CHAPTER XIII.

THE PRESIDENTIAL ELECTION OF 1876. THE ELECTORAL COMMISSION.—ITS UNCONSTITUTIONAL CHARACTER, AND ITS PARTISAN DE

CISIONS.

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

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

ARTICLE II. ·

SECTION. 1. The executive Power shall be vested in a President of the United

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

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

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

ARTICLE XII.

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

From these constitutional provisions it is to be inferred

First, That "counting" means more than a bare arithmetical enumeration; that it is a quasi-judicial function, the discharge of which requires the ascertainment of the lawful right to act as electors that is claimed by or for the persons who appear upon

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

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

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

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

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

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

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

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