A Report of the Debates and Proceedings in the Secret Sessions of the Conference Convention / For Proposing Amendments to the Constitution of the United States, Held at Washington, D.C., in February, A.D. 1861

by L. E. Chittenden

The following statement shows why the vote of New York was not given upon the first question taken in the Peace Convention, on the twenty-seventh of February. The Journal represents the vote as divided. It was not divided. The vote was ordered to be cast, and should have been cast in the negative.

On Tuesday, the day preceding, a message came to me from the clerk of the Supreme Court of the United States, that the Court was waiting for me in a case which had stood upon the docket since December, 1859, and was now for the first time reached in its order. The case was of great importance, for upon its result depended the closing or reopening of a litigation which I had conducted for nineteen years, which had embraced in its different forms more than eighty suits, and in the course of which the Courts of the State and of the United States had come into direct conflict. All the tribunals of the State of New York, where the question had been raised, had decided against my clients. The Supreme Court of the United States, by a majority of two, had once decided in their favor.

The present case was to determine whether the Court would adhere to its former decision. The stake of my clients was therefore immense, and I was their only counsel.

The case being called after my arrival in Court, the Chief Justice observed that, as it was too late to begin that day, the argument would proceed first the next morning, at eleven o'clock, unless the Attorney-General should claim precedence in another case. Then, thinking that the Convention would close its business during the day, I hastened back, and the question being soon taken, I cast the vote of the State against the proposition before the Convention, and it was rejected by 11 to 8.

A reconsideration was moved and carried, and an adjournment taken to half-past seven in the evening. At that hour I returned to the Convention, but to my disappointment, and in spite of my efforts, it adjourned to the next morning at ten o'clock, a majority of my associates voting for the adjournment.

The next morning I endeavored to procure a meeting of the delegation before ten o'clock, that I might obtain a formal instruction to the Chairman in my absence to cast a vote of the State against the proposed amendments. Not being able, however, to obtain the earlier attendance of all the members, I waited till they appeared in the hall of the Convention, and there, shortly before eleven o'clock, I called them together, and, all being present, a resolution, in contemplation of my absence, was moved and carried, that "the Chairman declare that New York voted No on each section." Thereupon requesting Mr. King to act as temporary Chairman in my absence, and when New York was called to cast the vote in the negative, pursuant to the resolution, I left the hall and drove to the Capitol as rapidly as possible, that I might be present at the opening of the Court.

Was it reasonable, nay, was it possible, that I should do otherwise? It is known to be a rule of the Supreme Court not to postpone an argument for other engagements of counsel. If neither counsel is present, the case goes to the foot of the docket, to be reached again only after two or three years; if one of the counsel only appears, he makes an oral argument, and a printed brief is submitted on the other side. In my view, it would have been trifling with the rights of my clients either to submit their case on a printed brief or to postpone it for two years. I had no one to send to the Court in my place. To despatch a letter with an excuse was a liberty I did not feel justified in taking, and if taken, it might fail of its object, as the Court, when informed of the circumstances, must have believed that no member of the delegation would take advantage of my absence if he could, and that he could not if he would, since the vote had been already determined in a meeting of the delegation, and that determination could not be reconsidered or changed without the desertion to the minority of one of the majority.

But whatever might be the opinion of others, my duty appeared to myself extremely plain. There was nothing to be done in the Convention but the merely ministerial duty of declaring what had already been determined, which duty could certainly be performed by another as well as myself, while, on the other hand, no one but myself could act in Court for my clients. It is true that some of my associates expressed to me their apprehension that the minority might appeal to the Convention, and that the Convention might arbitrarily overrule the delegation; but I answered them as I repeat now, that neither the minority of the delegation nor the Convention itself had any right to interpose. We were not asking a favor, but exercising a right. Whether a person not present could vote was not the question. Persons did not vote except on unimportant questions and by general consent. States voted; the vote of each State was delivered by its Chairman, who collected the voices of his delegation and announced the result. There was nothing in the reason of the thing, nothing in any rule or usage of the Convention, which required the voices of the delegation to be collected at the instant of announcing the result. They might be collected one minute beforehand, or, as in the present instance, ten minutes, or twice ten minutes. All that could be required was, that each member should give his own judgment upon the particular proposition, and the sum of these judgments it was the sole province of the Chairman to make known. There could be no occasion for their standing by his side while he performed this duty unless he needed their support or they feared his weakness.

I have said that there was no rule of the Convention which ordered the matter otherwise; on the contrary, the rule as to the mode of voting—the 18th—was as follows:

"18. Mode of Voting: All votes shall be taken by States, and each State to give one vote. The yeas and nays of the members shall not be taken, or published—only the decision by States."