Letters and Literary Memorials of Samuel J. Tilden, v. 2

by Samuel J. Tilden

"First. If Congress had performed its constitutional duty of counting the electoral votes, and had declared that Mr. Tilden was chosen by the electoral colleges.

"The two Houses of Congress have all the powers of verification of the electoral votes which the Constitution or the laws supply or allow. Nobody else in the Federal government has any such powers. This exclusive jurisdiction of the two Houses has been exercised without interruption from the beginning of the government. It is known to all those who come in contact with Mr. Tilden at this period that he concurred in this view of the powers and duties of the two Houses of Congress themselves to count the electoral vote. He was perfectly free and unreserving in the expression of his opinions on this subject.

"This contingency, however, never presented itself. Congress, before the time fixed by the law for counting the electoral votes, passed the Election bill wherein they substantially abdicated their powers, and enacted that the electoral commission should in the first instance make a count, and that its count should stand, unless overruled by the concurrent action of the two Houses. The electoral tribunal counted Mr. Tilden out, and counted in a man who was not elected. Congress did not overrule their count; consequently, the false count stood as law under the act of Congress.

"Secondly. The other contingency in which it would have been lawful and obligatory on Mr. Tilden to have taken the oath of office was, that the House of Representatives on the failure of a choice of President by the electoral colleges had itself proceeded to make the election, voting by States in the manner prescribed by the Constitution.

"This contingency, like the first one, never occurred.

"The House of Representatives has by the express language of the Constitution, jurisdiction, if no person has a majority of the electoral votes, to make the election itself.

"The right of the two Houses to count the electoral votes, and to declare that any person has a majority, is a matter of implication, precedent, and practice. But the right of the House of Representatives to supply the failure of a choice is a matter of positive and express constitutional provision. It is not only a right, but a duty. The provision is mandatory. The House is a witness in the opening of the certificates. It is an actor in counting the votes by its own tellers and in its presence.

"Having such means of knowledge as to the facts, enabling it to ascertain whether a choice has been made by the electoral colleges, it is also expressly vested with a power and duty to act exclusively and conclusively in the event that no person be found to have been chosen by a majority of the votes of those colleges. The House acquires jurisdiction by the fact specified in the Constitution. The assent of the Senate to the existence of that fact is nowhere prescribed or required. No judgment, certification, or act of any official body is interposed as a condition to the assuming of its jurisdiction by the House. When the House has once acted in such a case, no review of its action nor any appeal from its decision is provided for in the Constitution. It is difficult to see why the House in such a case, like all tribunals of original jurisdiction and subject to no appeal, is not the exclusive judge of the fact and the law on which its jurisdiction rests. It was the fear that the Senate might lead a resistance to the rightful judgment of the House, and that General Grant would sustain this revolutionary policy with the army and navy and the militia of the great States in which the Republicans had possession of the State Governments that deterred the assertion of the rights of the House of Representatives, and induced its vote for and acquiescence in the electoral commission.

"But without speculating upon causes or motives, one thing is certain. The House of Representatives did not elect Mr. Tilden in the manner prescribed by the Constitution. On the other hand, it did concur with the Senate in anticipating and preventing the contingency in which it might have had to act, and in providing beforehand an expedient which was to make its own action in supplying the failure of an election by the colleges impossible. It adopted the electoral law and went through all the forms of the electoral scheme. True, it afterwards passed a declaratory resolution condemning the action of the electoral commission, and asserting that Mr. Tilden had been duly elected. But the Constitution had not provided that a man should or could take office as President on a declaratory resolution of the House of Representatives. If that resolution could have had full effect to abrogate the electoral law which the House had assisted to enact it would have still been a nullity as an exercise of the constitutional power of the House to elect. It created no warrant of authority to Mr. Tilden to take the oath of office.

"I have been somewhat long in answering your question, because the matter is one of importance. I might have disposed of your question more briefly by simply saying that no contingency provided by the Constitution ever existed in which Mr. Tilden could lawfully or properly take the oath of office as President. The idea that Mr. Tilden ever thought of taking the oath of office illegally is, in my judgment, quite as preposterous as is the other idea that he would have omitted to take it if any contingency had arisen in which it was his right or duty to take it, or that any menace would have had the slightest influence in preventing his performing his whole obligations to the people. I will venture to say that if it had been his right and duty to take the oath, he would not have done so at the City Hall in New York surrounded by the forces which, according to Mr. Mines, General Woodford pictured to his imagination, but at the Federal capital, even though he had known that he would be kidnapped or subjected to a drum-head court martial five minutes afterwards. It is doubtless true that revolutionary ideas were entertained by the hierarchy of office-holders in possession of the government. General Grant did utter menaces in published interviews, and did make a display of military force in Washington to overawe Congress. I presume this was a part of the system of intimidation for which he allowed himself to be used by the office-holders and which was intended to act upon public opinion through the fear of disturbance as well as upon Congress. But it is safe to say that whatever other effects they produced they did not prevent Mr. Tilden from taking the oath of office, which he never had any lawful authority to take, in the absence of such action on the part of the House of Representatives as would have fulfilled the conditions prescribed by the Constitution. The fear that he would do so, inducing the Republicans to swear their candidate into office privately on the Saturday previous to the commencement of the term of office besides repeating the ceremony at the inauguration, was born of a consciousness that causes the wicked to flee when no man pursueth. I was aware that about that time Mr. Tilden's home was besieged by emissaries of the press and the telegraph to know if the rumors to that effect which prevailed in Washington were true. This was a species of curiosity which, I believe, Mr. Tilden did not consider it any part of his duty to relieve."