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Samuel J. (Samuel Jones) Tilden.

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On some occasions the concurrent resolutions have in terms
conferred the duty of presiding on the President pro tempore ;
sometimes when the Vice-Presidency has been vacant; and
sometimes when it has not been vacant. The result is that
the power of the two Houses to designate the presiding officer
at the joint session has been always recognized, and frequently
exercised ; and it is only by express or tacit consent that the
usual and regular mode of acting by the respective presiding
officer is waived and a single presiding officer designated.

The function of the two Houses, when sitting together, has
been carefully and jealously restricted to the mere counting ;
and all debate and all voting have been uniformly excluded.
Whenever it became necessary to entertain debate or to vote,
the Houses have generally separated, and acted in their re-
spective chambers. When they have acted at all while assem-
bled in the same hall, they have acted separately, and under
their respective presiding officers. The result is that though
the semblance of a presiding officer has been generally given
to the President of the Senate while the mechanical process
of counting was going on, lie has really exercised none of the
functions usually attributed to the presiding officer of a
deliberative body.

/

The President of the Senate has no authority, by virtue of
his office as such President, to announce the Announcing to
result of the count of electoral votes made by {J^ s7ate H uses
the two Houses of Congress assembled in joint of the vote -
convention. Even where he has been expressly designated
as their presiding officer by concurrent resolves or orders of
the two Houses, he has never exercised any authority to an-
nounce the result of the count by virtue of his function as
the presiding officer. In every case, from 1793 to the present
time, whatever power he has exercised in this respect has
been expressly granted, defined, and limited by provisions of
the concurrent resolutions prescribing the mode of counting
the electoral votes on each particular occasion. In one well-
known case (in 1821) this power of announcement was granted

VOL. ii. 26



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

to him by the House when he did not, but the Speaker did,
preside over the House. No doubt, in the orderly course of
business in a legislative body, its vote would usually be an-
nounced to it by its presiding officer ; but that is simply
because such is a convenient practice. The Speaker is the cus-
tomary organ of the House for such purposes ; but it is quite
certain that in performing such a function he acts by the order
of the House, and is subject to its commands. It is no less cer-
tain that the House can appoint some other organ to exercise
this function if it chooses. If it may do so in respect to its
own vote, still more may it do so in respect to the result of a
count of votes of the electoral colleges made bv it through its

c_? /

tellers. Now it has so happened that in every case, from 1793
to the present time, the two Houses, assembled in joint con-
vention for the purpose of counting the electoral votes, have
expressly prescribed the rules which have governed the an-
nouncement of the result of such a count. Thev have from

/

time to time revised some of the rules which they have applied ;
but they have always prescribed rules which have been obeyed
and have uniformly governed their proceedings.

In every case the two Houses have provided that the count
should be by tellers of the two Houses, who have frequently
been specially instructed by the two Houses as to how they
should count, what votes they should admit, and what votes
they should not admit. In every case they have prescribed
that it was only after the votes had been publicly examined
and ascertained before the two Houses ; after they had been
entered 011 a list ; read to the two Houses and the results of
the enumeration on the lists computed, after the results so
found by the tellers had been " delivered ' by the tellers to
the presiding officer, that any duty on the part of the presiding
officer arose.

In every case, from 1795 to 1861 inclusive, in eighteen suc-
cessive countings, these conditions were expressly prescribed in
respect to the one particular counting to be regulated on each
occasion. At the three countings of 1865, 1869, and 1873 the

( / * '



1877.] WHO COUNTS THE ELECTORAL VOTE? 403

same conditions were applied under the standing joint rule,
which codified the practice in the following words :

" 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 the said tellers, having read
the same in the presence and hearing of the two Houses thus
assembled, shall make a list of the several votes as they shall appear
from the said certificates ; and the votes having been counted, the
result of the same shall be delivered to the President of the
Senate."

Such are the conditions which must have been fulfilled in
virtue of formal orders prescribed by the two Houses, at every
one of the twenty-one countings, from 1793 to 1873 inclusive,
before the presiding officer could act at all.

After all these conditions have been complied with, his au-
thority in respect to announcements begins.

In 1793 it was expressed in these words, < ; Who shall
announce the state of the vote and the persons elected, to the
two Houses assembled as aforesaid."

In 1801 and 1805 the announcement was of " the state of
the vote" only, and not of the persons elected. In the joint
rule of 1865 the words are : " The state of the vote and the
names of the persons, if any, elected."

The concurrent orders in 1801 and 1805 had another pecu-
liarity. They provided that "the state of the vote shall be
entered on the journals ; and if it shall appear that a choice
hath been made agreeably to the Constitution, such entry on
the journals shall be deemed sufficient declaration thereof."

These instances illustrate how completely the two Houses,
by their concurrent resolves or orders, have controlled both
the manner and substance of the announcement to the two
Houses assembled in joint convention. It has already been
mentioned that in 1821 the resolve or order of the House of
Representatives authorized the President of the Senate to make
the announcement, though he did not, and the Speaker did, at
the time preside over the House.



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

An inspection of the resolves or orders of the two Houses
under which the countings have been had, an analysis of their
exact terms and of the nature and effect of the acts done un-
der them, demonstrate that the President of the Senate or other
presiding officer never had any independent power over even
the announcement of the result of the count, never had any
power except to do as he was commanded by the affirmative
concurrent orders of the two Houses. Still less would he have
power to revise or alter the results delivered to him by the
tellers, or to intermeddle in any manner with the tellers in
" examining and declaring the votes," in making the lists or
enumerating the results, or in obeying the instructions of the
two Houses as to what should or should not be admitted as
votes and counted.

Such an assumption of power would be as naked usurpation
on the part of the President of the Senate or any other presid-
ing officer as it would be if the same power should be assumed
by the clerk, or by a messenger or page of one of the Houses.

The law is well stated by John Adams, Yice-President, and
President of the Senate, in 1797, when he announced "the
state of the vote and the persons elected to the two Houses
assembled ' : in joint convention. u In obedience," said he,
u to the Constitution and law of the United States, and to the
commands of both Houses of Congress expressed in their reso-
lutions passed in the present session, I now declare that John
Adams is elected President," etc.

Chancellor Kent, in his " Commentaries" (vol. i. p. 277),
says :

"The Constitution does not expressly declare by whom the votes
Chancellor are to ^ e counted. In the case of questionable votes
Kent's "pre- and a closely-contested election, this power may be
all important; and I presume, in the absence of all
legislative provision on the subject, that the President of the
Senate counts the votes and determines the result, and that the
Houses are present only as spectators, to witness the fairness
and accuracy of the transaction, and to act only if no choice be
made by the electors."



i877] WHO COUNTS THE ELECTORAL VOTE? 405

This remark was written more than fifty years ago, and is
one of those hasty suggestions which it was a characteristic of
the venerable Chancellor in his judicial career candidly to cor-
rect. Indeed he does not seem to have had confidence in it
himself. He makes the power in the President of the Senate,
if it exist at all, dependent on the absence of all legislative
provision on the subject.

The power to count the votes is not a necessary incident to
the power to receive the packages and open them in presence
of the two Houses. If it were, it could not be taken away by
legislation. As the principal power is derived from the Con-
stitution, the incidental power would stand with it superior
to the legislative authority of Congress.

If the power to count the votes be not incidental to the
power to receive and open the certificates, the President of the
Senate has no pretence of claim to it. The absence of legisla-
tion might leave a default of power, but could not confer it on
a functionary who had no other title to it. The Constitution
does not make the election of President dependent on the count
of the votes by any particular authority, but only upon the fact
of receiving a majority of the votes. If there were no tribunal
authorized to ascertain this fact, it might impose on the public
bodies of the State the necessity of finding it out for them-
selves and acting on their own judgment ; but it would not
entitle the President of the Senate to seize upon the vacant
authority.

The Government is not exposed to such a casus omissus. It
is admitted by Chancellor Kent that the legislative bodies could
supply the alleged defect. They are therefore the best judges
whether such a defect exists, or whether a true construction of
the Constitution vests the implied power of counting in a fit
and adequate tribunal, such as the two Houses of Congress.
Thev have so decided, and have acted on that conclusion for

v

more than eighty years. An established practice, uninterrupted
and undisputed, ought to be accepted as law.

In 179T, in notifying the Yice-President of his election,



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

the President of the Senate transmitted to him a certificate
The Notification ^'hich incidentally stated that the President of
Certificates. ^he Senate had counted the votes. No such for-

mality was extended to the President. In 1825 the Vice-Pres-
ident was again favored in the same manner. In 1801 a more
singular certificate of the election of President and Vice-
President was made ; for it assumed also to certify what had
happened in the House of Representatives. In 1805, 1809,
1813, and 1817 similar certificates were made. These are
all since 1789 ; none such have been known for the last fifty
years.

The first criticism on these papers is that they seem to have
followed the form of that of 1789 ; in which case the procedure
of the regular count by the two Houses, which has been prac-
tised ever since, had not been established, and the special Presi-
dent of the Senate, in the anomalous conditions of the then
Government, probably did himself verify the enumeration of
the votes.

The more important observation is that we must distinguish
between the ambiguous senses in which the word " count ' is
constantly used. In one sense it is a mere clerical enumera-
tion of the votes, without the slightest particle of discretion.
In the other sense it involves a decision of what shall be
counted as a vote, and includes a large element of judicial
power. Now it might well be that, at the counting by the two
Houses through their tellers, the presiding officer or the
Speaker of the House and the clerks and many of the members
had gone through the enumeration or had verified it, so as to
be able to say, in the narrowest sense, that they had counted
the votes, or that the presiding officer could certify that he
had counted constructively. Everybody who chose to give the
necessary attention to the process, publicly performed, might

be said in some sense to count.

f

But taking the count of 1797 as an illustration, Vice-Presi-
dent John Adams presided, and gave the first of these certifi-
cates to Jefferson, who succeeded him as Vice-President, while



IS77-J WHO COUNTS THE ELECTORAL VOTE? 407

Mr. Adams himself was elected President. That counting was
conducted according to a mode which had been prescribed by
concurrent resolutions of the two Houses, adopted on the report
of a joint committee raised for that purpose. Those resolutions
specified every step in the process. They directed that the
tellers appointed by the two Houses to examine the votes
should make a list of them as they should be declared by a
reading of them to the two Houses, and when it was completed
should deliver the result to the President of the Senate, who
should then announce to the two Houses the state of the vote
and the persons elected.

The journals of the two Houses show that the sealed pack-
ages of certificates were opened by the Vice-President and by
him delivered to the tellers appointed by the two Houses ; that
they examined and ascertained the number of votes and made

V

a list of them, and presented that list to the Vice-President,
which was read. He thereupon declared to the two Houses the
persons elected as President and Vice-President, and said that
he did so " in obedience to the commands of both Houses of
Congress, expressed in their resolutions." That the presiding
officer did in fact interfere, or had any power to interfere, with
the official machinery of the counting, or with the process of
the counting, or with the results of the counting, or that in the
restricted function of announcing that result to the Houses over
which he presided he did or had power to do anything but obey
the commands of the two Houses, is contradicted and disproved
by the official records of the two Houses and by his own public
declarations at the time.

In whatever barren sense he may be said to have counted the
votes, it exercised no influence over the results. The only au-
thentic, official, and obligatory counting was exclusively by the
two Houses of Congress.

The same statement is equally true of every case in which
such a certificate was ever made. In one of those cases the
votes of Indiana were disputed. The question was considered
and debated by the Houses ; and as it made no difference with



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

the result, it was indefinitely postponed. But the presiding
officer was not even consulted about it.

As precedents to sustain the President of the Senate in as-
suming the power to count the votes in the sense merely of
enumerating the votes, and still more in the sense of adjudicat-
ing on the authenticity and validity of the votes, the certificates
are utterly Avorthless.

The action of President (pro tempore) Mason in 1857 seems
The precedent of *o nave been misstated, unintentionally, by Sen-
ator Morton. Mr. Mason did not arrogate to the
presiding officer any power to decide whether the vote of Wis-
consin was valid, or to decide whether it should be counted.
He repeatedly disclaimed any such power. The electors of
Wisconsin, having been prevented by a snowstorm from as-
sembling on the day prescribed by the Act of Congress, met on
the next day and voted. Many senators and representatives
were of the opinion that the vote was illegal and void. As in
the case of Indiana in 1817, Missouri in 1821, and Michigan in
1837, the vote, whether counted or not, made no change in the
result of the election ; and in another respect the question was
even less important. In all those three cases the questionable
votes were for the candidates who were elected : and although

o

those candidates had a majority without the questionable votes,
the statement of the aggregate number of votes received by
those candidates had either to include or exclude the question-
able votes. In the Wisconsin case the votes were for Fremont
and Dayton, who were in any event the minority candidates ;
and the statement of the votes received by Buchanan and Breck-
inridge was unaffected by these votes, and showed a majority
irrespective of them.

The tellers entered the votes of Wisconsin on their list, in-
cluded them in the footing, and reported the result to the pre-
siding officer. When the votes of Wisconsin were reached,
objection was made. But the objectors did not seem aware of
the usage of moving for a separation of the Houses in order to
discuss and decide whether the vote of Wisconsin should be



IS;?-] WHO COUNTS THE ELECTORAL VOTE? 409

counted ; and the presiding officer ruled that debate was out of
order in the joint meeting. The process, therefore, went on,
neither of the two Houses having by a parliamentary method
suspended the operation of the ministerial functions which,
without such interposition, were being properly performed.
The tellers made their report verbally ; and the presiding offi-
cer obeyed the concurrent resolution by announcing to the two
Houses the state of the vote and the persons elected. The
tellers were about to make their report in writing, when, to
enable the debate to be had, the motion was made and carried
that the Senate retire to its own chamber.

During the joint session Senator Crittenden inquired: "Do
I understand the Chair to decide that Congress in no form has
the power to decide upon the validity or invalidity of a vote ? ' :
The presiding officer answered that he had made no such
decision ; that " under the law and the concurrent order of the
two Houses, nothing can be done here but to count the votes
and declare the votes thus counted to the Senate and House of
Representatives sitting in this chamber;' and that further
action could only be taken in the two Houses in their separate
capacities.

Afterward the presiding officer said he " was not aware that
he could decide what effect, if any," the irregularity in the vote
of Wisconsin " would have on the votes ' of that State. Nor
is it his duty to u decide upon whom devolves the duty of deter-
mining what the effect may be." Senator Crittenden referred
to the presiding officer as having assumed " to declare the num-
ber of votes, involving the privilege of determining a Presi-
dential election, and saying who shall be President;" and said,
"I protest against any such power." Senator Toombs said,
" I join with the senator in that protest." The President an-
swered that " the presiding officer is utterly unaware that he
has assumed the exercise of any such power." Senator Toombs :
" I consider that the presiding officer has done so." The Presi-
dent said : " The concurrent order of the two Houses makes It
the duty of the President of the Senate to announce the state of



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

the vote, and the persons elected, to the two Houses assembled.
Th?t duty he has discharged, and none other."

Immediately after the Senate had withdrawn to its own
chamber, a debate upon the subject ensued. The written
report of the tellers, the delivery of which to the two Houses
had been intercepted by their separation, was submitted to the
Senate. That report stated the aggregate votes of Fremont
and Dayton, omitting the votes of Wisconsin ; and stated those
votes separately, with the date when they had been given. Mr.
Mason, President pro tempore, who had been the presiding
officer of the two Houses in their joint meeting, again dis-
claimed in the most positive terms the assumption of power
ascribed to him. He said : -

" The Chair will further state to the Senate, as the result of the
action in the hall of the House of Eepresentatives in counting the
votes, that the duty was devolved upon the presiding officer there,
by the concurrent order of the two Houses, to declare the result
of the vote as delivered to him by the tellers. That declaration
did not involve, in the opinion of the Chair, the validity or the
invalidity of the vote of the State of Wisconsin. The declaration
made by the Chair in the presence of the two Houses as to the
gentleman who had been elected President was written down, and
is in these words : ' That James Buchanan, of the State of Penn-
sylvania, having the greatest number of votes for President, and
that number being a majority of the whole number of electors, has
been duly elected.' Whether the vote of the State of Wisconsin
be included or not, the declaration made by the presiding officer,
that Mr. Buchanan had a majority of the votes, and that that
majority was a majority of the whole number of the electoral
votes, - - was strictly conformable to the fact."

Ao;am, the President of the Senate said :

o /

"The presiding officer, in his own judgment, believed then, as
he believes now, that he declared correctly, as the state of the
vote, that James Buchanan had received the greatest number, and
that that number was a majority of the whole number of electors ;
not undertaking to decide, and not having decided, whether the
vote of the State of Wisconsin had been given to John C. Fremont
or not, a power that the Chair utterly disclaims and never
asserted."



1877.] WHO COUNTS THE ELECTORAL VOTE? 411

The course of procedure taken in the presence of the two
Houses at the various elections shows the same How the counting

. . has actually been.

uniform recognition of their supreme authority done.

in deciding upon the authenticity and validity of the electoral

certificates.

The informality of the first election in 1789, and the fact
that the course then pursued was never repeated, deprives it
of all authority as a precedent.

At the second election of President Washington, in 1793,
" the certificates of the electors of the fifteen

1793

States in the Union, which came by express,
were by the Vice-President opened, read, and delivered to the
tellers appointed for the purpose ; who, having examined and
ascertained the votes, presented a list of them to the Vice-
President, which list was read to the two Houses, and is as
follows, etc. : ' Whereupon the Vice-President declared George
Washington unanimously elected President,''' etc.

On this occasion the President of the Senate only opened,
read, and delivered the certificates to the tellers ; they exam-
ined, ascertained the votes, and presented a list of them to the
President of the Senate, which list he then read to the two
Houses. The function of the Vice-President was then, as it
has always been since, purely a passive one. Where there has
been any variation, it has been to invigorate rather than weaken
the prerogatives of the two Houses.

At the election of John Adams, in 1797, " the certificates of
the sixteen States were by the President opened and delivered
to the tellers appointed for the purpose, who,
having examined and ascertained the number of
votes, presented a list thereof to the Vice-President [Mr.
Adams himself], which was read as follows, etc.; whereupon
Mr. Adams proceeded to discharge what he regarded as the
duty of the President of the Senate. He addressed the two
Houses as follows :

"'Gentlemen of the Senate and House of Representatives,
By the report which has been made by the tellers appointed by



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

the two Houses to examine the votes, there are 71 votes for John
Adams, 68 for Thomas Jefferson/ etc., etc. ; i so that- the person
who has 71. votes, which is the highest number, is elected Presi-
dent, and the person who has 68 votes, which is the next highest
number, is elected Vice-President.' :

The President then sat down for a moment ; and rising again,
thus addressed the two Houses :

" In obedience to the Constitution and law of the United States,
and the commands of both Houses of Congress, expressed in their
resolution passed in the present session, I declare that John
Adams is elected President of the United States for four years,



Online LibrarySamuel J. (Samuel Jones) TildenThe writings and speeches (Volume 1) → online text (page 32 of 52)