n
reconstruction against this possible flank movement, and in January,
1865, passed a joint resolution declaring that Virginia, North and South
Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas,
Arkansas, and Tennessee were in such a condition on November 8 that no
valid election of presidential electors was held in any of them, and
that therefore no electoral votes should be received or counted from any
of them. When this resolution came before Mr. Lincoln for his signature
it placed him in an embarrassing position, because his approval might
seem to be an implied contradiction of the position which he had taken
concerning the present status of Tennessee and Arkansas. It was not
until February 8, the very day of the count, that he conquered his
reluctance, and when at last he did so and decided to sign the
resolution, he at the same time carefully made his position plain by a
brief message. He said that he conceived that Congress had lawful power
to exclude from the count any votes which it deemed illegal, and that
therefore he could not properly veto a joint resolution upon the
subject; he disclaimed "all right of the executive to interfere in any
way in the matter of canvassing or counting electoral votes;" and he
also disclaimed that, by signing the resolution, he had "expressed any
opinion on the recitals of the preamble, or any judgment of his own upon
the subject of the resolution." That is to say, the especial matter
dealt with in this proceeding was _ultra vires_ of the executive, and
the formal signature of the President was affixed by him without
prejudice to his official authority in any other business which might
arise concerning the restored condition of statehood.

When the counting of the votes began, the members of the Senate and
House did not know whether Mr. Lincoln had signed the resolution or not;
and therefore, in the doubt as to what his action would be, the famous
twenty-second joint rule, regulating the counting of electoral votes,
was drawn in haste and passed with precipitation.[76] It was an instance
of angry partisan legislation, which threatened trouble afterward and
was useless at the time. No attempt was made to present or count the
votes of Arkansas and Tennessee, and the president of the Senate acted
under the joint resolution and not under the joint rule. Yet the vote of
West Virginia was counted, and it was not easy to show that her title
was not under a legal cloud f