[Hinds' Precedents, Volume 3]
[Chapter 59 - The Electoral Counts, 1789 To 1873]
[From the U.S. Government Publishing Office, www.gpo.gov]
THE ELECTORAL COUNTS, 1789 TO 1873.
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1. Procedure at the first count. Section 1928.
2. Practice from 1793 to 1813. Sections 1929-1934.
3. The count of 1817. Section 1935.
4. The count of 1821. Sections 1936, 1937.
5. Counts from 1825 to 1833. Sections 1938-1940.
6. The count of 1837. Section 1941.
7. The counts from 1841 to 1853. Sections 1942-1945.
8. The count of 1857. Section 1946.
9. Counts of 1861 and 1865. Sections 1947, 1948.
10. The count of 1869. Sections 1949, 1950.
11. The count of 1873. Sections 1951, 1952.
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1928. Proceedings of the electoral count of 1789. The tellers on the
part of the House for this count were appointed by resolution.
At the first electoral count the Senate elected a President pro
tempore solely for that occasion.
An instance wherein a Member of the House was intrusted with a
message to the Senate.
On April 6, 1789,\1\ a message was received from the Senate, brought
by Mr. Oliver Ellsworth, a Senator from Connecticut, as follows:
Mr. Speaker, I am charged by the Senate to inform this House that a
quorum of the Senate is now formed; that a President is elected\2\ 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 this House, to
discharge that duty. I have also in further charge to inform this House
that the Senate has appointed one of its 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 this House to appoint one or more of its members
for the like purpose
Mr. Elias Boudinot, of New Jersey, on the part of the House, informed
the Senate that the House would attend.\3\
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\1\ First session First Congress, Journal, pp. 7, 8 (Gales & Seaton
ed.); Annals, pp. 17, 101.
\2\ John Langdon, Senator from New Hampshire.
\3\ Senate Journal, p. 8.
Sec. 1929
On motion it was
Resolved, That Mr. Speaker, attended by the House, do now withdraw to
the Senate Chamber for the purpose expressed in the message from the
Senate; and that Mr. Parker and Mr. Heister be appointed on the part of
this House to sit at the Clerk's table with the member of the Senate,
and make a list of the votes as the same shall be declared.
The Speaker accordingly left the chair, and, attended by the House,
withdrew to the Senate Chamber.
The Senate Journal says: \1\
The Speaker and House of Representatives attended in the Senate
Chamber, for the purpose expressed in the message delivered by Mr.
Ellsworth, and after some time withdrew.
The Senate proceeded by ballot to the choice of a President of their
body pro tempore. John Langdon, esq., was duly elected.
The President 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 of the
electors for President and Vice-President of the United States, which
were as follows: [Here followed tabulation.]
Whereby it appears that George Washington, esq., was unanimously
elected President, and John Adams, esq., was duly elected Vice-
President of the United States of America.
1929. Proceedings at the electoral count of 1793.
In a case where the Vice-President was also the Vice-President-elect
the Senate announced the election of a President pro tempore for the
sole purpose of opening the certificates and counting the votes; but it
does not appear certain that he acted.
On February 5, 1793,\2\ in the House, it was--
Resolved, That a committee be appointed, to join such committee as
may be appointed by the Senate, to ascertain and report the mode of
examining the votes for President and Vice-President, and of notifying
the persons who shall be elected of their election, and to regulate the
time, place, and manner of administering the oath of office to the
President.
Messrs. William Smith, of South Carolina; James Madison, of Virginia,
and John Laurance, of New York, were appointed this committee on the
part of the House. On the part of the Senate Messrs. Rufus King, of New
York; Ralph Izard, of South Carolina, and Caleb Strong, of
Massachusetts, were appointed on this committee.\3\
On February 11 \4\ the committee reported in both House and Senate
the following arrangement, which was agreed to by both Houses, the
Senate form differing from the House form in providing for one Senate
teller, while the House tellers were two:
That the two Houses shall assemble in the Senate Chamber on Wednesday
next, at 12 o'clock. That two persons be appointed tellers on the part
of this House, 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 both
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 Journal of the two Houses.
The House adopted an order naming the two tellers.\5\
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\1\ First session First Congress, Journal, p. 8.
\2\ Second session Second Congress, Journal, p. 689 (Gales & Seaton
ed.); Annals, p. 861.
\3\ Annals, p. 641; Journal, p. 694.
\4\ Journal, p. 699; Annals, pp. 873, 644.
\5\ Journal, p. 700.
Sec. 1930
On February 13 \1\ a message from the Senate by Mr. Otis, their
Secretary, announced that a President of the Senate \2\ was elected for
the sole purpose of opening the certificates, and counting the votes of
the several States, in the choice of a President and Vice-President of
the United States; and that the Senate was ready, in the Senate
Chamber, to attend with the House on that occasion.
The House resolved.
that Mr. Speaker, attended by the House, do now withdraw to the Senate
Chamber, for the purpose expressed in the said message.
The votes having been counted, the Vice-President announced:
George Washington unanimously elected President of the United States
for the period of four years, to commence with the 4th day of March
next; and John Adams elected, by a plurality of votes, Vice-President
of the United States for the same period, to commence the 4th day of
March next.\3\
1930. Proceedings at the electoral count of 1797.
At the first electoral count, held in the Hall of the House, the
President of the Senate sat at the right of the Speaker, and the
Senators on the right of the Hall.
Instance wherein a Vice-President, who was also the President-elect,
presided at the electoral count.
On January 31, 1797,\4\ the Senate adopted a resolution agreeing to a
resolution providing for a joint committee--
to ascertain and report a mode of examining the votes for President and
Vice-President, and of notifying the persons elected of their election,
and for regulating the time, place, and manner of administering the
oath of office to the President.
The House concurred, and thereafter the resolutions were adopted in
form like those agreed to in 1794, except that the Hall of the House of
Representatives,\5\ instead of the Senate Chamber, was designated as
the place of meeting.\6\
The tellers were appointed by resolution of the House.\7\
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\1\ Journal, p. 701; Annals, p. 874.
\2\ The Annals (p. 645) indicate that the Vice-President opened and
presented the certificates, and the Senate Journal (pp. 485-486, Gales
& Seaton ed.), shows surely that he did.
\3\ John Adams was both Vice-President and Vice-President-elect.
\4\ Second session Fourth Congress, Annals, p. 1535.
\5\ On February 2, 1881 (Third session Forty-sixth Congress, Record,
pp. 1129-1141), during discussion of the resolution providing for the
electoral count of 1881, a lengthy discussion was occasioned by a
proposition made in the Senate by Mr. John J. Ingalls, of Kansas, that
the count be held in the Senate Chamber. It was urged that the Senate
Chamber was the rightful place for the count, that it was necessary in
having the count in the Hall of the House to transport valuable
records--a transportation reputed to have been attended with some peril
in the stormy days of the count of 1876--from the Senate to the House,
and that in reality the Hall of the Senate was large enough. But Allen
G. Thurman, of Ohio, urged that the practice of seventy-odd years--
during which no Senator had been maltreated or assaulted in going to
and returning from the House--should not be changed. (Record, p. 1131.)
The Senate did not agree to the motion of Mr. Ingalls.
\6\ Journal, pp. 668, 676, 677, 678; Annals, pp. 1538, 2057, 2063.
\7\ Journal, p. 678.
Sec. 1931
On February 8 \1\ the House directed the Clerk to inform the Senate
that the House was ready to ``attend them in opening the
certificates,'' etc.
The Senate thereupon attended, the President of the Senate taking his
seat on the right-hand of the Speaker, and the Senators seating
themselves on the right-hand side of the Chamber.
The President of the Senate \2\ addressed the ``gentlemen of the
Senate and of the House of Representatives,'' stating the purposes of
the meeting, and stating that he had received packets containing the
votes of all the States, and had received duplicate returns by post
from all the States but Kentucky. It had been the practice heretofore,
on similar occasions, to begin with the returns from the State at one
end of the United States, and to proceed to the other. He should,
therefore, do the same at this time. Mr. Adams then presented the
packet from Tennessee.
The count having been completed the President of the Senate announced
the State of the vote, giving the total votes for each candidate, and
then declared: \3\
That John Adams, of Massachusetts, was duly elected President of the
United States, for four years, to commence on the 4th of March next;
and that Thomas Jefferson, of Virginia, was duly elected Vice-President
of the United States for the like term of four years, to commence on
the said 4th day of March next,
concluding in the following words:
And may the Sovereign of the Universe, the ordainer of civil
government on earth, for the preservation of liberty, justice, and
peace among men, enable both to discharge the duties of their offices
conformably to the Constitution of the United States, with
conscientious diligence, punctuality, and perseverance.
The President of the Senate and Members of the Senate then retired.
1931. Proceedings of the electoral count of 1801.
In 1801 the electoral count took place in accordance with
arrangements made separately by the two Houses, but identical in
essential particulars.
On January 22, 1801,\4\ the House appointed the usual committee to
join such committee as the Senate might appoint for arranging the
preliminaries of the electoral count. On January 27 \5\ a message from
the Senate announced that that body had agreed to the proposition of
the House and had appointed their committee. On February 9 \6\ Mr. John
Rutledge, of South Carolina, from the committee on the part of the
House reported that the committee of the two Houses had taken the
subject under consideration, but had come to no conclusion. Very soon
thereafter a message was received from the Senate announcing:
The Senate will be ready to receive the House of Representatives in
the Senate Chamber, on Wednesday next, at 12 o'clock, for the purpose
of being present at the opening and counting of the votes for President
of the United States. The Senate have appointed a teller on their part,
to make a list of the votes for President of the United States as they
shall be declared.
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\1\ Journal, p. 685; Annals, 2095.
\2\ John Adams, of Massachusetts, Vice-President. The Annals show
that Mr. Adams presided and opened the certificates.
\3\ Journal, p. 686.
\4\ Second session Sixth Congress, Journal, p. 770 (Gales & Seaton
ed.); Annals, p. 941.
\5\ Journal, p. 776.
\6\ Journal, p. 789; Annals, pp. 742, 1007.
Sec. 1932
This message was the announcement of the fact that on February 9 the
Senate on motion, had agreed to this resolution:
Resolved, That the Senate will be ready to receive the House of
Representatives in the Senate Chamber on Wednesday next, at 12 o'clock,
for the purpose of being present at the opening and counting the votes
for President of the United States. That one person be appointed a
teller on the part of the Senate, to make a list of the votes for
President of the United States 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, which shall be entered on the journals,
and if it shah appear that a choice has been made, agreeably to the
Constitution, such entry on the journals shall be deemed a sufficient
declaration thereof.
On February 10 \1\ the House agreed to a resolution of which the
latter portion was identical with the latter portion of the Senate
resolution, but with the first portion in the following terms:
Resolved, That the House will attend in the chamber of the Senate, on
Wednesday next, at 12 o'clock, for the purpose of being present at the
opening and counting of the votes for President and Vice-President of
the United States; that Mr. Rutledge and Mr. Nicholas be appointed
tellers, to act jointly with the teller on the part of the Senate to
make a list of votes, etc.
On February 11,\1\ at the hour named, Mr. Speaker, attended by the
House, went to the Senate Chamber, and the President of the Senate, in
the presence of the two Houses, proceeded to open the certificates of
the electors of the several States, beginning with the State of New
Hampshire. The votes having been read and tabulated, the President of
the Senate announced the state of the votes to both Houses, and
declared that Thomas Jefferson, of Virginia, and Aaron Burr, of New
York, having the greatest number and a majority of the votes of all the
electors appointed, and being equal, it remained for the House of
Representatives to determine the choice.
The two Houses then separated; and the House of Representatives,
being returned to their Chamber, proceeded in the manner prescribed by
the Constitution to the choice of a President of the United States.
1932. Proceedings at the electoral count of 1805.--On February 12,
1805,\2\ the House passed a resolution authorizing a committee to join
such committee as should be appointed by the Senate to ascertain and
report a mode of examining the electoral votes, etc. The Senate
disagreed to that proposition, and adopted a resolution like that
adopted by the Senate in 1801, when propositions for joint action had
failed. The House being informed that the Senate declined to take joint
action, adopted on their part, on February 13, a resolution like that
adopted under similar circumstances by the House in 1801.
On February 13, the Speaker, attended by the House, proceeded to the
Senate Chamber, having been informed previously by message that the
Senate was ready to receive them.
The two Houses being assembled, the President of the Senate proceeded
to open the certificates, and the votes were duly counted. Then the
President of the Senate, in pursuance of the duty enjoined upon him,
announced the state of the vote to both Houses, and declared that
Thomas Jefferson, of Virginia, having the greatest number and a
majority of the votes of all the electors appointed, was duly
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\1\ Journal, p. 796; Annals, p. 1022.
\2\ Second session Eighth Congress, Journal, pp. 133, 135-137 (Gales
& Seaton ed.); Annals, pp. 54, 55, 1192-1195.
Sec. 1933
elected President of the United States, for the term commencing on the
fourth day of March next; and then the same declaration as to George
Clinton, of New York, who was elected Vice-President.
The two Houses then separated, the House of Representatives returning
to their Chamber. The Speaker resumed the chair, and the list of votes
of the electors as declared by the President of the Senate was read at
the Clerk's table.
1933. Proceedings at the electoral count of 1809.
At the electoral count of 1809 an informality in a certificate from
one of the States was noticed, but no action was taken in relation to
it.
The electoral count of 1809 \1\ was arranged with the usual
preliminaries and forms as seen in the counts of 1813 and 1817.
The House appointed the tellers by an order.\2\
During the count, a Senator noted that the returns from one of the
States appeared to be defective, the governor's certificate not being
attached to it. Nothing further was done about it, however.\3\
1934. Proceedings at the electoral count of 1813.--The electoral
count of 1813 \4\ took place in accordance with the preliminaries to be
noticed in 1817. The House and Senate adopted similar but not identical
resolutions, like those of 1817, and the count occurred without unusual
incident. Before the proceedings began a message was received from the
Senate announcing that the Senate had appointed Mr. Franklin a teller,
on their part, in place of Mr. Gaillard, who was indisposed.\5\
1935. Proceedings at the electoral count of 1817.
At the electoral count of 1817 objection was made by a Member of the
House rising in his place to the counting of the vote of Indiana.
At the electoral count of 1817 the votes of Indian were counted
although given previous to the admission of the State to the Union.
In 1817 it was held that an objection to the electoral vote of a
State might not be debated or considered in the joint meeting; and the
two Houses separated for action.
While in joint meeting for counting the electoral vote the two Houses
may consider no proposition and perform no business not prescribed by
the Constitution.
In the electoral count of 1817 the Speaker presided with the
President of the Senate and ruled on a proposition made by a Member of
the House.
On February 10, 1817,\6\ Mr. Nathaniel Macon, of North Carolina, and
Mr. Charles Tait, of Georgia, were appointed members on the part of the
Senate to join a committee from the House ``to ascertain and report a
mode of examining the votes for President and Vice-President of the
United States, and of notifying
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\1\ Second session Tenth Congress, Journal, pp. 506, 508, 512-514;
Annals, pp. 342, 343, 1329, 1351, 1423-1426.
\2\ Journal, p. 512.
\3\ Annals, p. 1424.
\4\ Second session Twelfth Congress, Journal, pp. 664, 665, 668-671;
Annals, pp. 1015, 1020.
\5\ Journal, p. 668.
\6\ Second session Fourteenth Congress, Journal, p. 374 (Davis
edition); Annals, pp. 107, 935.
Sec. 1935
the persons elected of their election.'' In the House Messrs. John G.
Jackson, of Virginia, William Irving, of New York, and Timothy Pitkin,
of Connecticut, were joined to the committee.
On February 11 \1\ Mr. Jackson reported to the House this resolution:
Resolved, That the two Houses shall assemble in the chamber of the
House of Representatives on Wednesday next at 12 o'clock; that two
persons be appointed tellers on the part of this House to make a list
of the votes as they shall be declared; that the result shall be
delivered by 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 votes be
entered on the Journals of the two Houses.
The resolution reported in the Senate \2\ by Mr. Macon and adopted
there was in general terms the same as that of the House, but provided
that ``one person be appointed a teller on the part of the Senate,''
and made no provision for House tellers, which were provided for in the
House resolution.
The manner of appointing the House tellers is not indicated.
It was,
Ordered, That when the Members of the Senate appear to-morrow in the
chamber of this House the President of the Senate shall be conducted to
the chair by the Speaker; and that the Clerk of the House inform the
Senate of these proceedings.\3\
On February 12 \4\ the House announced by message to the Senate its
readiness to receive them in order to proceed with the count, and the
Senate attended and took seats in the House, the President of the
Senate being received by the Speaker at the chair of the House, the
Speaker taking a seat beside him.
The count having proceeded, and the certificates of all the States
except Indiana having been opened and read, and the President of the
Senate being about to open the votes of that State for the purpose of
having them counted, Mr. John W. Taylor, one of the Representatives of
the State of New York, rose and objected to the same, and stated that
in his opinion the votes of the electors of the said State of Indiana
for President and Vice-President of the United States ought not to be
received.
The Annals state \5\ that Mr. Taylor, in objecting, addressed himself
to the Speaker of the House, and that, when he proposed to state his
reasons, the Speaker \6\ interrupted him and said that the two Houses
had met for a specific constitutional duty, and while so acting in
joint meeting could consider no proposition or perform any business not
prescribed by the Constitution.
Senator Joseph B. Varnum,\7\ of Massachusetts, addressing the
President of the Senate, expressed his concurrence in the propriety of
what had been stated by the Speaker, and, for the purpose of allowing
the House of Representatives to deliberate on the question, he moved
that the Senate withdraw to their Chamber.
This motion was agreed to, and the Senate withdrew.
In the Senate a proposition was made that the vote of Indiana ought
to be
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\1\ Journal, p. 381; Annals, p. 938.
\2\ Annals, p. 111.
\3\ Journal, p. 381.
\4\ Journal, pp. 385-389; Annals, pp. 943-950.
\5\ Annals, p. 944.
\6\ Henry Clay, of Kentucky, Speaker.
\7\ Speaker of Tenth and Eleventh Congresses.
Sec. 1936
counted; but the action of the House being announced before a
conclusion was reached the Senate concluded that action on their part
was unnecessary.\1\
In the House a resolution was submitted by Mr. Solomon P. Sharp, of
Kentucky, in these terms:
Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled, That the votes of the electors
for the State of Indiana for a President and Vice-President of the
United States were properly and legally given and ought to be
counted.\2\
Mr. John W. Taylor, of New York, moved to substitute for the text of
the above the following:
That the votes of the electors of the State of Indiana for President
and Vice-President of the United States, having been given previous to
the admission of that State into the Union, ought not to be received
and counted.
After debate the resolution was postponed indefinitely.
The House then ordered that a message be sent to the Senate to inform
them that the House was again ready to receive them and continue
opening the certificates and counting the votes of the electors, etc.
The Senate having again attended, the Speaker informed them that the
House had not seen it necessary to come to any resolution or take any
order on the subject which had produced the separation of the two
Houses.\3\
The President of the Senate then opened the certificate of the State
of Indiana, and the votes were counted.
The tellers then reported, and the President of the Senate made
report of the state of the vote and announced the election of James
Monroe, of Virginia, as President, and Daniel D. Tompkins, of New York,
as Vice-President.
1936. Proceedings at the electoral count of 1821.
At the electoral count of 1821 arrangement was made for an
alternative announcement in case objection should be made to the
electoral vote of Missouri, which would not change the result.
At the electoral count of 1821 the Members of the House arose and
stood uncovered when the Senate entered the Hall.
At the electoral count of 1821 a committee was appointed to receive
the President and Members of the Senate at the door and conduct them to
their seats.
Committees of the two Houses acting jointly to devise a plan for the
electoral count of 1821, reported different propositions, whereat
misunderstandings arose.
The two Houses, by simple and separate resolutions, sometimes appoint
committees to confer and report.
On February 6, 1821,\4\ in the Senate, Mr. James Barbour, of
Virginia, presented a resolution that a committee be appointed ``to
join such committee as may be
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\1\ Annals, p. 945 (footnote).
\2\ Question was made as to the concurrent form of this resolution,
because it gave to the Senate a participation in the power; but it was
urged on the other hand that it was necessary to take the sense of the
two Houses. Annals, p. 946.
\3\ Annals, p. 949.
\4\ Second session Sixteenth Congress, Annals, pp. 267, 288.
Sec. 1936
appointed by the House of Representatives, to ascertain and report a
mode of examining the votes for President and Vice-President of the
United States, and of notifying the persons elected of their
election.'' This resolution was agreed to on February 7, and Messrs.
Barbour and Nathaniel Macon, of North Carolina, were appointed the
committee on the part of the Senate.
In the House, on February 8,\1\ this resolution was agreed to, and
Messrs. Henry Clay, of Kentucky; John Sergeant, of Pennsylvania, and
Solomon Van Rensselaer, of New York, were appointed of the committee on
the part of the House.
On February 13 \2\ Mr. Barbour reported in the Senate from the joint
committee two resolutions, the first being as follows:
Resolved, That the two Houses shall assemble in the Chamber of the
House of Representatives on Wednesday next, at 12 o'clock, and the
President of the Senate shall be the presiding officer; that one person
be appointed a teller 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 of the United States, and, together with a list of
the votes, be entered on the Journals of the two Houses.
This resolution was agreed to by the Senate and was transmitted to
the House.\3\ But in the House \4\ the Senate text was not considered;
but Mr. Clay, from the joint committee, reported a resolution similar
in some respects, but differing very essentially in others:
Resolved, That the two Houses shall assemble in the Chamber of the
House of Representatives, on Wednesday, the 14th of February, 1821, at
12 o'clock, and the President of the Senate shall be the presiding
officer of the Senate, seated on the right of the Speaker of the House,
who shall be the presiding officer of the House; that two persons be
appointed tellers on the part of the House, to make a list of the
votes, etc.
The remainder of the resolution follows verbatim the similar portion
of the Senate resolution.
In the debate over the adoption of this resolution the features of
allowing the Speaker a place as joint presiding officer and omitting to
allow a teller to the Senate do not seem to have been noticed. Later,
during the proceedings of the count, the feature relating to the
Speaker was discussed, and the debates \5\ have this explanation of the
change made in the resolution from the form adopted by the Senate:
This alteration was made because it was known that the House of
Representatives would not have agreed to the other course, and a
collision might have arisen between the two Houses. It may be added
that the Senate were not aware, when they came into the Hall, of the
change of the arrangement, but supposed it to stand as they had voted
it. Their retirement from the Chamber arose from the President of the
Senate having learned these facts after he was seated in his place in
the Hall. He would otherwise, it is supposed, have gone on to proclaim
the result immediately after Mr. Livermore's objection, as prescribed
in the resolution.
At the time he presented the resolution Mr. Clay explained \6\ that--
as convenience rendered it necessary for the Senate to meet this House
here in its own Hall, it was due 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.
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\1\ Journal, p. 206; Annals, p. 1058.
\2\ Annals, pp. 341, 342.
\3\ Journal, p. 230.
\4\ Journal, p. 230; Annals, pp. 1147, 1148.
\5\ Annals, p. 1162.
\6\ Annals, p. 1147.
Sec. 1937
The resolution was agreed to by the House.
The second resolution was as follows in both the House and Senate
forms: \1\
Resolved, That if any objection be made to the votes of Missouri, and
the counting or omitting to count which shall not essentially change
the result of the election, in that case they shall be reported by the
President of the Senate in the following manner: Were the votes of
Missouri to be counted the result would be, for AB, for President of
the United States ------ votes. If not counted, for AB, for President
of the United States ------ votes. But, in either event, AB is elected
President of the United States; and in the same manner for Vice-
President.
Missouri had not been formally admitted to the Union; and this
resolution was debated at length in both Houses. It was finally agreed
to in both Houses, the vote in the House being yeas 90, nays 67.
The records do not indicate by what method the tellers on the part of
the House were appointed.\2\
On February 14 \3\ the usual message having been sent to the Senate
to inform them of the readiness of the House to proceed with the count,
Mr. Clay proposed informally \4\ and the House, by general consent,
determined that the Members should rise and stand uncovered to receive
the Senate, and that seats on the right hand of the Chair should be set
apart for the Senators.
Mr. Clay offered this resolution:
Resolved, That a committee be appointed to receive the President and
Members of the Senate at the door of this House, and to conduct the
President of the Senate to the Speaker's chair, and the Senators to the
seats assigned for their use.
Objection being made on the ground that it had been usual for the
Speaker to receive the President of the Senate and invite him to a seat
beside him, Mr. Clay said it was true that the resolution proposed an
innovation, but his experience in the chair had convinced him that the
regulation would obviate embarrassments.
The resolution was then agreed to, and Mr. Clay and Mr. Mark L. Hill,
of Massachusetts, were appointed the committee.
1937. Proceedings at the electoral count of 1821, continued.
In 1821 the electoral vote of Missouri was objected to on the ground
that the State was not in the Union, but as the vote was not material
to the result the objection was tabled.
In the electoral counts of 1817 and 1821, when a Member of the House
objected to the electoral vote of a State, it appears that the House
alone acted on the objection.
In the electoral count of 1821 all debate and proceedings not
prescribed in the joint rule were held out of order in the joint
meeting.
At the electoral count of 1821 the Speaker was made, so far as the
action of the House could control, presiding officer of the House
portion of the joint meeting, and he did in fact so preside.
The Senate having attended, the count proceeded with the usual forms
until
-----------------------------------------------------------------------
\1\ Journal, pp. 230, 231; Annals, pp. 342, 1147-1152.
\2\ Journal, p. 232.
\3\ Journal, pp. 232, 233; Annals, pp. 1154-1166.
\4\ Annals, p. 1154.
Sec. 1937
the votes of the electors of Missouri were announced by the President
of the Senate and handed to the tellers.
Thereupon Mr. Arthur Livermore, of New Hampshire, a Representative,
rose and--
objected to the counting of any votes given by Missouri for President
and Vice-President of the United States of America, because Missouri is
not a State in this Union.
A motion was then made by a Member of the Senate that the Senate do
now withdraw to its Chamber; and, the question having been put, was
decided in the affirmative, and the Senate retired.
It does not appear that the Senate took any action on the
objection.\1\
In the House Mr. John Floyd, of Virginia submitted this resolution:
Resolved, That Missouri is one of the States of this Union, and her
votes for President and Vice-President of the United States ought to be
received and counted.
After lengthy debates \2\ the resolution was, on motion of Mr. Clay,
laid on the table.
Then a resolution was sent to the Senate informing them of the
readiness of the House to continue the enumeration of the votes of the
electors, etc.
The Senate having appeared and taken seats, the President of the
Senate, in the presence of both Houses, proceeded to open the
certificate of the electors of the State of Missouri, which he
delivered to the tellers, by whom it was read and recorded.
And the votes of all the States having been thus counted, registered,
and the lists thereof compared, they were delivered to the President of
the Senate, by whom they were read.
The President of the Senate having announced the state of the vote,
in accordance with the directions of the resolution, and being about to
declare the persons elected, Mr. Floyd, of Virginia, addressed the
Chair, and inquired whether the votes of Missouri were or were not
counted.
Mr. John Randolph, of Virginia, also arose and was addressing the
Chair, when the Speaker \3\ pronounced Mr. Randolph to be out of order
and invited him to take his seat.
There was a demand from the floor that Mr. Randolph be allowed to
proceed, and Mr. Floyd asked of the Chair whether or not he was in
order.
The Speaker determined that he was not in order at this time, the
only business at the present time being that prescribed by the rules.
Order being restored, the President of the Senate proceeded to
declare the persons elected President and Vice-President of the United
States--James Monroe, of Virginia, and Daniel D. Tompkins, of New York.
As the President of the Senate concluded, Mr. Randolph addressed the
Chair, but was required to take his seat.
On motion of a Member of the Senate, the Senate retired.
-----------------------------------------------------------------------
\1\ Second session Sixteenth Congress, Journal of Senate p. 190. Also
in 1817 when a Member of the House objected to the vote of Indiana the
Senate concluded that action on its part was unnecessary.
\2\ Annals, pp. 1154-1163.
\3\ John W. Taylor, of New York, Speaker.
Sec. 1938
The House being called to order,\1\ Mr. Randolph offered these
resolutions:
Resolved, That the electoral votes of the State of Missouri have this
day been counted, and do constitute a part of the majority of 231 votes
given for President and of 218 votes given for Vice-President,
Resolved, That the whole number of electors appointed and of votes
given for President and Vice-President has not been announced by the
presiding officer of the Senate and House of Representatives, agreeably
to the provision of the Constitution of the United States, and that
therefore the proceeding has been irregular and illegal.
The resolutions went over to the succeeding day, when the House
declined to consider them.
1938. Proceedings at the electoral count of 1825.
The electoral college having failed to choose a President of the
United States in 1825, the House proceeded to elect in accordance with
the Constitution.
On February 8, 1825,\2\ the report of the joint committee appointed
``to ascertain and report a mode of examining the votes for President
and Vice-President of the United States, and of notifying the persons
elected of their election,'' was made in the Senate in form of the
following resolution:
Resolved, That the two Houses shall assemble in the Chamber of the
House of Representatives on Wednesday, the 9th day of February, 1825,
at 12 o'clock; that one person be appointed teller on the part of the
Senate, and two persons be appointed tellers on the part of the House
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
to the two Houses, assembled as aforesaid, the state of the vote and
the person or persons elected, if it shall appear that a choice hath
been made agreeably to the Constitution of the United States; which
annunciation shall be deemed a sufficient declaration of the election
of the person or persons elected, and, together with a list of the
votes, shall be entered on the Journals of the two Houses.
It was stated in the course of the discussion that this was precisely
the resolution agreed to on similar occasions from 1805 to 1817,
inclusive. The committee on the part of the Senate would have preferred
in some respects a different arrangement, but they were overruled by
the committee on the part of the House.
Senator John H. Eaton, of Tennessee, proposed this amendment:
If any objection shall arise to the vote or votes of any State, it
shall be filed in writing and entered on the Journals of the Senate and
House of Representatives; but the two Houses shall not separate until
the entire votes are counted and reported, which report shall be liable
to be controlled and altered by the decision to be made by the two
Houses, after their separation, relative to any objections that may be
made and entered on the Journals; provided no objection taken shall be
considered valid unless concurred in by the two Houses.
Senators Robert Y. Hayne, of South Carolina, and Martin Van Buren, of
New York, opposed this proposition on the ground that the House had
failed to act on the bill passed at the preceding session to arrange
for all possible contingencies, and it was now too late to take action.
So the amendment was disagreed to, and the resolution as reported was
agreed to.
In the House \3\ the same day the resolution was also agreed to.
On February 9,\4\ after the message had been sent to inform the
Senate of the readiness of the House to proceed with the count, the
Senate appeared, and the
-----------------------------------------------------------------------
\1\ Journal, pp. 235, 239; Annals, pp. 1166, 1167.
\2\ Second session, Eighteenth Congress, Debates, p. 515.
\3\ Journal, p. 216, Debates, p. 516.
\4\ Journal, pp. 219-221; Debates, p. 526.
Sec. 1939
President of the Senate ``was invited to a seat on the right hand of
the Speaker of the House.'' The Senators were assigned seats together
in front of the Speaker's chair. The tellers took seats at the Clerk's
table.
The President of the Senate having opened the packets, and the
certificates having been read, the results were declared and tabulated.
The tellers then left the Clerk's table and presented themselves in
front of the Speaker, and one of their number delivered the report of
the votes given, which was then handed to the President of the Senate,
who again read it to the two Houses.
This announcement of the state of the vote showed that Andrew
Jackson, of Tennessee, had received 99 votes; John Quincy Adams, of
Massachusetts, 84; William H. Crawford, of Georgia, 41; and Henry Clay,
of Kentucky, 37. The President of the Senate \1\ then announced--
that, neither of the said persons having received a majority of the
votes of the electors appointed by the several States to vote for
President of the United States, it therefore devolved upon the House of
Representatives of the United States to choose a President of the
United States, whose term of service is to commence on the 4th day of
March next, from the three highest on the list of those voted for by
the electors for President of the United States; which three he
declared to be Andrew Jackson, of Tennessee, John Quincy Adams, of
Massachusetts, and William H. Crawford, of Georgia.
The vote for Vice-President was also announced, and John C. Calhoun,
having ``a majority of the whole number of the votes of the electors
appointed in the several States,'' etc., was declared duly elected.
1939. Proceedings at the electoral count of 1829.--The electoral
count of 1829 occurred in the usual way, the preliminaries \2\ having
been arranged by a joint committee. It does not appear how the tellers
on the part of the House were appointed.\3\
On February 11 \4\ the usual message was sent to the Senate informing
them that the House was ready to receive them and to proceed with the
count. The Senate presently appeared, the Vice-President at their head,
preceded by the Secretary and Sergeant-at-Arms of the Senate. The Vice-
President took his place at the right of the Speaker, the Senators
being seated in the area before the desk. The tellers sat at the
Clerk's desk.
The Vice-President presented first the returns from Maine. One
package had come by mail and the other by express, and the packets had
been certified by the delegation from Maine to contain the votes of
that State for President and Vice President.\5\
The votes having been tabulated the teller on the part of the Senate
read the report, and thereupon the Vice President announced the state
of the vote and the persons elected: Andrew Jackson, of Tennessee,
President, and John C. Calhoun, of South Carolina, Vice-President.
-----------------------------------------------------------------------
\1\ John Gaillard, of South Carolina.
\2\ Second session Twentieth Congress, Journal, pp. 237, 243, 258;
Debates, pp. 309, 322.
\3\ Journal, p. 258.
\4\ Journal, pp. 272, 273.
\5\ Debates, p. 350.
Sec. 1940
1940. Proceedings at the electoral count of 1833.--The electoral
count of 1833 \1\ took place in accordance with a resolution in the
phraseology \2\ of the resolution used in 1825 and 1829, abandoned in
1837 and copied for the last time in 1845. The preliminaries of this
count were arranged in the manner usual when no unusual questions were
presented.
It does not appear whether or not the Speaker appointed the tellers.
1941. Proceedings at the electoral count of 1837.
In 1837 a joint committee of the two Houses found that several
electors were disqualified by reason of holding offices of trust or
profit under the United States at the time of their election.
In 1837 the votes of certain disqualified Presidential electors were
counted, their number not being sufficient to affect the result and
there being doubt as to what tribunal should pass on the
qualifications.
At the electoral count of 1837 the vote of Michigan, which was not
essential in the result, was given an alternative announcement, as the
State had not been admitted to the Union at the time the vote was cast.
After the electoral count of 1837 had shown no choice for Vice-
President, the Senate proceeded to elect, in accordance with the
Constitutional requirement.
In the earlier practice the House, as the hour for the electoral
count approached, sent a message to the Senate announcing readiness to
receive the latter body.
On February 1, 1837,\3\ the House received from the Senate the
following resolution:
Resolved, That a committee be appointed, to join such committee as
may be appointed by the House of Representatives, to ascertain and
report a mode of examining the votes for President and Vice-President
of the United States, and of notifying the persons elected of their
election; and also to inquire into the expediency of ascertaining
whether any votes were given at the recent election contrary to the
prohibition contained in the second section of the second article of
the Constitution; and, if any such votes were given, what ought to be
done with them; and whether any, and what, provision ought to be made
for securing the faithful observance in future of that section of the
Constitution.
The House agreed to the resolution, and the joint committee was made
up as follows: Senators Felix Grundy, of Tennessee; Henry Clay, of
Kentucky; Silas Wright, Jr., of New York; Representatives Francis
Thomas, of Maryland; Churchill C. Cambreleng, of New York; John Reed,
of Massachusetts; Henry W. Connor, of North Carolina, and Francis S.
Lyon, of Alabama.
On February 4 Mr. Thomas, in the House, submitted a report,\4\ from
the joint committee:
It appears [says the report] that Isaac Waldron, who was an elector
in New Hampshire, was, at the time of his appointment as elector,
president of a deposit bank at Portsmouth, and was appointed and acting
as pension agent without compensation under the authority of the United
States; that in two cases persons of the same names with the
individuals who were appointed and acted as electors in the State of
North Carolina held the offices of deputy postmasters under the General
Government.
-----------------------------------------------------------------------
\1\ Second session Twenty-second Congress, Journal, pp. 262, 278,
279, 329; Debates, pp. 1722, 1723.
\2\ Journal. p. 279.
\3\ Second session Twenty-fourth Congress, Journal, p. 326; Globe, p.
146.
\4\ House Report No. 191, second session Twenty-fourth Congress.
Sec. 1941
It also appears that in New Hampshire there is one case, in Connecticut
there is one case, and in North Carolina there is one case, in which,
from the report of the Postmaster-General, it is probable that at the
time of the appointment of electors in these States, respectively, the
electors or persons of the same names were deputy postmasters. The
committee have not ascertained, whether the electors are the same
individuals who held, or are presumed to have held, the offices of
deputy postmasters at the time when the appointment of the electors was
made; and this is the less to be regretted, as it is confidently
believed that no change in the result of the election of either the
President or Vice-President would be affected by the ascertainment of
the fact in either way, as five or six votes only would in any event be
abstracted from the whole number; for the committee can not adopt the
opinion entertained by some, that a single illegal vote would vitiate
the whole electoral vote of the college of electors in which it was
given, particularly in cases where the vote of the whole college has
been given for the same persons.
The committee are of opinion that the second section of the second
article of the Constitution, which declares that ``no Senator or
Representative, or person holding an office of trust or profit under
the United States, shall be appointed an elector,'' ought to be carried
in its whole spirit into rigid execution, in order to prevent officers
of the General Government from bringing their official power to
influence the elections of President and Vice-President of the United
States. This provision of the Constitution, it is believed, excludes
and disqualifies deputy postmasters from the appointment of electors,
and the disqualification relates to the time of the appointment; and
that a resignation of the office of deputy postmaster after his
appointment as elector would not entitle him to vote as elector under
the Constitution.
Should a case occur in which it became necessary to ascertain and
determine upon the qualifications of electors of President and Vice-
President of the United States, the important question would be
presented, what tribunal would, under the Constitution, be competent to
decide? Whether the respective colleges of electors in the different
States should decide upon the qualifications of their own members, or
Congress should exercise the power, is a question which the committee
are of opinion ought to be settled by a permanent provision upon the
subject.
The committee, at present and in part, report the following
resolutions:
Resolved, That the two Houses shall assemble in the Chamber of the
House of Representatives on Wednesday next at 12 o'clock; and the
President of the Senate shall be the presiding officer; that one person
be appointed a teller on the part of the Senate and two on the part of
the House of Representatives 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 of the United States; and, together with a list of votes, be
entered on the Journals of the two Houses.
Resolved, That in relation to the votes of Michigan, if the counting
or omitting to count them, shall not essentially change the result of
the election, they shall be reported by the President of the Senate in
the following manner: Were the votes of Michigan to be counted, the
result would be, for A. B. for President of the United States, ------
votes. If not counted for A. B. for President of the United States, --
---- votes. But in either event, A. B. is elected President of the
United States. And in the same manner for Vice-President.
On February 4 \1\ the resolutions were considered and agreed to by
the Senate. It appears from the debate that the act admitting Michigan
to the Union had not been passed by Congress when she voted for
President, but had been passed before the time for the electoral count.
Mr. Clay said that the proceeding in this case was proposed on the same
lines as the procedure in the case of Missouri, although the case of
Michigan was not precisely that of Missouri or of Indiana.
On February 6 \2\ the resolutions were agreed to by the House.
On February 8 \3\ the count occurred. Question arising as to
procedure, the Speaker \4\ said that the usual course had heretofore
been for the House, some short
-----------------------------------------------------------------------
\1\ Globe, pp. 152, 153.
\2\ Journal, p. 34; Globe, p. 3161.
\3\ Journal, pp. 357-359; Globe, p. 167.
\4\ James K. Polk, of Tennessee, Speaker.
Sec. 1941
time before the arrival of the hour, to send a message to the Senate
informing that body that the House was in readiness to receive them and
count the votes. The Chair stated further that, so far as he had been
informed, the mode of receiving the Senate by the House was for the
Members to stand uncovered. Upon every occasion of this kind, with a
single exception, the invariable course had been to send a message to
the Senate by the Clerk. In one instance only the message had been
transmitted by a committee of two Members of the House, who were also
appointed to conduct the Senate into the Hall, but that was a departure
from the former practice.
The message was sent to the Senate in the usual form.
The Chair announced that seats on the right of the Speaker's chair
had been provided for the accommodation of the Senate.
Shortly after, the Senate entered the Hall, with the President of the
Senate, the Hon. William R. King, of Alabama, at their head, preceded
by the Secretary and Sergeant-at-Arms of the Senate, and were received
at the door of the Hall and conducted to the seats assigned them by the
Sergeant-at-Arms of the House of Representatives. The President of the
Senate was seated at the right of the Speaker, and the tellers at the
Clerk's desk.
The count proceeded in the usual manner, and the President of the
Senate announced \1\ the state of the vote for President in accordance
with the directions of the resolution, and declared that Martin Van
Buren, having received a majority of the whole number of the electoral
votes, is duly elected President of the United States, etc.
Then, having announced the state of the vote for Vice-President, the
President of the Senate said:
But, in either event, no person has a majority of the electoral votes
as Vice-President of the United States, and I do, therefore, declare
that, no person having a majority of the whole number of electoral
votes as Vice-President of the United States, an election to that
office has not been effected, that Richard M. Johnson, of Kentucky, and
Francis Granger, of New York, are the two highest on the list of
electoral votes, and that it now devolves on the Senate of the United
States, as provided in the Constitution, from these persons to elect a
Vice-President of the United States.
The Senate \2\ having returned to their chamber, Mr. Felix Grundy, of
Tennessee, presented the following:
Whereas upon counting the electoral votes, in the presence of both
Houses of Congress, given at the late election for President and Vice-
President of the United States, it appears that no person has received
for the office of Vice-President of the United States a majority of the
votes of the whole number of electors appointed, and it also appearing
that Richard M. Johnson, of Kentucky, and Francis Granger, of New York,
have the two highest numbers on the list of those voted for to fill the
office of Vice-President; therefore,
Resolved, That the Senate do now proceed to choose a Vice-President
from the said Richard M. Johnson and Francis Granger, they having the
two highest numbers on the list, and the manner of voting shall be as
follows: The Secretary of the Senate shall call the names of Senators
in alphabetical order, and each Senator will, when his name is called,
name the person for whom he votes, and if a majority of the whole
number of Senators shall vote for either the said Richard M. Johnson or
Francis Granger, he shall be declared by the presiding officer of the
Senate constitutionally elected Vice-President of the United States for
four years, commencing on the 4th day of March, 1837.
-----------------------------------------------------------------------
\1\ Journal, p. 359; Globe, p. 167.
\2\ Second session Twenty-fourth Congress, Senate Journal, pp. 229,
230; Globe, p. 172.
Sec. 1942
The Senate, having proceeded by unanimous consent to consider the
resolution, concurred therein.
And the roll having been called, it appeared that the whole number of
votes were 49, and that of these 33 votes were given in favor of
Richard M. Johnson, of Kentucky, and 16 votes in favor of Francis
Granger, of New York.
The President of the Senate thereupon declared Richard M. Johnson, of
Kentucky, constitutionally elected Vice-President of the United States
for four years, commencing on the 4th day of March, 1837.
Mr. Grundy then presented and the Senate agreed to a resolution
providing for a committee to notify Mr. Johnson of his election.
1942. Proceedings at the electoral count of 1841.--The preliminaries
\1\ of the electoral count of 1841 were arranged in the usual way. The
resolution \2\ directing the mode of ascertaining the result was in the
form used in 1837 and from 1849 to 1861, inclusive, and differed from
the form of 1845 materially.\3\
The resolution having been adopted in the House; it was
Ordered, That Mr. Cushing and Mr. John W. Jones be the said tellers
on the part of the House.\4\
On February 10 \5\ the count took place without incident. The usual
message was sent to the Senate informing that body that the House was
ready to receive it and proceed in opening the certificates and
counting the votes; the President of the Senate on arriving took his
seat on the right of the Speaker, the tellers made out their
tabulations in duplicate, and the announcement of the persons elected
was made as usual.
1943. Proceedings at the electoral count of 1845.--In the electoral
count of 1845 the preliminaries \6\ were arranged in the usual form,
the resolution showing for the last time, however, the following
verbiage: \7\
Resolved, That the two Houses will assemble in the Chamber of the
House of Representatives on Wednesday, the 12th day of February, 1845,
at 12 o'clock; that one person be appointed teller on the part of the
Senate, and two persons be appointed tellers on the part of the House,
to make a list of the votes for President and Vice-President of the
United States, as they shall be declared; that the result be delivered
to the President of the Senate, who will announce to the two Houses
assembled as aforesaid the state of the vote, and the person or persons
elected, if it shall appear that a choice hath been made, agreeably to
the Constitution of the United States; which annunciation shall be
deemed a sufficient declaration of the person or persons elected; and
that the said proceedings, together with a list of the votes, be
entered on the Journals of the two Houses.
The House on February 7,\8\
Ordered, That Mr. Burke and Mr. Joseph R. Ingersoll be the said
tellers on the part of the House.
The count took place on February 12 without incident.\9\
-----------------------------------------------------------------------
\1\ Second session Twenty-sixth Congress, Journal, pp. 216, 220, 225,
226; Globe, pp. 137, 140.
\2\ Journal, p. 225; Globe, p. 140.
\3\ See section 1943 of this work.
\4\ Journal, p. 226.
\5\ Journal, pp. 251, 253; Globe, pp. 159, 160.
\6\ Second session Twenty-eighth Congress, Journal, p. 322.
\7\ Journal, p. 343; Globe, pp. 259, 260.
\8\ Journal, p. 343.
\9\ Journal, pp. 371, 372; Globe, p. 277.
Sec. 1944
1944. Proceedings at the electoral count of 1849.
At the electoral count of 1849 the Vice-President ruled that in the
joint meeting no other motion or proceeding than that prescribed by the
Constitution was in order.
At the electoral count of 1849 the Speaker appointed the tellers on
the part of the House without authority expressly given.
A teller appointed for the electoral count may be excused by
authority of the House.
The preliminaries \1\ of the electoral count of 1849 were arranged in
the usual manner. The tellers were appointed on the part of the House,
apparently without express permission given to the Speaker by the
House.\2\
One of the tellers, Mr. Washington Hunt, of New York, at his request,
was excused by the House, and Mr. Washington Barrow, of Tennessee, was
appointed.\3\
On February 14,\4\ after a message had been sent in the usual form by
the House, the Senate appeared and the joint assembly was duly
organized.
The returns of the State of Maine were first opened, read, and
recorded.
Thereupon Mr. Alexander H. Stephens, of Georgia, a Member of the
House, suggested that the reading at length of the returns from each
State be dispensed with.
The Vice-President \5\ stated that no motion was in order, and no
other mode of proceeding could be adopted but that pointed out by the
Constitution of the United States; but that the teller might abridge
the reports so far as to give merely the results of the electoral
ballotings of each State.
1945. Proceedings at the electoral count of 1853.
For the electoral count of 1853 the House authorized the Speaker to
appoint the tellers.
At the electoral count of 1853 the Senators and officers
participating were seated with especial care as to order.
On January 31, 1853,\6\ steps were taken in the Senate which resulted
in the appointment of a joint committee on the part of the House and
Senate to ``ascertain and report a mode of examining the votes for
President and Vice-President of the United States, and of notifying the
persons elected of their election.'' This committee later reported the
usual resolution,\7\ which was agreed to by the two Houses. The
Speaker, on motion put and carried,\8\ was authorized to appoint the
tellers on the part of the House.
-----------------------------------------------------------------------
\1\ The resolution was changed quite materially from the old form of
the count four years previous and took the form which it retained until
1865. The committee this year were: Senators, John M. Clayton, of
Delaware, Jefferson Davis, of Mississippi, and John Davis, of
Massachusetts, and Representatives Hunt, Barrow, McClelland, Truman
Smith, and Harmanson. The records do not indicate the reasons for the
change. For the full form of this resolution, see the proceedings of
the electoral count of 1861, section 1947 of this chapter.
\2\ Second session Thirtieth Congress, Journal, p. 390.
\3\ Journal, p. 409; Globe, p. 491.
\4\ Journal, pp. 442, 443; Globe, p. 534.
\5\ George M. Dallas, of Pennsylvania, Vice-President.
\6\ Second session Thirty-second Congress, Journal, pp. 211, 213;
Globe, pp. 450, 459.
\7\ Journal, pp. 233, 234; Globe, pp. 499, 511.
\8\ Journal, p. 234; Globe, p. 511.
Sec. 1946
On February 9,\1\ the House voted that a message be sent to the
Senate informing that body that it was ready to receive it for the
purpose of the electoral count, and at 12.30 p. m. the Senate, preceded
by Hon. D. R. Atchison, its President pro tempore, and its officers,
entered the Hall of the House. The President pro tempore having been
conducted to the Chair, the Speaker of the House took a seat on his
left, and the Senators occupied the seats assigned them, in the area
fronting the Clerk's desk. The Sergeants-at-Arms of the two Houses
occupied seats on the platform, at the right and left of the Chair. The
tellers took their seats at the Clerk's desk, and were assisted on the
right by the Secretary of the Senate and on the left by the Clerk of
the House. Subordinate clerks of the Senate and House were seated at a
table in front of the Clerk's desk.\2\
The count proceeded without incident, and at the close, by direction
of the President pro tempore, the Senate retired.
The Senate having returned to its Chamber, Mr. R. M. T. Hunter, of
Virginia, teller on the part of the Senate, reported,\3\ by instruction
of the tellers, resolutions providing for notification of the
candidates. In the House Mr. George W. Jones, of Tennessee, one of the
House tellers, offered as ``from the joint committee heretofore
appointed on that subject'' the resolutions of notification.\4\
1946. Proceedings of the electoral count of 1857.
A difficulty was caused during the electoral count of 1857 by the
vote of Wisconsin, which was not cast on the day prescribed by law.
During the electoral count of 1857 the President pro tempore held
that the joint meeting might not pass on the validity of the vote of a
State.
During the electoral count of 1857 it was held that no vote could be
taken in the joint meeting, and that no motion calling for a vote was
in order.
During the electoral count of 1857, a question arising as to the
electoral vote of Wisconsin, a Senator moved and the Senate voted to
retire to its own Chamber, whence it did not return.
The joint committee which arranged for the electoral count of 1857
consisted of a larger number of Representatives than Senators, as had
been the practice previously in reference to similar committees.
The House authorized the Speaker to appoint the tellers for the
electoral count of 1857.
On February 2, 1857,\5\ the House received notice that the Senate had
appointed three members of a joint committee to ascertain and report a
mode of examining the votes for President and Vice-President of the
United States, and of notifying the
-----------------------------------------------------------------------
\1\ Journal, pp. 263, 265; Globe, pp. 549, 550.
\2\ The law now directs the order in which the officers and Members
shall be seated. See section 1919 of this work.
\3\ Globe, p. 549.
\4\ Journal, p. 265. This joint committee evidently is the committee
appointed to report a mode of counting. Both Messrs. Hunter and Jones
were members of it, and probably the former reported not as teller but
as member of the committee.
\5\ Third session Thirty-fourth Congress, Journal, p. 338; Globe, p.
538.
Sec. 1946
persons of their election. Thereupon it was ordered that the House
agree to a committee of five, members to join the Senate committee.
On February 4,\1\ the resolution \2\ was reported and adopted in the
Senate, and on February 5 \3\ in the House. As soon as the resolution
was agreed to, the Speaker was authorized, a motion being made and
carried, to appoint the tellers on the part of the House.\4\
On February 11 the House informed the Senate that it was ready to
receive that body for the purpose of making the count, and soon the
Senate appeared. The President pro tempore took his seat on the right
of the Speaker, and the members of the Senate ``took seats provided for
them in the area of the House.''
The count proceeded, beginning with the State of Maine. When
Wisconsin was reached the return showed that the electors of that State
cast their votes on December 4 instead of the first Wednesday, which
was the 3d, as prescribed by law.
The return of Wisconsin having been presented, Mr. John Letcher, of
Virginia, announced his desire to object to counting the vote of
Wisconsin.
The President pro tempore \5\ held that debate was not in order until
the tellers had reported to the convention, and that it would not be in
order at the present time to move that the vote of Wisconsin be
rejected.
The count being concluded, the tellers announced the state of the
vote, counting the five votes of Wisconsin, which had no influence on
the result.
Thereupon Mr. Letcher asked if it would be in order to move to
exclude the vote of Wisconsin; and Senator John J. Crittenden, of
Kentucky, asked if Congress had no power to decide upon the validity or
invalidity of a vote.
The President pro tempore said:
The Chair considers that, under the law and the concurrent order of
the two Houses, nothing can be done here but to count the vote by
tellers, and to declare the vote thus counted to the Senate and House
of Representatives sitting in this Chamber. What further action may be
taken, if any further action should be taken, will devolve upon the
properly constituted authorities of the country--the Senate or House of
Representatives, as the case may be. * * * In pursuance of the order of
the two Houses, the Presiding Officer will now announce the vote which
has been delivered to him by tellers.
The President pro tempore then announced the state of the vote as
reported by the tellers, and declared James Buchanan elected President,
and John C. Breckinridge, Vice-President.
Thereupon the point was raised by Mr. Humphrey Marshall, of Kentucky,
a Representative, that the President pro tempore had announced and
therefore counted the vote of Wisconsin.
Mr. William Bigler, of Pennsylvania, teller on the part of the
Senate, announced that he was instructed by the tellers to state to the
President and the convention that they had not yet signed the
certificate, and that they had determined to sign it only when it set
forth all the facts. One of these facts was with reference to the
-----------------------------------------------------------------------
\1\ Globe, p. 568.
\2\ This resolution is practically the same as that Weed to in 1861.
See section 1947 of this volume.
\3\ Journal, p. 364; Globe, p. 587.
\4\ This is indicated by both Journal and Globe.
\5\ James M. Mason, of Virginia, President pro tempore.
Sec. 1946
vote of Wisconsin, the vote of that State not having been cast on the
day prescribed by law. The certificate which they would sign would set
forth that fact.
Protests against the action of the President pro tempore were made by
Senators John J. Crittenden, of Kentucky, and Robert Toombs, of
Georgia.
Mr. James L. Orr, of South Carolina, moved that the vote of Wisconsin
be rejected, and that the tellers be directed not to include it in
their report.
Senator Lewis Cass, of Michigan, made the point that no vote could be
taken, since who should say whether they were to vote per capita or by
States; as representatives of the people or of the States. If they
could not vote they could not discuss. The only thing to do was for the
two bodies to adjourn to their respective Chambers.
The President pro tempore held:
It is the opinion of the Presiding Officer that no vote can be taken
as a joint vote by the two Houses thus assembled, and that no motion
calling for a vote is in order.
The President pro tempore was about to direct that the Senate return
to its Chamber, and had so announced, when he reconsidered the order on
representation that the tellers had not signed the certificate, and on
protests by Senators Toombs, of Georgia, and Stephen A. Douglas, of
Illinois, that the tellers must await the decision of the two Houses.
An attempt was made to appeal from the decision of the Chair in
excluding the motion of Mr. Orr, but the Chair declined to entertain
any motion that would involve a vote of the two Houses.
Senator Lyman Trumbull, of Illinois, submitted a motion that the
Senate return to its own Chamber to consider the matter.
The President pro tempore, disregarding a suggestion that he put
himself at the head of the Senate and retire without vote, put the
question and the Senate agreed to the motion.\1\
Thereupon the Senate, preceded by its President and other officers,
retired from the Hall of the House.
The Senate having reached its Hall and come to order, Mr. Bigler,
teller on the part of the Senate, proceeded to refer to the events in
the joint convention \2\ and to present a written report signed by all
the tellers and setting forth the state of the vote and the condition
of the vote of Wisconsin. \3\
The Senate debated the question two days \4\ beginning with a
proposition that there be a conference of the two Houses through the
joint committee which reported the resolution governing the count. Then
Senator Crittenden proposed a concurrent resolution declaring the vote
of Wisconsin null and void. Finally the resolution was laid on the
table without division, and the Senate concurred with
-----------------------------------------------------------------------
\1\ Globe, p. 654.
\2\ Senator William M. Seward, of New York, protested against the use
of the word ``convention'' as not found in the Constitution or any law.
Globe, p. 644.
\3\ It does not appear whether or not this is the report referred to
in the proceedings of the joint convention. The present custom is for
the tellers to sign the tabulated statement, but the report here given
gives only the summaries. Globe, p. 644.
\4\ Globe, pp. 644-650, 662-468.
Sec. 1947
the House in passing a resolution to constitute a committee to notify
the President-elect and Vice-President-elect of their election.
The House, after two days' debate \1\ and the presentation of various
propositions, finally agreed to the resolution providing for a
notification of the President-elect and Vice-President-elect of their
election.
1947. Proceedings at the electoral count of 1861.
The House empowered the Speaker to appoint the tellers for the
electoral count of 1861.
On February 2, 1861,\2\ the House authorized the appointment of a
committee of five Members to join a similar committee on the part of
the Senate ``to ascertain and report a mode of examining the votes for
President and Vice-President of the United States, and of notifying the
persons chosen of their election.''
On February 5 \3\ Mr. Lyman Trumbull, of Illinois, from the joint
committee, reported in the Senate the following resolution, with the
statement that it was the usual form adopted ``since the foundation of
the Government:'' \4\
Resolved, That the two Houses will assemble in the Chamber of the
House of Representatives on Wednesday, the 13th day of February, 1861,
at 12 o'clock, and the President of the Senate shall be the presiding
officer; that one person be appointed a teller on the part of the
Senate and two on the part of the House of Representatives 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 of the United States, and, together with a
list of the votes, be entered on the Journals of the two Houses.
On February 5, 1861,\5\ the resolution was agreed to by the House,
and on motion made from the floor the Speaker was empowered to appoint
the tellers.\6\
The count took place under this resolution without unusual
incident.\7\
1948. Proceedings of the electoral count of 1865.
At the electoral count of 1865 the Vice-President, in deference to a
provision of law, withheld from the joint meeting the returns from the
States of Louisiana and Tennessee.
A motion was entertained in the joint meeting for the electoral count
of 1865, but only for determination by the Houses separately.
It was held during the electoral count of 1865 that an objection to
the vote of a State must be raised at the time of the reading of the
certificate.
On February 6, 1865,\8\ the House and Senate were in joint convention
for counting the electoral vote under the terms of the recently framed
Joint Rule 22.\9\ The
-----------------------------------------------------------------------
\1\ Journal, pp. 400-402, 405, 406; Globe, pp. 654-660, 672-675.
\2\ Second session Thirty-sixth Congress, Journal, pp. 260, 261;
Globe, p. 715.
\3\ Globe, p. 740.
\4\ In reality, this form of resolution dated from 1937, 1841 and
1849. The resolution of 1845 differed in several respects. See section
1943 of this work.
\5\ Journal, pp. 273, 274; Globe, pp. 756, 757.
\6\ The Journal does not record the motion that the Speaker be
authorized to appoint. The Globe has it as made by Mr. Elihu B.
Washburne, of Illinois.
\7\ Journal, p. 310; Globe, p. 894.
\8\ Second session Thirty-eighth Congress, Globe, pp. 668, 669.
\9\ For terms of this joint rule see section 1951 (footnote) of this
work. Electoral count of 1873.
Sec. 1949
Vice-President \1\ having concluded the opening and presentation of
returns, announced in response to an inquiry by Senator Edgar Cowan, of
Pennsylvania, that he had in his possession returns from the States of
Louisiana and Tennessee, but in obedience to the law the Chair held it
to be his duty not to submit them to the joint convention. This law\2\
was in the form of a joint resolution, and, while the official
communication of the President's approval had not been received, the
Chair had been apprised of the fact.
Mr. George H. Yeaman, of Kentucky, moved that all the returns before
the joint convention be opened and presented for its consideration.
The Chair held that the motion was in order, being pertinent to the
object for which the convention had assembled. It came within the
latter clause of the joint resolution, which related to ``any other
question pertinent to the object for which the two Houses are assembled
may be submitted and determined in like manner.'' The Member would
reduce his motion to writing, so that the precise question should be in
possession of the Senate when it should retire for the determination of
the question presented for the consideration of the convention. Each
House must determine the question in its own Chamber.
Mr. Nathan A. Farwell, of Maine, a Senator, raised the question of
order that the question had already been decided by the two Houses of
Congress in passing the joint resolution, which had been approved by
the President.
The Vice-President said:
The fact of the approval of the President is within the knowledge of
the Chair, and in consequence of that knowledge the Chair has seen fit
to withhold the returns of the States in question. There has been no
official promulgation of that approval of the President. Still, in the
opinion of the Chair, if either branch of Congress shall be disposed to
order the returns now upon the table to be read, it is within their
power to do so. The reading of the returns would be one thing; then
would arise another question, whether the vote in the return so read
should be added to the count of the tellers. In the opinion of the
Chair the motion of the Member from Kentucky is in order.
Mr. Yeaman withdrew his motion.
Mr. John V. L. Pruyn, of New York, proposed a motion that the tellers
be instructed not to count the votes of the so called State of West
Virginia.
The Vice-President quoted the rule as follows:
If upon the reading of any such certificate by the tellers, any
question shall arise as to the counting of the votes therein certified,
etc.,
said:
The question must be raised when the vote is announced. * * * The
Member from New York should have made his motion, in order to come
within the rule, at the time the tellers announced the vote of the
State of West Virginia.
1949. Proceedings of the electoral count of 1869.
The President pro tempore held, during the electoral count of 1869,
that under the terms of the then existing joint rule an objection to
the counting of an electoral vote should be in writing and specific.
During the electoral count of 1869 the President pro tempore used his
discretion about entertaining points of order, but declined absolutely
to entertain appeals.
-----------------------------------------------------------------------
\1\ Hannibal Hamlin, of Maine, Vice-President.
\2\ 13 Stat. L., pp. 567, 568.
Sec. 1949
During the electoral count of 1869 the President pro tempore declined
to entertain a resolution offered by a Member of the House.
During the electoral count of 1869 the President pro tempore ruled
out of order a motion that the joint meeting adjourn, and after the
announcement of the vote the Senate retired without motion.
A provision providing for an alternative announcement of the
electoral vote of Georgia caused much disagreement in the electoral
count of 1869.
On February 10, 1869,\1\ the House and Senate met in joint convention
for counting the electoral vote under the terms of the joint rule of
1865\2\ and a special rule adopted for this count.\3\ The count had
proceeded as far as the State of Louisiana when Mr. James Mullins, of
Tennessee, objected to counting the vote of that State.
Mr. George W. Woodward, of Pennsylvania, a Representative, made the
point of order that under the joint rule specific objection was
required.
The President pro tempore\4\ of the Senate, who was the presiding
officer, ruled that the objection should be in writing and should
assign a reason therefor, in order to conform to the terms of the joint
rule.
Mr. Charles A. Eldridge, of Wisconsin, a Representative, raised the
question of order that the joint rule under which they were acting was
in direct contravention of the terms of the Constitution.
The Presiding Officer declined to entertain the point of order.
The objection to the vote of Louisiana having been presented
formally, the Senate retired. The two Houses having passed upon the
objections the joint convention reassembled, and the Presiding Officer
announced that the two Houses had acted concurrently and the vote of
Louisiana would be counted.
-----------------------------------------------------------------------
\1\ Third session Fortieth Congress, Journal, pp. 314, 320; Globe,
pp. 1056, 1062.
\2\ For form of this joint rule see section 1951 (footnote) of this
work.
\3\ On February 8, 1869 (third session Fortieth Congress, Journal,
pp. 303, 304; Globe, pp. 972, 976-978), the House and Senate agreed to
the following concurrent resolution, based on the action taken in 1821,
when there was doubt about the electoral vote of Missouri:
``Whereas the question whether the State of Georgia has become and is
entitled to representation in the two Houses of Congress is now pending
and undetermined; and whereas by the joint resolution of Congress,
passed July 20, 1868, entitled `A resolution excluding from the
Electoral College votes of States lately in rebellion which shall not
have been reorganized,' it was provided that no electoral votes from
any of the States lately in rebellion should be received or counted for
President or Vice-President of the United States until, among other
things, such State should have become entitled to representation in
Congress pursuant to acts of Congress in that behalf: Therefore,
``Resolved by the Senate (the House of Representatives concurring),
That on the assembling of the two Houses on the second Wednesday of
February, 1869, for the counting of the electoral votes for President
and Vice-President, as provided by law and the joint rules, if the
counting or omitting to count the electoral votes, if any, which may be
presented as of the State of Georgia shall not essentially change the
result. In that case they shall be reported by the President of the
Senate in the following manner: Were the votes presented as of the
State of Georgia to be counted, the result would be, for------for
President of the United States------votes; if not counted, for------for
President of the United States------votes; but in either case------is
elected President of the United States. And in the same manner for
VicePresident.''
\4\ Benjamin F. Wade, of Ohio, President pro tempore.
Sec. 1949
The count then proceeded until the State of Georgia was reached. The
certificates having been read, Mr. Benjamin F. Butler, of
Massachusetts, a Representative, presented objections, in writing, to
counting the vote of the State. These objections alleged that the vote
was not cast on the day required by law, that the State had not been
readmitted to representation, and that a fair election had not been
held.
Mr. George F. Edmunds, of Vermont, a Senator, raised the point of
order that the objection was not in order, since by special rule for
the occasion arrangement had been made for the vote of Georgia.
The Presiding Officer said:
The Chair is very much disposed to hold the Senate and House of
Representatives to their own concurrent resolution. * * * The
resolution of the two Houses declared that the vote of Georgia should
be announced by the President pro tempore in a certain special way, and
stated how that announcement should be made. The Chair is very much
disposed to obey the directions of both branches of Congress in this
matter.
Mr. Butler proposed that this matter, being one of Constitutional
law, should be considered, on appeal, to the House of Representatives.
The Presiding Officer announced that the Senate would retire. The
Senate having been called to order,\1\ there were presented
propositions relating to the objections, one being that the vote should
not be counted, another that it should be counted in accordance with
the concurrent resolution of the 8th inst., etc. Finally, after
discussion, the President pro tempore held that the Senate must proceed
in accordance with the terms of the concurrent resolution. Thereupon
Mr. George F. Edmunds, of Vermont, offered the following resolution,
which was agreed to--yeas 37, nays 32.
Resolved, That under the special order of the two Houses respecting
the electoral vote from the State of Georgia the objections made to the
counting of the vote of the electors for the State of Georgia are not
in order.
This resolution having been agreed to, the President pro tempore
raised a question as to what announcement should be made to the joint
convention, the two Houses not agreeing. Mr. Roscoe Conkling, of New
York, having quoted these words of the Constitution--
The President of the Senate shall, in the presence of the Senate and
House of Representatives, open all the certificates, and the votes
shall then be counted--
raised a question as to how the Chair could make the conditional
announcement required by the terms of the concurrent resolution.
Thereupon Mr. Jacob M. Howard, of Michigan, offered this resolution:
Resolved, That the electoral vote of Georgia ought not to be counted.
A point of order was made that under the recent ruling of the
President pro tempore the resolution was not in order.
The President pro tempore held that the resolution was in order, it
not being for the Chair to decide whether or not the proposition was in
conflict with previous action. An appeal having been taken the decision
of the Chair was sustained--yeas 28, nays 25.
-----------------------------------------------------------------------
\1\ Globe, pp. 1050-1055.
Sec. 1950
The resolution offered by Mr. Howard was then rejected--yeas 25, nays
34.
In the House of Representatives\1\ the Speaker, after having
announced and had read the objection, put the question: ``Shall the
vote of Georgia be counted, notwithstanding the objection of the
gentleman from Massachusetts?''
Mr. Charles A. Eldridge, of Wisconsin, raised the question of order
that the Presiding Officer had ruled to hold the Joint Convention to
the order made by concurrent action of the two Houses, and that the two
bodies had separated on the point of order raised by the gentleman from
Kentucky, Mr. Jones.
The Speaker said:
The Chair overrules the point of order. Questions in regard to the
decision of the President of the convention of the two Houses must be
submitted to that officer when occupying the chair in that capacity.
The point upon which the two Houses separated was the objection of the
gentleman from Massachusetts.
Mr. John F. Farnsworth, of Illinois, made the point of order that the
joint [concurrent] resolution of the two Houses was of higher authority
and a later rule than the one ordering that question to be put.
The Speaker said:
The Chair overrules the point of order on the ground that the
concurrent resolution devolves no duty on the Speaker of the House at
all. It devolves a duty on the President of the Senate in presiding
over the joint meeting of the two Houses. * * * It devolves no duty on
the Speaker or upon the House of Representatives in its capacity as the
House.
Mr. Michael C. Kerr, of Indiana, as a parliamentary inquiry, asked if
the propositions submitted by the gentleman from Massachusetts as his
objection were capable of division and separate votes.
The Speaker held that they were not.
The question being then taken, it was voted, yeas 41, nays 150, that
the vote of Georgia should not be counted.
1950. Proceedings of the electoral count of 1869, continued.
The two Houses having separated for action on an objection during the
electoral count of 1869, the House announced to the Senate, by message,
its decision.
Disorder arising in the joint meeting during the electoral count of
1869, the Speaker called Members of the House to order and directed the
Sergeant-at-Arms to assist.
Mr. Speaker Colfax presided with the President pro tempore at the
electoral count of 1869, although he was ascertained by that count to
be the Vice-President-elect.
Mr. Speaker Colfax left the chair to participate in debate on a
question arising out of the electoral count of 1869.
A proposition in the Senate to censure a Member of the House for
conduct in the joint meeting to count the electoral vote.
The Speaker announced that a message would be sent to the Senate
informing that body of the action of the House.
-----------------------------------------------------------------------
\1\ Journal, p. 315; Globe, pp. 1058, 1059.
Sec. 1950
When the joint convention reassembled\1\ the President pro tempore,
having resumed the chair, said:
The objections of the gentleman from Massachusetts are overruled by
the Senate, and the result of the vote will be stated as it would stand
were the vote of the State of Georgia counted, and as it would stand if
the vote of that State were not counted, under the concurrent
resolution of the two Houses.
Mr. Benjamin F. Butler, of Massachusetts, proposed to submit a
resolution.
The President pro tempore said:
The Chair declines to receive the resolution. The tellers will make
out the statement of the vote as directed.
Mr. Butler appealed and the Chair declined to entertain the appeal.
Mr. Butler, having, amid much confusion, insisted on his appeal, the
Chair said:
The Chair his decided that an appeal can not be entertained in the
joint convention.
Being questioned as to his authority for declining to entertain an
appeal, the Chair said:
We are proceeding under a concurrent resolution of both bodies which
has declared how the counting and announcement of the votes shall be
proceeded with.
The President pro tempore proceeded to direct the tellers to report,
after having ruled out of order a motion to adjourn, and having ignored
a motion that the convention be dissolved. The confusion became so
great that the Speaker of the House, from his place beside the
President pro tempore, said:
The Speaker of the House appeals to Members of the House to preserve
order. The Sergeant-at-Arms of the House will arrest any Member
refusing to obey the order of the President of this convention.\2\
The state of the vote was then announced as provided by the terms of
the concurrent resolution.\3\
The President pro tempore then announced that the Senate would
retire.
As soon as the Senate had retired, Mr. Benjamin F. Butler, of
Massachusetts, rising to a question of privilege, offered a resolution
which he subsequently modified to read as follows:
Resolved, That the House protests against the manner of procedure and
the order of the President of the Senate pro tempore, in presence of
the two Houses, in counting the vote of Georgia in obedience to the
order of the Senate only, and against his acts dissolving the
convention and the two Houses at his own will as an invasion of the
rights and privileges of this House.
Resolved, That the above resolution be, and hereby is, referred to a
select committee of five, with leave to report at any time, and report
by bill or otherwise.
A long debate \4\ arose, in the course of which the Speaker, who left
the chair to participate, said: \5\
It is impossible in a joint convention that there should be an appeal
from the ruling of the Chair, because it could not be entertained by
the presiding officer. There never has been an appeal in any joint
convention of Congress. It might have been provided for in the rules,
but has been omitted.
-----------------------------------------------------------------------
\1\ Globe, pp. 1062, 1063.
\2\ The Speaker was Mr. Colfax, who was also the Vice-President
declared elected by this count.
\3\ Journal, p. 320; Globe, p. 1063.
\4\ Globe, pp. 1064-1067, 1094-1107, 1144-1148.
\5\ Globe, p. 1067.
Sec. 1951
* * * There can be no appeal on a point of order in a joint convention
of the two Houses for the reason that the Senate, representing the
States, and the House of Representatives representing the people of the
United States, the convention is made up of different persons, each
body representing the same number of people, but by different numbers
and in different ways.
Finally, on February 12,\1\ the subject was laid on the table, yeas
130, nays 55. In the Senate, on February 11,\2\ Mr. Garrett Davis, of
Kentucky, proposed in the Senate a concurrent resolution censuring Mr.
Butler, but it does not seem to have been acted on.
1951. Proceedings of the electoral count of 1873.
When an objection is raised to the counting of the electoral vote of
a State in the joint meeting, two copies are made of the objection, one
for use of the House and the other for the Senate.
During the electoral count of 1873 the joint meeting made, by
unanimous consent, orders relating to the reading of the certificates
and the consideration of objections.
During the electoral count of 1873 the objection to the vote of
Georgia was, by unanimous consent, reserved until objection was made to
the vote of Mississippi, when the Houses separated and considered the
two.
When, during the electoral count of 1873, the two Houses separated to
consider objections, the Vice-President, who had custody of the
documents, left with the House duplicates of the electoral
certificates.
The former joint rule providing for the electoral count. (Footnote.)
In a message in 1865 the President of the United States disclaimed
all right of interfering with the canvassing or counting of the
electoral votes. (Footnote.)
On February 12, 1873,\3\ the House directed its Clerk to inform the
Senate that it was ready to receive that body for the purpose of
proceeding to open and count the electoral votes. This was the last
count to take place under the twenty-second joint rule.\4\ The
formalities of assembling being over, by unanimous consent of
-----------------------------------------------------------------------
\1\ Journal, p. 335; Globe, p. 1148.
\2\ Globe, p. 1069.
\3\ Third session Forty-second Congress, Journal, p. 374; Globe, p.
1294.
\4\ The twenty-second joint rule provided: ``The two Houses shall
assemble in the Hall of the House of Representatives at the hour of 1
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 the 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
and hearing of the two Houses thus 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.
``If, upon the reading of any such certificate by the tellers, any
question shall arise in regard to counting the votes therein certified,
the same having been stated by the presiding officer, the Senate shall
thereupon withdraw, and said question shall be submitted to that body
for its decision; and the Speaker of the House of Representatives
shall, in like manner, submit such question to the House of
Sec. 1951
the joint convention, it was ordered that the reading, of the
certificates at length should be dispensed with, and that the tellers
should make examination and announce whether or not in each case the
certificate of the governor of the state accompanied the return.\1\
The count proceeded \2\ until the State of Georgia was reached, when
an objection was made by Mr. George F. Hoar, of Massachusetts, a
Representative. By unanimous consent this objection was reserved and
the count proceeded, until an objection was filed to the vote of the
State of Mississippi.
The Vice-President \3\ then announced that two copies would be made
of the objections, one for the House and one for the Senate. The Vice-
President also stated that a doubt had been suggested as to the
authority of the President of the Senate to leave in the possession of
the House any official document in his possession pertaining to the
electoral vote. But as the tellers had reported, besides the documents
delivered to the Vice-President by messenger, duplicates received by
mail, he would, by unanimous consent, leave the duplicates in
possession of the House. There being no objection this was done.
The objections having been formally presented, the Vice-President
announced that the Senate would withdraw to their Chamber. The Senate
accordingly withdrew.
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 immediately 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.''
The next paragraph provides for the seating of the officers and
members of the joint convention. The present law embodies this
paragraph. (See section 1919 of this work.) The joint rule then
continues:
``Such joint meeting shall not be dissolved until the electoral votes
are all counted and the result declared; and no recess shall be taken
unless a question shall have arisen in regard to counting any of such
votes, in which case it shall be competent for either House, acting
separately in the manner herein before provided, to direct a recess not
beyond the next day at the hour of 1 o'clock p.m.''
This joint rule dates from February 6, 1865, when, in the Senate, Mr.
Lyman Trumbull, of Illinois, presented it as the report of a joint
committee to whom was referred the subject. The first paragraph was
similar to the resolution adopted in 1861, but in certain respects
differed materially. (See Journal of February 5, 1861, second session
Thirty-sixth Congress, p. 273.) The other paragraphs appear to be new.
The debate indicates that the new joint rule was proposed to obviate
difficulties occasioned by the status of some of the States recently in
secession. (Second session Thirty-eighth Congress, Journal, p. 200;
Globe, pp. 608, 628.) At this time also the House and Senate passed a
joint resolution ``declaring certain States not entitled to
representation in the electoral college.'' The President signed this
joint resolution, but in a message disclaimed all right of the
Executive to interfere in the canvassing or counting of the electoral
vote. (Journal, p. 213; Globe, p. 711.)
On February 10, 1869, Mr. Speaker Colfax, speaking of Joint Rule 22,
said it was adopted in 1865 because it was feared that in the troublous
condition of the country there might be a disastrous repetition of the
scenes of confusion witnessed during the electoral count of 1857.
(Globe, third session Fortieth Congress, pp. 1066, 1067.)
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\1\ Globe, p. 1296.
\2\ Globe, pp. 1296, 1297.
\3\ Schuyler Colfax, of Indiana, Vice-President.
Sec. 1952
1952. Proceedings of the electoral count of 1873, continued.
Under the former joint rule for counting the electoral vote the Vice-
President held that objection to the vote of a State, even for a
Constitutional reason, should be made at the time the vote was opened
and counted.
After the two Houses had separately considered objections raised
during the electoral count of 1873, they informed one another of their
conclusions by message, and the House by message informed the Senate of
its readiness to receive them in order to proceed with the count.
At the electoral count of 1873 the Vice-President, in accordance with
the previous practice, not only announced the state of the vote, but
declared those elected.
The Vice-President held, in 1873, that an appeal might not be taken
in the joint meeting for counting the electoral vote.
Later, after the two Houses had acted individually on the objections,
after they had transmitted to one another by message copies of the
resolutions embodying their respective conclusions,\1\ and after the
House had further informed the Senate by message that it was ready to
receive them ``to proceed again with the counting of the electoral
votes,'' the Senate appeared in the Hall of the House and the Vice-
President resumed the chair, and after the actions of the two Houses
had been reported, said:
Therefore, by the twenty-second joint rule, there being a
nonconcurrence between the two Houses upon the three votes cast in the
State of Georgia for Horace Greeley for President of the United States,
they can not be counted; and in accordance with the same joint rule the
vote of Mississippi will be counted.
The tellers having resumed the counting and having reached the State
of Missouri, Mr. Oliver P. Morton, of Indiana, a Senator, called
attention to the fact that the certificates of the State of Georgia
showed that votes had been cast for citizens of that State for both
President and Vice-President, in violation of the Constitution, and
made the point that an objection on this account, although not made
when the returns from Georgia were opened, was in order if made before
the final announcement of the counting of all the votes.
The Vice-President held that the objection came too late,\2\ under
the terms of the joint rule which provided for the settlement of
questions arising over the vote of any State.
Mr. Matthew H. Carpenter, of Wisconsin, a Senator, as a parliamentary
inquiry, asked if it would be in order to take an appeal from the
decision of the Chair.
The Vice-President said:
The Senator himself will see that there could not be an appeal taken
in a joint meeting of the two Houses; but if any point can be made on
which the two Houses can be required to divide, the Chair will
entertain it. The language of the joint rule is so emphatic that the
Senator from Wisconsin will see that when a thing is directed to be
done at a particular time, it must be done at that time.\3\
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\1\ Globe, p. 1299.
\2\ Globe, p. 1300.
\3\ The present law (24 Stat. L., p. 374; also section 1766 of this
work) provides: ``The President of the Senate shall have power to
preserve order; and no debate shall be allowed and no question shall be
put by the presiding officer except to either House on a motion to
withdraw.''
Sec. 1952
The count having proceeded, and objections having been made to the
counting of the vote of Texas, the Senate withdrew; and, the two Houses
having separately passed upon the objections, the joint convention
reassembled. The conclusions of the two Houses having been announced,
the Vice-President announced that under the rule, the two Houses
concurring, the vote of Texas could be counted.
In a similar manner objections to the votes of the States of Arkansas
and Louisiana were considered, and the votes of these States were
excluded.
The Vice-President, at the conclusion of the count and after he had
announced the result, said:
Wherefore, I do declare that Ulysses S. Grant, of the State of
Illinois, having received a majority of the whole number of electoral
votes, is duly elected President of the United States for four years
commencing, * * *.\1\
A similar declaration was then made as to the Vice-President.
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\1\ Journal, p. 384; Globe, p. 1306.