has acted for the Senate. Even in
the anomalous counting of 1789, that was so. At every count-
ing, from 1793 to 1873, inclusive, the House by a resolution
has appointed two tellers and the Senate has appointed one
teller. In the language of Senator Boutwell, 1 " the tellers
were the organs, the instruments, the hands of the respective
Houses ; the votes were counted by the tellers, and, being
counted by the tellers, they were counted by the two Houses;
and therefore there never has been any different practice,
and no different practice could have arisen under the Con-
stitution. The two Houses in convention have from the first
until now counted the votes."

1 March 13, 1876; see Proposed Changes, p. 11.



IS;?-] JJY/O COUNTS THE ELECTORAL VOTE? 393

The fact that the tellers have always been appointed by the
two Houses, have held these trusts at the pleasure of the two
Houses, subject to their orders and instructions, and wholly free
from the control of the President of the Senate, is of itself
decisive in favor of the riskt of the Houses to count the votes,

^j

and is equally decisive against any pretension on the part
of the President of the Senate to govern or in any manner to
interfere with the counting.

At every counting, from 1793 to 1861, inclusive, the reso-
lutions adopted by the two Houses have defined

Function of the

the duty of the tellers to be, tellers.

t^ /

1. " To make a list of the votes as they shall be declared."

ti

2. "The result shall be delivered to the President of the
Senate."

In practice, the tellers have read the votes, one by one, after
they have been opened or the seals sometimes broken, some-
times unbroken, by the presiding officer, or in some instances
the packages with unbroken seals handed over by the presiding
officer ; have read each certificate in full to the two Houses,
which, in the phraseology of the resolutions, is the " declaring'
of the vote in each certificate, and is sometimes so called in
the journals ; have entered each vote so declared upon a list ;
and then have delivered the result to the presiding officer.

The joint rule governing the counting in 1865, 1869, and
1873 defines the function of the tellers as follows :

" One teller shall be appointed on the part of the Senate and
two on the part of the House of Representatives, to whom shall be
handed, as they are opened by the President of the Senate, the
certificates of the electoral votes ; and said tellers, having read the
same in the presence and hearing of the two Houses then assembled,
shall make a list of the votes as they shall appear from the said
certificates ; and the vote having been counted, the result of the
same shall be delivered to the President of the Senate."

It is to be observed that the phraseology of the joint rule deems
the counting to be completed while the certificates are in the
hands of the tellers, after they have been opened and handed



394 TUB WORKS OF SAMUEL J. TILDEN. [1877.

to the tellers, and before the result has been delivered to the
presiding officer. It is to be observed also that all questions
as to the authenticity or validity of any vote must be raised
and must be submitted to and determined by the two Houses
before the votes have left the hands of the tellers. That has
been the invariable practice from the beginning of the Gov-
ernment in every case of a disputed vote. That practice was
defined and stated and adopted in the joint rule established
in 1865; it was expressed as follows:

"If upon the reading of any such certificate by the tellers any
question shall arise in regard to counting the votes therein cer-
tified, the same having been stated by the presiding officer, the
Senate shall thereupon withdraw, and said question shall be sub-
mitted to that body for its decision; and the Speaker of the
House of Representatives shall in like manner submit said ques-
tion to the House of Representatives for its decision ; and no
question shall be decided affirmatively, and no vote objected to
shall be counted, except by the concurrent votes of the two
Houses, which being obtained, the two Houses shall immedi-
ately reassemble, and the presiding officer shall then announce
the decision of the question submitted ; and upon any such
question there shall be no debate in either House. And any
other question pertinent to the object for which the two
Houses are assembled may be submitted and determined in like



manner."



As to the implied custody of the votes before the counting,
the Constitution ( Amendments, Article XII.

Functions of the

President of the Section 1) provides that the electors "shall

Senate in respect

to counting the transmit r the certified lists of their votes for

electoral votes.

President and Vice-President " sealed to the
seat of government of the United States, directed to the
President of the Senate."

The statute of 1792 provides that " in case there shall be no
President of the Senate at the seat of government on the
arrival of the persons intrusted with the certificates of the
votes of the electors, then such persons shall deliver such cer-
tificates into the office of the Secretary of State, to be safely



IS;?-] WHO COUNTS THE ELECTORAL . VOTE? 395

kept, and delivered over as soon as may be to the President of
the Senate." l

The Constitution (Article XI. Section 1, Sub-section 3, and
Amendment 12, Section 1) provides that "the AS to the opening
President of the Senate shall, in the presence of the of the voteSp
Senate and House of Representatives, open all the certificates."

At the time the provision that the sealed packages of votes
to be transmitted by the electors to the seat of government and
addressed to the President of the Senate came before the Con-
vention of 1787, it was a part of the scheme that the President
of the Senate should open all the certificates in the Senate, and
that the votes should then and there be counted ; and that
in the event of a failure of choice by the electoral colleges,
the Senate should immediately elect both the President and
Vice-President. 2

The report of the committee was modified by providing that
the President of the Senate should open all the certificates
"in the presence of the Senate and the House of Represen-
tatives ; ' and then the election of President, on the failure of
a choice by the colleges, was taken away from the Senate and
given to the House of Representatives. 3 But the power, on a
failure of a choice by the colleges, to elect the Yice-President,
remained in the Senate. The requirement that the certificates
transmitted to the seat of government should be addressed to
the President of the Senate under seal, and that the packages
should be opened in the presence of the official bodies which
were to take jurisdiction of the facts and remedy any failure
in the choice by the electoral colleges, was allowed to stand.
These provisions were intended to secure the votes given by the
electors at their meetings in the several States from being tam-
pered with, until they should come into the actual possession of
the two Houses.

The House of Representatives and the Senate had not only a
right, but also a duty and an official necessity, to know in the

i Rev. Stat. sec. 145, p. 22. 2 Sept. 4, 1787 ; 5 Elliott, p. 507.

3 5 Elliott, pp. 518, 519, 520.



396 THE WORKS OF SAMUEL J. TILDEN. [1877.

most authentic manner the result of the votes sriven in the elcc-

CJ

toral colleges. In the first place, the House of Representatives,
on the failure of a choice of President by the electoral colleges,
was charged with the duty of electing the President. The fact
of the failure of the colleges, as specified and defined in the
Constitution, was the sole basis of the jurisdiction of the House
to act. Its own means of " examining the votes for President
and Vice-President ' ' (such is the language of all the concur-
rent resolutions of the two Houses from 1793 to 1865, and of
the joint standing rule by which they were replaced in 1865)
was the only evidence provided by the Constitution of the fact
on which the House acquired jurisdiction.

No judgment, certification, or act of any other official body
was interposed as a condition. The House is a witness of the
opening of the certificates ; it is an actor in the counting of
the votes by its own tellers and in its presence. " And if no
person have ' a " majority " of " the electors appointed, then
from the persons having the highest numbers, not exceeding
three, in the list of those voted for as President, the House of
Representatives shall choose immediately bv ballot the Presi-

</ V

dent." Such is the imperative command of the Constitution.
And when the House lias acted in such a case, there is no
review of its action, nor any appeal from its decision.

The Senate has a similar jurisdiction, on the failure of a
choice of Vice-President by the electoral colleges, to elect the
Vice-President. It has the same riofat, dutv, and official

~ / 5

necessity to know the result of the votes.

In the second place, the two Houses of Congress have all the
powers of verification of the electoral votes and their results
which the Constitution and the laws supply or allow. Nobody
else in the Federal Government has any such powers. The
two Houses have always themselves made the count, and
regulated its process and procedure by concurrent resolution
applicable to each particular election until 1865. Then they
did so by a standing joint rule. Doubtless they may do so,
within constitutional limits, by legislation.



1877.] WHO COUNTS THE ELECTORAL VOTE? 89



They are the most appropriate and the safest depositary of
such powers in this respect as are to be exercised by the
Federal Government. The Convention of 1787, until nearly
the close of its deliberations, adhered to the plan of intrusting
the election of President to the two Houses of Congress.
When it finally adopted the system of electors chosen by the
people or legislatures of the States it still, in case of a failure
of choice by the electors, vested the election of President in the
House, and of the Vice-President in the Senate. Those bodies
are the general representatives of the people, and the deposita-
ries of the legislative powers of the Government. Xo better,
wiser, or safer trustees of the power to count the electoral votes
can be found in the nature of human affairs.

The President of the Senate has no constitutional power, by
virtue of his office as such president, to do anything in respect
to the counting but " to open all the certificates ' ' in the pres-
ence of the two Houses. He has never done anything further
except by virtue of an express grant of authority conveyed in
concurring resolves or orders from the two Houses.

The House of Representatives has never parted with its
right to retain its own presiding officer or to presiding at the
insist that its consent is necessary to the tern- joint me " ting '
porary appointment of a presiding officer for the two Houses.
There is no constitutional provision nor any law giving the
President of the Senate the right to preside over the two Houses
when sitting; together at the counting; of the electoral votes.

o ~ c

The two Houses assemble, not in the individual capacity of the
members, but in the official capacities of those bodies ; they
assemble as a Senate and House of Representatives. If no
positive provision for one presiding officer is made, the Speaker
would preside over the House of Representatives. At the first
five elections nothing is said in the recorded proceedings about
a presiding officer. At Jefferson's second election the Speaker
is described as occupying a seat " on the floor on the right side
of the President of the Senate," one of the exceptional cases
in which the two Houses met in the Senate Chamber.



398 THE WORKS OF SAMUEL J. TILDEN. [1877.

At Madison's first election, in 1809, John Randolph, a
member of the House, objected to the President of the Senate
being permitted to occupy the Speaker's chair without the
formal invitation or permission of the House. Thereupon a
motion was made and passed that when the members of the
Senate were introduced, the Speaker should relinquish the
chair to the President of the Senate. Mr. Randolph then
made a motion, which was adopted, that the Senate be notified
of this vote by a message, to show that its President would
occupy the Speaker's chair by courtesy, and not of right. " If
not," he said, " it might appear that the President of the Senate
took the chair as a matter of right. He said he knew that to
many persons matters of this sort appeared to be of minute
importance ; but in everything touching the privileges of this
House as it regarded the claims of the other co-ordinate branches
of the Government, he would stickle for the ninth part of a hair.
It was well known that in England the privileges of the Com-
mons had been gained inch by inch from the kings and nobles
by a steady perseverance ; and that man must have very little
knowledge of mankind indeed who was not persuaded that
those privileges might be lost, as they were gained, by gradual
and imperceptible encroachment on the one hand, and tacit
yielding on the other." At the succeeding election of Madison,
in 1813, no resolution was adopted on this subject ; but the
record shows that " a message from the House of Represen-
tatives informed the Senate that the House is now ready to
attend the Senate in opening the certificates and counting the
votes of the electors of the several States in the choice of a
President and Vice-President of the United States, in pursu-
ance of the resolution of the two Houses of Congress, and that
the President of the Senate will be introduced to the Speaker's
chair by the Speaker of the House of Representatives."

In the joint session of the two Houses in 1817, Mr. John W.
Taylor, an experienced parliamentarian, at one time Speaker
of the House, addressed himself to the Speaker of the House ;
and Mr. J. B. Varnum, of the Senate, also an experienced par-



IS77-] WHO COUNTS THE ELECTORAL VOTE? 399

liamentarian, at one time President pro tempore of the Senate,
addressed himself to the President of the Senate : thus respect-
ing the separate existence and action of the two Houses, even
when assembled in joint session.

At Monroe's second election, in 1821, when the two Houses
were involved in the Missouri controversy, a resolution of the

V '

Senate, adopted February 13, prescribing the mode of counting,
provided that at the joint session the President of the Senate
should preside. But the resolution, reported to the House by
Mr. Clay, the great pacificator on that perilous occasion, pro-
vided that " the President of the Senate, seated on the right of
the Speaker of the House, shall be the presiding officer of the
Senate, and the Speaker shall be the presiding officer of the
House." This resolution was adopted on the 13th of Feb-
ruary. Mr. Clay afterward offered a resolution, which was
adopted, appointing a committee of two " to receive the Senate,
conduct the President of the Senate to the chair, and the mem-
bers to the seats assigned to them." The President of the Sen-
ate was conducted to the Speaker's chair, and the Speaker took a
chair at his left hand. When the other votes had been counted,
and the votes of Missouri were announced and handed to the
tellers, a member objected to receiving the vote of Missouri, on
the ground that Missouri was not a State of the Union. The
motion was thereupon made by a Senator that the Senate do now
withdraw to its chamber ; which was carried, and the Senate with-
drew accordingly. At the close of a debate in the House, Mr.
Storrs demanded the reading of the resolution of the House pre-
scribing the mode of counting compared with that of the Senate.
An explanation then came out that the retirement of the Senate
from the joint session was caused by the discovery of the dis-
crepancy between the two resolutions. Afterward the House
sent a message to the Senate for the purpose of continuing the
enumeration of the electoral votes according to the joint resolu-
tion which had been adopted, and the Senate returned to the
joint session. The counting was completed, and the vote of
Missouri counted under the concurrent resolution providing for



400 THE WORKS OF SAMUEL J. TILDEN. [1877,

>
an alternative enumeration of the votes with Missouri excluded

and with Missouri included. The session continued under the
House resolution, the two Houses acting under their respective
presiding officers. On this same occasion the President of the
Senate occupied the Speaker's chair by virtue of an express
provision in the joint resolution on procedure. In defence of
this feature of the programme, Mr. Clay, who was chairman of
the committee which reported it, said : " As convenience ren-
dered it necessary for the Senate to meet this House here in its
own hall, it was due to that body by courtesy and propriety
that the President should be invited to preside, he being the
officer designated by the Constitution to perform a certain duty
appertaining to the occasion which called the two Houses
together."

At the election of John Q. Adams, in 1825, the President of
the Senate was invited to a seat on the right hand of the
Speaker of the House. In this case the tellers, after the votes
had all been opened and counted, "left the clerk's table ; and
presenting themselves in front of the Speaker. Mr. Tazewell
delivered their report of the votes given, which was then handed
to the President of the Senate ; ' it being the evident intent of
the teller, Tazewell, to recognize the Speaker of the House as
no less a presiding officer than the President of the Senate.

At Jackson's first election, in 1829, no resolution was passed
in regard to the presiding officer ; but the record shows that
the Yice-President " seated himself at the right hand of the
Speaker."

At Jackson's second election, also, there was no provision
for a presiding officer in the concurrent resolution ; but on that
occasion the President of the Senate occupied the Speaker's
chair.

The President of the Senate has occupied the Speaker's
chair at every one of the ten Presidential elections which have
succeeded the election of 1833, but in every instance except
one by virtue of the express authority of a joint resolution of
the two Houses, and never as a matter of right.



18.77] WHO COUNTS THE ELECTORAL VOTE? 401



Online LibrarySamuel J. (Samuel Jones) TildenThe writings and speeches (Volume 1) → online text (page 31 of 52)