ence and hearing of the two Houses then assembled, shall make a list of votes as they shall appear from the state of the 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 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 said question to the House of Representatives for its decision and no question shall be decided affirmatively and no vote objected to shall be counted except by the concurrent votes of the two Houses, which being obtained, the two Houses shall 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."

Only a week prior to the adoption of the 22d rule the two Houses had united in a joint resolution which declared that certain States-eleven in number-were not entitled to representation in the electoral college because they had been and were, up to the 8th of November, 1864, in a state of armed rebellion against the Government, and that their electoral vote, therefore, should not be counted.

Under the operation of this joint rule and joint resolution, the canvass of votes was conducted. The Vice-President opened the certificates, handed them to the tellers, who reported that the certificates were in due form, and the amount of the vote of the several States as they were called.

When the tellers had ceased Senator Cowan said:

"Mr. President, I inquire whether there are any further returns to be counted?" The Vice-President: There are not.

Senator Cowan: And if there are to be I would inquire why they are not submitted to this body in joint convention which is alone capable of determining whether they should be counted or not?

The Vice-President: The Chair has in his possession returns from the States of Louisiana and Tennessee, but in obedience to the law of the land the Chair holds it to be his duty not to present them to the convention.

Senator Cowan: I ask whether the joint resolution on that subject has become a law by having received the approval of the President of the United States?

The Vice-President: The Chair believes that the official communication of its approval by the President has not been received by either House; the Chair, however, has been apprised of the fact that the joint resolution has received the ap proval of the President.

Senator Cowan: Then, as a motion is not in order in this body, I suggest that the votes of Louisiana and Tennessee be counted, and that the convention determine the fact.

Mr. Stevens: I do not think any question has arisen which requires the two Houses to separate. That, according to the wording of the joint resolution, can only be upon the reading of the returns which have been opened by the President of the convention.

Senator Cowan: I merely wish to say that, believing as I do that it rests with this joint convention in its joint capacity to determine all questions which ought to arise here, I have done what I thought to be my duty in bringing to the attention of the convention the question which I have raised. Having done so, I now beg leave to withdraw it.

By the President: The Chair did not understand the Senator from Pennsylvania [Mr. Cowan] as making any distinct motion, but merely a simple suggestion.

Senator Cowan: I understood that no motion could be entertained in this convention.

The Vice-President decided that motions could be entertained upon any matters pertinent to the purpose for which the convention had been assembled, but the decision of those motions must be determined by the two Houses separately after the Senate shall have withdrawn from the convention.

Mr. Yeaman, of Kentucky, then moved that all the returns before the joint convention be opened and presented for its consideration.

The Vice-President decided that that would require the two Houses to separate for deliberation, whereupon after short debate Mr. Yeaman withdrew his motion. Senator Trumbull then, on the part of the tellers, "announced the following as the result of the vote for the President and Vice-President of the United States," etc.

At this election the two Houses prescribed the course of procedure to be pursued: the two Houses decided that eleven electoral votes should not be counted. In express obedience to these resolutions of the two Houses, the Vice-President omitted to open and read the certificates of those votes which he had been forbidden to open; and Senator Cowan, who complained that the certificates of certain States had not been read, put his complaint distinctly upon the ground that the two Houses in joint convention were "alone capable of determining whether they should be counted or not," a proposition to which the President of the Senate not only assented, but which he relied upon for the justification of his ruling; having, as he correctly claimed, obeyed the express directions of the two Houses.

1869.

At President Grant's first election the President of the Senate, on taking the Speaker's chair, said: "The Senate and House of Representatives having met, under the provisions of the Constitution, for the purpose of opening, determining, and declaring, the votes for the office of President and Vice-President of the United States, for the term of four years, commencing on the 4th of March next, and it being my duty, in the presence of both Houses thus convened, to open the votes, I now proceed to discharge that duty."

The President pro tempore then proceeded to open and hand to the tellers the votes of the several States for President and Vice-President, commencing with the State of New Hampshire. One of the members called for a reading in full of the certificate of the returns of the vote of Louisiana, and objected to the counting of the vote from that State. Thereupon the Senate retired from the Hall. On the question of counting the vote of Louisiana in the House, there were 137 yeas to 63 nays. The messenger from the Senate having announced that that body had also voted in favor of counting the vote of Louisiana, the Senate, in a body, reëntered the Hall.

The President of the Senate, having resumed the chair, said: "By a concurrent resolution of the two Houses, the vote of Louisiana is ordered to be counted."

The tellers went on with their counting till the State of Georgia was reached. Mr. Butler objected to the vote of the State of Georgia being counted. Senator Edmunds said that the objection of the gentleman from Massachusetts was not in order, the two Houses having, by special rule for this case, made a substantial change in the standing joint rule, which joint rule reads as follows:

On the assembling of the two Houses, on the second Wednesday of February, 1869, for the counting of electoral votes for President and Vice-President, as provided for by law, under joint rules for 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 State presented as 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, and in either case is elected President of the United States;

and in the same manner for Vice-President.

Mr. Butler insisted that, under the Constitution, the votes must be counted or rejected by the convention of the two Houses, and that the prior concurrent action

of the Senate and of the House cannot bind the convention, and the convention may act, after they get together, as they choose to do.

The Senate retired, and the House decided against counting the electoral vote of the State of Georgia-yeas 41, nays 150.

At half-past four the Senate in a body reëntered the Hall.

The President: 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 if the vote of the State of Georgia were counted, and as it would stand if the vote of that State were not counted, under the concurrent resolution of the two Houses. Senator Conkling, one of the tellers, then proceeded to declare the result, amid great noise and disorder.

The President: The tellers report that the whole number of votes cast for President and Vice-President of the United States, including the votes of the State of Georgia, is 294, of which the majority is 148. Excluding the votes of the State of Georgia it is 285, of which the majority is 143. The result of the vote as reported by the tellers for President of the United States, including the State of Georgia, is, for Ulysses S. Grant, of Illinois, 214 votes; for Horatio Seymour, of New York, 80 votes. Excluding the State of Georgia the result of the vote is, for Ulysses S. Grant, of Illinois, 214 votes; for Horatio Seymour, of New York, 71 votes. [Same for Vice-President.] Wherefore, in either case, whether the votes of the State of Georgia be included or excluded, I do declare that Ulysses S. Grant, of the State of Illinois, etc., etc. . . .

1873.

At the second election of President Grant, in 1873, the Vice-President, on taking the Speaker's chair, said: "The Senate and House of Representatives having met under the provisions of the Constitution for the purpose of opening, determining, and declaring the votes cast for President and Vice-President of the United States for the term of four years, commencing on the 4th of March next, and it being my duty, in the presence of both Houses thus convened, to open the votes, I now proceed to discharge that duty.

"The Vice-President then proceeded to open and hand to the tellers the votes of the several States for President and Vice-President of the United States, commencing with the State of Maine."

When the State of Georgia was reached, objection was made by Mr. Hoar, who said: "I desire to make the point that the three votes reported by the tellers as having been cast for Horace Greeley, of New York, cannot be counted, because the person for whom they purport to have been cast was dead at the time of the assembling of the electors in that State."

The point was reserved until the other States had been called and the objections reduced to writing, and then the Senate withdrew for deliberation.

At 3.35 P. M. the Senate returned to the Hall, and the Vice-President said: "Upon the first point raised by the Representative from Massachusetts [Mr. Hoar], the Senate decide as follows:

Resolved, That the electoral votes of Georgia cast for Horace Greeley be counted.

The House of Representatives decided as follows:

Resolved, That the votes reported by the tellers as having been cast by the electors of the State of Georgia for Horace Greeley, of New York, as President of the United States, ought not to be counted, the said Horace Greeley having died before said votes were cast.

Upon this question there is a non-concurrence of the two Houses.

On the question submitted by the Senator from Illinois [Mr. Trumbull] in regard to the votes of the State of Mississippi, the Senate adopted the following resolution: Resolved, That the electoral vote of the State of Mississippi be counted.

And the House of Representatives adopted the following resolution:

Resolved, That in the judgment of this House the eight votes reported by the tellers as cast by the electors in and for the State of Mississippi ought to be counted as reported by them.

On this question the votes of the two Houses are concurrent.

On the third point raised by the Representative from New York [Mr. Potter], which was in regard to the election of one elector from Mississippi, the Senate adopted the following resolution, which is covered also by its action on the full vote of the State: Resolved, That the vote cast by James J. Spellman, one of the electors for the State of Mississippi, be counted.

The House of Representatives adopted the following resolution:

Resolved, That the electors of the State of Mississippi having been appointed in the manner directed by the Legislature of that State, and in accordance with the provisions of the Constitution of the United States, were legally elected, and that the vote of the State as cast by them should be counted, and that the certificate of the Governor of that State of the electoral vote cast, and the certificate of the Secretary of State of that State in regard to the choice of electors, is in compliance with the Constitution and laws of the United States.

Therefore, by the twenty-second joint rule, there being a non-concurrence between the two Houses upon the three votes cast in the State of Georgia for Horace Greeley for President of the United States, they cannot be counted. And in accordance with the same joint rule, the votes of the State of Mississippi will be counted." The tellers resumed the counting of the votes, and announced the same, until the State of Missouri was reached, when Senator Morton made an objection to two of the electoral votes from the State of Georgia. The Vice-President held that the objection came too late; that it should have been made when the State of Georgia was called. He finally, however, decided that it was in time, the credentials of no other State having yet been read.

After several other objections had been made, the Senate again withdrew for deliberation, and returned at five minutes past five.

"The Vice-President, having resumed the chair: Two objections having been made to the counting of the votes of the electors of the State of Texas, the Senate upon the first objection, made by the Senator from Illinois [Mr. Trumbull], resolved as follows:

Resolved, That the electoral vote of the State of Texas be counted, notwithstanding the objection raised by Mr. Trumbull.

And the House of Representatives resolved as follows:

Resolved, That in the judgment of this House the vote of Texas should be counted as reported by the tellers.

On the second objection, by Mr. Dickey, the Senate resolved as follows: Resolved, That the objection raised by Mr. Dickey to counting the electoral vote of the State of Texas be and the same is overruled.

And the House of Representatives resolved as follows:

Resolved, That a quorum is an arbitrary number which each State has the right to establish for itself, and as it does not appear that the choice of electors was in conflict with the law of Texas as to a quorum for the transaction of business, the vote of the electors for President and Vice-President be counted.

So (the two Houses having concurred) the electoral vote of Texas, under the twenty-second joint rule, will be counted."

The Senate retired again for deliberation upon objections to the electoral votes from Arkansas and Louisiana.

"The Vice-President, having resumed the chair, said: The objection made by the Senator from Arkansas to the conting of the electoral vote of that State as declared by the tellers, having been considered by the two Houses, the Senate has resolved as follows:

Resolved, That the electoral vote of Arkansas should not be counted.

And the House has resolved as follows:

Resolved, That the electoral vote of the State of Arkansas, as reported by the tellers, be counted.

There being a non-concurrence of the two Houses on this question, the vote of

Arkansas, in accordance with the provisions of the twenty-second joint rule, will not be counted. That rule provides that—

No question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses.

The several objections made on various grounds to the counting of the electoral votes from Louisiana having been considered by the two Houses, the Senate has resolved as follows:

Resolved, That all objections presented having been considered, no electoral vote purporting to be that of the State of Louisiana be counted.

And the House has resolved as follows:

Resolved, That, in the judgment of this House, none of the returns reported by the tellers as electoral votes of the State of Louisiana should be counted.

On this question there is a concurrence of the Houses; and the electoral votes of Louisiana will not be counted. The tellers will now announce the result of the vote."

Senator Sherman (one of the tellers) announced the result as follows,” etc. The Vice-President then said: "The whole number of electors to vote for President and Vice-President of the United States, as reported by the tellers, is 366, of which the majority is 184. Of these votes 349 have been counted for President and 352 for Vice-President of the United States. The result of the vote for President of the United States, as reported by the tellers, is: for Ulysses S. Grant, of Illinois, 286 votes, etc.; 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," etc.

It is to be observed that, at every stage of this election, the final authority to decide all the questions in debate is conceded to be in the two Houses, or in their agents, the tellers:

FEDERAL OFFICERS CHOSEN AS ELECTORS.

The only case in which the validity of a certificate given to an elector chosen while holding an office under the Federal Government, that has arisen or upon which the two Houses of Congress may be said to have expressed any opinion, occurred at the election of Martin Van Buren in 1837.

It was ascertained that there were three individuals in North Carolina, one in New Hampshire, and one in Connecticut, elected to the electoral college who bore the same names with those individuals who were deputy postmasters under the General Government, and they were presumed to be the same individuals.

Mr. Clay moved that the joint committee appointed to report the mode of examining the votes for President and Vice-President should ascertain whether any votes were given at that election contrary to the prohibition contained in the Constitution against Federal officers acting as electors.

Mr. Grundy, from the committee, reported to the Senate that "there were four or five electors chosen in the several States who were officers of the General Government, and that such votes were, in the opinion of the committee, not in conformity with the provisions of the Constitution; but, at the same time, the few votes thus given will not vary the result of the election, as it was not contemplated by any one that the appointment of one ineligible elector would vitiate the vote of his State."

Mr. Thomas, from the committee on the part of the House, in reply to the suggestion that the electors had resigned their Federal appointments before they gave their votes, said "that the committee came unanimously to the conclusion that these electors were not eligible at the time they were elected, and therefore the whole proceeding was vitiated, ab initio."

In accordance with these views, he reported from the committee that the defect of such a choice would not be cured by the resignation of the Federal office. "The committee are of opinion," runs the report, that "the second section of the second article of the Constitution, which declares that 'no Senator, or Representa