On the 6th of April, 1789, Congress having assembled under the Constitution, ordered "That Mr. Ellsworth inform the House of Representatives that a quorum of the Senate is formed; that a President is elected for the sole purpose of 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, and that the Senate is now ready in the Senate chamber to proceed, in the presence of the House, to discharge that duty, and that the Senate have appointed one of their members to sit at the Clerk's table to make a list of the votes as they shall be declared, submitting it to the wisdom of the House to appoint one or more of their number for the like purpose," who reported that he "had delivered the message. A message was received from the House, as follows: MONDAY, April 6, 1789. The President of the Senate, elected for the purpose of counting the votes, declared to the Senate that the Senate and House of Representatives had met, and that he, in their presence, had opened and counted the votes for electors for President and Vice President of the United States; whereby it appears that George Washington was unanimously elected President. The record shows that of the thirteen Colonies ten had voted, namely, New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, and Georgia. Sixty-nine electoral votes were cast. It will be noticed that New York had ratified the Constitution on the 26th of July, 1788, nine months before, but had no electoral vote there. North Carolina did not ratify the Constitution until seven months after this election, on the 21st of November, 1789, and Rhode Island not until May 29, 1790. It will thus be seen that these men, who were the framers of the Constitution, conferred all power of opening, counting, and declaring the vote on the President of the Senate. The two Houses were merely the witnesses to give force and dignity to the event. The tellers were only the recording witnesses for that purpose, as the President of the Senate declared the vote. At the second election of Washington a joint resolution of both Houses was adopted, as follows: That the two Houses shall assemble in the Senate Chamber on Wednesday next at 12 o'clock; that one teller shall be appointed on the part of the Senate to make a list of the votes as they shall be declared; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, and the persons elected, to the two Houses assembled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice President, and, together with a list of the votes, be entered on the Journals of the two Houses. Resolutions nearly the same, word for word, were adopted from the first elections until a very recent period. At the first election of Jefferson, when he and Aaron Burr had seventy-three votes each, the following words were interpolated in the resolutions: "And if it shall appear that a choice hath been made agreeably to the Constitution." That election forced the amendment of the Constitution by which the President and Vice President should be voted for separately, instead of taking the second on the list for Vice President. Jefferson and Burr had the same vote, not that the people intended to elect Burr, but because the design was to elect Jefferson President and Burr Vice President. elder Adams at that election had sixty-five votes, and Mr. Pinckney sixty-four, which shows that the Federalists managed it better by keeping Mr. Pinckney one vote behind Mr. Adams. At the opening of the electoral votes on that occasion, the Vice President, who was President of the Senate, was Thomas Jefferson, himself the candidate for the Presidency. With a feeling of delicacy he opened the sealed envelopes and handed them to the tellers to count, although the resolution under which he acted, and the Constitution, made it simply his work. The tellers in that matter were his assistants. The On that occasion, and the only other occasion when the election went to the House, the dangers of the system presented themselves. No one doubted for a moment that the people intended to elect Thomas Jefferson President; and yet, as the Constitution then stood, the election was thrown into the House, the House showed what kind of an electoral college it was capable of making. On the 11th of February, 1801, it voted nineteen times, and Jefferson, who had carried 73 out of 138 electoral votes, got but eight States; nine were necessary to a choice. One whole week was spent in balloting before Jefferson was elected. It is not for us to listen to or believe all the current stories rife at that time in the public mind of intrigue, bargain, or sale. I would only refer to a speech of Mr. Bayard, of Delaware, made in February, 1802, to be found on page 417 of Debates on the Judiciary. It exposed the system of electing by the House and the House itself to severe criticism. And here let us admire the good . features of the electoral system. There is no national electoral college; no body to assemble in Washington to vote for President; no body possessed of a discretionary power to reverse the decree of the people; no body to be tempted by the eminent places of the Government, where a few votes or one vote might change the result. The electoral college is purely in and for the State. The law of Congress designates when they shall be elected and when they shall meet. The Constitution fixes the representation. It provides that one copy of the returns shall be sent to the President of the Senate. So much importance is attached to these returns that by the act of 1792 it was provided that other two copies should be made. One goes to the nearest judge, to be held by him as security for their preservation, and besides the copy sent by mail one is sent by special messenger, both to the President of the Senate. The messenger has no authority save to bring the returns, which are sealed, in his possession. The President of the Senate receives the certificate of the State electoral college. He is the custodian. In case both the copy from the messenger and by mail are lost or not received by the first Wednesday of January, the Secretary of State sends a messenger for the copy in the hands of the judge. I have said that there was no perceptible change in form of the joint resolution adopted by both Houses for counting the electoral vote until a very recent period. That period was the second election of Mr. Lincoln. At that time, in the Senate, February 6, 1865, Hon. Lyman Trumbull, then a Senator of the United States, reported the joint rule the first part of which reads as follows: Resolved by the Senate, (the House of Representatives concurring therein,) That the following be added to the joint rules of the two Houses, namely: "The two Houses shall assemble in the hall of the House of Representatives at the hour of one o'clock P. M., on the second Wednesday in February next succeeding the meeting of the electors of President and Vice President of the United States, and the President of the Senate shall be their presiding officer; 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 of the two Houses then assembled, shall make a list of the 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, who shall thereupon announce the state of the vote, and the names of the persons, if any, elected, which announcement shall be deemed a sufficient declaration of the persons elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses." It will be at once seen that there is a very remarkable change of form, and one inter fering with the functions of the President of the Senate. Formerly tellers had been appointed, and on many occasions the President of the Senate handed them the certificates to count. This resolution conferred on them the power from Congress. When the portion I have quoted was read, Mr. Trumbull said, (page 608, volume 54, Congressional Globe :) That is the usual form, as far as I have read, of the resolutions heretofore adopted. The committee have proceeded further to provide for a contingency. Let us see whether it was the usual form.. It is singular that Mr. Trumbull was also chairman of the committee that reported the resolution at the first election of Mr. Lincoln. That resolution was in the usual form adopted since the second election, and reads: Resolved, That the two Houses will assemble in the chamber of the House of Representatives on o'clock, and the President of the Senate shall be Wednesday, the 13th day of February, 1861, at 12 the presiding officer; that one teller shall be appointed on the part of the Senate and two on the part of the House of Representatives, to make a list of votes as they shall be declared; that the result shall be delivered to the President of the Senate, who shall announce the state of the vote, and the persons elected, to the two Houses assembled as aforesaid, which shall be deemed a declaration of the persons elected President and Vice President of the United States, and, together with a list of the votes, shall be entered on the Journals of the two Houses. As a matter of fact, the precise mode of counting the vote has varied. At first, der resolutions very carefully framed by the authors of the Constitution, the President of the Senate was the sole actor in counting the vote. Afterward a number of Vice Presidents were either candidates for re-election or candidates for the Presidency, and as a question of delicacy they handed the returns, when they opened the certificates in their possession, to the tellers. The functions of the tellers, however, have always been purely those of assistants to the President of the Senate. The function of counting may be said to have been always purely ministerial. If any function of a judicial character was vested anywhere it was, of course, in the President of the Senate. There is a natural repugnance to putting into the hands of one man the power to settle a great question, and yet it is clearly certain, by the language of the Constitution and of the first resolution, and, above all, by the debates in the old constitutional convention, as recorded in the Madison papers, that there was a fixed purpose that Congress should have no control over the Presidential election until the President of the Senate declared that there was no election under the terms of the Constitution. The mode of electing a President was one of the vexed questions of that old constitutional convention. None of the colonies when they became States wished its influence weakened or destroyed. There were two parties then as now, a national party and a State-rights party. The former wished a National Government, entirely distinct from and independent of the States and President elected either by Congress or the people directly; the latter party wished the Chief Magistrate selected by the States as such. So intense was the feeling on this subject that at one time it threatened to destroy all hope of uniting on a form of government. Neither side succeeded, or rather the result was a compromise. The electors for the districts represented the people, the senatorial electors the States, and yet the electors might be voted for by the people, elected by the Legislature, or appointed by the governor under authority of law. The electoral colleges were State colleges. All supposed corrupt influences were avoided. The steps taken to have the electoral vote polled and sent were supposed to be taken with great care. The President of the Senate received, opened, and counted the vote, and his declaration of the result was held as final and sufficient. Counting or rejecting the votes of States was a contingency never contemplated, and for which, of course, there was no provision. It was never intended that Congress should make itself a returning board to canvass a State election, and determine which States should or should not be counted, because it was foreseen that if they did it would not be long before the congressional machinery would elect all Presidents. Some little discretion was undoubtedly understood to vest in the President of the Senate. As a matter of course he would not receive returns from everybody. He must be satisfied they were the genuine returns. If he was assisted by tellers he never asked them and they never asked him whether the package he handed them as the vote of a certain State was such a vote or not. Their acts were plain and simple. Neither is there a word to countenance the idea of a joint convention with legislative and judicial powers "in presence of the Senate and House of Representatives." Both bodies together and yet both bodies distinct. The disposition to convert the witness into a judge was to be expected. The tendency in that direction is very strong. If the Constitution conferred the necessary power on the President of the Senate, it did not confer it on the House. Shall the witness called in first raise a question and then decide upon it? Is it safe to give Congress the power of receiv ing or rejecting the votes of States? Is it necessary that it should furnish a law or machinery to this end? Is doing this so inevitable that the power to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers" confers it on Congress? If we accept that claim in its broadest sense there is nothing which Congress may not do. I am not insensible to a necessity which may arise calling for congressional interference. I am equally impressed with the danger of innovations which may lead the way to a complete overthrow of the old system. I do not know that precedents are worth much in the face of constitutional provision, yet let us beware of the precedents we make. What are the precedents made? In 1821 Mr. Livermore, of New Hampshire, objected to the vote of Missouri because Missouri was not a State in the Union. The Houses separated and a vote to count the vote of the State of Missouri was laid on the table. A resolution had been adopted that if the counting or omitting to count the vote of the State of Missouri would not chang the result it should be announced: "With the vote of the State of Missouri, so much, without the vote of the State of Missouri, so much;" in either event is elected President. In February, 1813, when Mr. Monroe was elected President, Mr. Taylor, a member from New York, objected because "the votes of the electors of the State of Indiana for President and Vice President had been given previous to the admission of the State into the Union." When the Houses separated they promptly voted to count Indiana, and the vote is registered like the other States. In February, 1837, objection was made to the State of Michigan, and a resolution to announce the vote as in the case of Missouri was agreed to in joint resolution before the two Houses met. The President of the Senate declared the result: "With the vote of Michigan Martin Van Buren has 170 votes; without it, 167;" and as 148 was a majority he was elected President. At the election February, 1837, the question of the ineligibility of electors came up. From the resolution of Mr. Grundy and the other records of the transactions it appears that, the second section of the second article was supposed not to have been very rigidly observed. From the report made by Mr. Grundy to the Senate it appears that there were five cases at that election of electors who were deputy postmasters or other Federal officers. We quote from it: What ought to be done with them, and whether Fegen arnes (e sovellett. li process of rejecting the vote of any State was for 1 extust conceive that ar statesmAL suotus take any other view of many of the provisions of the twenty-second jom rule save as beGESET Wat measure Of the Degesity and absolute force of such action Under such eredunstabes DO TREND EN be at yet it was not doge mer T 600stitutional provision. When In Trave causes for suet action are removed are we 10 detersise that they st enter into future Presidential elections? Was this raped in adding this to the powers of Conthe design or expectation, or are we wargress? The nós dieskoca the feature of the twenty-second faint role as it stood. gress to disfranchise a State. If we are to was that it permitted one House of Conadopt legislation to meet diffenties, real of the power of voting but by the concurrent or imaginary, no State should be deprived action of both Houses. On this very point the ablest Democratic Senators were eloquent last session. It will be observed that the Presidential At the election of Mr. Buchanan, Feb- gibility there is no tribunal to inquire into. elector is one of the few officers whose eliruary, 1857, after the President pro tem- The right of every other person to the posi pore had declared the result, Mr. Hu- tion he claims may be judicially determined. phrey Marshall, a member of the House, It is clearly a State office. Paised the question "as to the right of the shall appoint, in such manner as the Legis"Each State President of the Senate pro tempore to de- lature thereof may direct." termine whether or not the State of Wis-ture may elect them. They may authorize The Legislaconsin had cast a vote that could be the Governor to appoint them. The law of counted." He had counted it on his own volition, and having declared the result, of appointment. Their vote is sealed, but the State has entire control of their mode adjourned the meeting of the two Houses, that merely refers to being put in a sealed The Houses separated. The tellers re-package, ported to them that the electors, instead required. If present they are surplusage, No appendage of State seals is of meeting on the 3d of December, the merely for better identification. day fixed by law under provision of the Constitution, they met and cast their vote in this Presidential matter, to go straight I think there is but one course to pursue on the 4th, the day after. On this report ahead under the forms of the Constitution. of the tellers no action was taken, the The two Houses are to be present when Senate evidently being disinclined to take the officer who has the authority under the action as to the powers of the President of Constitution opens the certificates, counts the Senate. This, too, was in a case of the votes, and declares the result. They violation of act of Congress on one of the do not met to make motions, offer resolutwo ouly points on which Congress ex-tious, or vote. They do not meet to deterpressly has power under the Constitution; the one to lix the day for the election of electors, the other that they is the day on which they shall meet and cast their vote. It was not until the second election of Mr. Lincoln occurred that graver questions aroso. War was still raging. States at war be permitted to vote, or Should should the States under the control of the mine that the President of the Senate shall not do that which the Constitution has said body to its own chamber to vote give either he shall do. Does the withdrawal of each House any more power than both have jointly to enact a law? Is there a single mine separately? Has the House judicial matter in legislation which they can deterpowers on any subject, or has the Senate on counting the electoral vote? These are questions for us to ponder and answer. der to elect a President? or, having admitted them, shall we accept such machinery as these States present to us, and count the vote of Vermont side by side with the vote of Mississippi? I think it must be admitted that to give Congress the power to fill up by legislation the supposed gaps in the Constitution, and in doing so to add to its own powers in What are we to think of a great party electing a President, is a matter of ques- like the Democratic party resorting to turtionable expediency. Where is it to end? bulent means from a fear that they are The ancient landmarks may not be all we beaten? How questionable and unpatricould wish them, but where is to be our otic to call popular assemblages to pass on safe anchorage when we have swept them the situation. What shall the Democratic away? In the interests of a quiet and convention of Indiana do? Are they not peaceable adjustment of this question we satisfied with the constitutional machinery might consent to yield anything not funda- ¦ that has elected our Presidents since the mental. I have no desire to be captious or days of Washington? Is the design to hang on mere technicalities. If, under the browbeat or threaten? The will of the peoConstitution we have the power to deter- ple is law, but in our American system its mine anything, let us do it in a spirit rising only force lies through forms; for nothing above all party or its interests and above is law, or can have the sanctity thereof, the claims of all candidates; yet, before save the will of the people legitimately exwe embark on such a course let us think of pressed. The only turbulent element is in the difficulty of harmonizing legislation at such movements. Will the shrewd Demosuch a time. Compromise, always of cratic leaders countenance such a scheme questionable utility, never had such a dif- in the vain hope of a temporary success? ficult task before it. Are the supposed difficulties really entitled to the great interest they have aroused? I must confess I cannot dismiss the idea from my mind that a large portion of excitement and disturbance is caused by those who expect to divert attention from the only legitimate and constitutional modes of settling the question. They wish to drive Congress to some new and unauthor- | ized mode for the sake of peace. Such proposals are the only things that can disturb the public tranquillity. Those who resort to them ought to receive the condemnation of all good citizens. Nor is there anything necessarily startling in the situation. One majority is, to all intents and purposes, as good as fifty. Nor can there be any serious doubt as to which are the State returns. It is in some respects new in the aspects it presents, and yet the crowning test to our institutions. Must close elections be followed by intrigue and violence to change the result? Does any man for a moment suppose that a scheme so monstrous as the attempt to defeat the fair and unmistakable election in Oregon on a mere technicality could be for one moment tolerated by the American people, even if the technicality had, what it has not, the slightest color of law? The question as to whether we should allow such of the reconstructed States, recently in war, and who do not furnish us the evidence that they are able as yet to conduct fair and peaceable elections, to vote, is one pregnant with the most important issues. Must we forever be kept in this condition of half war, half peace? Shall we permit wholesale fraud and mur I do not wish to hear any of the insane talk of fixed ammunition and thousands of muskets in the hands of mobs to intimidate or assail our constitutional authorities. All such rodomontade only exposes those who use it to ridicule. Nor do I for a moment fear that armies will be lawlessly organized to march on Washington, prepared and preparing for disturbances. If such talk for a moment disturbs the public mind, it is at once tranquilized by the reflection that we have a man at the helm. No weak, vacillating old man is declaring he has no power to crush conspiracy and rebellion, and weeping himself out of the Presidency. I do not rise here as the special eulogist of the President, but I do not hesitate to declare him among the best of our Presidents. Vainly shall conspirators seek to weaken his influence. Cruelly assailed, he has modestly withheld just, but possibly undignified vindication. For long months remorselessly pursued by men, many of whom were recently in arms against him, and who had shared his unparalleled magnanimity when, at the head of a great army, flushed with victory, his only thought was To soothe and save The feelings of the conquered brave. Misrepresented and hounded by partisan committees, his character comes out of the ordeal unspotted. He is charged with Cæsarism, and events prove the charge false. He is charged with conspiring to name his successor so that his dynasty might be continued, and as events prove that to be false he is charged with selfish indifference as to the candidates of his own party. He is charged with sending troops into the reconstructed States, and yet he never sent |